ORDER
Dipankar Datta, J.
1. Whether a licensee would be justified in disconnecting supply of electricity to a premises based on a request of the person whose name is recorded as a consumer thereof in its books and records without putting the person in occupation of the said premises and is actually consuming electricity on payment of charges therefor, is the question which falls for a decision on this writ petition.
2. The predecessor-in-interest of the added respondents, Sri Asit Ranjan Bose was the lessee of a plot of land bearing No. DB 65, Salt Lake, Kolkata 700 064, the lease having been granted by the State of West Bengal sometime in December, 1973. He had entered into a development agreement dated 15th December, 1985 with the petitioner whereby he was entrusted to develop the plot of land by constructing a multi-storied building thereon. In terms thereof, on completion of construction Sri Bose was entitled to a flat measuring 1700 sq. ft. on any one floor while the petitioner had the authority to sell the remaining flats on the other floors to intending purchasers. The petitioner in due course of time completed construction of the building (hereafter the premises in question) and entered into possession thereof. However, owing to differences and disputes between the petitioner and Sri Bose, possession of any agreed portion of the premises in question could not be obtained by him and the premises in question in its entirety is still being occupied by the petitioner.
3. It appears from the application for intervention filed by the added respondents that application for supply of electricity to the premises in question was made by their predecessor-in-interest allegedly on the instigation of the petitioner. Pursuant thereto, a consumer number being C551476 was allotted to the applicant and the licensee commenced supply of electricity which is being enjoyed by the petitioner, since 1994, on payment of necessary charges by him.
4. Sri Bose, the recorded consumer, died on 13th August, 2001. It is the case of the added respondents that after his death, they tried their best to persuade the petitioner to hand over possession in terms of the agreement but he did not pay any heed. Ultimately one of the added respondents made a request to the licensee to disconnect supply. Acting on the said request, the licensee disconnected supply of electricity to a portion of the premises in question on 17th January, 2008.
5. Questioning the legality and/or propriety of the action of the licensee, the petitioner invoked the writ jurisdiction of this Court by filing the present petition praying, inter alia, the following relief:
a) A writ of and/or in the nature of Mandamus do issue commanding the respondent authorities concerned, each one of them, their men, agents, servants, subordinates and/or assigns to forbear from disconnecting the supply of electricity in the entire premises of the petitioner, without showing any reason, in any manner whatsoever;
b) A writ and/or in the nature of Mandamus do issue commanding the respondent authorities concerned, each one of them, their men, agents, servants, subordinates and/or assigns to forthwith reconnect the Meter No, KK028512, Consumer No. being C551476 of the said phase at the premises of the petitioner without any delay whatsoever;
c) A writ of and/or in the nature of Certiorari do issue directing the respondent authorities concerned, each one of them, their men, agents, servants, subordinates and/or assigns to forthwith transmit the entire records of the instant case framing the basis of purported disconnection of electricity of one phase of the premises of the petitioner Meter No. KK028512, Consumer No. being C551476, and all the records relating thereto before this Hon'ble Court and to certify them and on being so certified, quash the same so that conscionable justice may herein be administered;
6. Mr. Dutta, learned Counsel appearing for the petitioner submitted that in terms of the Indian Electricity Act, 1910 (hereafter the old Act), electricity had to be supplied to the person who applied for it whereas in terms of Section 43 of the Electricity Act, 2003 (hereafter the new Act), electricity is to be supplied on the application of the owner or occupier of the premises to such premises. According to him, the petitioner being an occupant of the premises in question and enjoying electricity since 1994 is thus a consumer of electricity. Inviting attention of the Court to the definition of 'consumer' as appearing in the new Act, it was contended that the expression consumer does not necessarily mean the recorded consumer but it would also include an occupant of a premises enjoying electricity. Having regard to the provisions of Section 185(2)(a) of the new Act, in the present case supply of electricity though effected in terms of the old Act must be deemed to have been given to a premises and not to any person. Hence only on the basis of a request of a recorded consumer supply cannot be disconnected without putting the actual consumer of electricity on notice and without assigning any reason. He accordingly prayed for a direction on the licensee not to disconnect further supply without putting the petitioner on notice and to restore supply to the portion that is in dark as a result of the impugned disconnection.
7. Per contra, it was submitted by Mr. Ghosh, learned Counsel appearing for the added respondents, that merely because the petitioner is residing in the said premises and enjoying electricity would not make him a consumer. There is no agreement between the petitioner and the licensee in respect of supply of electricity and in its absence no obligation is cast on the licensee to supply electricity to him. If the petitioner indulges in unauthorized use of electricity, it would be the added respondents who would be liable for consequences flowing from such unauthorized use of electricity since their predecessor-in-interest is the recorded consumer. In view thereof and particularly having regard to the provisions contained in Regulation 4.4.1 of the West Bengal Electricity Regulatory Commission (Electricity Supply Code) Regulations, 2007 (hereafter the said Regulations), the licensee did not act either illegally or unreasonably in proceeding to disconnect supply of electricity to the premises in question.
8. Mr. Roy Chowdhury, learned Counsel appearing for the licensee supported the action of disconnection by referring to Regulation 4.4.1 (supra). According to him, by disconnecting supply on the basis of request of the successors-in-interest of the recorded consumer (since deceased), it had neither acted illegally nor in an arbitrary manner. He, therefore, urged the Court to dismiss the writ petition.
