# Smt. Husna Bano v. State of U.P. & Ors

- **Citation:** (2019) 2 ILRA 1571
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-13
- **Case number:** Writ C- No. 26569 of 2019
- **Bench:** Ramesh Sinha, Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-husna-bano-v-state-of-u-p-ors-44606
- **Pages:** 5

## Headnote

A. UP Electricity Supply Code, 2005 -
Electricity connection - Grant of electricity
connection is in the nature of basic need
today - Legislature is intended to frame
rules in manner that such connections to
tenant or occupiers are not denied - No
reason to refuse electricity connection in
the absence of NOC of landlord - Writ
Petition allowed. (Para 5 & 6)

B.
Indemnity
Bond
-
Importance
-
Indemnity bond does not become a
document of title - Electricity connection
granted under Indemnity Bond is protected
by way of declaration given by person
seeking electricity connection. (Para 6)

Held -

## Text

2 All. Smt. Husna Bano Vs State of U.P. & Ors.
1571

44. Admittedly, in this case, the
petitioner has not come up with a plea that
they have been granted exemption by the
State Government. Once that is not the case,
it goes without saying that the petitioner has
not offered any evidence to substantiate
such a case. The conclusion is, therefore,
inescapable that the petitioner is an
establishment/ part of an establishment, to
which the Act applies. The Act is in no way
excluded by operation of Section 9, or any
other provisions of the Act of 1972. Also,
the petitioner is not an establishment/ part of
establishment, that has been exempted
under Section 5 of the Act.

45. In view of these findings, the
order impugned cannot be held to be
vitiated for want of jurisdiction in the
Authority. The order, otherwise also, is in
no way manifestly illegal or unjust. It,
thus, calls for no interference under
Article 226 of the Constitution.

46. In the result, the petition fails
and is dismissed with costs.

47. Interim order dated 01.12.2009
is hereby vacated.

Order on WRIT - C No. - 9831 of 2019

48. In view of the orders passed in Writ
- C No.62286 of 2009 (District Basic
Education Officer vs. Niyantrak Pradhikari
Anutoshik Bhugtan Adhiniyam, 1972 And
Another), no orders are required to be passed
in this writ petition, which stand consigned to
the Record subject, of course, to liberty to the
petitioner of this writ petition, to come up
again, should that necessity arise.

49. There shall be no order as
to costs.

50. Let this order be communicated by
the office forthwith to the Controlling
Authority, Payment of Gratuity Act, 1972cum-Assistant Labour Commissioner, U.P.,
Kanpur Region, Kanpur.
----------

(2019)10ILR A 1571

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.08.2019

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE AJIT KUMAR, J.

Writ C- No. 26569 of 2019

Smt. Husna Bano ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Muktesh Kumar Singh.

Counsel for the Respondents:
C.S.C., Sri Baleshwar Chaturvedi.

A. UP Electricity Supply Code, 2005 -
Electricity connection - Grant of electricity
connection is in the nature of basic need
today - Legislature is intended to frame
rules in manner that such connections to
tenant or occupiers are not denied - No
reason to refuse electricity connection in
the absence of NOC of landlord - Writ
Petition allowed. (Para 5 & 6)

B.
Indemnity
Bond
-
Importance
-
Indemnity bond does not become a
document of title - Electricity connection
granted under Indemnity Bond is protected
by way of declaration given by person
seeking electricity connection. (Para 6)

Held -
6. In our considered opinion the Indemnity
Bond does not become a document of title and
1572 INDIAN LAW REPORTS ALLAHABAD SERIES
declaration in the said bond to the effect that
petitioner is lessee or otherwise in occupation
in a proof of his possession. As we have
already discussed herein above in
this
judgment that the petitioner is residing in the
capacity of tenant and she has taken plea in
the civil suit as well as taken plea by way of
Indemnity Bond that she has filed, we find no
reason for the electricity department not to
grant electricity connection. The electricity
connection granted under the Indemnity Bond
are clearly protected by way of declaration
given by the persons seeking electricity
connection. Moreover, grant of electricity
connection does not bar an eviction suit by the
landlord. Therefore, we find no reason for the
electricity department or the concerned officer
to refuse electricity connection on the ground
that the landlord has come up with an
application that the electricity connection
should not be given in the absence of no
objection certificate.

