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2023 Supreme(Online)(CAL) 5616
CALCUTTA HIGH COURT
HON'BLE JUSTICE SABYASACHI BHATTACHARYYA
ANANDA MANNA – Appellant
Versus
WEST BENGAL STATE ELECTRICITY DISTRIBUTION COMPANY AND ORS – Respondent
WPA/19693/2022
The District Magistrate has the authority to determine whether consent was given for an electricity line to be taken over a petitioner's land.
Headnote:
ELECTRICITY - CONNECTION - CONSENT - OMBUDSMAN - JURISDICTION - DISTRICT MAGISTRATE - AUTHORITY
Fact of the Case:
The petitioner challenged the Ombudsman's decision regarding the grant of an electricity connection to a third party over the petitioner's land. The petitioner contended that the Ombudsman failed to properly consider the issue of consent and relied on a disputed report from the BL&LRO.
Finding of the Court:
The court held that the Ombudsman did not have jurisdiction to determine whether the electricity line was taken over the petitioner's land and that the petitioner's challenge to the BL&LRO's report should be decided by the District Magistrate.
Issues: 1. Whether the Ombudsman had jurisdiction to determine whether the electricity line was taken over the petitioner's land.2. Whether the petitioner's challenge to the BL&LRO's report should be decided by the District Magistrate.
Ratio Decidendi: The court held that the Ombudsman did not have jurisdiction to determine whether the electricity line was taken over the petitioner's land because it was a question of fact that could not be resolved without assessing the available materials on facts. The court also held that the petitioner's challenge to the BL&LRO's report should be decided by the District Magistrate because it was the appropriate authority to determine the issue of consent.
Final Decision: The court disposed of the petition by granting the petitioner liberty to approach the concerned District Magistrate with the dispute regarding the electricity line.
D/L. 21. January 4, 2023.
MNS. WPA No.19693 of 2022 Ananda Manna Vs. The West Bengal State Electricity Distribution Company Limited and others Mr. Khairul Alam … for the petitioner.
Mr. Mihir Kundu …for the WBSEDCL.
Mr. Pratik Dhar, Mr. Ritwik Pattanayak …for the WBERC.
Learned counsel for the petitioner contends that despite a previous direction by this Court on the Ombudsman to rehear the issue-in-question on two grounds, primarily to ascertain whether the private respondent, Liyakat Molla, is entitled to take any electricity connection over the plot of the present petitioner and whether the present petitioner had given any consent in that regard at any point of time, the Ombudsman shirked the issue and failed to decide the same. That apart, it is contended that the Ombudsman placed reliance on a report, which was not a report filed by the BL&LRO at all.
2 The learned Senior Advocate appearing for the West Bengal Electricity Regulatory Commission (WBERC), representing the Ombudsman, submits that it is beyond the scope of the Ombudsman’s jurisdiction to ascertain physically as to whether the electricity line has been taken over the petitioner’s plot, that is, plot no. 654 or the said Liyakat’s plot, that is, plot no. 655. As such, it is contended that the Ombudsman did his best in deciding the issue by placing reliance on the report filed from the office of the BL&LRO and coming to the conclusion that there was no premise for the objection raised by the petitioner inasmuch as the electricity line of Liyakat was not taken over the petitioner’s land at all.
Heard learned counsel for the parties.
It is seen from the alleged written consent annexed at page 29 of the writ petition that the same does not contain any specific agreement/concession on the part of the petitioner regarding taking of an electricity connection over the petitioner’s land. Rather, in Bengali vernacular, it is stated in the second paragraph thereof that the petitioner had no objection in respect of any sort of construction, electrification or anything else over any property apart from the petitioner’s plot, that is, Dag No. 597 and LR 654.
3 In the present case, as such, the first issue goes in favour of the petitioner as against Liyakat, since no consent to the extent that an electricity connection for Liyakat’s property may be taken over the petitioner’s land was given at any point of time by the petitioner.
As regards the second question referred to the Ombudsman on the last occasion by this Court, that is, whether the said Liyakat is entitled to take electricity connection over the petitioner’s land, the same has been decided by the Ombudsman on the basis of the records available before the Ombudsman and the Ombudsman cannot be faulted therefor.
However, the cardinal problem in the present case which arises is, as rightly pointed out on behalf of the Ombudsman, that the purported report filed by the BL&LRO is itself in dispute. The same indicates that the electricity line was never taken over the land of the petitioner, that is, plot no. 654.
However, neither the Ombudsman nor the writ court is the appropriate authority to decide on such issue, which goes to the root of the problem.
Hence, the appropriate recourse for the petitioner is to have the matter decided by the concerned District Magistrate in so far as whether 4 the consent to take electricity to Liyakat’s property at plot no. 655 over the petitioner’s land has been taken at all.
Inasmuch as the petitioner’s challenge to the report of the BL&LRO is concerned, it transpires from the said report, which has been annexed at page 12 of the affidavit-in-opposition filed by the Distribution Licensee, that the said report was countersigned by the BL&LRO, Panchla, Howrah and the inspection which led to the same was held in presence of a representative of the BL&LRO. It need not be construed that in every case the BL&LRO has to be present personally at the time of inspection.
On the basis of the materials available on
