Allowed

Jagannath Ganpat Purav v. the Maharashtra State Electricity Board and Ors.

Bombay HC23 Aug 2005WP/2176/1992

Case brief

AI extract

What is this about?

In this writ petition, the petitioner sought a direction under Article 226 compelling Reliance Energy Limited, a private company, to supply electricity. The court held the company was amenable to writ jurisdiction due to its statutory obligation. It directed the licensee to approach the District Magistrate under Section 12(2) proviso of the Indian Electricity Act, 1910, when access is obstructed b

What did the court decide?

The writ petition is allowed. Reliance Energy Limited (Respondent No.2) and the MSEDCL are directed to apply to the District Magistrate within eight weeks to obtain an order permitting the laying of e

Jagannath Ganpat Purav Vs the Maharashtra State… — Service and Employment | Bombay HC (2005)

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 ORDINARY ORIGINAL CIVIL JURISDICTION
 WRIT PETITION NO.2176 OF 1992

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 Jagannath Ganpat Purav, )
 of Bombay Indian Inhabitant, )
 residing at Purav House, )
 Behind Alka Bldg., )
 Adarsh Dugdhalaya Naka, Marve Road,)
 Malad (W), Bombay -, 400 064. ).. Petitioner
 Versus
 1. The Maharashtra State )
 Electricity Board, duly )
 established under the )
 Electricity (Supply) Act 1948,)
 and having its office at )
 Hong Kong Bank Bldg., )
 3rd Floor, Mahatma Gandhi Road,)
 Fort, Bombay - 400 023. )
 2. Reliance Energy Limited, )
 a Company incorporated under )
 the provisions of Companies )
 Act 1986, and having its )
 office at Reliance House, )
 Santacruz (East), Mumbai. )
 3. The American Springs and )
 Processing Works Ltd., )
 a Public Limited Company )
 incorporated and registered )
 under the provisions of the )
 Companies Act 1956 and having )
 its registered office at )
 Adarsh Housing Society, )
 Cross Road No.1, Malad (W), )
 Bombay - 400 064. )
 4(A) Hiten Chandrakant Patel, )
 of Mumbai Indian Inhabitant, )
 having his address at )
 C/o. Janata Machanical & )
 Waives Limited,
 Ramchandra Line, Malad (West),)
 Mumbai - 400 064. )

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`- 2 -` `5. Smt.Sonabai Ganpat Purav )` `of Bombay Indian Inhabitant, )` `residing at Purav House, )` `Behind Alka Bldg., )`
`Adarsh Dugdhalay Naka, )`
`Malad (West), Marve Road, )` `Bombay - 400 064. )`
`6. Dilip Janardhan Purav, )`
`of Bombay Indian Inhabitant, )` `residing Near Barreto Bus Stop,)` `Malad Linking Road, )`
`Malad (W), Bombay - 400 064. )`
`7. Vijay Ganpat Purav, )`
`of Bombay, Indian Inhabitant, )`
`residing at Ashok Nagar, )`
`Behind Magal Store, )`
`Sawant Wadi, Kandivali (E), )`
`Bombay - 400 101. )`
`8. Ramesh Ganpat Purav, )`
`of Bombay Indian Inhabitant, )`
`residing at Purav House, )`
`Behind Alka Bldg., )`
`Adarsh Dugdhalay Naka, )`
`Malad, Marve Road, )`
`Bombay - 400 064. )`
`9. Mrs.Shakuntala Bharat Darne )`
`of Bombay Indian Inhabitant, )`
`residing at Purav House, )`
`Behind Alka Bldg., )`
`Adarsh Dugdhalay Naka, )`
`Malad, Marve Road, )`
`Bombay - 400 064. )`
`10. Smt.Tara Bhagwant Paralkar, )`
`Dindoshi Rahivasi Mandal, )`
`Pathan Wadi, Behind Dindoshi )`
`Depot., Malad (E), )`
`Bombay - 400 097. )`
`11. Smt.Vatsala Krishnarao Kotwal,)`
`Parel Village, )`
`Padmavati Building, Bombay. )`
`12. Smt.Yamuna Sitaram Bhatte, )`
`Malad, Somwari Bazar, )`
`Mahant Galli, Shahi Chaya )`
`Building, Malad (W), )`

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 Bombay - 400 064. ).. Respondents

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--

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 Shri Deepak Chitnis with Ms S.S.Chipriyar for the
 petitioner.

