Nirmal Kumar Khaitan And Another vs The Joint Chief Electrical ...
2023 Latest Caselaw 3237 Cal

                       In the High Court at Calcutta

                      Constitutional Writ Jurisdiction

                                Appellate Side

The Hon'ble Justice Sabyasachi Bhattacharyya

                            W.P.A. No.15519 of 2022

                  Nirmal Kumar Khaitan and another
                                    Vs.
     The Joint Chief Electrical Inspector & Member Secretary (Lifts)
                                and another

      For the petitioners             :     Mr. Siddhartha Banerjee,
                                            Mr. Soumojit Majumder,
                                            Ms. Soni Ojha,
                                            Ms. Sonia Nandi

      For the State                   :     Ms. Tuli Sinha

      For the respondent no.2         :     Mr. Rahul Karmakar,

Mr. Sounak Mukherjee, Mr. Sourav Guchhait, Mr. A.P. Agarwalla

Hearing concluded on : 02.05.2023

Judgment on : 08.05.2023

Sabyasachi Bhattacharyya, J:-

1. The private respondent, whose ownership in respect of the premises at

building no.12/1, Keyatala Lane, Kolkata - 700 029, has been

challenged by the petitioners, who claim to be owners of the premises.

The bone of contention is a lift installed by the private respondent

no.2 in the suit building. According to the petitioners, the installation

and operation of the same is unlawful, being contrary to the existing

law.

2. The petitioners have specifically challenged a communication by

respondent no.1, the Joint Chief Electrical Inspector and Member

Secretary (Lifts), Directorate of Electricity, Government of West

Bengal. Vide such communication no.SS/397 dated February 22,

2022, the respondent no.1 intimated the respondent no.2, with

reference to a letter dated February 17, 2022 by respondent no.2

regarding permission of install and operate such lift, that, as per the

West Bengal Lift and Escalator Act and Rules, a single phase home lift

does not require any licence from the Directorate of Electricity,

Government of West Bengal. It was further indicated that hence, the

respondent no.2 need not require erection permission and licence for

operation of the lift from the end of respondent no.1.

3. Learned counsel for the petitioners places reliance on the West Bengal

Lifts, Escalators and Travelators Act, 2019 (for short, "the 2019 Act").

By placing particular reliance on the definition of "lift" as provided in

Section 3(i), it is contended that a lift means a hoisting and lowering

mechanism equipped with a lift car which is designed to move in

guides in a substantially vertical direction and is worked by power and

includes a machine room less lift.

4. Section 2 stipulates that nothing in the Act shall apply to installation

and working of any lift, escalator or travelator in certain cases as

stipulated therein, which includes mines, factories, premises of the

Central Government or its undertakings and premises owned or

controlled by the Public Works Department of the Government of West

Bengal. However, 2(v) provides that such non-applicability extends to

any premises or any class or sub-class of elevating device as the State

Government may, by notification, exempt.

5. It is argued that Section 5 cannot go against the grain of the Act itself.

6. Section 5(1) provides that no owner of any premises shall, on or after

the commencement of the Act, install lift or escalator or travelator in

such premises except under, and in accordance with, the permission

granted under the Act. Sub-section (2) provides that such application

of permission to install lift or escalator or travelator shall be made to

the Chief Electrical Inspector. Sub-section (3) of Section 5 stipulates

that on receipt of an application under sub-section (2), the chief

Electrical Inspector shall, after making such inspection as he deems

necessary, either grant or refuse to grant permission. In the present

case, it is contended, such inspection was never held by respondent

no.1 at all.

7. Section 6(1) of the 2019 Act stipulates that no lift or escalator or

travelator shall be worked except with a licence granted under this Act

and in conformity with the terms and conditions of the licence and in

accordance with such rules as may be prescribed in this behalf under

the Act.

8. Sub-section (3) of Section 6 provides that on receipt of an application

under sub-section (2), the Chief Electrical Inspector shall, after

making such inspection as he deems necessary, either grant or refuse

to grant licence.

9. In the present case, since the requirement of obtaining permission

was waived by the Chief Electrical Inspector, the respondent no.2

proceeded to install and operate the lift, contrary to the law.

10. Learned counsel for the petitioner places reliance on the West Bengal

Lifts Rules, 1958 (in brief, "the 1958 Rules"). It is argued to have been

prevalent at the relevant juncture when the impugned communication

dated February 22, 2022 was made.

11. There is no provision in the said Rules equivalent to Rule 80 of the

subsequent Rules of 2022, which has been relied on by the private

respondent no.2.

12. It is argued by the petitioner that, in the Act, there is no exception for

„home lifts‟, nor is there any definition of the said term within the four

corners of the Act.

13. It is further argued that Rule 80 of the 2022 Rules, relied on by the

respondent no.2, excludes certain types of lifts from the operation of

the Rules themselves and not the 2019 Act.

14. Learned counsel further argues by placing reliance on the Preamble of

the 2019 Act that one of the primary objects and purposes of the

statute is to ensure safety in respect of lifts and escalators, which has

been flouted in the present case.

