HON’BLE SRI JUSTICE A. RAJASHEKER REDDY
Writ Petition No.15951 of 2014 Date: 19-09-2014
Between:
Sunil Saraogi .. Petitioner AND The Chairman, Telangana CPDCL, Khairthabad, Hyderabad and 2 others .. Respondents
HON’BLE SRI JUSTICE A. RAJASHEKER REDDY
Writ Petition No.15951 of 2014
ORDER:
This writ petition is filed for a mandamus declaring the action of the respondents in disconnecting electricity supply to electrical connection S.No.040100634 and USE No.101878404 in the name of Esgee Polymers as illegal and arbitrary and for a consequential direction to direct the 1st respondent to restore the electricity to the S.No.040100634 and USE No.101878404 in the name of Esgee Polymers in Sy.No.63, near Iccom Factory, Keesara, Ranga Reddy District and to continue to supply the electricity on receiving regular monthly charges.
2. The case of the petitioner is that the petitioner obtained lease from the 2nd respondent for an extent of Ac.1.00 of land in Survey No.63, near the Iccom Factory, Keesara, Ranga Reddy District vide lease deed dated 01-09-2005 and clause 21 of the lease deed contemplates renewal of lease for a period of five years. It is stated that after taking the land on lease, he installed huge machinery and has been paying all the charges as required under Clause 7 of the lease deed and running the industry and that there are around 18 employees are working in the factory. It is also stated that when a dispute arose between the petitioner and the 3rd respondent, the matter was referred to Arbitrator, who passed an award dated 16-05-2014 holding that the renewal on lease is not automatic. The petitioner obtained status quo regarding possession of the property pending disposal of arbitration proceedings in O.P.No.77 of 2011 on the file of Additional District Judge, Ranga Reddy and thereafter, the petitioner filed an application under Section 34 of the Arbitration Act, questioning the award passed by the Arbitrator before the District Judge, Ranga Reddy and the same is pending. Meanwhile, the 1st respondent disconnected the power supply on 23-05-2014 though the petitioner is paying monthly charges for the electricity supply and that he gave a representation on 24-05-2014 to the 1st respondent, but there was no response. Aggrieved by the same, the present writ petition is filed.
3. The 3rd respondent filed counter denying that clause 21 of the lease deed contemplated renewal of lease for a further period of 5 years and that the Arbitrator passed the award on 16-05-2014 holding that the relief of declaration that the claimant is entitled for extension of lease for five years as per clause 21 of the lease deed dated 01-09-2005 cannot be granted and the same is dismissed. It is also stated that the petitioner already filed suit for eviction against the petitioner after passing the award dated 16-05- 2014 by the Arbitrator and after expiry of the lease period, he issued a notice for eviction of the petitioner herein and the same is reflected in the award passed by the Arbitrator. It is further stated that the status quo orders regarding possession of the properties in O.P.No.77 of 2011 is not in force as the arbitration proceedings are closed and he did not receive any notice in the alleged application under Arbitration Act. It is further stated that as the petitioner is in unauthorised possession of the property and as he did not pay the rental amounts to the 3rd respondent, the lease stood terminated and it is for the petitioner to pay arrears of rent and hand over the vacant possession of the premises to the 3rd respondent. It is further stated that the petitioner in breach of terms of the lease, did not pay the rents to the 3rd respondent for several months and that in view of pendency of arrears by the petitioner to the 3rd respondent, the 3rd respondent addressed letter to the 1st respondent for disconnection of electricity after receipt of award of the Arbitrator. Hence, the 3rd respondent sought for dismissal of the writ petition.
4. Learned counsel for the petitioner submits that even though the petitioner has been paying regular electricity charges, the disconnection of power supply at the instance of the 3rd respondent is illegal, arbitrary and against the provisions of Section 56 of the Electricity Act. He contends that Section 56 of the Act envisages disconnection for non-payment of electricity charges that too after issuing notice, but in the instant case, the 1st respondent disconnected the power supply without issuing any notice in collusion with the 3rd respondent. He also contends that disconnection of power supply is contrary to condition No.3.2 and 3.4 of the APSEB terms and conditions issued under Section 49 of the Electricity Supplies Act, 1948. He relied on judgment reported i n Shaik Mohammed v. Divisional Engineer, APCPDCL,
[1]
Hyderabad and another .
