Mishra Bhawan Tenants' Welfare ... vs Cesc Limited And Others
2022 Latest Caselaw 1916 Cal/2

                      In the High Court at Calcutta
                     Constitutional Writ Jurisdiction
                              Original Side

The Hon'ble Justice Sabyasachi Bhattacharyya

                          W.P.O. No. 1954 of 2022

      Mishra Bhawan Tenants' Welfare Association and another
                              Vs.
                    CESC Limited and others
                              With

                          W.P.O. No.1103 of 2021
                                   With
                               GA 3 of 2022
                                     +
                               GA 3 of 2022


     For the petitioner            :     Mr. Mainak Bose,
                                         Mr. Amitav Ray,
                                         Mr. Navneet Misra,

     For the State                 :     Mr. Debasish Ghosh,
                                         Mr. Anirban Ray

     Hearing concluded on          :     07.06.2022

     Judgment on                   :     12.07.2022



     Sabyasachi Bhattacharyya, J:-


1.   The present two writ petitions have been filed for similar reliefs.

     W.P.O. No. 1103 of 2021 has been preferred by certain individuals

     allegedly having interest in the disconnection of electricity in the

     building situated at Premises No. 156, Rabindra Sarani, Police

     Station- Jorasanko, Kolkata-700 007.
                                        2


2.   W.P.O. No.1954 of 2022 has been filed by an Association of the

     Tenants of the said building and its Secretary.

3.   Insofar as W.P.O. No.1103 of 2021 is concerned, the locus standi of

     the petitioners to file the writ petition is under challenge by the

     respondents. At the interlocutory stage, while deciding GA 2 of 2022

on February 14, 2022, it was held prima facie by this Court that the

petitioners do not have locus standi to file the writ petition. However,

the question of locus standi was kept open to be agitated at the final

hearing of the writ petition.

4. The order dated February 14, 2022 reveals that sufficient documents

had not been produced by the petitioners to substantiate their locus

standi to refer the instant writ petition.

5. As per the ratio laid down in Ayaaubkhan Noorkhan Pathan Vs. State

of Maharashtra and others, reported at (2013) 4 SCC 465 and cited by

respondent no.7-landlord, a stranger cannot be permitted to meddle

in any proceeding unless he satisfies the authority/court that he falls

within the category of 'aggrieved person'. Only a person who has

suffered or suffers from legal injury can challenge the

act/action/order, etc., in a court of law. It was held that a writ

petition under Article 226 of the Constitution of India is maintainable

either for the purpose of enforcing a statutory or legal right, or when

there is a complaint by the appellant that there has been a breach of

statutory duty on the part of the authority and that there must be a

judicially enforceable right available for enforcement, on the basis of

which the writ jurisdiction is resorted to. The existence of such right

is the foundation of the exercise of the said jurisdiction by the Court.

6. In the present case, the writ petitioners have filed certain documents

with their supplementary affidavit.

7. The photocopy of an electricity bill in the name of the petitioner no. 2,

for the month of November 2021, annexed to the petitioners'

supplementary affidavit, shows zero consumption for the previous six

months whereas the disconnection took place after the fire allegedly

on October 9, 2021, casting a shadow on the allegation that the

petitioners have been residing at the building-in-question.

8. The photocopy of another electricity bill of the month of October,

2021, allegedly in the name of the deceased father of the petitioner

no. 1, also shows negligible electricity consumption for the previous

six months. Moreover, admittedly, the consumer in whose name the

bill has been produced has died. Although a certificate of enlistment

issued by the Kolkata Municipal Corporation in the name of the

petitioner no. 1 "and others" has also been produced in respect of the

disputed property, the same ipso facto cannot be held to be proof of

the petitioners' settled occupation in respect of such premises,

particularly in view of the meagre electricity consumption reflected in

the electricity bill.

9. That apart, an electricity bill has also been produced in the name of

one Nagindas M Zavery, who is allegedly the grandfather of the

petitioner no. 3. However, the bill being in the name of a third party

to the writ petition, it cannot be said that the petitioner no. 3 is a

consumer of electricity at the premises or is in settled occupation of

the building.

