Calcutta High Court
Sri Sailendra Nath Pal & Anr vs Neelachal Housing Co-Operative Colony ... on 19 June, 2008
Author: Pranab Kumar Chattopadhyay
Bench: Pranab Kumar Chattopadhyay
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
Present:
The Hon'ble Justice Pranab Kumar Chattopadhyay
And
The Hon'ble Justice Tapan Mukherjee.
A.P.O. 252 of 1996
W.P. 1306 of 1994
Sri Sailendra Nath Pal & Anr.
Versus
Neelachal Housing Co-operative Colony Society Limited & Ors.
For the Appellants: Mr. Arabinda Chatterjee,
Ms. A. Sinha.
For the Respondent CESC Ltd.: Mr. P.S. Bose, Sr. Advocate
Mr. S.Biswas.
For the Respondent No.1: Mr. Soumik Mukherjee
For Respondent Nos. 4 & 5: Mr. Anil Kr. Mullick,
Ms. Manashi Bhattacharya.
For Respondent Nos. 3 & 6: Ms. Chhabi Chakraborty.
Heard on: 18.4.2008 and 29.4.2008.
Judgment on: 19.06.2008.
TAPAN MUKHERJEE, J.
This appeal at the instance of the respondent nos. 8 and 9 is directed against the judgment and order passed by learned trial court in writ application being matter No. 1306 of 1994.
The appellants are the owners of the plot No.2429 measuring about 1 bigha 4 cottah and odd at Mouja Kasba where a pucca construction stands. The appellants were informed that the lands were acquired under Section 4(1)(a) of the West Bengal Land Acquisition and Requisition Act, 1948 and the appellants were asked to state the nature of interest in the land and particulars of their claims with regard to compensation for the same. The appellants then moved writ application and obtained an ad interim order of injunction restraining the respondents from entering into the land and disturbing their peaceful possession. Despite the said order the respondent Neelachal Housing Co- operative Colony Society tried to construct a boundary in and around the premises of the appellants in 1989 in order to stop ingress and egress of the appellant. The appellants then moved a writ application and obtained an interim order from the High Court restraining the respondents in particular respondent No.4 from finishing construction of wall around the wall of the appellants herein and also from disturbing their possession. As the respondent-Society continued the construction despite the said order a contempt application was moved. The Secretary of the respondent-Society submitted that the society had no intention to disturb the ingress and egress of the petitioner in any manner and there would be no boundary wall in and around the land of the appellants herein. The contempt application was disposed of.
The appellants filed an application before C.E.S.C. for giving a new connection in their premises in the year 1992 and eventually despite observance of all legal formalities the C.E.S.C. did not give new electric connection to the petitioner's premises. Writ application being 19894 (w) of 1994 was again moved and on 6.6.94 Learned Single Judge directed the C.E.S.C. to give electric connection to the premises of the appellants.
The relevant part of the order is set out below for the sake of convenience:
"After considering writ application and hearing the submissions of the learned Advocates I am of the view that there is no justification for keeping this application pending as it appears from Annexure 'A' itself that the petitioner made the requisite payment asked for by the respondent in respect of the bill raised by them. In that view of the matter I dispose of the writ application by directing the respondent to give the requisite electric connection in accordance with law in the premises of the petitioner within two weeks from the date of the communication of this order."
The respondent-society also filed another writ application on 2.5.1994 praying for a direction upon the C.E.S.C. for not drawing any underground cable line through the land of the society for the purpose of giving electric connection to the appellants and also for other reliefs.
The said writ application along with the application for recalling judgment and order dated 6.6.1994 passed in C.O. No. 19894 (w) of 1994 were disposed of by the impugned order on 25.4.1996 as hereunder:-
"In the result, the writ application being matter No. 1306 of 1994 succeeds and the same is hereby allowed. The CESC is directed not to take cables underneath or over the land owned and possessed by the petitioner society for purpose of giving electric connection to the premises of the respondent Nos. 8 and 9 viz. Shri Sailendra Nath Pal and Shri Sundar Lal Pal without consent of the said society. The CESC, however will be at liberty to give such connection to the premises of the petitioner over or underneath any of the land in respect of which either no such permission is required or if such permissions is required with consent of the concerned owner. Since it appears that such cable has already been laid underneath the land of the society and it has now been held by this court that the same has been done illegally the CESC is directed to remove such cable within two months from date of communication of this order.
There will be no order as to costs.
As to the application for recalling of the order made in the writ petition in the Appellate Side, because of the reasons aforesaid, the application for recalling is disposed of with the observations that since the aforesaid writ petition was disposed of directing the CESC to give such connection in accordance with law, and accordingly, the CESC is duty bound to give such connection in accordance with law and not contrary to the same, the question of recalling of the said order does not arise. However, because of the aforesaid complications as stated above which have arisen, it is clarified that in implementing the aforesaid order passed in the Writ petition in the appellate side, the CESC in the process of giving such connection can take the cable underneath the land or over the land of a person only with his consent."
Being aggrieved by the said judgment and order the appellants have preferred this appeal.
