(1.) WHETHER a licence can be directed by a Writ of Mandamus to supply electricity to a prospective consumer thereof without he being in lawful occupation of the premises at which such supply is sought, is the question which falls for determination before this Court in this proceeding.

(2.) DIVERGENT views have been expressed by Honble Division Benches and learned Single Judges of this Court while answering similar questions which arose for determination before Their Lordships.

(3.) THAT a lawful occupier is alone entitled to electricity and a trespasser has no such entitlement in terms of Section 12 (6) of the Electricity Act, 1910 (hereafter the old Act) has been laid down in the following decisions: (a) 1989 (1) C. L. T. (H. C.) 187 : M/s. Associate Indian Mechanical Pvt. Ltd. and anr. vs. C. E. S. C. Ltd. and ors. ; (b) and ors. ; and (c) 1999 (1) C. L. J. 567 : Aloke Saha vs. Smt. Rina Ghosh and ors. (DB).

(4.) RECENT decisions of this Court on interpretation of Section 43 of the electricity Act, 2003 (hereafter the new Act) holding that trespassers are not entitled to supply of electricity and that the word "occupier" must be construed as lawful occupier of the premises at which supply is sought has been laid down in the following decisions: a) AIR 2006 Cal 73 : Samsul Haque Mollick vs. C. E. S. C Ltd. and ors; b) 2006 (4) CHN 433 : Anjali Metia and ors vs W. B. S. E. B. and ors. (DB); c) AIR 2007 Cal 108 : Amarendra Singh vs. C. E. S. C. Ltd. and ors. ; d) AIR 2008 Cal 19 : Gyanendra Nath Shil vs Superintending Engineer and ors. ; and e) AIR 2008 Cal 29 : Debadas Biswas vs West Bengal State electricity Board and ors.

(5.) IN Anjali Metia (supra), the Honble Division Bench has held in paragraph 8 as follows: "we are not, therefore, in a position to agree and uphold the judgment of the learned Single Judge. The learned Single Judge was bound to discuss and decide as to whether the petitioner could be in law termed to be an occupier within the meaning of section 43. A person cannot be allowed to take advantage of his own wrong. Therefore, the person who is a trespasser cannot by continuing his trespass claim the character of an occupier, and as such claim the rightful supply of electricity under section 43 of the Electricity Act. However, this question was not even addressed by the learned Judge. As if all this is not sufficient, the learned Judge should also have noted that the title suit filed by the petitioner for declaration of his 1/5th right in the property is dismissed and the appeal against the same is not pending. It is only a condonation of delay application which seems to have been pending before the Appellate Court and for the reasons known only to the parties and the Court, that application still remain undecided in spite of elapse of four years of its filing. Therefore, at least prima facie the petitioner did not produce any material either before the Board or before the learned Judge justifying his lawful occupation of the premises. "

(6.) IN Gyanendra Nath Shil (supra), the learned Judge in paragraph 7 has held as follows: "in my view, "occupier" of any premises means must be a lawful occupier on the date seeking electric connection, for a trespasser cannot get statutory amenities or facilities. Therefore, there cannot be any difference between the expression "lawful occupier" as mentioned in the earlier Act of 1910 and word "occupier" in the present Act of 2003. When authority concerned earlier prescribed lawful occupier, there is no reason to think in view of change of law, trespasser is to be given lawful right. "

(7.) THE decision of the learned Single Judge in Amarendra Singh (supra) has been overruled by the Honble Division Bench by judgment dated10. 1. 08 reported in and ors. It has been held therein that "2. ****** In view of the provisions of Section 43 of the Electricity Act, 2003, the appellant herein being the occupier is entitled to enjoy the electricity at the occupied portion