Parwej Alam vs Cesc Limited And Another
2022 Latest Caselaw 711 Cal

21st February,

(AK)

WPA 267 of 2022

(Via Video Conference)

Parwej Alam Vs.

CESC Limited and another

Mr. Bidyut Halder Mr. Indranil Halder ...for the petitioner.

Mr. Rajiv Lall ...for the CESC Limited.

Learned counsel for the petitioner submits that the

petitioner, being an occupier of the building-in-question

situated at 119, Keshab Chandra Sen Street, Kolkata-

700009, P.S.- Amherst Street, is entitled under Section

43 of the Electricity Act 2003 to have electric supply to

the premises.

However, despite having applied for such

connection, the CESC Limited is sitting tight over the

matter.

It is further contended by learned counsel for the

petitioner that it is not for the CESC Limited to enter into

the question of the purported lawfulness of the

occupation of the petitioner, as long as the petitioner is in

occupation of the premises.

Learned counsel appearing for the CESC Limited,

however, points out to several incorrect statements made

in the writ petition itself.

First, he points out that the petitioner stated in

paragraph no.2 of the writ petition categorically that the

petitioner is the owner of the said premises.

However, the photocopy of a municipal tax receipt

annexed as annexure-P1 to the writ petition clearly shows

that the same stands in the name of one Msmt. Hazra

Begum.

Although a photograph has been annexed at page-

10 of the writ petition which indicates that people are

residing at some of the floors of the said building, the said

photograph is insufficient to establish the petitioner's

connection with the building.

As rightly pointed out by learned counsel for the

CESC Limited, the petitioner stated in paragraph no.6 of

the writ petition that after the CESC authority by letter

dated July 1, 2021 informed the petitioner to produce

certain documents, the petitioner complied with the said

instruction. However, it is borne out by the records and

the submission made in court that the petitioner does not

have a sanction plan of the building at all.

In fact, the letter dated July 1, 2021, annexed at

page-11 (Annexure-P3) to the writ petition clearly shows

that the CESC Limited, inter-alia, asked for copies of the

sanction plan of the building with details.

Since the same was not furnished and the petitioner

is now doing a volte face inasmuch as the petitioner

categorically contends before court that the petitioner

does not have a sanction plan of the building, the entire

credibility of the writ petitioner is lost.

It is further pointed out by learned counsel for the

CESC Limited, which appears to be correct on a perusal

of the affidavit-in-opposition of the CESC Limited, that on

December 28, 2020, an officer of the Amherst Street

Police Station wrote to the Manager, CESC Limited

indicating the pendency of one Amherst Street P.S. Case

No.247 dated November 10, 2020 under Section 401(A) of

the KMC Act on the basis of complaint of one Saumitra

Bhaumik, Assistant Engineer (C), Building Department,

Borough-IV and V, KMC regarding construction work

without any sanction plan from the KMC authority at the

premises-in-question.

In fact, the police further communicated that for

the purpose of investigation into the case, the CESC

Limited was to let the police station know as to whether

the PR/owner has taken any permission from the CESC's

department for constructional work at the said premises.

At page-10 of the affidavit-in-opposition, the reply

given by the CESC Limited to the aforesaid

communication has also been annexed, which clearly

shows that no application for temporary construction

purpose was received at the end of the CESC for the said

premises.

In fact, at page-11 of the affidavit-in-opposition, a

communication by the CESC Limited to the present

petitioner is annexed, which indicates that the CESC was

required to carry out an inspection at the address of the

premises on the ground as given therein.

At page-12 of the affidavit-in-opposition, a

purported communication by the present writ petitioner

to the District Engineer, CESC Ltd. (N.R.O), although not

disclosed in the writ petition, has been annexed by the

CESC Limited, which shows, inter alia, the load break-up

of the G+4 building situated at the premises-in-question.

