Shri Partha Kumar Bose, Member
The gist of the complaint case filed u/s 35 of the Consumer Protection 2019 is that the complainant submitted application for new connection at his premises number E5-72/A/New, Nungi, Gumo Shaw Para Road, Batanagar, PS – Maheshtala, South 24 Parganas, Kolkata -700140 at LP No. 8/17/1. Butinspite of fulfilling eligibility requirements,the OPs being the electricity supply company namely CESC did not provide new electric connection to the complainant. Hence the complainant Sri Sukumar Roy, S/o Late Sukendra Lal Roy filed this complaint case against CESC (OP1) and the District Engineer of CESC, West Subarban District (OP2).
The complainant averred in petition thatvide application dated 13.01.2021 to supply electricity at subject premises, CESC inspected the premises on 15.01.2021 (Annexure-A) andrequisitioned few documents e.g. rent receipt, LR Records (Khazna), Mutation Certificate, Municipal Tax Receipt and Deed of Conveyance of the subject property along with site plan (Annexure-B page no.16-47). The complainant deposited all documents to CESC on 18.01.2021 and 24.06.2021 (Annexure-C& E) against acknowledgement. Reminders dated 01.03.2021 and 09.03.2021 were sent to CESC (Annexure-D) who then raisedservice charge and security deposit bill dated 26.06.2021 that were paid by the complainant for Rs.15,810/-(Annexure-G). But still no electrical connection was provided by CESC and hence this case. The Complainant states that CESC in the meantime supplied electricity to one Sri Samar Roy, his cousin brother. The complainant states in the complaint petition that a Civil suit vide TS no. 50 of 1997 is pending before the 7th Court of the Civil Judge (Senior Division) at Alipore Court where that Samar Roy is Defendant no.2 in the premises no. 5 -71/255/1-2NungiGumo Shaw Para, Ward no 31, PS: Maheshtala, South 24 Parganas, PIN 700140 which is adjacent to thesuit premises of the holding of this complainant at E 5-72/A/New. The complainant also states that residential accommodation of both of him and Samar Roy are situated at Dag no.456, Mouza – Pal Bangla, J L No.49, Ward no.31 of Maheshtala Municipality, South 24 Parganas. The complainant further states thatSri Sukhendra Lal Roy had filed anotherCivil suit vide TS no 50 0f 1997 against Sri Salil Roy, Samar Roy and SwapanRoy being Defendant No.1, 2 and 3 respectively for partition of their property which was heard ex-parte and the Ld. Court published an order of decree of the aforesaid property on ex-parte basis declaring the Plaintiffs’ share and a half of the suit property in favour of Sukhendralal Roy In the meantime, the Plaintiff of that TS Case died leaving behind legal heirs, duly substituted as Plaintiff and this complainant Sri Sukumar Roy became the substituted plaintiff No.1( C) in that TS Case no.50 of1997. The complainant exhibited copy of the order / judgement vide no.49 dated 07.11.2003 (Annexure-H) in the matter of that TS no.50 of 1997, Alipore with an order as quoted below :-
“that the suit be and the same is decreed ex-parte in preliminary form without cost.Plaintiff’s half share in the suit property be decreed and he do get separate possession thereof for partition by metes and bounds. The parties are allowed time… date hereby to effect amicable petition by metes and bounds failing which any of the parties will be at liberty to apply to court for partition by metes and bounds by appointment of pleader commissioner”
The complainant states that the said Samar Roy lodged a false complaint before CESC on 17.01.2021 (Annexure-I) and the CESC sent a letter dated 27.01.2021 to said Samar Roy to produce necessary documents to substantiate his rights and objections within 15 days to which not a scrap of paper or document forming the basis of the said complaint dated 17.01.2021 was submitted. The CESC sent a letter dated 27.01.2021 to this complainant as well (Annexure-J) stating inter-alia that the said objection letter from Sri Samar Roy is required for his remarks and elucidation for enabling CESC to take further action in this matter. Though the bill of CESC for Rs.15,810/- dated 26.06.2021 as service charge and security deposit for the new connection of the complainant was raised and paid immediately on 28.06.2021 by the complainant but inspite of elapse of more than a year the CESC denied providing connection to the complainant in violation of West Bengal Electricity Regulatory Commission Notification no:46/WBERC dated 31.05.2010 Clause 4.1 & 4.2 which tantamount to deficiency in service. Legal notice dated 03.09.2021 was served by the complainant on CESC (OP1 and OP2) (Annexure-K) but without any result.
