Surajbali Pandey & Company v. CESC Ltd. — 1994 DIGILAW 378 (CAL)

Judgment Altamas Kabir, J.: 1. The petitioner concern claims to be a tenant under the respondent No.5 in respect of one room at premises No. 1/1A, Vansitart Row, Calcutta-700001. According to the petitioner concern, it had an electric meter for D.C. connection in its name in the said room, which it had surrendered in order to obtain an A.C. connection, in keeping with the prevailing rules of the Calcutta Electric Supply Corporation Ltd (hereinafter referred to as 'CESC Ltd.'). It appears that the petitioner concern, thereafter, applied to the CESC Ltd. for A.C. connection in place of the D.C. meter, which had been surrendered, upon payment by the petitioner concern of all the necessary charges and upon compliance with all other requirements. Since the CESC Ltd. was dragging its feet in the matter, the petitioner concern appears to have approached the Calcutta District Forum and on and August, 1991, an order was passed by the Forum directing the CESC Ltd. to instal a new A.C. meter within 15 days from the date of receipt of the order. Pursuant to the said order, the CESC Ltd. was about to instal the new connection when it was served with an order passed by the learned Judge, 7th Court, City Civil Court at Calcutta in Title Suit No. 1088 of 1991, restraining it during the pendency of the suit from giving supply of electric energy to anybody till the capacity of the cable for the same was enhanced. 2. This writ application has now been filed for a direction upon the CESC Ltd. and its authorities to instal a new A.C. electric meter in the name of the petitioner concern in the room at premises 1/1A, Vansitart Row, Calcutta-700 001, which the petitioner concern claims to be in its possession, and for a further direction upon the respondents Nos. 5 and 6 not to obstruct or interfere with the petitioner's enjoyment of electricity in the said room. 3. 5 and 6 not to obstruct or interfere with the petitioner's enjoyment of electricity in the said room. 3. It appears that on coming to learn of the order of injunction passed by the learned Judge, 7th Court, City Civil Court at Calcutta, the petitioner concern applied for being added as a party in the above mentioned suit, but the said prayer was refused by the learned Judge by his Order No. 21 dated 21st September, 1992, on the ground that the petitioner concern was a third party to the facts at issue in the suit. It appears that the petitioner concern, thereafter, moved a revisional application in this Court against the said order, which was disposed of on 11th March, 1993. Although, this Court did not choose to interfere with the order passed by the learned Court below, it disposed of the revisional application with the observation that since the petitioner was not a party to the suit, any order passed therein would not be binding upon the petitioner concern so far dealings with anyone, including the CESC Ltd. in respect of the suit premises concerned, and would not also affect the rights of the petitioner concern, if any, in the suit premises in any way. 4. It is the petitioner's case that since despite the aforesaid order pa1J5ed on the revisional application of the petitioner concern, the CESC Ltd. and its authorities still did not take steps to instal the new A.C. electric meter in the room in question, the petitioner concern had no alternative but to move the present writ application on 22nd June, 1993. 'No interim order was, however, passed on the writ application and the matter was directed to be listed for hearing upon affidavits. 5. It appears that an appeal was preferred from the said order, but the learned Appeal Court also rejected the petitioner's application for interim orders. 6. It appears that, thereafter, the matter came up for final hearing before a learned Judge of this Court on 20th January, 1994, when directions were given to the CESC Ltd. and its authorities to take steps for providing a new connection to the petitioner concern, subject to all formalities being complied with. 7. 6. It appears that, thereafter, the matter came up for final hearing before a learned Judge of this Court on 20th January, 1994, when directions were given to the CESC Ltd. and its authorities to take steps for providing a new connection to the petitioner concern, subject to all formalities being complied with. 7. An appeal was preferred against the said order of the learned Single Judge and the Appeal Court, while considering the application for stay filed therein, quashed the said order and give liberty to the parties to take appropriate steps for disposal of the writ application. 8. The writ application has been taken up for hearing in the aforesaid background. 