G.R. Bhattacharjee, J. -
(1.)The five writ petitioners in this writ petition pray for direction upon the respondent Calcutta Electric Supply Corporation Ltd. (C.E.S.C. for short) for supplying electricity to them and also for separate meters. The writ petitioners claim to be tenants in respect of different portions of premises No. 168B, Cotton Street, Calcutta under the respondent No. 2. It is the contention of the C.B.S.C. inter alia that the metres in the said premises stood in the name of the landlord and as the landlord made huge default in payment of electricity dues the line was disconnected and the writ petitioners as tenants / occupants of the said premises who enjoyed the benefit of electric connection to the said premises through the meter standing in the name of the landlord are not entitled to separate connection and meter in respect of their separate portions unless such arrear dues are liquidated. The matter however went upto the Supreme Court and the Supreme Court remanded the matter by order dated 21st November, 1994 with certain directions upon the trial court. It was directed inter alia that the trial court would reconsider the prayer of each of the writ petitioners for a suitable direction to the C.B.S.C. to supply electricity to the tenants alleged to be in occupation as an interim measure on such terms as are considered appropriate and reasonable subject to final outcome of the suit. Subsequently, the writ petitioner nos. 1, 3 and 5 filed application dated the 19th January, 1995 inter alia praying for separate electric connection and also for interim orders. Affidavit -in -opposition also has been affirmed on behalf of the C.E.S.C. The landlord respondent however preferred not to appear before this court in spite of service of notice. However, on the submission of the learned Advocates of all the parties appearing before me and as desired by them the application of the writ petitioners 1, 3 and 5 for interim order and the writ petition itself have been taken up together for simultaneous disposal as common questions are involved therein. The contentions of the respondent C.B.S.C. are summarised hereafter. In 1977 the landlord of the said premises filed a title suit being Title Suit No. 1778 of 1977 in the City Civil Court at Calcutta against the C.B.S.C. for declaration that the C.B.S.C. is not entitled to charge commercial rate for current consumed at the said premises and obtained an exparte ad interim order of injunction restraining the C.E.S.C. from disconnecting the electric line in the said premises. Thereafter the said suit was dismissed for default several times and lastly it was dismissed in 1988 and a Misc. case for restoration of the said suit was filed and also an application under Sec. 151 C.P.C. for an ad interim order of injunction which was rejected and then the landlord filed a revisional application in the High Court. The revisional application was disposed of on 2.3.93 by directing the landlord to deposit Rs. 1 lakh in the trial court and to go on paying the current electricity dues and in default the C.E.S.C. was given the liberty to proceed as per law. However, initially on the said revisional application the landlord obtained an exparte ad interim order of injunction and taking advantage of that interim order of injunction he did not pay the dues for consumption of electricity in the said premises to the tune of Rs. 10,23,382.73 which has been arrived at after adjustment of security deposit. Apart from the said amount delayed payment surcharge is also payable for the said amount. As the consumer failed to make payment of the current dues, the electricity supply at the said premises was disconnected by the C.E.S.C. on 26.7.93 pursuant to the leave granted to it in the order of the court dated 2.3.93. On 11.8.93 the landlord moved a writ application praying inter alia for a direction to restore the supply but no interim order was passed for restoration Then on 29.9.93 the present writ petitioner nos. 1, 3, 4 and 5 applied to the C.E.S.C. for new supply and earlier on 2.8.93 the writ petitioner No. 2 applied to the C.E.S.C. for such supply. Subsequently, the writ petitioners filed the present writ petition. I have recorded above the contentions raised by the C.E.S.C. in this case,. It is also the contention of the C.E.S.C. that some of the writ petitioners are not tenants or authorised occupants in the concerned premises.
(2.)My attention has been drawn by the learned Advocate appearing for the writ petitioners to the order of the Supreme Court dated the 21st November, 1994 where it has been recorded that the learned counsel appearing for the landlord stated before the Supreme Court that the respondent nos. 1 and 5. P.C. Ranga and Kamal Singh Bhutoria are admitted by the landlord to be in occupation of the premises occupied by them as his tenants. It may be mentioned here that said P.C. and Kamal Singh Bhutoria are the writ petitioner nos. 1 and 5 respectively in this writ petition. The learned Advocate for the petitioners further attracted my attention to a letter dated 6.11.93 issued on behalf of the landlord to the C.E.S.C. annexure -G to the affidavit -in -opposition affirmed by Shri Mihir Kr. Bose on 23.2.95 on behalf of the C.E.S.C. It is stated on behalf of the landlord at page 3 of the said letter that Deokishan Acharya (writ petitioner No. 2) and Asoke Ranga (writ petitioner no. 4) are not bona fide tenants in the premises and they are unauthorised persons in the building but Bimala Devi Ranga (writ petitioner No. 3) ' and Kamal Singh Bhutoria (writ petitioner No. 5) are bona fide tenants but they are defaulters in payment of rents including their shares of electricity charges. In view of the statements made in this letter as well as in view of the submission made on behalf of the landlord before the Supreme Court it is submitted, by the learned Advocate for the writ petitioners that at least the writ petitioner nos. 1, 3 and 5 are admitted by the landlord to be bona fide tenants in respect of the portions occupied by them in the concerned premises and as such there is no difficulty in their having separate electric connections and meters from the C.B.S.C. it is also the case of the writ petitioners that they all made payment of their shares of the electricity charges to the landlord and as such they are not responsible in any way for non -payment of the electricity charges by the landlord to the C.E.S.C. But the landlord, however, as would appear from the said letter dated 6.11.93 annexure G to the affidavit -in -opposition affirmed by Shri Mihir Kr. Bose did not admit the payment of electricity charges to him by the writ petitioners. In fact in the said letter the landlord has also stated the respective amounts which are payable by the writ petitioner nos. 2, 3, 4 and 5. It is the contention of the C.E.S.C. on the other hand that unless the arrear electricity dues payable by the consumer are paid to the C.E.S.C. the writ petitioners, even if they ate bona fide tenants or authorised occupants in the concerned premises, are not entitled to get separate electric connection or meter in their names inasmuch as they enjoyed the benefit of supply of electricity earlier in the same premises for which the consumer is a defaulter to the C.E.S.C. in respect of the charges payable for such consumption of electricity.
