1. By this petition under Article 226 of the Constitution of India, the petitioner seeks the following substantive relief:
“[16] The petitioner, therefore, prays -
[a] This Hon'ble Court be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction in the nature of mandamus declaring that the action of the respondents in removing the meter and disconnecting the electric power on 13.06.2011 is wrong, illegal, contrary to law and in violation of the established principles of natural justice including the principle of audi alteram partam and in violation of the principles of the Electricity Act, 2003 and the Electricity Code which has been enacted or framed u/s 50 of the Electricity Act and be further pleased to direct the respondents to reinstall the meter and start the supply of electric power in the field of the present petitioner in block Nos.120, 121 and 122.
[b] By appropriate writ, order or direction, this Hon'ble Court be pleased to hold the respondent No.2 herein Mr.
R. C. Patel as well as the other officials of the respondent No.1 company who have not followed the principles of natural justice and provisions of law, responsible for illegal disconnection and they be called upon to compensate the present petitioner for the illegal disconnection and the respondents and/or other responsible officers be directed to pay to the petitioner a compensation of Rs.1 lac for such illegal disconnection.”
2. The facts of the case as stated in the petition are that the petitioner is the owner of the property bearing Block No.120, 121 and 122 situated in Village: Sanavad, Taluka: Kalol, District: Gandhinagar (hereinafter referred to as the “subject land”). The property belonged to Maganji, father of the present petitioner and upon his death, the same vested in one Shakaraji and the present petitioner. Upon the death of Shakaraji, the petitioner became the sole owner of the said land. Agricultural activities are being carried on over the subject lands and cattle are there on the site. The lands on the western side of the said survey numbers, viz., survey No.113, 114, 116, 115 and others, have been consolidated and given one block number, viz., Block No.113/3. The total area of the said land is about 84,000 square metres. The petitioner has established a farm known as “Barot Farm” on the said Block No.113/3 and Block No.120, 121 and 122. For the purpose of fetching water from the bore and also to feed the cattle on site, the petitioner made an application to the first respondent – Uttar Gujarat Vij Company Ltd in the year 2007-08, which came to be granted and the petitioner was given Customer No.20442/00134/7 and Meter No.20401291. Pursuant to instructions of the first respondent the petitioner deposited Rs.725/- towards new service connection on 15.10.2008 and on the same day the petitioner was called upon to deposit consumer security deposit of Rs.1,450/- which was duly deposited. Since 2008, the petitioner has been regularly paying the electricity bills raised by the first respondent company. When the electricity power was sought for, the same was granted, but so far as the meter of electricity supply is concerned, the same was placed by the first respondent in Block No.113/3, because, at the relevant time when the application was made by the petitioner, the whole of the land including the subject land and Block No.113/3 formed part of land on which Barot farm was established. Therefore, with the consent of the owner/occupier of the land bearing Block No.113/3, the first respondent placed the meter in the Block No.113/3 which was very near to the main line of the respondent company which was passing near Block No.113/3.
2.1 According to the petitioner sale deeds in respect of the subject lands had been illegally executed in favour of the third respondent - Blue Diamond Co-operative Housing Society Ltd.
Such sales had not been recognised by the Government and the tenancy authorities and a number of disputes are pending before the civil court with regard to the ownership of the third respondent society. However, possession of the subject lands is with the petitioner.
2.2 Things were going on regularly for four years, however, thereafter, one Jayendra Kothari tried to illegally trespass upon the land bearing Block No.113/3 pursuant to which, criminal proceedings were filed and the said person along with one Vishnu Patel and Paresh Sheth, had broken open the seal of the meter and with the help of wires, they had illegally drawn electricity and utilized the same. The petitioner had, therefore, filed a complaint with the first respondent. However, no action was taken and after about two months, that is, on 4.6.2011, some officers of the respondent company had come to the farm for inspection and the documents produced on the record of this petition were produced before them to establish that the meter has been placed legally and that the utilization of power is legal and is confined to block No.120, 121 and 122 for which electric power was sought for as per the original application. The petitioner has categorically averred that the original application is not traceable at the end of the petitioner and that the first respondent be called upon to produce the same.
2.3 It is further the case of the petitioner that by a letter/application dated 13.6.2011, the petitioner gave detailed information regarding the meter and it was also pointed out that the meter was broken by head strong persons and if the need arises the petitioner is prepared to shift the meter to her blocks, that is Block No.120, 121 and 122 and had shown readiness and willingness to pay the charges in connection therewith. In connection therewith there was a talk with the second respondent Mr. R. C. Patel, whom the power of attorney of the petitioner had met and a note in respect thereof was added in the said letter. At about 11:30 a.m. the said application was given in person to Mr. R.C. Patel by the power of attorney of the petitioner. It is alleged that by that time someone had greased Mr. Patel’s palm. It is further the case of the petitioner that Jayendra Kothari against whom criminal complaints have been filed is also a leader of village Sanavad and is a reputed member of the B.J.P. He has recently been employed by Blue Diamond Co-operative Society Ltd. to get possession of the land more particularly Block No.113/3 as well as the subject lands. Therefore, Mr. R.C. Patel had threatened the power of attorney of the petitioner that he would see to it that the electric meter is removed and the power is disconnected before the power of attorney goes back to the farm and that he would impose heavy penalty beyond the imagination of the petitioner. When the petitioner returned at around 2.00 p.m., the meter was removed and the power was cut off. It is alleged that the said action has been taken by the respondents because of political pressure and that the present petitioner who is poor farmer has been put to a lot of inconvenience and hardship. In view of the disconnection of the electricity supply, the petitioner is now not able to pump out water for agricultural purposes, for feeding cattle and a large number of difficulties have arisen. There is no light and therefore, the milk business is also affected and the security of the land is also strained and that in the absence of light, several animals enter into the land at night and eat away the crops. According to the petitioner, despite knowing the difficulties likely to be faced by the petitioner and being aware of the adverse consequences, the first and second respondents have taken away the meter and disconnected the power. It is in the aforesaid background that the petitioner has filed the present petition seeking the relief noted hereinabove.
