Dipankar Datta, J.
1. Whether a licence can be directed by a Writ of Mandamus to supply electricity to a prospective consumer thereof without he being in lawful occupation of the premises at which such supply is sought, is the question which falls for determination before this Court in this proceeding.
2. Divergent views have been expressed by Hon'ble Division Benches and learned Single Judges of this Court while answering similar questions which arose for determination before Their Lordships.
3. That a lawful occupier is alone entitled to electricity and a trespasser has no such entitlement in terms of Section 12(6) of the Electricity Act, 1910 (hereafter the old Act) has been laid down in the following decisions:
a) 1989 (1) CLT 187 Associate Indian Mechanical Put. Ltd. and Anr. v. C.E.S.C. Ltd. and Ors.;
b) 1995 (1) CHN 533 Surajbali Pandey & Co. v. CESC Ltd. and Ors.; and
c) 1999 (1) CLJ 567 Aloke Sana v. Rina Ghosh and Ors. (DB).
4. Recent decisions of this Court on interpretation of Section 43 of the Electricity Act, 2003 (hereafter the new Act) holding that trespassers arc not entitled to supply of electricity and that the word 'occupier' must be construed as lawful occupier of the premises at which supply is sought has been laid down in the following decisions:
a) : AIR2006Cal73 Samsul Haque Mollick v. C.E.S.C Ltd. and Ors.,
b) : (2007)1CALLT219(HC) Anjali Matia and Ors. v. W.B.S.E.B. and Ors. (DB);
c) : AIR2007Cal108 Amarendra Singh v. C.E.S.C. Ltd. and Ors.;
d) : AIR2008Cal19 Gyanendra Nath Shil v. Superintending Engineer and Ors.; and
e) : AIR2008Cal29 Debadas Biswas v. West Bengal State Electricity Board and Ors.
In Anjali Metia (supra), the Hon'ble Division Bench has held in paragraph 8 as follows:
We are not, therefore, in a position to agree and uphold the judgment of the learned Single Judge. The learned Single Judge was bound to discuss and decide as to whether the petitioner could be in law termed to be an occupier within the meaning of Section 43. A person cannot be allowed to take advantage of his own wrong. Therefore, the person who is a trespasser cannot by continuing his trespass claim the character of an occupier, and as such claim the rightful supply of electricity under Section 43 of the Electricity Act. However, this auction was not even addressed by the learned Judge. As if all this is not sufficient, the learned Judge should also have noted that the title suit filed by the petitioner for declaration of his l/5th right in the property is dismissed and the appeal against the same is not pending. It is only a condonation of delay application which seems to have been pending before the Appellate Court and for the reasons known only to the parties and the Court, that application still remain undecided in spite of elapse of four years of its filing. Therefore, at least prima facie the petitioner did not produce any material either before the Board or before the learned Judge justifying his lawful occupation of the premises.
6. In Gyanendra Nath Shil (supra), the learned Judge in paragraph 7 has held as follows:
In my mew, 'occupier' of any premises means must be a lawful occupier on the date seeking electric connection, for a trespasser cannot get statutory amenities or facilities. Therefore, there cannot be any difference between the expression 'lawful occupier' as mentioned in the earlier Act of 1910 and word 'occupier' in the present Act of 2003. When authority concerned earlier prescribed lawful occupier, there is no reason to think in view of change of law, trespasser is to be given lawful right.
7. The decision of the learned Single Judge in Amarendra Singh (supra) has been overruled by the Hon'ble Division Bench by judgment dated 10.1.08 reported in : AIR2008Cal66 Amarendra Singh v. C.E.S.C. Ltd. and Ors. It has been held therein that:
2. ****** In view of the provisions of Section 43 of the Electricity Act, 2003, the appellant herein being the occupier is entitled to enjoy the electricity at the occupied portion of the premises in question.
3. The legality and/or validity of the occupation of the premises in question by the appellant can be decided in the Civil Court but that will not prevent the said appellant from enjoying the benefit of electric connection.