At page-13 of the affidavit-in-opposition, a

purported further communication by the writ petitioner to

the District Engineer has been annexed where the

petitioner, in unambiguous terms, admits that there is no

building plan and hence, the petitioner was unable to

produce sanctioned building plan but that the petitioner

had tax bill and registered deed with him.

In fact, in the series of purported rent receipts,

annexed with the affidavit-in-opposition, which were

allegedly produced by the petitioner before the CESC

Limited, the petitioner's name does not find place

anywhere.

There is no paper, produced either by the petitioner

or the CESC Limited, to indicate that any document

stands in the name of the petitioner in respect of the

premises.

Although it is now alleged that Msmt. Hazra Begum

Sahiba, the landlord, is the mother of the petitioner,

neither did the said lady filed the application for electric

connection, nor was any document produced or averment

made in connection with the writ petition by the

petitioner to indicate/establish the connection between

her and the petitioner.

In fact, at page-19 of the affidavit-in-opposition, a

letter dated August 24, 2021 purportedly written by the

CESC Limited to the writ petitioner has also been

annexed, where the CESC reiterated that the petitioner

was to submit sanctioned building plan of the aforesaid

building before they decide their next course of action.

The pendency of the police case under Section 401(A),

KMC Act, 1980 was also indicated in the said

communication.

At page-17 of the affidavit-in-opposition, the CESC

Limited has annexed a purported Municipal License for

Professions, Trades and Callings issued in the name of

one M/s Pasupati Auddy and Bros., the connection of

which entity with the petitioner has not been either

pleaded or proved by the petitioner.

In paragraph no. 5 of the affidavit-in-reply, the

petitioner has stated that although the petitioner denies

the statements of fact made by the CESC Limited in

paragraph no.5 and its sub-paragraphs of the affidavit-in-

opposition, the petitioner admits that the police case and

KMC proceedings are matters of record and further

admits that the building was constructed without any

sanctioned plan.

The petitioner went so far as to plead that it is not

the "headache" of the CESC Limited whether the building

is sanctioned or not.

The petitioner, in paragraph no.6 of the reply, has

stated that the municipal tax receipt of the building

stands in the name of the petitioner's mother. However,

such allegation is made without any supporting

document, that too, for the first time in the affidavit-in-

reply.

In view of the aforesaid circumstances, it cannot but

be found that the petitioner blatantly resorted to incorrect

statements to deliberately mislead the court.

At this juncture, learned counsel for the petitioner

submits that the petitioner is agreeable to produce title

deed in the name of the petitioner in respect of the

premises-in-dispute.

However, since the hearing is at an advanced stage

and substantially concluded, such opportunity cannot

now be given to the petitioner to rectify the petitioner's

case at this belated stage, since no such document or

deed was ever produced before the CESC Limited or

annexed to the pleadings of the petitioner by way of the

writ petition or the affidavit-in-reply at any point of time.

Giving such opportunity at this stage would merely

amount to giving a premium to a dishonest litigant, who

has approached this court with unclean hands, making

blatantly false statements on oath.

Moreover, although Section 43 of the 2003 Act

confers a right on an "occupier" of the premises to have

electric connection, it is well-settled by various judgments

of this court that although such "occupation" is not

required to be "lawful occupation", the applicant of the

new connection should be in "settled possession" of the

property-in-question to be entitled to get an electric

connection.

In the present case, however, the petitioner has

failed to establish by a single scrap of paper either in the

pleadings before this court or in the documents produced

before the CESC Limited, to establish the petitioner's

possession in respect of the premises, let alone settled

possession.

Thus, there cannot arise any question of Section 43

being attracted to the present case, even as per the

language of Section 43, as interpreted by various

decisions of this court.

Hence, WPA No.267 of 2022 is dismissed on contest

with costs of Rs.10,000/- payable by the petitioner to the

respondents, either directly or through the learned

Advocate-on-record appearing for the respondents in this

court, within a week from date.

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.)