Sri Chandu Khamaru vs Nayan Malik & Ors

Sri Chandu Khamaru ... Appellant

Versus

Smt. Nayan Malik & Ors. ... Respondents

J U D G M E N T

A. K. PATNAIK, J.

Delay condoned in filing rejoinder affidavit. Leave

granted.

2. This is an appeal by way of special leave against the

impugned judgment and order dated 09.05.2008 of the

Calcutta High Court in MAT No.514 of 2006.

3. The facts briefly are that the appellant owns a house in

Dag No.408, Khatiyan No.1212, Mauja Panchpara P.S.

Sankrail, District Howrah, West Bengal. The house of the

appellant was not being supplied with electricity whereas

the house located on Dag No.409, Khatiyan No.1212, was

2

being supplied with electricity by the Calcutta Electricity

Board Supply Corporation Ltd. (hereinafter referred to as

`the distribution licensee'). The appellant approached the

distribution licensee for supply of electricity but when the

distribution licensee did not give an electricity connection

for his house, he filed Writ Petition No.18220 of 2004 in the

Calcutta High Court and by order dated 23.09.2004,

learned Single Judge of the High Court disposed of the Writ

Petition by directing the distribution licensee to effect

supply of electricity to the house of the appellant within six

weeks from the date of compliance of all the formalities by

the appellant. Pursuant to the order dated 23.09.2004, the

distribution licensee gave an electric connection and started

supplying electricity to the house of the appellant.

4. On 10.01.2005, however, the respondent Nos. 1 to 3

filed Writ Petition No.345 of 2005 claiming that they were

owners of the house situated on Dag Nos.406, 407 and 409,

Khatiyan No.1212, Mouza-Panchpara, P.S. Sankrail,

District, Howrah. Respondent Nos. 1 to 3 stated in the Writ

Petition that the distribution licensee has provided

electricity to the house of the appellant by an electric line

3

taken through a passage located on Dag Nos.406, 407 and

409 which belongs to them and not the appellant. In this

Writ Petition, respondent Nos. 1 to 3 prayed inter alia for a

writ prohibiting the distribution licensee to give electric

connection in favour of the appellant through the passage

situated on Dag Nos.406, 407 and 409. By order dated

13.02.2006, the learned Single Judge of the High Court

allowed the Writ Petition and directed the distribution

licensee to disconnect the supply of electricity given to the

appellant for using the land (Dag Nos.406, 407 and 409).

The reason given by the learned Single Judge in order dated

13.02.2006 is that the appellant was not entitled to get

supply through the land in Dag Nos.406, 407 and 409 until

he established his right over the land in the civil court.

5. Aggrieved, the appellant filed an appeal being MAT

No.514 of 2006 before the Division Bench of the Calcutta

High Court but by the impugned order dated 09.05.2008,

the Division Bench dismissed the appeal. The Division

Bench took note of the fact that Civil Suit No.83 of 2004

filed by the appellant in the Court of Civil Judge (Junior

Division), Howrah, in respect of the land was pending. The

4

Division Bench held in the impugned order that until the

private dispute between the appellant and respondent Nos.

1 to 3 was resolved in the civil court, the distribution

licensee could not supply electricity to the house of the

appellant through the disputed land.

6. Sub-section (1) of Section 42 and sub-section (1) of

Section 43 of the Electricity Act, 2003 are quoted

hereinbelow:

"42. Duties of distribution licensees and

open access-(1) It shall be the duty of a

distribution licensee to develop and maintain

an efficient co-ordinated and economical

distribution system in his area of supply and

to supply electricity in accordance with the

provisions contained in this Act."

"43. Duty to supply on request-(1) Save as

otherwise provided in this Act, every

distribution licensee, shall, on an application

by the owner or occupier of any premises,

give supply of electricity to such premises,

within one month after receipt of the

application requiring such supply"

7. It will be clear from sub-section (1) of Section 42 that

every distribution licensee has a duty to develop and

maintain an efficient co-ordinated and economical

distribution system in his area of supply and to supply

electricity in accordance with the provisions contained in

5

this Act. Sub-section (1) of Section 43 provides that every

distribution licensee, shall, on an application by the owner

or occupier of any premises, give supply of electricity to

such premises, within one month after receipt of the

application requiring such supply. These provisions in the

Electricity Act, 2003 make it amply clear that a distribution

licensee has a statutory duty to supply electricity to an

owner or occupier of any premises located in the area of

supply of electricity of the distribution licensee, if such

owner or occupier of the premises applies for it, and

correspondingly every owner or occupier of any premises

has a statutory right to apply for and obtain such electric

supply from the distribution licensee.

8. The Electricity Act, 2003 has also made provisions to

enable the distribution licensee to carry out works for the

purpose of supplying electricity to the owners or the

occupiers of premises in his area of supply. Section 67 of

the Electricity Act, 2003 is quoted hereinbelow:

"67. Provision as to opening up of streets,

railways, etc.- (1) A licensee may, from time-to-time

but subject always to the terms and conditions of

his licence, within his area of supply or

transmission or when permitted by the terms of his

licence to lay down or place electric supply lines

6

without the area of supply, without that area carry

out works such as-

(a) to open and break up the soil and

pavement of any street, railway or tram-

way;

(b) to open and break up any sewer, drain or

tunnel in or under any street, railway or

tramway;

(c) to alter the position of any line or works

or pipes, other than a main sewer pipe;

(d) to lay down and place electric lines,

electrical plant and other works;

(e) to repair, alter or remove the same;

(f) to do all other acts necessary for

transmission or supply of electricity.