8. However, the decision in Anjali Metia (supra) appears not to have been noted.
9. The Division Bench decisions in Anjali Metia (supra) and Amarendra Singh (supra) and the decision in Samsul Haque Mollick (supra), inter alia, have been noted by a learned Single Judge of this Court in Moloy Kumar Acharya v. Chairman-cum-Managing Director, W.B. State Electricity Distribution Co. Ltd. reported in : AIR2008Cal47 . The meaning of the word 'occupier' in Black's Law Dictionary and Stroud's Judicial Dictionary was traced and it was held in paragraph 19 as follows:
********Therefore unless and until there is an adjudication in any of the proceedings referred to above or in any of the proceedings pending inter se between the parties holding that the petitioner is an unlawful occupant or is a trespasser on the property, his status, till then, is that of an 'Occupier' under Section 43 of the Electricity Act, 2003. *******
10. At this juncture the decision of a learned Single Judge of this Court reported in 1999 (2) CHN 573 Soumitra Bannerjee v. CESC Limited, deserves attention. While considering what 'lawful occupier' in Section 12(6) of the old Act would connote, it has been held as follows:
19. If orders arc to be passed against the private respondents for the purpose of enabling public respondents to do their duty then a finding has to be reached whether the writ petitioners are lawful occupiers within the meaning of Sub-section (6) of Section 12 of the Indian Electricity Act, 1910.
20. If that expression is construed in a strict manner and the meaning ascribed to that expression is that the occupier is lawful, by any standards and without any doubt or dispute being there, in regard to the lawful nature of occupation, then and in that event the writ petition must fail. This is simply because no fewer than two civil suits are pending as between the warring parties here.
21. If, however, the expression lawful occupier is given a dilute meaning, in the sense that it is held as including all occupiers who are not in obviously unlawful occupation, although there might be doubts and disputes which have to be resolved later, then and in that event the writ petitioners must succeed.
22. They are not criminals; when they came into possession in the early '90s there was no force applied by them; they have come in through the promoters who were inducted by the owner/landlord; the owner/landlord being in the same premises, were aware that they arc coming into occupations at least as alleged by the writ petitioners they have made payments to the promoter for getting their flats, although lately complaints were being filed in the police station the disputes between the petitioners and the respondent No. 4 arc purely of a civil nature which might go this way or that and the Writ Court is not the proper Court for making any pronouncement in that respect.
23. This situation is of common occurrence. When civil disputes arc pending between two parties it is often the case that one party wants electricity connection and another party, may be the seller, may be the landlord, wishes to stop giving of such connection. In these circumstances, in my opinion, it is most inappropriate to allow any party to utilize the non-giving of essential supplies to the opposite party as a means or tool of putting extraneous pressure in the matter of resolution of civil disputes. Because of this reason I would interpret the words 'lawful occupier' in Sub-section (6) in a reasonably dilute manner. All occupiers who are peace loving, who have an arguable case which might succeed in the end are entitled to get electricity connection notwithstanding opposition by the opponents. In case they are thrown out they will be thrown out of duly electrified premises and that is not a matter which is likely to affect the substance of the civil dispute or litigation amongst the parties.
11. This Court has been unable to trace any decision of the Apex Court on the point. In view thereof, this Court is theoretically bound by each of the decisions taken by the different benches of this Court on the point in issue. What would be the proper course of action for a Court faced with binding but conflicting decisions of higher Courts of equal strength came up for consideration before a Special Bench of this Court in Bholanath Karmakar and Ors. v. Madan Mohan Karmakar and Ors. reported in 1987(2) CLJ 332. Hon'ble Anandamoy Bhattacharjee, J. (as His Lordship then was) speaking for the Bench ruled that in such a case the course to be adopted by the Court is, firstly, to try to reconcile and to explain those contrary decisions by assuming, as far as possible, that they applied to different sets of circumstances. But when such contrary decisions of co-ordinate benches cannot be reconciled or explained, it was held, by relying on the decision of the Apex Court in Atma Ram v. State of Punjab reported in AIR 1959 SC 519, that the subordinate Court would have to prefer one to the other and not necessarily obliged, as a matter of course, to follow either the former or the later in point of time, but to follow that one, which according to it, is better in point of law.
