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2014 DIGILAW 875 (CAL)

Subhendra Jha v. C. E. S. C. Ltd.

2014-09-10

R.K.BAG, TAPAN KUMAR DUTT

body2014
JUDGMENT : Tapan Kumar Dutt, J. Hearing is concluded today. We have heard the learned advocates for the respective parties and we have also considered the relevant materials on record. 2. The writ petitioner/appellant filed a writ petition praying, inter alia, for an order directing the electricity authorities to give a new electric connection to the writ petitioner at a certain flat. 3. The respondent no. 3 in the writ petition contested the said writ petition and by the order dated 17th December, 2013 a learned Single Judge of this court has been pleased to dismiss the said writ petition. The said order dated 17th December, 2013 is now under challenge in the instant appeal. 4. It appears from the said order dated 17th December, 2013 that the learned Single Judge has taken into consideration certain interim order passed in a suit filed by the said respondent no. 3, whereby the defendant nos. 1 and 2 and their men and agent were restrained from encumbering the said flat in any manner and also from handing over the possession of the same to any 3rd party till the fulfilment of all the terms and conditions of the agreement dated 7.03.2006 and also from executing any document in the name of a 3rd party in respect of the schedule (A) and (B) properties of the said suit which included the said flat in question till the disposal of the suit. 5. The learned Single Judge was pleased to take the said interim order into consideration and find that an application for contempt of court is pending before the learned Civil Court concerned for alleged violation of the said interim order which is dated 15th December, 2010. The learned Single Judge was also pleased to find the writ petitioner came into possession of the said flat in November 2011 that is, after the said order dated 15th December, 2010 was passed, and, accordingly, the said learned Single Judge was not inclined to pass any order in favour of the writ petitioner. 6. The learned advocate appearing on behalf of the writ petitioner/appellant has submitted that since the writ petitioner/appellant is in settled possession of the flat in question, the respondent/electricity authorities should be directed to give a new electric connection to the appellant. 6. The learned advocate appearing on behalf of the writ petitioner/appellant has submitted that since the writ petitioner/appellant is in settled possession of the flat in question, the respondent/electricity authorities should be directed to give a new electric connection to the appellant. It appears that the injunction order was passed by the learned trial court on 15th December, 2010, but the agreement between the appellant and the developer of the property concerned was dated 19th September, 2011 i.e., after passing of the aforesaid interim order of injunction. There is no dispute that the developer and the owner of the property concerned were fully aware of the said interim order of injunction. The said learned advocate for the writ petitioner/appellant submitted that since the writ petitioner/appellant is in settled possession of the property in dispute, the respondent no. 3 has no right to object against the supply of electricity to the writ petitioner by the electricity authorities. The said learned advocate further submitted that under the provisions of the Electricity Act, 2003 the consent of the real owner is not necessary if the occupier of the property is in settled possession of the property concerned. 7. The said learned advocate cited a decision reported at 2011 (2) CHN 769 in support of his aforesaid contention. It appears that the said case involved persons who encroached the Government Revenue Land situated at Andaman and Nicobar Islands. 8. The said learned advocate also cited the decision reported at 2012 (5) CHN (Cal) 548 in support of his aforesaid contention. It appears that in the facts of the said reported case the dispute was between the brothers and a suit for partition was pending. The said learned advocate cited another decision reported at 2009 (2) CHN 325 in support of his contention. It appears from the facts of the said reported case that the dispute was between the writ petitioner and certain private respondents in the said case with regard to the writ petitioner's entitlement to business premises whereat the electric connection was sought for and it further appears the said private respondent claimed that the writ petitioner and his erstwhile partner had all along electricity from the said private respondent and the writ petitioner was disqualified from obtaining a new connection. 9. The said learned advocate also cited a decision reported at 2010 (4) CHN (Cal) 191. 9. The said learned advocate also cited a decision reported at 2010 (4) CHN (Cal) 191. It appears on perusal of the said reports that the interim order concerned which was passed by a Civil Court in the said case was to the effect that the defendant in the suit concerned was restrained from changing the nature and character of the property in question and it was found taking electricity to the property from the distribution company cannot change the nature and character of the property. 10. The said learned advocate cited another decision reported at 2012 (5) CHN (Cal) 772, wherefrom it appears that in the said reported case the facts indicated that there was an order of a Civil Court to the effect that the status quo should be maintained as regards the nature and character of the suit property and it was found that such order of status quo with regard to the nature and character and possession would not be violated if the electric connection is provided in the said premises. 11. The said learned advocate cited another unreported case from which it appears that a learned Single Judge of this court by an order dated 5th December, 2008 passed in WP 635 (W) of 2007 was pleased to find that the petitioner in the said case was a trespasser and a suit has been filed against the petitioner before the Civil Court which was pending for adjudication and the said learned Judge was pleased to find that the petitioner may be a trespasser but by virtue of grant of electricity no right, title and interest can be acquired by the petitioner in the said premises. 