Rs.No.1238 of 2014 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.1238 of 2014 (O&M) Date of Decision: May 06, 2014 Sukhwinder Singh ..Appellant Versus Raj Kaur and another ..Respondents CORAM: HON'BLE Mr.JUSTICE PARAMJEET SINGH1 Whether Reporters of the local papers may be allowed to see the judgment?.
2) To be referred to the Reporters or not?.
3) Whether the judgment should be reported in the Digest?.
Present: Mr.S.K.
Arora, Advocate, for the appellant.
Paramjeet Singh, J.
Instant regular second appeal has been preferred by the appellant-defendant no.1 against the judgment and decree dated 20.12.2011 passed by learned Civil Judge (Junior Division).Ferozepur whereby suit for permanent injunction filed by the respondent no.1- plaintiff has been decreed and respondent no.2/defendant no.2 has been directed to transfer the electric connection in dispute in favour of the plaintiff by making necessary changes/formalities in their record and resultantly defendants are restrained from alienating the electric connection in dispute to anybody else except plaintiff, as well as, against the judgment and decree dated 18.12.2013 passed by learned Additional Kumar Virender 2014.05.19 14:03 I attest to the accuracy and integrity of this document Rs.No.1238 of 2014 (O&M) 2 District Judge, Ferozepur whereby appeal preferred by the appellant/defendant no.1 has been dismissed.
For convenience sake, hereinafter parties will be referred to as they are arrayed in the Court of fiRs.instance.
The detailed facts are already recapitulated in the judgments of the Courts below and are not required to be reproduced.
However, brief facts relevant for disposal of this second appeal are that plaintiff filed a suit for permanent injunction restraining the defendants from alienating in any manner or transferring the electric connection No.R.E.-4-2701 now changed to 492 installed in khaSr.No.20M/23, situated in the area of Village Phullar Wan, Tehsil Ferozepur and in the alternative for mandatory injunction directing the defendants for making the necessary changes in the record of defendant no.2 as it existed prior to 11/97 and to incorporate the name of the plaintiff in place of defendant no.1.
It was pleaded that originally Mehtab Singh, resident of Village Phullar Wan, Tehsil Ferozepur was owner of agricultural lands situated in Village Phullar Wan.
He got installed an electric connection in his agricultural lands in that village under Account No.RE-4-2701 which stands changed to 492 from the office of defendant no.2.
After the death of Mehtab Singh, his lands devolved upon his sons Niranjan Singh and Tara Singh.
In a family settlement, Tara Singh surrendered the said electric connection in favour of his brother Niranjan Singh.
Said Niranjan Singh sold his lands measuring 26 kanals 19 marlas in favour of the plaintiff and delivered its actual cultivating possession to her along with the electric connection.
Kumar Virender 2014.05.19 14:03 I attest to the accuracy and integrity of this document Rs.No.1238 of 2014 (O&M) 3 Thus, the plaintiff became the exclusive owner in possession of the said land as well as the electric connection installed therein.
It was averred that defendant no.1 has no connection or concern with the above said electric connection.
It is alleged that Niranjan Singh has never executed any valid affidavit on 4.6.1990 in favour of Jagtar Singh, brother of defendant no.1 and the alleged affidavit is a false and fabricated document.
Similarly, plaintiff never executed any affidavit dated 10.05.1995 qua transfer of said electric connection in the name of Jagtar Singh as said Jagtar Singh never purchased the said connection from Niranjan Singh for a consideration of `30,000/- nor Niranjan Singh had any authority to sell the same.
Likewise, the alleged affidavit dated 20.11.1996 by Jagtar Singh in favour of his brother Sukhwinder Singh is also false and fabricated document and the same are ineffective upon the rights and title of the plaintiff to the said electric connection.
Defendant no.1 with a mala fide intention and in order to cause loss and harm to the rights of the plaintiff is openly asserting that he will alienate in any manner or will transfer the above said electric connection to some other person or will get the same transferred in the record of defendant no.2 from the original owner Mehtab Singh and his son Niranjan Singh.
Upon notice, defendants appeared and filed separate written statements.
Defendant no.1 in his written statement took various preliminary objections.
