M/S. R.N. Roy & Bros vs Calcutta Electric Supply ...
2023 Latest Caselaw 2893 Cal

                      In the High Court at Calcutta

                    Constitutional Writ Jurisdiction

                               Appellate Side

The Hon'ble Justice Sabyasachi Bhattacharyya

                          WPA No. 26937 of 2022

                         M/s. R.N. Roy & Bros.
                                  Vs.
             Calcutta Electric Supply Corporation Limited
                               and others

     For the petitioner                 :   Mr. Kamlesh Jha,
                                            Ms. Srabani Biswas

     For the CESC Limited           :       Ms. Sreemoyee Mitra




     For the respondent no.3        :       Mr. Samrat Sen,

Ms. Amrita Panja Moulick

Hearing concluded on : 21.04.2023

Judgment on : 25.04.2023

Sabyasachi Bhattacharyya, J:-

1. The writ petition has been filed by a partnership firm by the name of

M/s. R.N. Roy and Bros. represented by one of its partners, namely

Tulsi Bag.

2. It is alleged by the petitioner that the petitioner has been running a

business at the disputed property and has produced photocopy of a

Certificate of Enlistment issued by the Kolkata Municipal Corporation

and two rent receipts. In its reply, the petitioner has also annexed

certain other documents, the originals of which are produced at the

time of hearing for perusal of court. According to the petitioner, the

partnership firm has two partners, Tulsi Bag and one

Krisanu/Krishanu Bag. In reply, the petitioner has annexed a licence

granted by the Commissioner of Police, Kolkata, a consolidated

electricity bill, receipt for a Certificate of Enlistment, a deed of

partnership dated August 31, 2022, etc. It is, thus, submitted that

the petitioner is in settled possession of the property and is entitled to

electricity supply to the premises. However, due to resistance by the

private respondent no.3/landlord, the CESC Limited could not hold an

inspection for the purpose of ascertaining the feasibility of giving such

connection to the petitioner.

3. Learned counsel appearing for the petitioner places reliance on a

three-Judge Bench decision of this Court reported at AIR 2011 Cal 64

[Abimanyu Mazumdar Vs. The Superintending Engineer and another].

The Full Bench held therein, inter alia, that an actual occupier in

settled possession of the property, irrespective of whether he is a

lawful occupier or not, is entitled to electricity supply.

4. The learned Senior Advocate appearing for the private respondent

contends that the private respondent is an executor of a Will of the

original owner.

5. Learned senior counsel further submits that in the Full Bench

decision of this Court in Abimanyu Mazumdar (supra), the yardsticks

were stipulated by the Full Bench for ascertaining whether a person

was in settled possession of a property.

6. It is contended that a trespasser, in order to be in "settled possession",

must be in possession extending over a sufficiently long period of time

and acquiesced to by the true owner. Merely stray or even

intermittent acts of trespass do not give such a right against the true

owner.

7. It is further argued that the Full Bench held that the "settled

possession" must be (i) effective, (ii) undisturbed, and (iii) to the

knowledge of the owner or without any attempt at concealment by the

trespasser.

8. The learned Senior Advocate submits that the petitioner Tulsi Bag,

claiming himself to be a partner of the firm, has failed to establish

that he has been in occupation of the property continuously and to

the knowledge of the true owner.

9. By placing reliance on a supplementary affidavit, filed with leave of

Court, it is submitted that the documents annexed to the same go on

to indicate that the purported Certificate of Enlistment was issued in

the name of the partnership firm upon production of certain rent

receipts which themselves do not prove the petitioner's possession in

respect of the property.

10. The learned Senior Advocate places reliance on the partnership deed

produced by the petitioner to show that the same was entered into

only in the year 2022 and, as such, the much earlier rent receipts

annexed to the writ petition could not prove the possession of the said

partnership firm, since those were issued before the formation of the

partnership.

11. In the first rent receipt annexed at page 13 of the writ petition, the

signature of the private respondent purportedly appears. It is of

March 2, 2015 and is a kuchcha receipt issued in favour of one "Ram

Nirikshman Roy and Brothers" in respect of the disputed property.

However, as per the partnership deed, the said firm did not come into

existence prior to the year 2022.

12. It is further argued that the second rent receipt (Annexure P2 to the

writ petition) was also issued in respect of the same tenant. However,

no connection between the present petitioner and the said firm has

been indicated at the relevant period. The second rent receipt is of the

Bengali year 1418 B.S., which corresponds to the English Calendar

Years 2011-2012.

13. It is further argued that if the petitioner was all along in possession of

the property, it would not have applied for a new electricity connection

as late as on October 10, 2022.

