Calcutta High Court (Appellete Side)
Sujit Kumar Ghosh vs The State Of West Bengal And Others on 22 February, 2022
In the High Court at Calcutta
Constitutional Writ Jurisdiction
Appellate Side
The Hon'ble Justice Sabyasachi Bhattacharyya
W.P.A. No. 12558 of 2021
Sujit Kumar Ghosh
Vs.
The State of West Bengal and others
For the petitioner : Mr. Raja Biswas,
Mr. Abhijit Sarkar
For the State : Mr. Srijan Nayak,
Mrs. Rituparna Maitra
For the WBSEDCL : Mr. Sourav Choudhuri
For the private respondent : Mr. Srijib Chakraborty,
Mr. Avirup Mondal,
Mr. Anand Jha
Hearing concluded on : 15.02.2022
Judgment on : 22.02.2022
Sabyasachi Bhattacharyya, J:-
1. The writ petitioner is in occupation of a flat at Premises No.33,
Rabindra Sarani, Word No.4, Ranaghat (M) and is also the promoter
of the said building. The petitioner deposited quotation fee for
installing new transformer before the concerned authorities. The
representation along with a No Objection, issued by the Chairman,
Board of Administrator, Ranaghat Municipality on February 1, 2021,
was also submitted by the petitioner for having an electricity
transformer installed in front of the said building.
2. However, despite the required formalities having been complied with
the petitioner, it is alleged that the West Bengal State Electricity
Distribution Company Limited (WBSEDCL) has not installed such
transformer or provided electricity connection as yet to the individual
flat owners of the building.
3. Learned counsel appearing for the distribution licensee submits that
due to resistance offered by private-respondent no. 7 such connection
could not be given upon installing the required transformer, as per
the petitioner's application.
4. Learned counsel appearing for the respondent no. 7, on the other
hand, submits that the building-in-question is an illegal construction.
The petitioner himself violated municipal laws in raising such
construction, for which a Demolition Notice was also issued against
the petitioner.
5. As such, it is argued that the petitioner is not entitled to get
electricity connection to such unauthorised construction.
6. Learned counsel for the respondent no. 7 cites a Co-Ordinate Bench
judgment of this court, rendered in Shanti Devi Agarwal Vs.
W.B.S.E.D.C.L. and others, reported at (2016) 5 CHN (Cal) 274,
wherein a learned Single Judge of this Court held that a previous
Special Bench judgment of this Court, delivered at Port Blair, being
that of Abhimanyu Mazumdar Vs. Superintending engineer, reported at
(2011) 2 CHN (Cal) 768 (also in AIR 2011 Cal 64), did not, for a
moment, deal with the state and condition of a premises before it
could be granted electricity connection.
7. The learned Single Judge elaborated the attributes of 'settled
possession' and posed the question that, if a building is not allowed
to be occupied or when the law prohibits water connection to be
granted to it for lack of an occupancy certificate, can an occupier of
that building or part of it claim electricity supply? Abhimanyu
Mazumdar's case (supra) was distinguished on the interpretation of
'settled possession', which was a pre-supposition, according to the
learned Single Judge, of Section 43(1) of the Electricity Act, 2003
(hereinafter referred to as 'the 2003 Act'). Ultimately, the co-ordinate
bench held, in paragraph no.31 of its judgment, that, on the existing
facts, no electricity connection could have been given to the second
and third floors. Learned counsel for the private respondent submits
that, in the present case as well, no occupancy certificate has been
issued in respect of the building for which electricity connection has
been sought.
8. Upon hearing learned counsel for the parties, it transpires that the
petitioner is not only the promoter but the owner of some of the flats
in the building-in-question. Secondly, the application of the
petitioner for giving individual electric connections to each of the flat
owners from a transformer, to be installed near the premises, would
obviously benefit not only the petitioner but all the flat owners, who
had been handed over possession on the basis of legally valid
agreements. The legality of such agreements has not been challenged
before any court of law.
9. In such a scenario, we have to interpret Section 43 of the 2003 Act in
the context of the cited judgment.
10. Section 43 of the 2003 Act clearly provides that 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.
11. It may be noted here that the term 'occupier' has not been qualified in
Section 43 by the term 'lawful' or any other adjective. Hence, it
cannot be insisted that the occupier of the premises has to be in
lawful occupation thereof.
12. The Special Bench judgment of Abhimanyu Mazumdar (supra), which
was relied on by the learned Single Judge while delivering the Shanti
Devi Agarwal (supra) judgment, clearly defines an "occupier", as
contemplated within the meaning of Section 43 of the 2003 Act, as a
person in "settled possession". The said phrase was considered in the
light of several Supreme Court judgments. It is clear from the report
that "settled possession" was deemed as "actual physical occupation",
as opposed to 'lawful' occupation. It was held in the said Special
Bench judgment that the Rules do not provide for deciding any
dispute between the owner and the lawful occupier on the question
whether the occupation of such occupier is lawful or not. The Rules,
on the other hand, prescribe the procedure for resolving the dispute
between the licensee in one hand and owner or the occupier on the
other, regarding alteration of work or fixation of support, etc., or
payment for compensation by the licensee to the owner or the
occupier, as the case may be.
