Research › Search › Judgment

Calcutta High Court · body

2000 DIGILAW 647 (CAL)

Nemai Hait v. CESC Limited

2000-12-20

ASOK KUMAR GANGULY

body2000
JUDGMENT Asok Kumar Ganguly, J. This writ petition has been filed by the petitioner with a prayer for granting of a new AC. electric connection to the premises at 82, Belilious Lane, Howrah-1 (hereinafter called the said premises). The petitioner is staying in the said premises since childhood and is now is staying there with his family. In support of the said fact, the petitioner has disclosed various documents like letters of Municipal Authorities written in respect of the said premises which had been addressed to the petitioner. The petitioner has referred to three such letters written to him by the Howrah Municipal Corporation in respect of the said premises. The petitioner has also disclosed the telephone bill in respect of the said premises in his name and from the bill which has been annexed to the writ petition it appears that date of installation of the said telephone is sometime in the September, 1996. In the affidavit-in-reply filed in the proceeding by the petitioner, he has also disclosed a ration card in his name with the address of the said premises. On the basis of these documents the petitioner wants to show that he has been staying in the said premises for quite some time and is not a stranger to the said premises nor is he a trespasser. 2. The petitioner's case is that he applied for electric connection in respect of the said premises on 24.02.99. The said application was made by him for obtaining a new A.C. connection. In answer to that, the second respondent namely the District Engineer, Howrah Regional Officer, C.E.S.C. Limited by a letter dated 24.2.99 informed the petitioner that inspection will be held on 4.3.99. But the petitioner requested for inspection on another date. Thereafter the officers of the C.E.S.C wanted to have inspection but could not undertake the same as they were denied access to the meter board and was resisted by the private respondents. To that effect a letter was written to the petitioner by the C.E.S.C authorities to furnish a written consent from the registered consumers of the said premises that they are agreeable to the change of supply from D.C. to AC to enable the C.E.S.C to complete the change over from D.C service to AC service. To that the petitioner wrote back by saying that the entire D.C connection has been disconnected. To that the petitioner wrote back by saying that the entire D.C connection has been disconnected. Thereafter the petitioner was informed that a written objection was filed by the private respondents to the proposed supply of the new A.C connection in the said premises. In the petition filed by the private respondents, they have referred to two proceedings. One is a title suit pending in the court of Civil Judge (Junior Division, Howrah) being Title Suit No. 42 of 1995 and the other is a writ petition pending in this Court being writ petition No. 18185(W) of 1997. The Court has pursued the plaint filed in the said suit which has been disclosed in this proceeding and on the perusal of the plaint of that suit. It does not appear that the question of changing electric meter from D.C to AC in the said premises is an issue in the said title suit. The said title suit is in respect of certain properties and the petitioner is not even a party in the said title suit. 3. So far as the writ petition is concerned this court finds that in the said writ petition also the petitioner is not a party. The complain in the said writ petition is about the inaction of the authorities in recording the names of Sunil Kr. Maity and Bimal Kumar Maity in the record of rights in question. In connection with the said pleas of the Sunil Kumar Maity and Bimal Kumar Maity, a learned Judge of this Court has granted an order of status quo as regards possession. This Court is, therefore, of the view that pendency of these two proceedings has nothing to do with the question of considering the petitioner's prayer in this writ petition. 4. The learned Counsel for the C.E.S.C authorities has very fairly submitted that the right of the petitioner to get electric connection is covered by sections 12(2), 12(6) & 22 of Indian Electricity Act and unless the person claiming electricity is a trespassers to the property concerned he is entitled to grant of f electricity. 5. The case of the private respondents is that the petitioner is not the owner of the said premised and in support of the said case both the private respondents have referred to various proceedings relating to obtaining of probate of Will and also raised various questions of title. 5. The case of the private respondents is that the petitioner is not the owner of the said premised and in support of the said case both the private respondents have referred to various proceedings relating to obtaining of probate of Will and also raised various questions of title. This court however, is 'not concerned with those questions inasmuch as it is not the scope of the writ petitioner, as obviously it cannot be, to decide the title of the petitioner in respect of the said premises. In fact, the petitioner has not made any claim to that effect either. But the respondents have also not been able to dispute the fact of the petitioner's continuous stay in the said premises and in their objection to the C.E.S.C the respondent Nos. 3 & 4 also admitted that the petitioner is staying in the said premises as a 'distant relative'. 