Calcutta High Court (Appellete Side)
Arghya Majumder @ Argha Majumder vs Cesc Limited & Others on 22 April, 2019
Author: Arijit Banerjee
Bench: Arijit Banerjee
z 1
7. 22.04.
AB
&
2019 MAT 348 of 2019
Aloke Court
No.1 With
CAN 2394 of 2019
Arghya Majumder @ Argha Majumder
Vs
CESC Limited & Others
Mr. Amit Kr. Pan ...for the Appellant/Applicant.
Mr. Subir Sanyal,
Ms. Sumouli Sarkar ...for the Respondent /
CESC Limited.
We have heard learned counsel for the appellant and the learned counsel for the CESC Limited which we refer to hereinafter as "the Distribution Company"
governed by the provisions of the Electricity Act, 2003.
One Swapan Banerjee came to this court and instituted W. P. No.18731 (W) of 2018 asserting that he is entitled to supply of electrical energy by the Distribution Company and the supply was disconnected without requisite statutory notice under Section 56 of the Act.
The plea projected in the writ petition is that he was not given 15 days' time by way of notice and supply of electricity being an essential service, it cannot be so disconnected. He also projected that the electricity supplied to the writ petitioner cannot be disconnected for dues from any third party though such a so-called "third party" was not disclosed in the writ petition and arrayed as a respondent.
At the hearing of the writ petition for interlocutory reliefs, the Distribution Company brought to the notice of z 2 the learned Single Judge that dues are outstanding from the owner of the land. The learned Single Judge, therefore, passed an order directing that landowner or landlord to pay such outstanding in a time-bound manner. A condition was also imposed as a default clause that was to be effected through the jurisdictional police if payments were not made. The landlord made certain payments. Thereafter, the Distribution Company brought to the notice of the learned Single Judge that the entire amounts due from the landlord were not paid. Then, on 27.2.2019 the order impugned in this appeal was issued by the learned Single Judge directing the payment of remaining outstanding dues in two installments as stated therein. This also carried the default clause of arrest and detention through jurisdictional police.
The imposition of default clause by way of arrest and detention is not in terms of the prescription of primary legislation or any other enabling statutory laws. Therefore, the writ appeal is filed by the landlord pleading that the direction for arrest and detention is unconstitutional.
We cannot but agree with this submission having regard to the liberty issues involved in that aspect of the matter and taking into consideration Article 21 and other provisions of the Constitution.
Be that as it may, the stark reality is that the Distribution Company is running around more like a person in default and the landlord and the tenants are enjoying the music of going round and round a dancing z 3 roll with the Distribution Company in the centre.
The learned counsel for the Distribution Company is justified in saying that the electricity cannot be supplied in installments and, therefore, when one agrees to pay off in installments that should be taken in strict terms if any indulgence is to be shown.
We do not see any material in the appeal except to the extent it relates to the direction for arrest and detention in the event of default in payment. We, therefore, vacate that part of the impugned order. We also direct that if payments due to the Distribution Company are not made either by the landlord or by any person in occupation as directed by the Distribution Company, in accordance with law, the Distribution Company will be at liberty to effect disconnection and take further proceedings in accordance with law for recovery of outstanding dues.
We also clarify that all statutory charges including interest will continue to run until the dues are paid in terms of this direction. We also take into consideration the pragmatic approach adopted by learned Counsel appearing on behalf of the Distribution Company by suggesting that his client would be more interested in getting the funds at the earliest and, therefore, the appellant may be given a short timeframe to satisfy the requirements to pay the outstanding dues with accruals. We extend the period fixed by the learned Single Judge for paying the entire amount due to the Distribution Company by a period of three weeks from date.
MAT 348 of 2019 and CAN 2394 of 2019 are, z 4 accordingly, disposed of.
Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.
(Thottathil B. Radhakrishnan, C.J.) ( Arijit Banerjee, J.)