5. On the other hand, Sri O. Manohar Reddy, learned standing counsel for the respondents 1 and 2, states that as per Section 185 of the Electricity Act 2003, the Electricity Act, 1940 is repealed and as per Condition No.5.9.4.3 of General Terms and Conditions of Supply. He also contends that in this case, since the registered consumer-the 3rd respondent herein addressed a letter for disconnection of power supply, the power supply was disconnected and that the petitioner can apply for fresh connection in case he is in lawful occupation of the premises. He further contends that since the petitioner’s lease was expired and since the Arbitrator gave his finding that the lease is not an automatic renewal, the petitioner is not in lawful occupation of the premises. In support of his contention, he relied on Mandakini Restaurant and Bar v. Deputy Commissioner of Prohibition and Excise
[2]
and others .
6. Learned counsel for the 3rd respondent, while reiterating the contentions of the learned standing counsel for the respondents 1 and 2, stated that the 3rd respondent filed a suit for eviction in O.S.No.704 of 2014. He relied on M.C. Chockalingam
[3]
and others v. V. Manickavasagam and others contending that the petitioner is not in lawful occupation of the premises and he is not entitled for restoration of power supply. He further contends that the Arbitrator clearly held that the petitioner is not entitled for any automatic renewal.
7. Even according to the petitioner, the lease in favour of the petitioner has expired and the Arbitrator held that there cannot be automatic renewal of the lease as per Clause 21 of the lease deed dated 01-09-2005, which shows that the petitioner is not in lawful occupation of the premises which was leased to him by the 3rd respondent. The 3rd respondent also stated that the petitioner is due in arrears of rent to the 3rd respondent and no reply is filed by the petitioner disputing the same. When the lease expired, the 3rd respondent has given a letter for disconnection of power supply as per clause 5.9.4.3 of General Terms and Conditions of Supply and accordingly, the power supply was disconnected to the petitioner. Even according to the decision relied on by the learned counsel for the petitioner in Shaik Mohammed v. Divisional Engineer, APCPDCL, Hyderabad and another (1 supra), learned Judge held that the petitioner can make an application under clause 3.2 of the A.P. State Electricity Board Revised Terms and Conditions of Sale of Electricity to Persons other than Licensees issued under Section 49 of the Electricity Act, 2003 provided the petitioner is able to give proof of his being in lawful occupation of the premises.
The learned Judge of this Court observed as follows:
“Inasmuch as respondent No.2 has admittedly received the application of the petitioner, he is directed to send the same to the Customer Service Centre, which after processing the same shall forward it to respondent No.2 in the light of the general terms and conditions of supply. The learned Counsel for the petitioner submitted that the Customer Service Centre cannot insist on the petitioner for production of consent by the landlady. Under Clause 3.2 of the A.P. State Electricity Board Revised Terms and Conditions of Sale of Electricity to Persons other than Licencees, it is sufficient if the petitioner is able to give proof of his being in lawful occupation of the premises and also executing an indemnity bond indemnifying the Board against any losses on account of disputes arising out of the release of service to the occupant. I find merit in this submission of the learned counsel for the petitioner. The Customer Service Centre, though not a party to this writ petition, is directed to consider the application of the petitioner in the light of condition No.3.2 of the terms and conditions of supply and take a decision on the petitioner’s application for release of power supply, to the premises of the petitioner mentioned above, within a period of two weeks from the date of receipt of this order. The decision so taken shall be communicated to the petitioner immediately thereafter.”