2.4 Subsequently, the petitioner has filed an additional affidavit dated 10.8.2011 stating that after the petition was filed on 15.6.2011, a letter was addressed by the first respondent whereby the petitioner has been intimated that the meter connection of Thakor Chandaben Maganji was inspected on 3.6.2011 and while checking it was noticed that the single phase meter was not found as per the demand and on that basis report of the Talati was called for and panchnama was made by the Talati and it was found that though electricity connection was sought for in respect of survey No.120, 121 and 122, the meter was installed in survey No.113/3 which belongs to Blue Diamond Cooperative Housing Society. Therefore, on 13.6.2011, the electricity connection which was running in the name of Thakor Chandaben Maganji was disconnected and the meter and the connection were taken over by the Department. In the very letter, it is stated that the petitioner had written a letter on 13.06.2011 stating that if the meter is installed in some other survey number, the same can be switched over to a survey number which belongs to the petitioner. However, survey No.120 also belongs to Blue Diamond Cooperative Housing Society and they have made a reference of Civil Suit No.302 of 1995 wherein the Blue Diamond Cooperative Housing Society Ltd. has obtained injunction to the effect that the possession and enjoyment of the property should not be prevented. Further facts have been averred in the said affidavit which shall be referred to at an appropriate stage.
3. Mr. M. B. Gandhi, learned advocate for the petitioner vehemently assailed the action of the first respondent company in removing the electricity meter as well as connection given to the petitioner. It was submitted that the electricity connection had been given in respect of Block No.120, 121 and 122 and that the petitioner was in possession of the said lands. Electricity connection had been given pursuant to an application made by the petitioner. However, without issuance of any notice and without taking any steps in accordance with law as envisaged under the provisions of the Electricity Act, 2003 (hereinafter referred to as “the Act”), the power supply given to the petitioner has been disconnected. Attention was invited to the provisions of section 43 of the Act which provides for duty to supply on request, to submit that the petitioner had made application as prescribed under the Act and the rules framed thereunder pursuant to which, the respondent had given electric connection under section 43 of the Act. Referring to the provisions of section 56 of the Act, which deals with disconnection of supply in default of payment, it was submitted that the supply of electricity can be disconnected only in the eventualities envisaged under the said provision. It was submitted that in the facts of the present case, it is not the case of the first respondent that the petitioner has neglected to pay any charge for electricity or any sum other than the charge for electricity due from her. Even in case where a person has neglected to pay any charge of electricity or any other sum, the respondent is required to give fifteen days clear notice in writing prior to cutting of the supply of electricity. In the present case, there being no default on the part of the petitioner to pay any electricity charge, the provisions of section 56 of the Act could not have been resorted to. It was submitted that there is no other provision in the Act which empowers the first respondent to disconnect the electricity supply. Under the circumstances, the removal of the electric meter and disconnection of the electricity supply is without authority of law.
3.1 Next it was submitted that disconnection of power supply has serious civil consequences and as such prior to disconnecting the electricity supply, it was incumbent upon the first respondent to give the petitioner an opportunity of hearing. The impugned action of the respondents having been taken without affording any opportunity of hearing to the petitioner is, therefore, clearly in breach of the principles of natural justice.
3.2 In support of his submissions, the learned counsel placed reliance upon the decision of the Supreme Court in the case of Raghunath Thakur v. State of Bihar and others, AIR 1989 SC 620, wherein the court has held that there is an implied principle of the rule of law that that any order having civil consequence should be passed only after following the principles of natural justice. Reliance was also placed upon the decision of this court in the case of Lifecare Institute of Medical Science and Research Pvt. Ltd. v. United India Insurance Co. Ltd. and others, 2010 (2) GLH 512, for the proposition that when a decision would adversely affect a party, before taking such decision, principles of natural justice should be followed. The decision of the Supreme Court in the case of Municipal Corporation of Delhi v. M/s Ajanta Iron & Steel Company (Pvt.) Ltd., AIR 1990 SC 882, was cited wherein an order directing mandatory injunction to restore the supply of electricity discontinued during the pendency of the suit was subject matter of challenge. The court held that the licensee undertaking is performing a public duty and is governed by a special statute and the law also contemplates service of a notice before disconnection of supply of electricity and dismissed the appeal.
