State Consumer Disputes Redressal Commission
Sri Joydev Mondal vs Sri Sudhir Boilay on 29 May, 2013
D R A F T State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO. FA/583/12 (Arisen out of Judgment dt. 31.08.2012 in Case No. CC/41/2012 of DCDRF, Howrah) DATE OF FILING : 06.09.12 DATE OF FINAL ORDER: 29.05.13 APPELLANTS : 1. Sri Joydev Mondal S/O of Late Jatin Mondal 2. Sri Gopal Mondal, 3. Sri Nemai Mondal 4. Sri Ashoke Mondal 5. Bipin Mondal, all sons of Sri Joydeve Mondal, 6. Sri Sankar Mondal, Son of Late Basanta Mondal, 7. Sri Binod Mondal 8. Sri Lakshmi Kanta Mondal 9. Sri Haradhan Mondal, No.7 to 9 all sons of Late Bijoy Mondal, All residing at Vilalge- Manickpur, Kalitala (Paschimpara), P.O- Delta Mill, P.S. Sankrail, (Manickpur 1/C), District-Howrah- 711309 Substituted in the name of Legal Heirs Vide Order No. 4. Dated 08.02.13. 1. Smt. Nirmala Mondal, W/O of Joydev Mondal, 2. Gopal Mondal S/O Joydev Mondal , since deceased. 3. Nemai Mondal, S/O of Joydev Mondal, since deceased. 4. Ashok Mondal, S/O Joydev Mondal, since deceased 5. Bipin Mondal , S/O Joydev Mondal since deceased 6. Smt Purnima Das, D/O Joydev Mondal since deceased 7. Smt Pratima Sardar, D/O Joydev Mondal since deceased 8. Smt Manju Mondal, D/O Joydev Mondal since deceased 9. Smt. Keka Mondal, D/O Joydev Mondal since deceased RESPONDENTS : 1. Sri Sudhir Boilay, S/O late Mohan Chandra Boilay, Residing at Village- Manickpur, Kalitala (Paschimpara), P.O- Delta Mill, P.S. Sankrail, ( Manickpur I/C), District- Howrah- 711309. .. Respondent 2. The CESC LTD., having its registered office at CESC House, Chowringhee Square, Kolkata- 700 001. 3. The District Engineer, CESC Ltd., Howrah Regional Office, 433/1, G.T. Road ( North) P.S. Golabari, District- Howrah-711 101. .. Proforma Respondents BEFORE : MEMBER : MR. D.BHATTACHARYA MEMBER : MR. J.BAG FOR THE APPELLANTS : Mr. Alok Kumar Laha, Ld. Advocate Mr. Saikat Seal, Ld. Advocate FOR THE RESPONDENTS : Mr. Srijan Nayak, Ld. Advocate : O R D E R :
MR. J.BAG, LD. MEMBER The present appeal is directed against the Order passed by the Ld. District Consumer Disputes Redressal Forum, Howrah in Case No. HDF 41of 2012 whereby Ld. Forum below allowed the complaint in part against OP Nos. 1 and 2 without cost and dismissed without cost against OP Nos. 3 - 11.
The Complaint case, in brief, was as follows:
Mohan Chandra Boiley was the father of the Complainant and owner / occupier and possessor of about (a) 06 decimal of land in L.R.Dag No.130 (Old Dag No.
128) and also of about (b) 12 decimels of land in L.R. Dag No. 131 (Old Dag No.
129) in Manickpur , Kalitala , Mouza Manickpur, P.S. Sankrail , District Howrah. After his death, his sons and other members of the family including the Complainant Sri Sudhir Boiley became owners of the said property and have been owning/ occupying/ possessing and residing in the said property / plots of land. Sri Sudhir Boiley applied before the OP No.2 for a separate meter for electricity in his premises. There is a village Panchayat road running adjacent to the property of the Complainant and there is a four feet wide common passage that has emerged through the plots of land which is the only way of ingress and egress of all the occupants of the properties including that of the Complainant. The local Manickpur Gram Panchayat certified the fact of existence of the common passage. CESC Ltd has already laid under ground electric cable through the said village Panchayat road from which the said common passage has emerged.