Hence, the complainant prayed for order on the OPs for a direction to provide an electrical connection at the schedule premises as per load requirement along with compensation of Rs.1,00,000/- (Rupees one lakh) for mental pain and harassment and a litigation cost of Rs.50,000/- (Rupees fifty thousand).
On the other hand, the OPs contested the case by filing W/V and through exchange of questionnaires and replies by both sides. The OPs contended that the complaint is not maintainable due to incorrect presentation of facts by the complainant and since no cause of action arose. The OP did not oppose the factual parameters averred by the complainant regarding application for new service connection at thecomplainant’s premises, inspection by them, documentation from complainant and objections thereof. CESC also stated on affidavit that they received the objection letter of Samar Roy and forwarded the same to the complainant for comments and elucidation.It was observed by CESC that the mutation certificate was issued in favour of the complainant and also another person Sri Amit Roy for suit premises. Thereafter CESC issued an offer letter together with MASD bill dated 26.06.2021 which was duly paid by the complainant. CESC claims that inspite of efforts to install service connection for the complainant, it did not materialize due to obstruction created by Sri Samar Roy and associates every time. CESC expressly statedbeing agreeable to effect installation with police help and / or with an order to break the padlock, if required. CESC states that they are unable to carry the job in spite of repeated attempts dueto objection at the work site wherein the complainant was unable to arrange freeaccess during efforts taken to install the service connection in favour of the complainant. The OP urges that as per Regulation no.3 of the WBERC (Standards of performance oflicenses in relation to consumer services) -Regulation 2010 - the procedure for giving new domestic electric connection, extension of load and alteration of service and also as perRegulation no.3.2, ‘clearance required for new connection’ and miscellaneous provisions, the electricity Distribution Company to provide electric connection to the intending consumer after completion of all formalities.The CESC also contended as per Regulation no:13.17 of the WBERC-2010, licensee shall not be responsible for delay in providing supply of service as per Regulation 3 and 12, if the same is on account of problems relating to right of way acquisition of land, or court, clearance of statutory authority, etc. As such the OPs states that since there are no intentional latches on their part so there is no deficiency in service on the part of the OPs.
During the course of the trial parties have filed their respective evidences followed by filing questionnaires and replies and arguments have been advanced by both parties along with BNA on 15.05.2023.
The following points require determination :
- Whether there has been any deficiency in service on the part of the OPs?
- Whether the complainant is entitled to the reliefs as prayed for ?
Decision with reasons
Both the points are taken up together for discussion for the sake of brevity and to avoid repetition.
The Complainant has applied for a new electric connection at a portion of suit premises.It is an admitted fact by both sides that an application for new connection was received by OPs along with all requisite documents from the applicant/complainant. The necessary charges as per MASD bill as raised by CESC after being satisfied through feasibility study was also paid by the complainant and still the installation of the said electricity facility could not becompleted. According to the complainant, he could not use the premises duly energised with electricity and enjoy the same.
Now it is found that the regulation no. 3.2.1(B) of WBERC Regulations 2010 regarding standards of performance of licenses relating to Consumer Services to the extent relevant portions, reads as under :-
“3.2.1(B) documents of bonafide occupations of ownership of a premises is required to be submitted to the electricity distribution company showing the occupancy in the premises.”
