IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.11735 of 2010 (O&M) Date of decision: 02.08.2011 Heena Yadav wife of Kuldeep Singh Yadav, resident of House No.3749, Sector 22-D, Chandigarh. ...Petitioner versus The State of Punjab, through its Principal Secretary, Revenue Department, Civil Secretariat, Punjab, Chandigarh, and others. ....Respondents II. Civil Writ Petition No.15522 of 2010 (O&M) Manohar Singh son of Tek Chand, resident of House No.265, Khuda Lahora, U.T., Chandigarh. ...Petitioner versus State of Punjab, through Secretary, Punjab State Electricity Board, Patiala, District Patiala, and others. ....Respondents III. Civil Writ Petition No.15787 of 2010 (O&M) Prithvi Singh Chauhan son of Shri Solu Ram, resident of House No.1169, Sector 15-B, U.T., Chandigarh, and others ...Petitioners versus State of Punjab, through Secretary, Punjab State Electricity Board, Patiala, and others. ....Respondents IV. Civil Writ Petition No.17115 of 2010 (O&M) Ms. Monica Kapoor wife of Anish Kapoor, resident of House No.3409, Sector 23-D, Chandigarh, and another ...Petitioners versus State of Punjab, through Secretary, Punjab State Electricity Board, Patiala, and others. ....Respondents Civil Writ Petition No.11735 of 2010 (O&M) - 2 - V. Civil Writ Petition No.17844 of 2010 (O&M) Kulbhushan son of Kishori Lal, resident of Pasco Motors, Village Khabra, P.O. Singh Bhagwanpura, District Ropar. ...Petitioner versus State of Punjab, through Secretary, Punjab State Electricity Board, Patiala, District Patiala, and others. ....Respondents VI. Civil Writ Petition No.18256 of 2010 (O&M) Sheetal Dass son of Shri Sheru Ram, resident of Ward No.2, Near Deep Dhillon House, Adarash Nagar, Naya Gaon, District Mohali, Punjab. ...Petitioner versus State of Punjab, through Secretary, Punjab State Electricity Board, Patiala, and others. ....Respondents VII. Civil Writ Petition No.4838 of 2011 (O&M) Jagjeet Kumar son of Gopal Chand Sheetal, resident of Adarash Nagar, Naya Gaon, District Mohali, Punjab. ...Petitioner versus State of Punjab, through Principal Secretary, Revenue Department, Civil Secretariat, Punjab, Chandigarh, and others. ....Respondents VIII. COCP No.654 of 2011 (O&M) Prithvi Singh Chauhan son of Shri Solu Ram, resident of House No.1169, Sector 15-B, U.T., Chandigarh ...Petitioner versus Shri H.S. Bhoparai, Sr. Xen, the Executive Engineer Distribution Division (Special), Power Corporation, SAS Nagar, Mohali. ....Respondent Civil Writ Petition No.11735 of 2010 (O&M) - 3 - IX. COCP No.655 of 2011 (O&M) Ms. Monica Kapoor wife of Anish Kapoor, resident of House No.3409, Sector 23-D, Chandigarh, and another ...Petitioners versus Shri H.S. Bhoparai, Sr. Xen, the Executive Engineer Distribution Division (Special), Power Corporation, SAS Nagar, Mohali. ....Respondent X. COCP No.656 of 2011 (O&M) Kamlesh Bedi wife of Ravinder Kumar, House No.374, Gobind Nagar, Naya Gaon, District Mohali, and others. ...Petitioners versus Shri H.S. Bhoparai, Sr. Xen, the Executive Engineer Distribution Division (Special), Power Corporation, SAS Nagar, Mohali. ....Respondent XI. COCP No.792 of 2011 (O&M) Shri Surender Raj Sharma son of Shri Hem Raj Sharma, resident of House No.256, Milk Colony, Dhanas, Chandigarh, and another. ...Petitioners versus Shri H.S. Bhoparai, Sr. Xen, the Executive Engineer Distribution Division (Special), POWERCOM Department, SAS Nagar, Mohali. ....Respondent CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Kuldeep S. Yadav, Advocate, for the petitioner in CWP No.11735 of 2010, and in COCP Nos.654 and 792 of 2011. Mr. Sat Narain Yadav, Advocate, for the petitioner/s in CWP Nos.15787, 17115 of 2010, CWP No.4838 of 2011, and in COCP Nos.655 and 656 of 2011. Mr. Vikas Lochab, Advocate, for Mr. Vikram Singh, Advocate, for the petitioner in CWP Nos.17844 and 15522 of 2010. Civil Writ Petition No.11735 of 2010 (O&M) - 4 - Mr. Narender Hooda, Advocate, for the petitioner in CWP No.18256 of 2010. Mr. Arvind Mittal, Additional Advocate General, Punjab. Mr. P.S. Mattewal, Advocate, and Mr. Vikas Chatrath, Advocate, for respondent-POWERCOM. Mr. Jasjeet Singh, Advocate, for Mr. H.S.Brar, Advocate, for GMADA. Mr. Anil Kumar Sharma, Advocate, for Nagar Panchayat, Naya Gaon. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? Yes. 2. To be referred to the reporters or not ? Yes. 3. Whether the judgment should be reported in the digest ? Yes. ---- K.Kannan, J. (Oral) 1. All these petitions address the issue of entitlement of occupiers of houses in an unauthorized colony a right to obtain electricity connection. The petitioners' contention in all these writ petitions are: (i) in terms of Section 43 of the Indian Electricity Act, 2003, the ownership of the premises where electricity is sought, is irrelevant and they are entitled to be provided with the electricity connections on the fundamental premise that the electricity is no longer a luxury but a necessity; (ii) the Division Bench of this Court has passed an order in CWP No.14357 of 2002 and a batch of other cases where the issue for consideration was, whether the persons in unauthorized houses could claim a right to electricity connection. The writ petitions were ordered directing the Electricity Board to give the connections subject to certain restrictions and the petitioners are entitled to the benefit of the reasoning of the said judgment; (iii) the supply of release of electricity Civil Writ Petition No.11735 of 2010 (O&M) - 5 - connections to the applicants in an unapproved colony in the State of Punjab was considered by the Deputy Chief Engineer, acting on behalf of Chief Engineer (Commercial), PSPCL, Patiala, and he had directed the service connection to be given subject to certain conditions such as, the liability to pay the service connection charges and also to provide sufficient security for dismantlement charges if such a contingency arose in future. The action of Electricity Board must satisfy the requirement, as a public body, of Article 14 of the Constitution and hence, the electricity connection cannot deny the petitioners' entitlement; (iv) the GMADA has already stated that the properties in the hands of the petitioners do not come within its purview and that the property is under the control and management of the Nagar Panchayat, Naya Gaon. The Nagar Panchayat, which is added as the 6th respondent, has stated that the village is divided into 5 zones, namely, A to E, and while A and B zones have been approved, as regards C, D and E zones await, where the petitioners have built their houses, the State Government has delisted them from the forest area. The case, however, awaits final disposal by the Hon'ble Supreme Court in a case pending before it. They have themselves no particular objection to the electricity being given for the petitioners' properties. 2. The counsel appearing on behalf of the Electricity Board states with vehemence that it is not merely a case for grant of connection to a few individuals but the entire housing colony has come up in agricultural lands and areas which have come under the Punjab Land Preservation Act where there could not be any constructions. A Civil Writ Petition No.11735 of 2010 (O&M) - 6 - colonizer, who will be subject to all the restrictions relating to the construction and who has to undertake the responsibility of creating the necessary infrastructure for housing, cannot secure legitimacy to persons, who are in possession of the properties and who are allowed to put up constructions in brazen defiance of law and use their own unlawful conduct to justify a plea for electricity connection on the ground that the electricity connection is a necessary amenity and that no objection could be taken for giving of such supply. Responding to the particular reference to the proceedings of the Chief Engineer (Commercial), PSPCL, Patiala, the learned counsel would point out that the provisional electricity supply connection under normal D.S. (domestic supply) tariff to the respondents of an unapproved colony, as contemplated in that letter, was in a situation where there was no serious difficulty as regards either zoning or approval for the lay-out itself, when proposals were pending for such approval and the Chief Engineer's letter itself refers to a prospect of disconnection, if it was subsequently declared illegal or unauthorized. 