Bimal Mondal v. The Superintending Engineer

IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION [ CIRCUIT BENCH AT PORT BLAIR ] ** WPA/208/2021 Bimal Mondal

...Petitioner

Vs.

The Superintending Engineer ... Respondents Mr. Tapan Kumar Das, Advocate ... for the petitioner Mr. Krishna Rao, Advocate ... for the respondents September 10, 2021 [SR] Item No.8 The petitioner claims occupation of a piece of Government revenue land bearing Survey No. 883/1/P, measuring an area 150 sq.mtrs situated at Junglighat Village, under Port Blair Tehsil, South Andaman District and is in settled possession of the same residing therein along with his family by constructing a dwelling house on the said land since 2002.

It is submitted that till date the writ petitioner is in continuous un-interrupted physical possession of the Government land. The petitioner claims that he has tendered an application on 23.03.2021 to the Assistant Engineer-I, Electricity Department, Port Blair, being the respondent No. 3 seeking for electric meter connection to his house by furnishing requisite affidavit and documents by complying with the legal formalities. Despite that the respondent authority has not paid heed to his application and has not provided electric connection in the house of the petitioner. Accordingly, the petitioner is seeking direction upon the respondent authority in particularly, upon the respondent No. 3 to provide electricity based on the representation submitted by the petitioner dated 20.03.2021.

In order to fortify his claim for electricity supply to his house premises, Mr.

Das, learned counsel for the petitioner has placed reliance to a Division Bench decision of the Hon'ble Court in case of Abhimanyu Mazumder -vs- Superintending Engineer and another reported in 2014(4) ALL MR (Journal) 22 to contend that two questions were referred to the larger Bench of the Hon'ble Court for decision, as to "whether the unauthorized occupiers, encroachers of any premises and squatters of any premises are legally entitled to file an application under Section 43 of the Electricity Act, 2003 claiming status as 'occupier' and thereby may seek supply of electricity in the premises as constructed on encroaching the land; and, whether under the Works of Licensees Rules, 2006, the Distribution Licensee lawfully can provide electricity supply line in due discharge of their duties and what is meaning of word 'occupier' in said Act on reflection of Rule 2006?

And the second question referred to was "whether right to have 'electricity' under the ambit of Article 21 of the Constitution of India by including such right within the derived right 'right to be available to trespasser and unauthorized occupier; and, whether right to shelter a derived/emanated fundamental right could he extended to the unauthorized occupants, squatters, encroachers of any land or premises to provide as a consequential relief to supply electricity, on breach of statutory provisions under the Electricity Act. 2003 and the Works of Licenses Rules, 2006 as well as on public interest?

"16. Since all the lands in these Islands belong to the Union of India; the latter is not required to file a civil suit for eviction of a trespasser and the trespassers can be evicted by taking recourse to the Regulation of 1966. However, so long such a trespasser in settled possession is not so evicted, he should be entitled to get electricity with the aid of Section 43 of the Electricity Act on compliance of the terms of supply as provided under law. It is needless to mention that the enjoyment of such electricity will not confer any right or equity in favour of the trespasser in occupation to defeat the title of the lawful owner."

Learned Counsel appearing for the petitioner further invites my attention to the Annexure-P3 to submit that the water connection was also granted by the Port Blair Municipal Council water supply sub-division and the petitioner's occupation can very well be inferred. The petitioner has made a representation before the respondent authorities for domestic electricity connection on 23rd March, 2021 before Assistant Engineer-I, Electricity Department,

Phoniex Bay to supply of electrical energy to his house premises occupied by the petitioner on encroachment of a piece of government revenue land measuring an area of 150 sq.mtrs situated at Junglighat village.

Mr. Krishna Rao, learned Counsel for the respondent submits that the respondent authority had enquired from the Tehsildar, Port Blair and a report was sought for to identify the Survey No. 883/1/P situated at Junglighat, Port Blair Tehsil and the Tehsildar by his report dated 12th August, 2021 has submitted that as per the revenue record Survey No. 883/1/P is not government revenue land. This Court is of the view that since, the water supply connection has been given to the petitioner's house in occupation, identity of the house premises is not in question. This is also not open for the electricity department to question the legality as to the occupation of the premises by the person.

It is enough to check the occupation of the petitioner in the subject house and is not open for electricity department to see whether the land belongs to revenue department or the land is under the encroachment of the petitioner. Since the petitioner has claimed to be in settled possession of the encroached land having constructed a house, the petitioner would be entitled to get electricity connection in terms of the verdict of the Calcutta High Court Full Bench decision in case of Abhimanyu Mazumdar (supra). However, he would not be entitled to claim any equity in respect of the land on account of having electricity connection.

It is well settled principle of law that water and electricity are integral part of right to life as enshrined in Article 21 of the Constitution of India and section 42 of Electricity Act, 2003 provisioned as statutory duty on the distribution licensee to provide electricity connection to the applicant within one month on receipt of application seeking electricity connection. So in my view the denial to render electric supply would tantamount to infringement of right to life in violation of the tenet of Article 21 of the Constitution of India.

Ergo, electricity being an essential service to a mankind, the petitioner must be provided with electricity connection upon compliance of legal formalities and thus, the respondents authority are directed to comply with the request for supply of electricity as made before them through installation of electrical meter on due payment of requisite charges within a period of four weeks from the date of communication of this order.

Accordingly, the petition being WPA/208/2021 and the connected application are accordingly disposed of., however, there shall be no order as to costs.

Parties are directed to act on the basis of the server copy of the order.

( Shivakant Prasad, J. )