Calcutta High Court
Associated Indam Mechanical Private ... vs C.E.S.C. And Ors. on 21 September, 1988
Equivalent citations: (1989)1CALLT187(HC)
JUDGMENT Susanta Chatterji, J.
1. The petitioner M/s. Associated Indam Mechanical Private Ltd. and one of its Directors have jointly filed the present writ petition praying, inter alia, for issuance of a writ mandamus commanding and/or directing the respondents and/or their employees and agents to restore electricity of consumer No. 30008010006 being Meter No. LF 0674290 and LF 0402738 at 3, Esplanade East, Calcutta-69 and for other consequential reliefs as stated therein. It is stated in the writ petition that M/s. Associated Indam Mechanical Private Ltd., is a private limited Company having incorporated under the Companies Act and has its registered Office at 3, Esplanade East, Calcutta and factory at Howrah Industrial Estate. It is further stated that the petitioners were enjoying electricity from 1968 to 9.8.88 from the meter standing in the name of Sudson Pvt. Ltd. being consumer number as stated above. It is further alleged that while there is a chain of correspondence between the petitioner and the CESC authorities the electric line has been disconnected and the petitioner is compelled to file the present writ petition praying for a direction upon the CESC authorities to reconnect the electric line and/or to supply and/or to transfer the meter to the name of the petitioner upon all facts as fully elaborated therein.
2. The writ petition was entertained on 16.8.88, but the petitioner's prayer for supply of electricity through the meter standing in the name of Sudson Pvt. Ltd. was refused. The CESC authorities were however, given leave to process the pending application of the petitioner No. 1, if any, for providing electricity by installing a new meter upon compliance with all the formalities.
3. While the writ petition was pending before this Court, an application was filed by the Peerless General Finance and Investment Co. Ltd., for addition of its name as a party respondents, and for intervention in the matter. Being satisfied with the prayer made by Peerless Co. they were added as a party respondent and an affidavit has been filed by the added party stating certain relevant facts of this case.
4. Having gone through the Affidavit filed by the respective parties and having heard Mr. Maitra for the petitioner, Mr. Deb for the CESC authorities and Mr. Chatterjee for the added party, it appears to this Court that the present petitioner is asking for supply of electricity through the meter standing in the name of Sudson Pvt. Ltd. as aforesaid. It is sped? fically asserted by the added party, i.e., Peerless Genral Finance and Investment Co. Ltd. that they are the owners and. landlords of the said premises in question. This assertion is not disputed and challenged by anybody including the petitioners. It is their contention that the actual tenant is Sudson Pvt. Ltd. and the said tenancy has been determined and the tenant has surrendered. While the possession has been obstructed, proper steps have been taken to recover possession of the property by applying under Order 21, Rule 98 of the Code of Civil Procedure and. the Competent Civil Court is in seisin of the matter. Mr. Chatterjee argued with force that the present petitioners being not lawful occupiers of the premises in question, they cannot ask for supply of electricity through the meter standing in the name of Sudson Pvt. Ltd, and/or they cannot ask for installation of a new meter under any stretch of imagination. It is their main contention that within the scope and meaning of bona fide occupier as envisaged in Section 12(2) of the Indian Electricity Act, the prayer of the petitioners is thoroughly speculative and misconceived.
5. Mr. Deb, Learned Advocate appearing for CESC authorities has made its position very clear before this Court that the CESC authorities will supply electricity to the petitioners provided it is found by this Court that the petitioner No. 1 is a bona fide occupier of the premises and all outstanding dues are paid and complied with all the formalities as required for supply of electricity by installing a new meter. Under any circumstances the question of supply through the meter of Sudson Pvt. Ltd. does not arise as the same has been surrendered unequivocally.
6. Mr. Maitra, learned Advocate for the petitioners, has placed the Writ application arguing, inter alia, that the petitioner cannot ask for supply of electricity through the meter and/or the consumer number as stated in the writ petition which obviously stands in the name of Sudson Pvt. Ltd. It is the case of the petitioners that for a long time the petitioner No. 1 is in occupation of a portion of the property in question at 3, Esplanade East, top floor, as a sub-tenant under the tenant of the first degree and the decree obtained by Peerless against the tenant of the first degree is collusive, and pending such adjudication before the competent Civil Court, the prayer for supply electricity cannot be withheld causing irreparable loss and injury and serious inconvenience.
7. Considering all these submissions made on behalf of the learned Advocates appearing for the respective parties, it appears to this Court that a question is to be decided whether the petitioners are at all entitled to have supply of electricity through a new meter which has to be installed by the CESC Authorities. The question of payment of the' outstanding dues and/or compliance of all necessary formalities are not of any serious consideration. The petitioners have agreed to pay all the outstanding dues and to comply with the necessary formalities. The greatest hurdle that has been placed before the petitioners, is to satisfy this Court as to whether the petitioners are bona fide occupiers and/or they are in lawful occupation of the portion of the premises in question to be entitled to get supply of electricity by installation of a new meter. Naturally, a question arises regarding the interpretation of Section 12(2) of the Indian Electricity Act vis-a-vis the concept of a bona fide occupier as envisaged therein. A long argument has been made from the Bar to appreciate the status of a subtenant and/or the claim of a lawful occupier and/or the compliance of Section 16 of the West Bengal Premises Tenancy Act in order to claim any independent right by a sub-tenant. Considering all these aspects of the matter, this Court finds that a trespasser and/or any unlawful occupier is not entitled to claim for the supply of electricity as a matter of right and the writ Court will not come to his aid by issuing a writ of Mandamus. But this aspect has got to be appreciated with the distinguishing feature in the instant case. It is found from the materials on record that the petitioner is alleged to be in possession of a portion of the premises for a long time. Whether such possession is by way of a wrongful occupier or they are the men of the tenant of the first degree or that they have any independent right; all these questions are going to be considered before the appropriate court when the same would be considered for adjudication. It will be decided by the competent Civil Court upon evidence where the present petitioners can resist the claim for possession by Peerless, i.e., the added respondent, having any claim of right or that they are the trespassers without having any right to resist the claim of the respondents to obtain possession with police help. This court is not inclined to consider this aspect of the matter since it is going to be adjudicated by the competent Civil Court by admitting evidences. This Writ Court will only consider that pending such adjudication the petitioner, who are found to be in occupation of a portion of the premises in question for a long time, are entitled to the supply of electricity so long the possession is not taken under due process of Law. Considering this aspect only the writ petition is disposed of with this direction that the CESC Authorities will supply electricity by installing a new meter to the petitioner upon compliance with all the necessary formalities and upon payment of all the outstanding dues by the petitioners. Electricity has got to be effected within two weeks from the date of compliance with all the formalities and upon all payment of the dues. It is however made clear that the supply of electricity and/or installation of a new meter will not confer any right upon the petitioners and/or the petitioners will not be entitled to ask for any equity before any other Competent Court, which will consider the case of the respondents to recover possession against any unlawful occupier of the property in question with necessary police help. This supply of electricity is absolutely subject to final adjudication by the Competent Civil Court and/or any other authority having jurisdiction in accordance with law,
8. There will be no Order as to costs.
9. The prayer for stay of operation of this Order is refused.