Writ Petition No.423 of 2010

11th February, 2011

Petitioner Counsel: M. TABRAIZ, Ms. A. S. ZINU, ANJILI NAG, Mrs. P. MAYA, AJAY KUAMR MONDAL, C. S. YASIR, M. P. KAMRAJ, TAPAN KUMAR DAS, S. AJITH PRASAD, A. ADHIKARI, U. KIRTONIA, P. KANNAN, M. SIDDIQUE, N. A. KHAN, TASNEEM, VISWANATH, K. SABIR
Respondent Counsel: KRISHNA RAO

Cases Cited:
Rame Gowda (D) by L.Rs. Vs. M. Varadappa Naidu (D) by L.Rs., AIR 2004 SC 4609 [Para PARA12,14]

JUDGMENT

-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.

2. 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 he 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 Licenses Rules, 2006 as well as on public interest ?"

3. 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 and 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 and 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 and 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 expediting the issuance of certificates by the revenue authorities, weekly meetings will be held at the offices for respective Asst. Commissioners or the Tahsildars for checking the correctness of the encroachment records by the applicant with reference to various records with the revenue department. During such weekly meetings the Pradhan of the concerned village Gram Panchayat would be invited to present along with the Jr. Engineer/Asst. Engineer/Executive Engineer of the Electricity Department so that the individual cases could be jointly checked and settled and required certificates be issued by the concerned Tahsildar at the spot. The weekly meetings shall be held at 10 a.m. on each Saturdays for which suitable notices intimating the Pradhans of Gram Panchayat and others will be issued by the Tahsildar of the respective Tahsil or the Asst. Engineer of the Electricity Deptt., as mutually decided by them. Superintending Engineer Electricity DepartmentNo. EL/PL/17-11/2003/2003/1970Andaman and Nicobar AdministrationOffice of the Superintending Engineer Electricity Department................... Dated at Port Blair, the 20th May, 2003Copy to : 1. The Deputy Commissioner (Andaman), Andaman District, Port Blair. 2. The Deputy Commissioner (Nicobar), Nicobar District, Car Nicobar. 3. The Publicity Officer, Director of IP & T, A & N Administration, Port Blair with two copies for arranging to publish the press note in local dailies. 4. The Chief Editor, The Daily Telegrams, Port Blair for necessary action. 5. The News Editor, AIR, Port Blair for broadcasting the above press note in suitable news item. 6. The Editor, Andaman Herald, Port Blair. 7. The Editor, Andaman Express, Port Blair. 8. The Editor, ASPECT, Port Blair. 9. The Executive Engineer (HQ)/Rural/(PPS&W)&NA, Electricity Department. 10. Note Board. Sd/- Assistant Engineer.No. U. 13034/3/2003-ANLGOVERNMENT OF INDIAMINITRY OF HOME AFFAIRSXXX XXXNew Delhi, the 17th January, 2003To,Shri. Pradeep Singh,Chief Secretary,Andaman & Nicobar Administration,PORT BLAIR Subject : Sanction of electric connections to the families which have encroached in Government revenue land in A&N Islands.Sir, I am directed to reference to your d.o. letter No.1-32-/2000 I-(c) dated the 14th January, 2003 regarding the subject mentioned above and say that there is no objection if the families which have encroached on government revenue land are sanctioned temporary electric connections subject to the following conditions :(a) the electricity shall be supplied for domestic use only.(b) The facility will be extended to only those families which had encroached on government revenue land after 1978 but prior to April, 1993;(c) The grant of this facility shall not entitle the person concerned to claim regularization of the construction made on the encroached land or occupation of such encroached land;(d) The facility shall be extended only if the anti-fire and other safety requirements are met with.2. It is requested that further appropriate action in the matter may be taken under an an intimation to us. Yours faithfully, Sd/- (Vikram Dev Dutt)Deputy Secretary to the Govt. of India Tele : 23092436No. U. 13034/3/2003-ANLGOVERNMENT OF INDIAMINISTRY OF HOME AFFAIRSxxxNew Delhi, the 11th March, 2003ToShri. Pradeep Singh,Chief Secretary,Andaman & Nicobar Administration,PORT BLAIR Subject : Sanction of electric connections to the families which have encroached in Government revenue lad in A&N IslandsSir, I am directed to refer to the A & N Administration's d.o. letter No.1-18(7)/2001-Power dated 6th March, 2003 on the above cited subject and to say that in view of the circumstances indicated therein, the Central Government have 'no objection' to pant permanent electric connections to the families which have encroached on revenue land in A & N Islands, subject to fulfilling the conditions indicated in this Ministry's letter of even number dated 17th January, 2003. Yours faithfully, Sd/- (Vikram Dev Dutt) Deputy Secretary (CPS)"

