Dismissed

Lakshmibai Sri Manmohan Parshwanathji Trust v. Hirachand Valaji Shah Bhakteshwar Manmalji Bhanshali

Gujarat HC3 Apr 2019SCA/6530/2019

Case brief

AI extract

What is this about?

The High Court of Gujarat dismissed a writ petition seeking to quash an order granting electric supply to a respondent under the Bombay Rents Act. The court held that documentary evidence established prima-facie tenancy and noted no record of authorized action against alleged unauthorized construction.

What did the court decide?

Petition dismissed; order under Section 23A of the Bombay Rents Act remains operative.

Lakshmibai Sri Manmohan Parshwanathji Trust Vs… — Writ and Judicial Review | Gujarat HC (2019)

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C/SCA/6530/2019 ORDER

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 6530 of 2019

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================================================================ LAKSHMIBAI SRI MANMOHAN PARSHWANATHJI TRUST

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Versus

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HIRACHAND VALAJI SHAH BHAKTESHWAR MANMALJI BHANSHALI ================================================================ Appearance:

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MR ARPIT SINGHVI for MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1 for the Respondent(s) No. 1,2,3

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================================================================

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CORAM: HONOURABLE MR.JUSTICE A.Y. KOGJE

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Date : 03/04/2019

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ORAL ORDER

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This petition is filed under Article 226 of the Constitution of India with a prayer to quash and set aside the order dated 05.06.2017 passed by the Deputy Collector, City Prant, Surat in Rent Control Case No.2/2016. In the impugned order, the Deputy Collector had directed to give electricity connection to the private respondent who according to the petitioner was not their tenant and indulged in making the unauthorized construction.

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Learned Advocate for the petitioner submits that the petitioner is a Trust and has not recognized the respondent No.1 as its tenant. However, the respondent No.1 has unauthorizedly occupied the premises belonging to the Trust and has carried out the unauthorized construction and as there were proceedings regarding a part of the premises being in a dilapidated condition, repair work was required and for that purpose, the electric

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Page 1 of 4

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C/SCA/6530/2019 ORDER

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connection was disconnected. However, when the repair work was carried out, the respondent had made an application under Section 23(A) of the The Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to in short as 'the Act') for the purpose of restoring of the electric connection to which the petitioner had given elaborate objections including the objection that the petitioner has carried out construction even on the part of the property on which he was occupying earlier and that the respondent No.1 has carried out unauthorized construction, without there being no plan passed by the local authority. It is submitted that as the respondent No.1 was an unauthorized occupier, he could not have made an application under Section 23A of the Act and even if he had made such an application in view of the construction against the norms and without any plan, the Deputy Collector could not have passed an order for reconnection of the electric supply.

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Learned Advocate for the petitioner even relied upon an unreported judgment of the Madras High Court in Writ Petition No.27499/2018 in the case of Mehraj Begum v. The Government of Tamil Nadu and Others , wherein drawing attention to Paragraph 11 it is submitted that reconnection to an unauthorized construction cannot be restored and the restoration can take place only when the Building is in accordance with the sanctioned plan.

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Having considered the submissions canvassed and perusing the

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Page 2 of 4

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C/SCA/6530/2019 ORDER

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documents on record, it appears that the impugned order is passed in exercise of powers under Section 23A of the Act which reads as under :-

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“23A. Tenant entitled to supply of electricity at his cost – [(1) When a tenant desires to get supply of electricity at his own cost from a licensee within the meaning of the Indian Electricity Act, 1910 (IX of 1910) and the owner of the premises does not give his consent therefor, the tenant may apply to the Collector setting out the scheme for such supply.

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(2) On receipt of such application the Collector may, after giving the landlord and the owner of the premises if he be not the landlord, opportunity of being heard, permit the tenant to get the supply in accordance with the scheme setout in the tenant's application or in accordance with any modified scheme.

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(3) On such permission being given, notwithstanding any thing contained in any contract or in any other law for the time being in force, the owner shall be deemed to have given the requisite consent under sub-section (2) of Section 12 of the Indian Electricity Act, 1910 (IX of 1910) and the licensee shall not be liable to the owner for trespass for steps taken for supply of electricity according to the said permission.] “

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On perusal of the order, it is apparent that in the proceedings, the respondent No.1 has produced documentary evidence to substantiate his claim that he was a tenant in the property; he has produced rent receipts as well as the receipts for payment of the electricity charges. The rent receipts produced have been issued by the petitioner Trust. It appears that therefore, the respondent No.1 was able to prima-facie produce sufficient evidence to establish himself as a tenant in the property of the petitioner Trust and therefore, the respondent no.2 was within his authority to issue the order under Section 23A of the Act. Insofar as the

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Page 3 of 4

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C/SCA/6530/2019 ORDER

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judgment relied upon by the petitioner, it would be appropriate to observe the facts on which the order came to be passed where the Madras High Court in Paragraph 2 has observed that the petitioner therein had claimed re-connection as she had received a Lock and Seal and Demolition Notice and it was held that the construction was put up unauthorizedly without prior permission and hence, the Madras High Court had proceeded to hold that the electric connection to the unauthorized construction has to be disconnected and can be restored only when the Building is brought in accordance with the sanctioned plan.

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Here it is the case of the petitioner that the respondent No.1 has carried out the unauthorized construction and so is the objection taken before the respondent No.2. There is nothing on record to suggest that the local authority has found and proceeded against the respondent No.1 to have carried out the unauthorized construction without a sanctioned plan.

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In view of the aforesaid, no case is made out to interference and the petition deserves to be dismissed and is hereby dismissed. It is made clear that this order will not come in the way of the petitioner to pursue his remedy for declaring the alleged construction of the respondent No.1 as unauthorized. Direct Service is permitted.

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Sd/- (A.Y. KOGJE, J)

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CAROLINE

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Page 4 of 4

Lakshmibai Sri Manmohan Parshwanathji Trust v. Hirachand Valaji Shah Bhakteshwar Manmalji Bhanshali

Case brief

What is this about?

What did the court decide?

Lakshmibai Sri Manmohan Parshwanathji Trust v. Hirachand Valaji Shah Bhakteshwar Manmalji Bhanshali

Case brief

What is this about?

What did the court decide?

What the court decided

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