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Prabhudas Hiralal Rathod Vs. City Deputy Collector and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Judge
Reported in(1984)2GLR823
AppellantPrabhudas Hiralal Rathod
RespondentCity Deputy Collector and ors.
Excerpt:
.....convincing evidence that the petitioner has no right to stay, the collector, if he is so satisfied may grant permission to obtain a separate connection. 6. in view of the fact that the petitioner has been staying in the said premises for a long time and in view of the fact that even the collector has come to the conclusion that the electric supply was initially granted and subsequently discontinued, coupled with the fact that the petitioner had asked for consent of the landlord and the said consent was refused, it appears that the learned city deputy collector was clearly in an error in compelling the petitioner to approach the competent court under section 24(2) of the bombay rent control act......of being heard, permit the tenant to get the supply in accordance with the scheme set out in the tenant's application or in accordance with any modified scheme.(3) on such permission being given, notwithstanding anything 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 and the licensee shall not be liable to the owner for trespass for steps taken for supply of electricity according to the said permission.5. the plain reading of the above section clearly indicates that the collector while deciding the rival contentions between the parties under section 23a has not to give his final opinion as to whether the petitioner is a tenant.....
Judgment:

D.C. Gheewala, J.

1. The present petition which has been filed under Article 227 of the Constitution of India, is directed against the order of the City Deputy Collector, Ahmedabad, in C. D. C. Electric Case No. 64 of 1981. The present petitioner filed an application under Section 23A of the Bombay Rent Control Act and alleged that he was the lawful tenant of the premises under his occupation belonging to the respondent No. 3. He had applied for an independent electric connection but as the respondent No. 3 did not give his consent thereto, he gave an application under Section 23A of the Bombay Rent Act to the City Deputy Collector. The City Deputy Collector after hearing the parties came to the conclusion that as the disputes between the parties are pending in the Small Cause Court and as it is the allegation of the respondent that the petitioner is a trespasser, no application under Section 23A would be tenable. According to the learned City Deputy Collector, if the electricity supply was discontinued, the petitioner could have approached the Court under Section 24(2) of the Rent Act, for restoration of the essential supplies. The petitioner has filed an application under Section 24(2) which is yet not decided.

2. As the learned City Deputy Collector rejected the prayer of the petitioner, the petitioner has approached this Court under Article 227 of the Constitution of India.

3. Mr. Upadhyay, the learned Advocate appearing for the petitioner urged that on the record of the case numerous documents were produced by the petitioner showing that he was a tenant of the said premises for number of years. Initially his father was inducted in the said premises as tenant and while no separate rent receipts are produced by him for the entire period, it appears that the respondents had given such receipts in a diary book maintained by the father of the petitioner. The xerox copies whereof are produced on the record of the case. The said diary is produced in some other litigation pending between the parties. While the said receipts purported to have been given by the respondent No. 3 to the father of the petitioner cannot be said to have been proved under the rules of evidence, the respondents have not challenged the said document as being spurious and their contention was that the petitioner is a trespasser.

4. Section 23A of the Bombay Rent Control Act reads as under:

23A. (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 and the owner of the premises does not give his consent therefore the tenant may apply to the Collector setting out the scheme for such supply.

(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 set out in the tenant's application or in accordance with any modified scheme.

(3) On such permission being given, notwithstanding anything 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 and the licensee shall not be liable to the owner for trespass for steps taken for supply of electricity according to the said permission.

5. The plain reading of the above section clearly indicates that the Collector while deciding the rival contentions between the parties under Section 23A has not to give his final opinion as to whether the petitioner is a tenant or not, but if there is a prima facie evidence to indicate that the petitioner is a tenant he may accord such permission and in that case such permission shall tentamount to the landlord having given consent to the supply of electricity to the tenant. Merely because the Collector accords sanction to the electric connection being obtained by the tenant that finding can never operate as a bar for the landlord to agitate before the competent court that the person so given that electric connection is not a tenant. Under the circumstances, while dealing with such application under Section 23A, the Collector only has to satisfy himself as to whether the applicant before him is residing in the said premises or not, and unless it is established by the other party namely, the landlord, by convincing evidence that the petitioner has no right to stay, the Collector, if he is so satisfied may grant permission to obtain a separate connection.

6. In view of the fact that the petitioner has been staying in the said premises for a long time and in view of the fact that even the Collector has come to the conclusion that the electric supply was initially granted and subsequently discontinued, coupled with the fact that the petitioner had asked for consent of the landlord and the said consent was refused, it appears that the learned City Deputy Collector was clearly in an error in compelling the petitioner to approach the competent court under Section 24(2) of the Bombay Rent Control Act. That may be an alternative remedy available to him. But all the same when there was sufficient material on the record of the case, prima facie proving that the petitioner was a tenant in the said premises, such permission could not have. been refused. The reason for the above conclusion is apparent.

7. In any case of dispute between the landlord and tenant, the landlord might aver that the person so occupying the premises is a trespasser and civil litigation as it is notoriously procrastinated he may compel the tenant to go without electricity supply for an inordinately long time in the pious hope that the tenant may vacate the premises. That situation would run counter to the scheme and object of the Rent Act. Merely because such permission is granted under Section 23A, the rights and contentions of the landlord before the Civil Court are in no way jeopardized. Hence, the petition is allowed and the order of the learned City Deputy Collector is hereby quashed.

8. A writ to issue to respondent No. 4 directing it to give new electric to the petitioner on completing necessary formalities and on depositing necessary charges, and as per his turn and while repeating it may be redundant it is made specifically clear that merely because the said electric connection is granted to the petitioner, it will not prejudiciously affect the other rights and contentions which may be available to the respondent No. 3 in any other proceedings pending before the Civil Court or any prospective litigation. Rule made absolute to the above extent. There shall be no order as to costs.


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