(3.)The point that falls for consideration is whether the writ petitioners or any or some of them are entitled to separate electric connection and meter in respect of the respective portions occupied by them when the dues in respect of the electric charges are outstanding and for which the C.E.S.C. disconnected the supply to the consumer in the said premises. It is submitted by the learned Advocate for the petitioners that the C.E.S.C. being a licensee in terms of the definition contained in Sec. 2(h) of the Indian Electricity Adt, 1910, is bound to supply electricity to the petitioners in view of Sec. 22 of the said Act. Sec. 22 purports to impose an obligation on licensee to supply energy and inter alia provides that where energy is supplied by a licensee, every person within the area of supply shall, except in so far as is otherwise provided by the terms and conditions of the license, be entitled, on application, to a supply on the same terms as those on which any other person in the same area is entitled in similar circumstances to a corresponding supply. The said Sec. 22 contains a proviso which is however not much relevant in this context. It is argued on behalf of the petitioners that in view of the Sec. 22 the C.E.S.C. has an obligation to provide electric connection with separate meter to each of the petitioners for which the petitioners have applied, without insisting on payment of the outstanding" dues of the landlord consumer in respect of charges for electricity already consumed. In my opinion however the matter is not that simple and Sec. 22 by itself cannot champion the cause of the petitioners by excluding the operation of the other relevant statutory provisions which may be attracted in such circumstances. In this connection we may first take notice of the definition of the term 'consumer' as contained Sec. 2(c) of the Indian Electricity Act, 1910. There consumer has been defined to mean any person who is supplied with energy by a licensee - - and includes any person whose premises are for the time being connected for the purpose of receiving energy with the works of a licensee It is therefore evident that the term 'consumer' not only means the person to whom energy is supplied by the licensee, but also includes any person whose premises are for the time being connected with the works of a licensee, for the purpose of receiving energy. The premises receiving energy from the licensee also therefore has a contextual relevance in determining whether a particular person is also included with the meaning of the term 'consumer' by reason of his nexus with the premises to which energy is supplied by the licensee, - - be it a nexus as owner or as occupier. It is evident that the words 'includes any person whose premises are for the time being connected for the purpose of receiving energy with the works of a licensee' obviously refer to the owner of the premises and may also refer to an occupier of the premises in appropriate cases. There is also no doubt that an occupier of the premises even if he is not the owner of the same may also get supply of electric energy in his name from the licensee and may thereby become a consumer. This position becomes clear by a reference to the provisions contained in Sec. 12. Sub -section (1) of Sec. 12 authorises the licensee to do certain acts, such as, laying down and placing of electric supply lines and other works, repairing, alternating or removing the same and doing all other acts necessary for the due supply of energy, etc. Sub -section (2) of Sec. 12 however necessitates inter alia the consent of the owner or occupier concerned, as the case may be, to laying down or placing any electric supply line, or other work in, through or against any building, or on, over or under any land not dedicated to public use. Sub -section (6) of Sec. 12 however clarifies that in Sec. 12 'occupier of any building or land means a person in lawful occupation of that building or land. In other words, a lawful occupier may obtain electric connection in his name from the licensee without requiring the consent of the owner for the purpose where the owner is a person different from the lawful occupier, but a person in unlawful occupation of a building or land cannot obtain electric connection in the premises under his occupation on the basis of his own consent. Since a lawful occupier can now obtain electric connection in the premises occupied by him on the basis of his own consent and application without requiring or obtaining the consent of the owner for the purpose, a lawful occupier to whom electric energy is supplied in the premises occupied by him becomes a consumer within the meaning of the term used in the Indian Electricity Act. But even a person not in lawful occupation of a premises may be a consumer within the meaning of the term in Sec. 2(c) if he is supplied with energy, by the licensee.