Other occupants including the Appellants have taken electricity. Accordingly, the Complainant also wanted to take electric connection in his premises and submitted application to OPs. After inspection was carried out on spot by the men of OP No. 2, being District Engineer CESC Ltd, Howrah Regional Office, the MASD bill was sent in official course to the Complainant. A sum of Rs.9,698/- was paid by the Complainant. When OPs men went to the Complainants premises for installation of meter for providing new service connection including laying of cable through the above mentioned common passage within the said plot of land, OP Nos. 3 -11 raised illegal, forcible and unauthorized objection regarding the laying of the underground cable . The Complainant having contacted the office of OP No.2 was told that because of resistance of the O.P Nos. 3 - 11 electricity could not be provided to the Complainants premises. OP No. 3, Joydev Mondal, filed an M.P. Case No. 401 of 2010 on 02.03.2010 u/s 144 CRPC against the Complainant in the court of Ld. Executive Magistrate 2nd at Howrah with some allegations but no adverse order was issued against the Complainant. Again the said OP No. 3 filed a suit for declaration of their absolute right, title, interest and possession over the concerned property and injunction through Title Suit No. 90 of 2010. The Complainant also filed a writ petition before the Honble High Court at Calcutta being WP No. 14560 (W) of 2010. The said writ petition was disposed of without, however , any order in favour of the Complainant. The Complainant visited the office of the OP No.2 several times. But no positive result was achieved. Accordingly, without having any alternative the Complainant filed a Consumer complaint case before the Ld. District Forum below for direction upon OP Nos. 1 & 2, CESC Ltd. to lay underground cable to provide new electric service connection by installing new domestic electric meter at his premises. Direction upon O.P. Nos. 3-11 was also prayed for not raising any objection or causing obstruction / resistance in the matter of giving new electric connection by laying underground cable through the common passage. The complaint case was contested by filing a written version wherein it was stated inter alia that the job of laying underground cable could not be undertaken because of forcible and unauthorized objection at the site by OP Nos. 3 - 11 who in their written version stated that the common passage is not used by the Complainant and his family members for long 50 years as claimed , that there was a partition suit being No. TS 34 of 1996 for the identical dispute , that there is no path way demarcated to the property of the Complainant through which electricity can be installed and that the suit land is under Civil dispute and hence, no electricity can be installed at the premises of the Complainant.
After hearing all parties and taking into consideration all material facts on record Ld. District Forum below allowed on contest the complaint against OP Nos. 1 and 2 directing them to provide electric service connection by way of laying underground cable. Ld. Forum below also mentioned in their order that if necessary the OP Nos. 1 and 2 would take necessary assistance of protection from P.S . Sankrail .
Being aggrieved by and dissatisfied with the order, the Appellants have come up before this Commission on the grounds that there is a civil dispute pending with the court of civil jurisdiction and that if the connection is drawn by way of laying underground cable through the common passage, the OPs lives will be at risk and safety will be gone . It has been contended that unless the civil suit is disposed of, no order as to laying of under ground cable would be justified.
We have gone through the appeal together with the order of the Ld. Forum below, the petition of complaint, written versions filed by OP Nos.1-2 and 3 -11 filed before the Ld. Forum below and other documents including report of O.C. Sankrail P.S, certificate of Manickpur Grampanchayat about the existence of the path way used by the members of the Complainants family etc. BNAs filed by the Appellants and the Respondent/Complainant No.1 have been perused. Ld. Advocates appearing for all parties were also heard.
Ld. Advocate appearing for the Appellant submitted that a Civil Suit being No. 90 of 2010 in the matter of ownership title over the disputed property as well as extension of electricity to the Complainants premises is pending in the 5th court of the Ld. Judge (Junior Division), Howrah. The matter being sub-judiced, Ld. Forum should not have passed any order in regard to the disputed property. If electricity is extended through underground cable along the common passage as alleged to have been existing there may be serious risk of accident leading to lack of safety and security of the life of the Appellants and also of the members of their families . Case laws have been cited in support of the contention that Civil Suit remaining undecided Consumer Forum cannot pass any order in respect of the self same dispute . The following case laws were submitted.