10. Nothing substantial has come on record to vindicate the petitioners'

claim of having locus standi to invoke the writ jurisdiction of this

Court for the disconnection of electricity at the building-in-question.

11. As such, in view of the petitioners having no locus standi, W.P.O.

No.1103 of 2021 is dismissed, without going into the merits of

the respective cases of the parties.

12. Accordingly, all other connected pending applications are hereby

disposed of.

13. Insofar as W.P.O. No.1954 of 2022 is concerned, the Tenants'

Association might be arguably interested in the welfare of its

members, that is, the tenants residing at the building.

14. However, neither specific particulars of the members of the said

Association nor any document to substantiate the claim that the said

members or a major portion of them are bona fide consumers of

electricity in respect of the premises has been furnished.

15. The Association has not been filed the writ petition in representative

capacity, nor does it have any authorization to represent the interests

of all the bona fide consumers and/or a majority of them, who have

been enjoying electricity connection at the disputed premises.

16. However, since the writ court, being a court of equity, ought not to be

obsessed with technicalities, the matter is taken up on merits to

explore whether the consumers at the premises are entitled to a writ

of mandamus as sought in the writ petition.

17. The petitioner argues that the disconnection-in-question of electricity,

which is an essential service, is contrary to Section 43 of the

Electricity Act, 2003 and, thus, illegal and void.

18. It is further contended that the dangerous portion of the building has

already been demolished by the agent of the KMC and there cannot

be any further embargo to restoring the electricity supply to the

building. Moreover, Section 411 of the Kolkata Municipal Corporation

Act, 1980, it is submitted is a provision in an independent statute

having no manner of connection with the Electricity Act, 2003.

19. The KMC and the CESC operate in different spheres, it is argued, and

one of such authorities acting under a particular statute cannot

travel beyond such statute and discontinue electricity supply on the

perceived violation of a different statute.

20. In the present case, the CESC Limited has clarified its stand that the

electricity to the building-in-question was disconnected on intimation

by the Kolkata Municipal Corporation, which is the municipal

authority having jurisdiction over the building, and that the building

was in a dangerous condition and had to be demolished.

21. The CESC Limited has taken a fair stand that in the event the KMC

and other authorities are satisfied that the dangerous portion of the

building has been removed/demolished and/or the building is now in

a proper habitable condition, there is no objection on the part of the

CESC Limited to restore the electricity connection thereto.

22. After repeated coaxing, a proper report could be elicited from the KMC

in respect of the present condition of the premises. However, the

KMC report does not inspire confidence insofar as the habitability of

the building is concerned. Both the landlord-respondent no.7 and the

KMC have, rather, taken a stand that the building is still in a

dilapidated condition. Although the Tenants' Association has sought

to project that the dilapidated portion has been demolished and the

building is now fit to be reconnected with electricity, it is the

consistent stand of the KMC and the landlord that the building is still

in a dangerous condition and it might be unsafe to give electricity

connection to the premises.

23. Within the limited scope of the present writ petition, which involves

allegations of wrongful disconnection against the CESC Limited and

contains a prayer for restoration of electricity connection, it is beyond

jurisdiction for the court to scrutinize the action of the KMC in

claiming the building to be a dilapidated one.

24. The Court is not equipped with the expertise to override the KMC's

stand that, despite partial demolition, the building is still not safe and

a proper reconstruction has to be carried out upon a plan being duly

sanctioned for such purpose. The CESC Limited is in an equally

helpless position insofar as the condition of the building is concerned.

25. The scheme of the Electricity Act, 2003 clearly contemplates and

casts a duty on the distribution licensee to look into the safety of

giving electricity as well. Keeping such scheme in view, it would be

arbitrary to direct the CESC Limited to restore electricity connection

to the building, without substantial satisfaction of the concerned

authorities, inasmuch as the present condition of the building is

concerned.

26. The relevant provisions with regard to disconnection, in the present

context, are provided in the West Bengal Electricity Regulatory

Commission (Electricity Supply Code) Regulations, 2013 (Regulation

No.55/WBERC). In Clause 4.3.1 of the said Regulation, it is provided

that the licensee may disconnect the supply of electricity to a

consumer if he uses the energy in such a manner as to endanger the

licensee's service lines, supply mains, meters and other plants and/or

equipments and works of the licensee or uses any appliances or

equipments that may similarly endanger the supply line, supply

mains, etc., of the licensee.

