M.S.Rajendran v. The Superintending Engineer Electricity Department And ANR

IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISIDCTION [CIRCUIT BENCH AT PORT BLAIR] **** PRESENT: HON'BLE JUSTICE ARINDAM MUKHERJEE WPA/357/2024 M.S. RAJENDRAN ... PETITIONER

VERSUS

THE SUPERINTENDING ENGINEER, ELECTRICITY DEPARTMENT AND ANOTHER ... RESPONDENTS For the petitioner :

Mr. KMB Jayapal Mr. C.Shihabuddin Yasir For the Respondent :

Mr. Satish Chandra Mishra Heard on :

September 06, 2024 Judgment delivered on :

September 06, 2024 [Oral] ARINDAM MUKHERJEE, J.

1.

The petitioner claims to have constructed a dwelling house standing in a piece and parcel of government revenue land measuring about 0.02 hectares, being Survey No.9 at Wimberlygunj Village within Ferrargunj Tehsil, South Andaman District, Andaman and Nicobar Islands (hereinafter to as 'the said property').

2.

The petitioner also says that he is in continuous settled possession of the said property without any objection or notice of eviction and the said property is the permanent resident of the petitioner in the Andaman and Nicobar Islands. The petitioner states that, as an occupier, the petitioner is entitled to electricity connection at the said property. The petitioner had made an online application on 29.12.2022, which was rejected on 08.01.2023 without assigning any reason.

3.

The petitioner has approached this Court on 18.07.2024 with a prayer directing the respondents to give a new electric connection to the petitioner at the said property. Admittedly, the petitioner is an encroacher in respect of the said property.

4.

On behalf of the respondents, it is submitted that, in view of the provision of clause 5.30 of the Joint Electricity Regulatory Commission for the State of Goa and Union Territories (Electricity Supply Code) Regulations, 2018 (hereinafter referred to as "the Supply Code, 2018"), the petitioner is required to submit any of the documents enumerated therein for the purpose of receiving a new electricity connection. The petitioner, being an encroacher, has not been able to produce any of the documents as acceptable proof of occupancy of the said property and as such his application dated 29.12.2022 was rejected. The petitioner on having failed to produce any of the documents as in

clause 5.30 of the Supply Code, 2018 in support of his occupancy is not entitled to new electricity connection at the said premises. 5.

The respondents have relied upon a judgment of a Coordinate Bench dated 21.03.2024 delivered in WPA/194/2024 (Santosh vs. the Superintending Engineer and another) in support of its contention. By relying upon the said judgment and order, the respondents say that unless any of the documents as enumerated in clause 5.30 of the Supply Code, 2018 is produced along with the application, the petitioner cannot be granted new electricity at the said property. 6.

In response to this submission made by the respondents, it is submitted on behalf of the petitioner that several judgments and orders have been passed after considering the provision of clause 5.30 of the Supply Code, 2018, when this objection has been raised keeping in view the ratio laid down by Hon'ble Special Bench of this Court in the judgment reported in AIR 2011 Cal 64 (Abhimanyu Mazumdar and others vs. The Superintending Engineer and others). The petitioner also says that there has been no change in law from the judgment in Abhimanyu Mazumdar (supra) and the ratio laid down therein still holds the field.

7.

The petitioner also relies upon a judgment and order dated 19.06.2024 passed in a series of writ petitions one of which is WPA/215/2024 ( Sushil Lakra vs. The Superintending Engineer

and another) by another Coordinate Bench of this Court and submits that same argument as in Santosh (Supra) was advanced before the Coordinate Bench in Sushil Lakra (supra) but the Coordinate Bench, while passing the judgment and order dated 19.06.2024, has negated such contention of the respondents.

8.

The only difficulty which arise is that the judgment and order in Santosh (supra) dated 21.03.2024 was not cited before the Coordinate Bench while deciding Sushil Lakra (supra) on 19.06.2024 or even in several subsequent matters when the issue of a new electricity connection to an encroacher like the petitioner fell for consideration. 9.

After hearing the parties and considering the materials on record including the Supply Code, 2018, I find that the term 'occupier' is defined in clause 2.3 (52) of the Supply Code, 2018 and means an owner or person in occupation of the premises where energy is used or proposed to be used. The terms 'applicant', 'application' and 'application form' has been defined in clauses 2.3 (4)(5)(6) respectively. The 'applicant' means an owner or occupier of any land/premises who files an application form with a "Licensee" for supply of electricity. 'Application' means, an application form complete in all respect in the appropriate format, as specified under the Supply Code, 2018. 10.

It is, therefore, apparent that in the Supply Code, 2018, the Joint Electricity Regulatory Commission, has used the word "occupier"

without qualifying the same word "lawful" to mean that electricity connection is available only to a lawful occupier. This point was elaborately dealt with in Abhimanyu Mazumdar (supra) after considering the definition of occupier in the Electricity Act, 2003 (in short 2003 Act) and the Work of Licensees Rules 2006. The Hon'ble Special Bench in Abhimanyu Mazumder (supra) came to the conclusion that the word 'occupier' therein cannot mean only a lawful occupier. The Special Bench also took into its consideration the encroachers and encroachment as in Andaman and Nicobar Islands. 11.

After considering all the possible category to which an applicant for a new electricity connection may belong that is he may be the owner, a lawful occupier or an occupier simpliciter, the Hon'ble Special Bench in Abhimanyu Mazumdar (supra) concluded that even an encroacher in a settled possession is entitled to electricity till he is not dispossessed by due process of law. The learned Single Judge in Santosh (supra) did not take note of this deduction in Abhimanyu Mazumdar (supra) which led to the findings therein. 12.

