Calcutta High Court
Secretary, West Bengal State ... vs Deb Kumar Jash And Anr. on 19 November, 2004
Equivalent citations: 2005(4)CHN24
Author: A.K. Ganguly
Bench: A.K. Ganguly
JUDGMENT
1. Heard ld. counsel for the appellant. This matter has been taken up at the second call, even then nobody appears for the respondent No. 1.
2. This appeal is from an order dated 30.7.03 passed by a ld. Judge of the Writ Court in connection with Writ Petition No. W.P. 11460 (W) of 2003. By the said judgment and order under appeal the ld. Judge was pleased to dispose of the writ application without calling for the affidavits from the West Bengal State Electricity Board, the appellant before us. While disposing of the writ petition the ld. Judge directed the Board to bear the cost of installation of transformer in connection with grant of electricity line for the submersible pump to be installed by the writ petitioner. The ld. Judge while giving such direction relied on two judgments of this Court, one in the case of Kartick Chandra Ghosh v. W.B.S.E.B., and one in the case of B. Chaudhury v. W.B.S.E.B. and Ors., reproted in ********. Ld. counsel for the appellant Board submitted that those two judgments were rendered in a different context when the previous Act, viz. Electricity (Supply) Act, 1948, was in force. Ld. counsel further submitted that after the new Act, the Electricity Act, 2003, came into force, the statutory position has undergone a sea change and as a result of which previous judgments are no longer holding the field.
3. On such submission being made by the ld. counsel, we looked into the judgment in the case of Kartick Chandra Base and we find that in the said judgment the ld. Judge was considering the provisions of Sub-sections (2), (7), (11A), and (12) of Section 2 of Electricity (Supply) Act, 1948 as also Section 41 of the 1948 Act. Apart from that the ld. Judge was considering supply in connection with domestic consumption.
4. It cannot be disputed that so far as supply of electricity for installation of submersible pump is concerned, the same cannot be said to be domestic consumption at all. In any event the ld. Judge did not have any occasion to consider the provisions of Sections 43 and 46 of the Electricity Act, 2003. The other judgment on which reliance was placed in the judgment under appeal was also rendered considering the provisions of Section 2(f) and (1) and Schedule VI of the Indian Electricity Act, 1910. In the said judgment the ld. Judge made a distinction between service line and electric supply line. The factual context of the judgment indicates that the said judgment was also rendered in connection with domestic consumption. It also appears that the said judgment was passed in the absence of the ld. counsel for the Board. It is submitted that the same ld. Judge who delivered the judgment in the case of B. Chowdhury subsequently in another judgment in the case of Sk. Based Ali v. W.B.S.E.B. reported in 2004(1) CLJ (Cal) page 239 considered the provisions of the new Act. It appears that the ld. Judge in para 4 of the judgment in Based Ali considered the question of service line and electric supply line and held that for the subsequent change in the statute, new provisions will govern the field and the ld. Judge relied on Sections 43 and 46 of the new Act. Relying on these two provisions of the new Act, ld. Judge in para 15 of the judgment held that prayer for supply of electricity without bearing the cost of transformer has no legal basis. In that view of the matter this Court is of the view that the major basis on which the ld. Judge passed the order on 30.07.03 is no longer valid inasmuch as by the 30.07.03 the new Act has come into force and statutory context has totally changed. Apart from that, from the materials on record it appears that in order to, obtain SWID certificate, a distance of 200 meters between two submersible pumps is required in veiw of the decreasing water level in the district of Burdwaw. This Court finds from the inspection report disclosed in this case that there are at least four nearby hand tubewells and pumps and as a results of which grant of permission for installation of another submersible pump will be violative of the aforesaid norms.
5. Considering all these aspects of the matter we are of the view that the ld. Judge probably did not exercise His Lordships's discretion correctly in the facts and circumstances of the case and also in the context of the new law. In fact the provisions of the new law were not at all noticed by the ld. Judge in the order under appeal.
6. For the reasons aforesaid the judgment passed by the ld. Judge cannot be sustained and the same is hereby set aside. The appeal is allowed. There will be no order as to cost.
7. The connected writ petition is also dismissed.
8. Xerox certified copy of the order, if applied for, be supplied expeditiously.