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Soma Saha v/s Assam Power Distribution Co Ltd.


Company & Directors' Information:- ASSAM POWER DISTRIBUTION COMPANY LIMITED [Active] CIN = U40109AS2003SGC007242

Company & Directors' Information:- SAHA (INDIA) PRIVATE LIMITED [Strike Off] CIN = U67120KA1991PTC012267

Company & Directors' Information:- C C SAHA LTD [Active] CIN = U36920WB1933PLC007695

Company & Directors' Information:- ASSAM DISTRIBUTION CO PVT LTD [Strike Off] CIN = U51909AS1975PTC001631

Company & Directors' Information:- B N SAHA CO PVT LTD [Strike Off] CIN = U12000WB1938PTC009498

    W.A. No. 198 of 2018

    Decided On, 08 October 2018

    At, High Court of Gauhati

    By, THE HONOURABLE MR. JUSTICE ARUP KUMAR GOSWAMI & THE HONOURABLE MR. JUSTICE NELSON SAILO

    For the Appearing Parties: J.C. Gaur, M. Gaur, H.K. Sarma, D. Mozumdar, S. Saikia, Advocates.



Judgment Text

A.K. Goswami, ACJ.

1. Heard Mr. J.C. Gaur, learned counsel for the appellant. Also heard Mr. H.K. Sarma, learned standing counsel, APDCL, appearing for respondent Nos.1 and 2 and Mr. S. Saikia, learned counsel appearing for respondent Nos.3, 4 and 5.

2. The subject matter of this writ appeal is an order dated 27.02.2018 passed by the learned Single Judge in Review Petition No.179/2017, arising out of WP(C) No.653/2013. Initially by an order dated 18.09.2017 the writ petition was allowed and on review, the same came to be dismissed.

3. The case set out in the writ petition, briefly, is that the petitioner's father-inlaw Late Radheshyam Saha was a tenant of the respondent Nos.3, 4 and 5 and after the death of Radheshyam Saha, the husband of the appellant had stepped into his shoes as a tenant and conducted business in the name and style of M/s Deepika. The husband of the appellant expired on 26.05.2009 leaving behind the appellant and two minor daughters. After the death of her husband, the appellant became a tenant of the respondent Nos.3, 4 and 5 and in the month of July, 2009 rent was enhanced. However, subsequently, lawful rent having been refused to be accepted by the landlord and she having been threatened with forceful dispossession, the appellant filed a Title Suit in the Court of learned Munsiff No.2, Kamrup(M), which was registered as Title Suit No.6/2010. In the suit, a counter-claim was filed by the landlord. During the pendency of this suit, electricity connection was disconnected by the landlord, but after filing of a petition alleging violation of the injunction order in force, the landlord restored the electricity connection.

4. Details of the developments in the suit and the counter-claim is not necessary to be decided in this order, as it is the common ground of the learned counsel for the parties that the suit and the counter-claim are yet to be finally decided as the respondent Nos.3, 4 and 5 had filed an appeal against an order of remand passed by the learned Additional District Judge No.3, Kamrup, directing the learned Trial Court to decide the suit afresh.

5. In the writ petition prayer was made for a direction to the respondent No.2 i.e. Assistant General Manager, Guwahati Electrical Division (Central), to provide separate electricity connection to the appellant in pursuance of an application dated 26.12.2012 without consent/no objection certificate of landlord on payment of higher amount of security deposit as per the terms and conditions for supply of electricity framed by the Assam Electricity Regulatory Commission. In the said petition, affidavit was filed by respondent Nos.3, 4 and 5. However, no affidavit was filed by the respondent Nos.1 and 2.