On a reading of Santosh (supra), it appears that the learned Coordinate Bench, while passing the judgment dated 21.03.2024, in Santosh (supra) did not consider the observations made in Abhimanyu Mazumdar (supra) as to the definition of "occupier" which led to the conclusion that any applicant for new electricity connection if is in settled possession of the property in question will be

entitled to the enjoyment of electricity so long as such applicant is not dispossessed from such property by due process of law, though the said judgment was cited before the Coordinate Bench. 13.

With regard to the arguments made by the respondents by relying upon the judgment and order of Santosh (supra) that the ratio of Abhimanyu Mazumdar (supra) is no more applicable as it was passed by considering the unamended provision of Section 43 of the Act of 2003 and 2006 Rules particularly when the said section being subsequently amended and on being read with the Supply Code, 2018 promulgated in the context of the amended provisions section 43 of the 2003 Act. Unless the applicant provides any of the documents mentioned in clause 5.30 of the Supply Code, 2018 the application is not acceptable and is not required to be processed which leads to the inevitable conclusion that such an applicant will not get a new electricity connection.

14.

The amendment brought in Section 43 of the Act of 2003 does not alter the definition of 'occupier' by qualifying it with the word 'lawful'. Unless such qualification is provided in the 2003 Act, there is no difference in the definition of "occupier" that was considered in Abhimanyu Mazumdar (supra), in such a situation the Supply Code, 2018 which is promulgated in exercise of the powers conferred under the 2003 Act qualify an "occupier" as a lawful occupier by disclosing the documents as in clause 5.30 thereof when the parent Act does not

make such distinction The provisions of the Supply Code, 2018 cannot override the provisions of the principal Act i.e 2003 Act or qualify any words used therein by imposing restrictions.

15.

The Supply Code, 2018, as discussed herein above, has been promulgated in exercise of the power conferred under the Act of 2003 and in particular under Section 50 read with Section 3(24) thereof. In absence of any provision under the Act of 2003 to deny electricity to an applicant who is not a lawful occupier, the Supply Code, 2018 cannot have a overriding effect over the parent Act being the source of its existence. By interpreting the provision of clause 5.30 of the Supply Code, 2018 in a restricted manner as contended by the respondents, the new electricity connection cannot be limited to a lawful occupier only. The Coordinate Bench in Sushil Lakra (supra) has also opined that the Supply Code, 2018 cannot be construed in any manner so as to override and negate the applicability of the concerned parent statute. 16.

The peculiar facts and circumstances prevailing in Andaman and Nicobar Islands is also required to be considered while dealing with the aspect of new electricity connection to an occupier. In these Islands, encroachment of government revenue land and forest land is a common phenomenon. This issue fell for consideration before the Hon'ble Supreme Court in the year 1995. Pursuant to the directions given by the Hon'ble Supreme Court in its order dated 07.05.2002, the Government of India has taken a policy decision to allot one hectare of

land to the encroacher who have encroached even a forest land prior to 31.12.1978. Despite such policy decision, it is often found that the encroachers have not yet been issued the licence of the alternative land or even if allotted, physical possession thereof has not been made over to the encroacher as a result whereof the encroacher is still occupying the encroached land without any document as specified in clause 5.30 of the Supply Code, 2018. This may be also the case in respect of government revenue land. In such a situation, an encroacher who is occupying the encroached land will not be in a position to produce any of the documents enumerated in clause 5.

30 of the Supply Code, 2018 then, an encroacher who is occupying a land/premises and falls within the definition of occupier as appeared in Abhimanyu Mazumdar (supra), will never be entitled to apply and get a new electricity connection. By giving such restrictive construction, as to the word "occupier" who is in settled possession, one cannot also render the ratio laid down by the Hon'ble Special Bench in Abhimanyu Mazumdar (supra) redundant when the amendment to section 43 of the Act of 2003 has not brought any change to the definition of "occupier".

17.

One further point is to be taken note of. The electricity distribution company who is approached by an applicant is a "licensee" and/or a distribution licensee under the Act of 2003. It has no power and authority to decide on right, title and interest in the land/premises

wherein the new electricity connection is sought for. By interpreting the provisions of clause 5.30 of the Supply Code, 2018 in a restrictive manner is attempting to decide the right, title and interest of the applicant in the said land/premises ignoring the ratio laid down in Abhimanyu Mazumdar (supra), which is impermissible in law and can be construed as an act in excess of jurisdiction. 18.

In the light of the discussion as aforesaid, I am of the view that the ratio laid down in Abhimanyu Mazumdar (supra) has not become inapplicable in view of the amendment brought to section 43 of the Act of 2003 after passing of the said judgment and promulgation of Supply Code, 2018 as opined by a Coordinate Bench in Santosh (Supra). On the contrary I am in agreement with the view expressed by other Coordinate Bench in Sushil Lakra (Supra).

19.

In the aforesaid facts and circumstances, the order dated 08.01.2023 rejecting the petitioner's online application for new electricity connection is set aside. The respondents are directed to process the said application for electricity connection and provide such connection within a period of ten weeks from date, subject to the petitioner complying with all other necessary formalities. 20.

The writ petition is, accordingly, disposed of.

21.

Urgent Xerox certified copy this judgment be supplied to the learned Counsel appearing for the respective parties upon compliance of usual formalities.

( Arindam Mukherjee, J. ) Later The prayer for stay of operation of this order, as made by the respondents, is considered and rejected keeping in mind that the matter relates to supply of electricity and the time period for granting the same is ten weeks from the date of the order. ( Arindam Mukherjee, J. )