JUDGMENT :

Sabyasachi Bhattacharyya, J

1. Vide order dated April 26, 2023, a prayer of the private respondent for holding an inspection through a Special Officer was refused.

2. The context of the prayer can be found in the crux of the dispute between the parties. The petitioner, claiming to be in settled possession of the disputed property, sought an electricity connection in its name. The licensee/CESC Limited does not have any objection to give the same, subject to compliance of all formalities by the petitioner. However, the private respondent no.5 objects on the ground that the said respondent is in exclusive possession of the property and, by way of taking an electricity connection, the petitioner is seeking to encroach upon the property.

3. It is contended by learned counsel for the private respondent no.5 that the petitioner has failed to show settled possession, which is the sine qua non for getting an electricity connection even within the contemplation of Section 43 of the Electricity Act, 2003 (for the sake of brevity, “the 2003 Act”).

4. Learned counsel places reliance on a three-Judge Bench decision of this Court in Abhimanyu Mazumdar Vs. The Superintending Engineer and another, reported at AIR 2011 Cal 64. The Full Bench, inter alia, held that in order to get an electricity connection, a trespasser must be in actual physical possession of the property over a sufficiently long period, which must be to the knowledge (either express or implied) of the owner or without any attempt at concealment by the trespasser and which contains an element of animus possidendi. The nature of possession of the trespasser would, however, be a matter to be decided on the facts and circumstances of each case. The process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true owner.

5. Learned counsel then contends that Section 43 of the 2003 Act does not create a right per se but imposes duty on the licensee to supply electricity on request. An essential component of supply, it is argued, is the laying of the lines for giving such connection. In such context, it is argued that the Works of Licensees Rules, 2006 (for short, “the 2006 Rules”) acquire relevance. The expression “lawful occupation” used in the said Rules was interpreted in the context of Section 43 of the 2003 Act by the Full Bench of this Court in Abhimanyu Mazumdar (supra). It is submitted that the documents produced by the petitioner do not establish the petitioner’ s settled possession in respect of the property. The trade licence submitted by the petitioner and annexed to the writ petition, it is argued, does not indicate any fees having been paid by the petitioner for running its transport business, which is allegedly the business of the petitioner.

6. On the contrary, it is the private respondent no.5 who is running a transport business at the property.

7. It is next argued that the Telephone Bill annexed to the writ petition is not sacrosanct to prove the settled possession of the petitioner, since the very existence of a telephone at the property is disputed which, it is argued, can only be established by visual inspection.

8. It is reiterated that the court is not powerless to issue a visual inspection to ascertain the actual physical possession of the property.

9. Learned counsel for the private respondent no.5 next places reliance on the affidavit-in-opposition of the said respondent and its annexures. A Commissioner’ s report filed in connection with a suit filed by the private respondent no.5 against the Kolkata Port Trust (KoPT) indicates that there are R.T. Shed Rooms on the property, which belong to the petitioner. Moreover, the private respondent no.5 is enjoying a status quo order with regard to the property against the KoPT on the strength of the said respondent’ s possession. Even in a proceeding under Section 144 of the Criminal Procedure Code, a report filed by the police indicates that the privat