Calcutta High CourtWPA/194/2024dismissed

Santosh v. The Superintending Engineer And ANR

2024-03-21Hon'Ble Justice Surya Prakash Kesarwani25 pages

AFR

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] *** WPA/194/2024 Santosh Vs.

The Superintending Engineer and Another Mr. Tulsi Lall ... for the respondents March 21, 2024 [SR] Item No.3 1.

Case called out. None appeared for the petitioner. On 19.03.2024 learned counsel, Ms. Dhana Lakshmi had appeared on behalf of the petitioner and on her request the case was put up for 20.03.2024.

The petitioner has also not complied with the orders dated 19.03.2024 and 20.03.2024 which are reproduced below. "19.03.2024 Heard Ms. Dhana Lakshmi, learned counsel for the petitioner and Shri Tulsi Lall, learned counsel for the respondents.

Learned counsel for the petitioner prays for a day's time to bring on record the proof of settlement of the petitioner over the Government land in question for obtaining electricity connection. She admits that in the writ petition there is no discloser on fact of the period of alleged occupancy of the petitioner over the Government land in question measuring about 300 Sq. mtrs.

As prayed by learned counsel for the petitioner, put up tomorrow."

20.03.2024 Case called out.

None appears for the petitioner for pres the writ petition.

Shri Tulsi Lall, learned counsel for the respondents is present.

The petitioner has neither complied with the order dated 19.03.2024 nor the learned counsel for the petitioner is present in Court.

In view of the aforesaid, put up tomorrow peremptorily. In the meantime, the order dated 19.03.2024 be complied with by the petitioner."

Since the petitioner has not complied with the aforesaid two orders and is avoiding the appearance although the case is listed today peremptorily, therefore, this Court finds it appropriate to decide the present writ petition on the basis of pleadings made in the writ petition and the assistance of Shri Tulsi Lall, learned counsel for the respondents. 4.

This writ petition has been filed praying for the following relief(s):- "A) A writ in the nature of Mandamus directing the respondent authorities to provide domestic electric connection forthwith to the above said House premises of the petitioner standing on Survey No.302/41, area 300 sq.mtrs., situated at Tushnabad Village, under Ferrargunj Tehsil,Port Blair.

B) Issue a writ in the nature of Mandamus commanding the respondent authorities to act in accordance with the law.

C) A writ in the nature of Certiorari directing the authorities concerned to certify and transmit the entire records/rules pertaining to the instant cause before this Hon'ble Court so that conscionable justice may be done by setting aside and/or quashing the same.

D) Rules in terms of the prayer (A) to (C) above. E) Costs incidental to this application.

F) Such other or further order or orders and/or direction and/or directions be passed as this Hon'ble Court may deem fit and proper."

The pleadings made by the petitioner in the writ petition are reproduced below:- "1.

The petitioner is the citizen of India, Petitioner is permanent resident of Tushnabad Village, Ferrargunj Tehsil, South Andaman District.

That since and prior to the year 1990 your petitioner's father occupied a piece of government Revenue land bearing Survey No.

302/41 area 300 square meters, situated at Tushnabad Village, Ferrargunj Tehsil, and the petitioner constructed a residential house and residing along with his family members on the said piece of land.

Copy of the Aadhaar card of the petitioner is annexed hereto and marked with Letter-P/1 3.

That the petitioner states that the members of the House are made to struggle hard to study due to absence of the electricity in the house. Though the press not was issued by the respondent No. 1 in the year 2003. That the said policy is still in force and as such the electricity departments liable to provide the electric connection to the House of the petitioner. 4.

That it is further submitted that the Hon'ble Larger Bench of this Hon'ble Court had settled the preposition of law that electricity is a basic amenity of living for which a person cannot be deprived and the authority has to assess only whether the applicant is in occupation of the premises where the supply is sought and the licensee has no authority to adjudicate upon the title of the applicant to the land in question.

Leave may be granted to produce the copy of the said order & Judgments passed by the Hon'ble Larger Bench of this Hon'ble Court at the time of hearing.