14. The learned Senior Advocate next contends that the receipt for

Certificate of Enlistment annexed to the affidavit-in-reply of the

petitioner was issued on February 16, 2016 and is based on the

unilateral declaration of the applicant. Hence, it does not prove

conclusively the existence of a firm at the premises.

15. Moreover, such receipt has been issued in favour of M/s. R.N. Roy and

Co. and not M/s. R.N. Roy and Bros. In 2016 itself, the private

respondent had initiated a suit for eviction in respect of the same

premises against the partnership firm M/s. R.N. Roy and Bros.,

arraying therein the actual partners of the firm, who are the 'Roy's

and not the 'Bag's. Thus, the identity of the two entities has not been

established.

16. Again, the Certificate of Enlistment issued by the KMC was in the

name of M/s. R.N. Roy and Bros.

17. Hence, it is argued that there is no corroboration between the

documents produced by the petitioner in respect of its argument of

possession.

18. The learned Senior Advocate also points out that the partnership deed

of 2022 does not contain any recital indicating that there was a

previous sole proprietorship in the name of M/s. R.N. Roy and Bros.

and or that it was converted into a partnership firm by the same

name.

19. The respondent no.3 relies on a co-ordinate Bench judgment of this

Court, reported at (1994) SCC OnLine Cal 174 [USG Financial Services

(Pvt.) Ltd. and another Vs. The Calcutta Municipal Corpn. and another],

for the proposition that merely because a Certificate of Enlistment is

granted to a person, it cannot be said that a licence is granted in his

favour to carry on business. Such certificates are issued for limited

purpose.

20. Section 200(3) of the Calcutta Municipal Corporation Act, 1980 (for

short, "the 1980 Act") it was held, does not contemplate a detailed

enquiry, particularly relating to legality or validity of the right of the

person applying for grant of Certificate of Enlistment or otherwise.

21. The learned Senior Advocate for the respondent no.3 next cites Samsul

Haque Mollick Vs. CESC Ltd. and others [AIR 2006 Cal 73], another co-

ordinate Bench judgment of this Court, where it was held that

issuance of a licence in his favour does not make the petitioner an

occupier or a lawful occupant of any part of the premises.

22. Although it was held in the said judgment that an unauthorised

occupant is not entitled to electricity, such proposition has

subsequently been overruled by the Full Bench decision of this Court.

However, inasmuch as the ratio laid down therein regarding the trade

licence not being sufficient proof of occupation is concerned, the same

has not been reversed in any subsequent judgment.

23. Upon hearing learned counsel for the parties, the germane question

which arises for consideration is whether the petitioner is in "settled

possession" of the disputed property within the contemplation of the

Full Bench judgment of this Court.

24. In Abimanyu Mazumdar (supra), the Full Bench held that if a

trespasser is in 'settled possession' of the property belonging to the

rightful owner, the latter shall have to take recourse to law and 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 by use of force. 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.

25. Although stray and intermittent acts of trespass cannot amount to

settled possession, we are considering in the present case as to

whether the petitioner has been able to show prima facie that the

petitioner is in settled possession of the property.

26. It has to be borne in mind that neither the Distribution Licensee nor

this Court, sitting in writ jurisdiction over the authority of the

licensee, conclusively determine the title and /or possession of a

person with regard to a property. What is to be seen is whether, for

the purpose of getting electricity connection and to come within the

purview of Section 43 of the Electricity Act, 2003 (hereinafter referred

to as, "the 2003 Act"), the petitioner has been able prima facie

convince the Court of its possession.

27. A chain of events has been sought to be impressed upon the Court by

the petitioner. From the documents on records, it is seen that there

are two rent receipts of the year 2011-12 and 2015, which were issued

respectively by the original owner and the present private respondent

no.3, the admitted executor of the Will of the original owner.

28. As long back as in the year 1968, the Assistant Commissioner,

Commercial Tax, North Circle, had issued a communication regarding

payment of tax with regard to Appeal Case No.A-232/68-69 to M/s.

R.N. Roy and Co. (Prop. Satish Chandra Bag). The expression "Prop."

signifies "proprietor". As such, the said entity was a proprietorship of

Satish Chandra Bag.

29. From the partnership deed dated August 31, 2022 produced by the

petitioner, it is seen that one of the partners, Krisna Bag is the son of

one Swapan Kumar Bag.

30. We find from the annexures to the affidavit-in-reply of the petitioner

that a licence under the West Bengal Baby Food Licensing Order,

1966 was issued, at least till 1993 in favour of M/s. R.N. Roy and Co.

standing in the name of the present petitioner Tulsi Bag alias Tulshi

Das Bag, Swapan Kumar Bag and others.

31. The said licence was apparently renewed, as per the seals appearing

on the document, at least from 1986 to 1993.

32. Again, a licence granted by the office of the Commissioner of Police,

Kolkata, to Krisna Bag as a keeper of a house or place of public resort

and entertainment, on March 9, 2016.