3.3 Referring to the communication dated 16.6.2011 of the first respondent, it was pointed out that it has been stated in the said communication that the first respondent is willing to put up a meter on any other survey number belonging to the petitioner. It is also stated therein that insofar as the land bearing survey No.120 of Sanavad village is concerned, the same belongs to Blue Diamond Cooperative Housing Society, in respect of which there is a stay order in relation to survey No.120, 121 and 122 and that the petitioner should furnish necessary evidence to show her ownership of the land bearing survey No.120. It was submitted that the petitioner's father Maganji was the original owner of the subject lands and that the first respondent is not justified in entering into the dispute as regards the ownership of the subject lands. The petitioner has already produced evidence in the form of village form No.7/12 which shows the name of Thakor Shakaraji Maganji and the petitioner Chandaben Maganji Thakor and that even as on date, that is, for the year 2008-09 and 2009-10, the name of Shakaraji Maganji Thakor is shown as agriculturist, meaning thereby that the agricultural work is carried out by the petitioner at the site. In respect of survey No.120, 121 and 122, in the column of owner as well as in the column of agriculturist, the name of the petitioner is reflected. It was submitted that Blue Diamond Cooperative Housing Society Ltd. is not an agriculturist and had no right to purchase the subject land and as such the sale of the subject lands in its favour was not confirmed. It was argued that the subject lands being new tenure lands, could not have been transferred without prior permission and as such, Blue Diamond Cooperative Housing Society had never become the owner thereof. According to the learned counsel, the possession of the subject lands is and has always been with the petitioner and that in a subsequent litigation, a commission had been appointed, wherein the petitioner has been found to be in possession thereof. Attention was invited to the panchnama produced along with additional affidavit to submit that the petitioner not only is in possession of the lands bearing survey No.120, 121 and 122, but also Block No.113/1 which admeasures about 8 hectares.
3.4 It was, accordingly, submitted that the action of the respondents of disconnecting the electricity supply of the petitioner without issuance of any notice, is without authority of law and that in any case, the say of the respondent that the subject lands belong to Blue Diamond Cooperative Housing Society Ltd. has no legal basis whatsoever. Under the circumstances, the petition deserves to be allowed with a direction to the respondents to reinstall the meter and start the supply of electricity power in the field of the petitioner in survey No.120, 121 and 122.
3.5. In support of his submissions, the learned counsel placed reliance upon the decision of the Calcutta High Court in the case of Molay Kumar Acharya v. Chairman-cum-Managing Director, W. B. State Electricity Distribution Co. Ltd. and others, AIR 2008 Calcutta 47 for the proposition that the person occupying premises as “licensee” cannot be equated with an unlawful occupant or trespasser merely because litigations are pending between the parties. The decision of the Calcutta High Court in the case of Fashion Proprietor Aswani Kumar Maity v. W. B. Electricity Distribution Co. Ltd. and others, AIR 2009 Calcutta 87, was cited for the proposition that if the law of the land provides that a person in possession of any premises may not be dispossessed therefrom except in accordance with law, it is implicit that the possession of the person is protected till such time that an appropriate forum holds otherwise and the person is removed from the premises under due process of law. Under the circumstances, he cannot be denied an essential utility as electricity which is within the broad sweep of the right to life guaranteed under Article 21 of the Constitution.
4. Vehemently opposing the petition, Mr. Yatin Oza, Senior Advocate, learned counsel for the third respondent – Blue Diamond Cooperative Housing Society Ltd. submitted that the lands bearing survey No.120, 121 and 122 are of the ownership and possession of the third respondent and as such, the first respondent could not have granted electricity connection to the petitioner in respect of the said survey numbers. Attention was invited to the copies of the registered sale deeds annexed along with the application made by the third respondent for being joined as respondent in the present petition, to submit that Shakaraji Maganji Thakor as well as the petitioner herein had executed the sale deeds in favour of the third respondent society. That upon the sale deeds having been executed in favour of the third respondent, the petitioner stood divested of all rights and title in the subject lands. Under the circumstances, the say of the petitioner that she is the owner of the subject lands is contrary to the record. It was submitted that merely because the authorities under the Bombay Tenancy and Agricultural Lands Act, 1947 (hereinafter referred to as “the Tenancy Act”) had, at the relevant time, not granted permission to the third respondent-Blue Diamond Cooperative Housing Society Ltd. for purchasing the subject lands and had not approved of the sale in favour of the third respondent, does not mean that the third respondent has lost all rights and title in the subject lands, unless the sale deeds executed in favour of the third respondent are set aside.
4.1 The learned counsel referred to the provisions of the Tenancy Act to submit that in case any sale of agricultural land is found to be in contravention of the provisions of the said Act, the authorities under the said Act are required to initiate the proceedings under section 84-C thereof. Till such proceedings are initiated and the same culminate into an order declaring the sale to be invalid, the sale continues to be valid. It was submitted that even if the Mamlatdar comes to the conclusion that the acquisition of the land by the third respondent is invalid, the land would not revert back to the original owner, namely, the petitioner herein, but would vest in the Government. It is only if after a declaration that the acquisition is invalid, the parties to the transfer or acquisition give an undertaking in writing to the Mamlatdar as provided under sub- section (2) of section 84-C of the Tenancy Act, to the effect that they shall restore the land along with the rights and interest therein to the position in which it was immediately before the transfer or acquisition, that the land would revert to the original owner, which is not so in the present case. Therefore, the contention of the petitioner that she is the owner of the land in question is incorrect, both in facts and in law.
