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W.P. No. 11592 (W) of 2016

Shanti Devi Agarwal v. W.B.S.E.D.C.L.

2016 SCC OnLine Cal 5445

In the High Court of Calcutta

(BEFORE I.P. MUKERJI, J.)

Smt. Shanti Devi Agarwal

v.
W.B.S.E.D.C.L. & Ors.
For the petitioners:- Mr. Sakya Sen, Mr. Rajib Mohon Chatterjee, Mr. Sumanta
Biswas, Mr. Supratim Laha, Mr. Balaji Chakraborty …Advocates
For the W.B.S.E.D.C.L.:- Mr. Rajkumar Basu ….Advocate
For the Respondent No. 4:- Mr. Kishore Dutta, Sr. Advocate, Mr. Srijib Chakraborty
….Advocates
W.P. No. 11592 (W) of 2016 and C.P.A.N. 1089 of 2016
Decided on September 29, 2016
The Judgment of the Court was delivered by
I.P. MUKERJI, J.:— 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.
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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. Agarwal applied to the respondent licensee for an electricity connection in her
name. On 25th May, 2014 they came to the premises to inspect it. It is averred in the
petition that they were obstructed by Pincha. The officials of the respondent licensee
went away without affording electricity connection.
12. Hence this writ.
13. Shanti Devi Agarwal claims a writ of mandamus directing the respondent
licensee to afford electricity connection to her. It is resisted by Mr. Pincha on the
ground that she has no right to receive electricity, because of the reasons cited above,
14. Mr. Sakya Sen very rightly referred to the leading decision of the Special Bench
of the Circuit Bench of this Court at Port Blair in the case of Abhimanyu Mazumdar v.
Superintending Engineer reported in 2011 (2) CHN (CAL) 768. It dealt with Section 43
of the Electricity Act, 2003 which provided that every distribution licensee was obliged
to grant electricity supply to a premises on the application of the owner or the
occupier. The Works of Licensees rules 2005 framed under the Indian Electricity Act,
2003 were also under the consideration of the Court. In Rule 2(B) an occupier was
defined as a person in “lawful occupation”. The question before the court was whether
an encroacher of land in the Andaman & Nicobar Islands was entitled to electricity
connection. The lands where these encroachers were residing belonged to the Union of
India. Electricity connection was denied to them on the ground that they were
“encroachers”. Mr. Justice Bhaskar Bhattacharya delivering the judgment of the
Special Bench opined that by incorporation of the words “lawful occupier” in the rules,
the legislature meant “actual occupier in settled possession” when it used the word
“occupier” in Section 43. His lordship remarked that a person in settled possession
could not be evicted from the property without the due process of law even though his
initial entry into the property was unlawful.
15. Now, when is a person said to be in settled possession of a property?
16. I will quote certain passages from the judgement of the Supreme Court in
Rame Gowda (D) by L.Rs. v. M Varadappa Naidu (D) by L.Rs reported in AIR 2004 SC
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4609 relied upon in the Special Bench judgement:-

“If the trespasser is in settled possession of the property belonging to the
rightful owner, the rightful owner shall have to take recourse to law; he cannot take
the law in his own hands and evict the trespasser or interfere with his possession.
The law will come to the aid of a person in peaceful and settled possession by
injuncting even a rightful owner from using force or taking law in his own hands,
and also by restoring him in possession even from the rightful owner of course
subject to the law of limitation, if the latter has dispossessed the prior possessor by
use of force.
17. It is the settled possession or effective possession of a person without title
which would entitle him to protect his possession even as against the true owner.”
18. In Munshi Ram v. Delhi Administration reported in 1968 (2) SCR 455 the
Supreme Court opined that a person in settled possession could defend his possession.
He could only be displaced by the true owner. A stray trespasser or a person
committing intermittent acts of trespass did not have this right to defend his
possession, against the true owner. Settled possession must extend over a long period
of time.
19. There are certain attributes of settled possession as laid down by the Supreme
Court in the above judgement and in its subsequent decisions.
i) The trespasser must be in actual physical possession of the property.
ii) The commencement of possession was unlawful.
iii) It must be for a sufficiently long period.
iv)The possession must be to the knowledge express or implied of the owner.
v) The possession must be open and not concealed.
vi) The dispossession of the true owner must be complete.
20. There are other situations as well.
21. Take the case of a squatter. He usually takes sudden possession of a property.
His entry into the property is unlawful. He attempts to remain on the property by
preventing the true owner from being in possession thereof. In such a case the
squatter has no right whatsoever. Under common law the true and lawful owner as the
power of evicting the squatter from the premises by use of a reasonable force.
Squatting on the premises confers no right at all on the squatter far less a right to get
electricity supply.
22. In another kind of case the entry of a person into the premises may be lawful.
He may enter the premises by permission of the owner as a licensee or invitee or even
a lessee. He takes possession of the property. Suppose it is a licence or an invitation
and it is revoked by the owner. From the time of its revocation the possession
becomes unlawful in the eye of law. Similar is the case, on the determination of a
lease. The possession of the person becomes unlawful. Thereafter, the occupant is
treated as a trespasser. A trespasser is a person whose initial entry into the premises
is usually by consent and subsequently the permission has been revoked by the owner
or by law. This kind of a trespasser can also be treated as a person in settled
possession.
23. In all these types of cases a person in possession is entitled to electricity
supply.
24. Mr. Kishore Dutta, senior Advocate made very compelling submissions. Section
282(2) of the West Bengal Municipal Corporation Act, 2006, inter alia states that no
person shall occupy any building unless permission in this behalf has been granted by
the Commissioner upon receipt of a completion certificate by the builder. The second
and third floors of the building in question were unauthorisedly built. Hence no
completion certificate or permission by the Commissioner is available in respect of
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these two floors.

