Md. Alam vs The Chairman
2022 Latest Caselaw 503 Cal

 AD. 19.
February 11, 2022.
MNS.




                           (Through Video Conference)

                             WPA No. 13993 of 2021

                                 Md. Alam
                                    Vs.
                 The Chairman, West Bengal State Electricity
                  Distribution Company Limited and others


                      Mr. Sudip Ghosh Chowdhury,
                      Mr. Abhishek Bose

                                          ...for the petitioner.

                      Mr. Srijan Nayak,
                      Mrs. Rituparna Maitra

                                         ...for the WBSEDCL.

                      Mr. Tanmoy Mukherjee,
                      Mr. Kajal Roy

                                   ...for the private respondent.

Leave is granted to the learned Advocate-on-

record for the petitioner and the private respondent

no. 5 to rectify the respective cause titles of the

affidavit-in-reply and the affidavit-in-opposition filed

today.

Pursuant to such corrections having been

effected by the learned Advocates, the opposition

and reply are kept on record.

The grievance of the petitioner is that

petitioner, despite being in established occupation of

the premises-in-dispute, is being refused a new

electric connection in his name primarily due to

resistance created by the private respondent.

Learned counsel appearing for the distribution

licensee submits, as corroborated by the report filed

by the distribution licensee, that the distribution

licensee, prima facie, is of the opinion that the

petitioner is in occupation of the premises, but there

are several defects in the application filed by the

petitioner. In the event a proper application is filed in

appropriate format and the other requisite formalities

are complied with, the distribution licensee has no

objection to give such connection subject to the order

passed by the Court.

Learned counsel appearing for the private

respondent, by placing reliance on the purported

agreement annexed by the writ petitioner to the writ

petition as well as the affidavit-in-reply, granted by

one Uday Chakraborty in favour of the petitioner,

argues that it is evident from the said document itself

that the deed of arrangement contained in the

agreement is preceded by the name of one Manik Lal

Chakraborty, who has been described as the owner

of the property as well as the executant of the

arrangement.

However, it is submitted that the body of the

said document shows that one Uday Chakraborty,

son of Manik Lal Chakraborty granted the property

for the enjoyment and occupation of the petitioner.

Such discrepancy, ipso facto, leads to the

presumption, as per the petitioner's submission, that

the document is a manufactured one for the specific

purpose of filing the writ petition.

That apart, learned counsel for the private

respondent further adds, the rent receipts produced

by the petitioner are mostly in the name of the father

of Uday Chakraborty (since deceased), who was

initially claimed by the petitioner to be the person

who settled the property in favour of the petitioner, as

per the communication annexed by the petitioner to

the writ petition, which was addressed to the

distribution licensee. However, subsequently, in

order to vindicate the veracity of the document, the

petitioner has deviated from the original stand that

Manik Lal was the person who settled the property

and stated in the reply that Manik Lal's son Uday,

who was the admitted original owner, settled the

property in favour of the petitioner. Hence, it is

contended that the petitioner is unsure about the

derivation of this own title and not in "settled

possession" of the property-in-dispute.

Learned counsel places reliance on a

judgment of the Special Bench of the Port Blair

Circuit Bench of this Court, rendered in Abhimanyu

Mazumdar Vs. Superintending Engineer, reported at

2011 (2) CHN (Cal) 768, where a three-Judge Bench

of this Court was pleased to hold that by the words

"lawful occupier" introduced in the connected Rules,

the legislature intended to mean the "actual occupier

in settled possession" of the property and the

licensee is required to take the permission of such a

person in settled possession of the property if the

property is not in possession of the owner.

It is contended that the present petitioner has

not been able to establish even prima facie that the

petitioner is in such settled possession of the

property.

Learned counsel appearing for the petitioner

also places reliance on the rent receipts and the

purported agreement produced by the petitioner and

submits that those documents create a sufficient

presumption of occupation of the petitioner, which is

sufficient for the purpose of getting electricity in terms

of the right conferred under Section 43 of the

Electricity Act, 2003 (in short "the Act of 2003").

Learned counsel appearing for the petitioner

also places reliance on a Division Bench judgment of

this Court in Amarendra Singh Vs. Calcutta Electric

Supply Corporation Ltd., reported at AIR 2008 (Cal)

66 and a co-ordinate Bench judgment rendered in

Santosh Jaiswal Vs. CESC Limited, reported at 2008

(4) CHN 630 in support of the proposition that

Section 43 of the Act of 2003 confers sufficient right

on a person in occupation of a premises to have an

electric connection thereto. The Division Bench went

on further to hold that the right to have a supply of

electricity is a component of Article 19(1) of the

Constitution of India.

Upon considering the submission of learned

counsel for the parties, it appears from the purported

agreement annexed by the petitioner to the writ

petition as well as the affidavit-in-reply that one Uday

settled the property in favour of the petitioner initially.