It has been contended by the learned lawyer for the appellants that undisputedly, there is house of the appellants on plot No. 2429. It is also undisputed that the society has got the land surrounding the said plot. In compliance with the order passed earlier by this Court, CESC gave electric connection to the premises of the appellants and for the purpose of giving connection the CESC took the cable underneath the land claimed by the society. The supply of electricity is an essential service in modern life and the appellants cannot be denied of such service. When the land of the appellants is surrounded by the land of the society, the appellants as of necessity is entitled to electricity after taking cable through the land of the society and the society cannot raise any objection to it and no permission of the society is required therefor in view of the Right of easement of necessity. The CESC has already given electric connection to the premises of the appellants by taking cable underneath the surrounding land. The CESC has acted in terms of direction of this Court and the same cannot be questioned afterwards.
It has been further contended by the learned lawyer for the appellants that in law there cannot be any direction for removal of the cable by the CESC as the supply of electricity is a bare necessity. So the question of taking permission of the society for giving connection to the appellants by taking cable underneath its land does not arise and the impugned order is not sustainable.
It has been contended by the learned lawyer for the CESC that the CESC has no other alternative but to act according to direction of this Court and CESC had also complied with the direction of this Court.
It has been contended by the learned lawyer for the society that the land surrounding the land of the appellants belongs to society and the appellants have no right to use any portion of the said land of the society without it's consent and even for the purpose of getting electric connection. It has also been submitted on behalf of the society that the CESC cannot give electric connection by taking cable underneath the land of the society and accordingly learned counsel for the respondent No.1, the society supports the impugned judgment and order under appeal passed by the learned trial court.
Learned lawyers for the respective respondents Nos. 3 and 6, 4 and 5 support the impugned order under appeal.
It is undisputed that the appellants have their house on plot No.2429. It is also not disputed that the said land is surrounded by the land of the society. It is also clear that the CESC has given electric connection to the premises of the appellants on plot No.2429 by taking cable underneath the land of the society. It is needless to say that in modern life electricity is a bare necessity and one cannot live without electricity and right to have electric connection comes squarely within the right to life. Learned trial judge has also appreciated the said necessity and observed in his judgment that he is not oblivious of the hardship or the sufferance which the writ petitioner in the appellate side namely, the appellants herein may face even if unable to enjoy the electric connection which no doubt has been put an essential service in the modern life. But the matter which swayed the learned trial judge is that the connection has been given by laying cable under the land of the society without it's consent and so learned trial judge was very much eager to undo the legal wrong alleged to have been committed by laying the cable underneath the land of the society without obtaining consent for the same. In order to undo the said legal wrong, Learned Single Judge issued direction for removal of the said underneath cable and also directed to take electricity with the consent of the society or any person being owner of the land in question.
Considering the fact that the premises of the appellant is surrounded by the land of the society from all sides and the appellants have got the right to enjoy the electricity in their premises for effective user and enjoyment of the said premises we appreciate that the said appellants require electricity at the premises in question and for getting the electricity they are in dire need of taking cable underneath or over the surrounding land. The appellants herein, in our opinion, can claim such right of taking cable underneath or over the surrounding land as right of easement of necessity as the premises of appellants on plot No. 2429 cannot be effectively used without such right of easement. Such right is a legal right and the society cannot interfere with such right and the question of taking consent of the society for the purpose of taking cable underneath the surrounding land or any portion of the land, therefore, cannot and does not arise. We also hold that the appellants have not committed any legal wrong as observed by the learned Trial Court and the question of removal of the cable placed by the CESC in the matter of giving electric connection to the premises of the appellants does not arise. In our opinion, Learned trial court was not justified in holding that legal wrong has been committed as electric connection has been given by laying the cable underneath the land of the society without taking their consent. Learned Trial Court also committed wrong in directing removal of the said cable.
It is not the case that the appellants herein purchased the land in question and raised construction in spite of having specific knowledge that the surrounding lands belonged to the society. In any event, the society had the specific knowledge that the lands owned by the appellants could not be acquired and the appellants herein are entitled to enjoy the same by raising construction. Undisputedly, the appellants herein are residing at the premises in question constructed on the land which is surrounded by the lands of the society.
The Society has no right to deprive the bare necessity of lives of the residents of the said premises. The appellants herein being the owners and residents of the premises in question are entitled to enjoy not only the right of free ingress and egress to and from the lands in question but also entitled to enjoy the essential services like electricity, water etc. In the aforesaid circumstances, the CESC is bound to supply electricity to the premises in question of the appellants herein.
Considering the Right of easement of necessity the CESC Ltd. authorities should be allowed to lay the electric cable underneath the land of the society for the purpose of supplying electricity to the premises in question owned by the appellants herein. The learned Single Judge unfortunately did not consider the aforesaid aspect including the easement rights of the appellants herein and directed removal of the electric cable without mentioning any alternative route for laying the electric cable in order to ensure uninterrupted supply of electricity to the premises in question of the appellants which is surrounded by the land of the Society.
For the reasons discussed hereinbefore, the judgment and order under appeal passed by the learned Single Judge cannot be sustained and the same are liable to be set aside.
The instant appeal is, therefore, allowed on contest and the impugned judgment and order passed by the learned Single Judge are hereby set aside.
In the circumstance, we make no order as to costs.
Let urgent Xerox certified copy of this judgment and order, if applied for, be given to the learned Advocates of the parties on usual undertaking.
(TAPAN MUKHERJEE, J.) I agree.
(PRANAB KUMAR CHATTOPADHYAY, J.)