Sanjoy Paul vs Calcutta Electric Supply ...
2023 Latest Caselaw 2054 Cal

AD-03
Ct No.09
28.03.2023
TN
                            WPA No. 23359 of 2022

                                    Sanjoy Paul
                                       Vs.
                     Calcutta Electric Supply Corporation Ltd.
                                (CESC) and others


             Mr. Rajendra Banerjee,
             Mr. Dip Jyoti Chakraborty
                                                   .... for the petitioner

             Mr. Debanjan Mukherji
                                               .... for the CESC Limited

             Mr. Ayan Banerjee,
             Mr. Surajit Biswas,
             Mr. Arijeet Bera,
             Mr. Aqsa Khan
                                   .... for the private respondent no.6

Learned counsel for the petitioner contends that

the private respondent has no locus standi to object to

the petitioner's application for shifting of an existing

electricity service connection and increase in load.

It is contended by the petitioner that initially a

demolition notice was issued by the Howrah Municipal

Corporation to the petitioner in respect of the

concerned premises. Subsequently, the previous

construction was demolished and upon obtaining a

valid sanction plan, the present petitioner is

constructing a new building. For such purpose, the

shifting of the service connection and the increase in

load have been applied for.

The CESC Limited, it is contended, does not

have any objection otherwise to give such connection

apart from obstruction being raised by the private

respondent.

Learned counsel for the CESC Limited submits

on instruction that, in principle, the CESC Limited

has no objection to shift the electricity connection and

increase the load as sought by the petitioner upon the

petitioner complying with all formalities. However, it

is submitted that the private respondent is objecting

to the same.

Learned counsel appearing for the petitioner, at

this juncture, places reliance on a full Bench

judgment of this court reported at AIR 2011 Calcutta

64 [Abhimanyu Mazumdar vs. Superintending Engineer

and another] for the proposition that if any person is

in settled possession of a property, irrespective of the

lawfulness of his title, the person is entitled to get an

electricity connection independently within the

contemplation of Section 43 of the Electricity Act,

2003 (hereinafter referred to as "the 2003 Act").

Learned counsel appearing for the petitioner

further submits that the private respondent is

objecting to the electricity connection shifting because

of personal grudge, since a previous illegal activity of

the private respondent was challenged by the

petitioner by way of another writ petition.

Learned counsel appearing for the private

respondent controverts the contentions of the

petitioner. It is submitted that the petitioner was

previously served with a 'stop work' notice and a

subsequent demolition notice. Thereafter, the

petitioner has been making a new construction, again

in deviation from the Municipal Laws.

As such, the Howrah Municipal Corporation has

issued a fresh 'stop work' notice to the petitioner. It is

submitted that under Section 178(2) of the Howrah

Municipal Corporation Act, 1980 (hereinafter referred

to as "the 1980 Act"), no person shall occupy or

permit to be occupied any such building or use or

permit to be used any building or a part thereof

affected by any work until permission has been

granted by the Commissioner, in the event no

completion certificate has been issued.

In the present case, it is argued, the said

provision is a clear bar to the petitioner making the

construction. Hence, the shifting of electricity and

increase in load, if granted, will be in direct

contravention of Section 178(2) of the 1980 Act. It is

further apprehended by the private respondent that in

the event the load is allowed to be increased, the

petitioner shall induct third parties and create third

party rights in respect of the building, despite the

same being an illegal construction.

In the present case, the dispute raised by the

private respondent is regarding the legality of the

construction being made by the petitioner.

However, even within the contemplation of

Municipal Law, mere issuance of a stop work notice

itself does not taint a building to be illegal, unless a

demolition notice is served.

There is a clear provision even under the

Howrah Municipal Corporation Act, 1980 for an

opportunity being given to the accused person to

represent himself on the question of whether the

construction is being made illegal.

Hence, at this juncture, it cannot be said

beyond doubt that the petitioner is making

unauthorized construction. Insofar as Section 178(2)

of the 1980 Act is concerned, the petitioner has

argued that, as envisaged in Article 254 of the

Constitution of India, the State Legislation has to give

way to a special Statute enacted by the Parliament.

The Electricity Act, 2003, being an Act of the

Legislature, while the Howrah Municipal Corporation

Act, 1980 is a State statute, the said proposition

would otherwise be applicable. However, in the

present case, as rightly submitted by the private

respondent, there is no clear conflict between Section

43 of the 2003 Act and Section 178(2) of the 1980 Act,

since the two provisions are not mutually exclusive

and can operate harmoniously.

However, at the present juncture, it would be

premature to say that if an existing electricity

connection at the same premises is merely shifted to

some other place and the load is permitted to be

increased, the same will amount to permitting the

petitioner to occupy a building which is without

completion certificate.

The shifting and increase of load sought is not a

new instance of grant of fresh electricity connection to

the petitioner, which would attract the provisions of

Section 178(2) of the 1980 Act, since no new

permission or occupation is being created by virtue of

shifting and/or increase in load.

By the same logic, Section 43 of the 2003 Act is

also not applicable as the petitioner is not seeking a

new and independent electricity connection.

Whatever may be the fate of the proceeding

going on before the Howrah Municipal Corporation

regarding the legality or otherwise of the construction

made by the petitioner, the same cannot be a

deterrent at the present moment to permitting the

petitioner to shift his existing electricity connection to

a different place within his own premises and to

increase the load thereof.

Hence, WPA No. 23359 of 2022 is allowed,

thereby directing the CESC Limited to shift the

existing electricity service connection of the petitioner

as sought by the petitioner and to ensure that the

increased load is given, of course, subject to feasibility

and compliance of all formalities by the petitioner in

that regard. It is, however, made clear that such

shifting and/or increase in load of the electricity meter

shall not ipso facto create any special equity or right in

favour of the petitioner, which the petitioner otherwise

does not have in law, and shall abide by the outcome

of the proceeding before the Howrah Municipal

Corporation with regard to the legality or otherwise of

the construction being made by the petitioner.

In the event the CESC personnel are obstructed

by the private respondent and/or his men and agents

in shifting such connection and/or increasing the

load, it will be open to the CESC personnel to

approach respondent no.5, the Officer-in-Charge,

Acharya Jagadish Chandra Bose Botanical Garden

Police Station for police assistance. If so approached,

such assistance shall be given at the cost of the

petitioner by respondent no.5 by acting on a server

coy of this order.

It is further reiterated that the shifting of

electricity connection and/or increase in load shall

not in any manner prejudice the rights of the Howrah

Municipal Corporation or the private respondent to

object to any illegality, if committed by the petitioner

in making the construction.

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.)