SRI CHANDU KHAMARUversusSMT. NAYAN MALIK & ORS.

                         [2011] 11 S.C.R. 112


A                     SRI CHANDU KHAMARU
                                   v.
                     SMT. NAYAN MALIK & ORS.
                   (Civil Appeal No. 7572 of 2011)
                        SEPTEMBER 2, 2011
B
          [R.V. RAVEENDRAN AND A.K. PATNAIK, JJ.]

        ELECTRICITY ACT, 2003:

c        s. 67(2) rlw ss. 42(1) and 43(1) - Duty of distribution
    licensee to supply electricity on request - Supply of electricity
    to the house of appellant disconnected on the ground that the
    passage through which the electric line was taken belonged
    to respondents - Claim of respondents disputed by the
    appellant - Held: The appellant has a statutory right to apply
0
    for and obtain supply of electricity from the distribution
    licensee and the latter has a corresponding statutory
    obligation to supply electricity to the appellant - Distribution
    licensee directed to find out an a/cernate way to supply
E   electricity to the house of appellant; otherwise, to follow the
    provisions of sub-s. (2) of s. 67 for carrying out the work for
    supply of electricity to the house of the appellant.

       The appellant, the owner of a house situated on Dag
  No. 408, after unsuccessfully approaching the distribution
F licensee for supply of electricity to his house, filed a writ
  petition before the High Court. In compliance of the
  directions in the writ petition the distribution licensee
  gave an electric connection and started supplying
  electricity to the house of the appellant. Respondent nos.
G 1 to 3, claiming themselves to be the owners of the
  houses situated on Dag nos. 406, 407 and 409, filed a writ
  petition stating that the distribution licensee had provided
  electricity to the house of the appellant by an el,ectric line
  taken through a passage located on Dag nos . 406, 407
H                                 112
    CHANDU KHAMARU v. NAVAN MALIK & ORS.              113


and 409 which belonged to them and not to the appellant; A
and prayed for a writ prohibiting the distribution licensee
to give electric connection to the appellant through the
passage situated on their land. The writ petition was
allowed; and the appeal filed by the appellant was
dismissed by the Division Bench of the High Court B
holding that Civil Suit No. 83 of 2004 between the parties
in respect of the passage in question was pending
between the parties and until the said dispute was
resolved, the distribution licensee could not supply
electricity to the house of the appellant.                  C

    Allowing the appeal, the Court

     HELD: 1.1. The provisions of sub-s. (1) of s. 42 and
sub-s. (1) of s. 43 of the Electricity Act, 2003 make it amply
clear that a distribution licensee has a statutory duty to D
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 E
for and obtain such electric supply from the distribution
licensee. The Act 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. [s.67] [para 7-8] [117-8- F
E]

    1.2. In the instant case, respondent Nos. 1 to 3 do not
object to the supply of electricity by the distribution
licensee to the appellant as it will be clear from the G
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 respondent Nos.1, 2 and 3 is that 1-1
    114     SUPREME COURT REPORTS             [2011] 11 S.C.R.


A   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
B   not a private passage of respondent Nos. 1 to 3 but is a
    common passage and, therefore, an electric line can be
    dr~wn 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), or in any
C   other suit, but pending resolution of this dispute between
    the parties, the appellant cannot be denied supply of
    electricity
           . to his house. [para....
                                     10) [120-G-H; 121-A-C]

       1.3. The order of the Single Judge as well as the
  impugned order of the Division Bench of the High Court
D are, therefore, set aside and the writ· petition of
  respondent nos.1 to 3 is disposed of 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 .ttie appellant, other
E than the disputed passage in Dag Nos.406, 407 •~nd 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-s. (2) of s.67 of the Electricity Act, 2003
  for carrying out the work for supply of electricity to the
F house of the appellant. [para 11) [121-D-G]

        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    7572 of 2011.

        From the Judgment & Order dated 9.5.2008 of the High
G   Court of Calcutta in MAT No. 514 of 2006.            ·

         Sudhir Kumar Gupta, Anurag Pandey, Manish Gupta for
    the Appellant.

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   CHANDU KHAMARU v. NAYAN MALIK & ORS.                       115


     Pijush K. Roy, Sunil Kumar Verma Mihir, Sanjeev Kumar           A
(for Kahitan & Co.) for the Respondent.

    The Judgment of the Court was delivered by
     A. K. PATNAIK, J. 1. Delay condoned in filing rejoinder
affidavit. Leave granted.                                            B
    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     c
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 being
supplied with electricity by the Calcutta Electricity Board Supply   D
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
                                                                     E
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               F
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           G
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 taken through a
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    116       SUPREME COURT REPORTS                 (2011] 11 S.C.R.


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.
B 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
c 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
D 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 Division Bench held
E 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
F   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
G         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,
H
     CHANDU KHAMARU v. NAYAN MALIK & ORS.                       117
               [A.K. PATNAIK, J.]
     give supply of electricity to such premises, within one           A
     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
1                                                                      B
  his area of supply and to supply electricity in accordance with
  the provisions contained in 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              C
  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       D
  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            E
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.-
                                                                       F
     (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
     without the area of supply, without that area carry out works     G
     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
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    118        SUPREME COURT REPORTS                 [2011] 11 S.C.R.


A         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
B         other works;
          (e) to repair, alter or remove the same;
          (f) to do all other acts necessary for transmission or supply
          of electricity.
c         (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
D                 be, shall be required for carrying out works;
                  (b) the authority which m:ly grant permission in the
                  circumstances where the owner or occupier objects
                  to the carrying out of works;
E                 (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 referred to in clause (c);
F
                  (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
G                 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
H
CHANDU KHAMARU v. NAYAN MALIK & ORS.                      119
          [A.K. PATNAIK, J.]
      sewers, pipes or other electric lines or works;             A
      (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       B
      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                 C
      and private property by such works;
      (I) the procedure for undertaking works which are
      not reparable by the Appropriate Government,
      licensee or local authority;
                                                                  D
      (m) the manner of deposit of amount required for
      restoration of any railways, tramways, waterways,
      etc;
      (n) the manner of restoration of property affected by
      such works and maintenance thereof;                         E
      (o) the procedure for deposit of compensation
      payable by the licensee and furnishing of security;
      and
      (p) such other matters as are incidental or                 F
      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                 G
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
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    120       SUPREME COURT REPORTS                [2011] 11 S.C.R.


A         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
B         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,
c 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 may lay down and
  place electric lines, electrical plant and other works. Sub-
D section (2) of Section 67 of the Electricity Act, 2003 further
  provides that the appropriate Gow•rnment 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,
E 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
F 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
G 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 the distribution licensee to
  the appellant as it will be clear from the averments made in writ
H
       CHANDU KHAMARU v. NAYAN MALIK & ORS.                     121
                 [A.K. PATNAIK, J.]
petition No.345 of 2005 filed by them before the High Court but        A
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         B
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        c
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 res~lution
of this dispute between the parties, the appellant cannot be
denied supply of electricity to his house.                             D
     11. We, therefore, set aside the order of the learned Single
Judge as well as the impugned order of the Division Bench 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        E
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        F
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.    G
The appeal is allowed to the extent indicated in this judgment.
No costs.

R.P.                                             Appeal allowed.

                                                                       H