12. Having due regard to the above and in view of apparent inconsistency in the views expressed by different benches which cannot be reconciled, this Court would venture to decide the issue before it on the basis of its own interpretation and understanding of the provisions contained in the new Act which governs the issue and to follow that view of the Division Bench as well as the views taken by learned Single Judges which, according to it, is better in point of law.
13. Provisions of the new Act which are considered relevant are quoted below:
Section 43(1) - 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:
Provided that whore such supply requires extension of distribution mains, or commissioning of new sub-stations, the distribution licensee shall supply the electricity to such premises immediately after such extension or commissioning or within such period as may be specified by the Appropriate Commission;
Provided further....
Section 2(70) Supply, in relation to electricity, means the sale of electricity to a licensee or consumer.
Section 2(15) 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 the 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.
Section 2(4) Person shall include any company or body corporate or association or body of individuals, whether incorporated or not, or artificial juridical person.
14. Two broad principles/rules of interpretation are well-accepted, literal and exploring the legislative intent. Ordinarily, the plain grammatical meaning of the legislation in question is discerned and applied. When the plain grammatical meaning leads to absurdity or ambiguity or renders the legislation unintelligible or a literal meaning could not have been intended by the legislature, a departure from literal interpretation may be made and the Courts may be justified in looking for what the legislature intended. However, in the pursuit of understanding a particular legal provision, amendment of law in the garb of interpretation is impermissible. The function of the Court is to find out what is legal and not what is right. Gap in the law has to be remedied by amending the Act and not by filling the gap by a judicial verdict. There may be exceptional situations where unless the gap is filled by judicial verdict the legislation would be rendered unintelligible or absurd and it is only in those exceptional situations that the Court may fill in such gap.
15. Keeping these well-settled principles of law in mind, this Court would proceed to examine the point in issue.
16. The word occupier in Section 43(1) of the new Act has not been defined therein. In its decision in Industrial Suppliers (P) Ltd. v. Union of India reported in : [1981]1SCR375 , the Apex Court has held that in the legal sense an occupier is a person in actual possession.
17. Applying the literal rule, there appears to be no doubt that an occupier of a premises meaning thereby a person in possession thereof, in terms of Section 43 of the new Act, is entitled to supply of electricity on request being made to the licensee and once electricity is supplied and he bears the charges therefor, he becomes a consumer of electricity. The duty of the licensee is to supply electricity, i.e. sell electricity. However, duty and/or obligation of the licensee to ascertain whether the prospective consumer is in lawful occupation or not is not discerned in the statutory provisions.
18. In some of the decisions referred to supra, the Courts have interpreted the word 'occupier' in Section 43 of the new Act to mean 'a lawful occupier'.
19. There can be no doubt that by so interpreting the word 'occupier' in Section 43, the Courts have assumed existence of a word therein. Section 12(6) of the old Act provided that occupier of a building or land would mean one in lawful occupation thereof for the purposes mentioned in Sub-section (2) thereof. The decisions in Associate Indian (supra), Surajbali Pandey (supra) and Aloke Saha (supra) have proceeded on the basis that provisions contained in Section 12 of the old Act is a bar for supplying electricity to a prospective consumer unless he proves lawful occupation of the premises at which supply is intended. Without dilating on the point of applicability of Section 12 of the old Act to an application for new connection on the face of Section 22 thereof, it may be noted that in repealing the old Act and introducing the new Act the legislature has consciously omitted the word 'lawful' while denoting the class of persons entitled to supply of electricity. What the legislature omitted, obviously consciously, could not have been road into the statute unless of course reading of the statute without such addition would render it absurd or unintelligible. Section 43(1) of the new Act, read as it is, does not produce absurd or unintelligible results.
