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High Court of Judicature at Calcutta
JAINARAYAN PATEL, BHASKAR BHATTACHARYA & PINAKI CHANDRA GHOSE
Abhimanyu Mazumdar & Others
Versus
The Superintending Engineer & Others
WP No.423 of 2010, 1265 of 2009, 194 of 2010, 215 of 2010, 216 of 2010, 217 of 2010, 478 of 2010, 779 of 2010, 780 of 2010, 1200 of 2010, 218 of 2010, 433 of 2010, 686 of 2010, 687 of 2010, 689 of 2010, 6191 of 2010, 843 of 2010, 566 of 2010, 568 of 2010, 569 of 2010, 882 of 2010, 141 of 200, 391 of 2010, 868 of 2010, 872 of 2010, 145 of 2010, 476 of 2010, 480 of 2010, 901 of 2010, 670 of 2010, 671 of 2010, 880 of 2010, 887 of 2010, 195 of 2010, 483 of 2010, 904 of 2010, 421 of 2010, 787 of 2010
Decided On : 11-02-2011
ELECTRICITY - UNAUTHORIZED OCCUPIERS - RIGHT TO ELECTRICITY - SECTION 43 OF THE ELECTRICITY ACT, 2003 - WORKS OF LICENSEES RULES, 2006 - ARTICLE 21 OF THE CONSTITUTION OF INDIA - INTERPRETATION AND APPLICATION - HELD, UNAUTHORIZED OCCUPIERS IN SETTLED POSSESSION ARE ENTITLED TO APPLY FOR ELECTRICITY UNDER SECTION 43 OF THE ELECTRICITY ACT, 2003.
Fact of the Case:
The writ petitioners, encroachers of Government Revenue Land in the Andaman & Nicobar Islands, sought electricity connections under Section 43 of the Electricity Act, 2003. The Electricity Department had issued a Press Note providing for electricity connections to families who encroached on Government land after 1978 but before April 1993. The petitioners, who encroached after April 1993, contended that they were also entitled to electricity like other encroachers.
Finding of the Court:
The Court held that an unauthorized occupier in settled possession of a property is entitled to apply for electricity under Section 43 of the Electricity Act, 2003. The Court interpreted the term "lawful occupier" in Rule 2(b) of the Works of Licensees Rules, 2006, 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.
Issues: 1. Whether unauthorized occupiers, encroachers, or 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 seek supply of electricity in the premises constructed on encroaching land? 2. 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 the meaning of the word "occupier" in said Act on reflection of Rule 2006? 3. Whether the 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 shelter" under Article 21 of the Constitution of India could be available to trespasser and unauthorized occupier; and, whether the right to shelter a derived/emanated fundamental right could be 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 Licensees Rules, 2006 as well as on public interest?
Ratio Decidendi: 1. The Court relied on the settled possession principle laid down by the Supreme Court in Rame Gowda (D) by L.Rs. v. M. Varadappa Naidu (D) by L.Rs. and another (AIR 2004 SC 4609) to interpret the term "lawful occupier" in the Works of Licensees Rules, 2006. 2. The Court held that the phrase "lawful occupier" in the Rules should be construed 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. 3. The Court opined that construing 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.
Final Decision: The Court answered the first question of reference in the affirmative, provided the encroacher is in settled possession of the property.
The legal document discusses the rights of unauthorized occupants, encroachers, and squatters regarding the application for electricity supply under Section 43 of the Electricity Act, 2003. The court clarifies that an unauthorized occupier who is in settled possession of a property has the right to apply for electricity, even if their possession is not legally recognized or is disputed. The term "lawful occupier" in the relevant rules is interpreted to mean a person in settled possession, whose possession can be defended against dispossession through legal means other than due process of law. The court emphasizes that possession in settled possession grants the occupant the right to enjoy electricity until they are dispossessed lawfully. It also notes that the enjoyment of electricity does not confer any legal right or ownership in the property itself. The decision underscores that disputes over land title or occupancy should be resolved through appropriate legal channels, and the licensee or electricity department should provide service based on the occupant’s settled possession status, not on legal title.
Bhaskar Bhattacharya J.
This reference has been made by a learned Single Judge of this Court to the Larger Bench after having disagreed with the view taken by two earlier Division Benches on the ground that those Division Benches, while deciding the matters, did not take into consideration the effect of the Rules framed under the Indian Electricity Act, 2003. The following two questions have been referred to the Larger Bench for decision:
“Point I: Whether 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?
Point II: 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 shelter’ under Article 21 of the Constitution of India could be available to trespasser and unauthorized occupier; and, whether right to shelter a derived/emanated fundamental right could be 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 Licensees Rules, 2006 as well as on public interest?”
Before entering into those questions, the following material facts may be taken into consideration:
(a) The writ petitioners, involved in all these applications, are admittedly encroachers of the Government Revenue Land situated in the Andaman & Nicobar Islands. They encroached upon the land after the month of April, 1993 and are in possession of the same by making construction of their residential accommodations. A Press Note was issued by the Superintending Engineer, Electricity Department, the Andaman & Nicobar Administration, thereby according approval of permanent electric connection for domestic use to be provided to the families, who had encroached on the Government Revenue Land after the year 1978, but prior to the month of April, 1993. According to the writ petitioners, there was no justification of fixing a cut-off date, namely, the April, 1993, for the purpose of giving electricity because the persons of both the categories are the encroachers of the Government Revenue Land, whether they commenced their encroachment prior to the month of April, 1993 or thereafter. It was further contended that Article 21 of the Constitution of India brings within its purview the right to get electricity irrespective of the status of the occupier in the land.
(b) The aforesaid Press Note issued by the Andaman & Nicobar Administration dated 20th May, 2003 and the decisions of the Central Government, as communicated by letter dated 17th January, 2003 and 11th March, 2003 issued by the under Secretary to the Government of India, which is the basis of the said Press Note, are quoted below:
“Andaman and Nicobar Administration Office of the Superintending Engineer Electricity Department
……
PRESS NOTE
As per the approval accorded on 11-3-2003 by the Ministry of Home Affairs permanent electric connection for domestic use will be provided by this department to the families which have encroached on Govt. revenue land after 1978 but prior to April 1993. Generating capacity at all places is available. Press note in this regard was issued on 1-4-2003 on the basis of which the intending persons have started submitting applications and affidavits for obtaining electric connections. All these applications are being forwarded to the revenue authorities for checking the correctness or otherwise about the encroachment on govt. For ex
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