15. Learned counsel appearing for the respondent no.2 places reliance on

Rule 80 in Chapter VII of the West Bengal Lifts, Escalators and

Travelators Rules, 2022 (hereinafter referred to as, "the 2022 Rules")

which provides for lifts, escalators and travelators not covered under

the Rule. It is argued that Home Lifts (Single Phase) is, inter alia,

included within such exceptions as stipulated in Rule 80.

16. It is further contended that Home Lifts (Single Phase), as mentioned

in Rule 80 of the 2022 Rules, are put in a separate class than lifts,

escalators and travelators installations owned by the Central

Government, or Central Government Undertakings and State

Government and Public Works Department within the State of West

Bengal, as being excluded from the purview of the Rules. Hence, it is

argued that the respondent no.1 was justified in communicating that

no permission was necessary for installing and operating such a lift.

17. Learned counsel appearing for the respondent no. 2 also places

reliance on a subsequent report filed upon enquiry by the respondent

no.1 which endorses the view that Rule 80 of the 2022 Rules carves

out an exception to the applicability of the Act of 2019 insofar as

Home Lifts (Single Phase) are concerned.

18. Learned counsel for the respondent no. 2, by placing reliance on the

averments made in paragraph no. 4(i) and 4(j) of his affidavit-in-

opposition, submits that one M/s. Sky Elevator and Technology, a

firm engaged in the business of installing lifts which was contacted in

the Month of February, 2021, upon inspecting the premises, provided

a specification of Hydraulic lift to be installed within the space

available between the staircase with a capacity of wheel chair with one

person. The said lift did not require any work of construction, it is

argued. Iron shaft and rod is to be affixed by use of nuts and bolts

with slide excavation of a lift pith of less than 2 ft. The lift would not

require any machine room and the entire lift is within the existing

staircase which remains untouched. Admittedly, eighty-five per cent

of the work had been completed by the end of November, 2021.

19. Hence, it is argued that the petitioners‟ challenge to the

communication of the respondent no.1 in that regard is frivolous and

ought to be dismissed.

20. A perusal of the materials-on-record indicates that the impugned

communication, intimating that no permission would be required for a

Home Lift (Single Phase), was made by the respondent no.1 on

February 22, 2022. However, as rightly pointed out by learned

counsel for the petitioner, the said Rules were published in the

Kolkata Gazette, Extraordinary dated November 11, 2022 and came

into force only subsequent to such communication being made by the

respondent no.1. As such, the said Rules could not have been

invoked at the relevant juncture, when the installation of the lift

started. Admittedly, eighty-five per cent of the work was completed by

November, 2021 and, by the time the 2022 Rules came into force, the

lift had been substantially constructed. Hence, the 2022 Rules are

not applicable to the present case.

21. Even if it was assumed that the said Rules are applicable, Rule 80

clearly exempts certain categories of lifts, escalators and travelators

from the purview of the Rule of 2022 and not the Act, as rightly

argued by the petitioner.

22. There is sufficient scope of doubt as to whether Home Lifts (Single

Phase) can be culled out as a separate category altogether, to disjunct

the same from the expression "owned by Central Government or

Central Government Undertakings".

23. Rule 80 is quoted herein below:

"80. Lifts, Escalators and Travelators not covered under this Rule.-

Home Lifts (single phase), Lift, Escalator, Travelator installations owned by

Central Government or Central Government undertakings, Lift installations

owned by State Governments or erected or maintained by Public Works

Department or installations of any other State Governments within the State of

West Bengal are not covered by this Rule."

24. A perusal of the same indicates that apparently, the expression "Home

Lifts (Single Phase)" find place in the same category as lift, escalator,

travelator installations, which are qualified by the expression "owned

by Central Government or Central Government Undertakings" and lift

installations owned by the State Government, etc.

25. Thus, on a plain reading of the said Rule, it transpires that Home Lifts

(Single Phase) have also to come within the category of installations

owned by the Central Government, the State Government or Public

Works Department for being exempted from the Rules. In the present

cause, it is nobody‟s case that the building-in-question is a

Government building or belongs to the PWD. Thus, under no stretch

imagination can Rule 80 of the 2022 Rules be invoked in the present

case.

26. Inasmuch as rules are concerned, the 1958 Rules were in vogue till

the coming into force of the 2022 Rules and, thus, it is the 1958 Rules

which were prevalent at the relevant point of time when the impugned

communication was made by respondent no.1 and the lift was

substantially constructed.

27. There is no provision in the said Rules regarding home lifts, single

phase or otherwise, either in the definition clause or as an exception

within the four corners of the said Rules in general.

28. Hence, we are reverted back to the 2019 Act itself. The only rider

which could perhaps be relied on by the respondents is Section 2(v) of

the said Act, which stipulates that nothing in the Act shall apply to

installation and working of any lift, etc. in any premises or any class

or sub-class of elevating device as the State Government may, by

notification, exempt. In the present case, no such notification has

been produced by the respondents at all. The sole reliance placed by

the Chief Electrical Inspector himself in the subsequent enquiry is on

the 2022 Rules and no other notification has been brought forward.

