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JAYANTA KUMAR BISWAS, J.
Debadas Biswas
versus
West Bengal State Electricity Board and Ors.
W. P. No. 2455 (W) of 2005
Decided on : 7 -8 -2007
ELECTRICITY ACT, 2003 - OCCUPIER - SECTION 43 - LAWFUL OCCUPIER ENTITLED TO ELECTRICITY SUPPLY - UNLAWFUL OCCUPIER NOT ENTITLED TO ELECTRICITY SUPPLY - DISPUTE REGARDING LAWFUL OCCUPANCY - CIVIL COURT TO DECIDE.
Fact of the Case:
Petitioner applied for electricity connection under Section 43 of the Electricity Act, 2003. His application was rejected due to objection from third parties and his failure to establish lawful occupancy. He filed a writ petition which was allowed, but on appeal, the order was set aside, and the writ petition was remitted for fresh hearing.
Finding of the Court:
The court held that the petitioner, as an occupier of a portion of the premises, was not entitled to electricity supply unless he established that he was a lawful occupier. The court relied on its earlier decision in Samsul Haque Mollick v. CESC Ltd., where it was held that an unlawful occupant is not entitled to electricity supply as a matter of right.
Issues: Whether the petitioner, as an occupier of a portion of the premises, was entitled to electricity supply without establishing lawful occupancy.
Ratio Decidendi: The court held that mere occupation of a portion of the premises was not sufficient to entitle the petitioner to electricity supply. He had to establish that he was a lawful occupier. Since there was a dispute regarding the petitioner's lawful occupancy, the court directed him to approach the appropriate Civil Court for establishing his case.
Final Decision: The writ petition was dismissed, and the petitioner was directed to approach the Civil Court to establish his lawful occupancy.
2. On November 29th, 2004 the petitioner applied for supply of electricity. His application was to be considered by the first respondent in terms of the provisions in S. 43 of the Electricity Act, 2003. By a letter dated January 13th, 2005 the second respondent informed him that in the face of objection by one Bijoli Manna and for his failure to establish that he was a lawful occupier of the premises in question, there was no scope to give him new connection. Feeling aggrieved he took out the writ petition, which was disposed of by an order dated March 14th, 2005 directing the first respondent to give the connection. Consequently the connection was given. The third, fourth and fifth respondents (Anjali Metia, Bijeli Manna both sisters of the petitioner, and Atashi Rani Biswas the petitioner's mother) questioned the order dated March 14th, 2005 by filing an appeal, which was allowed by the Division Bench by order dated August 9th, 2006. The order dated March 14th, 2005 was set aside and writ petition was remitted for fresh hearing. As a result, connection given by the first respondent was snapped.
3. The short question that has arisen in the case is whether as an occupier of a portion of the premises at North Tarapukur, B. C. Sen Road, P. O. Agarpara, P. S. Khardah, Dist. North 224 Parganas the petitioner is entitled to ask the first respondent to supply him electricity in terms of the provisions in S. 43 of the Electricity Act, 2003. There is no dispute that if the petitioner is a lawful occupier, then he is entitled to call upon the first respondent to supply him electricity. The dispute, however, is regarding the question whether the petitioner is a lawful occupier of any portion of the premises.
4. In para 7 of the writ petition the petitioner has claimed that he was all along residing in the premises with his parents, and that even at the date of filing the writ petition he was residing there. By filing an opposition the third, fourth and fifth respondents have said that the petitioner, with his family, was residing in a rented house, and not with his parents; and that after the death of his father he forcibly entered into the premises, and took possession of certain portion thereof. By filing reply the petitioner has denied the allegation made in the opposition. It is therefore clear from the pleadings of the parties that at the date the petitioner filed the writ petition he was an occupier of certain portion of the premises in question.
5. Counsel for the petitioner has argued that once it was found that the petitioner sought supply of electricity as an occupier of the premises, even in the face of objection by the third, fourth and fifth respondents, the first respondent was under a statutory obligation to supply him electricity. In support of his contention he has relied on M/s. Associated Indam Mechanical Pvt. Ltd. and Anr. v. CESC and Ors. Cal. LT. 1989 (1) HC 187 and Nemai Hait v. CESC Ltd. and Anr. , 2001 (2) CHN 71. He has also relied on S. 185 of the Electricity Act, 2003 in support his contention that since necessary regulations under S. 53 have not been made, the Indian Electricity Rules, 1956 shall be deemed to be in force.
6. His further contention is that in the Indian Electricity Rules, 1956, R. 2(af), the expression 'occupier' has been defined to mean the owner or person in occupation of the premises where energy is used or proposed to be used. To show that mere occupation is sufficient to entitle the petitioner to get supply of electricity, he has referred me to certain comments made in Naushir Bharucha's Guide to the Electricity Laws, 4th edition, p. 1450. There the author commented that mere physical occupation of the premises would be good enough to supply electricity,
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