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Himachal Pradesh High Court · body

2021 DIGILAW 290 (HP)

Leela Devi v. H. P. State Electricity Board Ltd.

2021-05-04

VIVEK SINGH THAKUR

body2021
JUDGMENT : VIVEK SINGH THAKUR, J. 1. Petitioner has approached this Court for denial of electricity connection by respondents to her, despite deposit of amount of charges and security, amounting to Rs. 10,008/- vide Receipt No. 10201033127, dated 6.7.2019, demanded by respondents after completion of necessary codal formalities, to the premises occupied by her on Khasra Nos. 1043 and 1044, situated in Village Shiliri (Mohal Mehli), Tehsil Shimla Rural, District Shimla, H.P. 2. Admittedly, petitioner is not recorded owner of the land whereupon her house is constructed. Her claim is that irrespective of ownership of land beneath her house, for fundamental right under Article 21 of Constitution of India, she is entitled for electricity connection. 3. Petitioner, for establishing her entitlement for electricity connection, has referred provisions of Electricity Act, 2003 and Himachal Pradesh Electricity Regulatory Commission (Licensee’s Duty for Supply of Electricity on Request) Regulation, 2004, (for short the “Electricity Act” and “HPERC”), wherein it is provided that applicant means the ‘owner or occupier of any premises’, who makes an application to the distribution licensee for supply of electricity. Petitioner has also relied upon judgment passed by Division Bench of this Court dated 22.10.2018 in CWP No. 2454 of 2018, titled as Madan Lal Vs. State of H.P. and others, wherein electricity and water connection was directed to be released to the applicant/petitioner therein, despite the fact that applicant/petitioner was encroacher, facing proceedings under Section 163 of H.P. Land Revenue Act for eviction. 4. Petition has been opposed by respondents on the ground that petitioner has alternative appropriate remedy for redressal of her grievance as jurisdiction to entertain such compliant is vested with the Himachal Pradesh Electricity Regulatory Commission (in short HPERC) under HPERC (Licensee’s Duty for Supply of Electricity on Request) Regulations, 2004, (in short HPE RC Regulations) framed under the Electricity Act, 2003 and on merits it is stated that petitioner has not been found to be owner of the land beneath the structure and, therefore, she is not entitled for electricity connection. 5. It is claimed by respondent that judgment in Madan Lal’s case supra (CWP No. 2454 of 2018) is not applicable in present case, as no issue of title is pending adjudication before any authority and it is ex facie clear that structure of petitioner is on Government land as per jamabandi. 6. 5. It is claimed by respondent that judgment in Madan Lal’s case supra (CWP No. 2454 of 2018) is not applicable in present case, as no issue of title is pending adjudication before any authority and it is ex facie clear that structure of petitioner is on Government land as per jamabandi. 6. It is further stand of respondents that Service Connection Order (SCO) was issued by the respondents as per Supply Code, 2009 (amended provision), but the moment, when the connection was to be released from the service main of the respondents, the neighbours of the petitioner resisted against laying of the service wire to the house of the petitioner and had filed representation before respondents that meter should not be installed with refusal to allow laying service wire through their private lands with further threat that respondents shall have to face consequences on releasing of electricity connection to the petitioner. In Regulation 2 of HPERC Regulation, definition of applicant has been provided as under:- “2. Definitions - In these regulations, unless the context otherwise requires: (a)........... (b)........... (c) “applicant” means the owner or occupier of any premises who makes an application for the distribution licensee for supply of electricity.” 7. Regulation 3 of HPERC Regulation explains the duty of licensee to supply on request. Relevant portion thereof reads as under:- “3. Duty of licensee to supply on request - (1) On the receipt of an application from the owner of occupier of the premises, every distribution licensee shall, within the time frame specified hereunder, issue, by a registered post/speed post, a demand notice to the applicant, clearly indicating: (a) all deficiencies to be made good and the codal formalities to be completed by the applicant. (b) necessity to furnish the test report from the approved Wiring Contractor. (b) necessity to furnish the test report from the approved Wiring Contractor. (c) the exact amount of charges and security to be deposited by the applicant:- Type of service connection required Period from date of receipt of application within which demand notice should be issued Low Tension (LT) supply (10) days 11 KV supply (15) days 22 KV supply (15) days 33 KV supply (30) days Extra High Tension (EHT) supply (60) days (2) Every distribution licensee shall, upon the applicant making good the deficiencies and completion of codal formalities and payment of charges and security, as indicated in the demand notice under sub-regulation (1), give supply of electricity to the premises within the time specified in sub-regulation (3).......” 8. Section 43 of Electricity Act, 2003 is also relevant for adjudication of point in issue, which reads as under:- “(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) 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.” 9. (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.” 