29. Nowhere in the definition of "lift" or "lift installation", as provided in

Section 3(i) and (k), is there any special provision for home lifts.

30. Section 5 clearly indicates that no owner of any premises, after the

commencement of the Act, shall install a lift except under and in

accordance with the permission granted under the Act. Section 6

precludes any such lift from being worked or operated except a licence

granted under the Act and in conformity with the terms and

conditions of the licence and in accordance with such rules as may be

prescribed in the behalf under the Act (in the present case, the 1958

Rules).

31. The installation and the working of lifts in West Bengal are to be

preceded by permission and licence respectively, both of which, again,

are required to be preceded by inspection by the Chief Electrical

Inspector. In the present case, there is nothing from the end of the

Chief Electrical Inspector to show that any such inspection was made

at any point of time. Although the expression "as he deems

necessary" is used as a suffix to the term "inspection" in Sections 5(3)

and 6(3), such discretion pertains to the nature of inspection. The

expression used is "such inspection as the Chief Electrical Inspector

deems necessary", and not "inspection, if he deems necessary". In the

present case, there is no whisper of any such inspection having been

made at all. In any event, the impugned communication dated

February 22, 2022 precludes the scope of such prior inspection, since

the Chief Electrical Inspector was, at the outset, of the opinion that no

permission is required for Home Lifts (Single Phase).

32. As regards the object and purpose of the 2019 Act, the Preamble

thereof is a sufficient indicator that the same is to provide for the

regulation of the installation, maintenance and safe working of lifts,

escalators and travelators and all machinery and apparatus pertaining

thereto in the State of West Bengal and for matters connected or

incidental thereto.

33. The provisions of the Act amply demonstrated the safety measures

required. Prior licence, permission, etc., for working and installation

of lifts are all for ensuring public safety as envisaged in the Preamble,

which has been patently flouted in the present case. Any other

interpretation of the Act than that sought to be given by the petitioner

would flout such safety, in particular the interpretation sought to be

lent to the Act by the respondents.

34. In view of the expression "lift" and "lift installations" having clearly

been defined in the 2019 Act and there being no definition of any

special category or exception provided for the category of "home lift",

single phase or otherwise, in the 2019 Act itself, the sub-class sought

to be created as exempted by the respondents is wholly de hors the

law and patently unlawful.

35. In Arabinda Nath Jati Vs. The State of West Bengal and others [WPA

No.4013 of 2023], cited by the petitioner, the Court was considering

the submission of counsel that there is no specific qualification or

exception regarding home lifts for the purpose of obtaining licence,

apart from home lifts which are owned by the Central Government or

Central Government undertakings, etc. However, no conclusive

finding was returned on such submission by the Court. As such, the

said judgment did not lay down any ratio on such score.

36. As regards Avishek Goenka (1) Vs. Union of India and another, reported

at (2012) 5 SCC 321, learned counsel for the petitioner is justified in

arguing that the right to life guaranteed under Article 21 of the

Constitution of India includes the right to safety against crime.

Although, in the present case, the safety contemplated in the 2019 Act

is not exactly from crime, the same is for safety of the public at large

nonetheless. Hence, the proposition laid down in Avishek Goenka

(supra) to the effect that the citizens at large have a right to life, that

is, to live with dignity, freedom and safety, which emerges from Article

21 of the Constitution of India and, as opposed to this Constitutional

mandate, a trivial individual protection or inconvenience, if any, must

yield in favour of the larger public interest, holds true in respect of the

present case as well.

37. As held therein, even if some individual interests are likely to be

affected, such individual or private interests must make way for the

larger public interest. It is the duty of all citizens to comply with the

law. The rules are mandatory and nobody has the authority in law to

mould the Rules for the purposes of convenience or luxury and

certainly not for crime. In the present case, the respondents patently

flouted the 2019 Act and the then existing Rules of 1958 to come to

the conclusion that no permission was necessary for the lift-in-

question and in installing and commencing operation of the said lift.

38. Hence, the impugned communication dated February 22, 2022

(Annexure P-5 at page 68 of the writ petition) is patently illegal and

does not deserve to be sustained.

39. Hence, WPA No.15519 of 2022 is allowed, thereby setting aside and

quashing the impugned communication bearing no.SS/397 dated

February 22, 2022 made by the Joint Electrical Inspector and Member

Secretary (Lifts), Government of West Bengal. Hence, the erection and

operation of the lift-in-question is patently unlawful and

unauthorized. Thus, the petitioners are given liberty to approach the

appropriate forum seeking demolition of the said lift and ancillary

constructions. Upon such approach being made, the concerned

authorities shall proceed on such complaint immediately.

40. There will be no order as to costs.

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

upon compliance of due formalities.

( Sabyasachi Bhattacharyya, J. )