Hon'ble Mrs. Vijay Lakshmi, J.
We have heard Sri Brijesh Shukla, learned counsel for the petitioner and Sri Baleshwar Chaturvedi, who has accepted notice on behalf of respondents.
With the consent of the learned counsel for the parties, writ petition is being finally disposed of at the admission stage itself without calling for a counter affidavit.
Facts lie in a narrow campus and relevant for the purposes of the case are as under :
The petitioner is a tenant of House no. 78-F/22, Katar Shahid, Indira Chowk, Moradabad. There is a dispute going on with the landlord and on his refusal to accept rent, the petitioner is depositing the same under Section 30 of U. P. Act No. 13 of 1972. On account of ongoing dispute and in order to create pressure upon the petitioner-tenant to vacate the accommodation, the landlord got the supply of electric energy disconnected. It appears that thereafter the petitioner made an application on the prescribed form for grant of new electricity connection and submitted it in the office of respondent no. 4 on 23.09.2013 but the same was returned back to the petitioner with endorsement that since the landlord has refused to give no objection to the electricity connection as such the same cannot be provided. Thereafter, the petitioner made various representations and visited the office of respondent no. 4 but when no action has been taken and he has not been granted new connection for supply of electrical energy, he has approached this Court by filing writ petition seeking the following main reliefs :
(I)to issue a writ, order or direction in the nature of mandamus commanding the respondent no. 4 to accept the Form of the petitioner for installation of new electric meter in his name premises House No. 78-F/22, Katar Shahid Indra Chowk, Moradabad and supply electricity to the petitioner.
Learned counsel for the petitioner submitted that supply of electricity monopolised by U. P. Power Corporation is essential for life and it is impossible to live without electricity and the respondents are not justified in refusing to grant new electricity connection in the name of the petitioner only on the ground that landlord with whom there is a dispute has refused to give no objection certificate.
Sri Baleshwar Chaturvedi, learned counsel appearing for the respondents, submitted that clause 4.4 of U. P. Electricity Supply Code 2005, hereinafter referred to as Code 2005, provides for owners consent for getting new supply connection and the petitioner has rightly been denied new connection for want of consent from the landlord of the premises in dispute. He has placed reliance on a Division Bench judgment of this Court in the case of Ravi Shanker Giri Vs. Sub-Divisional Officer, U. P. Power Corporation Limited and others reported in 2007 (4) AWC - 3934 and another Division Bench judgment dated 03.01.2014 rendered in Writ Petition No. 71425 of 2013, Tanveer Azam Vs. State of U. P. and others wherein it has been held that unless there is a consent of the owner of the premises which requirement has to be fulfilled in terms of Code 2005, electricity connection cannot be granted.
We have considered the arguments advanced by the learned counsel for the parties.
Electrical undertakings have acquired the character of public utility by reason of their monopolistic position. The State in exercise of its legislative power has enacted the Electricity Act 2003 to consolidate the laws relating to generation, transmission, distribution, trading and use of electricity and generally for taking measures conducive to development of electricity industry as also to protect the interest of consumers and supply of electricity to all areas. The same is reflected from the statement of objects and reasons of Electricity Act, 2003.
Section 42 of the Act deals with duties of distribution licensee . The said section reads as under :
''42. Duties of distribution licensee and open access. - (1) it shall be a duty of a distribution licensee to develop and maintain an efficient, coordinated and economical distribution system in his area of supply and to supply electricity in accordance with the provisions contained in this Act.
Section 43 of the Act cast duty upon licensee to supply electrical energy on request. Sub-section (1) of the said section reads as under :
''43. Duty to supply on request. - (1) Every distribution licensee, shall, on an application by the owner or occupier of any premises, given supply of electricity to such premises, within one month after receipt of the application requiring such supply:
Provided that where such supply requires extension of distribution mains, or commissioning of new sub-stations, the distribution licensee shall supply the electricity to such premises immediately after such extension or commissioning or within such period as may be specified by the Appropriate Commission:
Provided further that in case of a village on hamlet or area wherein no provision for supply of electricity exists, the Appropriate Commission may extend the said period as it may consider necessary for electrification of such village or hamlet or area.
