AJN 05-OS-WP32.11 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.32 OF 2011 Brig. A.C. Chopra ... Petitioner Vs. The State of Maharashtra & Ors. ... Respondents Mr. Janak Dwarkadas, senior counsel with Mr. Manish Desai and Mr. Saket Mane i/b Mr. Pavan Mali for the petitioner. Mr. K.K. Singhvi, senior counsel for respondent 2. Mr. Harinder Toor with Mr. Dipankar Das i/b M.V. Kini & Co. for respondent 3 and 4. CORAM: MRS. RANJANA DESAI & R.G. KETKAR, JJ. DATED : 5TH MAY, 2011. P.C.:- 1. The petitioner has retired from Indian Army. Respondent 1 is the State of Maharashtra. Respondent 2 is the Mumbai Municipal Corporation (for short, “the MMC”). Respondent 3 is the Brihan Mumbai Electric Supply and Transport Undertaking (for short, “the BEST”). Respondent 4 is the Divisional Engineer, AJN 05-OS-WP32.11 2 Customer Care – A Ward, BEST. Respondent 5 is the Mumbai Metropolitan Regional Development Authority (for short, “the MMRDA”) and respondent 6 is the Adarsh Co- operative Housing Society Limited (for short, “the Adarsh Society”). 2. The petitioner, who has retired from Indian Army owns a flat, which is situated in the Adarsh Society. According to the petitioner, he was made aware that if he becomes member of the Adarsh Society, there is a likelihood of his becoming eligible for allotment of a flat on a land to be leased out by the Government to the Adarsh Society by virtue of a Government Resolution dated 9/7/1999. He applied for the membership of the Adarsh Society. His eligibility was confirmed by the Collector and his file was sent for approval of the State of Maharashtra i.e. respondent 1. Respondent 1 approved his eligibility on 2/9/2004. The petitioner paid the necessary purchase price. On 10/10/2005, the Adarsh Society requested BEST to supply temporary electricity AJN 05-OS-WP32.11 3 connection to it. BEST accordingly granted temporary electricity connection. After completion of construction, the Adarsh Society made an application on 5/3/2010 for electricity. After following the necessary procedure and after the necessary charges were paid, the BEST supplied electricity connection to the Adarsh Society and to the petitioner's flat in or about first week of October, 2010. 3. According to the petitioner, he was informed by the Adarsh Society that the Occupation Certificate was issued by MMRDA to the Adarsh Society on 16/9/2010. The petitioner thereupon obtained a copy of the same from MMRDA and made arrangement for shifting to the said flat. While he was planning to shift to the said flat, the MMRDA revoked the Occupation Certificate by letter dated 30/10/2010. The BEST issued notice dated 31/10/2010 threatening to disconnect the electricity connection supplied to the Adarsh Society for its building upon expiry of 24 hours from the date of the notice. Pursuant to the said notice, the electricity has been cut off. The petitioner AJN 05-OS-WP32.11 4 is aggrieved by the disconnection of electricity and, hence, he has filed this petition. The petitioner has prayed for quashing and setting aside of notice dated 31/10/2010. He has also prayed for a writ of mandamus directing respondents 2 to 4 to forthwith supply electricity to the Adarsh Society. 4. We have heard Mr. Dwarkadas, learned senior counsel appearing for the petitioner. He submitted that the petitioner has retired from Indian Army. He has sold his property in Noida and also his flat situated at Pune. He has put all his life's savings in the flat situated in Adarsh Society. Counsel submitted that bonafide believing that the allotment of Government land is permissible to the Adarsh Society by virtue of Government Resolution dated 9/7/1999, the petitioner invested his money in the said flat. Disconnection of the electric supply is causing great hardship to the petitioner. Counsel submitted that on account of disconnection of electricity, the lift is not operating. It is not possible for the petitioner to visit his AJN 05-OS-WP32.11 5 flat even for maintaining it. If the electricity supply is not restored, the petitioner's flat and, in fact, the entire building, would become dilapidated for want of maintenance. Counsel submitted that right to life enshrined in Article 21 of the Constitution of India includes the right to live with dignity and in reasonable comfort. Counsel submitted that this right would include right to have supply of electricity provided of course the petitioner is prepared to pay the necessary charges. Counsel drew our attention to Section 43 of the Electricity Act, 2003 which states that every distribution licencee shall, on an application by the owner or occupier of any premises, give supply of electricity to such premises within one month after receipt of the application requiring such supply. Counsel submitted that being owner of the said flat, he is entitled to have supply of electricity. In this connection, counsel drew our attention to the judgment of the Calcutta High Court in Amarendra Singh v. Calcutta Electric Supply Corporation Limited & Ors. AIR 2008 Calcutta 66. Counsel also relied on the AJN 05-OS-WP32.11 6 judgment of the Calcutta High Court in Santosh Jaiswal v. CESC Limited & Ors., 2008(4) Calcutta High Court Notes (CHN) 630. Counsel submitted that these judgments lay down that the legality and validity of the occupation of premises in question can be decided by the civil court. However, an objection regarding the legality and validity of the occupation of premises will not prevent the occupier from enjoying the benefit of electric connection. Counsel submitted that in Amarendra Singh, the Calcutta High Court has relied on judgment of the Supreme Court in Chameli Singh v. State of U.P., AIR 1996 SC 1051 wherein it is observed that right to life includes the right to live with human dignity and right to live guaranteed in any civilised society implies the right to shelter and the same includes electricity which is undisputedly an essential service to the shelter for a human being. Counsel submitted that disconnection of electricity is in clear violation of the petitioner's right to life guaranteed under Article 21 of the Constitution of India. Counsel submitted that, therefore, the impugned AJN 05-OS-WP32.11 7 notice be set aside and the electricity be directed to be restored forthwith. 5. Mr. Toor, learned counsel for the BEST on the other hand drew our attention to the affidavit of Mr. U.Y. Vajandar, the Divisional Engineer of the BEST. He submitted that since the Occupation Certificate of the Adarsh Society has been revoked by the MMRDA, Adarsh Society as well as the petitioner is not entitled to supply of electricity. He submitted that on account of absence or revocation of the Occupation Certificate, the flat purchasers cannot occupy their flats in Adarsh Society building. The electricity supply is liable to be disconnected and has rightly been disconnected. 