4.2 The learned counsel drew the attention of the court to the application made by the petitioner whereby she had sought for electricity connection to submit that the same does not mention the survey number in respect of which the connection is sought. Attention was also invited to the contents of the order passed by the learned Joint Civil Judge (J.D.), Kalol, below exhibit-5 in Regular Civil Suit No.302 of 1995 which had been instituted by the third respondent society against the petitioner herein, to submit that in the said proceedings, the court has found that the possession of the subject lands is with the third respondent and has restrained the petitioner from in any manner disturbing the third respondent’s possession thereof. It was submitted that the petitioner has suppressed all these facts in the petition and as such, the petition is required to be thrown out on the ground of suppression of material facts. It was emphatically argued that the petitioner having come to the court with unclean hands is not entitled to any equitable relief. In support of the said contention, the learned counsel placed reliance upon the decision of the Supreme Court in the case of K. D. Sharma v. Steel Authority of India Limited and others, (2008) 12 SCC 481, for the proposition that the party who invokes the extraordinary jurisdiction of the Supreme Court under Article 32 or of a High Court under Article 226 of the Constitution is supposed to be truthful, frank and open. He must disclose all material facts without any reservation even if they are against him. He cannot be allowed to play “hide and seek” or to “pick and choose” the facts he likes to disclose and to suppress (keep back) or not to disclose (conceal) other facts. The very basis of the writ jurisdiction rests in the disclosure of true and complete (correct) facts. If material facts are suppressed or distorted, the very functioning of the writ courts and exercise would become impossible. The petitioner must disclose all the facts having a bearing on the relief sought without any qualification. If the petitioner does not disclose all the material facts fairly and truly but states them in a distorted manner and misleads the court, the court has inherent power in order to protect itself and to prevent an abuse of its process to discharge the rule nisi and refuse to proceed further with the examination of the case on merits.
4.3 The learned counsel further submitted that the contention raised on behalf of the petitioner that approval under the relevant provisions of the Tenancy Act had not been given to the respondent society, is also incorrect inasmuch as the proceedings which had been initiated against the third respondent society under the provisions of section 84-C of the Tenancy Act have been dropped by the Mamlatdar and the said order has been confirmed till the stage of the revisional authority.
4.4 Next it was submitted that it is not in every case that a show cause notice is required to be given prior to taking any action. In support of his say, the learned counsel placed reliance upon the decision of the Supreme Court in the case of Secretary, Andhra Pradesh Social Welfare Residential Educational Institutions v. Pindiga Sridhar and others, (2007) 13 SCC 352, for the proposition that the principles of natural justice cannot be applied in a straitjacket formula. Their application depends upon the facts and circumstances of each case. To sustain the complaint of the violation of principles of natural justice, one must establish that the respondent was prejudiced for non-observance of the principles of natural justice. The decision of the Supreme Court in the case of State of Chhattisgarh and others v. Dhirjo Kumar Sengar, (2009) 13 SCC 600, was cited for the proposition that the authority who issued an order is justified in cancelling the same on coming to know about any fraud committed while obtaining the said order. The authority is not required to comply with the principle of audi alteram partem before such cancellation, since fraud vitiates all solemn acts. Reliance was also placed upon a decision of the Supreme Court in the case of State of A. P. v.
T. Suryachandra Rao, (2005) 6 SCC 149, for the proposition that misrepresentation or false representation and suppression of material fact or document amounts to fraud. Adverting to the facts of the present case it was submitted that the petitioner had made an application for electricity connection in respect of the lands of which she was not the owner and thereby had made a false representation to the first respondent, which amounts to fraud and as such, the respondents were justified in disconnecting the electricity supply inasmuch as fraud vitiates everything. It was, accordingly, submitted that the petition being devoid of merit, deserves to be dismissed.
5. Mr. S. P. Hasurkar, learned advocate for the first and second respondents supported the action of the said respondents by placing reliance upon the averments made in the affidavit in-reply filed on behalf of the said respondents, and submitted that the petitioner had sought for electricity connection in the prescribed Form A-1 wherein she had described the premises of the land on which the connection is sought for, to be of her ownership and considering her statement, electricity connection was given after undertaking preliminary search on the basis of her statement and the place which the petitioner's representative had shown. However, subsequently it was found that there was a dispute between the petitioner and Shri Jayendrabhai Vishnuprasad Kothari, Secretary of the Blue Diamonds Cooperative Housing Society. It was submitted that said Jayendrabhai Vishnuprasad Kothari had written a letter to the office of the respondent, inter alia, stating that the land of survey No.120 and 113/3 of Village Sanavad is in possession of Blue Diamond Cooperative Housing Society and is not in possession of Chandaben Maganji Ramsangji (the petitioner herein) who happens to be the predecessor in title of the third respondent. It was stated that the phase I connection has, therefore, been installed unauthorizedly in survey No.113/3. In the aforesaid circumstances, further inquiry in respect of the site was carried out and checking sheet was prepared by a Junior Engineer on 13.6.2011. Upon verification at the site, it was not clear whether the connection was given at the place where the petitioner had demanded and, therefore, for further verification of ownership of the land and actual position of site, by a letter dated 4.6.2011, information was sought from Talati of village Sanavad. Pursuant thereto, the Talati made a panchnama and report on 8.6.2011, stating that the electric meter is situated on the land of survey No.113/3 occupied by Blue Diamond Cooperative Housing Society. It was, accordingly, contended that the first respondent had been misguided at the time when power supply was given to the petitioner in survey No.113/3, which appears to be owned by the third respondent. Since the petitioner was transmitting electricity for a distance of approximately 300 meters through non-standard wiring, the said connection was immediately disconnected and cables and other materials were seized after making proper Rojkam and preparing checking sheet. Thereafter, the Divisional Office, at Kalol had informed the petitioner as regards the action taken for disconnection of power supply and called upon her to produce documentary evidence to show the ownership of the subject land and to seek fresh connection. Under the circumstances, the action taken by the respondents is just, proper and legal and there is no malafide intention on the part of the respondents.
