State Consumer Disputes Redressal Commission
Goutam Banerjee vs Sri Samar Chakraborty on 28 February, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/940/2016 (Arisen out of Order Dated 05/09/2016 in Case No. Complaint Case No. CC/20/2016 of District Howrah) 1. Goutam Banerjee S/o Lt. Deb Kumar Banerjee, 27/2, Kali Banerjee Lane, P.S. & Dist. - Howrah. ...........Appellant(s) Versus 1. Sri Samar Chakraborty S/o Lt. Shyam Sundar Chakraborty, 47/10, Kali Banerjee Lane, P.S. & Dist. - Howrah. 2. The District Engineer, CESC Ltd. Howrah Regional Office at 433/1, G.T. Road(N), P.S.- Golabari, Howrah, Pin - 711 101. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER HON'BLE MRS. MRIDULA ROY MEMBER For the Appellant: Mr. Snehasish Bala & Mr. Debesh Halder, Advocate For the Respondent: Mr. Amit Panchal., Advocate Dated : 28 Feb 2017 Final Order / Judgement Date of Filing - 29.09.2016 Date of Hearing - 10.02.2017 PER HON'BLE MR. SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER
The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') is at the behest of Opposite Party No.2 Sri Goutam Banerjee to impeach the Final Order dated 05.09.2016 passed by the Ld. District Consumer Disputes Redressal Forum, Howrah (for short, Ld. District Forum) in Consumer Complaint no. 20/2016. By its order, the Ld. District Forum allowed the consumer complaint lodged by Respondent no.1 Sri Samar Chakraborty under Section 12 of the Act with the direction upon the Respondent no.2 i.e. the District Engineer, CESC Ltd. to render fresh electric connection in the residential house of Respondent no.1 within 30 days from the date of order.
The Respondent no.1 herein being Complainant initiated the complaint stating that he is the owner in respect of a piece of land measuring about 13 chittaks including all easmentary right over the 6 ft. common passage in Holding No.47/10, Kali Banerjee Lane, P.S. & Dist- Howrah. After purchase in order to obtain domestic electric connection, in accordance with quotation of CESC Ltd., deposited a sum of Rs.9,457/- on 14.03.2014. It is alleged by the Complainant that the OP no.1in collusion with OP no.2 has become stumbling block in the way of getting electric connection in his newly constructed house for which the Respondent no.1 approached the Ld. District Forum with prayer for reliefs.
The Respondent no.2 being OP no.1 by filing a written version has stated that over the property in question, one suit for partition and injunction being TS No. 16102/2014 is pending before the Ld. Civil Judge (Senior Division), 1st Court at Howrah and in that suit, the Ld. Court by its order dated 21.12.2015 directed both the parties to maintain status quo regarding nature, character and possession of the property and as such the case is not maintainable.
The Appellant being OP no.2 by filing a written version has stated that he along with other co-sharers has filed the T.S. No.16102/2014 where the Ld. Civil Judge (Sr. Division) 1st Court at Howrah passed an order directing the parties to maintain status quo and in that suit, the OP no.1 has been impleaded as Defendant no.8 and as such the order is also binding upon them.
After evaluation of materials on record, the Ld. District Forum by the impugned order allowed the complaint with the direction upon the OPs as indicated above, which prompted the OP no.2 Sri Goutam Banerjee to prefer this appeal.
We have scrutinised the materials on record and considered the submission advanced by the Ld. Advocates appearing for the Appellant and Respondent no.2.
Having heard Mr. Debesh Halder and Mr. D.B. Chaudhuri, Ld. Advocates appearing for the Appellant and Respondent no.2 respectively and on having a look to the materials on record, it would reveal that the Respondent no.1 herein Sri Samar Chakraborty has claimed his right, title and possession in respect of a piece of land measuring 13 chhitaks and a 6 ft. common wide passage in Holding No.47/10, Kali Banerjee Lane, P.S. & Dist- Howrah by way of purchase. After purchase, he has mutated his name in the Assessment Registrar of Howrah Municipal Corporation. Admittedly, the Respondent no.1 in order to install new electric connection in his house had applied to Respondent no.2 and paid Rs.9,457/- as per quotation on 14.03.2014. However, the electric service connection in his house has not yet been materialised.
The fact remains that the Appellant herein along with other co-sharers instituted one suit being T.S. No.16102/2014 in the Court of Ld. Civil Judge (Senior Division), 1st Court at Howrah with prayer for a decree of partition. In that suit, the Respondent nos. 1 & 2 have been arrayed as Defendant nos. 7 & 8 respectively. During the pendency of the said suit, the Respondent no.1 filed an application under Section 151 of C.P. Code with a prayer to allow him to install electricity. However, by order dated 21.12.2015 the said application was disposed of with a direction upon the parties to the suit to maintain status quo as regards nature, character, possession as on that date till disposal of that suit.
It has also come to surface that the Respondent no.1 has also preferred a Writ Petition in the High Court at Calcutta being W.P. No.18201(W)/2014 and the Hon'ble High Court by an order dated 17.09.2014 has been pleased to direct the Respondent no.2 to pass a reasoned order. Accordingly, on 24.10.2014 the Respondent no.2 forwarded the said reasoned order to the Hon'ble High Court with an observation that it is difficult for the licensing company to finalise the cable laying route for the purpose of providing electric supply to the Respondent no.1.
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.
In view of the provisions of Section 43 of the Electricity Act, 2003, as an occupier of the property or a part thereof, the complainant has a statutory right to call upon the distribution company (herein CESC Ltd.) to give him/her 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.
But the facts and circumstances of the case is altogether different. We are not unmindful to the preposition of law that having regard to the object and intent of the Act, summary trial of consumer complaint has to be given precedence over other cases, be it civil or criminal its nature and in this regard, question of double jeopardy, self-incrimination or the binding effect of the findings in summary proceedings under the Act does not arise. The Appellant herein being one of the co-sharers has instituted a civil suit and in that suit, both the Appellants as well as Respondent no.2 i.e. the District Engineer of CESC Ltd. has been impleaded as Defendant no.8 in which an order of 'status quo' is in vogue. Therefore, the direction which imposed by the Ld. District Forum upon the Respondent no.2 if translated into action, certainly, it would tantamount to contempt of Court. Therefore, the Ld. District Forum should have restrained itself from passing the order impugned, the Respondent no.1 has opportunity to prefer Miscellaneous Appeal before the Higher Forum challenging the order passed by a competent Civil Court but in any case, when an order of injunction is there against the CESC Ltd., certainly the impugned order should be interfered with and set aside.
For the reasons aforesaid, the appeal is allowed on contest against Respondent no.2 and exparte against Respondent no.1 without any order as to costs.
The impugned order is hereby set aside.
Consequently, CC No.HDF 20/2016 stands dismissed.
The Registrar of the 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 [HON'BLE MRS. MRIDULA ROY] MEMBER