Sk. Asgar v. State Of West Bengal & Ors., Calcutta High Court, Judgment, Law, casemine.com

Factual and Procedural Background

The petitioner filed an Article 226 petition on April 1, 2009, seeking a mandamus directing the West Bengal State Electricity Distribution Company Limited to supply him with electricity. Although the distribution company was willing to provide electricity, it was unable to do so due to objections raised by certain persons. The petitioner initially did not make these objecting persons respondents but later applied for their addition, which was allowed. However, the petition was not amended to reflect their names in the cause title. The added respondents and the distribution company are both represented by advocates. The petitioner claims to be in actual possession of the property and has constructed a residence thereon. The private respondents contest his absolute possession and point to pending civil suits involving the petitioner, including an injunction restraining him from changing the nature and character of the property.

Legal Issues Presented

Whether the petitioner, as an occupier of the property, has a statutory right under section 43 of the Electricity Act, 2003, to compel the distribution company to supply electricity despite pending civil suits and injunctions restraining alteration of the property.

Whether the injunction order of the Civil Court preventing change in the nature and character of the property bars the petitioner from obtaining electricity supply.

Whether the distribution company is under a statutory obligation to supply electricity to the petitioner notwithstanding objections raised by other parties and the pendency of civil litigation.

Arguments of the Parties

Petitioner's Arguments

The petitioner relies on a Division Bench decision in Manju Mukul Guha v. Pradip Kumar Mullick & Ors. (2000 WBLR (Cal) 533) to argue that the Civil Court's injunction order cannot prevent him from obtaining electricity supply.

He asserts that the distribution company has a statutory obligation to supply electricity once a proper application is made.

The petitioner claims to be in actual possession of the property and has erected a residence thereon.

Private Respondents' Arguments

Relying on Debdas Biswas v. West Bengal State Electricity Board (AIR 2008 Cal 29), they contend that the petitioner is not a lawful occupier and therefore not entitled to electricity.

They emphasize the Civil Court's injunction restraining the petitioner from changing the nature and character of the property, arguing this bars electricity supply.

They highlight pending civil suits (partition and declaration/injunction) involving the petitioner as a defendant, asserting that the petitioner should have sought permission from the Civil Court before obtaining electricity.

They argue the petitioner is not in absolute possession of the entire property.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Manju Mukul Guha v. Pradip Kumar Mullick & Ors., 2000 WBLR (Cal) 533	The injunction order of the Civil Court cannot prevent electricity supply by the distribution company.	The Court relied on this Division Bench decision to hold that electricity supply does not alter the nature and character of the property and is not barred by the injunction.
Debdas Biswas v. West Bengal State Electricity Board, AIR 2008 Cal 29	Whether a person not being a lawful occupier is entitled to electricity supply.	The Court distinguished this decision, noting it does not contradict the proposition that an occupier has a statutory right to electricity under the Electricity Act.

Precedent

Rule or Principle Cited For

Application by the Court

Manju Mukul Guha v. Pradip Kumar Mullick & Ors., 2000 WBLR (Cal) 533

The injunction order of the Civil Court cannot prevent electricity supply by the distribution company.

The Court relied on this Division Bench decision to hold that electricity supply does not alter the nature and character of the property and is not barred by the injunction.

Debdas Biswas v. West Bengal State Electricity Board, AIR 2008 Cal 29

Whether a person not being a lawful occupier is entitled to electricity supply.

The Court distinguished this decision, noting it does not contradict the proposition that an occupier has a statutory right to electricity under the Electricity Act.

Court's Reasoning and Analysis

The Court examined the petitioner's claim of actual possession, which was not disputed by the private respondents. It acknowledged the pending civil suits and the injunction restraining alteration of the property's nature and character. However, the Court emphasized the statutory right conferred by section 43 of the Electricity Act, 2003, which obligates the distribution company to supply electricity to an occupier upon application. The Court reasoned that obtaining electricity supply does not amount to changing the nature or character of the property and thus does not violate the Civil Court's injunction. It further held that the distribution company, not being a party to the civil suits, is bound by the statutory obligation to supply electricity once the petitioner complies with formalities and pays requisite charges. The Court found the Division Bench decision supportive of this view and did not see any contradiction in the Single Bench decision cited by the private respondents.