5.1 It was contended that the petitioner herself has misguided the officers of the first respondent company in the matter of installation of electricity connection which was subsequently found to be of somebody else's land and hence, upon a written complaint, action was required to be taken. In support of his submissions, the learned counsel placed reliance upon the decision of the Supreme Court in the case of Secretary, Andhra Pradesh Social Welfare Residential Educational Institutions v. Pindiga Sridhar and others (supra) as well as the decision of the Supreme Court in the case of K. D. Sharma v. Steel Authority of India Limited and others (supra). It was submitted that in case any mishap occurs on the land of the petitioner, but the connection of electricity is on somebody else's land, it would result in multiplicity of proceedings for damages against the respondents and that the respondents would not be justified in trespassing while giving electricity connection to the petitioner. It was submitted that merely because the electricity connection given to the petitioner has been disconnected does not mean that the same is permanently disconnected and it is for the petitioner to show an undisputed site for installation of electricity connection, whereupon such connection will be given to the petitioner. It was, accordingly, urged that the respondents are justified in disconnecting the electricity connection given to the petitioner by placing a meter on the land belonging to the third respondent and as such, the petitioner is not entitled to the relief claimed for in the petition.
6. Before adverting to the merits of the case, it may be necessary to notice certain facts as emerging on the basis of the documents produced on record by the respective parties. The petitioner made an application in the prescribed form viz. A-1 to the first respondent company seeking electricity connection for residential purposes. A perusal of the form indicates that in the column against status of the applicant's position in respect of the place wherein the following categories are enumerated, namely, (1) self-ownership, (2) joint ownership, (3) tenant, (4) lease and (5) others, shows that all the boxes are kept blank. In respect of the details regarding site, the same is mentioned as “Nasmed Chokadi, Barot Farm, Village Sanavad”. The name of the person in possession of the land is shown to be Thakor Chandaben Maganji Ramsangji. The name of the applicant is Thakor Chandaben Maganji, namely, the petitioner herein. However, the application appears to have been signed by one Amrutaben Shakaraji, and one Ramesh Shakaraji has signed as a witness to the said application. Along with the application, a consent letter signed by Thakor Ramesh Shakaraji and Amrutaben Shakaraji has been annexed, stating that they do not have any objection if electricity connection is given in the name of Chandaben Maganji Ramsangji Thakor in respect of lands bearing survey No.120, 121 and 122. An undertaking has also been filed along with the application which bears the thumb mark of Ramesh Shakaraji Thakor, Chandaben Maganji Thakor and Amrutaben Shakaraji Thakor to the effect that the electricity connection is sought for the purpose of residential use only and that they would use the same only for the said purpose. Pursuant to the aforesaid application, the petitioner was granted electricity connection and was enjoying the benefit thereof.
7. Subsequently, it appears that the third respondent made an application to the first respondent company in respect of the electricity connection given to the petitioner pursuant to which, the officers of the first respondent company came to the farm of the petitioner on 4.6.2011 for inspection, whereupon according to the petitioner, all documents relevant for the said purpose were shown to the officers to establish that the meter had been legally placed there and that the utilization of power was legal and was confined to survey No.120, 121 and 122 for which electric power was sought for as per the original application. Thereafter, on 13.6.2011, the petitioner again addressed a communication to the first respondent with reference to the alleged false application made by Jayendra Kothari, inter alia, stating that there was no illegality in the electricity connection given to the petitioner and that since the same pertains to essential services, the same ought to be filed; that the disputes between the parties are sub-judice and the application by a third party does not establish anything; the petitioner possesses a legal electricity connection and is regularly paying her bills and has not committed any illegalities and that her persons, labourers, women, children etc. are residing there. Hence, some assistance should be given to them. A footnote has been made, stating that, as stated by Shri R. C. Patel in person, they are ready and willing to pay the necessary charges for shifting the meter to another survey number and as such, necessary charges in accordance with law may be recovered from them, but their enjoyment of essential services may not be disturbed. Thereafter, it appears that the first respondent on 13.6.2011 itself disconnected the electricity supply given to the petitioner without issuing any show cause notice as contemplated under section 56 of the Act and without following any procedure laid down thereunder.
