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2011 DIGILAW 863 (CAL)

SHIBANANDA CHATTERJEE v. SUKUMAR PANJA

2011-06-30

DIPANKAR DATTA

body2011
Judgment The opposite parties have instituted Title Suit No. 132 of 2009 against the petitioners in the Court of the learned Civil Judge (Junior Division) at Howrah seeking, inter alia, the following relief: A) A decree for declaration that the plaintiffs are the absolute owner, occupier and possessor of “A” schedule property of the plaint and the “B” schedule property is the only village road to ingress and egress at the “A” schedule property and the other house of the para people; B) A further decree for declaration that for new electric connection at the “A” schedule property the plaintiffs as well as the proforma defendants has every right to install the new electric connection at the “A” schedule property by putting poles on and over the “B” schedule property; C) A further decree for declaration that the defendants has no manner of right, title, interest or locus standi to raise objection disturb or threat the plaintiffs as well as the men and workers of the proforma defendants from installing the new electric connection at the house of the plaintiffs at the “A” schedule property through the “B” schedule property;” 2. During the pendency of the suit, the opposite parties filed W.P. 23072 (W) of 2009 before this Court seeking inter alia, the following relief: (a) Issue a RULE/WRIT in the nature of Mandamus commanding the Respondents and each one of them, and in particular commanding the Respondent No. 1 to 3, herein, and each one of them to provide comprised within R.S. Dag No. 4633, R.S. Khaitan No. 1036, within Mouja – Deulpur, J.L. No. 12, Police Station – Panchla, District – Howrah, referred herein as the “said property”. (c) Issue any other appropriate writ or writs and/or direction or directions upon the Respondent Nos. 4, herein, thereby restraining the said respondents and their men and agents from objecting and/or disturbing the right of availing and enjoyment of electricity connection of the writ petitioner at the said property. 3. While hearing the writ application, Hon’ble I.P. Mukerji, J. was pleased to call for a report from the West Bengal State Electricity Distribution Company Limited (hereafter the Company) by order dated 25.02.2010 for the purpose of finding out alternative route through which lines may be drawn for supplying electricity to the opposite parties. 3. While hearing the writ application, Hon’ble I.P. Mukerji, J. was pleased to call for a report from the West Bengal State Electricity Distribution Company Limited (hereafter the Company) by order dated 25.02.2010 for the purpose of finding out alternative route through which lines may be drawn for supplying electricity to the opposite parties. The Station Manager, Jaladhulagori Group Electric Supply of the Company submitted a report dated 13.03.2010 before His Lordship. It was observed in such report that for effecting supply of electricity to the premises of the opposite parties, lines have to be drawn over the property of the petitioners and that there is no other alternative route. The writ application was taken up for final consideration on 29.04.2010 by His Lordship. Considering the fact that the suit was pending and that the passage over which the opposite parties were claiming easement rights was a disputed property, His Lordship was of the view that the opposite parties must establish their right of user first, which could be established upon final determination in the suit and not in writ jurisdiction. While reiterating the right of an individual to receive electricity which is part of a basic human right, His Lordship was of the view that even at the interim stage of the suit, the trial Court must, on prima facie principles, decide as to whether the opposite parties have the right of user of the passage for “drawing of electricity line and making of installations on or over the passage for the purpose of providing electricity.” The writ application was disposed of granting liberty to the opposite parties to make a proper application before the trial Court and it was directed that if such an application is made, the same shall be disposed of within a period of eight weeks. 5. The order dated 29.04.2010 was carried in appeal by the petitioners. The Division Bench of this Court presided over by the Hon’ble the Chief Justice did not interfere with the order impugned on the ground that His Lordship had not passed any order adjudicating upon the rival contentions between the parties to the proceedings. 6. 5. The order dated 29.04.2010 was carried in appeal by the petitioners. The Division Bench of this Court presided over by the Hon’ble the Chief Justice did not interfere with the order impugned on the ground that His Lordship had not passed any order adjudicating upon the rival contentions between the parties to the proceedings. 6. Following the order of the writ Court, the opposite parties filed an application under Section 151 of the Code of Civil Procedure praying for, inter alia, the following relief: “Hence, it is humbly prayed that Your Honour would graciously be pleased to direct the W.B.S.E.B. Jola Dhulagori to install the new domestic electric connection at the premises of the plaintiffs on, through the only village pathway as described in the plaint and also directing the O/C Panchla Police Station to restrain the defendants so that they may not create any objection, nuisance or any illegal acts upon the men and workers of W.B.S.E.B. Jola Dhulagori for their job to install the new electric connection at the premises of the plaintiffs and/or to pass such other order or orders as Your Honour may deed fit and proper.” 7. The opposite parties simultaneously filed an application under Order 39 Rule 7 of the Code read with Section 151 of the Code praying for appointment of an advocate commissioner to inspect the locale and to submit his report on the following points: “1. To draw a rough sketch map of the ‘A’ and ‘B’ schedule property as noted in the plaint. 2. To note whether the ‘B’ schedule property is one common village pathway or not. 3. To note whether ‘B’ schedule property is been used by the common Villagers regularly or not. 4. To note the electric poles had been fixed on the side of the ‘B’ schedule property. 5. To note how much poles are there standing at side of the ‘B’ schedule property. 6. To note the descriptions of the ‘A’ and ‘B’ schedule property. 7. To note local features.” 8. On such application, order no. 33 dated 09.03.2011 was passed by the trial Court whereby an advocate was appointed commissioner to inspect the locale and to report on the points mentioned above. 9. Although the advocate commissioner had not submitted his report, order no. 7. To note local features.” 8. On such application, order no. 33 dated 09.03.2011 was passed by the trial Court whereby an advocate was appointed commissioner to inspect the locale and to report on the points mentioned above. 