(2). It shall be the duty of every distribution licensee to provide, if required, electric plant or electric line for giving electric supply to the premises specified in sub-section (1):
Provided that no person shall be entitled to demand, or to continue to receive, from a licensee a supply of electricity for any premises having a separate supply unless he has agreed with the licensee to pay to him such price as determined by the Appropriate Commission.
(3). If a distribution licensee fails to supply the electricity within the period specified in sub-section (1), he shall be liable to a penalty which may extend to one thousand rupees for each day of default.
A bare reading of the provisions of the Electricity Act, 2003 go to show that every distribution licensee is under an obligation not only to develop but also to maintain efficient, coordinated and economical distribution system in the area of its supply. The provision of Section 43 of the Electricity Act cast a statutory duty upon the distribution licensee to supply electricity not only to owner but also occupier of premises located within the limits of the area of its supply subject to an application being made by owner or occupier in this regard and correspondingly the owner or occupier of any premises, as the case may be, has statutory right to supply and obtain such electricity supply from the distribution licensee. Of course, the right is subject to completion of formalities provided for the purpose.
Electricity Supply Code, 2005 reference of which has been made by learned counsel for the respondents to contend that electricity connection cannot be granted without consent from the owner enforced in 2005 enlists the obligations of the licensee and consumers vis-a-vis each other and specifies the set of practices to provide efficient, cost effective and consumer friendly service to the consumers. Under Clause 2.2 (oo) of 2005 Code 'Occupier' means the owner or authorized person in occupation of the premises where energy is used or proposed to be used. Clause 4.4 prescribes procedure for processing of application for supply. Clause 4.4 (a) which is relevant for the purpose of the present case reads as under :
''4.4. Processing of Application for Supply.
(a) Application for new connections, in prescribed form (Annexure 4.1) and complete in all respects and accompanied by the prescribed Registration-cum-processing fee, shall be filed in duplicate in the office, specified by the Licensee, along with attested true copies of the following documents:
(i)Proof of ownership of the premises in the form of registered sale deed or partition deed or succession or heir ship certificate or deed of last will or proof of occupancy such as valid power of attorney or latest rent paid receipt or valid lease deed or indemnity form as per Annexure 4.2. Order copy of appropriate court, in case of litigation regarding ownership of the premises, has to be enclosed.
(ii)Approval/permission/NOC of the local authority, if required under any law/statute.
(iii)In case of a partnership firm, partnership deed.
(iv) In case of a Limited Company, Memorandum, articles of Association, Certificate of incorporation and list of Directors/certificate addresses.
Owner's consent for getting new supply connection (Annexure 4.3).
Reference at this stage may also be made to the relevant annexure of Electricity Supply Code 2005. Annexure 4.3 in reference to clause 4.4 is a formate of owner consent for getting new supply connection. Annexure 4.2 in reference to clause 4.4 is a form of indemnity bond which is to be given in case the intending consumer is not the owner of the premises. The same is reproduced herein below :
ANNEXURE 4.2 (Ref. Clause 4.4) This form is available free of cost INDEMNITY BOND (If the intending consumer is not the owner of the premises) To From _______________Engineer, _______________ ______________________ _______________ Whereas the land/premises detailed hereunder, belongs to Sri/Smt. __________and I am only lessee/tenant/occupier of the said land/premises where I have applied for the electricity connection the said/premises and I am not able to obtain the consent of Sri/Smt.................................but produced the proof of occupancy, i. e. valid power of attorney/latest rent paid receipt/registered lease deed.
Thereto I, in consideration of the grant of electricity connection to me on the conditions of supply for which I have executed the Agreement, further agree to indemnify and keep harmless the Licensee from all damages and claims whatsoever, including costs of suit, original petitions and all manner of legal or other proceedings that the Licensee may incur or likely to incur on account of any action of threat by or at the instance of the owner of the said Land/premises (whether such owner be the said Sri/Smt. ______________or any other). I also further agree that such loss, damages and any other claim resulting out of the electricity connection being given to me without the consent of the owner of the land/premises are also recoverable from me and my properties under the provisions of the Revenue Recovery Act, in force at the time of such recovery, or by such other proceedings as the Licensee may deem fit to initiate.