27. Clause 4.3.4 stipulates that, in emergent circumstances, where any

action of a consumer in using the energy supplied may, in the opinion

of an officer of the licensee not below the rank of a Sub-Assistant

Engineer, cause injury to any person or loss of human life and/or

property, the licensee may disconnect supply to that consumer within

the notice period as stated in Clause 4.3.2 or even without any notice.

28. In the present case, in view of the imminent risk and safety hazards

involved due to a portion of the building having already collapsed and

in view of a fire hazard having already visited the building, the

rigours of prior notice are mitigated by virtue of Clause 4.3.4, read

with Clause 4.3.1 of Regulation 55.

29. However, till date, nothing has been brought on record to indicate

that the concerned authorities, that is the KMC, the Fire Department,

etc., are satisfied that the causes of hazard have been removed

and/or the building has been renovated sufficiently to take care of the

fire and safety hazards.

30. In Clause 6.5 of Regulation 55, it is provided that the supply

disconnected under Regulations 4.3.1 and 4.3.4 shall be restored by

the licensee on receipt of an application from the said consumer

confirming the removal of the causes of disconnection with

documentary evidence/test report from the authorised licensed

electrical contractor, as may be applicable, along with all other

approved charges, if any, as has been determined by the Commission.

The licensee shall inspect the installation within 48 hours from the

date and time of application and restore the connection within next

48 hours if, on inspection, the licensee is satisfied with the action

taken by the consumer.

31. The Tenants' Association, however, is a body of people and not a

"consumer of electricity" at the dilapidated building.

32. However, in terms of the Clause 6.5 of Regulation 55, there cannot be

any impediment to restore the connection subject to the satisfaction

of the authorities mentioned therein in respect of the cause of

disconnection having been removed.

33. Hence, the purpose of justice would be sub-served if liberty is given to

the bona fide consumers at the building to take resort to such

provision.

34. Thus, instead of prejudging issues and complicating matters

unnecessarily, it would only be appropriate if the writ petition is

disposed of on such terms.

35. Accordingly, W.P.O. No.1954 of 2022 is disposed of by granting

liberty to the bona fide consumers of electricity at premises no.

156, Rabindra Sarani, Kolkata-700 007 to apply before the CESC

Authority within the contemplation of Clause 6.5 of Regulation

55, that is, the WBERC (Electricity Supply Code) Regulation,

2013, confirming the removal of the causes of disconnection

with documentary evidence/test report from the authorised

licensed electrical contractor, as may be applicable, along with

all other approved charges, if any, as determined by the

Commission.

36. If such application is made by any, several or all of the consumers at

the said building, the CESC Limited shall inspect the installation

within 48 hours from the date and time of such application(s) and

restore the concerned connection(s) within the next 48 hours if, on

inspection, the licensee is satisfied with the action taken by the

consumer. It is made clear that, while doing so, the CESC shall also

taken into consideration Clause 6.6 of Regulation 55 which stipulates

that, if after effecting the disconnection under Regulation 4.0 it is

detected subsequently that the occupier or owner of such premise

does not have the service in the premises in his name then the CESC

Limited shall reconnect the service only after due transfer of the name

as consumer against the service without any prejudice to any

provision of the Regulation.

37. It is expected that the CESC Limited keeps proper records of

disconnections and reconnections of supply in the above context,

within the contemplation of Clause 6.7 of Regulation 55 of 2013. The

restoration of connection, if given, shall be subject to the formalities

contemplated in law and in Clause 6.0 of Regulation 55 dated August

7, 2013 and its sub-clauses, as indicated above.

38. It is made clear that the respective right, title and contentions of the

parties in respect of the disputed property have not been entered into

by this Court and it will be open to appropriate

authorities/forums/courts of law, if such an question arises, to

decide on such right, title and interest independently on its own

merits without being influenced in any manner by any of the

observations made herein.

39. There will be no order as to costs.

40. 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. )