On merits, defendant no.1 admitted that connection No.2701 was originally in the name of Mehtab Singh but subsequently said connection was transferred in his name in the month of Kumar Virender 2014.05.19 14:03 I attest to the accuracy and integrity of this document Rs.No.1238 of 2014 (O&M) 4 November, 2007 and since then the said connection has been running in his name.
After the change of the connection in the name of defendant no.1, new connection No.P-4/492 was allotted to him.
It was further pleaded that as per family settlement, Tara Singh surrendered the said connection in favour of Naranjan Singh and thereafter Naranjan Singh has sold the connection in question and has executed an affidavit in favour of Jagtar Singh, brother of defendant no.1 to the effect that he has no objection if the connection is transferred to the name of Jagtar Singh.
It was further pleaded that plaintiff Raj Kaur herself got executed an affidavit on 10.05.1995 that she has got no objection if the connection is transferred in the name of Jagtar Singh and said Jagtar Singh has already purchased the connection from Naranjan Singh for consideration of `30,000/-.
Thereafter, Jagtar Singh by way of affidavit dated 20.11.2006 opted for the transfer of connection in the name of defendant no.1.
It was further pleaded that plaintiff herself executed an affidavit dated 08.10.1996 in favour of defendant no.1 in which she has admitted that she has no objection if the electric connection in question is transferred in the name of defendant no.1 and said affidavit has been duly attested by Notary Public.
Defendant no.1 was already in possession of the land measuring 26 kanals 9 marlas and has been cultivating the land in question on payment of the share of produce and on 07.01.2002, plaintiff executed an agreement to sell at the rate of `1,40,000/- per acre and received `2,75,000/- as earnest money from the defendant at the time of execution of agreement to sell in the presence of marginal witnesses.
Since the Kumar Virender 2014.05.19 14:03 I attest to the accuracy and integrity of this document Rs.No.1238 of 2014 (O&M) 5 execution of the agreement to sell, the defendant is in possession of the land in question under the part performance of the agreement to sell and on the stipulated date, plaintiff did not execute the sale deed in favour of defendant and defendant has filed suit for specific performance of the agreement to sell.
Defendant no.2 in its written statement took various preliminary objections that suit of the plaintiff is false, frivolous and vexatious, plaintiff has not come to the court with clean hands etc.It was pleaded that since the connection in question has been transferred in the name of defendant no.1 since long, the plaintiff has got no right, title or concern with the same.
On merits, it was averred that originally connection in dispute bearing No.RE-4/2701 was installed in the name of Mehtab Singh but later on said connection was transferred in the name of Sukhwinder Singh in the month of November 1997 after completing all the formalities for change of name, the connection has been running in the name of defendant no.1, who is making the payment of bills in respect of the said connection.
Other averments in the plaint were denied.
Plaintiff filed replication denying the averments in the written statements and reiterating the averments in the plaint.
On the basis of the pleadings of the parties, the Court of fiRs.instance framed the following issues:- “1.
Whether the plaintiff is owner in possession of the suit property as alleged?.
OPP Kumar Virender 2014.05.19 14:03 I attest to the accuracy and integrity of this document Rs.No.1238 of 2014 (O&M) 6 2.
Whether the plaintiff is entitled to permanent injunction as prayed for?.
OPP3 Whether the plaintiff is entitled to mandatory injunction as prayed for?.
OPP4 Whether the suit of the plaintiff is false and frivolous?.
OPD5 Whether the plaintiff has not come to the court with clean hands?.
OPD6 Whether the plaintiff is estopped by her own act and conduct from filing the present suit?.
OPD7 Whether this Court has got no jurisdiction to try the suit?.
OPD8 Relief.”
.
The Court of fiRs.instance after perusal of the evidence led by the parties decreed the suit vide judgment and decree dated 20.12.2011.
Against that, defendant no.1 preferred an appeal, which has been dismissed by the lower appellate Court vide judgment and decree dated 18.12.2013.
Hence, this second appeal.
I have heard learned counsel for the appellant and perused the record.
