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TAPEN SEN, J.
Molay Kumar Acharya
versus
Chairman-cum-Managing Director, W. B. State Electricity Distribution Co. Ltd. and Ors.
W. P. No. 8631 (W) of 2007
Decided on : 12 -10 -2007.
ELECTRICITY - CONNECTION - RIGHT OF OCCUPIER - REQUISITES - SECTION 43 OF THE ELECTRICITY ACT, 2003 - INTERPRETATION - MEANING OF "OCCUPIER" - LICENSEES - STATUS UNDER THE ACT - APPLICABILITY OF JUDGMENTS - DISTINCTION - GRANT OF CONNECTION - EFFECT ON PENDING LITIGATIONS.
Fact of the Case:
Petitioner, an occupier of the first floor of a building, sought an order directing the Respondents to provide a new electricity connection in his name. The Petitioner's father, who owned the building, had gifted it to his daughter, the newly added Respondent No. 6. The Petitioner claimed that he was a licensee under Respondent No. 6 and that she had requested him to vacate the property, which he refused to do. The Petitioner filed a suit for eviction against the Petitioner and obtained an order directing the parties to maintain status quo.
Finding of the Court:
The Court held that the Petitioner was an "occupier" within the meaning of Section 43 of the Electricity Act, 2003, and was entitled to a new electricity connection. The Court relied on the definition of "occupier" in Black's Law Dictionary, which defines an occupier as "a person in possession" and an "occupant" as "a person in possession, person having possession rights, who can control what goes on premises. One who has actual use, possession or control of a thing." The Court also noted that the newly added Respondent No. 6 had herself admitted in her Affidavit-in-opposition that the Petitioner was a licensee under her, which established that the Petitioner was not an unlawful occupant. The Court further held that the judgments cited by the Respondents were distinguishable and did not apply to the facts of the case. The Court clarified that the grant of electricity connection to the Petitioner would not affect the rights and contentions of the parties in the pending litigations.
Issues: 1. Whether the Petitioner was an "occupier" within the meaning of Section 43 of the Electricity Act, 2003? 2. Whether the Petitioner was entitled to a new electricity connection? 3. Whether the grant of electricity connection would affect the rights and contentions of the parties in the pending litigations?
Ratio Decidendi: 1. The definition of "occupier" in Black's Law Dictionary, which defines an occupier as "a person in possession" and an "occupant" as "a person in possession, person having possession rights, who can control what goes on premises. One who has actual use, possession or control of a thing," is applicable in the context of Section 43 of the Electricity Act, 2003. 2. A licensee who is in possession of the premises and whose possession has not been declared to be illegal or unauthorized is entitled to an electricity connection under Section 43 of the Electricity Act, 2003. 3. The grant of electricity connection to an occupier does not affect the rights and contentions of the parties in pending litigations.
Final Decision: The Court allowed the writ petition and directed the Respondents to provide a new electricity connection to the Petitioner in terms of its earlier order dated 4-6-2007.
2. It appears that this case was initially placed before another Hon'ble Single Judge of this Court on 4-6-2007 when, after considering the submissions, it was observed that the petitioner cannot be allowed to continue to live in darkness and the Respondent Authorities were therefore directed to accept the Application of the petitioner without insisting on the No Objection Certificate to be issued by the Landlord or the owner of the House. The said Hon'ble single Judge did take into consideration that there was a strained relationship between the parties but nevertheless, after making the aforementioned observations, directed that the Authorities would accept the Application of the petitioner in the manner referred to above.
3. It appears that thereafter on 10-8-2007 an interlocutory Application being CAN 5017 of 2007 was filed by Smt. Sampa Acharya, daughter of Kiran Chandra Acharya (being the sister of the Petitioner) praying for being added as a Respondent in this writ petition. Consequently, by Order dated 10-8-2007, the said Interlocutory Application for addition of party was disposed of and she was added as a party Respondent in this case. Thereafter on 21-9-2007 the matter was however released by the said Hon'ble single Judge due to paucity of time whereafter this case was mentioned. Learned counsel for the petitioner has stated that prior to mentioning the matter before this Court, the same was moved before Hon'ble the Chief Justice but no Order was passed. However, the Office of the Hon'ble Chief Justice made an endorsement on the mentioning slip observing that the matter may be mentioned before the Bench taking 'Hearing Matters'. In view of the determination of this Court to take up matters which are ready for hearing irrespective of classification of the cases and irrespective of the year of the case, the matter was thereafter moved before this Court and on 5-10-2007, Mr. Bidyut Banerjee appeared on behalf of the newly added Respondents and requested that the matter be listed on Monday i.e. on 8-10-2007. Consequently on 8-10-2007 the matter was heard and hearing was concluded and made C.A.V. However the matter was again listed under the heading "to be mentioned" on 9-10-2007 when the following Order was passed whereafter it was again made C.A.V.
"9-10-2007 W.P. 8631(W) of 2007
Mr. Amzad Ali, for the Petitioner
Mr. Bidyut Banerjee
Ms. Shila Sarkar
Mr. Arnab Roy, for the Respondent
Mr. Sujit Sarkar Koley, for the W.B.S.E.D.C.L.
This case has been listed at the instance of the Court after hearing was concluded and made C.A.V. yesterday i.e. on 8-10-2007. At the time of going through the file after reserving judgment, a doubt crept in my mind as to whether I had the determination to hear this case as this was a Group IX matter and that too because the Cause List of yesterday did not indicate the determination of this Court. That was why I ordered the matter to be listed under the heading "To Be Mentioned". Today it has been so listed and the learned counsel appearing for each of the parties drew my attention to the Monthly/Combined List of October, 2007 and the relevant portion thereof reads as follows :-
'Matters under Article 226 of the Constitution which are ready for hearing irrespective of classification of cases and irrespective of years and Application relating thereto."
Learned counsel appearing for each of the parties submitted that this is a case which is ready for hearing and all Affidavits have been exchanged and by Order dated 4-6-07 another Hon'ble single Judge of this Court had already directed the matter to appear as a 'Contested Application.'
For the foregoing reasons and the doubt having now been cleared and arguments having already been concluded by the respec
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