Union Territory of Lakshadweep and Lakshadweep Electricity Department & others v Ella Aboobacker, P. Koya, K. C. Abdul Rahman, K. Alikooya

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **MONDAY, THE 10TH DAY OF AUGUST 2020 / 19TH SRAVANA, 1942** ## **WA.No.1048 OF 2018** **AGAINST THE JUDGMENT IN WP(C) NO.4247/2015 DATED 16-10-2017 OF HIGH COURT OF KERALA** ## **APPELLANTS/ RESPONDENTS:** |**1**|**THE UNION TERRRITORY OF LAKSHADWEEP,**| |---|---| ||**REPRESENTED BY ITS ADMINISTRATOR,**| ||**KAVARATTI ISLAND, PIN - 682 555.**| |**2**|**LAKSHADWEEP ELECTRITY DEPARTMENT,**| ||**UNION TERRITORY OF LAKSHADWEEP,**| ||**KAVARATTI ISLAND, PIN - 682 555,**| ||**REPRESENTED BY ITS EXECUTIVE ENGINEER.**| |**3**|**ASSISTANT ENGINEER,**| ||**UNION TERRITORY OF LAKSHADWEEP,**| ||**DEPARTMENT OF ELECTRICITY,**| ||**ELECTRICAL SUB DIVISION,**| ||**AGATTI ISLAND, PIN - 682 553.**| |**4**|**THE DEPUTY COLLECTOR,**| ||**UNION TERRITORY OF LAKSHADWEEP,**| ||**AGATTI ISLAND, PIN - 682 553.**| |**5**|**DEPUTY DIRECTOR (CENSUS OPERATIONS),**| ||**UNION TERRIROTY OF LAKSHADWEEP,**| ||**KAVARATTI ISLAND, PIN - 682 553.**| ||**BY ADV. SRI.MANU.S, SCGC,**| ||**ADMINISTRATION OF THE UNION TERRITORY OF LAKSHADWEEP**| **W.A.No.1048 of 2018 - 2 -** ## **RESPONDENTS/ PETITIONERS:** - **1 ELLA ABOOBACKER, AGED 65 YEARS, S/O.YUSUF, RESIDING AT ELLA HOUSE, AGATTI, UNION TERRITORY OF LAKSHADWEEP, PIN - 682 533.** - **2 P.KOYA, S/O.ATTAKOYA, AGED 63 YEARS, RESIDING AT PATTINIYODA HOUSE, AGATTI ISLAND, UNION TERRITORY OF LAKSHADWEEP, PIN - 682 553.** - **3 K.C.ABDUL RAHMAN, S/O.MUHAMED MALMI, AGED 61 YEARS, RESIDING AT KITTENCHETTAN HOUSE, AGATHY ISLAND, UNION TERRITORY OF LAKSHADWEEP, PIN - 682 553.** - **4 K.ALIKOYA, S/O.BAHADUR KOYA, AGED 68 YEARS, RESIDING AT BISMI HOUSE, AGATTI ISLAND, UNION TERRIROTY OF LAKSHADWEEP, PIN - 682 553.** **R1-R4 BY ADV. SRI.PEEYUS A.KOTTAM R1-R4 BY ADV. SRI.T.P.NISHAD KHAN** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 10.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.A.No.1048 of 2018** ## **- 3 -** **K. Vinod Chandran & T.R.Ravi, JJ. ----------------------------------W.A.No.1048 of 2018 ----------------------------------Dated, this the 10[th] day of August, 2020** ## **JUDGMENT** **Vinod Chandran, J.** **Whether the respondents are entitled to an electricity connection and the appellants obliged to grant such connection for the mere asking, are the questions raised herein.** ## **2. The issue arises insofar as the Bangaram Island** **in the Lakshadweep group of islands. That infrastructure for supply of electricity is available in Bangaram, is admitted. The respondents herein were granted permissive occupation of certain lands in the said island for the purpose of agriculture and permission to construct buildings is also admitted. When the respondents sought for electricity connection to the buildings constructed in the lands they occupied in Bangaram, which occupation and construction was with the permission of the administration, the appellants declined the same. The refusal to provide electricity connection was on the ground that Bangaram is an uninhabited island and there could be no distribution of** **- 4 -** **W.A.No.1048 of 2018** **electricity on a commercial basis. It is submitted that electricity provided at Bangaram was only for the purpose of promoting tourism. There could be no connections drawn for other purposes.