8. On 16.6.2011, the first respondent addressed a communication to the petitioner which insofar as is relevant for the present purpose, as translated into English, reads thus:
“Upon checking the electricity connection given to Thakor Chandaben Maganji, at the farm house situated at Mouje Sanavad, Taluka Kalol, bearing survey No.120, it has been found that single phase meter has not been put up on the said survey number, and that upon obtaining further information from the Talati of Village Sanavad, he has submitted a report and panchnama which shows that the electricity connection to the farm house of Chandaben Maganji has been given on survey No.113/3 of the ownership of Blue Diamond Society instead of survey No.120 in respect of which, the application had been made. Therefore, the office of the first respondent has, on 13.6.2011, disconnected the electricity connection given to the said farm house which is running in the name of Thakor Chandaben Maganji and removed the single phase meter and service line and taken possession thereof. Since instead of survey No.120 in respect of which the electricity connection had been sought for, connection has been given on land of the ownership of some other person bearing survey No.113/3, the office has, in accordance with the rules, disconnected the electricity supply and removed the service line. Pursuant to the communication dated 13.6.2011 for giving electricity connection on other survey number, in the said letter, it has not been stated as to on which survey number she wants the electricity connection to be shifted. Hence, the survey number should be clearly specified. In case the petitioner desires to shift the electricity connection to the earlier survey No.120, in that case, it may be noted that in respect of the said survey No.120 of Sanavad, Blue Diamond Society had vide letters dated 21.5.2011 and 14.6.2011 stated that in relation to survey Nos.120, 121 and 122, in the year 1995, Civil Suit No.302 of 1995 came to be instituted in the Civil Court, at Kalol wherein Blue Diamond Society had been granted interim injunction against the petitioner in respect of survey Nos.120, 121 and 122 restraining the applicant from in any manner disturbing the third respondent society; and that the aforesaid survey numbers have been sold to Blue Diamond Society by registered sale deeds in the year 1982 which find reference in the extracts of the village form No.7/12 in the second rights column, which evidence has been produced by Blue Diamond Society. That the electricity connection had been approved in relation to survey No.120 for Barot Farm House, hence, the applicant should show as to whether the survey No.120 is presently of her ownership or not and in respect thereof, should produce extracts of village form No.7/12, extracts of village form No.8/A, application as well as copy of the interim injunction passed by the Civil Court in Regular Civil Suit No.302 of 1995 as well as any evidence to show that the deeds executed by her have been cancelled within a period of seven days.”
9. From the facts noted hereinabove, it appears that on the application made by the petitioner, electricity connection came to be given at the place called “Barot Farm”. The approval was granted for giving connection to survey No.120, however, the actual connection was given on survey No.113/3. It appears that the first respondent company had received some complaint with regard to the connection granted to the petitioner, pursuant to which, inspection was carried out and the petitioner had made representations against such application and had also submitted that the petitioner was ready and willing to pay necessary charges for shifting the meter to another survey number. Thus, it appears that the meter in question was actually installed at the wrong survey number and not at survey No.120 in respect of which the electric connection had been approved. Thus, it is apparent that the petitioner was granted electricity connection pursuant to an application made by her and the same has been disconnected without issuance of notice as contemplated under section 56 of the Electricity Act, 2003. It would, therefore, be pertinent to refer to the provisions of section 56 of the Act to examine the applicability of the same to the facts of the present case.
10. Section 56 of the Electricity Act provides for disconnection of supply in default of payment. In the facts of the present case, it is not the case of the first respondent that the petitioner had defaulted in payment of its dues and as such, it is apparent that the provisions of section 56 of the Act would not be attracted. Under the circumstances, when disconnection is not sought to be made on the ground of default of payment of any charge of electricity, the question of resorting to and following the procedure as laid down under section 56 of the Act would not arise.
11. It may be recalled that though the electricity connection was sanctioned to the petitioner in respect of survey No.120 of Village Sanavad, the electric meter was installed at a distance of approximately 300 meters, in survey No.113/3 which land, according to the respondents, belongs to the third respondent society. Thus, apparently the electric meter has been installed at a place other than that approved by the competent authority. Under the circumstances, when the placement of meter was itself without authority of law, for removal thereof, it would not be necessary to resort to the provisions of section 56 of the Act. Moreover, as noted hereinabove, section 56 of the Act can be resorted to only in case where the consumer neglects to pay the charges of electricity which is not so in the present case.
12. From the facts referred to hereinabove, it is apparent that pursuant to the complaint made by the third respondent, the officers of the first respondent had inspected the premises of the petitioner on 4.6.2011, and hence, the petitioner was aware of the fact that a complaint had been received in respect of the electricity connection given to her and had also produced the documents in support of her say that the meter was legally installed and that the utilization of power was also legal, which is apparent from the averments made in the memorandum of the petition. Thus, it is not as if the petitioner was caught unawares as regards the proceedings culminating into disconnection of the electricity supply. The petitioner was well aware that proceedings have been initiated in connection with the application received by the first respondent company alleging that the connection given to the petitioner is not legal. Subsequently, on 13.6.2011, the day on which the electricity connection came to be disconnected, the petitioner had written another letter to the first respondent company alleging that the application against the petitioner be filed and showing readiness and willingness to pay the charges for shifting the meter to survey Nos.120, 121 and 122. Thus, it cannot be stated that the entire exercise of disconnecting the electricity supply was without notice to the petitioner. True it is that no notice as envisaged under section 56 of the Act had been issued to the petitioner; however, as noted earlier, the provisions of section 56 of the Act would not be attracted in the present case. Under the circumstances, the contention that the principles of natural justice have not been followed is not entirely correct.
