Electricity as a Legal Right

Electricity as a basic amenity and the mode of its supply to consumers has various facets. The electricity distribution in major cities is the domain of discoms i.e distribution companies. In this article an endeavor has been made to view the Electricity Act, 2003 in light of the various judgements and clarifications on different aspects of electricity supply to the owners and occupiers of premises and the issue of clearance of outstanding electricity dues.

Needless to say, lack of electricity supply is one of the determinant factors, adversely affecting sound education and health, leading to economic disparity. Various courts in India have time and again reiterated the importance of electricity supply and pronounced it as a legal right. The supply of electricity thus becomes one of the basic pre-requisites for reduction of poverty, increasing productivity and enhancing standards of living.

The Electricity Act 2003 consolidates the position for existing laws and aims to provide for measures conducive to the development of electricity industry in the country. It consolidates the laws relating to generation, transmission, distribution, trading and use of electricity for taking measures conducive to development of electricity industry, promoting competition therein, protecting interest of consumers and supply of electricity to all areas, rationalisation of electricity tariff and the like.

For better comprehension, certain important terms and sections are discussed in the subsequent paras

(A) Definition of Occupier- Pertains to the person in occupation whether owner / otherwise of the premises where electricity is used or intended to be used.

(B) Section 43- This section begins with the words 'Duty to supply on request.'- It stipulates that every licensee has a duty to supply on request electricity to the owner or occupier of the premises.

(C) Similarly, Section 44 begins with the heading 'Exceptions from duty to supply electricity'. It stipulates that the only exceptions from duty to supply electricity by a distribution licensee are by floods, storms or other occurrences beyond his control ((Force Majeure).

Supreme Court/High Court Rulings-Owners/Occupiers of Premises and Outstanding Dues

More often than not the discom/licensees refuse to supply electricity to the owner/occupier of a particular premise on account of outstanding arrears by the previous occupier. The law as expounded under Section 43 of the Act is that the discoms have a duty to supply to a person being the owner/ occupier or in lawful possession of the premises subject to clearance of all formalities and payment of outstanding dues.

1. In the case of T.M.Prakash vs The District Collector, Tiruvannamalai on 27 September, 2013, the launderers had filed a petition averring though they had been possessing government land  for several decades, electricity supply had been denied to them. The Madras High Court held that electricity supply is a legal right and denial thus is a basic violation of human right. The Hon'ble High Court further held 'In the light of the legal pronouncements of the Apex Court, Section 43 of the Electricity Act and the Regulations framed there under, have to be construed as mandatory, to provide electricity supply, to the owner or occupier of the premises and to those, who reside in Government poromboke lands, where electricity is used or intended to be used.'

2. Another apt example is the recent matter of N.R Sharma vs. the Chhattisgarh State Power Distribution Company Limited, on 02nd Jan, 2018 where the Petitioners, the tenants of the landlord M/S IND Synergy Limited had applied in 2016 for electricity supply to the premises but in vain. In this case since the landlord was holding a electricity connection that fell in arrears, no connection could be provided in those premises where outstanding payment was due. Approaching the Chattisgarh High Court, the Petitioners respectfully submitted that Section 43 of the Electricity Act 2003 is mandatory in nature and penal provisions have been provided in the Act for non compliance. Further the dispute regarding the arrears payable by the Landlord is already before the Chattisgarh Electricity State Regulatory Commission.

The Hon'ble Chhattisgarh High Court held 'Thus from the situations and provisions it becomes evident that the intention of the legislature has been to provide electricity to all the persons whether they are the owners of the property or the occupiers like in the case of landlord or tenant, a mortgagee, assignee and any other person who is in lawful possession of the premises. Withholding of electricity without any prohibition order from the Court is illegal.'

There are conflicting judgments with reference to the issue at hand. It becomes pertinent to mention here that the terms of the contract between the discom/supplier and the owner of the premises/tenant would have to be thus gone into to determine who would pay the outstanding dues.

3. In Hyderabad Vanaspati Ltd. v. A.P. State Electricity Board AIR 1998 4 SCC 1715, the  Hon'ble Supreme Court took the view that even in the absence of a contract the terms and conditions of supply will be governed by the statutory Regulations and they will applicable to the consumers who will be bound by them. Under Clause 2.1 (iv) of the General Conditions of Supply contained in the tariff order 1997-98 and 2001-02 and under rules framed by the Delhi Electricity Regulatory Commission, it has been specifically stated that supply of electricity is subject to the condition that the applicant deposits development charge, advance consumption deposit and all such charges as may be applicable including outstanding dues against the premises and / or disconnected connection.

Conclusion:

A stipulation/contract thus by the licensee/ supplier that the electricity dues would have to be cleared in regard to the electricity supplied to the premises, cannot be termed as unreasonable or arbitrary. In absence of a contract, the statutory regulations as laid down in Clause 2.1 (iv) of the General Conditions of Supply contained in the tariff order 1997-98 and 2001-02 and under rules framed by the Delhi Electricity Regulatory Commission would prevail.'  

The author is a Delhi Based lawyer, practicing in the various courts and have been the editor of a Legal Magazine, Libra.