6. In the background of these facts, the question which falls for consideration in this case is whether the petitioner, who has been admittedly residing in the said premises for a long period of time, has acquired any right to obtain electricity connection. . 7. So far as the petitioner's prayer for change over of the present D.C connection to A.C connection is concerned there is not much of a problem. It is the case of the CESC also that they are discontinuing the supply of D.C and slowly replacting all old D.C connections by A.C connections. In this connection the learned Counsel for CESC has referred to a dictated order dated 6th November, 2000 by the Division Bench presided over by the Hon'ble Chief Justice to the effect that it is hazardous to have A.C and D.C connection in the same residential premises. As such it is advicable to have only A. C connection in the residential premises. 8. But the main controversy in this case is over the right of an applicant who is not the owner of the premises to get electricity connection. In this connection various cases have been referred to by the learned Counsel for the parties. . 9. The learned Counsel appearing for the petitioner relied on the decision in the case of Soumitra Banerjee and Ors. vs. CESC Limited & Ors., reported in 1999(2) CHN 573. In this connection various cases have been referred to by the learned Counsel for the parties. . 9. The learned Counsel appearing for the petitioner relied on the decision in the case of Soumitra Banerjee and Ors. vs. CESC Limited & Ors., reported in 1999(2) CHN 573. In Soumitra Banerjee (supra) the learned Judge interpreted the provision of section 12(b) of the Indian Electricity Act (hereinafter referred to as said Act) and particularly the learned Judge interpreted expression of 'lawful occupier' occuring in sub-section (6) of section 12 of the said Act. 10. For an appreciation of the controversy in issue of sub-section (6) of section 12 is set out below. "In this section 'occupier' of any building or land means a person in lawful occupation of that building or land.". In the abovementioned case the learned Judge accepted the diluted meaning of the expression of 'lawful occupier' and held as follows in para 23, page 577 of the report, which is set out below: "All occupiers who are peace loving, who have an arguable case which might succeed in the end are entitled to get electricity connection notwithstanding opposition by the opponents. In case they are thrown out they will be thrown out of duly electrified premises and that is not a matter which is likely to affect the substance of the civil dispute or litigation amongst the parties." 11. The learned Counsel for the petitioner has also relied on the case of Runchordas(Private) Ltd. vs. Vasanji Ravji Shah, reported in ILR 1968 Calcutta, page 494. The learned Judge in paragraph 4 of the judgment in Runchordas (supra) held that consent is not necessary at all. In that case, the tenant directly prayed for grant of electric connection from C.E.S.C. Reliance was also placed by the learned Counsel on another judgment in the case of Jenson and Nicloson (India) Ltd. Vs. Assha Co-operative, reported in 1994(2) CHN page 241. Relying on paragraph 16 in the said judgment the learned Counsel for the petitioner submitted that the electricity is an essential requirement and on that findings it was argued that the petitioner's right to the same and cannot be defeated on the basis of objections from the private respondents. 12. The learned Counsel for the private respondent relied on a Division Bench judgment of this Court in the case of AZok Saha vs. Sm. 12. The learned Counsel for the private respondent relied on a Division Bench judgment of this Court in the case of AZok Saha vs. Sm. Rina Ghosh & Ors., reported in 1999(1) CLJ page 567. Relying on the said judgment in AZok Saha (supra) the learned Counsel contended that it has been held in the said decision that as a married daughter is not entitled to residence in the ancestral dwelling house after marriage she is not entitled to electric connection. Therefore, this petitioner has no right. The Court has considered the said judgment and also looked into its ratio. 13. A closer scrutiny of the ratio in AZok Saha (supra) shows that the question which is pending here did not fall for consideration in AZok Saha (supra). 14. The learned Judges of the Division Bench in that case found that the writ petitioner who is the married sister of the appellant filed an application for grant of electric connection in the ancestral house under section 22 of the Indian Electricity Act and as no electric connection was given by the CESC, a writ petition was filed by the married daughter which was ultimately allowed. Thereafter an appeal was filed before the Division Bench by the brother of the married daughter. The appeal was allowed by the learned Judges of the Division Bench and by relying on the provision of section 23 of the Hindu Succession Act, 1956, the learned Judges of the Division Bench came to the conclusion that a married lady does not have a right of a residence in the ancestral house. But after holding the same the learned Judges have held that even if a person has no legal right of residence, he can still be an occupier being in lawful occupation of the building or land either by an arrangement or otherwise. Observation to that effect has been made in paragraph 7 of the judgment to this following effect as below: "The question as to whether despite the fact that the writ petitioner/respondent No.1 had no legal right of residence would be an occupier being in lawful occupation of the building or land either by way of arrangement or otherwise is essentially a question which can be gone into by the learned Trial Judge, or by an appropriate authority or Court on the basis of materials placed by the parties." 