9. The plea of respondents, that for want of ownership of land whereupon premises/house of petitioner is situated, the connection cannot be released to her, is not sustainable in view of definition of applicant as provided in HPERC Regulations, wherein it is clearly defined that applicant means “owner or occupier of any premises”, who makes an application to the distribution licensee for supply of electricity and Regulation 3 of HPERC as well as Section 43 of the Electricity Act cast a duty upon the distribution licensee to supply the electricity on application by owner or occupier of premises after completion of all necessary formalities. As evident from the relevant provisions referred supra, it is not necessary that for applying to a electricity connection, applicant should be owner, as in the Act and Regulations even an occupier of the premises has also been considered a competent applicant for having electricity connection in the premises occupied by him/her. In present case, it is undisputed that petitioner is occupier of the premises, to which she is seeking electricity connection as it is stand of respondents that Service Connection Order to the premises possessed by petitioner was issued, but not executed for objections of neighbours, which is not a valid ground for not providing electricity connection to the petitioner. 10. Regulation 3 of HPERC Regulations provides that after making good all deficiencies and on completion of codal formalities by the applicant, distribution licensee shall issue a demand notice to the applicant indicating the exact amount of charges and security to be deposited by the applicant. In present case that stage is over and on demand raised by respondents, petitioner has deposited Rs. 10,008/- on 6th July, 2019. After deposit of amount, within stipulated time as prescribed in Regulations referred supra, respondents were bound to release the electricity connection by taking all necessary steps for which distributor licensee is entitled and empowered, but the respondents have taken plea that for objection raised by neighbours of petitioner connection could not be provided. 10,008/- on 6th July, 2019. After deposit of amount, within stipulated time as prescribed in Regulations referred supra, respondents were bound to release the electricity connection by taking all necessary steps for which distributor licensee is entitled and empowered, but the respondents have taken plea that for objection raised by neighbours of petitioner connection could not be provided. To support that plea, copy of representation purported to be made by villagers, has been placed on record as Annexure R-2, but this representation is not only undated, but also unsigned and complete particulars of villagers, whose names have been typed thereon, have also not been mentioned. 11. Section 164 of The Electricity Act, 2003, empowers any public officer, licensee or any person engaged in the business of supplying electricity under this Act, for placing electric lines for transmission of electricity, to exercise any of the powers which the Telegraph Authority possesses under the Indian Telegraph Act, 1985 with respect to placing of telegraph lines and posts for the purpose of a telegraph established or maintained, by the Government or to be so established or maintained, however, these powers are subject to condition and restriction, if any, imposed by the appropriate Government. 12. Part III of The Indian Telegraph Act, 1885 provides power of Telegraph Authority to place telegraph lines and posts, wherein Section 10 empowers Telegraph Authority, from time to time, to place and maintain a telegraph line under, over, along, or across, and posts in or upon, any immovable property subject to procedure prescribed in the said Section. 13. 12. Part III of The Indian Telegraph Act, 1885 provides power of Telegraph Authority to place telegraph lines and posts, wherein Section 10 empowers Telegraph Authority, from time to time, to place and maintain a telegraph line under, over, along, or across, and posts in or upon, any immovable property subject to procedure prescribed in the said Section. 13. Apart from aforesaid provisions of the Electricity Act and Indian Telegraph Act, 1985, Central Government has framed and notified ‘Works of Licensees Rules, 2006’, wherein under Rule 3(1), a licensee has been empowered to carry out works, lay down or place any electric supply line or other works in, through, or against, any building, or on, over or under any land whereon, whereover or whereunder any electric supply-line or works has not already been lawfully laid down or placed by such licensee, with the prior consent of the owner or occupier of any building or land, and where owner or occupier of the building or land raises objection in respect of works to be carried out under this Rule, licensee shall obtain permission in writing from District Magistrate or Commissioner of Police or any other Officer authorized by the State Government in this behalf for carrying out the works and carrying of the aforesaid works and grant of permission by the concerned Authority shall be subject to further procedure provided under these Rules. Further Rule 3(4) provides that nothing contained under this rule shall affect the powers conferred upon any licensee under Section 164 of the Electricity Act. 14. From the aforesaid provisions of the Electricity Act, 2003 and The Indian Telegraph Act, 1885, read with Works of Licensees Rules, 2006, it is evidently clear that distribution licensee through respondents is empowered to carry out necessary works over and/or under the land of any person in consonance with provisions of the Act and Rules referred herein above, for providing electricity connection to an applicant or occupier of the premises. It is duty of distribution licensee to provide connection to every eligible applicant by taking necessary steps for which respondents are empowered. In present case finding petitioner entitled for connection, a demand notice has been issued and in sequel thereto, petitioner has deposited the amount in July, 2019, but it appears that influenced by extraneous considerations, electricity connection to the petitioner has not been provided. In present case finding petitioner entitled for connection, a demand notice has been issued and in sequel thereto, petitioner has deposited the amount in July, 2019, but it appears that influenced by extraneous considerations, electricity connection to the petitioner has not been provided. Otherwise also, a person enjoying benefit of electricity connection from a line laid on Government or private land belonging to others, cannot be permitted to create hindrance to the electricity connection, to be provided to his neighbour, by raising objection for laying of electricity line or service wire through his building or land without any justifiable reason. Electricity connection of such person deserves to be discontinued. 