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High Court of Calcutta
Syamal Kanti Chakrabarti, J.
Sunil Kumar Pal – Appellant
Versus
Cesc Limited – Respondent
W.P. 24833(W) of 2008
Decided On: Feb 18, 2010
ELECTRICITY SUPPLY - KMDA HOUSING COMPLEX - DENIAL OF ACCESS TO METER ROOM - RIGHT TO ELECTRICITY - ARTICLE 21 - WEST BENGAL CO-OPERATIVE SOCIETIES ACT, 1983, SECTION 95 - APPLICABILITY
Fact of the Case:
The petitioner purchased a flat in the KMDA Housing Complex and applied for electricity supply. The respondent cooperative society denied access to the meter room, preventing the electricity department from effecting the supply. The petitioner filed a writ petition under Article 226 of the Constitution, claiming violation of his right to electricity under Article 21.
Finding of the Court:
The court held that the petitioner, as a bona fide purchaser and occupier of the flat, had a right to electricity supply under Article 21 of the Constitution. The court found that the cooperative society's refusal to give access to the meter room was a denial of this right and that Section 95 of the West Bengal Co-operative Societies Act, 1983, which provides for disputes concerning the business of a cooperative society to be referred to the Registrar, was not applicable in this case.
Issues: 1. Whether the petitioner had a right to electricity supply under Article 21 of the Constitution. 2. Whether the cooperative society's refusal to give access to the meter room was a denial of the petitioner's right to electricity. 3. Whether Section 95 of the West Bengal Co-operative Societies Act, 1983, was applicable in this case.
Ratio Decidendi: 1. The court held that electricity is an essential service and that the right to live a meaningful life with dignity, guaranteed by Article 21 of the Constitution, includes the right to electricity. 2. The court found that the cooperative society's refusal to give access to the meter room was a denial of the petitioner's right to electricity, as it prevented the electricity department from effecting the supply. 3. The court held that Section 95 of the West Bengal Co-operative Societies Act, 1983, was not applicable in this case, as the petitioner's demand for electricity supply was not a dispute concerning the business of the cooperative society.
Final Decision: The court directed the electricity department to effect the supply of electricity to the petitioner's flat within three weeks, subject to compliance with any other formalities. The court also directed the cooperative society to give access to the meter room and to make available the keys when called for by the electricity department. The court clarified that this order was without prejudice to the cooperative society's right to claim maintenance for using the common space.
Syamal Kanti Chakrabarti, J.
1. THE present writ petitioner Sri Sunil Kumar Pal has claimed in his application under Article 226 of the Constitution that he purchased a flat from the respondent no. 4 by a registered deed dated 24th August, 2007 and took possession of the said flat being no. A/5/5 (3rd floor) type A Building No. 5, Flat No. 5, G-8 at Baghajatin Housing Complex, Kolkata 700 094. THEreafter, he filed an application for supply of electricity to the said premises before the respondent nos. 1 and 2 and deposited all necessary fees required for the purpose as per their quotation. THE respondent no. 2 in their letter dated 25.01.2008 has intimated the petitioner that when their men and agents went to the premises for inspection and installation of the meter they were not given free access to the meter room by the private respondent no. 5 and his men and agents for which they were unable to effect the supply of electricity as prayed for. THE respondent no. 5, Secretary, Baitalik Co-operative Housing Society Ltd. has, however, contended in their affidavit-in-opposition that they have not opposed the move. In fact it is a common meter room and as per decision of the KMDA the said cooperative society is now maintaining all the common facilities and common areas which is accessible only to the members of the society. THE petitioner has not become a member of the cooperative society though stipulated in the Deed of Transfer as yet. THErefore, he is not entitled to avail himself of the common meter room for the supply of electricity as claimed.
2. HAVING heard learned advocates for both the parties and after perusal of all the materials on record, I find that in the information brochure for induction of bona fide purchaser including non-resident Indian citizen (Annexure R - 5/3 to the AO filed by the respondent no. 5) it appears that under the head ELIGIBILITY the following provision has been made: ii) The CMDA may, at its discretion, relax any of these conditions in suitable cases without assigning any reason.
They have also identified the common areas and facilities and stipulated in the brochure that while the individual apartments including all structures, fixtures, installations and facilities will have to be maintained by the respective owners thereof, the main structure, installation, lift, common areas and facilities etc. appertaining to the society will have to be maintained and managed by such cooperative housing society. The CMDA shall have no liability or responsibility for the maintenance and management of the estate including all common areas, structures, fixtures, installation and facilities. It was further clarified that maintenance includes operation, repair and replacement. While assigning the value of the flat they have also annexed the details of the areas and indicated the provision of electrical installation in each type of flat with 5 ampere and 15 ampere plug points.
3. NOW on account of resistance from the respondent no. 5, the respondent nos. 1 and 2 though received the fees are unable to ensure supply of electricity to the premises purchased by the present writ petitioner.
4. FROM the letter of KMDA (R 5/2 annexed to the AO) it is evident that the execution of the Sale Deed in favour of the present petitioner was effected in terms of an order of this Honble Court in writ petition no. 16945(W) of 2006. By the said order this Honble Court directed that after the draft Sale Deed is settled by the petitioner the same shall be executed and registered by the KMDA within a period of four weeks from the date of its submission by the petitioner. It is needless to mention that the petitioner shall put in the necessary changes and registration fees as required for the said purpose.
I have already pointed out that in the information brochure it has been clearly stated that the KMDA has absolute discretion to relax the condition of their offer without assigning any reason in executing and registration o
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