Holding and Implications

The petition is disposed of with a direction that the distribution company shall supply electricity to the petitioner upon compliance with all formalities and payment of requisite charges, to be completed within four weeks.

The order clarifies that it does not affect the jurisdiction of the Civil Court to decide the pending suits according to law. The petitioner is directed to amend the petition to incorporate the names of the added respondents. No costs were awarded. This decision directly compels the distribution company to fulfill its statutory obligation and affirms the petitioner's right to electricity supply despite ongoing civil litigation and injunctions. No new precedent beyond the application of existing statutory rights and judicial decisions was established.

Sk. Asgar v. State Of West Bengal & Ors.

1. The petitioner in this Article 226 petition dated April 1, 2009 is seeking a mandamus commanding the West Bengal State Electricity Distribution Company Limited to give him electricity.

2. Seeking electricity the petitioner approached the distribution company that was and still is willing to give it, but could not and is unable to give it because of the objections raised by certain persons. Under the circumstances, the petitioner took out this petition without making the persons raising objections respondents in the case. Subsequently an application for their addition was taken out, and it is submitted that the application was allowed. However, the petition has not been amended incorporating names of the added respondents into the cause title thereof. The persons who have been added are represented by their advocate, and the distribution company is also represented by its advocate.

3. Relying on a Division Bench decision of this Court in Manju Mukul Guha… v. Pradip Kumar Mullick & Ors.…, 2000 WBLR (Cal) 533, advocate for the petitioner submits that the injunction order of the Civil Court directing the petitioner not to change the nature and character of the property cannot get in the way of his getting electricity from the distribution company that is under a statutory obligation to give it. Relying on the decision in Debdas Biswas v. West Bengal State Electricity Board, AIR 2008 Cal 29, Advocate for the private respondents submits that the petitioner cannot be considered a lawful occupier of the premises, and hence he is not entitled to electricity, especially when the Civil Court has made an injunction restraining him from changing the nature and character of the property.

4. In para 2 of the petition the petitioner has categorically stated that he is in actual possession of the property using which he has erected a construction for his residence. The petitioner's case in para 2 has been dealt with by the private respondents in para 7 of their opposition dated November 23, 2009, and they have not disputed the petitioner's case that he is in actual possession of the property. Advocate for the private respondents has argued that the petitioner is not in absolute possession of the whole of the property.

5. It has been submitted by advocate for the private respondents that as many as two suits, one for partition and the other for declaration and injunction, and in which the petitioner is a defendant, are pending before the Civil Court that has made an interim order restraining the petitioner from changing the nature and character of the property. According to him, in view of the injunction order of the Civil Court that the petitioner has not approached seeking an order permitting him to take electricity to the property, there is no scope for the High Court to make an order under Article 226 directing the distribution company to give him electricity.

6. I am unable to agree with advocate for the private respondents. In view of the provisions of section 43 of the Electricity Act, 2003, as an occupier of the property or a part thereof, the petitioner has a statutory right to call upon the distribution company to give him electricity, and once the requisite application was filed, the distribution company incurred a statutory obligation, to give him electricity.

7. Simply because the petitioner is a defendant in the suits pending before the Civil Court that has made an order restraining him from changing the nature and character of the property, the private respondents are not entitled to say that he cannot get electricity in terms of section 43 of the Electricity Act, 2003. His taking electricity to the property from the distribution company, not a party to the suits, cannot change the nature and character of the property. The Division Bench decision supports this proposition, and the Single Bench decision does not say anything contrary to the proposition. I am, therefore, of the view that the distribution company is under an obligation to give the petitioner electricity.

8. For these reasons, I dispose of the petition ordering as follows:

On the petitioner's complying with all formalities and paying requisite charges, the distribution company shall give him electricity. The process, shall be completed within four weeks. It is clarified that nothing in this order shall prevent the Civil Court concerned from deciding the pending suits in accordance with law. Advocate for the petitioner is directed to incorporate the names of the added respondents into the petition at once. No costs.

Certified xerox according to law.

P.C.M

W.P No. 6550 (W) of 2009

Sk. Asgar v. State Of West Bengal & Ors.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments

Private Respondents' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Sk. Asgar v. State Of West Bengal & Ors.

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