c) It may not be out of place to mention here that the lands in the Andaman & Nicobar Islands belong to the Union of India and in accordance with the provisions contained in the Andaman & Nicobar Islands Land Revenue and Land Reforms Regulation, 1966 promulgated by the President of India, the laws relating to land revenue, powers of revenue officers, rights and liabilities of holders of land, land tenures and other matter relating to land, in the Union Territory of the Andaman & Nicobar Islands are guided. By virtue of the said Regulation, there may be four classes of tenants, viz. occupancy tenants, non-occupancy tenants, grantees and licensees having different rights conferred under the Regulation. There is also no dispute that in the past, the cases of encroachers for regularization of their illegal occupation and conferring them the Status of tenant were considered by the Administration and the possession which started as illegal encroachment or the Government Land, ultimately, culminated into license.

d) By the last notification indicated above, the authorities have decided to confer the right to get permanent connection of electricity, if the occupant encroached upon the land after the year 1978 but before the month of April, 1993.

e) All the writ-petitioners who have started their encroachment after the month of April, 1993 and have constructed dwelling house thereon claimed that they are also entitled to get the supply of electricity like other encroachers who commenced their encroachment prior to the month of April, 1993.

f) The electricity authority having refused to grant such connection, all those writ-applications were filed.

4. Therefore, the first question the falls for determination before us is whether an encroacher of the land owned by Administration is entitled to get connection of electricity in accordance with the provisions of the Electricity Act, 2003 and the Rules framed thereunder.

5. To appreciate the aforesaid question, the provisions contained in Section 43 of the Indian Electricity Act, 2003 are quoted below :

"43. Duty to supply on request -

(1) Every distribution licensee, shall, on an application by the owner or occupier of any premises, give supply of electricity of 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 ton penalty which may extend to one thousand rupees for each day of default".

6. The broad question before us is whether a person who is an encroacher upon the land belonging to another without any right or permission conferred by such owner can be treated to be an "occupier" within the meaning of Section 43 of the Act. In the Electricity Act, 2003, there is no definition of the word "occupier". But the Works of Licensees Rules, 2006 framed under the aforesaid Act came into force in the year 2006 and according to the definition of "occupier" as provided in Rule 2(b), unless the context otherwise requires. the occupier of any building or land means a person in lawful occupation of that building or land. According to sub-rule (2), all other words and expressions used in the Rules and not defined in these Rules should have the meanings respectively assigned to them in the Act.

7. Rule 3(1) of the Rules authorizes the licensee under the Act 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, over which or under which any electric supply line or works has not already been laid down or placed by such licensee with prior consent of the owner or the occupier of any building or land. Similarly, for the above purpose, the licensee may fix any support of overhead line or any stay or strut required for the purpose of securing in position any support of an overhead line on any building or land or may even alter such support. According to the Rule 3, if my objection is raised by the owner or the occupier, as the case may be, to the proposed works to be carried out under the Rules by the licensee, such dispute should be resolved by the District Magistrate, or the Commissioner of Police or any other officer authorized by the State Government in this behalf as indicated in the Rule 3. The aforesaid Rule 3 is quoted below :

"3. Licensee to carry out work - (1) A licensee may -

(a) 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;

(b) fix any support of overhead line or any stay or strut required for the purpose of securing in position any support of an overhead line on any building or land or having been so fixed, may alter such support;

Provided that in case where the owner or occupier of the building or land raise objection in respect of works to be carried out under this rule, the licensee shall obtain permission in writing from the District Magistrate or the Commissioner of Police, or any other officer authorized by the State Government in this behalf, for carrying out the works :

Provided further that if at any time, the owner or occupier of the building or land on which any work has been carried out or any support of an overhead line, stay or strut has been fixed shows sufficient cause, the District Magistrate or the Commissioner of Police or the officer authorized may by order in writing direct for any such support, stay or strut to be removed or altered.

(2) When making an order sub-rule (1), the District Magistrate, the Commissioner of Police or the officer so authorized, as the case may be, shall fix, after considering the representations of the concerned persons, if any, the amount of compensation or of annual rent, or both, which should in his opinion be paid by the licensee to the owner or the occupier.

(3) Every order made by a District Magistrate, or a Commissioner of Police or the authorized officer under sub-rule (1) shall be subject to revision by the Appropriate Commission.

(4) Nothing contained in this rule shall affect the powers conferred upon any licensee under Section 164 of the Act."