3. The learned counsel for the Electricity Board also states that, no construction in the said area could come up in contravention of the provisions of Punjab Apartments and Property Regulation Act (PAPRA) and electricity connection cannot be given as if it legitimizes otherwise unlawful constructions under a particular enactment. The Electricity Board, therefore, would plead for rejection outright of the petitioners' plea. Civil Writ Petition No.11735 of 2010 (O&M) - 7 - 4. Even apart from the change in perception that has come over the period of years and since the enactment of Act, 2003 making an electricity connection as a basic necessity, the question is, whether the Electricity Board can make an invidious distinction between one unauthorized occupant to another and deny to him electricity connection. The proceedings dated 25.07.2011 would require to be reproduced to understand its purport: “1. Till the concurrence/approval from Government of Punjab is received, provisional electric supply connection under normal DS Tariff to the residents of unapproved colonies shall be released subject to furnishng of an undertaking by the applicant that his electric connection is liable to be disconnected, if the premises is subsequently declared illegal or unauthorized by the State Government or any appropriate authority. 2. As approved by Hon'ble PSERC vide their order dated 12.07.2011, an amount equal to Service Connection Charges as security to cover dismantlement charges shall be paid by such applicant in addition to the normal initial security and service connection charges payable as per Supply Code and Conditions of Supply approved by the Commission. However, at the time of dismantlement surplus amount, if any, would be refundable. 3. Since the connection shall be provisional, suitable entry in this regard shall be made in the A & A form and on Civil Writ Petition No.11735 of 2010 (O&M) - 8 - the energy bills to be issued to these applicants. 4. All other terms and conditions as applicable to domestic category consumers shall also be applicable for these consumers.” 5. The construction, which the learned counsel for the Electricity Board seeks to import in clause (1), is, in my view, not correct or acceptable. There is nothing in the said letter that contemplates a situation of lay-out being otherwise authorized and subsequently being declared as illegal or unauthorized. When the subject itself was for the release of electricity connection in “unapproved colonies”, there is no meaning of an “unapproved colony” which is “subsequently” to be declared as unapproved to make the constructions unauthorized or illegal to effect a disconnection. The expression “subsequently declared illegal” must be seen from a context when the State Government would take its police powers to treat them illegal and unauthorized and seek for the removal and in which case, no respondent in such an unapproved lay-out could ask for continuation of the electricity power. This understanding conforms to what follows in para 2 in requiring every applicant who obtains electricity connection to be bound to pay the “dismantlement charges” with normal initial security and service connection charges payable as per Supply Code and conditions of supply. All that the proceedings state are that the connections shall be purely provisional and they will not enable any of the petitioners to claim equities, if ever a decision could be taken that the constructions are to be demolished or removed. Civil Writ Petition No.11735 of 2010 (O&M) - 9 - 6. The counsel for the petitioners have also filed plans to show the location of transformers at various places within the same locality. The petitioners would urge that in quite a few houses, one side of the wall separating two houses, has been provided with the electricity connection, while another is not. The fact of all these connections given in the same locality is not denied by the Electricity Board, but they would have an explanation to offer that such connections have been given without authority by one Additional Junior Engineer, who has been charge-sheeted for such indiscretion. It seems to me to be only a lame excuse for a public authority to take, for, if it was so serious a violation, they could not have merely stopped by taking some departmental action against some officials and without making immediate disconnections. It seems to me to be more a face saving act before this Court to explain their own discriminatory actions than a proper justification. 