The private respondent, on the other hand,

claimed title to the property through a transfer deed

executed by the heirs of the said Uday and virtually

admitted the title of Uday at the relevant point of time.

After the demise of Uday subsequently, according to

the private respondent, the private respondent took

possession pursuant to the purchase deed and has

been in possession of the premises-in-dispute, and

not the petitioner.

However, it is evident from the said document

itself that a prima facie presumption of occupation of

the petitioner is sufficiently established thereby. The

discrepancy as regards the mention of the name of

one "Manoranjan" as the owner, in a disjunctive line

above the main text of the said document, is

superfluous and ipso facto cannot create a

presumption of the document being a manufactured

one, unless proved to be so, upon pleading

particulars of the alleged fraud and furnishing proof of

the same before a competent court of law.

That apart, Uday's father, deceased Manik Lal

Chakraborty, had issued rent receipts in favour of the

petitioner, which is prima facie established by the

photocopies of such receipts annexed to the writ

petition. It would be too much of a stretch on

imagination to assume that all the rent receipts as

well as the agreement were manufactured by the

petitioner for the mere purpose of filing the writ

petition for getting electric supply.

In fact, a computerized electricity bill issued by

the distribution licensee has also been annexed to

the writ petition, which indicates that the petitioner

had enjoyed electric connection through one Manik

Lal, in whose name the receipt was given. Such

annexure finds place at page 16 of the writ petition.

Although, at page 15 of the writ petition annexes

another purported printout of an electricity receipt in

the name of the private respondent, the production of

such receipt from the custody of the writ petitioner

ipso facto does not disprove the occupation of the

petitioner inasmuch as there is a reasonable

probability of the electricity, which was transferred

subsequently in the name of the private respondent,

having been initially used by the petitioner as

averred.

It is specifically contended by the petitioner

that the private respondent has disconnected the

electric supply in the private respondent's name,

which ipso facto gave rise to the petitioner's

entitlement to apply for a new electric connection in

his own name.

The factum of such disconnection, which is

not disputed by the distribution licensee as well, goes

on to show prima facie that the private respondent is

not in requirement of the electric connection at the

premises, which also materially corroborates, at least

circumstantially, the claim of the petitioner's

occupation in respect of the premises. In view of the

preponderance of probability, which arises from the

existence of several documents, as indicated above,

in favour of the settled possession of the petitioner,

there is no scope for the writ court and/or the

distribution licensee to hold otherwise.

That apart, since the distribution licensee

raises no objection on such score, it cannot be

presumed without any basis that mere existence of

the purchase deed of the private respondent washes

away the presumption of occupation of the petitioner.

That apart, the dispossession of the petitioner is not

proved, even prima facie, by the private respondent

by any cogent evident. In the absence of the same,

the claim of possession of the petitioner is further

bolstered, at least at a prima facie level.

The bald allegation of the private respondent

as regards the documents having been manufactured

by the petitioner is not credible enough to denude the

petitioner from entitlement to get electric supply as

per Section 43 of the said Act of 2003.

However, since the West Bengal State

Electricity Distribution Company Limited (in short

'WBSEDCL') takes specific objection to the defects in

the application filed by the petitioner, the petitioner

ought to be given an opportunity to file a fresh

application in correct format.

Accordingly, WPA No. 13993 of 2021 is

allowed, thereby directing the petitioner to apply for

an electric connection afresh in appropriate format

before the WBSEDCL within a week from date. If

such application is made by the petitioner and

subsequent formalities are duly complied with by the

petitioner, the WBSEDCL shall give such electric

connection, upon holding an appropriate inspection, if

necessary, as expeditiously as possible from the

compliance of all formalities by the petitioner.

However, it is made clear that this order shall

not create any special equity or right in favour of the

petitioner and/or prejudice the rights and contentions

of the parties in the dispute raised by the private

respondent to trade licence being issued to the

petitioner in respect of the premises and/or before

any other forum in any manner whatsoever. It will be

open for the forums/courts to decide whatsoever

dispute comes before them independently without

being influenced in any manner by any the

observations made herein.

It is further clarified that the aforesaid direction

shall be complied with by the WBSEDCL even

irrespective of any way leave certificate having been

issued by the private respondent in favour of the

petitioner.

If necessary, the personnel of the WBSEDCL

will be entitled to approach the local police authorities

for adequate police assistance for giving electricity

connection to the petitioner.

If so approached, the respondent no. 4, that is,

the Inspector-in-Charge of Chandannagar Police

Station, shall provide such police assistance at the

cost of the petitioner and the police personnel shall

be at liberty to remove any hindrance in the access of

the WBSEDCL personnel to the meter board location

for the purpose of giving electric connection to the

petitioner.

There will be no order as to costs.

Urgent photostat certified copies of this order,

if applied for, be made available to the parties upon

compliance with the requisite formalities.

(Sabyasachi Bhattacharyya, J.)