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 Shri Bharat Zaveri for the respondent Nos.3 and 4.

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--

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 CORAM : R.M.S.KHANDEPARKAR &

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 V.M.KANADE, JJ.

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 DATED : 23RD AUGUST, 2005.

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ORAL JUDGMENT : ( Per V.M.Kanade, J )

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 1. Heard learned counsel for the petitioner and
 respondent Nos.3 and 4. None present for rest of the
 respondents, though served.

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 2. By this petition, the petitioner is seeking a
 writ of mandamus or direction under Article 226 of the
 Constitution of India directing the respondent No.2 to
 supply electricity to the petitioner.

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 3. The petitioner is the owner of the plot of

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 land bearing Survey No.17, Hissa No.2 (Part), CTS
 No.558/1,2,3,4, Municipal No.P/4491, 185 Valnai
 including the shed admeasuring 500 sq.yards. It is
 the contention of the petitioner that he is residing

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 with his family at the aforesaid address for last 70
 years. The grievance of the petitioner is that
 respondent No.2, viz. Reliance Energy Limited, a
 company incorporated under the provisions of Companies
 Act, 1986, has withheld the supply of electricity to
 the petitioner at the instance of respondent Nos.3 and
 4. It is the contention of the petitioner that
 respondent No.3, who is the adjoining land owner, had
 given an access through his land to the petitioner and
 which was confirmed by him in the consent decree dated
 21st March, 1986 passed by the City Civil Court in
 B.C.C.C.Suit No.3687 of 1978. It is the contention of
 the petitioner that though the access has been given
 by respondent No.3 to the petitioner, at the time when
 respondent No.2 came the to property of the petitioner
 for the purpose of supplying electricity, respondent
 No.3 obstructed respondent No.2 from laying down the
 electricity cables from his land through which access
 was given by him to the petitioner. The petitioner
 has therefore filed this petition seeking the
 aforesaid reliefs.

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 4. It is contended by learned counsel for the
 petitioner that respondent No.2 is a licensee of
 respondent No.1 i.e. Maharashtra State Electricity
 Board, which is duly established under the Electricity

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 (Supply) Act, 1948, and therefore, is a licensee
 within the meaning of Section 2(h) of the Indian
 Electricity Act, 1910 and is responsible to supply the
 electricity to the area in which the petitioner is
 residing. He has submitted that Section 12 of the
 said Act further imposes an obligation on the licensee
 to supply electricity to the consumer and upon a
 conjoint reading of the aforesaid two sections, it is
 clear that the provision imposes an obligation which
 is public in nature and that the respondent No.2 is
 required to supply electricity to the petitioner who
 is a consumer within the meaning of the said Act. It
 was submitted that the petitioner was a lawful
 occupant of the said premises and being a lawful
 occupant, he was entitled to the supply of
 electricity. He submitted that electricity had been
 supplied to the occupants of the adjoining plots.
 Learned counsel appearing on behalf of the petitioner
 submitted that the obligation cast on the respondent
 No.2 was a statutory obligation, and therefore, though
 it was a private limited company registered under the
 Companies Act, by virtue of the statutory and public
 obligation, the respondent No.2 was duty bound to
 supply electricity, as laid down under Section 22 read
 with Section 12 of the said Act. Learned counsel
 appearing on behalf of the respondent Nos.3 and 4

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 submitted that the petitioner had no right to seek
 access through his property for the purpose of laying
 down electricity connection. He submitted that
 neither the respondent Nos.1 and 2 nor the present
 petitioner could compel the respondent Nos.3 and 4 to
 give consent for the purpose of laying electricity
 cables beneath the surface of his property. He
 submitted that the decree which was passed by the City
 Civil Court was restricted only to granting access to
 the petitioner to reach to his plot and no further
 concession was granted by the respondent Nos.3 and 4
 by the said consent decree which was passed by the
 City Civil Court. Learned counsel for the respondent
 Nos.3 and 4 therefore submitted that the licensee did
 not have any authority to lay down electricity cable,
 as laid down under Section 12 of the said Act, without
 consent, since he continued to be the owner of the
 land though the right of access was granted to the
 petitioner. He further submitted that the present
 petition was not maintainable and the petitioner was
 seeking writ of mandamus and direction against the
 respondent No.2 which was a private limited company
 registered under the Companies Act, and therefore, no
 writ could be issued against such a company.

