Calcutta High Court (Appellete Side)
Shri Prabir Kumar Bhadra And ... vs West Bengal State Electricity ... on 29 March, 2023
AD-38
Ct No.09
29.03.2023
TN
WPA No. 27190 of 2022
Shri Prabir Kumar Bhadra and others
Vs.
West Bengal State Electricity Distribution Company
Limited and others
Mr. Puspal Chakraborty,
Mr. Prisanka Ganguly
.... for the petitioners
Mr. Mihir Kundu
.... for the WBSEDCL
Dr. Madhusudan Saha Roy
.... for the private respondent
Learned counsel for the petitioners contends
that it is well-settled that a person in settled
possession of a property, irrespective of the lawfulness
or otherwise of such possession, is entitled to get
electricity connection under Section 43 of the
Electricity Act, 2003 (hereinafter referred to as "the
2003 Act"). Learned counsel places reliance on a full
Bench judgment of this court rendered in Abhimanyu
Mazumdar vs. Superintending Engineer and another,
reported at AIR 2011 Cal 64.
Learned counsel further submits that the
private respondent is a neighbour of the petitioners
and has no locus standi to raise objection to the
electricity connection being given to the petitioners. It
is submitted that at the behest of the private
respondent no.4, the Municipality has issued a
demolition notice in respect of the building where the
petitioners are residing. However, a writ petition filed
against the same by the writ petitioners is at present
sub judice before a coordinate Bench of this court.
It is submitted that without awaiting the fate of
such challenge, it cannot be held at the present
juncture that the demolition order is sacrosanct.
Learned counsel further argues that the private
respondent has also raised a dispute with regard to an
electricity pole, erected for the purpose of giving
electricity supply to the petitioners, having been
situated on the land of the private respondent.
However, there is nothing on record to indicate the
same.
Learned counsel appearing for the private
respondent no.4 submits that the proposition laid
down by the full Bench was on the lawfulness of the
occupation of a person. However, in the present case,
the competent Municipality has already passed a
demolition order. In the teeth of such demolition
order, it cannot but be said that the building and
construction thereof are unauthorized. The same
ought not to be given a premium by an order of court
directing electricity connection.
Learned counsel further submits that Section 43
of the 2003 Act has to be read in conjunction with
Section 53 thereof, which stipulates that the licensee
has to take safety measures with regard to giving
electricity connection.
It is submitted that in view of a report by the
concerned Municipality that all the floors of the said
building were constructed in an unauthorized
manner, much exceeding the area of the sanctioned
plan, the connection, if given, shall also create
electricity and fire hazards in the locality.
Upon hearing learned counsel for the parties,
undoubtedly it appears that a demolition notice is at
present staring at the face of the petitioners.
Out of the two, the arguments advanced by the
private respondent no.4 is more acceptable with
regard to the proposition as to whether an illegal
construction, in which a person is in lawful
occupation or otherwise, can be benefited with a
direction to give an electricity connection.
The full Bench, in the judgment of Abhimanyu
Mazumdar (supra), clearly came to the conclusion that
irrespective of the lawfulness of the occupation of a
person, he or she is entitled to electricity connection
within the conspectus of Section 43 of the 2003 Act.
However, in the said judgment, the aspect which was
under consideration was entirely the lawfulness or
otherwise of the "possession", and not the legality of
the construction itself.
The two aspects are separate from each other.
Inasmuch as occupation is concerned, Article 21 of
the Constitution of India along with Section 43 of the
2003 Act definitely mandate that the licensee should
give an electricity connection to an occupier,
irrespective of the lawfulness of such occupation, in
view of the language used in Section 43.
However, the question arising in the present
case is whether the building itself suffering a
demolition notice can be blessed with a direction by a
court of law to the Distribution Licensee to give an
electricity connection to such unauthorized
construction.
Although a challenge is at present subsisting in
this court against the order of demolition at the behest
of the petitioners, such pendency of challenge ipso
facto cannot render the demolition order bad in law.
Hence, as of date, this court ought not to grant
an order directing the licensee to give electricity
connection to the petitioners at the premises, which is
under the risk of demolition at any moment in view of
the subsistence of the demolition order passed by
competent Municipality.
However, such a final order at the present
juncture would preclude the right of the petitioners to
carry on the challenge before the coordinate Bench
against the demolition order itself. In the event the
prayer of the petitioners is refused at this stage itself
on the above grounds, if the demolition order is
subsequently reversed by the coordinate Bench, it
would be an irrecoverable situation for the petitioners.
Hence, in all propriety, the final adjudication of
this writ petition ought to be stalled till the
adjudication of the other writ petition, bearing WPA
No. 6091 of 2023, which is pending against the
demolition order in this court.
Accordingly, the present writ petition is
adjourned sine die with liberty to the parties to
mention for further inclusion in the list after the other
writ petition bearing WPA No. 6091 of 2023 is decided.
The affidavit(s)-in-reply and the inspection
report filed today be kept on record.
(Sabyasachi Bhattacharyya, J.)