That the petitioner made requests to provide electricity with respondent No.

and lastly submitted application dated 03/02/2024 along with the necessary documents to the respondent No. 2, requesting to provide domestic electric connection to the house of the petitioner. But till date the electricity connection to the house of the petitioner is not provided.

Copy of the said application dated 03/02/2024 is annexed hereto and marked with Letter - P/2

10.

Your petitioner submits that the said action of the authorities is bad in law and illegal and being aggrieved by and dissatisfied with the action and non-action of the Respondent Authorities, your petitioner has no other alternative, efficacious legal remedy but to move the instant Application under Article 226 of the Constitution of India on the following amongst other."

The pleadings made by the petitioner runs in 6 paragraphs but after paragraphs No. 5 the next paragraph has been numbered as paragraph No.10 instead of paragraph No. 6. 7.

The petitioner has filed along with the writ petition a copy of his an online application No. 20249 dated 03.02.2024 for new electricity connection in which against the column "ownership of building/plot where connection is required", the petitioner has mentioned "encroached".

I have carefully considered the submissions of the learned counsel for the respondents, perused the pleadings made in the writ petition including its annexures and the Full Bench judgment of this Court in the case of Abhimanyu Mazumdar vs Superintending Engineer and another, AIR 2011 CAL 64 (Full Bench).

Whether the petitioner can be said to be in settled possession of the Government land in question. 9.

As per pleadings in the writ petition, the petitioner has setup the case that his father had occupied a piece of government revenue land bearing survey No. 302/1 area 300 sq. meter, situated at Tushnabad village, Ferrargunj Tehsill and the petitioner, born on 14.01.1997; has constructed a residential house in which he is residing with

his family members. He has pleaded that in view of the Larger Bench judgment of this Court in Abhimanyu Mazumdar (supra), new electricity connection should be granted by the respondent authorities to the petitioner for the house constructed by him by encroaching over the Government land as he is in settled possession. In his application form (Annexure P-1) the petitioner has mentioned the nature of the ownership /occupation as "encroached".

The petitioner has filed photocopy of a photograph of a temporary tin shed reflecting recently cut stems of plants /trees adjacent to it. According to the petitioner, it is that 300 Sq. meters land which was encroached by the petitioner's father where the petitioner has raised the aforesaid temporary construction.

10.

No proof of the encroachment by the father of the petitioner has been filed by the petitioner along with the writ petition. Even despite the orders dated 19.03.2024, no evidence of settled possession over the land in question, could be filed by the petitioner.

11.

In Bharat Singh vs. State of Haryana, AIR 1988 SC 2181 (para -13), Hon'ble Supreme Court held as under:- "13. As has been already noticed, although the point as to profiteering by the State was pleaded in the writ petitions before the High Court as an abstract point of law, there was no reference to any material in support thereof nor was the point argued at the hearing of the writ petitions. Before us also, no particulars and no facts have been given in the special leave petitions or in the writ petitions or in any affidavit, but the point has been sought to be substantiated at the time of hearing by referring to certain facts stated in the said application by HSIDC. In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which

must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter, affidavit, as the case may be, the court will not entertain the point. In this context, it will not be out of place to point out that in this regard there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter-affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. So, the point that has been raised before us by the appellants is not entertainable. But, in spite of that, we have entertained it to show that it is devoid of any merit."

(Emphasis supplied) 12.

Applying the law laid down by Hon'ble Supreme Court in the case of Bharat Singh (supra), the pleadings of the petitioner that his father encroached over the 300 Sq. meters land in question and the petitioner is in settled possession over it, cannot be entertained as the petitioner has not filed any evidence in support of his averments.

13.

Apart from above, as per photostat copy of his alleged Aadhaar card filed along with the writ petition the date of birth of the petitioner is 14.01.1997. As per facts noted in para (9) above, it prima facie appears that the petitioner is attempting to encroach over the government land in question. Whether Full Bench Judgement in Abhimanyu Mazumdar's case presently holds the field.

14.

