Calcutta High Court (Appellete Side)
Diwakar Ray @ Rai vs Cesc Limited And Others on 21 November, 2022
21st November,
2022
(AK)
04
W.P.A 3185 of 2022
Diwakar Ray @ Rai
Vs.
CESC Limited and others
Mr. Indranil Halder
...for the petitioner.
Mr. Rajiv Lall
...for the CESC Limited.
Mr. Mainak Ganguly
Mr. Dhiraj Kr. Gupta
Mr. Abhishek Singh
...for the respondent no.4.
Learned counsel for the petitioner contends, by
placing reliance on the annexure to the affidavit-in-
opposition filed by the respondent no.4, along with the
annexure to the affidavit-in-reply filed by the petitioner,
that although previously the respondent no.4 had
obtained an ex parte injunction order allegedly protecting
his possession in respect of the disputed property, a
subsequent order of injunction was passed by another
civil court, where, upon hearing both sides, the court
came to the conclusion that the present petitioner is in
possession of a portion for the property, which entitles
the plaintiff/petitioner to the use of electricity.
Learned counsel appearing for the private
respondent controverts the allegation as regards the
petitioner being in possession and submits that the prior
order of injunction was subsisting in favour of the
respondent no.4, observing that the said respondent was
in possession of the property, when the second injunction
order was passed in favour of the petitioner. In such
circumstances, allegedly suppressing the same, the
present petitioner obtained the order of injunction from
the other civil court.
It is further apprehended by the private respondent
that if any electricity connection is given in favour of the
petitioner, the same may create a special equity in favour
of the petitioner, particularly insofar as the pending civil
suits are concerned.
Learned counsel appearing for the CESC Limited
submits that, otherwise, the CESC has no objection to
give electricity connection to the petitioner. However, due
to obstruction put up by the private respondent and his
men and agents, such connection is not being able to be
given.
A perusal of the respective injunction orders passed
by the two courts in favour of each of the contesting
parties indicates that the order of status-quo passed in
favour of the present private respondent was obtained on
December 16, 2016.
The said order, however, was passed ex parte,
although even such an order is equally binding as one
passed on contest.
However, the complication has arisen subsequently
when the present writ petitioner preferred another suit
before a different civil court, that is, the Civil Judge,
Senior Division, Seventh Court at Alipore bearing Title
Suit No. 470 of 2019, where the said civil court, upon a
contested hearing of both sides, including the private
respondent, passed an order restraining the private
respondent and the other defendants from causing any
disturbance in the supply of electricity to the plaintiff
therein, that is, the present writ petitioner.
It was also prima facie found by the said civil court
in the subsequent contested order that the writ petitioner
is in possession of a portion of the suit property,
irrespective of whether the writ petitioner is a trespasser
or not, which entitels the petitioner to use electricity on
the premises.
In view of such conflicting findings, it is beyond the
scope of the writ court to enter into the factual merits and
demerits of the respective cases of the parties,
particularly as regards their right, title and possession in
respect of the disputed property.
However, since the order passed in favour of the writ
petitioner was subsequent and was passed on contest, for
the purpose of ascertaining electricity connection, we
have to presume on a prima facie footing that the
petitioner is all probability in possession of the said
property.
Of course, such issue will be thrashed out by the
parties and decided by the civil courts ultimately in
connection with the suits.
Even then, the argument of the private respondent
that the definition of "occupier" in Rule 2 of the Works of
Licensees Rules, 2006 includes a person in lawful
occupation cannot cut ice in the present case.
The various provisions of the 2006 Rules indicate
primarily that prior consent of the owner or occupier of
any building or land has to be taken before carrying out
works as envisaged therein. Hence, the said definition
operates in a separate field that Section 43 of the
Electricity Act, 2003.
However, Section 43 of the Electricity Act, 2003,
which is the parent statute, clearly elucidates that merely
being an occupier, a person is entitled to electricity
connection.
Moreover, there are several judgments of this court
and it is no longer res integra that an occupier of
premises, irrespective of the legality of his possession, is
entitled to get electricity connection at the property.
Inasmuch as Clause 3.2.1 of Regulation 46 of the
WBERC, 2010 is concerned, the 'Way Leave'
contemplated therein from the lawful owner cannot be
insisted upon in the present case, since it is well-settled
that the provisions of Section 43 of the 2003 Act, coupled
with Article 21 of the Constitution of India, confer the
right on an occupier to get electricity supply. Such right
cannot be objected to under normal circumstances.
Although it cannot be determined beyond doubt at
this stage as to who is in actual physical possession of
the disputed property, for the reasons as delineated
above, the petitioner is held to be entitled to electricity
connection in the petitioner's name upon being prima
facie in occupation of the property.
Accordingly, WPA 3185 of 2022 is disposed of by
directing the CESC Limited to give electricity connection
to the petitioner at the premises in dispute, subject to
compliance of all formalities by the petitioner, as
expeditiously as possible, preferably within a fortnight
from date or from compliance of all formalities, whichever
is later.
In the event the CESC personnel face any
obstruction in doing so, it will be open to the said
personnel to approach the respondent no.3, the Officer-
in-Charge of the Mahestala Police Station for adequate
police assistance.
If so approached, the respondent no.3 shall grant
such assistance to the CESC personnel for the limited
purpose as indicated above and, if necessary, to open any
padlock or other hindrance in doing so, at the cost,
however, of the petitioner.
It is, however, clarified that the electricity
connection, as and when given to the petitioner, shall not
create any special right, equity or interest in favour of the
petitioner and/or per se be an indicator of the petitioner's
occupation of the property for the purpose of the pending
civil suits.
It will be open to the civil courts to decide such
issue, along with other issues pending before those,
independently in due course of law without being
influenced in any manner by any of the observations
made herein.
Affidavit-in-opposition and affidavit-in-reply filed in
court today be kept on record.
Learned counsel for the private respondent also
urges that in view of the petitioner having got an order of
electricity connection from a competent civil court, the
present writ petition is not maintainable to enforce the
same.
However, such argument is not acceptable on the
face of it, since, in the same breath, the private
respondent cannot dispute the right of the petitioner to
get electricity connection and resist the maintainability of
the present writ petition on the ground that the petitioner
is so entitled in terms of a civil court's order.
As such, the said ground is turned down.
Parties as well as all concerned shall act on the
written communication of the learned Advocates for the
parties, coupled with server copy of this order, without
insisting upon prior production of a certified copy thereof.
There will be no order as to costs.
Urgent photostat copies of this order, if applied for,
be given to the parties upon compliance of all requisite
formalities.
(Sabyasachi Bhattacharyya, J.)
