Mr. Arindam Sarkar vs Cesc Limited & Ors
2022 Latest Caselaw 6511 Cal

  16
13.09.2022
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              IN THE HIGH COURT AT CALCUTTA
             CONSTITUTIONAL WRIT JURISDICTION
                      APPELLATE SIDE

                    W.P.A. No.20845 of 2022


                      Mr. Arindam Sarkar
                              Vs.
                      CESC Limited & Ors.


                 Mr. Pingal Bhattacharyya
                                  ...for the petitioner

                 Mr. Debanjan Mukherjee
                                ...for the CESC Limited

                 Mr. Jahar Dutta,
                 Mr. Bipin Ghosh
                                    ...for the State

                 Mr. Tirthankar
                                    ...for the respondent nos. 5 & 6

Mr. Tarique Quasimuddin, Mr. Abbas Ibrahim Khan, Ms. Meena Shabnam ...for the respondent no. 7

Learned counsel appearing for the petitioner cites

two decisions, one by a coordinate Bench of this Court

in Dinabandhu Mallick vs. State of West Bengal & Ors.,

reported at (2009) 2 Cal LT 417 and the other by a

Five-Judge Bench of the Supreme Court in Shivdeb

Singh & Ors. Vs. State of Punjab & Ors., reported at AIR

1963 SC 1909 for the proposition that even in a fresh

writ petition, a Bench can interfere with a coordinate

Bench order or its own order passed in a previous writ

petition in the event there is a grave and apparent

error in the prior order.

It is submitted that, in the present case, pursuant

to an order dated September 06, 2022 passed by this

Court in W.P.A. No. 15672 of 2022, Calcutta Electric

Supply Corporation Limited (CESC Limited) has given

electricity connection to the private respondent,

Sushma Jaiswal. However, such connection has been

given from the tenanted portion of the present writ

petitioner, who is another tenant, apart from Sushma

Jaiswal, at the same premises under the same

landlord. Learned counsel submits that taking

advantage of an injunction order passed in the absence

of the present writ petitioner by a competent civil

court, the said electricity connection has been taken,

thereby adversely affecting the tenancy rights of the

present petitioner. As such, the petitioner was, on the

face of it, a necessary party in the previous writ

petition, but was deprived of impleadment in the said

matter, thereby giving rise to an apparent error on the

face of the order.

Learned counsel appearing for the petitioner, in

unison with learned counsel appearing for the private

respondents/landlords (respondent nos. 5 and 6),

submits that the writ petitioner in the previous writ

petition, that is, Sushma Jaiswal, perpetrated fraud by

placing forged documents before this Court for the

purpose of establishing her case.

Learned counsel appearing for the private

respondent no. 7 submits that the facts are exactly the

other way round. The landlord, in collusion with the

present writ petitioner, has filed the instant writ

petition to deprive the private respondent no. 7

(Sushma Jaiswal) from her rights accrued pursuant to

the valid papers and the order of this Court.

By placing reliance on the annexures to the writ

petition, learned counsel submits that the present

petitioner is a tenant in respect of 60 sq.ft. only on the

ground floor, whereas the writ petitioner is a tenant

also in respect of a first floor portion of the same

building, on the ground floor of which the respondent

no. 7 (Sushma Jaiswal) is a tenant. Respondent no. 7

has trade licences to run an eatery and restaurant of

600 sq. ft. and 150 sq. ft respectively, as evident from

the copies thereof annexed to the previous writ petition

and also to the present writ petition as part of the

annexures of the previous writ petition.

Hence it is borne out by the materials-on-record

that the writ petitioner is a tenant in respect of the first

floor and has a trade licence to run a business only in

respect of 60 sq. ft on the ground floor.

Learned counsel appearing for the CESC Limited

submits that the connection has been given on the

ground floor and the possession of the present writ

petition has not been disturbed in any manner in doing

so.

Upon considering the materials on record and the

photocopy of the certified copy of the injunction order,

handed over by learned Counsel for the respondent no.

7, it transpires that vide Order no. 2 dated May 21,

2022 passed in Title Suit No. 1122 of 2022, the Judge,

Twelfth Bench of the City Civil Court at Calcutta

granted an ad interim injunction restraining the

defendants therein, that is, the present writ petitioner

and the landlords of the premises from causing any

obstruction or hindrance in the peaceful enjoyment

and possession of Schedule A shop room and Schedule

B shop room in the suit by the present respondent no.

7/plaintiff and from peaceful running of business in

the said rooms and also from dispossessing the

plaintiff from the Schedule A shop room and Schedule

B shop room save and except by due process of law. It

is an admitted position that the said injunction, ex

parte or otherwise, is still subsisting. The binding

precedence of the said judgment is subsisting

irrespective of the order being ex parte.

Since the defendants in the suit, that is, the

present writ petition and the landlords of the premises

are bound by the said order, unless vacated, modified

or set aside by a competent court, it does not lie in the

mouth of the petitioner to submit that the present writ

petitioner is in possession of the premises where the

electricity connection has been taken. In fact, even if

the present writ petitioner has a dispute as regards the

location of the electricity meter, it is open to the

present writ petitioner to approach the competent civil

court, where the title suit is pending, seeking

appropriate orders.

However, since the common case of the

respondent no. 7 and the Distribution Licensee is that

the electricity connection has been given on the ground

floor, which is substantially under the tenancy of the

respondent no. 7, the argument that the present writ

petitioner was a necessary party to the previous writ

petition does not hold water.

The present writ petitioner, as a tenant in respect

of a different portion of the same building, was neither

a necessary nor a proper party in the previous writ

petition, where the CESC Limited was directed to give

electricity connection to the present respondent no. 7

(the writ petitioner therein). Hence, there does not

arise any question of any grave and apparent error

having crept into the previous order due to non-

impleadment of the present writ in the previous writ

petition.

Thus, the principles laid down in the judgments

cited by the writ petitioner are not applicable in the

facts and circumstances of the present case.

Hence, there is no scope of interference in the

present writ petition.

W.P.A. No. 20845 of 2022 is, accordingly,

dismissed.

However, it is made clear that nothing in this

order shall prejudice the rights and contentions of the

parties to the present writ petition in the civil suit

pending before the competent civil court, where it will

be open to all parties to urge their respective cases

without being adversely 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 of all necessary formalities.

(Sabyasachi Bhattacharyya, J.)