Dhulagarh Sabji O Fal Paikari ... vs West Bengal State Electricity ...
2022 Latest Caselaw 6507 Cal

13th September,
 2022
 (AK)
 06

                                  W.P.A 20440 of 2022

                  Dhulagarh Sabji O Fal Paikari Babsayee Kalyan Samity
                                            Vs.
                    West Bengal State Electricity Distribution Company
                                   Limited and others


                            Mr. Tanmoy Chattopadhyay
                                                 ...for the petitioner.

                            Mr. Kanak Kiran Bandyopadhyay
                                                  ...for the WBSEDCL.

                            Mr. Bhaskar Prosad Banerjee
                            Mr. Parashar Baidya
                                              ...for the respondent no.9.

Mr. Subir Sanyal Mr. Santimay Bhattacharyya ...for the respondent no.10.

The grievance of the petitioner, which is the

Dhulagarh Sabji O Fal Paikari Babsayee Kalyan Samity, a

society representing the interests of the local vegetable

and fruit vendors, is that despite a previous writ

petitioner having got the benefit of the order of this court

as well as the Division Bench to get an electricity

connection independently, the same relief was denied to

the other vendors, when an application was made

previously.

It is submitted that such refusal was primarily on

the ground that there are third party lands over which

property the installations have to be erected, for which 'no

objection' is required from the said third parties.

It is submitted, by placing reliance on the previous

judgment of this court and that of the Division Bench in

an appeal preferred against the said order, that the same

benefits should be extended to the other vendors

represented by the present society as well.

Learned counsel for the WBSEDCL submits that as

per the direction of the Division Bench, the dispute raised

by third parties with regard to giving electricity

connection to the petitioner in the previous writ petition

has been referred to the District Magistrate within the

contemplation of Rule 3 of The Works of Licensees Rules,

2006.

It is submitted that since both the courts, on the

previous occasion, clearly mentioned in their orders that

electricity connection has to be given individually not only

to the petitioner but to "other applicants" as well, the

present writ petition is unnecessary.

Learned counsel appearing for the respondent

no.10, by placing reliance on Chandu Khamaru vs. Nayan

Malik and others reported at (2011) 12 SCC 314, contends

that if there is an objection raised by a third party, over

whose land installations are made to give electricity

connection, the matter has to be decided upon reference

to the District Magistrate or Commissioner of Police or

any other officer authorized by the State Government

within the contemplation of Rule 3(b), first proviso of the

2006 Rules.

It is further contended that eight poles were

installed over the property of the respondent no.10,

taking undue advantage of the previous order of this

court.

Upon objection being raised by the respondent

no.10, the Division Bench, in an appeal preferred by the

present respondent no.10 against the previous Single

Bench order, had directed Rule 3 of the 2006 Rules to be

complied with.

In view of the pendency of such reference before the

concerned Magistrate, it is submitted that a similar

direction in the present writ petition would serve no

useful purpose.

Upon hearing learned counsel for the parties, it is

evident that the ratio of law laid down in Chandu

Khamaru (supra) is well-settled.

The Supreme Court, in the said case, took into

consideration objections raised by third parties and

directed that the Distribution Licensee shall explore

whether there is any other way to supply electricity to the

house of the applicant therein, in the absence of which

the Distribution Licensee was directed to follow the

provisions of sub-Section (2) of Section 67 of the

Electricity Act, 2003 for carrying out the work for supply

of electricity to the house of the appellant.

As rightly argued on behalf of the respondent no.10,

Section 67 of the Electricity Act, 2003 clearly stipulates,

in sub-Section (2) thereof, that the Appropriate

Government may, by rules made by it in this behalf,

specify the cases and circumstances in which consent in

writing of the Appropriate Government, local authority,

owner or occupier, as the case may be, shall be required

for carrying out works and the authority which may grant

permission in the circumstances where the owner or

occupier objects to the carrying out of works.

Pursuant to the said provision, the Works of

Licensees Rules, 2006 was enacted. Rule 3 thereof, in

sub-Rule (1), stipulates that a licensee may carry out

works etc. with the prior consent of the owner or occupier

of any building or land.

The first proviso thereto stipulates that in case

where the owner or occupier of the building or land raises

objections in respect of works to be carried out under the

rule, the licensee shall obtain permission in writing from

the District Magistrate or the Commissioner of Police or

any other officer authorized by the State Government in

this behalf, for carrying out the works.

The second proviso thereto mentions that if at any

point of time, the owner or occupier of any building or

land on which any works have been carried out or any

support of an overhead line, stay or strut has been fixed

shows sufficient cause, the District Magistrate or the

Commissioner of Police etc. may by order in writing direct

for any such works, support, stay or strut to be removed

or altered.

