Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 7572 OF 2011
(Arising out of S.L.P. (C) No. 15332 of 2008)
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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