In this case, even according to the petitioner, the lease expired and the Division Bench of this Court in M.C. Chockalingam and others v. V. Manickavasagam and others (2 supra), while dealing the case under the provisions of Andhra Pradesh Cinemas (Regulation) Act, 1955, held that even at the time of renewal of licence, the failure to produce lease deed from the owner of the premises disentitles him from renewal of licence. In the present case, admittedly, the lease expired and the Arbitrator held that there cannot be any automatic renewal of licence. The learned Single Judge, while relying on judgment of a Full Bench in Y. Anasuya v. Government of A.P. represented by its Secretary, Home (General-A) Department, Hyderabad and others (1993 (1) ALT 661), held that the persons seeking renewal of licence shall be in lawful possession. I n M.C. Chockalingam and others v. V. Manickavasagam and others (3 supra), it is held as follows:
”We are concerned in this case with the concept of ‘lawful possession’ in the context of the Act with which we are concerned. As stated earlier, Rule 13 has got two parts and we are concerned in this case with the second part. A great stress has been laid by Mr Setalvad on the decision of the Supreme Court in Lalu Yeshwant Singh case where this Court considered the possession of a tenant after expiry of the lease, as in this case, as a juridical possession in the context of a provision similar to Section 9 of the Specific Relief Act. He emphasises that such a juridical possession would be a lawful possession, as it is protected by law, namely, under Section 6 (new) of the Specific Relief Act. Mr Setalvad submits that since even with the best of title to the property the landlord cannot forcibly dispossess a tenant after expiry of the lease, his possession is not only protected by law but also recognised by law and, therefore, his possession is lawful possession and the licensing authority was right in renewing the licence which the Board of Revenue had wrongly interfered with. After giving anxious consideration, we are unable to accept the submission of Mr Setalvad. All that Section 6 (new) of the Specific Relief Act provides is that a person, even if he is a landlord, cannot take the law into his own hands and forcibly evict a tenant after expiry of the lease. This Section has relevance only to the wrongful act of a person, even if it be by the landlord, in forcibly recovering possession of the property without recourse to law. Section 6 frowns upon forcible dispossession without recourse to law but does not at the same time declare that the possession of the evicted person is a lawful possession. The question of lawful possession does not enter the issue at that stage. All that the Court is then required to consider is whether an evicted person has been wrongfully dispossessed and he has come to the Court within six months of the dispossession. The various civil rights between the landlord and the tenant will have to be adjudicated upon finally in a regular civil suit if filed. Mr Setalvad has drawn our attention to the definition of the word ‘juridical’ in Black’s law Dictionary. 4th Edn., at p. 990. There the definition is given as follows:
Juridical: Relating to administration of justice or office of a judge.
Regular; done in conformity to the laws of the country and the practice which is there observed.”
Mr Setalvad submits that possession of the licensee in this case is in conformity with the provisions of the Specific Relief Act and what is juridical is also lawful. In the same Dictionary at p. 1032 the word ‘lawful’ is also defined as follows:
Lawful: “Legal; warranted or authorised by the law; having the qualifications prescribed by law; not contrary to nor forbidden by the law”.
It is difficult to appreciate how possession in the instant case can be said to be “warranted or authorised by the law” as per the above definition. On the other hand, what is “contrary to or forbidden by the law” is only the forcible dispossession of a tenant which may even engender breach of the peace. There is a very interesting discussion about the meaning of “lawful possession” in part II, Chapter I of Pollock & Wright’s Book An Essay on Possession in the Common Law, 1888 Edn., at p. 26. According to the learned authors:
Legal possession, the state of being a possessor in the eye of the law … but it may exist … either with or without a rightful origin.”
The illustrations given in the book at pp. 27 and 28 are more interesting:
A tailor sends to J.S.’s house a coat which J.S. has ordered.
J.S. puts on the coat, and then has both physical control and rightful possession in law. J.S. takes off the coat and gives it to a servant to take back to the tailor for some alterations. Now the servant has physical control (in this connexion generally called ‘custody’ by our authorities) and J.S. still has the possession in law.
While the servant is going on his errand, Z assaults him and robs him of the coat. Z is not only physically master of the coat, but, so soon as he has complete control of it, he has possession in law, though a wrongful possession …. ‘Lawlul possession’ means a legal possession which is also rightful or at least excusable; this may be consistent with a superior right to possess in some other person.”
The learned authors have further put in a word of caution observing:
The whole terminology of the subject, however, is still very loose and unsettled in the books, and the reader cannot be too strongly warned that careful attention must in every case be paid to the contest.”