I hold myself answerable to costs of such recoveries and proceedings also.
Section 43 of the Act enjoins a duty upon the licensee not only to supply electrical energy on an application in this behalf not only by a owner of a premises but also a occupier which has been defined under the Code 2005 to include any authorized person in occupation of the premises. A tenant would be an authorized person in occupation of a premises.
A perusal of Clause 4.4 of the Code 2005 goes to show that indemnity form as per annexure 4.2 can also be filed along with an application for new connection. The purpose is to enable such tenants, in respect of whom the owner or landlord refuses to give no objection for a new connection.
A perusal of Annexure 4.2 reproduce herein-above goes to show that the purpose as is obvious from the reading of the aforesaid form is to indemnify the licensee for any loss that may accrue on account of any act of a person in occupation of the building though he may not be owner. Thus, the Code 2005 provides either for consent letter of owner of the premises or in the absence thereof indemnity bond by the lessee/tenant or occupier of the premises. Intention is, thus, clear that either there should be owner's consent to indemnify the licensees in case the tenant/lessee or occupier vacates and vanishes without leaving his address or in the alternative tenant/lessee or occupier may give an undertaking indemnifying any loss or damage to licensee on account of electricity connection being given to him without the consent of the owner of the land or premises making it recoverable from him and his property under the provisions of the Revenue Act in force at the time of such recovery, or by such other proceedings as the Licensee may deem fit to initiate.
From the reading of the aforesaid provisions, it is clear that licensee is under an obligation to supply electrical energy on a proper application being made and every owner or occupier, which will include a tenant, of the premises has statutory right to apply and obtain electricity supply from the licensee subject to his fulfilling requirements under the provisions of the Electricity Act, 2003 and the Electricity Supply Code 2005. Thus, an application for grant of electricity connection cannot be refused by licensee on the ground that there is no consent of the landlord. From the scheme of the Act and the duties cast upon the licensee and right conferred upon the person making application for supply of electrical energy in case he submits indemnity bond, a lessee/tenant or occupier cannot be refused electricity connection merely for want of consent of the landlord.
Apart from above giving interpretation to the provision suggested by the learned counsel for the respondents would tentamount to nullifying the benefits and protection extended to tenant under the Rent Control Act. A scrupulous landlord would get the electricity connection disconnected, of the premises owned by him and in occupation of tenant, and shall never give his no objection to fresh electricity connection to the tenant forcing him to vacate the premises making the provisions of the Rent Control Act nugatory. Such interpretation shall not only be in the teeth of the provisions of the Act but also opposed to public policy.
The Division Bench judgment in the case of Ravi Shankar Giri and writ petition no. 71425 of 2013, Iftikhar Ahsan Vs. State of U. P. (supra) relied upon by the learned counsel for the respondents were passed without noticing the provisions of Clause 42 and 43 of the Electricity Act, the definition of the owner contained in the Code 2005 and Annexure 4.2 as also Clause 4.4 (a) (i) and Annexure 4.2 of the Code 2005. The above two judgments having failed to note statutory provisions cannot be said to lay down correct law.
In view of the aforesaid facts and discussions, the petitioner being occupier of the premises in question as a tenant has a legal right to obtain electricity connection and the respondents licensee was under an obligation to give connection for supply of electrical energy and the same could not have been refused solely for want of consent of the owner/landlord of the premises.
Accordingly, the petitioner is entitled to the relief claimed. Writ petition stands allowed. A mandamus is issued commanding the respondents to consider and grant electricity connection to the petitioner subject to his making application in accordance with law and the procedure prescribed and giving indemnity bond and fulfilling all other requirements.
In the facts and circumstances of the case, there shall be no order as to costs.
26.05.2014 Dcs.