State Consumer Disputes Redressal Commission
Sri Bijan Behari Malik vs Sri Babu Bodhok on 27 March, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/754/2016 (Arisen out of Order Dated 22/07/2016 in Case No. Complaint Case No. CC/333/2015 of District Howrah) 1. Sri Bijan Behari Malik S/o Lt. Bechuram Malik, 58, Makardah Road, P.S. - Bantra, Dist. - Howrah. 2. Sri Mrinal Malik S/o Lt. Bechuram Malik, 58, Makardah Road, P.S. - Bantra, Dist. - Howrah. 3. Sri Soumen Malik S/o Lt. Bechuram Malik, 58, Makardah Road, P.S. - Bantra, Dist. - Howrah. ...........Appellant(s) Versus 1. Sri Babu Bodhok S/o Sri Ranjit Bodhok, 58, Makardah Road, P.S. - Bantra, Dist. - Howrah- 711 101. 2. Sri Sujit Mondal S/o Sri Gunadhar Mondal, 58, Makardah Road, P.S. - Bantra, Dist. - Howrah - 711 101. 3. Sri Rabin Mondal S/o Sri Shankar Mondal, 58, Makardah Road, P.S. - Bantra, Dist. - Howrah - 711 101. 4. Sri Anana Adhikary S/o Sri Mantu Adhikary, 58, Makardah Road, P.S. - Bantra, Dist. - Howrah - 711 101. 5. The District Engineer, CESC Ltd. Regional office, 433/1, G.T. Road(N), Howrah - 711 101. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Appellant: Mr. Arup Roy, Advocate For the Respondent: Ms. Babita Choudhury., Advocate Dated : 27 Mar 2017 Final Order / Judgement
Date of Filing - 22.08.2016 Date of Hearing - 15.03.2017 The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') is at the behest of the Opposite Party Nos. 2 to 4 to impeach the Final Order dated 22.07.2016 passed by the Ld. District Consumer Disputes Redressal Forum, Howrah (for short, Ld. District Forum) in Consumer Complaint no. 333/2015. By the impugned order, the Ld. District Forum allowed the consumer complaint lodged by the Respondent Nos. 1 to 4 under Section 12 of the Act on contest against the CESC Ltd. (Respondent no.5) and the Appellants with a direction upon the Respondent no.5/CESC Ltd. to install new electric meter in the tenanted premises of the respondent nos. 1 to 4 within 30 days from the date of order.
The respondent nos. 1 to 4 being Complainants instituted the complaint asserting that they are monthly tenants in respect of the premises lying and situated at 58, Makardaha Road, P.S.- Bantra, Dist-Howrah within Ward No.22 of Howrah Municipal Corporation. On 28.07.2015 complainant no.1/respondent no.1 had applied to CESC Ltd. for new electric connection and to that effect he paid earnest money. On 30.07.2015 the men of CESC Ltd went to the spot for inspection but they were vehemently opposed by OP nos. 2 to 4/appellants. Hence, the respondent nos. 1 to 4 approached the Ld. District Forum with prayer for installation of electric service connection in their tenanted premises, compensation and litigation cost etc. The respondent no.5/OP no.1 i.e. CESC Ltd. by filing a written version has stated that they have no latches or negligence to install the electric connection but they were obstructed by the OP nos. 2 to 4. Therefore, the case may be dismissed against them.
The appellants being OP nos.2 to 4 by filing a separate written version have stated that the status of the complainants is mere trespassers in respect of Premises 58, Makardaha Road, P.S.- Bantra, Dist-Howrah within Ward No.22 of Howrah Municipal Corporation and they have been occupying the said premises illegally without paying any rent to them.
After assessing the materials on record, the Ld. District Forum by the impugned final order allowed the complaint with the directions as indicated above, which prompted the OP nos. 2 to 4 to prefer this appeal.
I have considered the submission advanced by the Ld. Advocates appearing for the Appellants and Respondent nos. 1 to 4 as well as respondent no.5 and also scrutinised the materials on record.
Ld. Advocate appearing for the appellants has submitted that the respondent nos. 1 to 4 have been living at Premises 53/1/1, Makardaha Road, Shanpur, Howrah and enjoying the electricity in their said premises being Consumer No.57073066116. He has also submitted that the said respondents have been in forcible possession of Premises No. 58, Makardaha Road, P.S.- Bantra, Dist-Howrah within Ward No.22 of Howrah Municipal Corporation. Ld. Advocate for the appellants in support of his submission referred a decision of Hon'ble Supreme Court reported in (2001) 9 SCC 604 (Laxmiben Laxmichand Sahah - vs. - Sakerben Kanji Chandan & Ors.).
Ld. Advocate for the respondent no.5 has submitted that they will abide by the order of the Court.
