Rajasthan Electricity Regulatory Commission

Petition No. RERC-1123/17

In the matter of petition filed by Discoms for Amendment in RERC (Supply Code
and Connected Matters) Regulations, 2004.

Coram:
Sh. Vishvanath Hiremath, Chairman
Sh. Vinod Pandya, Member
Sh. R.P. Barwar, Member

Petitioners : 1. Jaipur Vidyut Vitran Nigam Ltd., Jaipur

2. Ajmer Vidyut Vitran Nigam Ltd., Ajmer
3. Jodhpur Vidyut Vitran Nigam Ltd., Jodhpur

Date of hearings : 13.04.2017 and 25.04.2017

Presents :
1. Sh. S.N. Bohra, Advocate for Petitioners
2. Sh. S.T. Hussain, S.E., RUVNL

Order Date : 03.05.2017

ORDER

1. Jaipur Vidyut Vitran Nigam Ltd., Ajmer Vidyut Vitran Nigam Ltd. and Jodhpur
Vidyut Vitran Nigam Ltd. (hereinafter referred to “Discoms” or “Petitioners”)
have collectively filed a petition before the Commission, on 07.04.2017,
seeking clarification to the term “Occupier” and “Trespasser” for release of
connection.

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2. Discoms in its petition submitted as under:

(i) Chairman Discoms, during the proceedings held on 23.03.2017 before

Hon’ble High Court of Rajasthan at Jaipur Bench in the matter of SB Civil
Writ Petition No. 17797/2016 RSVVNL & Anr. Vs Vijay Laxrmi Purohit, has
sought time to submit a petition before the Rajasthan Electricity
Regulatory Commission for issue of necessary directions in respect of
release of connection to an ‘Occupier’ and ‘Trespasser’ in the light of
the decision of Hon’ble Supreme Court in the case of Laxmi Ram Pawar
Vs Sitabai Balu Dhotre & Ors. Accordingly, Hon’ble High Court allowed
Discoms to file the same. Therefore, Discoms filed this Petition before the
Commission.

(ii) Section 43(1) of the Electricity Act, 2003 states that

“(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.”

(iii) As per the provisions of the Electricity Act, 2003 and the RERC (Supply
Code and Connected Matters) Regulations, 2004 (hereinafter referred
to “Supply Code Regulations”), the Discoms are liable to supply
electricity to the "Occupier' on any premises.

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 (iv) Further, as per the Supply Code Regulations “Occupier” means the
owner or person in occupation of the premises where electrical energy
is used or proposed to be used.

(v) Hon’ble Supreme Court in its judgment had acknowledged that a

trespasser is included in the definition of "Occupier" under Section
2(e)(v) of the Maharashtra Slum Areas (Improvement, Clearance and
Redevelopment) Act, 1971 that reads, 'occupier' includes any person
who is liable to pay to the owner damages for the use and occupation
of any land or building.

(vi) Therefore, in light of the above, Discoms is seeking clarification to the

term "Occupier" and "Trespasser" for release of connection and direct
the Petitioners if any discrimination is required for release of new
connection to a "Trespasser".

3. The matter was heard on 13.04.2017. Sh. S.N. Bohra, Advocate appeared for
Discoms and sought time to file an amendment application to the petition
as prayer made needed to be modified. Matter was, therefore, adjourned
to do needful.

4. Accordingly, Discoms filed an Interlocutory Application on 21.04.2017

seeking amendment in Supply Code Regulations by way of insertion of the
word “Trespasser” with “Occupier” in RERC (Supply Code and Connected
Matters) Regulations, 2004.

5. The matter was finally heard on 25.04.2017. Sh. S.N. Bohra, Advocate
appeared for Discoms and prayed to amend the RERC (Supply Code and
Connected Matters) Regulations, 2004 as requested in Interlocutory
Application as the amendment will clarify that even a trespasser may make
an application for supply of electricity.

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Commission’s views and decisions :

6. We have considered the submissions made by Sh. Bohra, Ld. Counsel

appearing for Petitioners and also Section 43 of Electricity Act 2003,
Regulation 6 of RERC (Supply Code & Connected matters) Regulations, 2004
(Supply Code Regulations), and the judgment of Hon’ble Supreme Court.

7. Petitioner Discoms had filed this petition for adding the word ‘Trespasser’
along with the word ‘Occupier’ in the Supply Code Regulations.

8. In support of application it has been submitted that in a matter before

Hon’ble High Court in S.B Civil Writ Petition No. 17797/2016, Discoms have
submitted that they will seek an amendment to the word ‘Occupier’ to
include ‘Trespasser’ in view of judgment of Hon’ble Supreme Court in case of
Laxmi Ram Pawar Vs Sitabai Balu Dhotre & Ors (2011) 1 SCC 356.

9. Before proceeding with the prayer of the Petitioners, it is necessary to look

into the wordings of Section 43(1) of the Electricity Act, where duty to supply
on distribution licensee is cast upon the distribution licensees and Regulation
6 of Supply Code Regulations, which are extracted below:-
Section 43(1) of the Electricity Act read 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:

Regulation 6 (1) of Supply Code Regulations read as under:

“(1) An owner or an occupier of any premises requiring supply of electricity

may apply for supplying electricity to such premises to such officer as the
licensee may designate for this purpose. The application shall be in a form,
prescribed by the licensee with approval of the Commission.
(2)--------------------------------------------”

10. Reading of the above provisions makes it clear that both the provisions
contain the same language. Further, both the provisions state that any

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 person who is either an ‘Owner’ or ‘Occupier’ may apply for supply of
electricity.

11. There can be no dispute on the meaning of word ‘Owner’ as it is well

understood. That means one who ‘owns’ the premises.

12. As regards the term ‘Occupier’, the meaning of same is also almost well
settled. The word ‘Occupier’ means person who is in possession of premises
irrespective of how the possession has come about.

13. The word ‘Occupier’ used in Section 43 (1) of the Act and Regulation 6 of
the Supply Code Regulations is not defined. Therefore, it has to be
understood in the general parlance. As per Black Law dictionary (Tenth
Edition) the word ‘Occupancy’ means “the act, state or condition of
holding, possessing or residency in or on something, actual possession,
residence or tenancy”. As per shorter Oxford Dictionary, “an ‘Occupier’ is
one who takes or holds possession”.

14. As per old Indian Electricity Rules, 1956 (Rule 2 (1) (af), ‘Occupier’ means the
owner or person in occupation of the premises where energy is used or
proposed to be used.

15. The Hon’ble Bombay High Court in the case of Taj Mohamed Yakub Vs
Abdul Gani Bhikan (AIR 1991) Bombay 236 has held that the expression
‘Occupier’ would take in its sweep every person who is in occupation of the
area declared as slum area and irrespective of the character of possession
of such person.

16. The Hon’ble Supreme Court in the case of Ram Dass Vs Davinder (2004) 3
SCC 684 has held that the terms ‘Possession’ and ‘Occupy’ though in
common parlance are used interchangeably, however, in law, ‘possession’

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 over a property may amount to holding it as an owner but to ‘occupy’ is to
keep possession of by being present in it.

17. The Hon’ble Supreme Court in the case of Industrial Suppliers (P) Ltd. Vs
Union of India & Ors. (1980) 4 SCC 341 has held that in the legal sense an
‘Occupier’ is a person in actual possession.

18. The Hon’ble Supreme Court, in the case of Laxmi Ram Pawar Vs Sitabai Balu
Dhotre & Ors (2011) 1 SCC 356 (to which Petitioner referred to), also has held
that ‘Trespasser’ would come within the definition of the term ‘Occupier’
under Section 2 (e) of Maharashtra Slum Areas (Improvement, Clearance
and Redevelopment) Act, 1971.

19. If the word ‘Occupier’ used in Section 43 (1) of the Act and Regulation 6 of
the Supply Code Regulations is considered in the light of the above, it leads
to only one meaning that a person in physical possession of the premises.

20. The Hon’ble Culcutta High Court in writ petition no. 3794 (w) of 2008 Santosh
Jaiwal Vs CESC Limited & Ors. has held in the context of Section 43 (1) as
follows:
“The word occupier in Section 43(1) of the new Act has not been defined therein.
In its decision in Industrial Suppliers (P) Ltd. Vs Union of India reported in AIR 1980
SC 1858, the Apex Court has held that in the legal sense an occupier is a person
in actual possession.

Applying the literal rule, there appears to be no doubt that an occupier of a

premises meaning thereby a person in possession thereof, in terms of Section 43 of
the new Act, is entitled to supply of electricity on request being made to the
licensee and once electricity is supplied and he bears the charges therefore, he
becomes a consumer of electricity. The duty of the licensee is to supply
electricity, i.e. sell electricity. However, duty and/or obligation of the licensee to
ascertain whether the prospective consumer is in lawful occupation or not is not
discerned in the statutory provisions.”

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21. In view of the above decisions, Commission is of the view that a person
whoever is in physical possession of a premises may apply for electricity
supply under Section 43 (1) of the Electricity Act, 2003 read with Regulation 6
of the Supply Code Regulations, so long as he continuous to be in possession
and not dispossessed in accordance with law. When the meaning of
‘Occupier’ is so clear to include all types of occupants of the premises, there
is no need to amend the Supply Code Regulations to include a word
‘Trespasser’ expressly.

22. Further, if Regulation 6 of the Supply Code Regulations is read with

‘Application Form’ prescribed as Annexure IV, sufficient safeguard is
provided to ensure that only person who is in actual possession is given
supply. Application for supply of electricity as per the conditions
incorporated in the Form, shall accompany Ration Card, Driving License,
Voter ID or PAN Card etc. This means, for supply of electricity, one has to be
in physical possession of the premises.

23. The intention of Parliament in enacting Section 43 is also very clear that both
‘Owner’ and ‘Occupier’ of premises may apply for supply of electricity.

24. Regulation 6 of the Supply Code Regulations has to be considered in light of

Section 43(1) of the Electricity Act, 2003. Section 43 (1) refers not only to
‘Owner’ but also to ‘Occupier’.

25. While interpreting a Regulation, the policy and objective behind the section
/provision for which Regulation is made should be born in mind. In the
Commission’s view the objective behind Section 43 (1) is to supply electricity
on request to everyone who needs it either he is owner or occupier of
premises. If the intention of legislature in enacting Section 43 (1) is to provide
electricity to everyone who is in occupation of premises, this Commission, in

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 exercise of its Regulation making power, cannot curtail the same by adding
or deleting the words.

26. For the foregoing discussion and well settled meaning of the word
‘Occupier’, Commission is of the considered view that Regulation 6 of the
Supply Code Regulations does not require any amendment, leave alone the
way Petitioners prays for it.

27. Accordingly, the application filed by Petitioners has no merit and therefore,
is dismissed.

(R.P. Barwar) (Vinod Pandya) (Vishvanath Hiremath)

Member Member Chairman

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