33. A consolidated electricity bill dated August 31, 2015, also in respect of

the same premises, was issued in the name of "Shri R.N. Roy" and has

come from the custody of the writ petitioner. The receipt for Certificate

of Enlistment was dated February 6, 2016. Such Certificate, of a

contemporaneous period, has also been annexed with the affidavit-in-

opposition filed by the respondent no.3, issued in the name of M/s.

R.N. Roy and Co.

34. The respondent no.3 argues that the signatory in one of the rent

receipts produced by the petitioner, Subhash Chandra Sur, expired on

December 9, 2019, as per death certificate produced with its affidavit-

in-opposition. Hence, the said rent receipt could not have been issued

on the relevant date.

35. However, it is seen from the rent receipt, a copy of which has been

annexed, that the same was issued in the Bengali Year 1418 B.S.,

which roughly corresponds to the English Calendar Year 2011-12 and,

thus, was issued prior to the date of death of Subhash Chandra Sur.

36. Such rent receipts were issued in the name of M/s. R.N. Roy and

Bros.

37. Thus, we find that although the terms 'M/s. R.N. Roy and Co.' and

'M/s. R.N. Roy and Bros.' have been used interchangeably at various

points of time, the Bags, including the father of one of the partners of

the present partnership firm, has been in possession of the property

in some capacity or the other. Be it as a proprietor or a partner, the

petitioner has also been found to feature in some of the documents of

yester years, for example, the licence issued under the West Bengal

Baby Food Licence order, 1966 which was renewed at least from 1986

to 1993.

38. The eviction suit was filed by the private respondent no.3 in the name

of M/s. R.N. Roy and Bros., although mentioning persons other than

the petitioner as its partners.

39. Hence, the existence of M/s. R.N. Roy and Bros. at least in 2016 is

admitted by the respondent no.3 itself.

40. The mere user of the different expressions 'M/s. R.N. Roy and Co.' and

'M/s. R.N. Roy and Bros.' in different documents cannot itself vitiate

the very existence of a concern by the said name at the premises

during the entire relevant period, be it as a proprietorship or a

partnership firm.

41. This is not a case where the petitioner has been shown to be a

trespasser by dint of mere "stray or intermittent acts of trespass", but

in occupation of the property over a number of years.

42. At this stage, the writ court cannot make a detailed enquiry, upon

appreciation of evidence and records, as to whether the same was to

the knowledge of the owner or there was any attempt at concealment

by the trespasser.

43. In the present case, rather, at all material points of time, the

petitioner or the firm, either in its incarnation as 'M/s. R.N. Roy and

Co.' or in the Avatar of 'M/s. R.N. Roy and Bros.' has consistently

obtained licences, receipts or permissions from several authorities in

respect of the disputed premises.

44. Documents have been produced for different periods from the year

1968 till 1993 over and above the current Certificate of Enlistment

coupled with the partnership deed of 2022.

45. Such prima facie proof of occupation over a large span of time cannot

be brushed aside merely as stray or intermittent act of trespass.

46. As discussed above, it has been settled by the Full Bench of this Court

in Abimanyu Mazumdar (supra) that if a person is in settled

possession of the property, irrespective of the lawfulness of such

possession, he is entitled to get electricity connection at the premises

as an occupier under Section 43 of the 2003 Act.

47. The respondent no.3 has hinted at applicability of the Works of

Licensees Rules, 2006, which uses the expression 'lawful occupier'.

However, it is premature to delve into such issue at this stage since

the Works of Licensees' Rules operates on a somewhat different

footing. The said Rules govern the laying of electricity connection or

lines to enable the distribution of electricity to consumers, whereas

Section 43 of the 2003 Act deals with the very right of an occupier to

get electricity connection at the premises, which precedes the laying of

cables.

48. To assert such right, as held by the Full Bench of this Court, it is not

necessary for a person to show the legality of his occupation. Mere

settled possession is sufficient for such purpose. Lawfulness of

occupation may, at best, be relevant to some extent when permission

is required to be sought by the licensee for laying cables to take

electricity connection over somebody's property. Hence, the reliance

of the respondent no.3 on the Works of Licensees' Rules, 2006 in the

present context is misplaced.

