Calcutta High Court (Appellete Side)
Meghnath Mondal vs The West Bengal State Electricity on 30 June, 2022
AD. 8.
June 30, 2022.
MNS.
WPA No. 11518 of 2022
Meghnath Mondal
Vs.
The West Bengal State Electricity
Distribution Company Limited and others
Mr. Sujit Bhunia,
Mr. Gourab Ghosh
...for the petitioner.
Mrs. Gopa Roy
...for the WBSEDCL.
Mr. Rabindranath Mahato,
Mr. Aritra Shankar Roy
...for the respondent no. 6.
Learned counsel for the petitioner contends
that the petitioner is in occupation of the premises
where the petitioner sought an electricity connection
in the petitioner's own name. However, the West
Bengal State Electricity Distribution Company Limited
(WBSEDCL) is not being able to give such
connection to the petitioner on the premise that
litigation is pending in respect of the property.
Learned counsel for the petitioner submits that
the petitioner has a right under Section 43 of the
Electricity Act, 2003 (2003 Act) to get an electricity
connection in the petitioner's own name.
Learned counsel appearing for the private
respondent no. 6 quite ably argues that the
occupation of the writ petitioner cannot be said to be
"settled occupation", since the threat of eviction is
looming large due to the subsistence of the injunction
decree obtained by the private respondent against
the petitioner before a competent civil court.
In such context, learned counsel places
reliance on a judgment reported at AIR 2011 Cal 64
(FB) (Abhimanyu Mazumdar Vs. Superintending
Engineer), wherein a Full Bench of this Court had
categorically considered and laid down the
connotation of the expression "actual occupier in
settled possession".
In the said judgment, it was held by the Full
Bench, inter alia, that, by the word "lawful occupier"
introduced in the Rules, that is, the Works of
Licensees Rules, 2006, 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. Whether the occupation of a person on a
property is lawful or not can only be decided by a
competent forum prescribed by law. It was never the
intention of the legislature to define 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.
The Full Bench also held that, if the trespasser
is in settled possession of the property belonging to
the rightful owner, the rightful owner shall have to
take recourse to law; he cannot take the law in his
own hands and evict the trespasser or interfere with
his possession. The law will come to the aid of a
person in peaceful and settled possession by
injuncting even a rightful owner from using force or
taking law in his own hands and also by restoring him
in possession even from the rightful owner (of course
subject to the law of limitation), if the latter has
dispossessed the prior possessor by use of force.
The Full Bench further observed that it is the
settled possession or effective possession of a
person without title which would entitle him to protect
his possession even as against the true owner.
Learned counsel for the private respondent
places particular reliance on certain yardsticks to
define the expression "settled possession", which
were laid down by the Full Bench.
The said criteria are as follows:
"(i) that the trespasser must be in actual
physical possession of the property over a sufficiently
long period;
(ii) that the possession must be to the
knowledge (either express of implied) of the owner or
without any attempt at concealment by the trespasser
and which contains an element of animus possidendi.
The nature of possession of the trespasser would
however, be a matter to be decided on the facts and
circumstances of each case.
(iii) the process of dispossession of the true
owner by the trespasser must be complete and final
and must be acquiesced to by the true owner; and
(iv) that one of the usual tests to determine the
quality of settled possession, in the case of cultivable
land, would be whether or not the trespasser, after
having taken possession, had grown any crop. If the
crop had been grown by the trespasser, then even
the true owner has no right to destroy the crop grown
by the trespasser and take forcible possession".
Although learned counsel for the private
respondent lays stress on the phrase "sufficiently
long period" to qualify the possession of a trespasser
for the purpose of holding that the trespasser is in
settled possession, it is evident from the entire
discussion of the Full Bench that the Full Bench
clearly and specifically distinguished between the
concepts of "settled possession" and "lawful
occupier".
Hence, contrary to the submission of learned
counsel for the private respondent, it cannot be said
that merely because the writ petitioner could be
termed as an "unlawful occupier" in view of the
subsisting decree of permanent injunction against the
writ petitioner, the settled nature of the occupation of
the petitioner can be called in question for
ascertaining the right of the petitioner conferred by
Section 43 of the 2003 Act.
In the present case, since the private
respondent has admittedly filed a suit for recovery of
possession against the petitioner, the fact that the
petitioner is in occupation of the property, that too in
settled occupation, cannot be disputed, rather the
same has been admitted by way of filing the suit for
recovery of possession.
Hence, the submission of the private
respondent to the extent that the writ petitioner, being
an unlawful occupier, is not entitled to electricity,
cannot be accepted.
Thus, upon hearing learned counsel for the
parties, WPA No. 11518 of 2022 is disposed of,
thereby directing the Distribution Licensee to give
electricity connection independently in the petitioner's
own name, in terms of the application of the
petitioner made for such purpose, subject to
compliance of all formalities by the petitioner
otherwise, within a week from the date of compliance
of such formalities or this order, whichever is later.
In the event any resistance or hindrance is
faced by the personnel of the WBSEDCL in giving
such connection to the writ petitioner, it will be open
to the personnel of the WBSEDCL to approach the
respondent no. 5, the Officer-in-Charge, Debra Police
Station, for adequate police assistance at the cost of
the petitioner.
If so approached, the respondent no. 5 shall
act on the written communication of the learned
Advocates for the parties, accompanied by a server
copy of this order, without insisting upon prior
production of a certified copy thereof, for the purpose
of compliance of the same.
It is made clear that in the event any padlock
or hindrance is put up to the access of the
WBSEDCL personnel for the limited purpose of
giving such electricity connection to the petitioner, it
will be open to the police authorities to break open
the padlock or remove any hindrance in the way of
access to the WBSEDCL personnel for the limited
purpose of enabling the WBSEDCL personnel to give
electricity connection to the petitioner.
It is made clear that the factum of electricity
connection being given to the petitioner shall not, by
itself, create any special right or equity in favour of
the petitioner and it will be open to the civil courts,
before which any litigation is pending in respect of
the property, to decide such lis independently in
accordance with law without being influenced in any
manner by any of the observations made herein.
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.)