13. Another aspect that arises for consideration is that apparently the meter had been installed on land other than that in respect of which the electricity connection was sanctioned. Under the circumstances, the petitioner cannot be heard to say that even if on account of some mistake or negligence on the part of the officers of the first respondent company, the meter is installed at a wrong place, the same cannot be rectified without following the procedure as contemplated under section 56 of the Act. At the cost of repetition, it may be stated that in the present case, the situation is not one which requires resort to the provisions of section 56 of the Act as this is not a case of non-payment of dues. This is a case where the first respondent company has received a complaint to the effect that the electricity connection given by it is illegal and that the same has been given on the land belonging to the complainant and not to the consumer. In such circumstances, when the conditions precedent for resorting to the provisions of section 56 of the Act are not made out, the question of following the procedure laid down thereunder does not arise. A person who has obtained electricity supply on premises other than for which it was sanctioned, cannot be heard to contend that such supply cannot be disconnected unless the conditions precedent for exercise of powers under section 56 of the Act are satisfied. By way of an illustration, if an officer of the first respondent company gives an illegal connection to a consumer without any authority of law, can the consumer then contend that be as it may, he may have obtained the connection illegally, however, the respondents are bound to continue with the electric supply and so long as he pays his electricity dues, the supply cannot be disconnected. In the present case, as noted hereinabove, the application for electricity connection does not mention any survey number. Despite there being several lacunae in the application, for reasons best known to the petitioner and the concerned officers of the first respondent company, the same has been granted without proper verification of the facts. Now it turns out that though the approval was given for survey No.120, the actual connection has been given on survey No.113/3 which is at a distance of about 300 meters. One can imagine such a mistake occurring in case of connection given for agricultural purposes, or even industrial purposes, however, one fails to understand as to how a connection for residential premises, which ordinarily is not given unless building use permission is obtained, could have been given by placing the meter at a distance of about 300 meters away. Nonetheless, once the respondents have discovered their error, may be through an application by an interested party, they are bound to undo the wrong done. The petitioner, therefore, cannot insist on continuation of the electricity supply from the wrong place.
Insofar as these proceedings are concerned, it is apparent that the petitioner had notice of the same and had even made representations against the same. Under the circumstances, the contention regarding breach of the principles of natural justice does not merit acceptance.
14. The question that next arises for consideration is that even if the disconnection is not bad on the ground that the same was given at a wrong place, it is a matter of fact that the first respondent company has sanctioned the application of the petitioner for electricity connection at the farm house known as “Barot farm” at survey No.120. Then, are not the respondents required to give an electricity connection at the place as approved by them?
15. In this regard, though ordinarily the court would be loath to enter into a dispute as regards the ownership of the land in a proceeding of this nature, in the peculiar facts of the present case, it would be necessary to briefly touch this aspect. The facts as emerging on record indicate that the father of the petitioner, namely, Maganji Thakor was the original owner of the subject lands. Subsequently, vide three separate registered sale deeds executed by (1) Shakaraji Maganji Thakor, (2) Rasik Shakaraji Thakor and (3) the petitioner – Chandaben Maganji Thakor, in favour of the third respondent society, dated 30.8.1982, 31.8.1982 and 31.8.1982 respectively, the lands bearing survey No.120, 121 and 122 of Village Sanavad came to be transferred in favour of the third respondent society. It appears that at the relevant time, when the sale deeds came to be executed, prior permission had been sought for, which had been granted. However subsequently, non-agricultural permission came to be cancelled and consequently, the revenue authorities were of the view that the sale in favour of the third respondent was in breach of the provisions of section 63 of the Tenancy Act, and as such, the name of the third respondent society was not entered in the record of rights, viz., village form No.6. However, as between the petitioner and the third respondent, it is apparent that the title of the said lands had passed to the third respondent and the petitioner had been divested of all right, title and interest over the subject lands. On behalf of the petitioner, it had been contended that the sale was set aside under the provisions of the Tenancy Act and as such, the ownership of the land was retained by the petitioner. The said contention is evidently misconceived inasmuch as though the sale in favour of the third respondent society was not recognized under the tenancy laws, the actual sale had never been set aside. Even under the provisions of the Tenancy Act, when the competent authority under the said Act finds that a sale has been made in contravention of the provisions of the Act, it is required to initiate the proceedings under section 84-C of the Act. If after holding an inquiry as contemplated under sub-section (1) of section 84-C of the Tenancy Act, the Mamlatdar comes to the conclusion that the transfer or acquisition of the land is invalid, he is required to make an order declaring the transfer or acquisition to be invalid, unless the parties to such transfer or acquisition give an undertaking in writing within a period of three months from such date as the Mamlatdar may fix, that they shall restore the land along with rights and interest therein to the position in which it was immediately before the transfer or acquisition and the land is so restored within that period. Thus, even if a sale is held to be invalid under the provisions of the Tenancy Act, even then, unless the parties to the transfer agree to restore the status quo ante, the lands will not stand restored to the original owner. Thus, merely because there is an endorsement in the revenue record that the sale in favour of the third respondent is in breach of the provisions of section 63 of the Tenancy Act, the same does not tantamount to the land having reverted back to the original owner. Moreover, it emerges from the record that the proceedings under section 84-C were in fact initiated, but the same came to be dropped. The matter was carried till the Gujarat Revenue Tribunal, which is pending. Thus, it is apparent that there is no declaration under the Tenancy Act that the sale in question is invalid and as such, as of now, apparently the petitioner does not have any right, title or interest in the said land.