** **3. The learned Single Judge found that the Electricity Act, 2003 obliges the Central and State Governments to formulate a National Policy for rural electrification, for bulk purchases of power and management of local distribution in rural areas through Panchayats, Users' Associations, Co-operative Societies, NGOs or franchisees. It was found that there is a mandate in Section 43 that every distribution licensee shall, on an application made for supply to any premises, give supply of electricity to such premises within a month. The order refusing connection, which was impugned in the writ petition, specifically projected the fact that Bangaram is an uninhabited island. It was found that the respondents, appellants herein, by Exhibit R1(b) notification specified that all areas declared under Section 1(2) of the Lakshadweep Panchayats Regulation, 1994 would be treated as 'Rural Area' for the purpose of Electricity Act, 2003 and Resolution for Rural Electrification Policy. Section 1(2) of the Regulations of 1994 [Exhibit R1(c)] indicates rural** **W.A.No.1048 of 2018 - 5 -** **area to be whole of the Union Territory of Lakshadweep. ON a reference to the schedule to the Regulations, noticing that Bangaram is not included, it was held that the Schedule has no relevance insofar as the Electricity Act, 2003 is concerned. A fresh consideration was directed.** **4. The learned Standing Counsel appearing for the Administration would submit that there is no notification issued under the Regulations of 1994 and, hence, there can be no specification of the rural areas for the purposes of the Electricity Act. It is argued that the infrastructure for electricity in Bangaram Island was intended for a specific purpose. Earlier, one private entity was carrying on the tourism activities in the said island, with whom the Administration had an agreement. Later, the hotel premises which was occupied by the private entity was taken over by a society, called 'SPORTS', with whom the Administration has an agreement. The supply of electricity to the society is only for tourism purpose on full cost basis. There is a restriction insofar as supply to private individuals, as per the agreement with SPORTS, is the contention. The agreement is produced as Exhibit R1(j). It is contended that Bangaram is not an inhabited island and permissive occupation of the respondents is only for the purpose of** **- 6 -** **W.A.No.1048 of 2018** **agriculture. They are not permanent residents of the Island and cannot seek power supply to the buildings constructed in the lands.** **5. The learned Counsel for the respondents/writ petitioners, however, argue that considering the topography of the Island as also the difficulty to travel between them, a person going to an island may remain stranded there for some days due to the climatic conditions. In such circumstances, there should be basic facilities provided in the island. It is also submitted that documents have been produced to show that Bangaram is an inhabited island. The learned Counsel also relies on a judgment of the Hon'ble Supreme Court in** _**Brihanmumbai Electric Supply & Transport Undertaking v**_ **.** _**Maharashtra Electricity Regulatory Commission (MERC)**_ **[** _**(2015) 2 SCC 438**_ **] and that of this Court in W.A.No.1754 of 2019 dated 18.09.2019 [** _**Chempakam v**_ **.** _**Assistant Engineer, Electrial Section, Parassala**_ **].** **6. At the outset we notice that by Exhibit R1(b) it was notified that all the areas declared under Section 1(2) of the Lakshadweep Panchayats Regulation, 1994 shall be Rural Area for the purpose of Sections 6 and 14 of the Electricity Act and Section 8 of Resolution for Rural Electrification Policy. Extracts of Lakshadweep Panchayats** **- 7 -** **W.A.No.1048 of 2018** **Regulation, 1994 is produced as Exhibit R1(c). We obtained a copy of the entire Regulations and perused the same. Sub-regulation (2) of Regulation 1 extends the Regulation to the whole of the Union Territory of Lakshadweep. However, by sub-regulation (3), the Regulation will come into force only on such date as the Administrator notifies in the Official Gazette. It is also provided that different dates may be notified for different islands or for different provisions of the Regulations. Further the First Schedule speaks of 10 Islands in which Bangaram is not included. The First Schedule also refers to Section 2(i) which is the definition of 'islands' reading : 'means any one of the islands mentioned in the First Schedule'. There is also no notification issued under Section 1. Hence Bangaram cannot be