PER HON’BLE SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER

            The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the behest of Opposite Party No.1West Bengal State Electricity Distribution Company Limited (WBSEDCL) to impeach the Final Order dated 17.01.2018 passed by the District Consumer Disputes Redressal Forum, Howrah (in short, ‘Ld. District Forum’) in Consumer Complaint No. 78/2016.  By the impugned order, the Ld. District Forum allowed the complaint lodged by Respondent No.1 Noor Alam Mollah under  Section 12 of the Act with the direction upon the Opposite Party No.1 WBSEDCL to give electric connection to the tenanted premises of the complainant on the basis of his application subject to payment of requisite fees, if not paid earlier within 30 days from the date of order.

          The Respondent No.1 herein being Complainant lodged the complaint before the Ld. District Forum asserting that he is a monthly tenant inducted by Late Noor Islam Sardar, the predecessor-in-interest of OP Nos. 2 to 6 at a monthly rental of Rs.250/- payable according to English Calender.  Since induction, he was enjoying electricity from the landlord’s meter and had been regularly paying electricity charges as per demand of the landlord but surprisingly on 28.09.2014 the present landlords cut off the supply of electricity without any intimation to him.  Finding no other alternative, the complainant applied for a new meter for his tenanted premises and on the basis of his application, a quotation had been issued and the complainant deposited the amount on the basis of the same.  However, the OP No.1 through a letter dated 26.06.2015 informed the complainant that electric connection cannot be supplied as outstanding dues are pending.  The complainant states that he or any of his family members had any electric service connection in their name in the tenanted premises and as such OP has no right to claim such illegal amount of Rs.60,458/- as claimed.  Ultimately, the respondent no.1 lodged the complaint with prayer for several reliefs, viz. – (a) to direct the OP No.1 that the demand of lump sum amount of Rs.60,458/- claimed by the letter dated 21.11.2015 is illegal and not tenable in law; (b) to direct the OP No.1 to supply electric connection in the name of him at the tenanted premises; (c) compensation of Rs.10,000/- and (d) litigation cost of Rs.5,000/- etc.

          The Appellant being OP No. 1 by filing a written version has stated that when it was observed that an outstanding amount of Rs.58,923/- is lying pending in the name of Noor Alam Sardar (original landlord) and Jillur Rahaman amounting to Rs.34,494/- and Rs.24,429/- respectively aggregating Rs.58,923/- by the letter dated 21.09.2015 the complainant was informed about the reason for non-effecting the service connection as the outstanding amount of the premises was not cleared.

          The Respondent Nos.2 to 6 i.e. the wife and sons of the erstwhile landowner i.e. the present landowners though appeared before the Ld. District Forum and filed written version but ultimately did not contest.

          After assessing the materials on record, the Ld. District Forum by the impugned final order allowed the complaint with certain directions upon OP No.1, as indicated above.  To assail the said order, OP No.1 has come up in this Commission with the present appeal.

          Mr. Suvendu Das, Ld. Advocate for the Appellant has submitted that when it is apparent that an amount of Rs. 58,923/- is outstanding as electricity charges in the premises in question, in view of Regulation No.13.9 of WBERC Notification No.46 dated 31.05.2010, the connection in the tenanted premises of respondent no.1 could not be effected and  when the Ld. District Forum has passed the order without considering the provisions of law, the impugned order is liable to be set aside.

          Per contra, Mr. Parijat Das, Ld. Advocate for the Respondent No.1has contended that electricity is an essential service and in catena of decisions, the Hon’ble Supreme Court as well as our parent High Court has observed that the right to electricity is a derived right from right to shelter granted under fundamental rights of the Constitution of India, the appellant had no reason not to provide electric connection to a tenant, whose electric connection was disconnected by the landlord.  He has also contended that to ascertain the actual state of affairs, the respondent no.1 being a hawker in profession and illiterate person filed one R.T.I. dated 07.12.2018 to the Public Information Officer through his literate friend one Sri Arup Das to collect information as to whether any new connection of meter has been allotted or installed and to that effect no information has been given simply showing the provisions of Section 8(1)(j) of R.T.I. Act, 2005.  He has also contended that despite such alleged outstanding amount, a new meter has been installed in the premises of landlord at Baltikuri Sekhpara, P.O.- Baltikuri, P.S.- Dasnagar, Dist-Howrah.  Though such a big mercy has been shown to the landowner but no such mercy has been bestowed upon the poor respondent no.1, who is a hawker in profession.  Referring several decisions of the Hon’ble Supreme Court of India, National Consumer Commission and the High Court at Calcutta, he has finally submitted that the impugned order being in accordance with the provisions of the Act, it should not be interfered with.  

          We have considered the submission advanced by the Ld. Advocates appearing for the Appellant and Respondent No. 1.  Despite receipt of notice, the Respondent Nos.2 to 6 did not appear to contest.  Therefore, we proceeded to decide the appeal in absence of the Respondent Nos.2 to 6/landlords.

          Undisputedly, one Noor Islam Sardar was the owner of a premises lying and situated at Baltikuri Sheikhpara, P.O.-Baltikuri, P.S.-Dasnagar, Dist-Howrah.  The respondent no.1 has been inducted as a tenant in respect of one R.T. Shed room consisting of pucca brick wall with verandah and common privy in respect of the same premises at a monthly rental of Rs.250/- per month.  It is also not in dispute that since induction, the respondent no.1 was enjoying electricity from the landlord’s meter and the said electric connection was cut off by the landlords on 28.09.2014.

          In that backdrop, the Respondent No.1 had applied for a new meter in respect of his tenanted premises being application No.1002733895 in his own name from WBSEDCL and on the basis of quotation issued by the appellant, the respondent no.1 has deposited the amount of Rs.868/- as security deposit and inspection procedure was concluded without any hindrance.  Subsequently, the appellant refused to give electric connection simply on the ground that there was an outstanding amount of Rs.58,923/- is lying pending against the plot in question where the tenancy of respondent no.1 stands.

          Needless to say, Section 43 of the Electricity Act, 2003 is the main provision casting an obligation upon every distribution licensee to give supply of electricity to the premises when the application by the owner or occupier of such premises is made and Sub Section (1) of Section 43 of the said Act enjoins upon the distribution licensee to give such supply of electricity to the owner or occupier of the premises, as the case may be, within one month after receipt of the application requiring such supply.  

        The question came up for consideration before a Full Bench of Calcutta High Court reported in 2011 (2) CHN 768 (Abhimanyu Majumdar –vs. –  Superintendent Engineer & Anr.) whether right to have electricity under the ambit of Article 21 of Constitution of India by including such right within the derived right ‘right to shelter’ under Article 21 of the Constitution of India could be available to trespassers and unauthorised occupier; and, whether right to shelter a derived/emanated fundamental right could be extended to the unauthorised occupants, squatters, encroachers of any land or premises to provide as a consequential relief to supply electricity on breach of statutory provisions under the Electricity Act, 2003 and the Works of Licenses Rules, 2006 as well as on public interest’? and in answering to the question it has been observed –

 “.......if the applicant is found to be in settled position of the premises in question and they will be entitled to the enjoyment of the electricity so long they are not dispossessed by due process of law on compliances of all formalities required under the Act”.

          The facts and circumstances and materials on record indicate that the respondent no.1/complainant is a tenant under respondent nos. 2 to 6 and as such being a tenant, he is entitled to electric connection in accordance with legislative mandate as embodied in Section 43 of the Electricity Act, 2003. 

          The contention of the Ld. Advocate for the Appellant about not adherence to the Regulation No.13.9 being Notification No.46/WBERC dated 31.05.2010 does not appear to be applicable in the facts and circumstances of the case inasmuch as the respondent no.1/complainant had been living in the plot as a tenant under Noor Islam Sadar, since deceased and now under the legal heirs and successors of the said Noor Islam Sardar.  In their written version, the appellant no.1 has categorically mentioned that the amount of Rs.34,494/- and Rs.24,429/- aggregating Rs.58,923/- are outstanding in the names of Noor Islam Sardar and Jillur Rahaman respectively.  Therefore, from the statement of appellant itself, it would be quite clear that for non-payment of outstanding dues, there is hardly any reason to attribute liability upon a poor tenant, who is a hawker in profession.  Moreover, there is no allegation whatsoever that the respondent no.1 had any nexus with the landlords to deprive the WBSEDCL from getting their outstanding dues.

          In that perspective, the Ld. District Forum has rightly passed the impugned order.  Taking into consideration of all the relevant factors, though there was deficiency on the part of the appellant yet the Ld. District Forum did not award any amount of compensation or litigation cost.  Without complying with the said order and ignoring the object of Section 43 of the Act that right to electricity is a fundamental right, the instant appeal has been filed just to harass the respondent no.1/complainant further.  The matter requires an enquiry as to whether in between 02.06.2014 and the date of filing complaint i.e. on 18.02.2016 any electric connection has been allotted or installed in the premises of Baltikuri Sekhpara, P.O.- Baltikuri, P.S.- Dasnagar, Dist-Howrah in the name of landowners, viz.-Rahaman Sardar, Shaidukl Sardar, Safique Sardar or Tafique Sardar or Jinna Bibi (respondent nos. 2 to 6)  and if it is found the connection has been allotted or installed, whether the outstanding amount of Rs.58,923/- (as stated on behalf of WBSEDCL) has been realised or not.

          On evaluation of materials on record and having heard the Ld. Advocates appearing for the respective parties, we have no hesitation to hold that the instant appeal is totally devoid of any merit and the object behind filing of the appeal is just to cause unnecessary harassment of respondent no.1/complainant.  In any case, the appeal being harassing one, it is liable to be dismissed with cost of Rs.10,000/-.

          For the reasons aforesaid, the appeal is dismissed on contest with cost of Rs.10,000/- and the said cost must be paid by Appellant WBSEDCL in favour of Respondent No. 1 within 90 days for untold misery suffered by him.

          The impugned final order is hereby affirmed.

          The Registrar of this Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, Howrah, for information.

          The Registrar of the Commission is further directed to send a copy of the order with speed post or by special messenger to the Chairman-cum-Managing Director, West Bengal State Electricity Distribution Company Limited, Bidyut Bhawan, Salk Lake City, Kolkata with a request upon him to depute competent person(s) to enquire as to whether the Station Manager, Salap CCC, P.S.- Domjur, Dist-Howrah has installed any new meter on any date in between 02.06.2014 and 18.02.2016 (the date of lodging complaint) in the premises of respondent nos. 2 to 6/OP Nos. 2 to 6 at Bultikuri Sheikhpara, P.O.-Bultikuri, P.S. Dasnagar, Dist-Howrah and if any such electric connection is found to have installed, whether in accordance with Notification No.46/WBERC dated 31.05.2010 (vide 13.9), the outstanding amount of Rs.58,923/- in respect of the said premises has been realised or not.