15. So far as plea of respondents with respect to alternative remedy is concerned, there is no statutory or other bar to the High Court to entertain Writ Petition under Article 226 of Constitution of India in a matter like present one, particularly when matter relates to violation of fundamental rights to life within the meaning of Article 21 of Constitution of India, as also observed by a Division Bench of this Court in CWP No. 2454 of 2018, which reads as under:- “6. Ordinarily, this Court would be reluctant in granting relief to a person alleged to be an encroacher over the Government property, especially when the construction is also said to have been raised without getting the building plan sanctioned. At the same time, it is not expedient for us to express any view on merits, as the title dispute is sub-judice before the Assistant Collector, 1st Grade, Nahan. Any observation in relation to this issue is likely to have impact on the merits of that case. 7. The question that falls for consideration is whether the petitioner, as an interim measure, be allowed the basic amenities of water and electricity. There is no gain in saying that potable water or electricity are integral part of Right of Life within the meaning of Article 21 of the Constitution of India. These are basic necessities for human being and can well be termed as essential of human rights. If the title dispute, owing to the prescription of right to appeal under the Statute remains pending for considerable long period, we see no reason to deny the petitioner’s family the basic amenities of water and electricity, subject to their payment of requisite charges. If the title dispute, owing to the prescription of right to appeal under the Statute remains pending for considerable long period, we see no reason to deny the petitioner’s family the basic amenities of water and electricity, subject to their payment of requisite charges. It goes without saying that in the event of petitioner’s having failed to prove his right to retain the possession, both facilities will also go alongwith the residential house.” 16. In ordinary course, for availability of alternative remedy, instead of entertaining petition under Article 226 of Constitution of India, parties are relegated to avail such remedy, but in a case like present one where petitioner is being deprived from her basic amenity which is integral part of right of life within the meaning of Article 21 of Constitution of India, I find that relegating the petitioner, that too at this stage, particularly when petition has been admitted by the Division Bench for hearing on merits, to Regulatory Commission, shall amount to grave injustice to her, more particularly when in similar circumstances (i.e. in CWP No. 2454 of 2018), the Division Bench of this Court has directed to release the electricity connection to the petitioners therein. 17. Learned counsel for the petitioner has also relied upon another judgment passed by the Division Bench of this High Court passed in CWP No. 2581 of 2018, titled Harsh Nagar vs. State of H.P. and Others, wherein electricity connection released to an encroacher has been protected till conclusion of appropriate proceeding regarding his encroachment in accordance with law. 18. At this stage it would also be relevant to refer judgment dated 25.8.2020 passed by Madras High Court in W.P. No. 10506 of 2020, titled S. Ramanjaneyalu vs. Assistant Engineer (Pallavaram West), which has been relied upon on behalf of petitioner. In this case, with respect to right of encroacher to have electricity connection, by relying another judgment passed by the said High Court in case T.M. Prakash vs. District Collector, Tiruvannamalai, 2013 (6) CTC 849, has been observed as under:- “11. This Court has recognized the right of an encroacher to receive electricity connection in the judgment that was cited by the learned counsel for the petitioner. Therefore, this Court does not want to once again to into the same issue with regard to the entitlement of an encroacher to get electricity connection.” 19. This Court has recognized the right of an encroacher to receive electricity connection in the judgment that was cited by the learned counsel for the petitioner. Therefore, this Court does not want to once again to into the same issue with regard to the entitlement of an encroacher to get electricity connection.” 19. In light of above discussion, Writ Petition is allowed and disposed of in following terms: “(i) Respondents are directed to ensure release and providing of electricity connection to the petitioner on or before 10th June, 2021. (ii) Petitioner or her family or successors shall not be entitled to claim benefit of electricity connection for continuation of their possession over the property, in any proceeding initiated in accordance with law. (iii) The petitioner shall continue to pay the requisite charges for electricity supply and in the event of any default, the authority shall be at liberty to disconnect the supply.” 20. Writ Petition stands disposed of in aforesaid terms, so also pending applications, if any.