7. I cannot also take an argument that the case as regards the classification of the area as falling within notified forests is still pending before the Hon'ble Supreme Court and hence, electricity service cannot be given. That is the precise reason why the connections that are directed to be given in such unauthorized colonies even as per their own directives, would be only temporary connections. All the petitioners are only pleading for temporary connections subject to the rigorous conditions which have been already imposed by the decision of this Court in CWP No.14357 of 2002 and the conditions laid down in the communication dated 25.07.2011. The petitioners also produce before me documents in Annexure P-2 where the Electricity Board has given the Civil Writ Petition No.11735 of 2010 (O&M) - 10 - connections to one Inderjeet Singh son of Ujaggar Singh on an undertaking that such a person to whom the electricity connection is given shall not claim regularization on such a construction and also an undertaking that if in future, a situation warrants dismantlement of service lines, he would pay the entire cost of such dismantlement. 8. The cost of electrical installations as yet another justification for not providing electricity supply does not also appear to me as tenable in a welfare State. The Electricity Board does not run on charity. It is entitled to collect the installation charges and it also obtains revenue through its installations. As far back as in the decision of the Hon'ble Supreme Court in Municipal Council Ratlam Versus Vardhichand and others-AIR 1980 SC 1622, the Hon'ble Supreme Court rejected the plea of inadequacy of resources of Municipal Council to secure to its citizens what they require as elementary needs for a decent living as any justification, when the citizens were complaining that there was a gross public nuisance due to lack of sewerage connection within the municipal area. We have a great relevance of the precept to be applied in a case of persons living on the fringes of Chandigarh. The flashing billboards and sky-rise constructions in major cities indeed mark a deep divide to persons that live in stench and squalor in ill-lit shanties and juggis. A lop-sided development that is insensitive to the living conditions of the marginalized sections of people that live under tin roofs and thatched roofs, is no development; it is invitation to anarchy and lawlessness. Between dark alleys and sodium lamp-drenched city roads and houses, the choice shall not be to blight the former and increasing effulgence for Civil Writ Petition No.11735 of 2010 (O&M) - 11 - the latter. It is through initiatives for over all development of towns, cities and their vicinity (and that would include fringes) that we have to redeem our pledge for an egalitarian society that is declared as a directive principle of State Policy in Part IV of the Constitution. 9. The counsel for the Electricity Board further argues that the unauthorized colony shall not fall within 16 kilometers from the outer boundary of U.T., Chandigarh. It does not detract from the fundamental precept that this judgment seeks to expound following its earlier Division Bench pronouncement. The learned counsel also states that in the same judgment, the State Government was directed to take appropriate decision in the matter of regularization of unauthorized constructions within two months from the date of receipt of copy of recommendations of the Committee constituted vide order dated 10.09.2003. The direction became possible for the Division Bench in a case where a Committee had been constituted for taking up the issue of regularization. There has been no such interim order or direction sought through this writ petition for constitution of any special Committee for regularization under the Punjab Land Preservation Act. I, therefore, do not think that any such directions are necessary. 10. The mandate shall be, therefore, that the respondents 1 to 4 provide temporary electricity connections to all the petitioners on the same terms and conditions as have been laid down in CWP No.14357 of 2002 titled as 'Gian Chand Versus Punjab Urban Planning & Development Authority and others' and the instructions given by the Electricity Board through its Chief Engineer (Commercial) dated Civil Writ Petition No.11735 of 2010 (O&M) - 12 - 25.07.2011, referred to above. 11. All the writ petitions are allowed on the above terms. 12. All the contempt petitions would not require any directions in view of the orders passed giving directions for release of electricity in the manner referred to above. They are treated as closed. (K. KANNAN) JUDGE 02.08.2011 sanjeev