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 5. Sofar as the first objection raised by learned

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 counsel appearing for the respondent Nos.3 and 4
 regarding maintainability of the writ petition against
 the respondent No.2 is concerned, we are unable to
 accept the submissions made by learned counsel
 appearing for the respondent Nos.3 and 4.

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 6. The Supreme Court in U.P.State Co-operative
Land Development Bank Ltd. v. Chandra Bhan Dubey and
Ors., reported in AIR 1999 SC 753 and further in the

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 case of Shri Anadi Mukta Sadguru Shree Muktajee
Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust
and Ors. v. V.R.Rudani and Ors., reported in AIR
 1989 SC 1607 has taken a consistent view that the term
 "any person or authority" used in Article 226 of the
 Constitution of India must receive a liberal meaning
 unlike the term "State" in Article 12. The Supreme
 Court in a case of Anadi Mukta Sadguru’s case (supra),
 while considering the words "any person or authority",
 has observed that these words are not confined only to
 statutory authorities and instrumentalities of the
 State as they may cover any other person or body
 performing public duty. The Supreme Court has further
 observed in the said judgment that what is to be seen
 and is relevant is the nature of the duty imposed on
 the body and that the duty must be judged in the light
 of positive obligation owed by the person or authority

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 to the affected party. Similarly, the Supreme Court
 in the case of U.P.State Co-operative Land Development
Bank Ltd.’s case (supra) has in paragraph 22 has
 observed as under:-

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 "The language of Article 226 does not admit of
 any limitation on the powers of High Court for
 the exercise of jurisdiction thereunder though
 by various decisions of this Court with
 varying and divergent views it has been held
 that jurisdiction under Article 226 can be
 exercised only when body or authority,
 decision of which is complained, was
 exercising its power in the discharge of
 public duty and that writ is a public law
 remedy."

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 In view of the said ratio laid down by the Supreme
 Court, it has to be held that the respondent No.2
 though is a company incorporated under the Companies
 Act, is under a statutory and public obligation to
 supply electricity to the consumers and occupiers
 within the area of its operation and in view of the
 statutory and public obligation, which is cast on the
 respondent No.2, it is amenable to the writ
 jurisdiction under Article 226 of the Constitution of

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 India.

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 7. So far as the second contention of the
 petitioner is concerned, in order to appreciate the
 submissions made by the petitioner, it would be
 relevant to take into consideration the relevant
 provision i.e. Section 22 of the Indian Electricity
 Act, 1910, which reads as under:-

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 "Obligation on licensee to supply energy.-
 Where energy is supplied by a licensee, every
 person within the area of supply shall, except
 in so far as is otherwise provided by the
 terms and conditions of the license, be
 entitled, on application, to a supply on the
 same terms as those on which any other person
 in the same area is entitled in similar
 circumstances to a corresponding supply:

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 Provided that no person shall be entitled to
 demand, or to continue to receive, from a
 licensee a supply of energy for any premises
 having a separate supply unless he has agreed
 with the licensee to pay to him such minimum
 annual sum as will give him a reasonable

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 return on the capital expenditure, and will
 cover other standing charges incurred by him
 in order to meet the possible maximum demand
 for those premises, the sum payable to be
 determined in case of difference or dispute by
 arbitration."

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 From the perusal of the above provision, it can be
 seen that the obligation is cast on the licensee to
 supply energy to every person within the area of
 supply which is restricted by the terms and conditions
 of the license. Section 12 of the said Act provides
 for opening and breaking up of streets, railways and
 tramways for the purpose of supplying electricity to
 the consumers. Sub-section (2) thereof states that
 the licensee will be authorised to act provided under
 sub-section (1) of Section 12 of the said Act can be
 carried only with the consent of the local authority
 or of the owner or occupier is concerned. Sub-section
 (2) of Section 12 of the said Act reads as under:-

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 "(2) Nothing contained in sub-section (1)
 shall be deemed to authorise or empower a
 licensee, without the consent of the local
 authority or of the owner or occupier
 concerned, as the case may be, to lay down or

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 place any electric supply-line, or other work
 in, through or against any building, or on,
 over or under any land not dedicated to public
 use whereon, or whereunder any electric
 supply-line or work has not already been
 lawfully laid down or placed by such licensee;

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 Provided that any support of an overhead line
 or any stay or strut required for the sole
 purpose of securing in position any support of
 an overhead line may be fixed on any building
 or land or, having been so fixed, may be
 altered, notwithstanding the objection of
 owner or occupier of such building or land, if
 the District Magistrate or, in a
 Presidency-town, the Commissioner of Police by
 order in writing so directs:

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 Provided also, that if at any time the owner
 or occupier of any building or land on which
 any such support, stay or strut has been fixed
 shows sufficient cause, the District
 Magistrate or, in Presidency-town, the
 Commissioner of Police may by order in writing
 direct any such support, stay or strut to be
 removed or altered."