49. Insofar as the veracity of a trade licence vis-à-vis possession of

property is concerned, the learned Single Judge held in Samsul Haque

Mollick (supra) that the trade licence does not make the petitioner an

"occupier or a lawful occupant" of any part of the premises. It is

clearly seen from such expression used in paragraph 4 of the said

judgment that the terms "occupier" and "lawful occupant" were used

interchangeably with the conjunction "or" inserted inbetween. The

next few sentences clearly indicate that the expression "occupier" used

in Section 43 of the 2003 Act was construed by the learned Single

Judge to mean a lawful or authorised occupant, leading to the

conclusion that the expression "shall not include an unauthorised

occupant of a premise". Thus, the said observation is linked

inextricably with the proposition laid down therein, that is, the

unauthorised occupant is not entitled to get electricity connection,

which proposition has been overruled by the Full Bench judgment of

this Court in Abimanyu Mazumdar (supra). In any case, it is well-

settled that mere issuance of a trade licence cannot confer legal right

of possession of a person in respect of the property, if the person does

not otherwise have title or authority from the true owner.

50. Hence, the said observation in Samsul Haque Mollick (supra) is of no

relevance to the present case.

51. Insofar as USG Financial Services (supra) is concerned, it was held by

the learned Single Judge, while deciding on the scheme and purport of

the Calcutta Municipal Corporation Act, 1980, that only because a

Certificate of Enlistment is granted, the same does not mean that a

licence is granted in his favour to carry on business. However,

nothing is observed in the said judgment regarding the occupation or

possession of the premises.

52. Rather, it is clearly observed by the Court that an enquiry held under

Section 200(3) of the 1980 Act was for a limited purpose, that is, for

the purpose of ascertaining whether the contents of the application

are correct or not. One of the contents of such certificate is the

address, signifying prima facie occupation of the applicant in the

premises mentioned in his application. Hence, the cited decision

endorses the view that the enquiry held for the purpose of issuing a

certificate of enlistment carries a presumption of correctness relating

to its contents, including the location of the business-in-question for

which the certificate is issued.

53. As observed in USG Financial Services (supra), such enquiry does not

contemplate a detailed examination of the legality or validity of the

right of the person applying.

54. However, that is the precise proposition laid down in the Full Bench

decision of this Court in Abhimanyu Mazumdar (supra), to the effect

that legality of occupation is irrelevant for the purpose of grant of

electricity, provided a person is shown to be in occupation of the

property.

55. A comprehensive assessment of the materials on record in the present

case clearly indicates that the petitioner has produced sufficient

documents to raise prima facie presumption of the petitioner being in

occupation of the premises, lastly pursuant to the partnership deed

entered into by the petitioner.

56. As held earlier, neither the writ court nor the distribution licensee has

the jurisdiction to examine, upon assessment of detailed evidence, as

to whether the petitioner is in lawful possession of the property or not.

57. Contrary to the argument of the learned Senior Advocate for the

respondent no.3, the findings of this Court regarding the petitioner

being in settled possession are not conclusive but are tentative,

arrived at only for the purpose of deciding whether the petitioner is

entitled to electricity within the contemplation of Section 43 of the

2003 Act.

58. Hence, the rights and contentions of the parties in a pending suit

cannot, in any manner, be affected by the observations made herein.

59. Insofar as the CESC Limited is concerned, the same, as a distribution

licensee, plays a neutral role, which is appropriate keeping in view the

impartiality which ought to be maintained by the licensee.

60. However, it has been submitted by the CESC Limited that its

personnel could not hold inspection to ascertain the feasibility and

raise a quotation for giving a new electricity connection to the

petitioner at the said premises, due to resistance put up by the

respondent no.3 and her men and agents.

61. In view of the above discussions, the petitioner has been able to

satisfy this Court sufficiently as regards the petitioner's right to get an

independent electricity connection at the premises-in-question.

Accordingly, WPA No.26937 of 2022 is allowed, directing the CESC

Limited to hold an inspection at the premises-in-question within a

fortnight from date to ascertain the feasibility of giving electricity

connection to the petitioner and, upon such inspection, if otherwise

feasible to give connection, to raise a quotation and serve it on the

petitioner.

62. Upon compliance of all formalities by the petitioner in that regard, the

CESC Limited shall give the new electricity connection to the

petitioner at the disputed premises within one week from the date of

such compliance of formalities. Either on the occasion of the

inspection or giving electricity connection to the petitioner, if the

CESC Personnel are obstructed in any manner by the private

respondent no.3 and/or her men and agents in doing so, it will be

open to the CESC Personnel to approach the local police station for

adequate police assistance, which will be given by the Inspector-in-

Charge/Officer-in-Charge, as applicable, of the said police station at

the cost of the petitioner, by acting on a server copy of this order. It

will be open to the police personnel to remove any hindrance or

padlock, if put up to resist the CESC Personnel from entering into the

premises, for the limited purpose as indicated above.

63. It is, however, made clear that nothing in this order and/or the

electricity connection, if given to the petitioner, shall prejudice the

rights and contentions of the parties in any manner before any court

of law or other legal forum.

64. There will be no order as to costs.

65. Urgent certified server copies, if applied for, be issued to the parties

upon compliance of due formalities.

( Sabyasachi Bhattacharyya, J. )