6. By a series of judgments, the Supreme Court has widened the scope of Article 21 of the Constitution so as to ensure that the right to life, which is a basic human right, is made meaningful. In Chameli Singh, the State of U.P. had acquired the property for public purpose viz. to AJN 05-OS-WP32.11 8 provide houses for weaker sections by applying urgency clause. The Supreme Court was considering whether the Government would be justified in dispensing with the inquiry under Section 5A of the Land Acquisition Act. The challenge to the acquisition was raised by the owner of the land, which was to be acquired. The Supreme Court dismissed the appeal and upheld the invocation of urgency clause, inter alia, because the land was to be acquired for giving shelter to weaker sections and, it was the constitutional duty of the State to provide houses to the poor. It is in this context that the Supreme Court considered the scope of Article 21 of the Constitution of India and observed that right to live implies right to shelter and right to shelter includes adequate living space, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities like roads etc. so as to have easy access to a person's daily avocation. AJN 05-OS-WP32.11 9 7. Thus, the Supreme Court laid stress on the fundamental right of weaker sections to shelter with reasonable comforts such as availability of air, water, electricity, etc. The Supreme Court reminded the State of its duty to provide shelter to weaker sections and observed that the shelter should have amenities like electricity, water, etc. to make their right to life meaningful. These amenities would obviously be made available to the people who are put in occupation of the premises. By no stretch of imagination, can the observations of the Supreme Court in this case, be made applicable to the present case. The petitioner herein cannot be equated with the weaker sections for whose benefit land was being acquired by the U.P. Government. He is not in actual possession of the said flat and as of today, he cannot legally take possession of the said flat because there is no occupation certificate. 8. In our opinion, the petitioner's case also cannot be equated with the case of the appellant in Amarendra AJN 05-OS-WP32.11 10 Singh or the case of the petitioner in Santosh Jaiswal. In Amarendra Singh, the Calcutta High Court was considering Section 43 of the Electricity Act, 2003, which enjoins a duty upon the distribution licencee to make electricity supply available to any premises if an application of the owner or occupier of such premises is received subject of course to his agreeing to pay the necessary charges, as may be determined by the Appropriate Commission. In that case, the appellant therein was in occupation of the premises. The Kolkatta Municipal Corporation had recovered rent from the appellant accepting him as an occupier. Though, he was occupying the premises for a considerable period neither any objection was ever raised nor any proceeding was initiated at the instance of Kolkatta Municipal Corporation against the appellant challenging his authority to occupy the said premises. The Calcutta High Court referred to Section 43 of the Electricity Act, 2003 and relying upon the judgment of the Supreme Court in Chameli Singh, held that the legality and validity of the occupation of the AJN 05-OS-WP32.11 11 premises in question by the appellant can be decided by the civil court but that will not prevent the appellant from enjoying the electricity connection. In this case, admittedly, the petitioner is not in possession and occupation of his flat. Undoubtedly, the electricity is an essential service for a human being but since the petitioner is not in possession of the premises, there is no question of depriving him of any essential service. 9. Similarly, in Santosh Jaiswal, the petitioner therein was in occupation of the premises in question and he had substantiated his occupation by annexing the telephone bills and voter's identity card to his application. Against this background, the Calcutta High Court held that it cannot loose sight of the fact that a person intending to enjoy electricity though alleged to be a trespasser by the owner of the premises cannot be evicted by the owner except by taking recourse to law. It was further observed that if possession of such trespasser is protected till such time his eviction is ordered according to law, it defies AJN 05-OS-WP32.11 12 reason as to why an embargo should be created by judicial verdict only in respect of obtaining supply of electricity. Thus, the petitioner therein was stated to be a trespasser. Since the petitioner was in possession, the Calcutta High Court observed that right to live a meaningful life and with dignity is one of the basic postulates of Article 21 of the Constitution and supply of electricity to such a trespasser would neither prejudice in any manner the owner's right to have an order of eviction passed against him nor would it make any difference so far as status of the alleged trespasser is concerned. Both in Amarendra Singh and Santosh Jaiswal, the person was in occupation of the premises and his title was disputed. 10. It cannot be gainsaid that occupation certificate is necessary before a person occupies the premises. The distribution licencees cannot in law supply electricity to a building or to a flat which does not have Occupation Certificate. This is not a case where a person is in AJN 05-OS-WP32.11 13 occupation of premises and there is a dispute as regards title to the same. This is a case where there is no occupation certificate and the flat is not occupied by the petitioner. In fact, the petitioner has admitted in the petition that he was planning to shift to his flat in the Adarsh Society. We may mention that while rejecting ad- interim relief, Division Bench of this court in its order dated 23/12/2010 has observed that when the court officer visited the Adarsh building, no persons were found in occupation. His case, therefore, stands entirely on a different footing. No parallel can be drawn from the cases where a person is in possession and his title to the premises is disputed. 11. In view of the above, in our opinion, no mandatory direction can be given to the BEST to supply electricity to the petitioner's flat or to the Adarsh Society. The petition is dismissed. [MRS. RANJANA DESAI, J.] [R.G. KETKAR, J.]