(2) The Appropriate Government may, by rules made

by it in this behalf, specify,-

(a) the cases and circumstances in which

the consent in writing of the appropriate

Government, local authority owner or

occupier, as the case may be, shall be

required for carrying out works;

(b) the authority which may grant

permission in the circumstances where the

owner or occupier objects to the carrying

out of works;

(c) the nature and period of notice to be

given by the licensee before carrying out

works;

(d) the procedure and manner of

consideration of objections and suggestions

received in accordance with the notice

7

referred to in clause (c);

(e) the determination and payment of

compensation or rent to the persons

affected by works under this section;

(f) the repairs and works to be carried out

when emergency exists;

(g) the right of the owner or occupier to

carry out certain works under this section

and the payment of expenses therefor;

(h) the procedure for carrying out other

works near sewers, pipes or other electric

lines or works;

(i) the procedure for alteration of the

position of pipes, electric lines, electrical

plant, telegraph lines, sewer lines, tunnels,

drains, etc.;

(j) the procedure for fencing, guarding,

lighting and other safety measures relating

to works on streets, railways, tramways,

sewers, drains or tunnels and immediate

reinstatement thereof;

(k) the avoidance of public nuisance,

environmental damage and unnecessary

damage to the public and private property

by such works;

(l) the procedure for undertaking works

which are not reparable by the Appropriate

Government, licensee or local authority;

(m) the manner of deposit of amount

required for restoration of any railways,

tramways, waterways, etc;

(n) the manner of restoration of property

8

affected by such works and maintenance

thereof;

(o) the procedure for deposit of

compensation payable by the licensee and

furnishing of security; and

(p) such other matters as are incidental or

consequential to the construction and

maintenance of works under this section.

(3) A licensee shall, in exercise of any of the powers

conferred by or under this section and the rules

made thereunder, cause as little damage, detriment

and inconvenience as may be, and shall make full

compensation for any damage, detriment or

inconvenience caused by him or by any one

employed by him.

(4) Where any difference or dispute including

amount of compensation under sub-section (3)

arises under this section, the matter shall be

determined by the Appropriate Commission.

(5) The Appropriate Commission, while determining

any difference of dispute arising under this section

in addition to any compensation under sub-section

(3), may impose a penalty not exceeding the amount

of compensation payable under that sub-section."

9. Thus, sub-section(1) of Section 67 of the Electricity

Act, 2003 provides that the licensee may, from time to time,

but subject always to the terms and conditions of his

licensee, within the area of supply carry out the works

mentioned in clauses (a) to (f) therein. It is provided in

clause (d) of sub-section (1) of Section 67 that the licensee

9

may lay down and place electric lines, electrical plant and

other works. Sub-section (2) of Section 67 of the Electricity

Act, 2003 further provides that the appropriate Government

may, by rules made by it in that behalf, specify the various

matters mentioned in clauses (a) to (p) thereof. Under

clause (a) of sub-section (2) of Section 67, the appropriate

Government may, by rules, specify the cases and

circumstances in which the consent in writing of the

appropriate Government, local authority, owner or occupier,

as the case may be, shall be required for carrying out works.

Under clause (b) of sub-section (2) of Section 67, the

appropriate Government may, by rules, specify the authority

which may grant permission in the circumstances where the

owner or the occupier objects to the carrying out of works.

10. We may now apply the aforesaid provisions of

Electricity Act, 2003 to the facts of the present case. The

appellant has a statutory right to apply for and obtain

supply of electricity from the distribution licensee and the

distribution licensee has a corresponding statutory

obligation to supply electricity to the appellant. Respondent

Nos. 1 to 3 also do not object to the supply of electricity by

10

the distribution licensee to the appellant as it will be clear

from the averments made in writ petition No.345 of 2005

filed by them before the High Court but they object to the

line for supply of electricity being drawn through the

passage in Dag Nos.406, 407 and 409 which they claim to

be theirs. The further grievance of the respondent Nos.1, 2

and 3 is that they were not made parties in the earlier Writ

Petition No.18220 of 2004 filed by the appellant in which

the High Court directed the distribution licensee to effect

supply of electricity to the house of the appellant. The case

of the appellant, on the other hand, is that this passage is

not a private passage of respondent Nos. 1 to 3 but is a

common passage and therefore an electric line can be

drawn through this common passage. This dispute will

have to be resolved in Civil Suit No.83 of 2004 pending in

the Court of Civil Judge (Junior Division), Howrah, or in any

other suit, but pending resolution of this dispute between

the parties, the appellant cannot be denied supply of

electricity to his house.

11. We, therefore, set aside the order of the learned Single

Judge as well as the impugned order of the Division Bench

11

and dispose of the Writ Petition of respondent nos.1 to 3

with the direction that the distribution licensee will find out

whether there is any other way in which electric line can be

drawn for supply of electricity to the house of the appellant,

other than the disputed passage in Dag Nos.406, 407 and

409. If there is no other way to supply electricity to the

house of the appellant, the distribution licensee will follow

the provisions of sub-section (2) of Section 67 of the

Electricity Act, 2003 for carrying out the work for supply of

electricity to the house of the appellant. This exercise will

be completed within a period of six months from today and

till the supply of electricity to the house of the appellant is

effected through some other way, supply of electricity to the

house of the appellant will not be disconnected. The appeal

is allowed to the extent indicated in this judgment. No

costs.

..........................J.

(R.V. Raveendran)

..........................J.

(A. K. Patnaik)

New Delhi,

September 02, 2011.