Madras High Court
Redfort Shahjahan Properties Pvt. Ltd vs The Tamil Nadu Electricity Board on 4 July, 2014
Author: C.S.Karnan
Bench: C.S.Karnan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.07.2014
CORAM
THE HONOURABLE MR.JUSTICE C.S.KARNAN
W.P.No.15763 of 2014 &
M.P.No.1 of 2014
Redfort Shahjahan Properties Pvt. Ltd.,
Rep. its Power of Attorney,
K.G.Foundation Pvt. Ltd.,
having its Reg. Office at
No.93-B, Mittal Court,
Nariman Point,
Mumbai-400 021. ... Petitioner
Vs.
1.The Tamil Nadu Electricity Board,
Rep. by its Chairman,
No.800, Anna Salai, Chennai-2.
2.The Chairman-cum-Managing Director,
Tamil Nadu Generation and Distribution
Corporation Limited (TANGEDCO),
NPKRR Maaligai, 144 Anna Salai,
Chennai - 600 002.
3.The Director (Distribution),
Tamil Nadu Generation and Distribution
Corporation Limited (TANGEDCO),
NPKRR Maaligai, 144, Anna Salai,
Chennai - 600 002.
4.The Executive Engineer,
South Chennai, Tamil Nadu Generation and
Distribution Corporation Limited (TANGEDCO),
NPKRR Maaligai, 144 Anna Salai,
Chennai - 600 002.
5.The Tamil Nadu Electricity Regulatory Commission,
Rep. by its Secretary,
No.19A, Rukmani Lakshmipathi Road,
Egmore, Chennai - 600 008.
6.Chennai Metropolitan Development Authority,
Rep. by its Member-Secretary,
No.1, Gandhi-Irwin Road,
Egmore, Chennai - 600 008. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India for a Writ of Certiorarified Mandamus, to call for the records pertaining to notification No.TNERC/DC/8-9, dated 22.05.2008, on the file of the fifth respondent and quash the same and consequently directing the respondents 1 to 4 to provide electricity service connection to block C & D comprised in S.F.Nos.4,5,6,7 in Village No.63, Adayalampattu Village, Ambattur Taluk, Tiruvallur District, Chennai without insisting upon completion certificate from the sixth respondent herein.
For Petitioner : Mr.K.K.Sivasshanmugam
For Respondents : Mr.P.R.Dhilipkumar (TNEB) for R1 to R5
Mr.Karthikeyan (CMDA) for R6
- - -
O R D E R
The brief facts of the case are as follows:-
The petitioner submits that he is the absolute owner of the immovable property of land measuring 11.79 acres comprised in S.F.Nos.4,5,6,7,13,14 and 15, 73/1B and 73/1C Village No.63, Adayalampattu Village, Ambattur Taluk, Thiruvallur District, Chennai. The petitioner-company proposed to develop a residential building comprised of several flats in the above said property by entering into a Trade agreement of Joint Venture agreement dated 27.05.2008 with the power of Attorney KG Foundation Private Limited, which is still in force. The petitioner-company applied for permission from the sixth respondent / CMDA for the construction of flats in pursuant to the Joint Venture agreement in its entire extent of 11.79 acres of land. The sixth respondent instructed the petitioner-company to submit planning permission only for 7.77 acres of land comprised in S.F.Nos.4,5,6 and 7 at Adayalampattu Village which falls under the category of residential zone. As the remaining 4.02 acres of land comprised in S.F.Nos.13,14,15,73/1B and 73/1C at Adayalampattu Village falls under the category of institutional zone, the planning permission application was not accepted by the sixth respondent until the land is reclassified from institutional zone to mixed residential zone.
2. The petitioner further submits that the sixth respondent / CMDA had granted approval for the construction of flats in four blocks of residential building, viz., A, B, C & D in 7.77 acres of land comprised in S.F.Nos.4,5,6 and 7 at Adayalampattu Village vide CMDA Letter No.C3/1341/2009, dated 16.08.2010. The petitioner-company in the meantime filed an application with the sixth respondent for the reclassification of land from institutional zone to mixed residential zone for the extent of 4.02 acres of land and the same was approved by sixth respondent vide CMDA Letter No.R1/13741/2008, dated 16.02.2010. The petitioner further submits that the residential buildings comprised in block A, B, C & D got completed based on the earlier approval plan dated 16.08.2010. The petitioner-company after the reclassification of the above said 4.02 acres of land submitted another planning permission for a total extent of 11.79 acres of land for the construction of residential flat buildings. The sixth respondent granted approval vide letter No.C3 (North) 3039/2011, dated 10.05.2013 for the construction of residential blocks to the petitioner-company subject to construction of residential units for Economic Weaker Section (EWS) as well. The petitioner-company further submits that it has just commenced the building construction in the reclassified area of 4.02 acres of land in accordance with sixth respondent building plan approval dated 10.05.2013.
3. The petitioner-company further submits that the company, after completion of A, B, C & D blocks of residential buildings in original 7.77 acres of land in accordance with the building plan approved by sixth respondent vide CMDA Letter No.R1/13741/2008, dated 16.02.2010, applied for supply of electricity for the residential units comprised in block C & D on 17.05.2012 and on 14.02.2013 respectively to the fourth respondent. The petitioner-company further submits that the second respondent/ the Chairman-cum-Managing Director, (TANGEDCO), is the subsidiary company of the first respondent-company. The second respondent-company is the distribution licensee under the Electricity Act to distribute electricity to needy people in Tamil Nadu. The third respondent is the Director incharge of distribution of the second respondent company and the fourth respondent is looking after the region which is inclusive of the petitioner's company property location for providing and distributing electricity. He further submits that the object of the Electricity Act is to accomplish the mission of the ministry of power to provide electricity to all needy citizens and lighting their life and home. The first to fourth respondents shall immediately provide electricity on the completed applications made by the applicants. The Section 43 of Electricity Act 2003 states that:-
"43. Duty to supply on request:- (1) Save as otherwise provided in this Act, every distribution licensee, shall, on an application by the owner or occupier of any premises, given 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 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."
4. The petitioner further submits that the second respondent despite receiving his applications, has not provided the supply of electricity to the above said blocks within one month from the receipt of the application. The respondents 1 to 4 have purposely violated a mandatory statutory duty which is cast upon them under Section 43 of Electricity Act, 2003. The above section was enacted in pursuant to avowed object enshrined in Article 21 of the Constitution of India. Without electricity and light, the right to live becomes illusionary. Therefore, any violation in Section 43 of the Electricity Act amounts to violation of Article 21 of the Constitution. The petitioner-company further submits that the second and third respondents cannot impose any kind of restriction upon the petitioner-company for the supply of electricity which is not contemplated under the Act. It is the duty of the second and third respondents to develop and maintain an efficient co-ordinated and economical distribution system in his area of supply and to supply electricity in accordance with provisions contained in the Act. The petitioner-company further added that the respondents 2 and 3 cannot urge the petitioner-company to obtain the partial completion certificate from the sixth respondent for the supply of electricity which is one of the essential needs of the people in their daily life. The restrictions imposed by the respondents 2 to 4 are against the spirit of the Article 19(1)(g) and 301 of the Constitution which spells out that all the citizens have the right to carry on any trade, commerce and business throughout the territory of India. If at all a restriction is to be imposed on trade, commerce and business, the same may be imposed only by Parliament or Legislature of State under Articles 302 and 304 of the Constitution in the public interest and not otherwise.
5. The petitioner-company further submits that no power is vested with the executive authority to act in any manner which affects or hinders the very essence and thesis contained in the scheme of Part-XIII of the Constitution. The declaration contained in Part-XIII of the Constitution is against creation of economic barrier or pockets which would stand against the free flow of trade, commerce and business. The petitioner-company further submits that the Tamil Nadu Electricity Regulatory Commission carried out an amendment in Regulation 27 of Tamil Nadu Electricity Distribution Code vide notification No.TNERC/DC/8-9, dated 22.05.2008 by which it has imposed a restriction on the trade, commerce and business. The restriction imposed by the commission constituted under the statute is unconstitutional and ultra-vires since it is against the essence of Article 19(1)(g), 21 and 301 of the Constitution. The commission is neither a Parliament nor a Legislature of State to impose restriction on trade, commerce and business. The petitioner further submits that the notification No.TNERC/DC/8-9, dated 22.05.2008 which was brought by Tamil Nadu Electricity Regulatory Commission in exercise of power conferred on it by Section 86 and 46 of the Act, 2005 is itself prima facie erroneous and illegal.
6. The petitioner further submits that Sections 86 and 46 of the Act deals only with functions of State Commission and power to recover expenditure respectively. Section 86 does not deal with the conferment of any powers upon the State Commission to empower them to enact any kind of regulations. On the contrary the conferment of power upon State Commission to make regulation is stipulated under Section 181 of the Act and not under Section 86 of the Act. That too the State Commission has got power to regulate only in respect of the subject matter contemplated under Section 181. The State Commission does not have any kind of power under Section 181 of the Act to impose any kind of restriction by way of bringing any regulations which would run contrary to the essence of Section 43 of the Act. The petitioner further submits that even if the regulation is brought by the State Government in exercise of power under Section 181 of the Act, it will not have the force of law until the regulations by the State Commission is laid before the Legislature of the State. Therefore, the said notification No.TNERC/DC/8-9, dated 22.05.2008 will not bind the petitioner until it is laid before the legislature of the State. The petitioner further submits that without prejudice to the contentions made supra, the sixth respondent vide letter No.EC/CCW/N&C/22052/2013, dated 21.05.2014 had communicated that the partial completion certificate shall be issued on construction of LIG Housing Units as per the approved plan. And moreover, the sixth respondent did not allege any kind of deviation in his property after the inspection held on 04.03.2014. The petitioner further submits that the sixth respondent is demanding the petitioner to construct LIG Housing Units for obtaining partial completion certificate. He further submits that the LIG Housing Unit Block was approved by the sixth respondent only on 10.05.2013. Thereafter, the work for the construction of the LIG Housing Unit has begun and the work is going at full swing. He further submits that the approval for residential building comprised in block C and D was granted on 16.08.2010. It is unfair on the part of the sixth respondent to withhold the issuance of partial completion certificate for the residential block which was constructed based on the planning permission dated 16.08.2010 on the reason of non-construction of the LIG Housing Unit which just got the approval from the sixth respondent in the year 2013.
7. The petitioner further submits that already the constructed units were sold to various customers and they are intending to occupy their respective residential units. The non-issuance of partial completion certificate by the sixth respondent is inhibiting the petitioner from obtaining the electricity service connection from the respondents 2 to 4. Most of the customers have school going kids and they are facing grave hardship on non-supply of electricity by respondents 2 to 4. The petitioner further submits that it is the duty of the respondents 2 to 4 to provide electricity service connection under Section 43 without insisting for partial completion certificate from the sixth respondent. Hence, the writ petitioner has filed the above writ petition to call for the records pertaining to notification No.TNERC/DC/8-9, dated 22.05.2008, on the file of the fifth respondent and quash the same and consequently direct the respondents 1 to 4 to provide electricity service connection to block C & D comprised in S.F.Nos.4,5,6,7 in Village No.63, Adayalampattu Village, Ambattur Taluk, Tiruvallur District, Chennai without insisting upon completion certificate from the sixth respondent herein.
8. The first respondent / the Chairman, Tamil Nadu Electricity Board, Chennai-2, has filed a counter statement for himself and on behalf of the respondents 2 to 4 stating that the applications seeking three phase service connection for 506 dwelling units at S.F.No.14, 200 Feet By Pass Road had been received and registered on 17.05.2012 and Extension of Service Estimate were sanctioned vide 1. 626/S/07 & 7A/2012 - 13 dt. 18.08.2012, 2. 626/D2/97 of 2012 - 13 dt. 05.01.2013, 3. 626/D2/05 of 2013 - 14 dt. 17.04.2013, 4. 626/D2/26 of 2013-14 dt. 27.03.2013 and estimate charges and necessary deposits of Rs.45,31,710/- were collected on 25.09.2012 and the additional extension of service charges of Rs.29,59,040/- were also collected on 18.06.2014. The first respondent further submits that pursuant to the order of the Hon'ble First Bench, a High Level Committee had been constituted and as per the recommendations of the High Level committee, the electricity service connection shall not be granted without the production of the completion certificate / no objection certificate from the CMDA in a case of a special building and multi-storied building and consequent to the recommendation of the High Level Committee, the Development Control Rules has been amended and as per the amended provisions of the Development Control Rules, the electricity service connection shall not be granted without the production of completion certificate obtained from the CMDA in a case of special building and multi-storied building and hence, in the case of the above writ petitioner, the electricity service connection shall not be granted without the production of completion certificate obtained from the CMDA as the petitioner's building is a multi-storied building consisting of stilt + 16 floors with 506 dwelling units of residential building. Hence, the writ petitioner was instructed to submit the completion certificate / no objection certificate obtained from CMDA since the said building is categorized as special building and multi-storied residential building. However, the writ petitioner has not submitted the said completion / no objection certificate obtained from CMDA. He further submits that since the writ petitioner has not submitted the above said certificate the three phase service connections cannot be effected in the 506 dwelling units in stilt + 16 floors of residential building and hence, there is no merit in the above writ petition and the same is liable to be dismissed in limini.
9. Mr.K.K.Sivasshanmugam, highly competent counsel appearing for the petitioner submits that the petitioner-Company has applied for permission from the Chennai Metropolitan Development Authority for construction of flats. The sixth respondent-CMDA had directed the petitioner-company to submit planning permission and the said planning permission application was not accepted by the sixth respondent until the land in Survey Field Nos.13, 14, 15, 73/1B, 73/1C at Adayalampattu Village was reclassified from institutional zone to mixed residential zone. Further, the sixth respondent granted approval for the construction of flats in 4 blocks of residential building, viz., A, B, C & D in 7.77 acres of land comprised in Survey Field Nos.4,5,6 and 7 at Adayalampattu Village vide their proceedings in CMDA letter No.C3/1341/2009, dated 16.08.2010. Subsequently, the CMDA had also granted approval in their proceedings vide CMDA letter No.R1/13741/2008, dated 16.02.2010, for an extent of 4.02 acres since the said land is reclassified as mixed residential zone. He further submits that the CMDA had granted approval vide letter No.C3(North) 3039/2011, dated 10.05.2013 for construction of residential blocks to the petitioner-company subject to the construction of residential units for economic weaker sections. After completion of the A, B, C and D Blocks of residential buildings to an extent of 7.7 acres of land, the petitioner's company applied for supply of electricity for the residential units comprised in Block C & D to the fourth respondent. Further, as per Section 43 of the Electricity Act 43 of 2003, the Tamil Nadu Electricity Board shall provide electricity on the constructed residential units. The language of Section 43 of Electricity Act 2003 reads as follows:-
"43. Duty to supply on request:- (1) Save as otherwise provided in this Act, every distribution licensee, shall, on an application by the owner or occupier of any premises, given 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 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."
10. The highly competent counsel appearing for the petitioner further submits that after receiving the application, the respondents 1 to 4 have not provided the supply of electricity, which is mandatory under Section 43 of the Electricity Act, 2003. As such, the Tamil Nadu Electricity Board cannot impose any conditions. Further, the restrictions imposed by the respondents 2, 3 and 4 are against the fundamental rights and personal rights as per Articles 14 and 21 of the Constitution. Further, the petitioner's company had not committed any deviation or alteration for construction of the said buildings. As per the approved plans granted by the sixth respondent, the residential units have been constructed. Hence, the learned counsel entreats the Court to direct the respondents 1 to 4 to provide electricity service connections.
11. The very competent counsel Mr.P.R.Dhilip Kumar appearing for the respondents 1 to 4 submits that the application seeking 3 phase service connections for 506 dwelling units at S.F.No.14, on the 200 Ft. bye-pass Road have been received and registered on 17.05.2012 and extension of service estimates were sanctioned on various dates viz., 18.08.2012, 05.01.2013, 17.04.2013 and 27.03.2013 respectively and estimate charges including deposits of Rs.45,31,710/- were collected on 25.09.2012 and also collected additional extension of service charges of a sum of Rs.29,59,040/-, on 18.06.2014. Pursuant to the order of the Hon'ble First Bench, a High Level Committee had been constituted and as per the recommendations of the High Level Committee, the Electricity Service Connection shall not be granted without producing the completion certificate/no objection certificate from the Chennai Metropolitan Development Authority. Further, the petitioner's building is classified as multi-storied building and therefore, the petitioner is not entitled to receive electricity service connection as per the recommendations of the High Level Committee. Further, the three phase service connections cannot be effected in 506 dwelling units, in Stilt + 16 floors residential building without production of no objection certificate from the CMDA.
12. The highly competent counsel Mr.Karthikeyan appearing for the CMDA submits that the petitioner has to obtain a no-objection certificate from the CMDA after the completion of the construction work as per the earlier plan approval granted by the Chennai Metropolitan Development Authority. The CMDA is the competent authority to inspect the said building for detecting any deviation or alteration or other illegal construction. If the petitioner had not constructed the building as per the approved plan then the writ petitioner, cannot avail electricity service connection. The no-objection certificate is required by law and also as per the Hon'ble Division Bench Judgment which is upheld. Hence, the very competent counsel entreats the Court to dismiss the above writ petition.
13. This Court, on a careful scrutiny of the petition and counter filed and the arguments advanced by the learned counsels on all sides, observes as follows:-
(i) The petitioner has constructed the building on his own land as per approval granted by the Chennai Metropolitan Development Authority on various dates viz., 16.08.2010, 16.02.2010 and 10.05.2013 respectively. The total construction comprises of 506 dwelling units, consisting of stilt + 16 floors, including the ones for the economic weaker sections.
(ii) It is seen that the commencement of the work had started on 27.05.2008. After completion of the construction work, the writ petitioner made an application on 14.02.2013 for supply of electricity for residential units, comprised in Blocks C & D. Hence, it may be keenly observed that substantial accounts of building materials, supervision, labour outlay, on the spot minor alterations, in order to confirm to the original building plan, controlling of labour and time among other requirements in a major construction were employed at huge cost.
(iii) The said building consists of 506 units with each unit representing one individual dwelling and includes the allotment for the economic weaker sections and this was clearly envisioned and explained by the Metropolitan Development Authorities and these stringent conditions were complied with by the petitioner.
(iv) Now, in the ultimate analysis the prospective dwellers earmarked for residing at 506 units await for the occupation for the same. As such, electricity service connection is an absolute requirement in tenements as it is of paramount importance.
(v) The petitioner has constructed the building in Survey Nos.4, 5, 6 and 7 in Adayalampattu Village in Ambattur Taluk, as per the plan approved by the Chennai Metropolitan Development Authority. Since the writ petitioner is now the sole owner of the property, as such, there is a prima-facie case on the side of the writ petitioner. In addition to the above, if the writ petitioner is not given electricity connection, not only he, but the entire 506 residential dwellers will be put into untold hardships. If the respondents 2, 3 and 4 provide electricity service connection to the writ petitioner without the production of a no-objection certificate, the respondents will not be prejudiced. Further, in many similar cases, the learned Single Judges, viz., Mr.Justice K Venkataraman and Mr.Justice Vinod Kumar Sharma have ordered to the respondents / TNEB to provide electricity service connection without insisting on no objection certificate / completion certificate. The orders of the learned Judges had been complied with by the respondents / TNEB, which was at that time apt and prudent and hence as in the present case a similar situation has arisen, the above judgments will also apply to this case. On the other hand, if the case is decided in favour of the respondents, one can only imagine the irreparable consequence or repercussions that may arise thereunder affecting not only the writ petitioner, but all of the 506 prospective dwellers of the earmarked tenements. As such, it is seen that the balance of convenience and social justice rests on the side of the writ petitioner and the 506 prospective dwellers of the tenements and not on the side of the respondents.
(vi) It is evident that in many similar cases judgments passed by the learned Single Judges, viz., Mr.Justice K Venkataraman and Mr.Justice Vinod Kumar Sharma, have not been challenged and as such, a similar relief of providing electricity service connection to the residential building has to be followed in the present writ petition also. On the other hand, if an adverse decision is taken in favour of the respondents, it would clearly show discrimination against the writ petitioner and the other 506 residential dwellers.
14. Though the writ petitioner has prayed for quashing of the notification No.TNERC/DC/8-9, dated 22.05.2008 on the file of the fifth respondent, this Court is of the view that providing of electricity service connection to block C & D comprised in S.F.Nos.4,5,6,7 in Village No.63, Adayalampattu Village, Ambattur Taluk, Tiruvallur District, Chennai, will be sufficient relief to the writ petitioner herein. On considering the factual position of the case and arguments advanced by the learned counsels on all sides and the observations made by this Court listed as (i) to (vi) this Court directs the respondents 1 to 4 to provide electricity service connection to block C & D comprised in S.F.Nos.4,5,6 and 7 in Village No.63, Adayalampattu Village, Ambattur Taluk, Tiruvallur District, Chennai without insisting upon completion certificate from the sixth respondent / Chennai Metropolitan Development Authority, within a period of four weeks from the date of receipt of a copy of this order. The sixth respondent is at liberty to initiate any legal action, if the writ petitioner is found to commit any deviation or alteration over the said building.
15. With the above direction, the writ petition is disposed of. There is no order as to costs. Consequently, connected miscellaneous petition is closed.
04.07.2014
Index : Yes.
Internet : Yes.
Note : Issue order copy on 04.09.2014
r n s
C.S.KARNAN, J.
r n s
To
1.The Chairman,
The Tamil Nadu Electricity Board,
No.800, Anna Salai, Chennai-2.
2.The Chairman-cum-Managing Director,
Tamil Nadu Generation and Distribution
Corporation Limited (TANGEDCO),
NPKRR Maaligai, 144 Anna Salai,
Chennai - 600 002.
3.The Director (Distribution),
Tamil Nadu Generation and Distribution
Corporation Limited (TANGEDCO),
NPKRR Maaligai, 144, Anna Salai,
Chennai - 600 002.
W.P.No.15763 of 2014 &
M.P.No.1 of 2014
4.The Executive Engineer,
South Chennai, Tamil Nadu Generation and
Distribution Corporation Limited (TANGEDCO),
NPKRR Maaligai, 144 Anna Salai,
Chennai - 600 002.
5. The Secretary,
Tamil Nadu Electricity Regulatory Commission,
No.19A, Rukmani Lakshmipathi Road,
Egmore, Chennai - 600 008.
6.The Member-Secretary,
Chennai Metropolitan Development Authority,
No.1, Gandhi-Irwin Road,
Egmore, Chennai - 600 008.
04.07.2014