9. This Court has heard the rival submissions. Since respective learned Counsel for the respondents have heavily relied on Regulation 4.4.1 of the said Regulations, it would be worthwhile to consider the same before proceeding to decide the issue involved herein. It provides as under:
4.4.1 DISCONNECTION ON REQUEST
The licensee shall disconnect the supply of energy to a consumer, if the latter makes such a request in writing, within two working days of making the written request. It shall be the duty of the consumer to clear all the outstanding payments payable by him to the licensee except the last bill for supply till the date of disconnection before making a request for such disconnection. The consumer shall collect the last bill from the licensee and make the payment. In default, the amount shall be adjusted by the licensee against his security deposit.
10. A bare reading of the aforesaid provision makes it clear that it is open to a consumer to make a request for disconnection of supply of electricity and subject to fulfillment of conditions, his request may be accepted by the licensee.
11. The term 'consumer' has not been defined in the said Regulations but in view of Regulation 2.2 thereof, it would have the same meaning assigned to it in the new Act. Definition of consumer in the new Act is as under:
consumer means any person who is supplied with electricity for his own use by a licensee or the Government or by any other person engaged in the business of supplying electricity to the public under this Act or any other law for he time being in force and includes any person whose premises are for the time being connected for the purpose of receiving electricity with the works of a licensee, the Government or such other person, as the case may be.
12. For understanding the meaning of the term 'consumer', one has to consider what 'supply' of electricity means. Supply has been defined in the new Act as:
supply, in relation to electricity, means the sale of electricity to a licensee or consumer.
13. Perusal of the aforesaid statutory provisions makes it abundantly clear that a person to whom electricity is sold by a licensee is a consumer. If the context so requires, the term consumer would also include the person whose premises for the time being is connected with works of a licensee for receiving electricity.
14. Attempt of Mr. Ghosh and Mr. Roy Chowdhury to rely on Regulation 4.4.1 of the said Regulations to support the impugned disconnection appears to be thoroughly misconceived. In the considered view of this Court, the petitioner is definitely a consumer in terms of the new Act. Occupation of the premises in question by the petitioner is undisputed. It is also undisputed that the petitioner is bearing charges for consumption of electricity and the added respondents have never been made liable in this regard. The licensee or the added respondents do not also dispute that supply of electricity to a portion of the premises in question was disconnected only on the request made by one of the added respondents. The licensee having realised charges for consumption of electricity by the petitioner from him and the added respondents not having been called upon to bear the charges for such consumption, it has to be held that the licensee acted illegally in disconnecting supply on the request of one of the added respondents. Since the petitioner is also a consumer in terms of the new Act but had not made any request for disconnection, the licensee without ascertaining the actual position as to who is in occupation of the premises where supply is being affected ought not to have disconnected supply. By such disconnection, the petitioner stands materially deprived and has been made to suffer civil consequences without being put on notice. If at all any action was necessary on the request made by or on behalf of the added respondents to disconnect supply, the petitioner ought to have been informed of the request for disconnection and heard and then only action, according to law, could have followed. The licensee in the present case has proceeded in clear violation of principles of natural justice and hence the impugned disconnection cannot be sustained.
15. The impugned action also offends provisions contained in the new Act. In terms thereof, disconnection without notice cannot be resorted to subject to exceptions. The present case is not covered by the exceptions and hence the impugned action has to be branded illegal.
The submission of Mr. Ghosh that in case of unauthorised use of electricity his clients would be liable has failed to impress this Court. Mr. Dutta is right in his submission that in case of theft or unauthorised use of electricity. It is the person actually engaging himself in such activities who would be liable for penal consequences, irrespective of whether he is the recorded consumer or not. Perusal of Section 127 of the new Act also makes it clear that the right of preferring appeal is not restricted to the recorded consumer but any person aggrieved by a final order made under Section 126 may approach the appellate authority. Similarly, Section 152 of the new Act enables compounding of offences at the instance of a consumer or person who committed or who is reasonably suspected of having committed an offence of theft of electricity punishable thereunder in the manner mentioned therein. The apprehension of Mr. Ghosh, therefore, is absolutely misplaced.
16. The submission of Mr. Dutta that under Section 43 of the new Act electricity is supplied not to a person but to the premises has also not impressed this Court. In terms thereof, supply of electricity can be effected in a premises only upon a request being made by the owner or occupier thereof who intends to receive electricity. When the statute provides that supply shall be given 'to such premises', it would mean that supply is to be given to the extent of the premises applied for by the applicant, be it the owner or the occupier. Be that as it may, this point is not relevant for the purpose of a decision on this petition.
17. However, for reasons aforesaid, this petition is entitled to succeed. The licensee is directed to restore supply of electricity which was disconnected on 17-1-08 within three weeks from date. It is also restrained from disconnecting supply to the other portions of the premises till such time an appropriate decision is taken on the request of the added respondents in accordance with law.
18. The writ petition stands allowed to the extent mentioned above. There shall be no order as to costs.
19. Urgent photostat certified copy of this order, if applied for, be furnished to the applicant within 4 days from date of putting in requisites therefor.
Later:
20. Prayer for stay of operation of the order has been made by learned Counsel for the respondents. This Court finds no reason to grant the prayer. It stands refused.