1. In support of this appeal Mr. Dhar formulated two points before us, each one of which was a new point.
2. The facts are simple and may be stated briefly. It appears that the appellant is a tenant in respect of a small plot of land owned by respondents 2 to 4. His status as a tenant was a matter of some dispute before the court below, but in this Court it was admitted by his learned Counsel that he was a thika tenant. On 28-10-1950, the appellant made an application to the Calcutta Electric Supply Corporation Ltd., for the supply of electrical energy to his house after the necessary installation works had been executed. On the 30th October following the landlords of the land on which the appellant's house stands lodged an objection with the Electric Supply Corporation. That objection was apparently disregarded, for, on 11th December following, the Corporation sent the appellant a bill for. Rs. 93-14-0 on account of the expenses to be incurred in connection with the installation. On 5-1-1951, the bill was paid.
It is stated that thereafter the Electric Supply Corporation took the overhead cable line upto the exterior wall of the appellant's building and fixed it to the wall by means of a bracket and also installed a metre box. No supply of electrical energy however, was yet given. On 26-2-1951, the landlords lodged a second objection, calling attention to their first, in which it had been stated that there was a dispute between them and the appellant with respect to his occupation of the land. On 7-3-1951, the Electric Supply Corporation informed the appellant that they were unable to proceed further with the installation of electric connection in his premises unless and until an amicable settlement was arrived at between his landlords and himself. Thereafter, the appellant moved this Court under Article 226 of the Constitution for a writ in the nature of mandamus upon the Electric Supply Corporation, directing them 'to supply electricity and electrical energy' at his premises.
3. One other fact requires to be stated. The Electric Supply Corporation have framed certainRules or laid down certain conditions in exercise of the powers conferred on them by Section 21(2), Indian Electricity Act. One such condition is that
'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 buildings, must be obtained by the consumer.'
It is said that in view of that condition the appellant was presented with two forms, one intended to be filled up by the occupier and another by the owner and that he signed and filled up both. As has been seen, the appellant is not the owner of the land on which his house is situated. The case made by the Electric Supply Corporation before the learned Judge below was that they had been misled by the appellant having signed the owner's form which caused them to think that he was the owner of the land as well.
4. Before the learned trial Judge, no question appears to have been raised with regard to the validity or otherwise of the condition to which I have just referred. All that was argued was that the appellant was entitled to have a supply of electrical energy on the same terms and conditions as other residents of the same locality. It was in connection with that contention that the condition came to be referred to and it was pointed out that the terms and conditions on which the appellant's neighbours were receiving electrical energy, included this particular condition and since this condition was not fulfilled in his case, he was not in the same position as his neighbours.
5. It appears to have been contended next before the learned trial Judge that when the appellant signed the owner's form, he signed it, not merely as the owner of the building, but also as the owner of the land and that he had rightly done so. That argument was based upon the claim that the appellant had acquired a 'maurashi mokorari' title to the land in question and, therefore, he had become the owner for all practical purposes. The landlords disputed this claim of the appellant and the learned Judge naturally held that questions of title could not be tried in proceedings for a mandamus. As the first point could not be substantiated and the second point could not be gone into, the learned Judge discharged the Rule.
6. In support of the present appeal, Mr. Dhar wished to contend, in the first place, that the condition requiring the consent of the owner of land besides that of the occupier was 'ultra vires' of Section 12(2) of the Act and, therefore, the Electric Supply Corporation had no right in law to refuse supply to the appellant on the ground that the consent o the owner of the land had not been obtained. It was contended, in the second place, that, in any view the consent of the owner of the land was not required in the present case, inasmuch as the supply was to be made by overhead cables and in order to reach the exterior wall of the appellant's house which stood on the edge of the owner's land,it was not necessary to go over or under any part of the land itself.
7 I am entirely unable to see why the condition should be held to be 'ultra vires' of Section 12(2) of the Act.
That section provides in clear language thatnothing contained in Sub-section (1) of the section shouldbe
'deemed to authorise or empower a licensee, without the consent of the local authority or of the owner and occupier concerned, as the case may be, to lay down or place any electric supply-line or other work in, through or against any building, or on, over or under any land not dedicated to public use.'
I need not read the rest of the section for thepurposes of the present case.
8. It is quite true that the word 'owner' has not been defined in the Act, but Section 12(2) speaks of 'the owner concerned' and since it also speaks of laying down, taking or placing electric supply-lines or other work through or against any 'building', or on, over or under any 'land', it is perfectly clear that the 'owner' contemplated by the section is the owner concerned with the building as well as the owner concerned with the land. Where the two owners are different, different owners are contemplated by the section. Since the section itself contemplates the consent of the owner of the land and the condition to which Mr. Dhar objects contemplates no more, I am unable to see how it can be said that the condition is in excess of the statute and is therefore 'ultra vires'.
9. The second point sought to be urged by Mr. Dhar raised a question of fact. What he said was that the exterior wall of the appellant's building stood at the farthest extremity of the land on which the building was situate and, therefore, although in a proper case the consent of the owner of the land might be necessary, no such consent was required in the present case, because cables could be taken to the wall without taking it over any part of the landlords' land. As I have already pointed out, this question was not raised before the learned trial Judge and whether or not there is any land beyond the exterior wall has not been investigated. If there be even an inch of land beyond the exterior wall to which the cable has been fixed, Mr. Dhar'a argument would fail at once apart from any other infirmity it may have.
10. Neither of the points sought to be argued by Mr. Dhar was sought to be raised in the Court below. The first one has no substance and the second one is not open to the appellant.
11. For the reasons given above, this appeal is dismissed with costs -- the hearing-fee being assessed at three gold mohurs, to be divided between the two sets of respondents, namely, respondent No. 1 and respondents 2 to 4.
12. I agree.