S.C. CASE NO. : FA/09/130



DATE OF FILING : 23.03.2009 DATE OF FINAL ORDER: 06.11.2009


APPELLANTS



1. Mr. Sripati Pal

2. Mr. Pashupati Pal

Both are residents of Vill. & P.O. Deulpur

P.S. Panchla, Dist. Howrah.



RESPONDENTS



1. Mrs. Chhabi Sil

W/o of Mr. Gopal Sil

Resident of Vill. & P.O. Deulpur

P.S. Panchla

Dist. Howrah.

2. Station Manager

Panchla Group Electric Supply

W.B.S.E.D. Co. Ltd.

P.O. Panchla

Dist. Howrah.



BEFORE : MEMBER : MR. P.K.CHATTOPADHYAY

MEMBER : MR. S.COARI



FOR THE PETITIONER / APPELLANT : Mr. S.Basu, Ld. Advocate

FOR THE RESPONDENT / O.P.S.: Mr. A.Bag, Ld. Advocate


: O R D E R :


MR. P.K.CHATTOPADHYAY, LD. MEMBER

This Appeal arose out of judgement and order dt. 26.11.08 in Howrah District Consumer Forum, where the complainants, Mrs. Chhabi Sil’s complaint related to deficiency of service on part of the Ops namely, (1) Station Manager, Panchla Group Electric Supply, WBSEDCL, (2) Mr. Pashupati Pal and (3) Mr. Sripati Pal, in regard to inability of the OP No. 1 in providing new electric connection to her residence subsequent to appropriate application being made and requisite fees deposited.

The OP No. 1 namely WBSEDCL’s submission was that after receipt of application and deposit of requisite fees and subsequent to inspection of the site they took all appropriate steps in providing electric connection, but could not carry out the same on account of local obstruction, duly conveyed to the complainant towards resolution.

The OP Nos. 2 & 3 in course of their participation pointed out that the complainant was trying to have power connection through their territory, which in any case they could not allow and also there was a valid injunction prevailing on the said territory, which the complainant wanted to flout for her personal convenience.

The Ld. Forum below after hearing respective sides passed its judgement and order as under :-

“That there is no deficiency on the part of the o.p. no. 1, W.B.S.E.D.C.L. in the matter of installation of the proposed electric connection.

It has been settled in presence of the parties that the petitioner is at liberty to take the proposed electric connection in her occupied portion of the land and the overhead line shall be drawn along the common passage situated at the western side of the property of o.p.s no. 2 & 3. The overhead line shall not be drawn over the existing pucca and catcha structure of o.ps. no. 2 & 3 on the aforesaid plot no. 6860.

That the complainant shall prepare a sketch map showing the common passage over which the overhead electric line shall be drawn and shall submit the same with the o.p. no. 1 for execution of the proposed work.

That the complainant shall also make all necessary arrangement for free access of the men of the o.p.no. 1 for execution of the proposed work.

O.p. no. 1 shall also execute the work as early as possible on compliance of the formalities by the complainant as indicated.

This order shall be subject to the result of the T.S. 128 of 2008 pending before the 1st Court of the Civil Judge, Jr. Division, Howrah, in respect of the dispute.”



Being aggrieved and dissatisfied with the impugned judgement and order Mr. Sripati Pal and Mr. Pashupati Pal, OP Nos. 2 & 3 in the complaint case, filed this Appeal stating inter alia that the impugned judgement and order was not lawful to the extent that on one hand the Ld. Forum found that there was no deficiency of service on part of the OP No. 1 and on the other, had provided certain directions to different Ops including the OP No. 1 and had also mentioned that there was some settlement between the parties in regard to the given electric connection, which was neither a fact nor was there any evidence as to such, when, in fact, there was not settlement at all. Further contending that the complainant/Respondent No. 1 could not in any way violate the injunction issued in the Title Suit, the Appellant prayed for setting aside of the impugned judgement and order and for passing of such further order(s) as deemed fit.

The Respondent No. 1, Mrs. Chhabi Sil, entered appearance and reiterated her version of events and contended that new electric connection be provided forthwith since she was suffering a lot and that her application was found in order by the WBSEDCL, only when after due inspection of the site they asked for deposit of fees, which were deposited and then they came and tried to fix the electric connection, but could not do so because of obstruction by others.

WBSEDCL, the Respondent No. 2, entered appearance and stated inter alia that they had gone to the site, post inspection and deposit of fees, for providing electric connection, but could not do so on the face of local obstruction and conveyed to the Respondent No. 1 that unless they were allowed to work they could not help the Respondent No. 1 and thus they had no deficiency in service over the matter.
DISCUSSION

A. We have carefully gone through the records and have also examined the evidence as was available in the LCR. Admittedly, the Respondent No. 1/Complainant had made an application for new electric connection at her residence, but records did not reveal as to exact declaration on her right of passage in regard to the said application though it is evident that the given application post inspection was found apparently satisfactory to the service provider namely the Respondent No. 2 and post deposit of requisite fees the service provider arranged for providing electric connection in terms of the said application, which, however, was not successful on account of obstruction by others at the site. The Appellants have filed evidence establishing injunction order from a Civil Court in regard to certain portion of land and have also filed a sketch map, which was not authenticated trying to show that the proposed new electric connection of Respondent No. 1 was sought to be carried out through land occupied and inhabited by them, which obviously the Respondent No. 1 could not do. But the evidence of such is at best sketchy and incomplete and on the face of such, we are unable to accept this evidence. On the other hand, neither the Respondent No. 1 nor the Respondent No. 2 has come up with established evidence that their stance was founded on hard probity. In terms of Electricity Act, 2003, as amended in 2007 and applicable provisions thereunder, it has been clearly stated that the responsibility of the applicant, Respondent No. 1 here, was to provide right of passage for new electric connection and it is not an obligation on part of the service provider namely WBSEDCL and, therefore, we partly agree with the finding of the Ld. Forum below that WBSEDCL was in no way wholly deficient in service in regard to the complainant/Respondent No. 1, though the asking question remains that was it satisfied with the right of way and then dithered on the face of obstruction? However, electricity being essential in civilized existence today, the Ld. Forum below quite sensibly has discussed about a settlement between the parties in regard to taking the electricity connection on which, however, not a scrap of paper is available in records, nor was there any evidence.

B. Ld. Forum below in its judgement and order has also issued certain directions like preparation of a sketch map showing common passage and for arranging free access and has also observed that subject to result of T.S. 128 of 2008 pending before the 1st Court of the Civil Judge, Junior Division, Howrah, the impugned judgement and order was to be carried out. We do not find the same to be sustainable as it is a hypothetical order.

C. Therefore, on the preceding position we hold that the matter should be remanded back to the Ld. Forum below for having fresh evidence and hearing with particular stress on way-leave of the complainant (Respondent No. 1) for purposes of the electricity connection applied for and the legality and viability thereof. The Appeal is accordingly liable to be allowed in part on contest without cost.


O R D E R

Hence, it is ordered that the Appeal stands allowed in part on contest without cost. The impugned judgement and order be set aside. The case be remanded back to the Ld. Forum below with a direction to take fresh evidence and conduct hearing on way-leave of the complainant and on adjudging the legality and viability thereof and to dispose of the case as expeditiously as possible, preferably within a period of three months.