Ld. Advocate for the respondent nos. 1 to 4, on the other hand, has submitted that right of electricity is a fundamental right and it is statutory obligation on the part of licensing authority (respondent no.5) to provide electricity to respondent nos. 1 & 2 and the appellants have no locus standi to raise any objection against such installation. Ld. Advocate for the respondent nos. 1 to 4 has drawn my attention to the Voter Identity Cards, Aadhar Cards and Ration Cards etc. sands in the name of respondent nos 2 to 4 in order to establish that the respondent nos. 2 to 4 have been living at Premises No. 58, Makardaha Road, P.S.- Bantra, Dist-Howrah - 711101. To fortify his submission, Ld. Advocate for the respondent nos. 2 to 4 has placed reliance to a decision of Full Bench of Calcutta High Court in WP No.423/2010 (Abhimanyu Majumdar - vs. - Superintendent Engineer & Anr.) I have considered the rival contention of the parties. Section 43 of the Electricity Act, 2003 is the main provision casting an obligation upon every distribution licensee to give supply of electricity to the premises when the application by the owner or occupier of such premises is made and Sub Section (1) of Section 43 of the said Act enjoins upon the distribution licensee to give such supply of electricity to the owner or occupier of the premises, as the case may be, within one month after receipt of the application requiring such supply. Therefore, the only point has to be looked into whether the Complainants are occupants of the premises or not. In the case of Abhimanyu Majumdar (supra) the question came for consideration whether right to have electricity under the ambit of Article of 21 of Constitution of India by including such right within the derived right to shelter under Article 21 of the Constitution of India could be available to trespassers and unauthorised occupiers; and, whether right to shelter, a derived/emanated fundamental right could be extended to the unauthorised occupants, squatters, encroachers of any land or premises to provide as a consequential relief to supply electricity, on breach of statutory provisions under the Electricity Act, 2003. In answering the question, the Full Bench of our parent High Court has answered in the affirmative provided the encroacher is in settled position of the property.
Ld. Advocate for the appellants has also contended that the appellants being plaintiffs instituted a civil suit being TS No.1422/2016 before the Court of Ld. Civil Judge (Junior Division) 7th Court at Howrah against the respondent nos. 2 to 4 and obtained an order of injunction. On perusal of the document, I find that by Order No.01 (later) dated 17.11.2016 the Ld. Civil Judge passed an order restraining the respondent nos. 2 to 4 from interfering with the peaceful possession and enjoyment of the appellants 'B' schedule suit property till 19.12.2016. The Ld. Advocate for the appellants has further submitted that the said order is still in force and as such a Consumer Forum cannot pass any effective order in which an order of injunction passed by a competent Civil Court is in vogue.
I am not convinced with such submissions because the respondent no.5 i.e. CESC Ltd. was not a party to that suit. In view of the provisions of Section 43 of the Electricity Act, 2003, as an occupier of the property or a part thereof, the complainants have a statutory right to call upon the distribution company (herein CESC Ltd.) to give them electricity, and once the requisite application was filed, the distribution company incurred a statutory obligation to give him electricity. A Division Bench of the Calcutta High Court reported in 2000 WBLR (Cal) 533 (Manju Mukul Guha - vs. - Pradip Kumar Mullick & Ors.) has observed that even an injunction order of the Civil Court directing the petitioner not to change the nature and character of the property cannot get in the way of his getting electricity from the distribution company. The landlord has no right to raise objection. It is a statutory right which cannot be curtailed by whim or fancy of a Forum or a Court of Law. The decision referred by the Ld. Advocate for the appellants in the case Laxmiben Laxmichand Shah (supra) has no relevancy with the facts and circumstances of our case because in the referred case, the appellants being tenants approached the Consumer Forum against the landlord for failure to render services for cleaning, repairing and maintenance of the subject building but failed as there was no stipulation in the agreement to that effect.
We must not be obsessed with the proposition of law that a Consumer Forum is meant for disposal of a consumer dispute in a summary way for a limited purpose. It has no bearing with an action of a Civil Court. The right, title, interest or tenancy right would be adjudicated by a competent Civil Court but since statute is no evil, all the authorities must adhere to the legislative command. The Ld. District Forum has rightly passed the order impugned which should not be interfered with. On the contrary, the appellants without having any reason have filed this appeal and as such the appeal should be dismissed with costs which I quantify at Rs.10,000/-.
Consequently, the appeal is dismissed on contest with cost of Rs.5,000/- each to be paid by the appellants/OP nos. 2 to 4 to respondent nos.1 to 4/complainants and respondent no.5/OP no.1.
The impugned Order is hereby affirmed.
The Registrar of this Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, Howrah for information. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER