HON’BLE MR. SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER

            The instant Appeal u/s 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the behest of the OP to impeach the final order dated 11.9.2015 passed by the Ld. District Consumer Disputes Redressal Forum, Purba Medinipur (for short, ‘the Ld. District Forum’) in Consumer Case No. 50/2015, whereby the Consumer Complaint initiated by the Respondent herein u/s 12 of the Act was allowed with a direction upon the Appellant to effect service connection to the residential house of the Respondent with police help within 40 days from the date of order, to pay compensation of Rs. 5,000/- and litigation cost of Rs. 4,000/-.

            The Respondent herein, being the Complainant, lodged the Complaint alleging that he has a Pacca building in R.S.Plot No. 1538 of Mouza – Padumbasan under Tamluk Municipality, which he inherited from his father being Holding No. 100.  The Complainant made an application for new domestic electric connection and on 24.5.2014 the OP gave a letter for quotation for the purpose of the said electric connection.  Accordingly, on the basis of such quotation, the Complainant deposited Rs. 339/- and Rs. 400/- with the OP on 12.6.2014.  However, the OP has failed to give the said electric connection to the Complainant till 29.12.2014.  On 30.12.2014 the Complainant issue a legal notice through his Ld. Advocate requesting the OP to give electric connection but the OP did not pay any attention to the same.  Hence, the Consumer Complaint on the allegation of deficiency in services on the part of the OP.

            The OP, i.e. the Station Manager, Customer Care Centre, WBSEDCL, Tamluk, by filing a written version has admitted that they authorized M/s. Arya Electricals to effect the service connection in the residence of the Complainant, but it could not be done as the service cable needs to encroach the private land of one Gurupada Manna, since deceased, and the said land now belongs to the legal heirs of the said Gurupada Manna.  The OP has alleged that the Complainant had signed in the prescribed form (way-leave permission) suppressing the fact that the cable line needs to encroach another person’s private land.  On 6.1.2015 the WBSEDCL issued a letter to the Complainant requesting him to submit fresh way-leave or no-objection certificate and as such, the Complaint should be dismissed.

            After assessing the materials on record the Ld. District Forum by the impugned order allowed the Complaint with certain directions upon the OP as indicated above, which prompted the OP to prefer this Appeal.

            We have scrutinized the materials on record and considered the submission advanced by the Ld. Advocates appearing for the parties.

            Mr. Alok Mukhopadhyay, Ld. Advocate appearing for the Appellant, has submitted that the Ld. District Forum has failed to appreciate that the Complainant failed to arrange free way-leave as per Regulation No. 46 – WBERC 3:2:1 (c) Annexures A and B.  It has also been submitted that if the cable line is drawn as per order of the Ld. District Forum, it will encroach the land of a private owner, since deceased, which is contrary to the provisions of law.  The Ld. Advocate for the Appellant has further submitted that the Ld. District Forum has failed to appreciate that the Respondent had himself signed the prescribed form (way leave permission) suppressing the fact that the land, if given, will encroach another person’s private land.

            Mr. Himangshu Sekhar Samanta, Ld. Advocate for the Respondent, on the contrary, has submitted that when his client is a lawful occupier of a property and further, in accordance with the quotation, deposited the money for obtaining the electric connection, being a consumer he has been deprived from getting proper service by the Appellant and as such, the Ld. District Forum was quite justified in passing the impugned order.

            We have considered the rival contentions of the parties.

            It remains undisputed that the Respondent being a consumer had applied for electric connection in his house, being Holding No. 100 in R.S. Plot No. 1538 under Mouza – Padumbasan within Tamluk Municipality.  On the basis of the application the Appellant issued quotation and in terms of the said quotation, the Complainant deposited Rs. 339/- and Rs. 400/- to the Appellant on 12.6.2014.  But the fact remains that the said electric connection is yet to be functional.

            The materials on record would reveal that in order to effect service connection in the house of the Complainant, the service cable needs to encroach the private land of one Gurupada Manna, since deceased.  The Respondent in the prescribed form (way leave permission) did not mention that in order to give connection to his house, the line needs to encroach another person’s private land.  Basing upon such undertaking the Appellant intended to give connection to the Respondent.  It is true that u/s 43 of the Electricity Act, 2003, even an occupier is entitled to have electric connection, but at the same time it has to be seen that the said connection should not encroach the land of others and if the question of encroachment crops up, then certainly a no-objection from the said person would be required.

            The Ld. Advocate appearing for the Respondent placing reliance on a decision reported in AIR 2000 Cal. 2018 – [Kartick Chandra Ghosh Vs. West Bengal State Electricity Board and others] has urged that as per Clause (VI) of the Schedule of the Act, it is the duty of the licensee to supply energy to the petitioner when he has paid quotation money and is in occupation of the premises where the electric line to be connected.  The referred decision relates to a Writ Petition whereby the Petitioner has challenged one Memo issued by the West Bengal State Electricity Board thereby refusing to grant new electric connection to the petitioner so long no-objection is obtained from Public Health Engineering Directorate.  In our case, the land in question through which the line will be drawn belongs to a private person namely, Gurupada Manna, since deceased.  The Respondent did not take any pain to implead the legal heirs of the said Gurupada Manna as parties to the Complaint or did not make any venture to collect no-objection from them in installing the electric poll in the land of the said Gurupada Manna.  The Respondent was given opportunity by the Appellant by issuing a letter dated 6.1.2015 requesting him to submit fresh way-leave or no-objection certificate, but the Respondent had shown masterly inactivity in obtaining the same.

            The Ld. District Forum has given much emphasis about the non-availability of any adverse report from the side of the inspector who inspected the premises of the Complainant.  However, from the observation of the Ld. District Forum it reveals that as there is no whisper anywhere from the legal heirs of Late Gurupada Manna, how Gurupada Manna and his legal heirs came into the picture.

            It is true that as per the relevant provisions of Electricity Act, 2003 together with Electricity Code issued by the West Bengal Electricity Regularity Commission the onus of effecting the new electric connection squarely rests on the service provider subject to fulfillment of the terms and conditions as provided under Sections 53 and 56 of the Electricity Act, 2003.  The fact remains that in Paragraph-15 of the written version the Appellant, being the OP, categorically mentioned that they have made request to the Respondent to submit fresh way-leave or no-objection certificate before Tamluk Customer Care Centre of WBSEDCL, but the Respondent did not follow the same.

            In such a situation, question of alleged deficiency in services on the part of the OP/Appellant does not stand.  In that perspective, we are not in agreement with the Ld. District Forum that there was deficiency in services on the part of the OP as defined u/s 2(1)(g) of the Act.  In our view, the matter should be remanded back in order to enable the Respondent/Complainant to file a fresh application (way-leave permission only)  signifying fresh way-leave or no-objection certificate otherwise all the legal heirs of Late Gurupada Manna should be impleaded in the case for effective adjudication.

            In view of the above, the Appeal is allowed on contest.  However, we do not make any cost as to the Appeal.  The final order dated 11.09.2015 passed by the Ld. District Forum in C.C.Case No. 50/201 5 is hereby set aside.

            The case is remanded back with a direction upon the parties to appear before the Ld. District Forum on 20.09.2016 and prior to that, the Respondent/ Complainant is directed to take initiative to submit a fresh way-leave or no-objection certificate in compliance with the Memo No. TCCC/1309 dated 6.2.2015 of the Appellant.  In the event of failure on the part of the Respondent/ Complainant to comply with the same, the Ld. District Forum will proceed to dispose of the case in accordance with law.

            The Registrar of this Commission is directed to send a copy of this order to the Ld. District Forum forthwith.