Shri Dipak Paul vs The Director
2022 Latest Caselaw 5340 Cal

11th August,
  2022
  (AK)
   39



                                 W.P.A 17379 of 2022

                                    Shri Dipak Paul
                                           Vs.
                         The Director, CESC Limited and others


                           Ms. Ashrulina Amiya Gayen
                                                  ...for the petitioner.

                           Mr. Somnath Bose
                                                    ...for the CESC Limited.

                           Ms. Manideepa (Paul) Roy
                                            ...for the respondent no.3.

Affidavit-of-service filed in court today be kept on

record.

The grievance of the petitioner is that the

petitioner, despite residing at the premises-in-question

allegedly as a joint owner, is being deprived of new

electricity connection.

Initially the petitioner had applied and such

application was refused by the CESC Limited. However,

subsequently the wife of the private respondent was

given an independent electricity connection in her name

in the private respondent's portion of the property.

Prompted by such connection being given, the

petitioner made a fresh application for getting new

electricity connection. However, such connection has not

been given by the CESC Limited on the premise that

litigation is pending between the parties.

Learned counsel appearing for the CESC Limited

submits that the Distribution Licensee is caught in the

cross-fire of litigation between the petitioner and the

private respondent and shall abide by the law.

Learned counsel appearing for the respondent

no.3, on instruction, submits that the petitioner is not a

co-owner but was a mere licensee in respect of the

premises, of which the private respondent is the owner.

It is submitted that the private respondent is

enjoying a decree of a competent civil court for eviction

and recovery of khas possession against the defendants

in respect of Schedule-B property in the suit, which is in

occupation of the petitioner.

Hence, it is submitted that the petitioner ought

not to be granted an electricity connection, taking

advantage of which the petitioner may further disrupt

the peaceful possession and enjoyment of the premises

of the private respondent.

Learned counsel for the petitioner, in reply,

submits that the petitioner has filed an appeal against

the decree, which is now pending.

It is well-settled that filing of an appeal does not,

by itself, operate as stay of the impugned decree. In the

instant case, the plaintiff/respondent no.3 is at present

enjoying a decree of eviction and recovery of khas

possession against the defendants in respect of

Schedule-B property.

Despite the pendency of the appeal, nothing has

been brought before court to indicate that any stay order

has been passed therein.

However, it is also well-settled that a person in

settled occupation of premises is entitled to electricity,

irrespective of the lawfulness of such possession.

Hence, strictly speaking, although the judgment-

debtor/petitioner is not occupying the premises 'lawfully'

at present, such fact cannot create any hindrance in the

petitioner's right to get electricity connection under

section 43 of the Electricity Act, 2003 and generally

conferred by Article 21 of the Constitution of India.

Accordingly, WPA 17379 of 2022 is disposed of by

directing the CESC Limited to give new electricity

connection to the petitioner at the premises from the

existing meter board position, subject to compliance of

all formalities by the petitioner in that regard.

It is made clear that such electricity connection, if

given to the petitioner, shall not create any special right

or equity with regard to the petitioner in respect of the

property and shall not influence the appellate court in

deciding the appeal independently.

It is further clarified that it will be open to the

private respondent to approach the appellate court in

the event any hindrance to the peaceful enjoyment of the

private respondent is created on the pretext of the new

electricity connection being given from the existing meter

board position in favour of the petitioner.

In the event any obstruction is raised by private

respondent no.3 and/or his men and agents in the

CESC personnel holding inspection or giving such

connection to the petitioner, it will be open to the CESC

personnel to approach the local police station for

adequate police assistance in that regard.

If so approached, the local police shall give such

assistance to the CESC personnel for the limited

purpose of holding inspection and/or giving such

electricity connection to the petitioner from the existing

meter board position.

Such police help shall be given at the cost of the

petitioner.

There will be no order as to costs.

Urgent photostat copies of this order, if applied for,

be given to the parties upon compliance of all requisite

formalities.

(Sabyasachi Bhattacharyya, J.)