Learned counsel for the respondents submits that the Full Bench judgment in the case of Abhimanyu Mazumdar (supra), heavily relied by the petitioner has no relevance on facts of the present case as well as in view of the Electricity

Supply Code Regulations, 2018 subsequently enacted under Section 181 read with Section 50 of the Electricity Act, 2003 (Act No. 36 of 2003) which now holds the field. He also placed before this Court a notification dated 11.09.2019 issued by the Joint Electricity Regulatory Commission (For the State of Goa and Union Territories) titled as "Consumer Grievances Redressal Forum and Ombudsman Regulations, 2019" which provides a statutory forum for redressal of grievance /complaint.

15.

Perusal of the Full Bench judgment in the case of Abhimanyu Mazumdar (Supra) reveals that the Full Bench has interpreted the word "Occupier" in Section 43 of the Electricity Act, 2003 (hereinafter referred to as the Act No. 36 of 2003) with the help of the provisions of Works of Licensees Rules, 2006 enacted by the Central Government in exercise of powers conferred under Section 176 (2) (e) read with Section 67 (2) of the Act No. 36 of 2003. The aforesaid Rules, 2006 is not for grant of new electricity connection to consumers. 16.

The Full Bench in Abhimanyu Mazumdar's case (supra) has considered the un-amended Section 43 of the Act No. 36 of 2003 and held in paragraph 16 (AIR) that so long a trespasser in settled possession is not 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 the law.

17.

I find substance in the submission of learned counsel for the respondents with regard to the non-applicability of the Full

Bench judgment of this Court in the case of Abhimanyu Mazumdar (Supra), in view of the amended Section 43, Section 50 and Section 181 of the Act No. 36 of 2003 and the Electricity Supply Code Regulation, 2018 which now holds the field with regard to the grant of new electricity connection. Aforesaid provisions as amended/inserted/ substituted by Act No.26 of 2007 were not placed before the Full Bench. The Electricity Supply Code Regulation, 2018 which now holds the field has been enacted much subsequent to the aforesaid Full Bench judgment.

18.

The Works of Licensee of Rules, 2006 has no relevance with regard to new electricity connection as the said Rules, 2006 has been enacted in exercise of powers conferred under Section 176 (2) (e) read with Section 67 (2) of the Act No. 36 of 2003 which do not confer any power to frame Rules or Regulation for new electricity connection under Section 43(1). The application for grant of new electricity connection to a consumer has to be made by an applicant in accordance with the provisions of Electricity Supply Code Regulations, 2018 and on compliance of all conditions, a new electricity connection under Section 43 (1) of Act No. 36 of 2003 has to be granted by the distribution licensee.

Present Scheme for Grant of New Electricity Connection 19.

To consider the controversy as to whether the petitioner is entitled for new electricity connection as an encroacher over the government land, it would be appropriate to reproduce first

the relevant provisions of the Electricity Act, 2003 (Act No. 36 of 2003) and the Electricity Supply Code Regulation, 2018 as under :

"Electricity Act, 2003 Section 43 (Duty to supply on request): --- (1) 1*[Save as otherwise provided in this Act, 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 where 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 that in case of a village or hamlet or area wherein no provision for supply of electricity exists, the Appropriate Commission may extend the said period as it may consider necessary for electrification of such village or hamlet or area.

2**[Explanation.- For the purposes of this subsection, "application"

means the application complete in all respects in the appropriate form, as required by the distribution licensee, along with documents showing payment of necessary charges and other compliances.]

(2) It shall be the duty of every distribution licensee to provide, if required, electric plant or electric line for giving electric supply to the premises specified in sub-section (1): Provided that no person shall be entitled to demand, or to continue to receive, from a licensee a supply of electricity for any premises having a separate supply unless he has agreed with the licensee to pay to him such price as determined by the Appropriate Commission.

(3) If a distribution licensee fails to supply the electricity within the period specified in sub-section (1), he shall be liable to a penalty which may extend to one thousand rupees for each day of default.