Learned counsel for the appellant has referred to the following substantial questions of law, as formulated in para no.11 of grounds of appeal:- “i) Whether the findings recorded by both the courts below are perveRs.and are based upon misreading of the oral and documentary evidence on the record and cannot be sustained in the eyes of law?.
ii) Whether in the facts and circumstances of the case, the judgments and decrees passed by both the Courts below are Kumar Virender 2014.05.19 14:03 I attest to the accuracy and integrity of this document Rs.No.1238 of 2014 (O&M) 7 legally unsustainable?.”.
Learned counsel for the appellant contended that findings recorded by both the Courts below are perveRs.and result of misreading of the evidence on record.
The electricity is not “good”.
which can be sold by Niranjan Singh to the plaintiff, rather it is a service.
As such, even if there is mention of selling the connection in question, the same is against the provisions of law.
Learned counsel further contended that since connection in question existed in the name of defendant no.1, therefore, the plaintiff has no right to get the electric connection transferred in her name.
I have considered the rival contentions of learned counsel for the appellant.
From the arguments of learned counsel for the appellant and pleadings of the parties, this Court is of the view that following substantial questions of law arise in the appeal which need consideration:- “i) Whether the electricity falls within the definition of “goods”.
and electricity connection allotted to a consumer can be further sold by him?.
ii) Whether connection in dispute stands sold by Niranjan Singh to the plaintiff vide registered sale deed dated 4.6.1990 and on that basis direction can be issued to the defendants to transfer it in the name of plaintiff?.”.
Before I consider the above substantial questions of law, it would be appropriate to reproduce sub-Sections (15).(20).(23).(39).(49) and (51) of Section 2 of the Electricity Act, 2003 which read as under: Kumar Virender 2014.05.19 14:03 I attest to the accuracy and integrity of this document Rs.No.1238 of 2014 (O&M) 8 “(15) “consumer”.
means any person who is supplied with electricity for his own use by a licensee or the Government or by any other person engaged in the business of supplying electricity to the public under this Act or any other law for the time being in force and includes any person whose premises are for the time being connected for the purpose of receiving electricity with the works of a licensee, the Government or such other person, as the case may be; (20) “electric line”.
means any line which is used for carrying electricity for any purpose and includes (a) any support for any such line, that is to say, any structure, tower, pole or other thing in, on, by or from which any such line is, or may be, supported, carried or suspended; and (b) any apparatus connected to any such line for the purpose of carrying electricity; (23) ''electricity”.
means electrical energy- (a) generated, transmitted, supplied or traded for any purpose; or (b) used for any purpose except the transmission of a message; (39) “licensee”.
means a person who has been granted a licence under Section 14; Kumar Virender 2014.05.19 14:03 I attest to the accuracy and integrity of this document Rs.No.1238 of 2014 (O&M) 9 (49) “person”.
shall include any company or body corporate or association or body of individuals, whether incorporated or not, or artificial juridical person; (51) “premises”.
includes any land, building or structure.”
.
It would also be appropriate to reproduce relevant part of Section 2 of the Sale of Goods Act, 1930 which reads as under: “2.
Definitions: In this Act, unless there is anything repugnant in the subject or context; (1) “buyer”.
means a person who buys or agrees to buy goods; (2) “delivery”.
means voluntary transfer of possession from one person to another; (3) xxxxxxx (4) “document of title to goods”.
includes a bill of lading, dockwarrant, warehouse keeper's certificate, wharfingeRs.certificate, railway receipt, warrant or order for the delivery of goods and any other document used in the ordinary couRs.of business as proof of the possession or control of goods, or authorizing or purporting to authorize, either by endorsement or by delivery, the possessor of the document to transfer or receive goods thereby represented; (5) xxxxx (6) xxxxx (7) “goods”.
means every kind of movable property other than actionable claims and money; and includes stock Kumar Virender 2014.05.19 14:03 I attest to the accuracy and integrity of this document Rs.No.1238 of 2014 (O&M) 10 and shares, growing crops, grass, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale; (8) xxxx (9) xxxx (10) “price”.
means the money consideration for a sale of goods; (11) “property”.
means the general property in goods, and not merely a special property; (12) “quality of goods”.
includes their state or condition; (13) 'seller”.
means a person who sells or agrees to sell goods; (14) “specific goods”.
means goods identified and agreed upon at the time a contract of sale is made.
Perusal of above provisions makes it clear that every kind of movable property other than actionable claims and money and thing attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale, falls within the definition of 'goods' under the Sale of Goods Act, 1930.
