SCA/11451/2007 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 11451 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= BHIKHABHAI DAHYABHAI SAVALIYA - Petitioner(s) Versus PASCHIM GUJARAT VIJ CO.LTD. - Respondent(s) ========================================================= Appearance : HL PATEL ADVOCATES for Petitioner(s) : 1, MS LILU K BHAYA for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 18/07/2008 ORAL JUDGMENT 1. Rule. Ms.Bhaya waives notice of Rule for respondent. The matter is finally heard today. SCA/11451/2007 2/7 JUDGMENT 2. The short facts of the case appears to be that, as per the petitioner, there was joint agricultural land held by him and his father, however, the partition had taken place in the year 1990 and since then, he is holding a separate parcel of land bearing Survey No. 210/1/P-2 admeasuring 4 Acre and 32 Guntha. It appears that in the year 2000, the respondent Board conducted the raid and it was found that the father of the petitioner had unauthorisedly extracted electricity and therefore, the Rojkam was undertaken and the bill was also issued for recovery of the amount for unauthorised use of the electricity. The said bill amounted to Rs.1,56,446.65 Ps. 3. As per the petitioner, he has constructed another bore in the year 2003 over the parcel of the land belonging to him and he wanted supply of the electricity over the said bore. The said application has been rejected and it was also communicated to the Deputy Engineer of the Board, which is now Electricity Company, that he has nothing to do with the outstanding amount of the electricity due of his father and is staying separately and therefore, the electricity connection may be granted to him. Vide letter dated 20.04.2007, copy whereof is produced at Annexure-A, the petitioner was informed that as the father of the petitioner viz. Dahyabhai Ratnabhai Savaliya was found in theft of SCA/11451/2007 3/7 JUDGMENT electricity and the amount is outstanding of Rs.1,56,446.65 Ps and as the said bill is not paid, there is liability of the petitioner as the legal heir of his father and therefore, as per the prevailing Rules, the electricity connection cannot be granted to him. It is under these circumstances, the petitioner has approached to this Court by way of the present petition. 4. Heard Mr.Pandya appearing for the petitioner and Ms.Bhaya for the respondent Electricity Company. 5. There cannot be any dispute on the aspects that if the amount is outstanding of the electricity dues, the very person cannot be granted electricity supply afresh. Further, even if the electricity supply is applied by the another person on the very property, then also, until the outstanding dues are paid, the Electricity Company may be justified in insisting for prior payment of the outstanding dues and consideration of the application for fresh supply thereafter. 6. However, merely because the father of the petitioner was found in electricity theft case or any amount is outstanding from the father of the petitioner, would not be a justifiable ground to reject the application for electricity supply, which has been applied by the son. The reason being that the father and son if adult, SCA/11451/2007 4/7 JUDGMENT are both separate legal entity. Such may be insisted only if the son has applied for electricity connection over the very property where earlier the supply was in existence or it may be a theft case of electricity. It appears from the impugned communication at Annexure-A that the application has been rejected on the ground that there is the liability to pay the outstanding amount of the father by the petitioner in the capacity as the son and therefore, it has been rejected. Such an approach on the part of the Electricity Company cannot be accepted as valid unless it is with the established circumstances that either the son has inherited the very property over which the electricity supply is applied afresh or the connection is applied afresh over the very property of the father, which was earlier in possession of the father and now in the possession of the son. 7. If the properties are partitioned much prior to incident of 05.07.2000 and merely because there is no demarcation between the boundaries for the division of the agricultural land would not be a sufficient ground to decline fresh electricity connection. In a given case, though the land may have only one survey number, but if the parcels of the land are distinguishable and can be identified by separate ownership, it would be a separate property for all purposes including SCA/11451/2007 5/7 JUDGMENT for getting separate electricity connection. 8. The aforesaid is coupled with the circumstance that as per the petitioner, the new bore is constructed in the year 2003 only, i.e. after the incident dated 05.07.2000. The learned counsel for the respondent Electricity Company contended that as per the Rojkam, the land was marked and sketch was prepared and in her submission, the sketch shows that there was only one bore in the agricultural land held by the father of the petitioner and at that time, brother of the petitioner, one Goganbhai Dahyabhai Savaliya had signed. It was therefore submitted that the adjacent land in the said sketch is shown as that of Durlabhji Naranbhai and under these circumstances, the contention of the respondent Electricity Company is that fresh electricity connection is applied on the very bore which was already in existence on 05.07.2000 when the search had taken place and it was therefore submitted that the connection has been declined on such ground. 9. It appears that in the impugned decision dated 20.04.2007, there is no reference for such Rojkam or the ground which is sought to be canvassed. Even if such aspect is in existence and considered, it appears from the Rojkam that only one portion of the parcel of the land is shown in the sketch without verifying with the revenue record or without considering the inter SCA/11451/2007 6/7 JUDGMENT se division of the petitioner, his father and his brother. If in the revenue record, the land is divided into various parcels and entry is mutated for such purpose, it is required to be considered as separate property for utilisation of the electricity connection and also for fresh electricity supply. 10.There is no material produced on record which may go to show that the sketch of the land in which the bore was found belonged to very survey number held by the petitioner or his father or his brother. Suffice it to state that one who was holding the property or that particular parcel of land can be held answerable and responsible for the dues of the electricity and not the brother or the son who may be holding separate property. 11.It appears that the respondent Electricity Company has not examined the aforesaid aspects and has declined the connection of electricity on the ground that there is liability of the petitioner to pay as the legal heir of his father. Such an approach on the part of the respondent Electricity company to decline the electric connection to the son who is the petitioner herein without verifying the exact location of the property or the parcel of a particular agricultural land, cannot be sustained in the eye of law. It will be required SCA/11451/2007 7/7 JUDGMENT for the concerned officer of the Electricity Company to reconsider the matter in light of the observations made hereinabove and to take appropriate decision. 12.In the result, the impugned order dated 20.04.2007 is quashed and set aside with the direction that the concerned officer of the Electricity Company shall reconsider the matter in light of the observations made hereinabove and shall take appropriate decision as early as possible, preferably within a period of three months from the receipt of the order of this Court. It would be open to the petitioner to produce the evidence in support of his claim as permissible in law. 13.Petition is partly allowed to the aforesaid extent. Rule made absolute accordingly. D.S. (JAYANT PATEL, J.) *bjoy