1 *Subs. for "Every distribution" by Act 26 of 2007, S.8(i), (w.e.f.15-06-2007) 2 **Ins. by Act 26 of 2007. S.8(ii) (w.e.f.15-6-2007)

Section 50 (The Electricity Supply Code): The State Commission shall specify an electricity supply code to provide for recovery of electricity charges, intervals for billing of electricity charges, disconnection of supply of electricity for non-payment thereof, restoration of supply of electricity; measures for preventing tampering, distress or damage to electrical plant, or electrical line or meter, entry of distribution licensee or any person acting on his behalf for disconnecting supply and removing the meter; entry for replacing, altering or maintaining electric lines or electrical plants or meter and such other matters. Section 67. Provisions as to opening up of streets, railways, etc: - (1).....

(2) The Appropriate Government may, by rules made by it in this behalf, specify, - a) the cases and circumstances in which the consent in writing of the Appropriate Government, local authority, owner or occupier, as the case may be, shall be required for carrying out works;

b) the authority which may grant permission in the circumstances where the owner or occupier objects to the carrying out of works;

c) the nature and period of notice to be given by the licensee before carrying out works;

d) the procedure and manner of consideration of objections and suggestion received in accordance with the notice referred to in clause (c);

e) the determination and payment of compensation or rent to the persons affected by works under this section;

f) the repairs and works to be carried out when emergency exists;

g) the right of the owner or occupier to carry out certain works under this section and the payment of expenses therefor;

h) the procedure for carrying out other works near sewers, pipes or other electric lines or works; i) the procedure for alteration of the position of pipes, electric lines, electrical plant, telegraph lines, sewer lines, tunnels, drains, etc.;

j) the procedure for fencing, guarding, lighting and other safety measures relating to works on streets,

railways, tramways, sewers, drains or tunnels and immediate reinstatement thereof;

k) the avoidance of public nuisance, environmental damage and unnecessary damage to the public and private property by such works;

l) the procedure for undertaking works which are not repairable by the Appropriate Government, licensee or local authority;

m) the manner of deposit of amount required for restoration of any railways, tramways, waterways, etc.;

n) the manner of restoration of property affected by such works and maintenance thereof;

o) the procedure for deposit of compensation payable by the licensee and furnishing of security; and p) such other matters as are incidental or consequential to the construction and maintenance of works under this section.

(3) A licensee shall, in exercise of any of the powers conferred by or under this section and the rules made thereunder, cause as little damage, detriment and inconvenience as may be, and shall make full compensation for any damage, detriment or inconvenience caused by him or by any one employed by him.

(4) Where any difference or dispute [including amount of compensation under sub-section (3)] arises under this section, the matter shall be determined by the Appropriate Commission.

(5) The Appropriate Commission, while determining any difference or dispute arising under this section in addition to any compensation under sub-section (3), may impose a penalty not exceeding the amount of compensation payable under that sub-section.

Section 176. (Power of Central Government to make rules):- (1) .....

(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters:- (a) ....

(b) ....

(d) ....

(e) the works of licensees affecting the property of owner or occupier under sub-section (2) of section 67. (f) ....

Section 181. Powers of State Commissions to make regulations - (1) The State Commissions may, by notification, make regulations consistent with this Act and the rules generally to carry out the provisions of this Act.

(2) In particular and without prejudice to the generality of the power contained in sub-section (1), such regulations may provide for all or any of the following matters, namely: - a) period to be specified under the first proviso of section 14;

b) the form and the manner of application under sub-section (1) of section 15;

c) the manner and particulars of application for licence to be published under sub-section (2) of section 15;

d) the conditions of licence section 16;

e) the manner and particulars of notice under clause(a) of subsection (2) of section 18;

f) publication of the alterations or amendments to be made in the licence under clause (c) of subsection (2) of section 18; g) levy and collection of fees and charges from generating companies or licensees under subsection (3) of section 32; h) rates, charges and the term and conditions in respect of intervening transmission facilities under proviso to section 36;

i) payment of the transmission charges and a surcharge under subclause (ii) of clause(d) of sub-section (2) of section 39;

j) reduction [***] of surcharge and cross subsidies under second proviso to sub-clause (ii) of clause (d) of sub-section (2) of section 39;

k) manner and utilisation of payment and surcharge under the fourth proviso to subclause(ii) of clause (d) of sub-section (2) of section 39;