15. After observing, as aforesaid, the learned Judges of the Division Bench came to the conclusion that as no material was placed before the learned Writ Court to support the continued stay of the married daughter in the premises, the order passed in the writ petition could not be sustained. The learned Judges gave opportunities to the writ petitioner to file an appropriate amendment application before the learned Writ Court to bring materials on record and remitted the matter to the learned Judge for fresh consideration of the writ petitioner's case on merits. 16. Therefore, the ratio in Alok Saha (supra) is not of much assistance in this case. 17. In the instant case, the petitioner has produced materials to show that he is in continuous possession of the said premises for a long time. From the materials disclosed in the writ petition nobody can say that the petitioner has forcibly entered the premises or is a stranger to or trespassers in the said premises, 18. The learned Counsel for the private respondent is also relied on a Single Bench judgment in the case of M/s. Surajbali Pandey vs. CESC and Ors., reported in 1995(1) CRN 533, in support of their contention that the writ petitioner is not entitled to get electricity. In Surajbali (supra), the learned Judge, after considering various decisions, came to the conclusion in paragraph 42 of the judgment that there is nothing on the record to show how the petitioner Came to be in occupation of room in question since the rent receipt are in the name of some other individual. Therefore both in paragraphs 34 & 44 of the judgment, the learned Judge held that there is no material on record to show that the petition is in lawful occupation of the room in question. It is obviously true that if the person claiming electricity fails to prove from the record to show that he is in occupation of the premises in question his claim for getting electricity cannot succeed, 19. The relevant provisions in this connection are in sections 12(2) and 12(6) and section 22 of the said Act. It is obviously true that if the person claiming electricity fails to prove from the record to show that he is in occupation of the premises in question his claim for getting electricity cannot succeed, 19. The relevant provisions in this connection are in sections 12(2) and 12(6) and section 22 of the said Act. Since section 12(6) has already been set out above, provisions of section 12(2) and section 22 are set out below: "Section 12.(2) Provision to the opening and breaking up of streets, railways and tramways.- Nothing contained in sub-section (1) shall be deemed to authorize or empower a licensee, without the consent of the local authorities of the (owner or occupier) concerned, as the case may be, to lay down or place any electric supply-line, or other work in, through or against any building, or on, over or under any land not decided to public use whereon, whereover or whereunder any electric supply-line or work has not already been lawfully laid down or placed by such licensee: Provided that any support of an (overhead line) or any stay or strut required for the sole purpose of securing in position any support of an (overhead line) may be fixed on any building or land or, having been so fixed, may be altered, notwithstanding the objection of owner or occupier or such building or land, if the District Magistrate or, in a Presidency town, the Commissioner of Police by order in writing so directs: Provided also, that, if at any time the owner or occupier of any building or land on which any such support, stay or strut has been fixed shows sufficient cause, the District Magistrate or, in a Presidency -town, the Commissioner of Police may by order in writing direct any such support, stay or strut to be removed or altered". "Section 22. "Section 22. Obligation on licensee to supply energy.- Where energy is supplied by a licensee, every person within the area of supply shall, except in so far as is otherwise provided by the terms and conditions of the license, be entitled, on application, to a supply on the same terms as those on which any other person in the same area is entitled in similar circumstances to a corresponding supply: Provided that no person shall be entitled to demand, or to continue to receive, from a licensee a supply or energy for premises having a separate supply unless he has agreed with the licensee to pay to him such minimum annual sum as will given him a reasonable return on the capital expenditure, and will cover other standing charges incurred by him in order to meet the possible maximum demand for those premises, the sum payable to be determined in case of difference or dispute by arbitration." 20. On a conjoint reading of those provisions this Court finds that it is the obligation of the licensee namely he CESC authorities to supply electricity to any person within the area of supply. Of course there must be some terms and conditions of such supply. But when those terms are complied with and supply is demanded by a person, the same cannot be denied to him on the ground of objection of some private individuals and on grounds which are not-germane to the licensee or to the condition of supply between the applicant and the licensee. 