9. Appearing in support of the writ petition, Mr. Saktinath Mukherjee firstly submitted that the interim order of injunction passed by the learned Judge, 7th Court, City Civil Court at Calcutta, in the suit filed by the respondents Nos. 5 and 6, could no longer be considered as a bar to the grant of a new electric connection in the room in question, having regard to the order passed by this Court on the revisional application filed by the petitioner concern. Mr. Mukherjee submitted that this learned Court had made it very clear that any order passed in the said suit would not be binding on the petitioner in respect of dealings with anybody, including the CESC Ltd., as far as the suit premises was concerned and would not also affect the rights, if any, of the petitioner concern in respect of the suit premises in any way. 10. Mr. Mukherjee urged that the bar imposed on CESC Ltd. to grant a new connection to the petitioner in the room in question by virtue of the interim order of injunction passed by the learned Court below, was lifted by the order passed in the revisional application, so far as the writ petitioner is concerned, and the CESC Ltd. was, therefore, under an obligation to provide the petitioner with electricity, having regard' m ~he provisions of s. 12 of the Indian Electricity Act, 1910. 11. Mr. 11. Mr. Mukherjee also referred to the text of the interim order of injunction passed by the Court below, which did not absolutely restrain the CESC Ltd. from giving supply of electricity in the premises in question, and urged that the order of restraint was only till the capacity of the cable for the same was enhanced. Mr. Mukherjee urged that necessary directions could, therefore, be given to the CESC Ltd. in this writ application to enhance the capacity of the cable and to provide the petitioner with a new connection in the room in question. 12. In support of his aforesaid contentions, Mr. Mukherjee firstly referred to a 'Bench decision of the Madras High Court in the case of Ramanathan Chelliar vs. Palaniappa Chelliar and Ors.. reported in AIR 1934 Mad at Page 386, wherein while considering the effect of a compromise decree on a minor who was not properly represented in the suit, their Lordships held that where no proper guardian is proposed for a minor defendant nor any petition for leave to compromise the suit on his behalf is filed, there is no proper representation of the minor defendant in the suit and the compromise decree is a nullity and cannot be enforced against him. Their Lordships further observed that the decree could be disregarded by the minor without instituting a suit to set aside the decree. 13. Mr. Mukherjee also referred to and relied upon the decision of the Privy Council in the case of Kala Chand Banerjee vs. Jagannalh Marwari and Another, reported in AIR 1927 Privy Council at Page 108, wherein it was held that a person who had applied to be made a party to the suit, but whose prayer had been refused, is not bound by the decision in the suit. The Privy Council observed that the refusal to make the appellant a party to the suit could not be treated as having the same effect as an order to the opposite effect, although, it was plain enough from the judgments that if he had been made a party the result could have been the same in both the Courts in which he had been heard on his petitions. 14. Mr. 14. Mr. Mukherjee contended that as the order of interim injunction passed by the learned Judge, 7th Court, City Civil Court at Calcutta, was a nullity as far as the writ petitioner was concerned, the same could be disregarded and appropriate orders could be passed to enable the petitioner to get a new A.C. electric connection in the room in question. 15. Mr. Mukherjee then submitted that in view of the amended provisions of s. 12(2) of the Indian Electricity Act, 1910, a lawful occupant of a premises was entitled to electric connection in the premises under his occupation, without the consent of the landlord. Mr. Mukherjee submitted that, in the instant case, since the petitioner's occupation was not under challenge, but it had been contended that the petitioner was not a tenant and had no right in the said premises, and his application for being added as a party had been dismissed on such ground alone, the petitioner was entitled in terms of s. 12 of the above Act to have a mandatory order upon the CESC Ltd. to provide the petitioner with electricity in the room in question. 16. Mr. Mukherjee contended that the petitioner's occupation could not be unlawful as far as the owner of the premises was concerned, and it was only his landlord who could question his occupation of the room in question and to have such occupation declared unlawful. 