25. Furthermore, Mr. Dutta was right in his submission that under Rules 34(7) and
36 of the West Bengal (Building) Rules, 2007 no water connection can be given to an
occupant of a building without an occupancy certificate. The building has no water
connection.
26. Now, the question posed is this: if a building is not allowed to be occupied or
when the law prohibits water connection to be granted to it for lack of an occupancy
certificate can an occupier of that building or part of it claim electricity supply?
27. To my mind this question is entirely different from the requirement of Section
43 which enjoins a distribution licensee with a duty to supply electricity to an occupier
of any premises.
28. Section 43(1) pre supposes that a person in settled possession is entitled to
electricity connection, if otherwise supply of electricity to the building or part of it
would be legal. Abhimanyu Mazumdar v. Superintending Engineer reported in 2011
(2) CHN (CAL) 768, and all the other cases referred to in it dealt with the kind of
occupier entitled to electricity connection.
29. This decision, in my opinion did not for a moment deal with the state and
condition of a premises before it could be granted electricity connection. Say, for
example an imminently dangerous building with a person in settled possession. The
building might crumble and fall at any point of time, killing the persons living in it and
might also start a short circuit which might lead to a devastating fire. Will the
distribution licensee afford electricity to this kind of a premises? In my opinion, the
same principle should apply to a building which is patently illegal, i.e. without a
sanctioned plan or a building permit or without the permission to occupy and for which
the permission is not likely to give in future. A distribution licensee cannot afford
electricity connection to such a building or a part thereof. I clarify by saying that it is
entitled to take steps to provide electricity where a completion certificate or an
occupancy certificate or permission to occupy is likely to be obtained in the near
foreseeable future. Or make arrangements for such supply in anticipation of such
permission. It may also grant a temporary connection to enable construction of the
building. If the required permission to occupy is not granted by the municipality, the
distribution licensee is to cut off the supply. But, it cannot supply electricity to a
building where permission to occupy is never likely to be granted by the municipal
authority. This for the simple reason that a distribution licensee, acting under the law
is not supposed to lend its hand to perpetuate an illegality.
30. There is no case run by the petitioner in this writ application for a declaration
from this court that there is deemed sanction of a building plan for this property. So
the court has to proceed on the basis that the building does not possess a completion
certificate and no permission to occupy the building has been granted by the
Commissioner. Neither is there any permission to obtain water connection. Shanti Devi
Agarwal has to establish in a proper legal forum that there was deemed sanction of the
building plan and hence the respondent Corporation was obliged to issue the
permission to occupy and so on.
31. On the existing facts no electricity connection could have been given to the
second and third floors.
32. But in the facts and circumstances of this case the respondent No. 4 is also a
part of that illegality. He has obtained sub-lease of the entire building with two illegal
floors, from Bhabotosh Chatterjee. He is also himself in occupation of a part of this
illegal building. Does it lie in his mouth to say that the writ petitioner should not be
given electricity supply?
33. Throughout, Shanti Devi Agarwal was enjoying electricity through the meter of
Papiya Guha. The respondent No. 4 was aware of this. He entered the property with
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this knowledge and on this state of affairs.

34. In the order of this court dated 4th July, 2016, the submission of Mr. Mitra,
senior Advocate is recorded that the respondent no. 4 could provide electricity
connection to the petitioner through a sub meter. By a subsequent order dated 20th
July, 2016 this court directed the respondent no. 4 to install a sub meter of the correct
specification to supply electricity to the writ petitioner and till that arrangement was
made she would continue to enjoy temporary electricity facility to the respondent
licensee. For some reasons this did not work out. Shanti Devi Agarwal continues to get
electricity through a temporary connection.
35. For so many years that Shanti Devi Agarwal was receiving in electricity through
the meter of Papiya Guha, the respondent licensee, the Government of West Bengal or
the concerned Municipality had not taken any steps for disconnection of electricity or
for demolition of the illegal part of the building. Therefore, fairness demands that the
writ petitioner's status quo as mentioned above should not be interfered with.
36. In my opinion she is entitled to continue to get electricity, on this temporary
basis through a separate meter as long as she is in possession of the second floor.
37. This writ application is accordingly disposed of. The contempt application is also
disposed of without initiating any proceeding.
38. Certified photocopy of this Judgment and order, if applied for, be supplied to
the parties upon compliance with all requisite formalities.
———
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