Sushil Lakra v. The Superintending Engineer And ANR

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] *** WPA/215/2024 Sushil Lakra WPA/216/2024 Fadrick Xalxo WPA/217/2024 Nutan Toppo with WPA/218/2024 Karma Lakra with WPA/219/2024 Sanjay Lakra

WPA/220/2024 Benjamin Ekka with with WPA/223/2024 Naresh Lal WPA/236/2024 Emil Minj WPA/237/2024 Benedik Kujur WPA/238/2024 Davit Toppo WPA/239/2024 Justin Kujur

WPA/240/2024 Dugru Lakra WPA/241/2024 Mikhail Kujur WPA/242/2024 K. Sumari WPA/244/2024 Mangra Kumkal WPA/245/2024 Bimal Xalxo

WPA/246/2024 Johnson Tirkey WPA/247/2024 Naipal Kunkal WPA/248/2024 Budwa Tirkey WPA/249/2024 Jerome Kindo WPA/250/2024 Jibnius Kujur WPA/251/2024 Ashok Banik

WPA/260/2024 Smt Janaki Sarkar Mr. Prakash Minj ... for the petitioner Mr.Ananda Halder ... for the petitioner in WPA/260/2024 Mr. Ruben Antony ... for the petitioner in WPA/223/2024 Mr. Tulsi Lall ... for the respondents June 19, 2024 [SR] Item Nos.6 to11 & 13 to 29 In view of similar facts and common questions of law being involved, the above writ petitions are taken up for hearing together. Learned counsel for the petitioners in all the matters submit that the petitioners had applied for electricity connection, but the respondent authorities have not yet given such connection, prompting the present writ petitions to be filed. Learned counsel appearing for the distribution licensee/respondent authority places reliance on Clauses 5.29 and 5.

30 of the Supply Code of 2018 to argue that for an applicant who is not an owner but occupier of the premises, a no objection certificate from the owner of the premises is necessary for the purpose of giving electricity connection to the applicant. Further, it is argued that in terms of Clause 16 of the Joint Electricity Regulatory Commission (Consumer Grievances Redressal Forum and Ombudsman) Regulations, 2019, the appropriate authority to approach is the forum as designated under the said provision.

entertain the writ petition in view of availability of an equally efficacious alternative remedy by way of challenge to the designated forum.

A perusal of Clauses 5.29 and 5.30 indicates that the same merely provide modalities to get electricity connection. Clause 5.30 (7) stipulates that the applicant is required to produce a 'No Objection' Certificate from the owner of the premises. However, the heading of Clause 5.30 is that any of the documents mentioned thereunder shall be considered as acceptable proof of ownership or occupancy of premises, out of which No Objection Certificate is only one.

Hence, the argument of the respondent that non-furnishing of No Objection Certificate vitiates the right of the applicant to get electricity connection cannot be accepted as tenable in the eye of law.

It is well-settled that even if the possession of a person is tainted by illegality, a person in settled possession of a property is entitled to get electricity connection. Such position of law is sanctioned by the language of Section 43 of the Electricity Act, 2003 as well, which envisages that either the owner or the occupier, even if the occupier is not the owner, is entitled to get electricity connection in his/her own right.

As such, the provisions of Clause 5.30 (7), which is part of a Regulation enacted by the Joint Electricity Regulatory Commission under the aegis of the Electricity Act, 2003, cannot be construed in a

manner so as to override and negate the applicability of the parent statute itself.

Moreover, electricity is a basic necessity and it has been held by different High Courts and the Supreme Court time and again that the same pertains to the right to life of a person as enshrined in Article 21 of the Constitution of India. As such, the Regulation framed under the Electricity Act, 2003 cannot override such right of a person to get electricity connection.

Thus, Clause 5.30 of the Supply Code, in no manner whatsoever, fetters the right of an occupant to get electricity connection even without any no objection certificate being produced from the owner.

Coming to the second objection of the respondents, it is seen that the Consumer Grievances Redressal Forum and Ombudsman Regulations, 2019 provides modalities and a forum for adjudication of consumer disputes.

Clause 16 thereof merely provides that a complainant under the said provision can approach the designated forum with a grievance/complaint under the said Regulation. The term "grievance" has been defined in Clause 3(e) to mean and include any complaint, relating to any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which has been undertaken to be performed by a licensee in pursuance of a license, contract, agreement or under the JERC Electricity Supply Code 2018 as amended from time to time or in relation to the Distribution Performance Standards of the licensees, as specified by the Commission, and includes billing

disputes of any nature and matters related to safety of the distribution system having potential of endangering life or property; or a dissatisfaction of a Consumer arising out of failure of the licensee to register or redress a complaint etc. Thus, the premise of the expression "grievance" takes into consideration only cases where there is an existing relationship of consumer and licencee between the distribution licensee and another person. An applicant for electricity connection is yet to have such jural relationship with the licencee and as such, cannot be termed as 'consumer' to come within the purview of the said provisions.

In any event, the non-grant of electricity connection pertains to the basic right which is a component of the fundamental right to life and thus, provides for Constitutional redressal within the contemplation of Article 21 of the Constitution of India. Since the Constitution is the grundnorm of the country, no provision of any statute promulgated under the same, less so in case of Rules and Regulations framed under such statute, can fetter the right conferred by provisions of the Constitution. Moreover, grievances contemplated in the Regulation of 2019 revolve around disputes relating to deficiency of services. Non-giving of electricity connection is not a deficiency of service in the true sense of the term but is a challenge to the fundamental right of an occupant of the property.

Since Section 43 of Electricity Act, 2003 does not create any fetter for an occupant to get electricity connection, the writ court's hands are not bound by the provisions of 2019 or 2018 Regulations from granting such relief to the occupant.

Seen from such perspective, there is no reason as to why the purported remedy available before the Consumer Redressal Forum, which is not applicable in the present case, can be an impediment for this court to issue a Rule of Mandamus against the distribution licencee.

As such, WPA/215/2024, WPA/216/2024, WPA/217/2024, WPA/218/2024, WPA/219/2024, WPA/220/2024, WPA/223/2024, WPA/236/2024, WPA/237/2024, WPA/238/2024, WPA/239/2024, WPA/240/2024, WPA/241/2024, WPA/242/2024, WPA/244/2024, WPA/245/2024, WPA/246/2024, WPA/247/2024, WPA/248/2024, WPA/249/2024, WPA/250/2024, WPA/251/2024, and WPA/260/2024, are allowed on contest, thereby directing the respondent authorities to give electricity connection to the respective petitioners therein subject to compliance of all formalities otherwise by the petitioners, positively within a fortnight from the date of such compliance by each of the petitioners.

It is, however, made clear that nothing in this order shall create any special right or any equity in favour of the petitioners which they do not otherwise have in law.

( Sabyasachi Bhattacharyya, J. )