Suraj Moulders Private Limited vs Government Of West Bengal
2023 Latest Caselaw 3128 Cal

                       In the High Court at Calcutta

                     Constitutional Writ Jurisdiction

                                Appellate Side

The Hon'ble Justice Sabyasachi Bhattacharyya

                           W.P.A. No.522 of 2023

                      Suraj Moulders Private Limited
                                     Vs.
                    Government of West Bengal, through
                the Secretary, Department of Power and others

     For the petitioner               :      Mr. Pranit Bag,
                                             Mr. Rahul Poddar,
                                             Mr. Riddhiman Mukherjee,
                                             Ms. Oindrila Ghosal,
                                             Ms. Shrayasi Dhang

     For the respondent no.6          :      Mr. Ratnesh Kumar Rai,

Mr. Ankan Rai, Mr. Sayantaan Das

Hearing concluded on : 24.04.2023

Judgment on : 02.05.2023

Sabyasachi Bhattacharyya, J:-

1. The petitioner Suraj Moulders Private Limited is a lessee under

respondent no.5 Machino Transport Private Limited in respect of the

disputed property by virtue of an agreement of lease dated February

24, 2018. In the lease deed it was, inter alia, provided that electricity

up to 50 KW shall be supplied/provided from the transformer installed

at the premises in the name of respondent no.6 and the

lessee/petitioner shall pay all electricity charges for energy consumed

by the lessee and proportionate transformer loss as payable to

respondent no.6 according to the reading in an exclusive sub-meter at

the disputed premises.

2. Subsequently, on September 29, 2022 a copy of a notice purportedly

dated September 20, 2022 was sent on behalf of the respondent no.6

to the petitioner, addressed also to the other tenants at the property,

where it was alleged that the tenants, including the petitioner, were

enjoying supply of electricity from the connection of respondent no.6

and never tried to obtain separate electricity connection from CESC

Limited from their respective consumptions. It was further mentioned

that such supply was a good gesture of the respondent no.6 just to

support the tenants to "grow in their respective businesses". It was

indicated that the respondent no.6 was planning to have future new

projects at the premises which would otherwise increase the electricity

consumption of the said respondent; consequently, there would be

possibilities of explosion in the transformer and other hazardous

activities because the transformer would not be able to bear the

pressure of the heavy consumption of electricity both by respondent

no.6 and the tenants. On such ground, the respondent no.6

expressed its inability, through its advocate's letter, to supply

electricity at the premises of the tenants from its own connection any

further and advised the tenants, including the petitioner, to apply

before the CESC Limited for separate connection at their respective

premises for supply of electricity. Such exercise was directed to be

completed within Ten (10) days within receipt of the notice. In default,

the respondent no.6 threatened disconnection of the supply of

electricity at the premises of the said tenants.

3. The petitioner acted accordingly and, upon due payment, took a new

connection on November 29, 2022. The respondent no.6, on the other

hand, disconnected the supply of electricity to the petitioner's portion

on November 22, 2022.

4. However, again on December 14, 2022 respondent no.6 gave a notice

to the petitioner and the other tenants citing a "judicial order" and

asked the tenants to stop drawing electricity from any other meter

and/or parallel connection, particularly the one lying in the name of

the present writ petitioner, so as to enable respondent no.6 to supply

electricity in alleged compliance of the order dated December 2, 2022

passed in a civil revision between the respondent nos.5 and 6.

5. Learned counsel for the petitioner contends that, in pursuance of

such notice, the CESC Limited issued a notice on January 3, 2023 to

the petitioner, threatening to depute its personnel on January 9, 2023

at 10 am to 12 noon to de-energize the supply of the new meter in the

name of the petitioner. Allegedly, the ground for such threatened

action was the order passed in the Civil Revision bearing CO No.3585

of 2022 between the respondent nos.5 and 6. It was indicated that

reenergizing the same would be subject to further orders of the High

Court.