13. The word "lawful occupier", as introduced in the Rules, in the opinion
of the Special Bench, indicated that the legislature intended to mean
the "actual occupier in settled possession" of the property. The
Special Bench observed, whether the occupation of a person on a
property is lawful or nor can only be decided by a competent forum
prescribed by law and that it was never the intention of the legislature
in defining the word 'occupier' as "lawful occupier" to ask the licensee
to take permission before undertaking any work from the person in
occupation, if such person is not the owner, after being satisfied that
such occupier has been declared as "lawful occupier" by a competent
forum prescribed by law. An occupier with perfect legal title to
occupy is not the only occupier entitled to get electricity connection.
It was also held that a landlord can, in case of a dispute with a
tenant, by taking advantage of such interpretation, easily raise false
dispute as regards the status of the tenant and ask the licensee not to
grant connection of electricity so long the status of such tenant is not
declared by a civil court as lawful.
14. The Special Bench went on to hold that, according to the law in
India, a person in settled possession of immovable property cannot be
dispossessed otherwise than by due process of law and such a
person, in settled possession, although the commencement of such
possession was unlawful, can restrain even the lawful owner from
disturbing his settled possession otherwise than in due process of
law.
15. Upon such clear dictum having been pronounced by the Special
Bench, it could not, in my humble opinion, be held that an occupier
has to be in lawful occupation as declared by any competent court or
forum, to be entitled to get electricity connection under Section 43 of
the 2003 Act.
16. Even in Shanti Devi Agarwal (supra), the learned Single Judge had
permitted the petitioner to continue enjoying electricity, since the
objection thereto was taken by a person who himself was a party to
the illegality, having obtained sub-lease of the entire building which
was illegally constructed.
17. The facts of the present case do not even tally in any manner with the
illustrations given in paragraph no.29 of Shanti Devi Agarwal (supra).
The first example was that of an imminently dangerous building,
without considering the state and condition of the premises before
granting electricity connection. In the opinion of the learned Single
Judge, the same principle was applied to a building which was
patently illegal, that is, without a sanction plan or a building permit
or without the permission to occupy.
18. As distinguished from the above facts, in the present case, the
individual flat owners had all entered into possession of their
respective flats in the building-in-question on the basis of valid
agreements/deeds with the promoter/writ petitioner. The beneficiary
of the individual electricity connections, as sought by the petitioner,
would be all such flat owners, including the writ petitioner, who had
validly entered into possession and have been in settled possession of
their respective flats in the building, irrespective of the alleged
illegality or absence of occupancy certificate. Unless the building is
demolished or the occupants are evicted by due process of law, the
occupants are legally entitled to electricity supply, both under Section
43 of the 2003 Act and by virtue of Article 21 of the Constitution of
India.
19. Thus, in the instant case, the proposition laid down in Abhimanyu
Mazumdar (supra) is squarely applicable, whereas Shanti Devi
Agarwal (supra) is not attracted at all, in view of the gross factual
differences between the two.
20. In the present case, there is no doubt that all the flat owners are in
settled possession. It has not been established finally that the
building-in-question was constructed de hors a valid sanction plan or
illegally.
21. The petitioner has complied with all formalities for installation of a
transformer for the purpose of giving individual electric connections
to the flat owners. In fact, if the flat owners are compelled to
continue enjoying the service connection existing at present, they will
have to bear prohibitive and exorbitant charges unnecessarily, as
opposed to individual domestic connections from a new transformer.
The other option for the occupants would be to make do without
electricity, which is a basic necessity of modern life and an essential
corollary to the right to life guaranteed by our Constitution.
22. In such view of the matter, the objection taken by the private
respondent is not sustainable in law.
23. Hence, W.P.A. No. 12558 of 2021 is allowed, directing the WBSEDCL
to complete all formalities for installation of the new transformer and
to give individual electricity connections to the flat owners of the
premises, subject to the satisfaction of the distribution licensee as
regards the individual applicants being in settled possession of the
premises and the compliance of all requisite formalities, as
expeditiously as possible.
24. In the event any obstruction is raised by the private respondent no. 7
and/or his men and agents, it will be open to the WBSEDCL
personnel to approach the nearest police station for adequate
assistance. If so approached, the Officer-in-Charge/Inspector-in-
Charge (as applicable) of the local police station shall give necessary
police assistance at the cost of the petitioner.
25. It is made clear that this Court has not gone into the question of
legality of the construction and it will be open to any competent legal
forum to decide on such question independently and in accordance
with law, without being influenced in any manner by any of the
observations made herein. However, the WBSEDCL shall not embark
on the journey of assessing the "lawfulness" of the construction at all,
which would be entirely beyond the domain of consideration of the
licensee.
26. There will be no order as to costs.
27. Urgent certified copies of this order shall be supplied to the parties
applying for the same, upon due compliance of all requisite
formalities.
(Sabyasachi Bhattacharyya, J.)
