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IN THE HIGH COURT AT CALCUTTA
I.P. MUKERJI, J.
Smt. Shanti Devi Agarwal - Petitioner
Versus
W.B.S.E.D.C.L. & Ors. - Respondents
W.P. No. 11592 (W) of 2016, C.P.A.N. 1089 of 2016
Decided On : 29-09-2016
ELECTRICITY SUPPLY - OCCUPIER - SETTLED POSSESSION - REQUIREMENTS - BUILDING WITHOUT SANCTIONED PLAN OR OCCUPANCY CERTIFICATE - ELECTRICITY CONNECTION - LEGALITY - DISTRIBUTION LICENSEE - DUTY TO SUPPLY - CONDITIONS - COURT'S ANALYSIS AND INTERPRETATION OF RELEVANT PROVISIONS OF ELECTRICITY ACT, 2003 AND WEST BENGAL MUNICIPAL CORPORATION ACT, 2006.
Fact of the Case:
Shanti Devi Agarwal, the petitioner, claimed a writ of mandamus directing the respondent licensee to afford electricity connection to her in the second floor of a building. The respondent, Gautama Kumar Pincha, resisted the claim on the ground that she had no right to receive electricity due to various reasons, including the building not having a completion certificate or permission to occupy.
Finding of the Court:
The court held that a person in settled possession of a property, even if the initial entry was unlawful, is entitled to electricity supply under Section 43 of the Electricity Act, 2003. However, the court clarified that this entitlement is subject to the legality of the electricity supply to the building or part of it.
Issues: 1. Whether the petitioner, Shanti Devi Agarwal, was in settled possession of the second floor of the building. 2. Whether the building had a sanctioned plan or occupancy certificate. 3. Whether the distribution licensee was obligated to provide electricity connection to the petitioner in the absence of a completion certificate or occupancy certificate.
Ratio Decidendi: 1. The court relied on the judgment in Abhimanyu Mazumdar v. Superintending Engineer, which held that a person in "lawful occupation" under the Works of Licensees Rules 2005 framed under the Electricity Act, 2003, meant "actual occupier in settled possession." 2. The court referred to various Supreme Court judgments to define the attributes of settled possession, including actual physical possession, unlawful commencement of possession, sufficiently long period of possession, knowledge of the owner, and open and not concealed possession. 3. The court held that a person in settled possession is entitled to electricity supply under Section 43 of the Electricity Act, 2003, if the supply of electricity to the building or part of it is otherwise legal. 4. However, the court clarified that a distribution licensee is not obligated to provide electricity connection to a building that is patently illegal, such as without a sanctioned plan or occupancy certificate or where the permission to occupy is never likely to be granted by the municipal authority.
Final Decision: The court disposed of the writ application and the contempt application without initiating any proceedings. It directed the respondent to continue to provide electricity to the petitioner on a temporary basis through a separate meter as long as she was in possession of the second floor.
I.P. MUKERJI, J.
1. On 29th January, 1977 the State of West Bengal granted a long lease of plot No. 4, Block-BD Sector-I, Salt Lake City, District-North 24 Parganas, measuring 5.9842 cottahs in favour of Bhabotosh Chatterjee, the respondent no.5.
2. Although the sanctioned plan was only for construction of the ground floor, Bhabotosh build two more storeys over it. Now, I will refer to the entire premises as “the property”.
3. He started erecting a building with the help of a promoter. The promoter had a meter which supplied electricity to the second floor. It was in the name of one Papiya Guha.
4. A term of the lease between Bhabotosh and the State Government was inter alia that he could not sub lease the demised property to anybody without the consent of the government.
5. Without taking the required consent, he entered into an agreement with Shanti Devi Agarwal, the petitioner, on 11th November, 1995. It was described as a Deed of Assignment. Apart from Bhabotosh and Shanti Devi Agarwal, Moni Rani Guha was a confirming party. First of all, the description of the purported transfer in my opinion was wrong. A lessee does not assign the lease. He only sub-leases it not exceeding the term of his lease. Assignment is made by the lessor of the residuary interest he has in the property. The lessor in this case was the State of West Bengal. It was not making any assignment. Secondly, the purported transfer was made on grossly insufficient stamp duty.
6. Whatever may have been the worth of this document Shanti Devi Agarwal took possession of the second floor of the premises. It appears that a huge consideration passed between Bhabotosh and herself. She was enjoying electricity through the meter held in the name Papiya Guha.
7. After 17 years, on 26th November, 2012, Bhabotosh Chatterjee, with the permission of the State Government and upon payment of the required consideration to it sub-leased the property for the rest of the term of the lease to Gautama Kumar Pincha the respondent no. 4. Shanti Devi Agarwal remained in possession of the second floor.
8. Pincha started contending that the purported deed of assignment by which Shanti Devi Agarwal took possession of the second floor was invalid. It was so for many reasons, according to him. The lease between the Government of West Bengal and Bhabotosh Chatterjee did not permit a sub-lease to be granted by the lessee. The purported sub-lease or assignment granted by Bhabotosh Chatterjee lessee in favour of Shanti Devi Agarwal was against the terms of the lease. Moreover, no title could have passed to Shanti Devi Agarwal, because the purported sub-lease made on 1st November, 1999 was unregistered and unstamped. Moreover, Shanti Devi Agarwal could not have obtained possession of the second floor because that floor did not have the completion certificate or the permission to occupy of the concerned municipality under Section 282 of the West Bengal Municipal Corporation Act. She had no right to occupy the said floor under Rules 36 and 34 (7) of the West Bengal Municipal (Building) Rules, 2007 as no water connection could be given to her. All this was submitted by Mr. Kishore Dutta, senior Advocate appearing for Mr. Pincha.
9. Mr. Sen appearing for Shanti Devi Agarwal apprised the court of the entire facts of the cases noted above. In reply to Mr. Dutta’s submission he said that a plan for sanction of the two building was submitted to the concerned municipality for sanction. The plan was perfectly in order. Since the municipality sat tight over the matter there was deemed sanction of this plan.
10. All through Shanti Devi Agarwal was enjoying electricity connection, through a meter in the name of Papiya Guha. I was told in court during the hearing of this application that this connection was obtained by the promoter at the time of raising of the building. The cause of action for filing the writ arose when some time before 25th May, 2014 Papiya Guha disconnected the electricity supply.
11. Ag
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