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FASHION PROPRIETOR ASWANI KUMAR MAITY VERSUS WEST BENGAL STATE ELECTRICITY DISTRIBUTION CO. LTD. & OTHERS

    W.P. No. 25405 (W) of 2008

    Decided On, 21 January 2009

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE SANJIB BANERJEE

    For the Petitioner: Mr. H. Bhattacharya, Mr. M.K. Ghosh, Mr. Subimal Ghorai, Advocates. For the WBSEDCL: Mr. A.J. Sengupta, Advocate. For the Respondent: Mr. Sardar Amjad Ali, Mr. Sardar Shahin Imam, Ms. Ipsita Choudhury, Advocates.



Judgment Text

SANJIB BANERJEE, J. : ?


There is a passionate dispute between the writ petitioner and the private respondent no. 6 in the matter of the writ petitioner?s entitlement to the business premises whereat the petitioner has sought an electricity connection. The private respondent says that the petitioner has no right to remain in occupation thereof and as such cannot make any application for obtaining electricity supply at the premises. The private respondent claims that the petitioner and his erstwhile partner had all along received electricity from the private respondent and the petitioner is thus disqualified from obtaining a new connection. The legal question that arises is as to whether the petitioner is entitled to supply of electricity at the premises despite the dispute and despite it being unclear as to whether the petitioner is in lawful occupation of the premises. A fair concession has, however, been made by the private respondent in suggesting that the writ petitioner is not a rank trespasser in the sense that he entered into possession with the authority of the landlord but has now overstayed the welcome and does not have any authority to remain in possession.


The petitioner refers to the change in the law, of the departure from the concept of ?lawful occupation? in the Electricity Act of 1910 to the concept of occupier simpliciter in the Electricity Act of 2003. The petitioner suggests that the earlier judgments would have no application upon the change in law and it is a conscious decision of the legislature to drop the word ?lawful? from the comparable provision.


There are several judgments that the principal contestants bring to bear on the matter. In the judgment reported at 2001 (2) CHN 71 (Nemai Hait v. CESC Limited & anr.), a learned Single Judge of this Court relied on a previous judgment to hold that in the light of the constitutional guarantee under Article 21, a person in possession of any premises for a long time had a right to apply for and obtain electricity. It must be appreciated that both the Nemai Hait judgment and the decision that it relied on [1999 (2) CHN 573 (Soumitra Banerjee & ors. v. CESC Limited & ors.)] were made when the 1910 Act was in force and an occupier had to be in lawful occupation of the premises to be entitled to an electricity connection thereat.


In a recent decision reported at (2008) 3 WBLR 413 (Santosh Jaiswal v. CESC Limited & ors.), a learned Single Judge of this Court considered a number of judgments, rendered both by Single Judges and Division Benches of this Court. Some of these judgments have been cited by the parties here including the one reported at 2006 (4) CHN 433 (Anjali Metia & ors. v. West Bengal State Electricity Board & ors.). In Santosh Jaiswal case the learned Single Judge relied on a Special Bench judgment reported at 1987 (2) Cal LJ 332 (Bholanath Karmakar & ors. v. Madanmohan Karmakar & ors.) that spoke of the option before a judicial authority when faced with conflicting binding decisions. The Special Bench had held that the course to be adopted was to try and reconcile the apparently conflicting judgments; but if such attempt failed the Judge could prefer one over the other, subject to hierarchy, on the basis of what appeared to be the better enunciation of law.


Judgments reported at AIR 2008 Cal 47 (Molay Kumar Acharya v. Chairman-cum-Managing Director, W.B. State Electricity Distribution Co. Ltd. & ors.) and AIR 2007 Cal 108 (United India Insurance Co. Ltd. v. Smt. Shibani Santra & ors.), both rendered by learned Single Judges, have been placed where the opinions differ. However the Shibani Santra decision has been reversed in the judgment reported at AIR 2008 Cal 66 (Amarendra Singh v. The Calcutta Electric Supply Corporation Ltd. & ors.).


The petitioner refers to a judgment reported at (2006) 3 SCC 434 (Bombay Dyeing & Mfg. Co. Ltd. (3) v. Bombay Environmental Action Group & ors.) for the proposition that where an expression in a statute is modified by deleting a part thereof, it is contrary to the cardinal principle of statutory construction to ignore the deletion.