6. After hearing the learned counsel for the parties, the writ petition was allowed by an order dated 18.09.2017, whereby, a direction was issued to the APDCL that in the event a fresh application is made by the petitioner for providing separate electricity connection, the same shall be considered in accordance with law and necessary separate electricity connection be provided to the appellant subject to the condition that all necessary formalities, as may be prescribed by the APDCL authority, are complied with by the appellant. It was also provided that the APDCL authority shall not insist upon no objection certificate from the landlord. The exercise was directed to be completed within a period of 3 weeks from the date of receipt of fresh application from the appellant. Pursuant to the above direction of this Court dated 18.09.2017, the appellant submitted fresh application on 04.10.2017. Attempt was made by the APDCL authorities to provide electric connection consequent upon submission of the said application dated 04.10.2017, but because of stiff resistance made, the order could not be complied with, as a result of which, the Sub-Divisional Engineer, Paltan Bazar Electrical Sub-Division intimated to the Officer-In-Chage of Paltanbazar Police Station by a letter dated 31.10.2017 about the obstruction caused by the landlord. However, it appears that no case was registered on the basis of such information lodged by the Sub-Divisional Engineer.

7. Subsequently, the respondent Nos.3, 4 and 5 filed a Review Petition, which came to be registered as Review Petition No.179/2017. On review, the learned Judge held that foundation of the order dated 18.09.2017 in WP(C) No.653/2013 did not appear to be consistent with the pleaded stand of the parties. It was held that as the writ appellant/writ petitioner did not suffer from disconnection of electricity supply on the date of institution of the writ petition or at any time thereafter, there was no necessity to direct the APDCL authority for providing a separate electricity connection and, therefore, there was an error apparent on the face of the record. Thus, while dismissing the writ petition, liberty was, however, granted to the writ petitioner to make application for separate electricity connection if by any deliberate action on the part of the review petitioner, supply of electricity to the rented premises of the writ petitioner was severed/disconnected without valid reason.

8. A perusal of the averments made in the writ petition will go to show that, at paragraph 5, the writ appellant had made categorical statement that electricity connection was restored. It was further stated that, however, supply was regulated by the landlords as per their own sweet will thereby disturbing the business of the appellant, which is her only source of income. It was also pleaded that the appellant was suffering hardship and inconvenience due to frequent disturbance for nonsupply of electricity by the landlord. The learned Single Judge proceeded on the basis that if on the date of filing of the writ application there was no disconnection of electricity supply, there can be no occasion for an order for separate electricity connection.

9. The Assam Electricity Regulatory Commission had issued a notification on 30.08.2004, which was published in the Assam Gazette, Extraordinary, February 17, 2005. The regulation was called the Assam Electricity Regulatory Commission (Electricity Supply Code and Related Matters) Regulations, 2004 (in short, the 2004 Regulations). Clause 3.7.3 of the 2004 Regulations deals with connection with separate meters and as the same has relevance for the purpose of this case, it will be appropriate to quote the same in its entirety. It reads as follows:-

"3.7.3 CONNECTION WITH SEPARATE METERS:

Service or sub service with separate meters may be provided as below:

1) In the name of the owner of the premise.

2) In the name of legal occupier provided the owner of the premises furnishes a written undertaking to clear the electricity dues payable by the occupier in case of his default.

3) In the name of the legal occupier without a written undertaking from the owner on realization of additional load security over and above the normal load security. The additional load security would be 3(three) times normal load security."

10. That the appellant is a legal occupier is not in dispute, as it is an uncontroverted fact that the appellant remains a tenant of the respondent Nos.3, 4 and 5. Clause 3.7.3 visualizes service or sub service with separate meters in the name of the legal occupier without a written undertaking from the owner on realization of additional load security over and above the normal load security. The additional load security would be 3(three) times the normal load security. The provision does not restrict service or sub service with separate meter only in the event of the existing connection of electricity being disconnected and the legal occupier not enjoying electricity. To that extent, we are of the opinion t

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hat the learned Single Judge overlooked the provisions holding the field in connection with service or sub service with separate meters, as it was opined that no directions ought to have ensued as because the appellant was enjoying electricity at the relevant point of time. 11. In that view of the matter, we are of the opinion that the order dated 27.02.2018 passed in Review Petition No.179/2017 is liable to be interfered with, which we, accordingly, do. The order dated 27.02.2018 is set aside. As the appellant had already submitted an application dated 04.10.2017 in terms of the order of the learned Single Judge dated 18.09.2017 passed in WP(C) No.653/2013, the APDCL authorities will now carry out the said direction of the learned Single Judge in the order dated 18.09.2017, within a period of 3(three) weeks. 12. The writ appeal is allowed. No cost.
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