12. It would appear from a perusal of the aforesaid cases there was no interim order passed by a Civil Court existing or subsisting in the nature of the interim order which is now involved in the present case. In the present case the developer and owner of the property was clearly restrained by the Civil Court by the said interim order to the effect that the defendant nos. 1 and 2 and their men and agents were restrained from encumbering the flat in question and also for handing over the possession of the same to any 3rd party and also from executing any document in the name of any 3rd party as already indicated above. 1 and 2 and their men and agents were restrained from encumbering the flat in question and also for handing over the possession of the same to any 3rd party and also from executing any document in the name of any 3rd party as already indicated above. The developer and the owner of the property were fully aware of the said interim order and in spite of such interim order, the agreement for sale dated 19.09.2011 was executed in favour of the writ petitioner/appellant and possession was handed over to the said writ petitioner/appellant. 13. The learned advocate for the appellant has cited a decision reported at (2013) 5 SCC 397 wherefrom it appears that the question in the said case was whether the appellant in the said case who was a transferee pendente lite having notice and knowledge about the pendency of the suit for specific performance and order of injunction can be impleaded as a party under Order 1, Rule 10 of the Code of Civil Procedure on the basis of a sale deed executed in its favour by the defendant. Thus the facts of the case in the said reports are not similar to the present case. The learned advocate for the appellant has pointed out paragraph 53 of the said reports wherein the Hon'ble Supreme Court has been pleased to observe as follows:- "53. There is, therefore, little room for any doubt that the transfer of the suit property pendente lite is not void ab initio and that the purchaser of any such property takes the bargain subject to the rights of the plaintiff in the pending suit. Although the above decisions do not deal with a fact situation where the sale deed is executed in breach of an injunction issued by a competent court, we do not see any reason why the breach of any such injunction should render the transfer whether by way of an absolute sale or otherwise ineffective. The party committing the breach may doubtless incur the liability to be punished for the breach committed by it but the sale by itself may remain valid as between the parties to the transaction subject only to any directions which the competent court may issue in the suit against the vendor." 14. The party committing the breach may doubtless incur the liability to be punished for the breach committed by it but the sale by itself may remain valid as between the parties to the transaction subject only to any directions which the competent court may issue in the suit against the vendor." 14. This court at this stage is not concerned the question whether the agreement for sale executed in favour of the writ petitioner is valid or invalid. Such question which may have to be decided by an appropriate forum. The question before us is whether a party who has suffered an order of interim injunction can violate such interim order of injunction and obtain a benefit out of such violation, particularly when an application for contempt of court is pending before the appropriate court and the party concerned has not purged himself out of such allegation of contempt of court. 15. This court is of the view that such a party who has allegedly violated the said interim order of injunction should not be allowed extract a premium out of such violation which the learned advocate for the respondent no. 3 has described to be wilful and deliberate. In case the petitioner in the application for contempt of court succeeds on merit of the matter, the court concerned can very well direct the parties concerned to restore the possession of the property, as it was when the interim order of injunction was passed. We cannot agree with the learned advocate for the appellant when he submitted that the appellant has been in settled possession of the property. The respondent no. 3 has not acquiesced to the possession of the writ petitioner in the flat in question as a lawful and legal one. 16. The learned advocate appearing on behalf of the respondent no. 3 submitted that the writ petitioner is a party to the application for contempt of court which is pending hearing and the said application is yet to be disposed of. 17. 16. The learned advocate appearing on behalf of the respondent no. 3 submitted that the writ petitioner is a party to the application for contempt of court which is pending hearing and the said application is yet to be disposed of. 17. The said learned advocate cited a decision reported at (1995) 6 SCC 50 and referred to paragraph 4 of the said reports wherein the Hon'ble Supreme Court has been pleased to observe that in the said case in defiance of a restrain order, the alienation/assignment was made and it was found that if such state of affairs was allowed to pass and if the Hon'ble court allows to let it go as such, it would defeat the ends of justice and the prevalent public policy. The Hon'ble court was further pleased to observe that when the court intends a particular state of affairs to exist while it is in seisin of a lis that state of affairs is not only required to be maintained, but it is presumed to exist till the court orders otherwise. The Hon'ble court was also pleased to observe that in such circumstances the court has the duty, as also a right, to treat the alienation/assignment as having not taken place at all for its purposes. With respect we have to state that there cannot be any dispute with regard to such proposition of law. 18. In view of the discussion made above, we do not find any reason to interfere with the order which is under challenge in the instant appeal. We do not find any merit in the instant appeal. The appeal is dismissed accordingly. 19. There will, however, be no order as to costs. 20. Urgent certified photostat copy of this order, if applied for, be given to the parties upon compliance of all requisite formalities.