Calcutta High Court
Dr. Emajuddin Ahmed vs Cesc Ltd. & Anr on 22 December, 2009
Author: Dipankar Datta
Bench: Dipankar Datta
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
WP No. 192 of 2009
DR. EMAJUDDIN AHMED
Versus
CESC LTD. & ANR.
WP No. 193 of 2009
DR. IMTIAZ AHMED
Versus
CESC LTD. & ANR.
WP No. 194 of 2009
DR. KABIR AHMED
Versus
CESC LTD.
WP No. 195 of 2009
TALBIZUR RAHMAN
Versus
CESC LTD.
WP No. 196 of 2009
MRS.NISHAT AHMED
Versus
CESC LTD. & ANR.
BEFORE:
The Hon'ble JUSTICE DIPANKAR DATTA
Date : 22nd December, 2009.
The Court : The petitioners have applied for supply of
electricity. However, such supply has not been effected by CESC Ltd. on the
grounds that W.P.No. 31537(W) of 2008 is pending and that objections were raised
by the added respondents.
W.P.No. 31537(W) of 2008 has since been dismissed for non-prosecution. One of the impediments for supplying electricity is, therefore, no longer in existence.
2
Md. Nure Zaman, learned Advocate representing the owners of the property (the added respondents) submits that the petitioners are not in lawful occupation of the flats in question and therefore in view of the provisions contained in the Works of Licensees Rules, 2006, they are not entitled to supply of electricity. He has referred to the definition of "occupier" in Rule 2(b) thereof in support of his submission.
In Santosh Jaiswal vs. CESC Limited & Ors.: (2008) 4 CHN 630, this Court upon consideration of a number of earlier conflicting decisions of this Court (even of Division Benches) has held upon interpretation of the Electricity Act, 2003 and more particularly Section 43 thereof as follows :
"None can dispute that electricity is an essential service without which it is difficult to survive. Right to live a meaningful life and with dignity is one of the basis postulates of Article 21 of the Constitution. The right guaranteed under Article 21 is the fundamental of all fundamental rights enshrined in Chapter III of the Constitution. One cannot be deprived of such right only on the basis of an unestablished accusation that he is a trespasser which, as held in Soumitra Banerjee (supra), is commonly used as a tool or means of putting extraneous pressure for resolving civil disputes. Supply of electricity to such alleged trespasser by a licensee would neither prejudice in any manner the owner's right to have an order of eviction passed against him nor would it make any difference so far as status of the alleged trespasser is concerned. The licensee's duty is to sell electricity provided formalities are complied with. There is no justification to hold that lawful occupation of a portion of the premises is a pre-
condition for obtaining supply. If the right of an owner to object to electricity being supplied to an occupier of his premises by the licensee is to be conceded on the ground that the occupier has illegally or unauthorisedly taken possession, that would necessarily lead to clothing the licensee with the right to adjudicate the 3 occupier's right to enjoy the property which this Court is inclined to hold is not the legislative intention. The laws of the country provide for adjudication of such issue by an appropriate forum. If there is any flaw in the statute or the phrasing is defective and the need to mend it arises, it is only the legislature that can amend it. It is the function of the Courts to expound and not to legislate is settled law. Keeping in view the scheme of the new Act, reading the word lawful before the word 'occupier' would amount to legislation by Court which is impermissible.
The said decision has been noticed in Fashion Proprietor Aswani Kumar Maity vs. West Bengal Electricity Distribution Co. Ltd.: AIR 2009 Calcutta 87 and the learned Judge took the same view upon consideration of two other conflicting decisions of Division Benches of this Court.
Reference to Rule 2(b) of the Works of Licensees Rules, 2006 by Md. Nure Zaman appears to be misplaced. Wherever the word occupier occurs in the Rules, the same would mean a person who is in lawful occupation of a building or land. The word 'occupier' appears in Rule 3(a) which provides that the consent of the owner or the occupier of any building or land would be required if no electric supply line or works has already been lawfully laid down or placed by the licensee. He has not disputed that underground cables have been laid down by CESC Ltd. for supplying electricity to some portions of the building in which the petitioners have their respective flats. There is no finding given by a competent Court of law that the petitioners are in unlawful occupation of their respective flats. Mere accusation to this effect by the added respondents without any valid and binding determination does not render the status of the petitioners as "unlawful occupiers" of a building or land. Their consent in a case where CESC Ltd. intends to lay down cables or place the same for effecting supply would suffice for the purpose of Rule 3(a) till such time a Court of law declares them to be unlawful occupiers.4
Having regard to the above, these writ petitions stand disposed of with a direction upon CESC Ltd. to consider the applications filed by the petitioners strictly in accordance with law. In the event the petitioners are otherwise found to be entitled to supply of electricity, it shall take appropriate step to supply the same at an early date but not later than four weeks from date of compliance of all formalities and payment of necessary charges by them. In the event the petitioners are found eligible to supply of electricity but any obstruction is raised by the added respondents at the time supply of electricity is intended to be effected, CESC Ltd. shall be at liberty to seek assistance of the Officer-in-Charge of the local Police Station who shall offer such assistance as may be necessary for effecting supply.
It is also made clear that in the event the CESC Ltd. is of the view that new cables are to be laid down, they shall be at liberty to do so and if any obstruction is raised from any quarter, they shall be entitled to obtain necessary assistance from the police.
It has been submitted by Md. Nure Zaman that three applications filed by the added respondents praying for supply are pending before the CESC Ltd.. Learned Counsel appearing for the CESC Ltd., however, is not in a position to accept such submission for want of instructions. However, in the event it is found that applications filed by the added respondents are also pending, CESC Ltd. shall take steps to consider and dispose of the same within the time frame mentioned above, according to law.
This order shall not preclude the added respondents to initiate proceedings for eviction of the petitioners, if so advised.
Photocopy of this order, duly countersigned by the Assistant Registrar, shall be retained with the records of W.P. Nos. 193-196 of 2009. 5
Urgent xerox certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(DIPANKAR DATTA, J.) TR/