21. In the current day realities of growing consumerism, electricity is an essential requirement. If a person is willing to obtain supply of electricity on payment of necessary charges to the licensee and the licensee is willing to supply electricity the right of such a person to get electricity must be considered keeping in mind the broad vision of Article 21 of the Constitution of India. Since the expression 'life' under the Article 21 has been construed to mean quality of life and life with all the amenities and benefits in a civilized society, the right to get electricity is certainly covered within the broad sweep of 'life' under Article 21. 22. In a civilized urban society, the right to get electricity must be considered from the point of view of a human right angle which emphasizes on an adequate standard of living. 22. In a civilized urban society, the right to get electricity must be considered from the point of view of a human right angle which emphasizes on an adequate standard of living. Reference in this connection may be made to Article 25 of the Universal Declaration of Human Rights, 1948. Article 25 postulates: "Article 25: 1. Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food clothing, housing and medical care and necessary social services." Same is the concern voiced in Article 11.1 of International Government on Economic, Social and Cultural Rights, 1966. Relevant extracts from Article 11.1 are set out below: "Article 11.1: The States parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing." 23. India is a signatory to both these declaration. 24. The same idea is echoed in the judgment of the Supreme Court. In the case of Prabhakaran Nair vs. State of Tamil Nadu, reported in AIR 1987 Supreme Court 2117, Justice Sabyasachi Mukherjee (as His Lordship then was) speaking for the Court opined "after all, shelter is one of our fundamental rights" (para 36, page 2130) and felt" a fast changing society cannot operate with unchanging law and preconceived judicial attitude" (para 36 page 2131). 25. Later on 1990, the Apex Court went further in the case of Shantistar Builders in Narayan Khimalal Totame, reported in AIR 1990 Supreme Court 630 and observed: "Basic needs of man have traditionally been accepted to be three food, clothing, and shelter. The right to life is guaranteed in any civilized society. That would take within its sweep the right to food, the right to clothing, the right to decent environment and a reasonable accommodation to live in. The difference between the need of an animal and a human being for shelter has to be kept in view. For the animal it is the bare protection of the body; for a human being it has to be a suitable accommodation which would allow him to grow in every aspect- physical, mental and intellectual." 26. So reasonable accommodation and an adequate standard of living are considered within the ambit of rights to 'live'. And those rights enjoy the protection of Article 21. So reasonable accommodation and an adequate standard of living are considered within the ambit of rights to 'live'. And those rights enjoy the protection of Article 21. There can be no deprivation of those rights except according to a procedure established by law. It is well known that such procedure must be just, reasonable and fair. 27. In the instant case, there is no such procedure in law which can deprive the petitioner of his right to get electricity. From the facts of the case it is clear that the petitioner is in possession of the said premises for a very long time. Various statutory authorities have acknowledged petitioner's occupation of the said premises and have written letters to him. Whether the petitioner has a right in law to occupy the premises in question is not for this Court to decide. None of the private respondents have ever initiated any proceeding for the eviction of the petitioner. It is not the case of the respondent that the petitioner has forced himself in the said premises or that petitioner is a criminal or a trespassers or an outlaw. In view of these admitted facts, the petitioner satisfies the requirement of section12(6) of the said Act and his right to get electricity cannot be turned down especially in view of the ratio in the case of Soumitra Banerjee (supra) and with which this Court is in respectful agreement. 28. This Court it also of the view that having regard to the guarantee of Article 21 the petitioner's is right to get electricity, in the facts and circumstances of this case, cannot be defeated. 29. For the reasons aforesaid, this writ petition is allowed and CESC is directed to give A.C electric connection to the petitioner upon the petitioner's complying with all the formalities and paying all the charges. The objection of the private respondents to the petitioner's prayer to get electric connection is overruled and their objection to the change over from D.C to A.C connection cannot be sustained in public interest. This Court will appreciate if the CESC takes expeditious steps and grants connection to the petitioner as early as possible preferably within two months from date. The Writ Petition is allowed to the extent indicated above. No order as to costs. 30. This Court will appreciate if the CESC takes expeditious steps and grants connection to the petitioner as early as possible preferably within two months from date. The Writ Petition is allowed to the extent indicated above. No order as to costs. 30. On the prayer of the learned counsel for the parties let xerox certified copy of the judgment, if applied for, be given to the learned counsel for the parties. Writ petition allowed.