C. Eviction suit - Bar - Grant of electricity
connection does not bar an eviction suit
by the landlord. (Para 6)

D. Electricity Act, 2003 - S. 43 (1) - Right
to get electricity supply - Provision of S.
43(1) caste an affirmative obligation on
the
distribution
licencee
to
supply
electricity on an application being moved
by owner or occupier - It is a statutory
right to apply for and obtain supply of
electricity. (Para 7)

Writ Petition allowed (E-1)

Case Relied On:-
1. Gaurav Sharma Vs St. of U.P. & ors. (Writ-C
No.8396 of 2018 dated 18.9.2018)
2. Smt. Sushama Chowdhary Vs U.P. Power
Corp. Ltd. & ors. (Misc. Bench No. 9588 of
2014 dated 24.09.2014)

(Delivered by Hon'ble Ramesh Sinha, J.
Hon'ble Ajit Kumar, J.)

1. Heard Sri Muktesh Kumar Singh,
learned counsel for the petitioner, Sri
Baleshwar Chaturvedi, learned Counsel
for the respondent nos.3, 4 and 5, learned
Standing Counsel for respondent nos.1
and 2 and perused the record.

2. The petitioner by means of the
present petition, has prayed for quashing
the impugned order dated 28.06.2019
passed by respondent no.5 whereby
certain more information has been sought
from
the
petitioner
regarding
her
possession over the property in question
as electricity connection is being sought
by the petitioner.

3. The controversy has arisen on
account
of
landlord
tenant
dispute
between the petitioner and respondent
nos.5 to 10 on account of death of the
main land-lady Rubiya Begam, w/o
Azeemullah. The facts as have pleaded in
the present writ petition are that on
account of dispute of succession amongst
the heirs who are respondent nos.6 to 10
here in this petition, the petitioner has
been under serious threat of eviction in an
unauthorized way from the premises in
question. Since she was a tenant for
Rs.200/-
per
month
for
the
accommodation let out to her by late
Rubiya Begam and the petitioner has
Rashan Card and permanent Adhar Card
issued on the said address, she instituted a
suit for permanent injunction bearing O.S.
No.294/2019 which is pending in the
court of Civil Judge (Junior Division),
Aligarh. However, during the pendency of
the said suit, respondents got electricity
connection in the name of Rubiya Begam
cancelled. This led the petitioner to apply
for fresh electricity connection to her
accommodation.
She
also
submitted
Indemnity Bond as per annexure 4.2 of
the U.P. Electricity Supply Code, 2005,
dated 25.6.2019 but instead of granting
2 All. Smt. Husna Bano Vs State of U.P. & Ors.
1573
the electricity connection, she has been
further
directed
to
supply
further
documents of proof of possession. The
notice dated 28.6.2019 does refer to
certain documents like Rashan Card and
Adhar Card supplied by the petitioner,
however, in spite of that, the petitioner
submits, she has been denied electricity
connection because of the letter by the
heirs of the earlier land-lady that no fresh
connection be given without NOC of
landlord being produced. Thus upon the
said letter, the Executive Officer passed
order dated 1.7.2019 refusing the fresh
electricity connection to the petitioner.

4. The argument advanced by
learned counsel for the petitioner is that
the petitioner has filed Rashan Card and
Adhar Card which themselves are proof
of her possession over the premises in
question and it is further submitted that
since after the death of land-lady, her
successors refused to accept the rent, she
could not produce the rent receipt. It is
further submitted that Indemnity Bond as
required Annexure 4.2 of the Electricity
Supply Code, 2005 is meant for such
purposes where electricity connection are
being sought by the tenant and NOC is
not given by its landlord.