16. The next question to be examined is as to whether the first respondent company is bound to give electricity connection to the petitioner at survey No.120 in terms of the approval granted by it earlier even if the petitioner is not able to establish ownership of the land.
17. In this regard, in support of the contention that the petitioner is in possession of the subject lands and as such, is entitled to connection of electric supply thereon and that there is ample evidence, in the nature of panchnama and other contemporaneous documents evidencing possession of the petitioner, the learned advocate for the petitioner has placed reliance upon the decision of the Calcutta High Court in the case of Molay Kumar Acharya v. Chairman-cum-Managing Director, W. B. State Electricity Distribution Co. Ltd. and others (supra). It may be noted that in respect of the lands bearing survey No.120, 121 and 122, the third respondent society had instituted a suit in the Court of the learned Joint Civil Judge (J.D.), Kalol being Regular Civil Suit No.302 of 1995 against the petitioner herein. In the said suit, the third respondent had filed an application for interim injunction seeking an injunction against the petitioner and others restraining them from in any manner disturbing its possession of the subject lands. The trial court after considering the material on record and hearing the learned counsel for the respective parties, by a detailed reasoned order, has held that the third respondent is possession of the subject lands and has granted interim injunction restraining the defendants, namely, the petitioner and others, from in any manner obstructing the third respondent’s possession and enjoyment of the lands bearing survey No.120, 121 and 122 of Mouje Sanavad. Thus, as of now, there is an injunction order of a court of competent jurisdiction restraining the petitioner and others from disturbing the third respondent’s possession of the subject land. This is a finding of fact arrived at upon appreciation of the available evidence on record. Undisputedly the order of the trial court has neither been set aside nor stayed by any superior forum, and is still in force. Under the circumstances, in the opinion of this court, any direction to give electricity connection to the petitioner on the disputed land would amount to giving a direction to defy the interim injunction passed by the civil court. It is settled legal position that the High Court in exercise of its extraordinary writ jurisdiction under Article 226 of the Constitution would not direct the commission of an illegal act. If the reliefs as prayed for in the petition were to be granted, the same would amount to an illegality inasmuch as the same would amount to directing the first respondent company to disobey the directions issued by the trial court on the application for interim injunction made by the third respondent. Under the circumstances, it is not possible to grant the relief prayed for in the petition whereby the petitioner seeks a direction to the first and second respondents to reinstall the electricity meter which has been removed and to start supply of electric power in the field of the petitioner being lands bearing survey Nos.120, 121 and 122.
18. Last but not least, from the facts as emerging on record, it is obvious that the petitioner has not come to the court with clean hands. Firstly, the petitioner has not placed on record the copy of the application made by it, which in the context of the fact that the same was made only for residential purpose, assumes significance, more so in the light of the averments made in the petition that the petitioner is not in a position to carry out agricultural activities and its milk business and to feed the cattle on site etc. In fact, even the relief prayed for in the petition is to direct the respondents to reinstall the meter and start supply of electric power in the field of the petitioner in survey Nos.120, 121 and 122. Apparently, therefore, the electric supply is being used for non-residential purposes. Thus, the petitioner with a view to gain sympathy of the court appears to have deliberately suppressed correct facts. The learned advocate for the petitioner has submitted that due to inadvertence, it appears that the facts regarding petitioner not being able to fetch water from the bore have been stated inasmuch as the panchnama indicates that there is no bore on the land in question. The fact that there may not be bore on the land does not detract from the fact that the petitioner has made certain averments on oath in the petition stating that she is not able to pump out water for agricultural purpose, for feeding cattle and large number difficulties have arisen; that there is no light and that the milk business is also adversely affected; the security of the land is also strained and that in absence of light, several animals enter into the land at night and eat away the crops. Thus, either the petitioner is not using the electricity connection for residential purpose or she has stated incorrect facts with a view to gain the sympathy of the court. In either case, it is apparent that correct facts have not been stated in the petition. Moreover, despite the fact that an injunction granted by a court of competent jurisdiction was operating against the petitioner, the said facts have not been brought on record and it has come on record only after the third respondent society made an application for being joined as party and brought the said facts on record. Thus, non- disclosure of the aforesaid facts amounts to suppression of material facts. The petitioner by her own conduct has, therefore, disentitled herself from the grant of any relief as prayed for.
19. On behalf of the respondents, reliance has been placed upon various decisions in support of their say that in case of fraud etc., principles of natural justice need not be complied with as well as for the proposition that where the petitioner makes false statement or conceals material facts, the court may dismiss the petition at the threshold without considering the merits of the case. In the light of the view that the court has taken as aforesaid, it is not necessary to discuss the said decisions in detail.
20. For the foregoing reasons, the petition fails and is, accordingly, dismissed. Notice is discharged.
21. At this stage, the learned advocate for the petitioner has submitted that in case it is not possible for the first respondent to give electricity connection in respect of the lands bearing survey No.120, 121 and 122 of village Sanavad, the petitioner may be granted electricity connection in respect of some other survey numbers as proposed by the first respondent in the communication dated 16.6.2010. In this regard, in case the petitioner makes a fresh application indicating the survey number in respect of which she wants a fresh electricity connection, needless to state that the first respondent company may consider the same in accordance with law after due verification, as expeditiously as possible.
[HARSHA DEVANI, J.] parmar*