17. Mr. Mukherjee urged that in the facts and circumstances of the case, the owner of the land was not competent to contend that the petitioner's occupation of the room in question was unlawful, before having the occupation of the lessee declared unlawful. Mr. Mukherjee urged that creation of an undertenancy or even a licence was not unlawful by itself, but that 'in cases of monthly tenancies, a bar had been imposed under s. 13 of the West Bengal Premises Tenancy Act, 1956, whereby landlords could institute suits for eviction only on anyone or more of the grounds referred to therein. Mr. Mukherjee submitted that s. 13(1)(a) of the aforesaid Act does not make it unlawful for a sub-lease to be created, but it merely enables the landlord to proceed for eviction against a tenant who creates such subtenancy without the consent of the landlord. 18. Mr. Mr. Mukherjee submitted that s. 13(1)(a) of the aforesaid Act does not make it unlawful for a sub-lease to be created, but it merely enables the landlord to proceed for eviction against a tenant who creates such subtenancy without the consent of the landlord. 18. Mr. Mukherjee sought to urge that, in such circumstances, the occupation of the petitioner in the room in question could not be said to be unlawful within the meaning of sub-so (6) of s. 12 of the Indian Electricity Act, 1910, and the petitioner was, therefore, entitled to obtain a new connection in the said room without obtaining the consent of the respondents Nos. 5 and 6 herein. 19. In support of his aforesaid submissions. Mr. Mukherjee referred to and relied upon a decision of this Court in the case of RUl1chordas (P) Ltd. vs. Vasanji Ravji Shah, reported in ILR Cal at Page 494, where the provisions of s. 12(2) of the aforesaid Act were considered and it was observed that having regard to the amendment of S. 12 of the said Act by Act 32 of 1959, no consent from the landlord was necessary for a tenant to obtain electric supply in his tenanted premises. 20. Mr. Mukherjee concluded his submissions by urging that having regard to the: doctrine of super session of judgments, the interim order passed by the City Civil Court at Calcutta could not operate as a bar to any direction being given to the CESC Ltd. to provide the petitioner with a new A.C. connection in the room in question. 21. Opposing the writ application, Mr. Partha Sarathi Sengupta, learned Advocate, firstly contended that a claim for a writ in the nature of Mandamus has to be made on the basis of an existing or pre-established night and the order of the Writ Court could not be utilised for creating such a right. Mr. Sengupta submitted that it was well established that a writ in the nature of Mandamus could issue only in vindication of a legal right and not to establish such a right. 22. Mr. Sengupta urged that since there was a finding of the Court below that the petitioner was a third party in respect of the suit premises till such time as such finding was dislodged, the petitioner was not entitled to any relief in respect of the said premises in other proceedings. Mr. 22. Mr. Sengupta urged that since there was a finding of the Court below that the petitioner was a third party in respect of the suit premises till such time as such finding was dislodged, the petitioner was not entitled to any relief in respect of the said premises in other proceedings. Mr. Sengupta submitted that having regard to the observations made by this Court on the revisional application of the petitioner concern, the petitioner concern could very well have filed a separate suit to dislodge such finding and after establishing its right in the premises in question to take appropriate proceedings in pursuance thereof. 23. Mr. Sengupta submitted that the original tenant, Surajbali Pandey. had died some time in the year 1985, 1eaving behind him four sons to succeed to his interest in the suit premises. Mr. Sengupta submitted that since the petitioner concern and/or Shri Ramauadh Pandey, who claimed to be the sole proprietor of the petitioner concern, was not in any way connected with the deceased tenant, only the legal heirs of the tenant could have an interest in the room in question and that the occupation thereof by any other party would be unlawful and would, therefore, be hit by the provisions of s. 12(6) of the Indian Electricity Act, 1910. 24. Mr. Sengupta sought to emphasize that sub-so (6) of s. 12 of the Indian Electricity Act did not contemplate the filing of a complaint or as to who could make such a complaint, but only stipulated that the person claiming an independent electric connection in the premises occupied by him must be in lawful occupation thereof. 