In the Sale of Goods Act, 1930, term “specific goods”.
has also been defined which means “goods identified and agreed upon at the time a contract of sale is made'.
In Commissioner of Sales Act, Madhya Pradesh, Indore versus Madhya Pradesh Electricity Board, Jabalpur (1969) 1 SCC200 three Judges Bench of Honb'le Supreme Court had an occasion to decide whether electricity was “goods”.
for the purposes of impositions of sales tax.
It was noted that as defined in Madhya Pradesh General Sales Tax Act, 1959, the term “goods”.
means all kinds of movable property and Kumar Virender 2014.05.19 14:03 I attest to the accuracy and integrity of this document Rs.No.1238 of 2014 (O&M) 11 included all materials, articles and commodities.
The definition is pari materia, with the definition under the Sales of Goods Act, 1930.
In Commissioner of Sales Tax, Madhhya Pradesh's case (supra).the Hon'ble Supreme Court has held as follows: “The term 'movable property' when considered with reference to 'goods' as defined for the purposes of sales tax cannot be taken in a narrow sense and merely because electric energy is not tangible or cannot be moved or touched, like, for instance, a piece of wood or a book, it cannot cease to be movable property when it has all the attributes of such property.
It is capable of abstraction, consumption and use which, if done dishonestly, would attract punishment Under s.
39 of the Indian Electricity Act, 1910.
It can be transmitted, transferred, delivered, stored, possessed etc.in the same way as any other movable property.”
.
In State of A.P.etc.versus National Thermal Power Corpn.
LTD.and others AIR2002SC1895 (2002) 5 SCC203 the same view was taken by the Constitutional Bench of Hon'ble Supreme Court.
After analyzing above provisions of the Electricity Act, 2003 and the Sale of Goods Act, 1930, I am of the view that electricity is a movable property, though it is not tangible.
It falls within the definition of “goods”.
as provided under the Sale of Goods Act, 1930.
Supply of electricity and thereafter payment of bill for the same towards supply of such “goods”.
can be termed as trading of goods.
Now the question arises whether electricity connection can be sold by the consumer.
The “consumer”.
as defined under the Electricity Kumar Virender 2014.05.19 14:03 I attest to the accuracy and integrity of this document Rs.No.1238 of 2014 (O&M) 12 Act, 2003 means any person who is supplied with electricity for his own use by a licensee or the Government or by any other person engaged in the business of supplying electricity to the public under this Act.
As per Section 2 (39) of the Electricity Act, 2003, term “licensee”.
means a person or the government, who is actually supplying the electricity.
The question which often arises in litigation of power supply is whether the transaction can be governed by the provisions of Sale of Goods Act, 1930 for the purpose of transferring the same in the name of purchaser by the licensee.
Admittedly, electricity is generated, transmitted and sold under a contract to the consumeRs.It is moved to its ultimate destination where it is consumed.
It does not matter that electricity cannot be stored and it is consumed rapidly.
Answer to the question whether electricity is “goods”.
and governed by the provisions of the Indian Contract Act or Sale of Goods Act, 1930, is nothing but inconsequential to resolve the controveRs.in this case.
It is a decisive factor in litigation.
Since the electricity is a movable thing, thus, falls squarely within the definition of “goods”.
under the provisions of Sale of Goods Act.
The electricity is moved through power lines and amounts are metered and connection number is allotted for particular place and therefore identifiable.
Hence, I hold that electricity is a commodity like other goods as it can be manufactured, transmitted and sold.
The same can also be further sold by the consumer which can be treated as a second sale or sub-sale.
There may be another argument that it is a service or a “good”.Since I have already concluded it to be falling in definition of goods and no argument Kumar Virender 2014.05.19 14:03 I attest to the accuracy and integrity of this document Rs.No.1238 of 2014 (O&M) 13 has been addressed with regard to the fact that it is service, therefore, I need not delve upon this point.
I have come to the definite conclusion that electricity is a commodity/goods and provisions of Sale of Goods Act, 1930 as well as Contract Act apply.
Now the question arises whether in the instant case the connection was validly sold by Niranjan Singh to the plaintiff.