The private respondent relies on a judgment reported at 2007 (1) CHN 528 (Akbar Reza v. CESC Ltd. & ors.) to suggest that Section 43 of the Electricity Act, 2003 does not contemplate the right of an existing consumer at any premises to insist on a further connection. The facts in that matter would make the principle inapplicable in the present case. There were 200 establishments carrying on business at the premises to which the licensee supplied electricity through a transformer owned by the landlord. The licensee claimed that the landlord was lawfully entitled to supply electricity to the occupiers through separate submeters and, in such circumstances, it was not proper for one occupier to claim a separate line and not obtain supply from the existing connection through an exclusive sub-meter. The dictum in that matter would be inapplicable in the case of an occupier who had, by some private arrangement not expressly sanctioned by the licensee, formerly obtained electricity from the landlord but was subsequently desirous of getting an independent connection. Apart from the judgments considered in the Santosh Jaiswal case and the others cited by the parties, there are two unreported judgments expressing apparently conflicting views. Such judgments have been made available to the parties for their submission thereon. A Division Bench of this Court on circuit at Port Blair has taken a view in an order dated April 7, 2008, in MAT No. 005 of 2008 (The Union of India & ors. v. Shri Karunanidhi & ors.) the substance of which is captured in the following two paragraphs:


?It appears to us that the Hon?ble First Court failed to consider section 43 of the Indian Electricity Act, 2003, according to which, the occupier cannot be an illegal occupier. It has to be taken into account the owner or occupier which has been said in the said section is nothing but giving a right to an occupier of the premises in question, who is legally entitled to have the electricity supply at the premises.


After considering the materials on record and after having heard the learned counsel appearing for the parties, we do not find that the petitioner can claim himself to be a lawful occupier of the premises in question, and accordingly, we must come to the conclusion that the Hon?ble First Court wrongly came to the conclusion that the petitioner is entitled to have the electricity connection.?


Another Division Bench of this Court on circuit at Port Blair in MAT No. 031 of 2007 (The Lieutenant Governor & ors. v. Shri Rajarathnam) has taken a different view in the judgment rendered on February 21, 2008. After noticing Section 43 of the present Act and the proviso to Section 14 thereof, it was held:


?The Administration is obliged to supply electricity to all occupiers. It is not disputed that the Respondent has, for several years, been in occupation of the premises in question. No steps have been taken to evict the respondent. Once occupation is established, the tenure of occupation is immaterial.?


There is no reason to take a view different from the one taken by another learned Judge of this Court in the Santosh Jaiswal judgment. Applying the same reasoning as has been adopted in the Santosh Jaiswal case for choosing between two binding decisions, the view of the Division Bench in MAT No. 031 of 2007 appears to be the more appropriate in the context of the definition of ?occupier? in the present Act.


Some of the relevant provisions of the 2003 Act need to be appreciated: ?42. Duties of distribution licensees and open access. ? (1) It shall be the duty of a distribution licensee to develop and maintain an efficient coordinated and economical distribution system in his area of supply and to supply electricity in accordance with the provisions contained in this Act.?


?43. Duty to supply on request. ? (1) 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:


Provided that where such supply requires extension of distribution mains, or commissioning of new sub-stations, the distribution licensee shall supply the electricity to such premises immediately after such extension or commissioning or within such period as may be specified by the Appropriate Commission;


Provided further that in case of a village or hamlet or area wherein no provision for supply of electricity exists, the Appropriate Commission may extend the said period as it may consider necessary for electrification of such village or hamlet or area.?


(2) ?


(3) If a distribution licensee fails to supply the electricity within the period specified in sub-section (1), he shall be liable to a penalty which may extend to one thousand rupees for each day of default.?


?44. Exceptions from duty to supply electricity. ? Nothing contained in section 43 shall be taken as requiring a distribution licensee to give supply of electricity to any premises if he is prevented from so doing by cyclone, floods, storms or other occurrences beyond his control.?


Section 43 of the Act makes it incumbent on a licensee to supply electricity to an owner or occupier of any premises. It is, probably, inappropriate to compare Section 43 of the present Act with Section 12(6) of the previous Act. The definition of ?occupier? in Section 12(6) of the previous Act was restricted to


Section 12 of the said Act. Section 12 of the previous Act operated in a different field and is not comparable with Section 43 of the present Act. Sub-section (6) was introduced into the 1910 Act by an amendment of 1959.


?12. ?


(6) In this section, ?occupier? of any building or land means a person in lawful occupation of that building or land.?


If the law of the land provides that a person in possession of any premises may not be dispossessed therefrom except in accordance with law, it is implicit that

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the possession of the person is protected till such time that an appropriate forum holds otherwise and the person is removed from the premises under due process of law. It would then defy reason to suggest that such person can continue to be in possession but be denied an essential utility as electricity which is within the broad sweep of the right to life guaranteed under Article 21 of the Constitution. The writ petition succeeds. The licensee will provide a new electricity connection to the writ petitioner upon the writ petitioner complying with all requisite formalities including paying the relevant charges. The connection will be made available within two weeks from the date of completion of all formalities by the petitioner. Since the petition has been decided without calling for affidavits and on the admission of the private respondent that the petitioner is an occupier at the relevant premises, the other allegations in the petition directed against the private respondent should not be deemed to have been admitted by the private respondent. The parties will pay and bear their own costs.
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