25. Mr. Sengupta urged that the Writ Court, being a Court of equity, the writ petitioner could not claim any equitable relief in the instant writ application having suppressed the order of injunction passed by the City Civil Court. 26. Mr. Sengupta then submitted that before coming to the Writ Court, the petitioner had moved the Consumer Forum and an order had been passed by the Forum in the petitioner's favour, which the petitioner was entitled to execute through the machinery of the Forum. 27. Mr. Sengupta urged that the writ Court could not be used as a means for executing the order of the Forum and the writ petition was liable to be dismissed on such score also. 28. 27. Mr. Sengupta urged that the writ Court could not be used as a means for executing the order of the Forum and the writ petition was liable to be dismissed on such score also. 28. Referring to a Bench decision of this Court in the case of Aswini Kumar Samanta vs. Manager, Calcutta Electric Supply Corporation Ltd. and Ors. reported in AIR 1955 Cal at Page 249, Mr. Sengupta submitted that it had been laid down in the said decision that a question of tit1e cannot be tried in a Mandamus proceeding and that such question should form the subject-matter of a suit. Mr. Sengupta urged that the question as to whether the petitioner concern was at an in lawful occupation of the room in question, was a disputed question of fact which would have to be decided in a properly constituted suit, before a direction by way of a writ in the nature of Mandamus could be prayed for. 29. Mr. Sengupta urged that until the petitioner concern was able to prove that he was in lawful occupation of the room in question, the provisions of s. 12(6) of the Indian Electricity Act. 1910, would continue to act as a bar to the giving of a new electric connection in the name of the petitioner concern therein. 30. Mr. S. Pal, who appeared for the CESC Ltd., contended that the CESC Ltd., had taken steps in terms of the order passed by the District Forum to provide the petitioner with a new A.C. connection in the room in question, but it had been prevented from taking any further steps in the matter in view of the order of injunction passed by the City Civil Court at Calcutta. 31. Mr. Pal further submitted that since the petitioner had chosen to go before the District Forum under the Consumer Protection Act, 1986, the present writ application was not competent and was liable to be dismissed. 32. 31. Mr. Pal further submitted that since the petitioner had chosen to go before the District Forum under the Consumer Protection Act, 1986, the present writ application was not competent and was liable to be dismissed. 32. In, reply to the submissions made on behalf of the respondents No. 5 and 6 and the CESC Ltd., it was urged that since the occupation of the petitioner in the premises in question had not been declared to be unlawful by any competent forum, such occupation was, in fact, the preexisting right on the basis whereof the petitioner concern was entitled to a writ in the nature of Mandamus for a direction upon the CESC Ltd. to provide the petitioner concern with a new connection, upon its surrender of the D.C. meter which was in its name. It was urged that the petitioner concern had been enjoying electricity in the premises through a D.C. meter and, was, therefore, entitled to have a new A.C. connection in its own name in the premises where the supply through the D.C. meter had previously been given. 33. From the submissions made on behalf of the respective parties and the materials on record, it transpires that while the petitioner concern claims to be in lawful occupation of the room in question, such claim is denied by the respondent Nos. 5 and 6. 34. Although, it has been asserted on behalf of the petitioner concern that it was a tenant of the room in question under the respondent No.5, there is no material on record in support of such claim. On the other hand, a rent receipt for the month of July, 1985, which has been made Annexure "A" to the writ petition, shows that one Surajbali Pandey was the tenant of the room in question. 35. At this point it may be pertinent to mention that in the affidavit-in-opposition affirmed on behalf of the respondents Nos. 5 and 6 it has been categorically stated in Paragraph 3(b) that the said Surajbali Pandey died sometime in the year 1985, leaving behind him surviving four sons who claim to have no connection with the petitioner concern. 36. Except for the averment made in the writ petition there is therefore, nothing on record to support the claim of the petitioner concern that it was the tenant of the room in question. 37. 36. Except for the averment made in the writ petition there is therefore, nothing on record to support the claim of the petitioner concern that it was the tenant of the room in question. 