6. Challenging the said notice, the present petition has been preferred.

Learned counsel for the petitioner argues that the respondent no.6 is

debarred by Estoppel from resiling from its previous position, directing

the petitioner to take a new electricity connection in its own name and

to disconnect the supply from respondent no. 6. It is contended that

the petitioner as well as the respondent no.6 acted on the lease deed,

whereby the respondent no.6 was duty-bound to provide electricity to

the petitioner from its own meter. Again, when the notice dated

September 29, 2022 was issued to the petitioner by the respondent

no.6 itself, directing the petitioner to take its own connection, the

same was also acted upon by the petitioner, who, upon payment of

substantial amounts, took a new connection on November 29, 2022.

Hence, the respondent no.6 cannot, at its own whims, again resile

from such position and seek disconnection of the petitioner's

independent electricity supply.

7. Secondly, it is argued that the sole ground on which the respondent

no. 6 and the CESC Limited sought disconnection was the order

passed in CO No.3585 of 2022 on December 2, 2022. However, the

petitioner was not a party to the said litigation and is not bound by

the said order. Moreover, the direction of the revisional court was

merely an observation that enjoyment of the electricity by the opposite

parties therein may be permitted to be continued in the manner as

before being supplied by the petitioner therein, that is, the present

respondent no.6 till the end of January, 2023.

8. There is nothing in such order, it is argued, which would compel the

CESC Limited or the respondent no.6 to seek disconnection of the

petitioner's independent electricity supply.

9. The dispute as regards the property being joint between the

respondent nos.5 and 6 is sub judice in a civil suit between the said

parties and does not bind the petitioner in any manner whatsoever.

Hence, it is argued that the CESC Limited has no cause of action to

de-energize/disconnect the independent electricity supply of the

petitioner.

10. The respondent no.6 contested the writ petition primarily on the

ground that since the petitioner has been admittedly enjoying

electricity connection in both portions from the meter of the

respondent no.6 throughout its tenancy, it cannot be disputed by the

petitioner that the property is joint.

11. It is further argued that the structure raised on the property, from

which the new electricity connection has been given to the petitioner,

is an unauthorized and illegal construction and, as such, the

electricity supplied therefrom contravenes the law.

12. It is further argued by the respondent no.6 that every co-owner has

right and interest in the whole property. Without permission of the

respondent no.6, a co-owner, the construction could not be raised for

the purpose of giving electricity connection to the tenants by the

respondent no.5.

13. It is further argued that the petitioner was aware from the inception

regarding the issue of over-drawal of electricity in the premises.

However, the petitioner, who is also a tenant of the respondent no.6,

ought to have sought permission before erecting or aiding

unauthorized construction, which it deliberately did not do.

14. Hence, it is argued that the petitioner has not come to court with

clean hands and is not entitled to any relief.

15. In such context, reliance is placed on the judgment of Lourdu Mari

David and others Vs. Louis Chinnaya Arogiaswamy and others,

reported at (1996) 5 SCC 589.

16. The respondent no.6 also cites a judgment reported at (2007) 6 SCC

120 [Arunima Baruah Vs. Union of India and others] to challenge the

maintainability of the writ petitioner. In the said judgment, it was

held that unless all material facts are disclosed, the writ petition

would not be maintainable.

17. The respondent no.6 also places reliance on a Single Judge decision of

the Kerala High Court reported at AIR 2022 Ker 157 [J. Rajendran

Pillai Vs. B. Bhasi and others].

18. It is contended on the strength of such judgment that every co-owner

has a right and interest in the whole property and attempts of one co-

owner to erect any construction in the common property without

obtaining the consent of all co-owners ought to be restrained, along

with any accomplice of his.

19. A perusal of the documents annexed to the pleadings in the present

case clearly bring out certain facts.

20. Although the lease deed dated February 24, 2018 was executed

between the petitioner and the respondent no.5, it was clearly

indicated therein that the lessee would be supplied with electricity up

to 50 KW from the transformer of respondent no.6 and would pay

proportionately for the transformer loss as well as for the energy

consumption. The said deed was admittedly acted upon by regularly

supplying the petitioner with electricity from the transformer of the

respondent no.6, without any dispute being raised in that regard by

the respondent no.6.