8. The learned Referring Judge by taking aid of the said definition given in Rule 2(b) of the Works of Licensees Rules, 2006 was of the opinion that the same meaning should be given to the word "occupier" appearing in Section 43 of the Act. In other words, according to His Lordship, an unlawful occupier, thus, is not eligible to apply for getting electricity and only a lawful occupier or owner of the land can get electricity by taking recourse to Section 43 of the Electricity Act, 2003.

9. It appears from record that in exercise of the powers conferred under Clause (e) on sub-section (2) of Section 176 read with sub-section (2) of Section 67 of the Electricity Act, 2003, the Central Government made the Works of Licensees Rules, 2006 for the purpose of carrying out the object of the Act enabling the licensee to carry out the works which they are authorized to do.

10. From the Rules it appears that there is no provision therein for deciding the question as to whether a person is a lawful occupier in the land or building if any such dispute arises in a given situation. All that is provided in the Rules is that for the purpose of carrying out the works, a licensee should take permission of either the owner or the lawful occupier of the land or building over which any work would be done. Thus, if it is in occupation of the owner himself, permission should be taken from the owner and if the owner is not in actual physical possession, permission should be taken from the lawful occupier of the land or building and not from the owner. The Rules do not provide for deciding any dispute between the owner and the lawful occupier on the question whether the occupation of such occupier is lawful or not. The Rules, on the other hand, prescribe the procedure for resolving the dispute between the licensee in one hand and the owner or the occupier on the other, regarding alteration of work or fixation of support etc. or payment for compensation by the Licensee to the owner or the occupier, as the case may be. In our opinion, by the word "lawful occupier" introduced in the Rules, the legislature intended to mean the "actual occupier in settled possession" of the property and the licensee is required to take the permission of such a person in settled possession of the property if the property is not in possession of the owner. Whether the occupation of a person on a property is lawful or not can only be decided by a competent forum prescribed by law. It was never the intention of the legislature in defining the word "occupier" as "lawful occupier" to ask the licensee to take permission before undertaking any work from the person in occupation, if such person is not the owner, after being satisfied that such occupier has been declared as "lawful occupier" by a competent forum prescribed by law.

11. If we accept the reasoning of the learned Referring Judge that only an occupier with perfect legal title to occupy can apply for electric connection, in that event, in the absence of the consent of the owner, no person, even in lawful possession, shall be able to get connection of electricity unless he has already got a decree from a civil Court declaring his occupation as lawful. In case of dispute with a tenant, a landlord can by taking advantage of such interpretation easily raise false dispute as regards the status of the tenant and ask the licensee not to grant connection of electricity so long the status of such tenant is not declared by a civil Court as lawful.

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. Vs. M. Varadappa Naidu (D) by L.Rs. and another, reported in AIR 2004 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 by land may re-take 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 me 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 Vs. Delhi Administration, (1968)2 SCR 455, Puran Singh Vs. The State of Punjab, (1975)4 SCC 518 and Ram Rattan Vs. State of Uttar Pradesh, (1977)1 SCC 188. The authorities need not he multiplied. In Munshi Ram's case (supra), it was held that no one, including the me 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. The rightful owner may re-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'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 he adopted as a working rule for determining the attributes of 'settled possession' : AIR 1968 SC 702 : 1968 Cri.L.J. 806

AIR 1975 SC 1674 : 1975 Cri.L.J. 1479

AIR 1977 SC 619 : 1977 Cri.L.J. 433.

(i) that the trespasser must be in actual physical possession of the property over a sufficiently long period:

(ii) that the possession must, be to the knowledge (either express of implied) of the owner or without any attend at concealment by the trespasser and which contains an element of animus possidendi. The nature of possession of the trespasser would however, be a matter to be decided on the fact and circumstances of each.

(iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true owner; and

(iv) that one of the usual tests to determine the quality of settled possession, in the case of cultivable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession." (Emphasis supplied by us)

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 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 sealed 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.

17. We, thus, answer the first question of Reference in affirmative provided the encroacher is in settled possession of the property.

18. In view of our above answer to the first question, the other question becomes academic and redundant, and we propose not to deal with the same.

19. The first point of reference is, thus, answered. In all these writ-applications, the Respondents will give electricity to the writ-petitioners if the applicant is found to be in settled possession of the premises in question and they will he entitled to the enjoyment of the electricity so long they are not dispossessed by due process of law on compliance of all other formalities required under the Act.

20. In the facts and circumstances, there will be, however, no order of costs.

JAINARAYAN PATEL, C.J. :- 21. I agree.

PINAKI CHANDRA GHOSE, J. :- 22. I agree.

Ordered accordingly.