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2002 DIGILAW 131 (CAL)

Pranab Chandra Daw v. C. E. S. C. Ltd.

2002-02-27

Prabir Kumar Samanta

body2002
Judgment Prabir Kumar Samanta, J. In this writ petition the question came up for consideration is whether an owner of a premises is entitled to have a service connection of electricity irrespective of objection by an erstwhile lessees of the same who have filed a suit for Specific Performance of Contract against the said owner. 2. The facts of this case are a bit complex and appear to have been involved in long drawn litigations. The premises in question being No.1, Strand Road, Howrah which is an important business complex is popularly known as Howrah Daw Mangla Hat. The predecessor in interest of the petitioner being the owner of the said premises granted a lease of the same in favour of the predecessor in interest of one Late Kewal Chand Mimani for a period of 50 years commencing from 1st January, 1939 and ending with 31st December, 1988. The petitioner is one of the allottees of the said premises by virtue of partition amongst his co-shares. During the subsistence of the aforesaid lease the said business complex was completely gutted in a devastating fire on 21st November, 1987. Soon after the fire the State Government requisitioned the same in exercise of power under the West Bengal Land (Requisition and Acquisition) Act, 1948 on 24th November, 1987 and possession was taken over by the Collector. The said Kewal Chand Mimani unsuccessfully challenged the said order of requisition in a writ petition. While an appeal was pending before the Division Bench against the order of dismissal of the writ petition the said Act of 1948 had spent its force. In the said appeal owner of the premises were made parties and as such in presence of all the parties the same was allowed with observations that the provisions of the said Act could not be invoked for the purpose of keeping the order for requisition alive. Accordingly, the possession was directed to be restored to the owners and/or occupiers, as the case may be. Upto this stage there was no dispute. It arose on the question as to who would be entitled to get back possession of the same particularly in view of the fact that the lease in favour of the aforesaid Mimanis had come to an end on 31st December, 1988. Upto this stage there was no dispute. It arose on the question as to who would be entitled to get back possession of the same particularly in view of the fact that the lease in favour of the aforesaid Mimanis had come to an end on 31st December, 1988. The Division Bench of this court by an order dated 17th June, 1997 directed the State Authorities to restore possession of the said premises to the owners. The said Mimanis challenged the said order in the Supreme Court in a Special Leave Petition being Civil Appeal No. 4632 of 1997. In the said appeal though an interim order for maintaining status quo as regards possession of the said premises was passed but ultimately the Supreme Court dismissed the appeal ( AIR 2001 SC 2569 ) without prejudice however, to the rights and contentions of the parties in any pending matter or in the matter of initiation of any agreement or otherwise in accordance with law. The petitioner on the strength of a document issued by the Surveyor-cum-Valuer of the Land Acquisition Officer, Howrah dated 19th June, 1997 contended that he took over possession of the disputed premises on the said date. It appears that the said Mimanis on the self same date contended before the Supreme Court that the petitioner No.1 had taken a mere symbolic possession of the same at 10.30 A.M. However, such statements having been denied by the petitioner the Supreme Court directed the parties to maintain status quo as on that date. 3. While the aforesaid appeal before the Supreme Court was pending, the petitioner approached the C.E.S.C. Limited for a service connection for supply of electricity in his name. It appears from the records of this case that the C.E.S.C. Limited has no objection against providing a service connection for supply of electricity in the said premises in the name of the petitioner but it could not do so because of the objection raised on behalf of the said Mimanis. It has been contended in this petition that in view of the order for maintaining status quo by the Supreme Court in respect of the aforesaid premises such a service connection in favour of the petitioner is not permissible. It has been contended in this petition that in view of the order for maintaining status quo by the Supreme Court in respect of the aforesaid premises such a service connection in favour of the petitioner is not permissible. This writ petition however has not been opposed by the C.E.S.C. Limited by filing any affidavit-in-opposition, nor in course of hearing it has been contended that the petitioner is not entitled in law to a service connection in his favour in the said premises. 4. In this regard it may be noted that one of the Mimanis filed a suit for Specific Performance of Contract against the owners of the said premises. The said suit was however, dismissed on the ground of default. The respondent Nos. 7A and 7B who are also the heirs of Late Kewal Chand Mimani have now again filed a suit for Specific Performance of Contract in respect of the aforesaid premises being Title Suit No. 40 of 1981 in the First Court of Civil Judge, Senior Division at Howrah. 5. In the said suit on the petition for injunction filed by the said respondents this Hon'ble Court directed the parties to maintain status quo as regards possession of the suit property pending hearing of the appeal that arose out of an order passed by the Trial Court in the petition for injunction filed by them. The said appeal is however, still pending for disposal in this court. Again in this writ petition a good number of parties claiming themselves to be the licensees of the stalls set up in the said Mangla Hat applied for being added as parties to this writ petition. Such application having been allowed they have been impleaded as parties respondents to this writ petition. 6. For the state of things the question that cropped up for consideration are:- Who is in actual physical possession of the aforesaid premises? Whether the petitioner being an owner of the said premises is entitled to have a service connection of electricity in his name and in view of the above order of status quo; whether C.E.S.C. Limited would be entitled to provide such service connection in the said premises, in favour of the petitioner. 