l) payment of the transmission charges and a surcharge under subclause(ii) of clause (c) of section 40;

m) reduction [***] of surcharge and cross subsidies under second proviso to sub-clause (ii) of clause (c) of section 40;

n) the manner of payment of surcharge under the fourth proviso to sub-clause (ii) of clause (c) of section 40;

o) proportion of revenues from other business to be utilised for reducing the transmission and wheeling charges under proviso to section 41; p) reduction [***] of surcharge and cross-subsidies under the third proviso to sub-section (2) of section 42;

q) payment of additional charges on charges of wheeling under subsection (4) of section 42;

r) guidelines under sub-section (5) of section 42; s) the time and manner for settlement of grievances under sub-section (7) of section 42;

t) the period to be specified by the State Commission for the purposes specified under sub-section (1) of section 43;

u) methods and principles by which charges for electricity shall be fixed under sub-section (2) of section 45;

v) reasonable security payable to the distribution licensee under sub-section (1) of section 47; w) payment of interest on security under subsection (4) of section 47; x) electricity supply code under section 50; y) the proportion of revenues from other business to be utilised for reducing wheeling charges under proviso to section 51;

z) duties of electricity trader under sub-section (2) of section 52;

za) standards of performance of a licensee or a class of licensees under sub-section (1) of section 57;

zb) the period within which information to be furnished by the licensee under sub-section (1) of section 59;

zc) the manner of reduction of cross-subsidies under clause (g) of section 61;

zd) the terms and conditions for the determination of tariff under section 61;

ze) details to be furnished by licensee or generating company under sub-section (2) of section 62;

zf) the methodologies and procedures for calculating the expected revenue from tariff and charges under sub-section (5) of section 62;

zg) the manner of making an application before the State Commission and the fee payable therefor under sub-section (1) of section 64;

zh) issue of tariff order with modifications or conditions under subsection(3) of section 64; zi) the manner by which development of market in power including trading specified under section 66;

zj) the powers and duties of the Secretary of the State Commission under sub-section (1) of section 91;

zk) the terms and conditions of service of the secretary, officers and other employees of the State Commission under sub-section (2) of section 91;

zl) rules of procedure for transaction of business under sub-section (1) of section 92;

zm) minimum information to be maintained by a licensee or the generating company and the manner of such information to be maintained under sub-section (8) of section 128;

zn) the manner of service and publication of notice under section 130;

zo) the form of preferring the appeal and the manner in which such form shall be verified and the fee for preferring the appeal under subsection (1) of section 127;

zp) any other matter which is to be, or may be, specified.

3) All regulations made by the State Commission under this Act shall be subject to the condition of previous publication.

Electricity Supply Code Regulations, 2018 Chapter -2 2.3 In this Supply Code, 2018, unless it is repugnant to the context:

(4) "Applicant" means an owner or occupier of any land/premises who files an application form with a Licensee for supply of electricity, increase or reduction in sanctioned load/contract demand, change in title, disconnection or restoration of supply or termination of agreement or any other services as specified in this Supply Code, 2018 as the case may be, in accordance with the provisions of the Act and the Code, Rules and Regulations made thereunder or other services;

(5) "Application" means an application form complete in all respects in the appropriate format, as specified in this Supply Code, 2018 along with documents showing payment of necessary charges and other compliances;

(6) "Application form" means an application form complete in all respects in the appropriate format, as required under this Supply Code, 2018;

52. "Occupier" means the owner or person in occupation of the premises where energy is used or proposed to be used.

Chapter-5 5.

PROCEDURE FOR RELEASE OF NEW CONNECTION AND MODIFICATION IN EXISTING CONNECTION Licensee's obligation to supply 5.1 The Licensee shall, on an application by the owner or occupier of any premises located in his area of supply, give supply of electricity to such premises within the time specified in this Supply Code, 2018, provided that

(1) The supply of power is technically feasible. Where it is found to be not feasible, the Licensee shall endeavour to improve the feasibility at the earliest and release connection as per this Supply Code, 2018.

(2) The applicant has observed the procedure specified in this Supply Code, 2018; and

(3) The applicant agrees to bear the cost of supply and services as specified in this Supply Code, 2018.