In the present case, the individual applications of

the other vendors, represented by the petitioner-Society,

were refused by the WBSEDCL on the ground of absence

of 'Way Leave Certificate'.

However, upon the subsequent order of this court,

as modified by the Division Bench, even other applicants

have been rendered entitled to get electricity connection

in their individual names, on a similar footing as the writ

petitioner on the earlier occasion.

Since the society represents the right of the said

other applicants, the right to equality, which is a

fundamental right enshrined in the Constitution of India

under Article 14 thereof, impels the court to extend the

benefit of the same order to the other applicants as well.

As such, there is no scope of sustaining the refusal

to give electricity connection on the ground of absence of

'Way Leave Certificate'.

Learned counsel for the WBSEDCL has made it clear

that on principle, subject to compliance of formalities, the

WBSEDCL does not have any objection otherwise to give

electricity connection to individual applicants.

Upon consideration of the materials on record and

the circumstances of the present case, it is seen that

already the installation of eight poles was resisted by the

present respondent no.10 and the matter is pending on

reference before the concerned District Magistrate.

However, we cannot anticipate as to whether the

same poles would be sufficient to cater to the need of the

other vendors represented by the society, since the

individual stalls/shops of the vendors may be in a

different direction than that of the previous writ

petitioner.

Be that as it may, since the applications for

individual connection were made by all the individual

vendors represented by the society, which is the present

petitioner before this court, there cannot be any

justification for refusing the same benefit to the said

applicants.

As regards the subsisting injunction order passed in

favour of the plaintiff/respondent no.10 by the Civil

Judge (Junior Division), Third Court at Howrah in Title

Suit No.468 of 2022, the same restrains the defendants,

that is, the WBSEDCL as well, from interfering with the

peaceful possession of the plaintiff in respect of the 'A'

schedule suit property therein.

However, neither the said order of the civil court nor

the previous orders of this court can be used as a charter

by the WBSEDCL to trammel the individual rights of

persons who might have objections to the electricity lines

being given or the required installations being made on

their lands.

Hence, in consonance with the previous order of the

Division Bench and this court, WPA 20440 of 2022 is

disposed of by directing the WBSEDCL to reconsider the

applications for individual electricity connection filed by

each of the vendors represented by the petitioner-Society

in the present writ petition and, subject to compliance of

all formalities by the individual applicants and upon

completion of the infrastructure required, give such

connection to the individual applicants.

However, it is made clear that in the event any

objection is or has been raised with regard to such

connections being given for whatsoever reason, including

installations being made purportedly on the land of

others, the WBSEDCL shall resort to the provisions of

Rule 3 of The Works of Licensees Rules, 2006 and refer

the matter to the concerned District Magistrate.

In the event the District Magistrate is of the opinion

that the said connections can be given, by whatever

modality deemed fit by the District Magistrate, within the

contemplation of the Electricity Act, 2003 and The Works

of Licensees Rules, 2006, it will be open to the District

Magistrate to pass such orders and resolve the disputes

raised by such persons over whose lands allegedly

installations are made.

It is further clarified that the individual rights and

titles of the vegetable and fruit vendors in respect of the

properties occupied by them have not been entered into

by this court in any manner and it will be open to the

court where the, that is, Title Suit No.468 of 2022 is

pending, to decide such issue on its own merits without

being unduly influenced by any of the observations made

herein.

It is expected that the necessary infrastructure

required for giving independent electricity connections to

the people in the locality-in-question shall be developed

by the WBSEDCL as expeditiously as possible, of course,

in accordance with law.

Inasmuch as the prayer for temporary connection

being given to the individual vendors other than the

previous writ petitioner is concerned, the WBSEDCL shall

explore the possibility of giving such temporary

connections in consonance with the interim order dated

March 4, 2022 passed by the Division Bench, that is,

giving a temporary electricity connection through the

service connection provided to the 9th respondent in the

writ petition, that is, the Calcutta Mumbai Truck

Terminal Limited by fixing sub-meters, subject to

electricity consumption charges being remitted by the

individual applicants.

However, in the event it is found by the WBSEDCL

that giving temporary connections via sub-meter to all the

individual applicants is not possible, the WBSEDCL shall

communicate the refusal to give such temporary

electricity connection to the applicants individually, upon

giving reasons for so refusing.

It will be open to the individual applicants to take

up their grievances, if any, in that regard before the

appropriate authority as provided by the WBERC

Regulations.

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.)