Perusal of evidence on record specifically sale deed dated 04.06.1990 reveals that land along with motor of 3 H.P., electric connection, bera, kothi, 8-banna, watt, khal, passage, trees etc.has been sold to the plaintiff.
Certainly, the plaintiff has become owner in possession of electric connection along with 3 H.P.Motor, bera, kothi, 8-banna, watt, khal, passage, trees etc.existing at the spot.
Admittedly, vide registered sale deed dated 04.06.1990 (Ex.P1).Niranjan Singh had transferred all his rights including the electricity connection existing in the land sold to the plaintiff and in particular privity of contract was between defendant nos.1 and 2.
Section 2 (15) of the Electricity Act, 2003 defines “consumer”.Undoubtedly, it is an inclusive definition.
It consists of two parts i.e.the person who is supplied with energy and it includes within it any person whose premises are connected for the purpose of receiving energy with works of a licencee.
Rule 2(1) (b) of Works of Licence Rules, 2006 defines “occupier”.
as under: “Occupier”.
of any building or land means a person in lawful occupation of that building or land.”
.
Earlier Rule 2-A (f) defines “occupier”.
as under: Kumar Virender 2014.05.19 14:03 I attest to the accuracy and integrity of this document Rs.No.1238 of 2014 (O&M) 14 “Occupier”.
means the owner or person in occupation of the premises where energy is used or proposed to be used.
The conjoint reading of the definition of “consumer”.
and “occupier”.
clearly indicates that plaintiffs are both consumers and occupiers as defined in Electricity Act, 2003 and Works of Licence Rules, 2006 respectively and lawful owners in possession of the land in which connection was earlier existing and has been shifted.
The said electric connection has been sold to plaintiffs.
In such circumstances, only the technical aspect remains to be fulfilled by the plaintiff was to get the electric connection transferred in their names as per Electricity Supply Regulations.
Regulations 37 and 38 of the Electricity Supply Regulations read as under: “37.
Shifting of Connections: 37.1 to 37.3.3 xxxxxx 37.4 Shifting of a Tube well connection: 37.4.1 to 37.4.3 xxxxxx 37.4.4 The consumer requesting for shifting shall produce 'Fard' of the land where the connection is required to be shifted in token of his being the owner of at least one acre of the land.
37.4.4.1 Any agriculture tubewell connection in the state can be shifted to any other place in the State and also in the name of any one else provided the person in whose name tubewell connection is to be finally shifted/changed has got agriculture land of minimum one acre for which he will provide the 'Fard' as a proof of ownership of the land.
Kumar Virender 2014.05.19 14:03 I attest to the accuracy and integrity of this document Rs.No.1238 of 2014 (O&M) 15 37.4.4.2 to 37.8.5 xxxxx 38.
Change of Name: 38.1 to 38.5 xxxxxxx 38.6.
If the application for the change of name is received from such a person who after taking possession of the premises has been utilizing the electric connection, held in the name of old occupant, the change of name should only be effected after he pays the old outstanding dues or at least a reasonable part thereof in proportion to the period he has been occupying the premises.
38.7.
xxxxx”.
Regulation 38 contains provisions relating to change of name (transfer) and Regulation 37 deals with shifting of connections.
Having sold the connection to the plaintiff, defendant no.1 has lost all his rights.
To effect transfer, a direction can be issued to the parties to fulfill all the terms and conditions which are required as per aforesaid regulations i.e.appropriate application by the plaintiff, being consumer and she will sign the requisite form for the re-transfer of connection in the premises where the connection was earlier existing in her name.
The licensee i.e.defendant no.2 shall serve notice in accordance with law and thereafter the plaintiff shall execute the contract regarding the same very connection and furnish sufficient surety in accordance with law.
The current bill will be charged by defendant no.2 from the plaintiff as per law.
Both the questions are answered accordingly.
No other point has been urged.
Kumar Virender 2014.05.19 14:03 I attest to the accuracy and integrity of this document Rs.No.1238 of 2014 (O&M) 16 In the face of above circumstances, I do not find any illegality or perversity in the impugned judgments and decrees.
Dismissed.
May 06, 2014 [Paramjeet Singh].vkd Judge Kumar Virender 2014.05.19 14:03 I attest to the accuracy and integrity of this document