an area declared under Section 1 of the Regulations. We notice that the notification at Exhibit R1(b) speaks of 'areas declared under Section 1(2)'. This can only be a mistake since sub-section (2) does not speak of any declaration and notification is spoken of in sub-section (3). The declaration made for the purpose of Regulation is also of 10 islands in which Bangaram is not included. In the above circumstances, we do not think that the right under Section 43 of the Act flows unhindered to** **- 8 -** **W.A.No.1048 of 2018** **the respondents; nor is there an obligation on the Administration. The cited decisions hence have no application. We have to set aside that portion of the order which finds the entire Islands in Lakshadweep to be 'Rural Areas' for the purposes of Electricity Act, 2003. The declaration of rural area is also to ensure the extension of basic facilities to such areas and upliftment of the rural population; which indigenous population of the islands are spread over in the 10 islands declared under the Regulations.** ## **7. However, the impugned order cannot be upheld on** **the grounds stated of Bangaram being uninhabited. Exhibit P5 indicates that there is a population available in the year 2001 and 2010 in Bangaram Island. The learned Standing Counsel would argue that it is only the population of the officials and employees of the tourism project. But, this does not deviate from the fact that the island is inhabited. Exhibit P7, response to a Right to Information query, also clearly indicates that Bangaram Island is inhabited.** ## **8. That there is infrastructure available for** **supply of electricity is admitted. Annexure R1(j) agreement is projected as restricting supply to private individuals** **W.A.No.1048 of 2018 - 9 -** **like respondents. This Court does not find any such restriction available in Exhibit R1(j). The society, called 'SPORTS', is carrying on the hotel project, but it is not a supply or distribution licensee. Though electricity is supplied to them on full cost basis, there is no restriction that the infrastructure for such generation and supply would not be utilized for supply to private individuals.** **9. We agree with the learned Single Judge that the order cannot be upheld on the reasons stated therein of the island being uninhabited. In such circumstances, we have to necessarily direct the Administration to consider the application submitted by the individual respondents, afresh. However, it is made clear that the supply of electricity, if allowed by the Administration, would not confer any right over the property or the buildings, which otherwise is not available. It has to be observed that the respondents are only permissive occupants and their claim can subsist only till such permission is extended. It is also made clear that the appellants, considering the cost of generation and supply of electricity, could fix a tariff and only if the respondents/writ petitioners accept the same, they can be** **W.A.No.1048 of 2018 - 10 -** ## **provided with the electricity connection.** **10. The respondents have a contention that in all other Islands electricity is provided with a subsidised tariff. However, since in Bangaram there is only tourism activity and the respondents have been granted permissive occupation of lands for the purpose of agriculture, the Administration has sufficient elbow room insofar as the tariff at which supply can be made. We may necessarily have to give such elbow room to the Administration especially when tourism is the main stay of the Island and there are no permanent residents therein.** **We, for all the reasons stated above, allow the appeal in part reversing the finding of application of Electricity Act 2003 to Bangaram Island, but affirm the setting aside of the impugned order with a direction to consider the application afresh, in accordance with our directions. No order on costs.** **Sd/K.VINOD CHANDRAN JUDGE** **Sd/T.R.RAVI JUDGE** **Vku/-** **[ TRUE COPY ]**