Procedure for Providing New Electricity Service Connection.

Application Form 5.24 The applicant shall apply for release of new connection in the following format as given in the Annexure to this Supply Code, 2018: Application form for release of new connection (Low Tension) - Annexure I Application form for release of new connection (High Tension/ Extra High Tension) - Annexure -II Format for declaration/undertaking to be signed at the time of receiving electricity supply - Annexure - III 5.27 Application forms for new connection must be accompanied with a photograph of the applicant, identity proof of the applicant, proof of applicant's ownership or occupancy over the premises for which new connection is being sought, proof of applicant's current address, and in specific cases, certain other documents as detailed in Regulation 5.29- 5.34 of this Supply Code, 2018 5.30 Any of the following documents shall be considered as acceptable proof of ownership or occupancy of premises:

(1) Copy of the registered sale deed or lease deed or rent agreement and in the case of agricultural connections, a copy of khasra / khatauni / khata nakal;

(2) Registered General Power of Attorney;

(3) Municipal/Panchayat tax receipt or Demand notice or any other related document;

(4) Letter of allotment;

(5) Copy of the house registration certificate issued by the Panchayat/ownership certificate issued by Revenue Authorities;

(6) Any other ownership related document issued by local Government Authority.

(7) An applicant who is not an owner but an occupier of the premises shall, along with any one of the documents listed at (1) to (6) above, also furnish a No Objection Certificate from owner of the premises:

Provided that where an applicant, who is lawful occupier of the premises, is a tenant or a leaseholder and is unable to produce the No Objection Certificate from owner for obtaining a connection, a separate Indemnity Bond shall be executed in favour of the Distribution Licensee in the form prescribed by the Distribution Licensee.

(8) For bonafide consumers residing in JJ clusters or in other areas with no specific municipal address, the Licensee may accept either ration card or electoral identity card mandatorily having the same address as a proof of occupancy of the premises only for the purpose of releasing electricity connection and not for any other purpose:

Provided further that the electricity bill shall be only for electricity supply to the premises occupied by the consumer and shall not be treated as having rights or title over the premises.

Repeal and Savings 10.13 Save as otherwise provided in this Supply Code, 2018, JERC (Electricity Supply Code) Regulations, 2010 together with amendments made from time to time, are hereby repealed.

10.14 Notwithstanding such repeal, anything done or action taken or purported to have been taken, or proceedings initiated under such repealed Regulations, shall be deemed to have been taken under this Supply Code, 2018 to the extent that same were not inconsistent with the Act.

20.

In the case of PTC India Limited - versus - Central Electricity Regulatory Commission, through Secretary, (2010) 4 SCC 603 (Para 28), Hon'ble Supreme Court considered scheme of the Act No. 36 of 2003 with regard to the delegated legislation and as held under :- "28. The 2003 Act contemplates three kinds of delegated legislation. Firstly, under Section 176, the Central Government is empowered to make rules to carry out the provisions of the Act. Correspondingly, the State Governments are also given powers under Section 180 to make rules. Secondly, under Section 177, the Central Authority is also empowered to make regulations consistent with the Act and the rules to carry out the provisions of the Act.

Thirdly, under Section 178, the Central Commission can make regulations consistent with the Act and the rules to carry out the provisions of the Act. SERCs have a corresponding power under Section 181. The rules and regulations have to be placed before Parliament and the State Legislatures, as the case may be, under Section 179 and 182. Parliament has the power to modify the rules/ regulations. This power is not conferred upon the State Legislatures. A holistic reading of the 2003 Act leads to the conclusion that regulations can be made as long as two conditions are satisfied, namely, that they are consistent with the Act and that they are made for carrying out the provisions of the Act."

21.