The said Samar Roy objected to the complainant’s electricity connection claiming himself owner of the piece of land in E-5-71/ 255/1-2on the ground of encroachment. But the Civil Courtnever passed any injunction order in TS50 of 1997restraining the defendants /OPs disturbing the peaceful possession of the complainant as on that date. It is prima facie established that the complainant is under possession of suit premises as per exhibited documents and CESC inspection. The mutation certificate under exhibit also lends support to the same contention. The present case is one where initially, being satisfied as to the possession of the Complainant on the basis of the documents produced, the CESC had sent MASD bill for a new electricity service connection to the Complainant, which the Complainantpaid. But the CESC has acted on the unsubstantiatedallegation of third partyand refrained from providing new connection to the complainant. The complainant was obviously found to be in occupation of the premises by the CESCduring inspection in the first place andraised MASD bill. In such context, the ratio laid down in the Full Bench judgment of three judges of Calcutta high Court in Abhimanyu Mazumdar vs. Superintending Engineer [AIR 2011 Cal 64] becomes applicable inasmuch as it was held that a person in "settled possession" is entitled to get electricity U/s 43 of the Electricity Act, 2003, irrespective of the lawfulness/legality of such possession. Sec 43 impels CESC to give electricity connection upon compliance of formalities and production of prima facie proof of occupation. Once steps are initiated by raising MASD bill to give such new connection, it cannot be halted merely on the allegation of a third party which has not yet been established conclusively before a competent court of law, nor can be decided by the distribution licensee to permit it to resile from its previous position.The post facto insistence of the CESCabout production of a 'way leave' permission from the complainant isuntenable and can’t form a basis for not giving connection of electricity to the Complainant. In this regard, it is rendered by Calcutta High Court in Subhash Ghosh vs. CESC&Ors. [2013 SCC Cal 22051]which also supports the contention that an occupier need not produce a 'way leave' permission from the owner to get an electricity connection in the former's name.
Also there cannot arise any question that electricity connection can be construed to be a transgression of possession. It is well-settled that mere electricity connection cannot create any special right in favour of the consumer. Right, title and possession has to be finally adjudicated by a competent Civil court.The W.P.A. No.9630 of 2022 in Kuntal Mukherjee Vs CESC in latest Judgment on 04.01.2023from Calcutta High Court lends support to all the above contentions.
In the case in hand, the CESC Limited i.e. the licensee, pursuant to the Complainant's application inspected the premises in question, raised a MASD bill for new electricity connection but could not provide the same as the access to the premises was not given to the authorized personnel of CESC Limited. On behalf of the Complainant, it is also submitted that due to non-cooperation by the respondents Sri Samar Roy, the access to the premises was not available to the authorized personnel of CESC Limited.On behalf of CESC Limited, it is submitted that due to such resistance from the said Sri Samar Roy and his associates the new electric connection could not be provided to complainant. Unless necessary police assistance is given, the officials of CESC Limited cannot give connection to the Complainant from the existing service main at the premises in question, though the CESC Limited is ready and willing to give the connection to the Complainant.In the instant case, the settled possession of the Complainant is prima facie established, which entitles the Complainant to get a new electric connection.
Hence, the complaint petition deserves to be allowed with a direction on the OPs to provide new electricity connection to the complainant. However, it is made clear that such new connection shall not, by itself, create any special equity or right in favour of the complainant and/or confer any such right which the Complainant otherwise does not have in law. The Civil court shall decide all issues pending before it independently in accordance with law, without being influenced by any of the observations made herein.
Hence, CC/136/2021 is allowed on contest.
ORDERED
OPs are directed to supply new domesticelectricity connection in the name of the complainant in respect of the suit premises within 60 days from this date or order I/D, to return the quotation money and security deposit received by the OPs alongwith a payment of compensation of Rs.25,000/- to the complainant with a simple interest @ 10% per annum from the date of receiving MASB bill amount till full realisation thereof.
OPs are further directed to pay Rs.10,000/- as litigation cost to the complainant within the aforesaid period of 60 days to the complainant.
The Officer-in-Charge, MaheshtolaPolice Station, is directed to ensure that there is no breach of peace in and around the premises in question when OPs approach for implementing this order effectively.
The complainant is at liberty to put the order into execution if the orders are not complied with within 60 days from the date of this order.
Let a copy of this order be supplied to the parties concerned free of cost.
Let a copy of this order Also be sent to IC/OC, Maheshtola Police Station, South 24 Parganas for information and necessary action.
That the final order will be available in the following website:www.confonet.nic.in.