5. We have examined the relevant
provisions of U.P. Electricity Supply
Code, 2005 for the purposes of grant of
electricity connection and we appreciate
that annexure 4.2 is in respect of an
intending consumer who is not owner of
the premises. We however find that a
person who has obtained Rashan Card and
Adhar Card issued way back in the year
2016-17 is having sufficient proof at valid
possession for the limited purposes i.e.
grant of electricity connection. Besides
above, the fact of suit for injunction being
going on between the parties, at the
instance of respondent is sufficient fact
further to demonstrate that the premises in
question is in possession of the petitioner
and she is under threat of being evicted
without due process of law. Providing
basic necessity is the duty of the State as
the electricity in modern times is basic
necessity more especially when persons
are residing in semi urban and urban
areas. In most of the cases where there is
dispute between the landlord and the
tenant, the landlord can never issue no
objection certificate as he intends to evict
his tenant and disconnection of electricity
becomes an effective tool to engineer
eviction forcefully. Further there are large
number of cases where still rent is being
paid in cash so there is no possibility of a
tenant having rent receipt. In such
circumstances the question of possession
whether in the capacity of tenant or
otherwise becomes a question of fact to
be determined by the court competent
enough for the said purposes. The grant of
electricity connection, since it is in the
nature of basic need today, the legislature
has intended to frame rules in such
manner that such connections to tenants
or occupiers are not denied and that is
why annexure 4.2 has been prescribed for
as Indemnity Bond.

6. In our considered opinion the
Indemnity Bond does not become a
document of title and declaration in the
said bond to the effect that petitioner is
lessee or otherwise in occupation in a
proof of his possession. As we have
already discussed herein above in this
judgement that the petitioner is residing in
the capacity of tenant and she has taken
plea in the civil suit as well as taken plea
by way of Indemnity Bond that she has
filed, we find no reason for the electricity
1574 INDIAN LAW REPORTS ALLAHABAD SERIES
department
not
to
grant
electricity
connection. The electricity connection
granted under the Indemnity Bond are
clearly protected by way of declaration
given by the persons seeking electricity
connection. Moreover, grant of electricity
connection does not bar an eviction suit
by the landlord. Therefore, we find no
reason for the electricity department or
the concerned officer to refuse electricity
connection on the ground that the landlord
has come up with an application that the
electricity connection should not be given
in the absence of no objection certificate.

7. We find support in respect of our
above view in the judgement of Division
Bench of this Court in the case of Gaurav
Sharma Vs. State of U.P. and others
(Writ-C
No.8396
of
2018
dated
18.9.2018) vide paragraph no.9 of the
judgement (supra) the Division Bench has
held thus:-

Further, Misc. Bench No. 9588
of 2014, Smt. Sushama Chowdhary v.
U.P. Power Corporation Ltd. & 4
others
decided
on
24.09.2014
a
concurrent Bench of this Court has relied
upon a judgment of Supreme Court in
AIR 2011 SC 2897 Chandu Khamaru v.
Smt. Nayan Malik, wherein, Supreme
Court has come to interpret sub-Section
(1) of Section 41 and has held that in case
of family dispute, the Electricity Act takes
full care for grant of electricity connection
and it ensures that nobody is deprived of
electricity connection only on account of
internal family dispute. The Division
Bench in Sushama Chowdhary (supra)
held thus:

"Section 43 (1) of the Electricity
Act, 20031 provides that save and
otherwise provided in the Act, every
distribution
licensee
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 an application requiring such
supply. Section 43 (1) of the Act of 2003
casts an affirmative obligation on the
distribution licensee to supply electricity
on an application being moved by the
owner or occupier. A corresponding
entitlement or right is conferred by the
statute on the owner or occupier to
require a supply of electricity. This legal
position is not in doubt. In Chandu
Khamaru v. Smt. Nayan Malik2, the
Supreme Court, while interpreting the
provisions of Section 43 (1) of the Act of
2003, observed as follows:

"Sub-section (1) of Section 43
provides that every distribution licensee,
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. These provisions in
the Electricity Act, 2003 make it amply
clear that a distribution licensee has a
statutory duty to supply electricity to an
owner or occupier of any premises
located in the area of supply of electricity
of the distribution licensee, if such owner
or occupier of the premises applies for it,
and correspondingly every owner or
occupier of any premises has a statutory
right to apply for and obtain such electric
supply from the distribution licensee."

Again, in a subsequent part of
the aforesaid decision, the Supreme Court
emphasized the statutory right of an
occupier and the corresponding statutory
obligation on the distribution licensee to
supply electricity. The Supreme Court
observed as under:

"...The appellant has a statutory
right to apply for and obtain supply of
electricity from the distribution licensee
2 All. Tarun Kumar Srivastava Vs Gur Bux Singh & Ors.
1575
and the distribution licensee has a
corresponding statutory obligation to
supply electricity to the appellant."

We find merit in the contention
of the petitioner that the impugned order
dated 2 August 2014 contains no reason
for the denial of electric supply, save and
except for making a reference to the
provisions of Clause 4.4 of the Electricity
Supply Code-20053. Clause 4.4 of the
Code-2005 is in aid of the statutory duty
cast by Section 43 of the Act of 2003.

As
a
matter
of
fact,
an
Indemnity Bond, a proforma of which is
contained in Annexure 4.2 of the Code2005, deals with a situation where an
occupier of the premises applies for the
grant of an electricity connection, but is
unable to produce the consent of the
owner. Obviously, in a situation, where a
dispute is between the owner and
occupier (in the present case, the dispute
is between members of a family), a
provision has been made for furnishing an
Indemnity Bond. The record would, in
fact, indicate that on 21 July 2014, the
petitioner had furnished an Indemnity
Bond, describing herself as an occupier of
the premises and said that she was unable
to obtain the consent of the owner in view
of the pendency of the litigation before the
Court.
Despite
this,
the
Executive
Engineer has acted in breach of the
statutory obligation, which is cast on a
distribution licensee to provide supply of
electricity. The impugned order reveals a
total non-application of mind and an
unawareness of the obligation, which is
cast by Section 43 of the Act of 2003 on
the distribution licensee.

8. In view of the above, we are not
able to sustain the order dated 1.7.2019
and accordingly we hereby set-aside the
same. The matter is remitted to the
authority competent to grant electricity
connection and to consider the application
of the petitioner on the basis of Indemnity
Bond filed and the Rashan Card and the
Adhar Card produced before it. Necessary
positive orders and direction for providing
electricity connection shall be passed, if
otherwise there is no legal impediment,
within a period of two weeks from the date
of production of certified copy of this order.

9. The petition stands allowed as
indicated above.
----------

(2019)10ILR A 1575

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.10.2019

BEFORE

THE HON'BLE MANISH MATHUR, J.

Misc. Single No.- 22407 of 2019

Tarun Kumar Srivastava ...Petitioner
Versus
Gur Bux Singh & Ors. Respondents

Counsel for the Petitioner:
Shriya Saxena, Sri Utkarsh Srivastava.

Counsel for the Respondents:
--------

Code of Civil Procedure, 1908- Order XLI
Rule 27-Petitioner's application under Order
41 Rule 27 C.P.C. was allowed by appellate
court permitting to bring on record the
proceedings and judgment pertaining to
Regular Suit No.222/2002-consequentially an
application for amendment of memorandum of
appeal was filed- rejected- on the ground that
it would delay proceedings-cannot be a valid
or cogent ground for rejection-overlooking the
necessity of incorporating it in the interest of
justice.