1. This is an application under Article 226 of the Constitution for an appropriate Writ directing the opposite party No. 1 to supply electricity at premises No. 14, Kalitala Lane, Earanagar, in the district of 24-Parganas.
2. The case of the petitioner is that he is a lease-holder for more than 12 years paying as annual rent for the land situate at 14 Kalitala Lane, Baranagar, in the district of 24-Parganas under the Zamindars who are opposite parties Nos. 2, 3 and 4. It is alleged that the petitioner has erected a pucca structure of his own on the land and he has become a permanent leaseholder. It appears that the petitioner applied to the opposite party No. 1 for supply of electricity at the said premises. An inspector of the opposite party No. 1 came to the petitioner's said premises for inspection. It is alleged that the opposite parties Nos. 2, 3 and 4 came to know about this application of the petitioner to the opposite party No. 1 for the supply of electricity to the said premises and they demanded a sum of Rs. 100/- by way of blackmailing the petitioner but as the petitioner refused to pay any sum the said opposite parties out of grudge wrote a letter dated 30-10-1950 to the opposite party No. 1 stating that there was a dispute subsisting in respect of the lands in question.
It is further alleged that the opposite parties Nos. 2, 3 and 4 failed to prove any subsisting dispute before the opposite party No. 1 who ignored the objection put forward on behalf of the said opposite parties and on 11-12-1950 the opposite party No. 1 sent a bill to the petitioner for payment of Rs. 93-14-0 for the said electric installation. Thereafter on 5-1-1951 the petitioner paid the sum of Rs. 93-14-0 and the opposite party No. 1 thereupon installed the electric line up to the said premises and fitted the electric meter box at the said premises but on 26-2-1951 the said opposite parties Nos. 2, 3 and 4 wrote another letter to the opposite party No. 1 and requested the opposite party No. 1 to take necessary action in view of what was stated in their previous letter of 30-11-1950.
On 7-3-1951 the Acting District Engineer of the Northern District of the Calcutta Electric Supply Corporation Ltd. wrote a letter to the petitioner stating that the Supply Corporation was unable to proceed further in the matter until an amicable settlement amongst the petitioner and the opposite parties Nos. 2, 3 and 4 was arrived at. The petitioner thereupon wrote another letter to the opposite party No. 1 on 21-6-1951 stating that there was no dispute with regard to the land' in question and requested the opposite party No. 1 to complete the work at the said premises and supply the electrical energy to the said premises but on 28-6-1951 the Assistant District Engineer wrote back to the pleader of the petitioner to the effect that the Corporation regretted that they had nothing further to add to the letter of 7-3-1951. Upon that the petitioner moved this Court and obtained a Rule Nisi on 5-12-1951.
3. The opposite parties Nos. 2, 3 and 4 have filed a counter-affidavit affirmed by the opposite party No. 4. It is stated in this affidavit that the petitioner is in occupation of the land in question for less than 12 years as a monthly ejectable tenant at will and the rent is payable monthly and not annually per kist as alleged and there are certain other co-sharers in respect of the lands in question who have not been made parties to this application. It is further stated that the tenancy had been terminated by giving six months' notice in writing on 28-8-1950 asking the petitioner to vacate the land by 14-4-1951. It is further stated in this affidavit that the said opposite parties Nos. 2, 3 and 4, their co-sharers are the owners in respect of this land and their consent is necessary under Section 12(2), Indian Electricity Act for the supply of such electric energy.'
It is also pointed out in this affidavit that the petitioner had signed the white form of Calcutta Electric Supply Corporation falsely descrihing himself as the owner of the land in question. On, behalf of the opposite party No. 1, one David Pugh, the Deputy Commercial Manager, has affirmed an affidavit and it is stated that as the petitioner had represented himself to be the owner and had also signed the white form as the owner, the opposite party No. 1 was misled into thinking that the petitioner was the owner and on that basis they proceeded with the work of electric installation but as soon as it was brought to their notice by the opposite parties Nos. 2, 3 and 4 that there was dispute as to the ownership, they did not take any further steps in the matter.
A copy Of the letter of 30-10-1950 is annexed tothis affidavit of Mr. Pugh and it appears therefrom that the contention of the opposite partiesNos. 2, 3 and 4 is that the petitioner is a thikamonthly tenant under the said opposite partiesand without their written consent no installationcould be made on the premises in question. Thepetitioner has filed an affidavit in reply and tothis affidavit are annexed certain rent receiptsgranted by the opposite parties Nos. 2, 3 and 4.It appears from the rent receipts that the petitioner is described as a thika temporary tenant.This fact is of course disputed by the learnedAdvocate for the petitioner before me at thehearing. .
4. Mr. Woopendra Nath Neogi, the learned Advocate for the petitioner, has placed reliance on Section 22, Electricity Act, and he submits that according to this section it is incumbent upon the opposite party No. 1 to supply the electrical energy to the premises in question. It may be pointed out that this section states 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. Mr. Neogi has contended that inasmuch as the other consumers in the locality placed under similar circumstances are getting supply of electrical energy from the opposite party No. 1, the petitioner is also entitled to the supply of energy on the same terms and conditions. It may be noted however that Section 12(2) of the Act provides that without the consent of the owner and occupier of a particular premises, no electric-supply line or work can be laid down or placed through or against any building or on, over or under any land which is not dedicated to the public use.
Mr. Taluqdar appearing on behalf of the opposite party No. 1 has pointed out that under Section 21(2) certain conditions have been laid down governing the matter of supply of electrical energy to particular areas and' it is pointed out by him that paragraph l(b) in the Rate Book of 1940 is one of the conditions of supplying electrical energy which is as follows:
'Where the consumer is not the owner of the building for which or any part of which a service connection is applied for and/or of the land on which the building is situate, the concurrence and permission in writing of the owner or owners of the building and of the land on, under or over which the supply line is to be laid or placed, for the laying of a supply-line and the erection of the necessary apparatus for the service connection on or within the land and/or the building, must be obtained by the Consumer'
and then there is a proviso appended to thisparagraph which is not material for the purposeof this case.
5. It is thus clear from the said section and the conditions of supply referred to above that the consent of the owner is necessary before an electric Installation can be made on the premises in respect of which supply is asked for. So the question as to who is the owner in the present case 15 a material question which has to be decided before the opposite party No. 1 can be directed to supply electrical energy to the premises in question. As I have pointed out before, there is a dispute as to the title of the petitioner and the rent receipts also show that he is described as a thika temporary tenant whereas the claim of the petitioner is that he has acquired mourasi mokorari title to the land in question and for all practical purposes he is the owner of the premises whereas the opposite parties Nos. 2, 3 and 4 on the other hand claim ownership to the land in question.
It has been repeatedly held by this Court that a question of title cannot be tried in Mandamus Proceedings. See the case of -- 'Kesho Prasad Singh v. Slacke', 38 Cal 553 (A). Such question should properly form the subject-matter of a suit and if the petitioner is so inclined he can have recourse to such a suit for the purpose of determination as to the question of title. Until that is decided, the opposite party No. 1 is really helpless in the matter. In the circumstances the petitioner cannot get any relief in this application.
6. in the result this petition fails and the Rule is discharged.
7. The petitioner will pay to the oppositeparty No. I the costs of this application. Thehearing fee is assessed at three gold mohurs.