37. There is little scope of disagreeing with Mr. Mukherjee's submissions on the broad propositions of law, but, as pointed out by Mr. Partha Sarathi Sengupta, it has to be seen whether the said submissions of Mr. Mukherjee can be fitted to the facts of this case. 38. Mr. Mukherjee's submissions regarding the exclusion of the right of the owner to enjoy the land by the lease granted in favour of the respondent No.5, and the right of only the lessee to question the manner of occupation of the room in question by the petitioner concern, lose their edge in view of the fact that both the owner of the land, as well as the lessee, had jointly filed the suit in the City Civil Court at Calcutta, wherein the order of injunction was made restraining the CESC Ltd. from giving a new supply to anyone in the said building without enhancing the capacity of the cable in question. 39. The first branch of Mr. Mukherjee's submissions, therefore, is of no help to the petitioner concern, since its claim to enjoy electricity in the room in question has also been challenged by the respondent No. 5 hereinunder whom the petitioner concern claims to be a tenant. 40. The other branch of Mr. Mukherjee's submissions, regarding the binding nature of the order of injunction passed in the Civil suit on the petitioner concern, cannot also be faulted, in view of the order passed in the revisional application filed on behalf of the petitioner concern. But in the facts of this case, they are also of no help to the petitioner concern. 41. Assuming that the order of injunction passed by the learned Court below does not bind either the petitioner concern or the CESC Ltd. in connection with the installation of a new electric A.C. meter to the room in dispute, the question that still remains to be answered is whether merely by being in occupation of the said room, the petitioner concern can claim such new connection as a matter of right. 42. 42. As mentioned hereinbefore, there is nothing on record to show as to how the petitioner concern came to be in occupation of the room in question, since the rent receipt, being Annexure-" A" to the writ petition, is in the name of Surajbali Pandey, the individual, and not the petitioner concern. Between July, 1985, and the month of July, 1991, when rents were desposited with the Rent Controller, Calcutta, on behalf of the petitioner concern, there is nothing to show that the tenancy of the room in question had at any point of time been transferred to the petitioner concern. In that view of the matter, the deposits with the Rent Controller by the petitioner concern are of no relevance and lose whatever significance that can be attahed to it. 43. The electricity bills are the only documents which show that the connection in the room in question was in the name of the petitioner concern. In my view, that does not prove in any way that the tenancy of the room in question was in the name of the petitioner concern or that the petitioner concern had any lawful right to occupy and enjoy the said room. In all probability, the electric meter was obtained in the name of M/s. Surajbali Pandey and Co. at a time when Surajbali Pandey himself was alive and consequently the right to enjoy electricity through the said meter did not confer any right to the enjoyment of the room in question, except to those lawfully entitled to succeed to the tenancy of the said room after Surajbali Pandey's death. 44. In the light of the above, and on the failure of the petitioner concern to show that it was in lawful occupation of the room in question, and since the same has been disputed by the respondent No.5, under whom the petitioner concern claims to be a tenant, the claim of the petitioner concern to have a new electric connection in the room in question is hit by the provisions of sub-so (6) of S. 12 of the Indian Electricity Act, 1910, and, accordingly. no writ in the nature of Mandamus can issue in its favour till such time as it is able to establish that it has a lawful right to occupy and enjoy room in question. 45. no writ in the nature of Mandamus can issue in its favour till such time as it is able to establish that it has a lawful right to occupy and enjoy room in question. 45. Having regard to the view taken by me, the writ application must fail, and it is not necessary for me to go into the other submissions advanced on behalf of CESC Ltd. 46. The writ application id accordingly, dismissed. 47. There will, however, be no order as to costs. 48. All parties will act on a signed copy of the minutes of the operative part of the judgment on the usual undertaking. Application dismissed.