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 If both the sections i.e. Sections 22 and 12 are read
 together, it can be seen that the obligation is cast
 on the licensee to provide electricity supply to the
 consumers and for the said purpose, the licensee is
 authorised to lay down or place any electric supply
 line and other work and for that purpose, he is
 authorised to open and break up the soil and pavement
 of any street, railway or tramway, etc. However, this
 power is restricted by virtue of sub-section (2) of
 the said section 12, which in no uncertain terms lays
 down that this cannot be done without the consent of
 the local authority or owner or occupier concerned,
 except in case where there is already an electric
 supply line or work which has been lawfully laid down
 or placed by such licensee. Further the proviso to
 sub-section (2) authorises the licensee in case
 permission is not granted by the owner to approach the
 District Magistrate in the Presidency-town or the
 Commissioner of Police and obtain an order in writing,
 notwithstanding the objection raised by the owner or
 the occupier. From the facts of the present case, it
 is abundantly clear that the respondent Nos.3 and 4,
 who were the owners of the access road, have objected
 to lay down of the electricity supply line below the
 access road. Further, there is no evidence on record

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 to indicate that the electricity connections have
 reached near the plot of land of the petitioner.
 However, merely because the owner of the plot, to whom
 access is granted, has not granted the consent or
 permission to the licensee, i.e. respondent No.1, the
 statutory and public obligation cast on respondent
 No.1 under the Act does not come to an end. The
 proviso to sub-section (2) of Section 12 contemplates
 such situation and provides the course of action which
 is required to be taken by the licensee. In our view,
 the licensee therefore cannot fold his hand and refuse
 to comply with the statutory and public obligation
 which is cast on him under Section 22 read with
 Section 12 of the said Act. The petitioner admittedly
 has been residing in the said plot for a considerable
 long period of time. He has otherwise fulfilled and
 complied with all other terms and conditions, as
 envisaged under Section 22 of the said Act, and
 therefore, there cannot be any impediment for
 providing electricity supply to the petitioner after
 following the procedure which is laid down under the
 proviso to sub-section (2) of Section 12 of the said
 Act.

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 8. We are of the view, therefore, that the
 petitioner is entitled for the relief asked in the

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 petition and accordingly the writ petition is allowed.
 The respondent Nos.1 and 2 are directed to follow the
 procedure laid down under the proviso to Section 12(2)
 of the said Act and approach the District Magistrate
 and/or Commissioner of Police, and after hearing the
 objections of the owner or the other occupier, if any,
 take appropriate orders from the District Magistrate
 and complete the task of supplying electricity line to
 the petitioner. The respondent Nos.1 and 2 are
 further directed to forthwith apply to the District
 Magistrate as expeditiously as possible, and in any
 case within a period of eight weeks from today, and
 upon such application being made, it is expected that
 the District Magistrate shall expeditiously decide
 such application after hearing the objections of the
 owner and/or other occupiers or interested parties, if
 any, who are likely to be affected by any such order
 which may be passed by the District Magistrate and
 decide the same within a period of eight weeks
 thereafter. It is clarified that the petitioner would
 be bound by the terms and conditions which may be
 imposed by the respondent Nos.1 and 2, as laid down
 under the Act, rules and regulations framed thereunder
 for the purpose of of paying the deposit and/or other
 fee which can be lawfully collected by the respondents
 from the petitioner.

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 9. The rule is made absolute in above terms with

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 no order as to costs.

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 (R.M.S.KHANDEPARKAR, J)

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 ( V.M.KANADE, J)

Jagannath Ganpat Purav v. the Maharashtra State Electricity Board and Ors.

Case brief

What is this about?

What did the court decide?

Jagannath Ganpat Purav v. the Maharashtra State Electricity Board and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

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