Mr Gupte strenuously submits that “lawful possession” cannot be divorced from an affirmative, positive legal right to possess the property and since the lease had expired by efflux of time the tenant in this case had no legal right to continue in possession. In the context of Rule 13, we are clearly of opinion that a tenant on the expiry of the lease cannot be said to continue in “lawful possession” of the property against the wishes of the landlord if such a possession is not otherwise statutorily protected under the law against even lawful eviction through Court process, such as under the Rent Control Act. Section 6 of the Specific Relief Act does not offer such protection, but only, as stated earlier, forbids forcible dispossession, even with the best of title.
Turning to Rule 13, even in the first part if the applicant for the licence is the owner of the property he has to produce before the licensing authority the necessary records not only relating to his ownership but also regarding his possession. It is implicit, that the owner having a title to the property, if he can satisfy the licensing authority with regard to his possession also, will indeed be in ‘lawful possession’, although the word ‘lawful’ is not used in the first part. It is in that context that the word ‘possession’ is even not necessary to be qualified by ‘lawful’ in the first part of Rule 13. If, however, the applicant for the licence is not the owner, there is no question of his showing title to the property and the only requirement of the law is to produce to the satisfaction of the authority documentary evidence with regard to his lawful possession of the property. The word ‘lawful’, therefore, naturally assumes significance in the second part while it was not even necessary in the first part. The fact that after expiry of the lease the tenant will be able to continue in possession of the property by resisting a suit for eviction, does not establish a case in law to answer the requirement of lawful possession of the property within the meaning of Rule 13. Lawful possession cannot be established without the concomitant existence of a lawful relationship between the landlord and the tenant. This relationship cannot be established against the consent of the landlord unless, however, in view of a special law, his consent becomes irrelevant. Lawful possession is not litigious possession and must have some foundation in a legal right to possess the property which cannot be equated with a temporary right to enforce recovery of the property in case a person is wrongfully or forcibly dispossessed from it. This Court in Lalu Yeshwant Singh case had not to consider whether juridical possession in that case was also lawful possession. We are clearly of opinion that juridical possession is possession protected by law against wrongful dispossession but cannot per se always be equated with lawful possession.
Law in general prescribes and insists upon a specified conduct in human relationship or even otherwise. Within the limits of the law, courts strive to take note of the moral fabric of the law. In the instant case, under the terms of the lease, the property had to be handed over to the lessor. Besides under Section 108(q) of the Transfer of Property Act, on the determination of the lease, the lessee is bound to put the lessor into possession of the property. Since the landlord has not assented to the lessee’s continuance in possession of the property, the lessee will be liable to mesne profits which can again be recovered only in terms of his wrongful possession. Under Section 5(1) of the Act, the licensing authority in deciding whether to grant or refuse a licence has regard, amongst others, to the interest of the public generally. Public interest is, therefore, also involved in granting or refusing a licence. That being the position, the expression ‘lawful possession’ in Rule 13 assumes a peculiar significance of its own in the context of the provisions of the Act. Hence in any view of the matter possession of the respondents on the expiry of the lease is not lawful possession within the meaning of Rule.
13. The High Court is, therefore, not correct in its interpretation of Rule 13. The Board of Revenue in appeal was, on the other hand, right in interfering with the order of the licensing authority and the learned Single Judge of the High Court rightly refused to interfere with the order of the Board under Article 226 of the Constitution.”
Admittedly, the lease in favour of the petitioner expired and he is not in lawful possession, as such, he is not entitled for restoration of power supply.
In view of above facts and circumstances and the law laid down by the Apex Court in M.C. Chockalingam and others v. V. Manickavasagam and others (3 supra), I do not see any merit in the writ petition and the same is liable to be dismissed.
Accordingly, the writ petition is dismissed. No costs. As a sequel thereto, miscellaneous petitions, if any, pending shall stand closed.
A. RAJASHEKER REDDY, J Date: 19-09-2014 Ksn
[1] 2012 (1) Andhra Legal Decisions 129
[2] 2008 (4) Andhra Law Decisions 188
[3] 1974 All India Reports 104