The Electricity Supply Code Regulations, 2018 has been enacted by the Joint Electricity Regulatory Commission for the State of Goa and Union Territories in exercise of powers conferred under Section 181 read with Section 50 of the Electricity Act, 2003 (Act No. 36 of 2003) and all other powers enabling it in this behalf including sub-ordinate legislation, rules, statutory orders, resolutions, clarifications issued by the Government in terms of the Act relating to supply of electricity. Section 43 of the Act was amended by Act No. 26 of 2007. Now

Section 43 (1) starts with phrase "Save as otherwise provided in this Act". An Explanation was also added to Sub-section (1) of Section 43 which provides that for the purpose of this Subsection, "Application" means the application complete in all respects in the appropriate form, as required by the distribution licensee, along with documents showing payment of necessary charges and other compliances. The aforesaid phrase "Save as otherwise provided in this Act" and requirement of application complete in all respect in view of the amended Sub-section (1) Section 43 read with the Explanation and the provision of the aforesaid quoted paragraph 2.3 (4) and (5) of the Electricity Supply Code Regulations, 2018, the application to be submitted by an owner or occupier of a premises for supply of electricity, must be complete in all respect and in the appropriate format along with the documents showing payment of necessary charges and other compliances.

22.

The aforesaid phrase "Save as otherwise provided in this Act" and the Explanation appended to Sub-section (1) Section 43, came for consideration before Hon'ble Supreme in the case of Brihanmumbai Electric Supply and Transport Undertaking - versus - Maharastra Electricity Regulatory Commission (MERC) and others (2015) 2 SCC 438 (Para 35) which is reproduced below :

"35. The appellant has sought to rely on the expression "Save as otherwise provided in this Act" in Section 43(1) of the Act to read into Section 43(1) the exception for local authorities provided for in Section 42(3). The TPC has successfully refuted this submission by pointing out that these words in Section 43(1) are required

to be read in the context in which they appear. The said words were inserted in the section by way of an amendment to the Act in 2007. An "Explanation" to Section 43(1) was also added by the same amendment providing that "application"

by a consumer in Section 43(1) means an application complete in all respects along with documents showing payment of necessary charges and other compliances, meaning thereby that the obligation of the distribution licensee to supply within the specified time period will begin only after it has received such completed application by the applicant. Further, Sections 45 and 46 provide for the distribution licensee's powers to recover charges for electricity supplied and the expenditure incurred in providing electric line or plant for giving supply. Section 47 provides that the distribution licensee may require any person demanding electricity supply from him to give a reasonable security, failing which the distribution licensee may refuse to give supply of electricity to such consumer. We are of the opinion that it is in this context that the expression "save as otherwise provided in this Act" in Section 43 (1) is to be construed."

23.

Thus, as per law laid down by Hon'ble Supreme Court in the case of Brihanmumbai Electric Supply and Transport Undertaking (Supra) the obligation of distribution licensee under Section 43 (1) of the Act No. 36 of 2003 read with Explanation, will begin only after the distribution licensee has received an application in prescribed form and complete in all respect with required compliances. As per clause 2.3 (5) and (6) of the Electricity Supply Code Regulation, 2018, the application for supply of electricity must be in the proper format as required under the Code and it must be complete in all respect along with documents showing payment of necessary charges and compliance. Clause 11 (c) of Annexure-1 provides for proof of occupancy of premise for which electricity connection is required, which is reproduced below :

(i) Copy of sale deed or lease deed or in the case of agricultural connections a copy of khasra / khatauni / khata nakal (ii) Registered General Power of Attorney;

(iii) Municipal tax receipt or Demand notice or other related document;

(iv) Letter of allotment;

(v) Copy of the house registration certificate issued by the Panchayath/ownership certificate issued by Revenue Authorities (vi) Any other ownership related document issued by local Government Authority (vii) An applicant who is not an owner but an occupier of the premises shall along with any one of the documents listed at (i) to (vi) above also furnish a no objection certificate from owner of the premises;

Provided that where an applicant, who is lawful occupier of the premises, is a tenant or a leaseholder and is unable to produce the No Objection Certificate from owner for obtaining a connection, a separate Indemnity Bond shall be executed in favour of the distribution Licensee in the form prescribed by the distribution Licensee.

(viii) For bonafide consumers residing in JJ clusters or in other areas with no specific municipal address, the Licensee may accept either ration card or electoral identity card mandatorily having the same address as a proof of occupancy of the premises only for the purpose of releasing electricity connection.