9. Although the advocate commissioner had not submitted his report, order no. 38 dated 06.06.2011 has been passed by the trial Court whereby the application under Section 151, filed by the opposite parties availing the leave granted by His Lordship by order dated 29.04.2010 was allowed on contest and they were granted liberty to have electric connection through the said pathway. This order is the subject matter of challenge in this revisional application under Article 227 of the Constitution of India. 10. Mr. Chakraborty, learned senior advocate appearing for the petitioners has raised two points while assailing the impugned order. Firstly, he submits that the report of the advocate commissioner not being on record, the learned Judge committed gross error in reaching a conclusion that the common passage is “being used by the locale inhabitants in common”. Secondly, he submits that in the event the opposite parties are held entitled to supply of electricity by way of drawing lines over the property of the petitioners, that would amount to granting the principal relief claimed in the suit, which is impermissible. He has accordingly prayed for an order to set aside the order impugned. 11. Mr. Bhattacharjee, learned advocate representing the opposite parties on the other hand contended that there is no infirmity in the order impugned and that in exercise of power under Article 227 of the Constitution, the order ought not to be interfered with since the trial Court had acted in the manner directed by His Lordship. 12. I have heard learned advocates for the parties and perused the materials on record including the report that was filed by the Station Manager, referred to above. I propose to deal with the second contention of Mr. Chakraborty first. 13. There is no dispute with regard to the proposition of law that a Court would not ordinarily grant relief by way of an interim order if the same amounts to granting the principal relief claimed in the suit for no better reason than that a prima facie case has been made out without being concerned about other relevant considerations [see AIR 1995 SC 1368 : Bank of Maharashtra Vs. Race Shipping & Transport Co. (P) Ltd.] However, law is equally well settled that in exceptional cases an interim order having the effect of granting the principal relief claimed in the suit may also be granted [see AIR 2004 SC 1975 : Deoraj Vs. State of Maharashtra]. While disposing of W.P. 23072 (W) of 2009, His Lordship made it absolutely clear that the trial Court, if approached with an application from the side of the opposite parties, would dispose of the same by passing a reasoned order and considering the principles of law in respect whereof observations were made in the order. Obviously, His Lordship intended the trial Court to decide as to whether the opposite parties have the right of user of the passage and if it is so established, to direct drawing of electricity lines and erection of installations for the purpose of providing electricity to them. If indeed supply of electricity to the opposite parties upon prima facie establishment of their right to use the passage would lead to granting an order for supply of electricity and therefore amount to granting the relief claimed in the suit, the same should have been pointed out before His Lordship and His Lordship could have been urged not to grant such order keeping in mind the principles of law laid down in Race Shipping (supra). No such point appears to have been raised on behalf of the petitioners before His Lordship. The order of His Lordship was carried in appeal and the Division Bench also did not disturb the same. The position, therefore, is this that if the opposite parties establish right of user of the passage and if there is no alternative route through which lines may be drawn and poles erected for the purpose of supplying electricity, the trial Court would be left with no other option but to pass an order to this effect notwithstanding that supply of electricity to the opposite parties would amount to grant of a relief that could be granted only after final decision in the suit. Since the order of the Division Bench was not appealed against, there can be no ground to uphold the contention of Mr. Chakraborty that at the interim stage of the suit, the opposite parties ought not to be held entitled to supply of electricity. The second contention, accordingly, stands overruled. 14. Since the order of the Division Bench was not appealed against, there can be no ground to uphold the contention of Mr. Chakraborty that at the interim stage of the suit, the opposite parties ought not to be held entitled to supply of electricity. The second contention, accordingly, stands overruled. 14. However, I find substance in the first contention. The opposite parties having asked for appointment of a commissioner for holding local inspection in respect of, inter alia, the point as to whether ‘B’ schedule property is being used by the common villagers regularly or not and there being no report from the side of the commissioner to this effect answering the point in favour of the opposite parties, the finding rendered by the trial Court to the effect that the common passage is being used by the local inhabitants is perverse. 15. The trial Court in all fairness ought to have waited for the report of the commissioner and thereafter decided the issue as to whether the opposite parties had the right of user of the passage or not. The direction passed by the trial Court based on such perverse finding cannot sustain in the eye of law. Consequently, the impugned order stands set aside. The trial Court is directed to wait for the commissioner’s report. In the event the same has not yet been submitted by the commissioner, the trial Court shall pass appropriate orders for expediting the process of submission of such report. After the report is circulated to the parties and objections thereto taken by them, if at all, the trial Court shall proceed to consider afresh the application filed by the opposite parties under Section 151 of the Code and pass an appropriate order in the light of the settled legal principles. Insofar as the contention of the opposite parties that there is no alternative route for supply of electricity is concerned, it shall be open to the trial Court to consider the materials that might be placed by the parties before it and to arrive at an appropriate finding in this behalf. The learned Judge is requested to dispose of the application under Section 151 of the Code as early as possible but not later than eight weeks from date of receipt of the report of the commissioner. 17. The learned Judge is requested to dispose of the application under Section 151 of the Code as early as possible but not later than eight weeks from date of receipt of the report of the commissioner. 17. Records of W.P. 23072 (W) of 2009 shall stand de-tagged and sent back to the department at once. 18. Urgent photostat certified copy of this order, if applied for, be furnished to the parties as early as possible.