Mariappan v. The Superintending Engineer And ORS

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] ...

WPA/398/2023 Shri Mariappan ... Petitioner Vs.

The Superintending Engineer and Ors.

... Respondents Mr. R. Pradeep ...for the Petitioner Mr. Tulsi Lall Mr. Rakesh Kumar ...for the Respondents February 23, 2023 [MAM] Item No.12 Heard learned Advocates appearing for the parties. Both the parties jointly submit that both factual and legal issues involved in this Writ Petition have been settled and covered by a Three Judges' Bench judgement of this Court (Port Blair), dated 11th February, 2011, in the case of Abhimanyu Mazumdar Vs.

Superintending Engineer reported in Laws(Cal) 2011 2 36, with regard to the right of a person to get supply of electricity in the land/premises alleged to have been encroached irrespective of legality of his possession over the same. Particularly, Para 12 to 16 of the aforesaid judgement which are relevant, are quoted as hereunder:- "12. According to the law in India, a person in settled possession of immovable property cannot be dispossessed otherwise than by due process of law and such a person, in settled possession, although the commencement of such possession was unlawful, can restrain even the lawful owner from disturbing his settled possession otherwise than in due process of law. In this connection, we may appropriately refer to the following observations of the Supreme Court in the case of Rame Gowda(D) by L.Rs. v. M. Varadappa Naidu (D) by L.Rs. and Anr., 2004 AIR(SC) 4609:

It is thus clear that so far as the Indian law is concerned the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession.

The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation, if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted.

The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner.

9. It is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner. The concept of settled possession and the right of the possessor to protect his possession against the owner has come to be settled by a catena of decisions. Illustratively, we may refer to Munshi Ram and Ors. v. Delhi Administration, 1968 2 SCR 455, Puran Singh and Ors. v. The State of Punjab, 1975 4 SCC 518 and Ram Rattan and Ors. v. State of Uttar Pradesh, 1977 1 SCC 188. The authorities need not be multiplied. In Munshi Ram and Ors.'

s case (supra), it was held that no one, including the true owner, has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in the due course of law, he is entitled to defend his possession even against the rightful owner. But merely stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the right owner must be settled possession, extending over a sufficiently long period of time and acquiesced to by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner.

enter and re-instate himself provided he does not use more force than is necessary. Such entry will be viewed only as resistance to an intrusion upon his possession which has never been lost. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. In Puran Singh and Ors.'s case (supra), the Court clarified that it is difficult to lay down any hard and fast rule as to when the possession of a trespasser can mature into settled possession. The 'settled possession' must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt and concealment by the trespasser.

The phrase settled possession does not carry any special charm of magic in it, nor is it a ritualistic formula which can be confined in a strait-jacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession. The Court laid down the following tests which may be adopted as a working rule for determining the attributes of 'settled possession': AIR 1968 SC 702: 1968 Cri LJ 806 AIR 1975 SC 1674: 1975 Cri LJ 1479, AIR 1977 SC 619: 1977 Cri LJ 433 AIR 1975 SC 1674: 1975 Cri LJ 1479.

13. When the Rules of 2006 were introduced, the legislatures had in their mind the aforesaid concept of settled possession which was capable of being defended against any threat of dispossession, even at the instance of the owner, except by due process of law as laid down by the Supreme Court and consequently, introduced the definition of the word 'occupier' as lawful occupier without further defining the word "lawful" therein. Therefore, in the absence of any definition of the word "lawful" in the Rules of 2006, we should apply the principle of "settled possession" laid down by the Supreme Court to the phrase "lawful occupier" appearing in the Rules for implementation of the object of the Electricity Act, 2003 to construe the same as a person in "settled possession" whose possession can be defended against the threat of dispossession otherwise than due process of law even by the lawful owner.

14. We, therefore, hold that a person in settled possession of a property as illustrated in the case of Rame Gowda (supra), is free to apply for supply of electricity without the consent of the owner of the same and is entitled to get electricity and enjoy the same until he is evicted by due process of law.

15. We have already pointed out that either in the Electricity Act, 2003 or in the Rules of 2006, there is no procedure prescribed for resolving the dispute as to the status of an occupier in the property over which the electricity is sought to be brought or over which any work is

to be constructed by the licensee for giving connection of electricity to any person. To construe the word "lawful" appearing in the Rule as "having perfect legal title to possess" would lead to absurdity in implementing the object of the Act and the Rules. In that event, at every stage, the licensee would face problem in giving electricity whenever any dispute as to the title of a person to remain in possession would be raised by any other person claiming to be the owner having lawful title over the property in question and the licensee would be required to wait until such a dispute is resolved by a competent court in a protracted litigation. We, therefore, construe the word "lawful occupier" appearing in the Rules as "the person in settled possession".

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."

Respectfully following the aforesaid judgement of this Court in the case of Abhimanyu Mazumdar (Supra), this Writ Petition is disposed of by directing the respondents electricity authority concerned to provide electricity to the petitioner within a period of 12 weeks from the date of communication of this order subject to compliance of all other legal formalities by the petitioner, if it is found that the petitioner is in settled possession of the premises in question and the petitioner will be entitled to enjoy the electricity without any interruption till the petitioner is dispossessed from the premises in question by any due process of law.

(Md. Nizamuddin, J.)