Provided that if the Applicant is an individual, the Applicant has to be Indian Citizen for availing new electrical service connection.

24.

Since the petitioner has not complied with the aforenoted provisions and more particularly Clause 5.30 of the Electricity Supply Code Regulation, 2018 and Clause 11(c) of the prescribed application form, therefore, the application submitted by him for new electricity connection is not complete. He has failed to submit "No Objection Certificate" of the owner in respect of the encroached government land in question. Whether the petitioner has complied with the provisions of the Regulation, 2018 AND is entitled to get new electricity connection.

25.

As per the aforesaid quoted para 11 (c) (vii) of the Application Form read with Clause 5.30 of the Electricity Supply Code Regulation, 2018, an applicant who is not an owner but an occupier of the premises shall along with anyone of the documents listed at Sl. (i) to (vi) above also furnish a no objection certificate from owner of the premises provided that where an applicant, who is lawful occupier of the premises, is a tenant or a leaseholder and is unable to produce the No Objection Certificate from owner for obtaining a connection, a separate Indemnity Bond shall be executed in favour of the distribution Licensee in the form prescribed by the distribution Licensee.

26.

The petitioner herein himself has claimed to be an encroacher of the government land for which he want a new electricity connection but has not filed "No Objection Certificate" from the owner i.e the Government. Thus, the application-in-question filed by the petitioner for new electricity

connection is not complete in all respect. Therefore, in terms of the law laid down by Hon'ble Supreme Court in the case of Brihanmumbai Electric Supply and Transport Undertaking (Supra) the obligation of the distribution licensee under Section 43 (1) read with Explanation, to supply electricity within a specified period will begin only after the distribution licensee has received an application in the prescribed form, complete in all respect. Since the present petitioner has filed the application for new electricity connection in encroached Government land without "No Objection Certificate" of the owner i.e., the Government, therefore, as per the provisions of Electricity Supply Code Regulations, 2018 read with Section 43

(1) and the explanation, the application of the petitioner cannot be processed and the distribution licensee i.e. respondent cannot be mandated to give new electricity connection to the petitioner in disregard to the aforestated / aforequoted provisions of Act No. 36 of 203 and the Electricity Supply Code Regulations, 2018.

27.

It is settled law that a mandamus can be issued in favour of a petitioner provided he has legally protected and judicially enforceable subsisting right. It is also settled law that if an authority despite being under statutory obligation shows inaction or does not discharge his statutory obligation, then the writ Court can issue a writ of mandamus under Article 226 of the Constitution of India.

28.

Since the present petitioner has not complied with the relevant statutory provisions referred above and his application

is not complete in all respect and the obligation of the distribution licensee under Section 43 (1) read with the Explanation does not begin unless the application is complete in all respect, therefore, the petitioner does not have a legally protected and judicially enforceable subsisting right to ask for mandamus in the present facts and circumstances of the case. The petitioner has completely failed to establish that he has legally protected and judicially enforceable subsisting right to ask for mandamus to the authorities to grant him a new electricity connection in respect of encroached government land without compliance to the statutory requirements of a no objection certificate from the owner i.e., the government. The respondent authorities have neither shown inaction in discharge of their statutory obligation nor there is any failure on their part to discharge statutory obligation. Therefore, writ of mandamus cannot be issued to the respondent authorities as prayed by the petitioner.

29.

It is settled law that extraordinary, equitable and discretionary jurisdiction under Article 226 of the Constitution of India can be exercised by the Court for enforcement of statutory provisions and not for its breach. Therefore, this Court cannot issue a writ of mandamus to compel the authorities to act in breach the statutory provisions as discussed above.

30.

The respondent authorities cannot be compelled to grant new electricity connection to an encroacher i.e. the petitioner in respect of encroached government land, without a "no objection

certificate" from the government, otherwise it would lead to serious consequences including to facilitate land grabbing and the law breakers to enjoy fruits of their illegal and unlawful activities.

31.

For the reasons aforesaid, this Court does not find any merit in this writ petition. The writ petition is accordingly dismissed.

( Surya Prakash Kesarwani, J. )