1. 1 (1991) CPJ 332 (NG),
2. II (1991) CPJ 13,
3. II (1993) CPJ 182 (NC),
4. 1(1991) CPJ 330 (NC),
5. IV(2010) CPJ 234
6. II (1991) CPJ 471 (71)
7. 11(1991) CPJ 341 When the matter is sub-judiced before the Civil Court in respect of the complaint filed under the Consumer Protection Act , 1986 , it is not proper, for the Forums constituted under the Act, to go into the merits of the complaint Ld. Advocate appearing for the Respondent /Complainant submitted that there is a common passage connecting the premises of the Respondent Complainant across Dag No. 128 which is being disputed by the Appellants. In fact it has been admitted in the Civil Suit No. 90 of 2010, (Paragraph
-8) filed by the Appellants that there is a common passage for egress and ingrass for the members of families of both the Respondent / Complainant and the Appellant themselves. Such common passage which is 2 feet wide is being used for more than 50 years and a village Panchayat road has been running across the plot No. 128 which is a property not yet partitioned and demarcated by the concerned owners. Though they admitted the existence of common passage as stated in the T.S NO. 90 of 2010 they have suppressed the fact in the present appeal as well as in the written version submitted before the Ld. Forum below. It appears from the written statement submitted by CESC before the Ld. Civil Court in matter No. 90 of 2010 that cables are laid taking all the precaution and in the narrow lane/passage cables are laid underground for safety and security reasons. Case laws cited on behalf of the Respondent are as follows :
1.
(2010) 3 WBLR (CAL)P539.
It was held by Honble Justice Jayanta Kumar Biswas in W.P. No. 6550 (W) of 2009, on the question whether Civil Courts Order of injunction can stand in the way of installation of electricity connection, that under Section 43 of the Electricity Act, even an occupier of a property has a statutory right to call upon the distribution company to give him electricity and once the requisite application is filed the distribution company is under statutory obligation to give him electricity. Further, electricity connection can not change nature and character of the property.
2. AIR (2011) (CAL) P 28 .
3. (2011) 1 CPJ 417
4. (2011) II CPJ 516
5. AIR 2011 (CAL) 64
6. (2012) 3 CLJ (CAL) 153 As by evidence proved by the Respondent / Complainant , there is already a passage which is used by the Appellants (Joydeb Mondal ) and the Respondent/Complainant for egress and ingress and as such the Appellant No.1 / OP No.3 / Joydeb Mondal and Ors cannot lawfully object to cable laying under the passage as laying of underground cable will not change the character of the land through which the cable line will pass .
Though it is a fact that the land in Dag No. 128 is under dispute , the Complainant has a share in the said land and upon consideration of such fact, the prayer for ad interim injunction has been rejected by the Ld. 5th Civil Judge (Junior Division) Howrah. OP/ Proforma Respondent Nos. 2&3 being CESC Ltd. are also ready to give electric connection by laying underground cable taking all precautionary measures.
From a look at the site plan showing the portion of CESC underground electric line and meter room in the Mouza Manikpur, JL No. 19 LR Khatian No. 1655 part of CS and RS Dag No. 129 LR Dag No. 131 P.S. Sakrail , Dist- Howrah , it appears that a Panchayat road has touched Dag No. 128 from which a common passage emerges and connects the premises of the Complainant. The Complainant/ Respondent has already paid the requisite fees for having new electric connection and the service provider CESC Ltd has agreed to provide such electric connection by laying an underground cable through a common passage which is used by both the Appellant and the Complainant/Respondent . Mere objection of the Appellants who have not yet established their absolute right / title over the land under dispute , cannot be a reason for the licensee , being the CESC Ltd to shirk their statutory duty to supply electric energy which is an essential service and an ingredient of the fundamental right to life of an individual in modern society as observed by Honble Justice Joymalya Bagchi reported in 2012(3) CLJ 153 (CAL).
Going by the above noted discussions apart from facts and evidence as on record we are of the considered view that the Ld. Forum below has passed the order without any material irregularity or legal infirmity. We find no reason to interfere with the order of the Ld. Forum below.
Hence, Ordered that the appeal be and the same is dismissed on contest . The impugned order is confirmed. There shall be no order as to costs.
MR. J.BAG MR. D.BHATTACHARYA MEMBER MEMBER