7. The respondents Mimanis in support of their possession produced an electricity consumption bill raised in the month of November, 1987. It appeared therefrom that Kewal Ch. 7. The respondents Mimanis in support of their possession produced an electricity consumption bill raised in the month of November, 1987. It appeared therefrom that Kewal Ch. Mimani was a consumer under C.E.S.C. Limited in respect of the aforesaid premises. The said bill obviously related to the period perior to 21st November, 1987 when the fire broke out in the said complex. No other electricity bills for the subsequent periods showing consumption of electricity in the said premises by the said Mimanis have been disclosed in this writ proceeding. The added respondents, namely the licensee of the stalls set up in the market complex comprising the aforesaid premises on the other hand have categorically stated in their petition for addition of parties that the said premises is without any supply of electricity. Such statements could not have been disputed by the respondent/Mimanis on the strength of any material and for document whatsoever. 8. Thus, in this writ petition the deciding factor is the question whether the petitioner being an owner of the aforesaid premises would be entitled to a service connection for supply of electricity in his name, inasmuch as the respondents Mimanis by filing the aforesaid suit for Specific Performance of Contract have virtually admitted the ownership of the Daws in the said premises. 9. The decision of the Supreme Court in the Civil Appeal No. 4632 of 1997 ( AIR 2001 SC 2569 ) is a pointer in this regard. The Supreme Court in the said decision observed that admittedly the possession of the said premises is with the State Government and there is no dispute in regard thereto. On the question of entitlement for restoration of possession it observed that in the facts and circumstances of the case the Mimanis being admittedly lessee dispossessed from the leasehold premises cannot have any right in their favour to possess the same. Therefore, in view of the decision of the Supreme Court the respondents Mimanis are not at all entitled to possess the premises in question unless a decree is passed in their favour in the pending suit for Specific Performance of Contract. The petitioner, on the other hand, may not be in actual physical possession of the same but then the possession of anyone which is not adverse to the interest of the owner would be a constructive possession by the owner. The petitioner, on the other hand, may not be in actual physical possession of the same but then the possession of anyone which is not adverse to the interest of the owner would be a constructive possession by the owner. In this case, the State Government being admittedly in possession of the premises is under lawful obligation to restore back its possession to whom who is entitled to the same under the law. Such possession by the State Government is therefore a possession on behalf of the owners of the suit premises in view of the finding of the Supreme Court as above. The State Government has not claimed any adverse interest to that of the owners of the premises nor at any stage of the proceeding before the court it contended that it is entitled to retain possession of the same. Furthermore the certificate dated 19th June, 1997 as disclosed by the writ petitioner has not been denied by the State respondent. The same revealed at least that a symbolic possession of the disputed premises was taken over by the petitioner. 10. The added respondents namely the licensee of the stalls set up in the suit premises also have not claimed any interest adverse to that of the owners in the said premises. They on the other hand have admitted themselves to be the licensees of the stalls set up therein. The petitioner therefore is in constructive possession of the same through his aforesaid licensees in the eye of law. The petitioner being thus admittedly one of the owners of the aforesaid premises and also being in constructive possession of the same through his licensees is in lawful occupation of the same. The petitioner therefore, falls squarely within the meaning of lawful occupier of the said premises. He is therefore, entitled to have a service connection for supply of electricity in his name in the said premises. He is so entitled more particularly when there is no material to establish that the said premises is being supplied with electrical energy at present either in the name of the respondents Mimanis or the licensees of the stalls set up therein. The supply of electricity being an essential supply for modern day living a lawful occupier of any premises will be entitled to supply of electricity therein irrespective of objection by anyone claiming interest therein. The supply of electricity being an essential supply for modern day living a lawful occupier of any premises will be entitled to supply of electricity therein irrespective of objection by anyone claiming interest therein. The order of status quo as passed in the above pending civil suit for Specific Performance of Contract is in relation to the physical possession of the suit premises whereby the parties to the suit have been directed not to make any change in respect of physical possession of the same. The said order of status quo no where indicated nor intended that in the event there being no essential supplies and services to the premises the same shall also not be provided by the authority concerned. 11. Under the Indian Electricity Act, 1910 and the conditions of supply framed thereunder a lawful occupier of any premises is entitled to have a service connection for supply of electricity in his favour. The expression lawful occupier as under the Indian Electricity Act 1910 is no doubt a wide expression thereby meaning and including all persons who are not in unlawful occupation. Such expression for the purpose of supplying electrical energy which is an essential supply to life in this age should also have an extended meaning of including persons who are legally entitled to occupy the premises in question at the relevant point of time when such service connection has been sought for. 12. In all this consideration, I am of the view that the writ petitioner being admittedly one of the owners of the aforesaid premises and also being entitled in law to occupy the same at this stage is entitled to have a service connection for supply of electricity in the said premises in his name. The writ petition is thus allowed with the direction upon the respondent C.E.S.C. Limited to provide such service connection in the said premises in favour of the writ petitioner upon compliance of all formalities in this regard by him expeditiously. However, it is made clear that such service connection in the aforesaid premises for supply of electricity in favour of the writ petitioner shall be without prejudice to the rights and contentions of the respective parties in the pending suit for Specific Performance of Contract or in relation to enforcement of any of the rights in respect of the aforesaid premises by the parties to the suit. 13. 13. The prayer for stay of operation of this judgment and order made on behalf of the respondent Nos. 7A and 7B is refused. 14. If urgent xerox certified copy of this order is applied for by the parties, the same should be given expeditiously. Writ petition allowed.