20. That apart, one cannot lose sight of the fact that a person intending to enjoy electricity though alleged to be a trespasser by the owner of the premises cannot be evicted by the owner except by taking recourse to law. If possession of such trespasser is protected till such time his eviction is ordered according to law, it defies reason as to why an embargo should be created by judicial verdict only in respect of obtaining supply of electricity. None can dispute that electricity is an essential service without which it is difficult to survive. Right to live a meaningful life and with dignity is one of the basic postulates of Article 21 of the Constitution. The right guaranteed under Article 21 is the fundamental of all fundamental rights enshrined in Chapter III of the Constitution. One cannot be deprived of such right only on the basis of an unestablished accusation that he is a trespasser which, as held in Soumitra Banerjee (supra), is commonly used as a tool or means of. putting extraneous pressure for resolving civil disputes. Supply of electricity to such alleged trespasser by a licensee would neither prejudice in any manner the owner's right to have an order of eviction passed against him nor would it make any difference so far as status of the alleged trespasser is concerned. The licensee's duty is to sell electricity provided formalities are complied with. There is no justification to hold that lawful occupation of a portion of the premises is a pre-condition for obtaining supply. If the right of an owner to object to electricity being supplied to an occupier of his premises by the licensee is to be conceded on the ground that the occupier has illegally or unauthorisedly taken possession, that would necessarily lead to clothing the licensee with the right to adjudicate the occupier's right to enjoy the property which this Court is inclined to hold is not the legislative intention. The laws of the country provide for adjudication of such issue by an appropriate forum. If there is any flaw in the statute or the phrasing is defective and the need to mend it arises, it is only the legislature that can amend it. It is the function of the Courts to expound and not to legislate is settled law. Keeping in view the scheme of the new Act, reading the word lawful' before the word 'occupier' would amount to legislation by Court which is impermissible.
21. Accordingly, this Court is minded to hold that the decision of the Division Bench in Amarendra Singh (supra) and the decisions of the learned Single Judges in Soumitra Bannerjee (supra) and Moloy Kumar Acharya (supra) are better in point of law and this Court would prefer the views expressed therein to the views expressed by the Hon'ble Division Bench in Anjali Metia (supra) and the decisions of the learned Single Judges in Samsul Haque Mullick (supra), Debadas Biswas (supra) and Gyanendra Nath Shil (supra). It is further held that an applicant for supply of electricity if found to be in actual possession of any portion of a premises at which supply has been prayed is entitled to such supply without any duty being cast on the licensee to ascertain whether such possession is legal or illegal; however, supply would obviously be without prejudice to the owner's right to have an order of eviction against the occupier in a duty constituted proceeding.
22. In the present case, the petitioner has claimed to be an occupier of the premises in question and has sought to substantiate his occupation by annexing telephone bill and voter's identity card.
23. Mr. Kundu, learned Counsel for the private respondent has not disputed occupation of a portion of the premises by the petitioner but contended that such occupation is unlawful. However, no proceeding for eviction of the petitioner at his instance is pending.
24. In view of the foregoing discussion, this Court holds that the petitioner is entitled to supply of electricity. CESC Ltd. is directed to take effective steps for supplying electricity to the petitioner as early as possible but positively within two weeks from date of compliance of all formalities by him. In the event, any resistance is offered by the private respondent, it shall be open to CESC Ltd. to seek the assistance of the Officer-in-Charge of the local Police Station who shall be bound to provide assistance to secure compliance of this order.
25. Supply of electricity to the petitioner in terms of this order, however, shall not create any additional right in favour of the petitioner if an action to evict him is initiated by the private respondent according to law.
26. The writ petition stands allowed. However, parties shall bear their own costs.
27. 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.