21. However, by the subsequent Notice dated September 29, 2022, which

placed reliance on a purported previous notice dated September 20,

2022 the respondent no.6 specifically directed the tenants, including

the petitioner, to take separate connection within ten days. The

reason cited was clearly that the respondent no.6 was planning

certain new future projects which would require a heavier load of

electricity.

22. The petitioner acted upon such direction of the respondent no.6 and

took a new electricity connection on November 29, 2022, which was

provided by the CESC Limited without any demur. The respondent

no.6, moreover, also acted upon its own notice by disconnecting its

supply to the petitioner from the transformer of the respondent no.6,

even before the new connection was given to the petitioner.

23. Hence, the respondent no.6 was bound by Estoppel from resiling from

such position immediately thereafter and giving a notice to the

petitioner on December 14, 2022, asking the petitioner to immediately

stop drawing electricity from its own meter and insisting that the

respondent no.6 only could supply it.

24. Even apart from the bar of Estoppel, the sole ground which was cited

for such directive was the order passed in CO No.3585 of 2022 on

December 2, 2022. However, the petitioner was never a party to the

said proceeding or the suit from which the same arose. Hence, the

petitioner was not bound by the said order by any stretch of

imagination.

25. Moreover, a perusal of the said order clearly indicates that, by virtue

of the same, it was stipulated that enjoyment of electricity by the

opposite parties in the revision, that is, the respondent no.5 and

others, may be permitted to continue in the manner as before, being

supplied electricity by the revisionist petitioner (present respondent

no.6) till the end of January, 2023.

26. The said direction on the respondent no. 6 could not in any manner

justify the disconnection of the petitioner's supply.

27. There is no other reason cited in the notice dated December 14, 2022

than the alleged violation of the order of the revisional court.

28. Rather, the respondent no.6 had specifically directed the petitioner to

take its own electricity supply at the premises under the threat of

disconnection of the existing supply from the transformer of the

respondent no.6, which was fully acted upon by the respondent no.6

itself by disconnecting such supply from its transformer to the

petitioner. The petitioner also acted upon the same and invested huge

amounts of money and resources to take the new electricity

connection. The alleged illegality in the construction from which the

new connection was given never featured in the communications,

either by the respondent no.6 or by the CESC Limited, at any point of

time.

29. It is a new ground sought to be made out before this Court for the first

time in the writ petition. It is well-settled that a new ground for the

impugned action cannot be set up for the first time in the pleadings

made in the affidavit-in-opposition to the writ petition, which has

precisely been done in the present case by the respondent no.6.

30. Insofar as the CESC Limited is concerned, being satisfied of

compliance of all formalities by the petitioner, it had given electricity

supply to the petitioner and there is no allegation on the part of the

CESC Limited that any electricity law or regulation was contravened

by the petitioner at any point of time, to instigate the CESC Limited to

disconnect its supply.

31. Inasmuch as the order of the revisional court is concerned, neither the

CESC Limited nor the petitioner are parties thereto and the said order

does not in any manner necessitate or justify the threat of

disconnection issued by the CESC Limited to the petitioner, which is

entirely unwarranted and de hors the law. In such circumstances, the

impugned notice of the CESC Limited dated January 3, 2023 is

palpably illegal and cannot survive judicial scrutiny.

32. Accordingly, WPA No.522 of 2023 is allowed, thereby setting aside the

impugned notice dated January 3, 2023 insofar as the petitioner is

concerned. The respondent nos.2 and 3, being the CESC Limited and

its District Engineer, are restrained by an order of injunction from

giving any effect whatsoever to the said impugned notice which,

hereby, stands quashed and set aside.

33. There will be no order as to costs.

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

upon compliance of due formalities.

( Sabyasachi Bhattacharyya, J. )