Madras High Court
D.Periyasamy vs The Chairman on 25 January, 2011
Author: Vinod K.Sharma
Bench: Vinod K.Sharma
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 25.01.2011 Coram THE HONBLE MR. JUSTICE VINOD K.SHARMA W.P.No.219 of 2011 D.Periyasamy .. Petitioner .. Vs .. 1. The Chairman, Tamil Nadu Electricity Board, No.800, Anna Salai, Mount Road, Chennai 600 002. 2. The Assistant Engineer, Tamil Nadu Electricity Board, Pulianthope Division, Chennai 600 012. 3. C.Srinivasan ... Respondents Prayer:- Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Mandamus, directing the first and second respondents to provide separate electricity connection to the petitioner's premise house bearing Door No.82/14, Ammaiammal Street, Pulianthope, Chennai - 12. For Petitioner : Mr.T.Suresh For RR-1 & 2 : Mr.A.Selvendran For R-3 : Mr.P.J.Venkatesh - - - - - O R D E R
The petitioner has approached this Court with a prayer for issuance of a writ in the nature of mandamus directing the first and second respondents to provide separate electricity connection to the petitioner's house bearing Door No.82/14, Ammaiammal Street, Pulianthope, Chennai 12.
2. It is the pleaded case of the petitioner that he is tenant under the third respondent. He paid Rs.5,000/- as advance and is also paying the monthly rent as per the instruction of the third respondent. The petitioner, has also been paying the enhanced rent of Rs.700/- per month excluding the electricity consumption charges.
3. The case of the petitioner is that the third respondent is not regularly issuing the rental receipts, therefore he deposited the rent in Court as per the order of the VII Small Causes Court, Chennai, in R.C.A.No.731 of 2010 vide receipt No.163336, dated 02.11.2010.
4. It is the case of the petitioner that though the petitioner has been paying the electricity charges to the third respondent for the electricity consumed, the landlord/respondent No.3, all of a sudden, started demanding higher advance and rent, for which, he did not agree. The electricity connection was disconnected by the third respondent illegally.
5. Therefore, the petitioner filed R.C.O.P.No.1659 of 2009, in which, an order was passed under Section 17 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 for immediate restoration of the electricity.
6. Sections 17 and 18 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, read as under:-
"17. Landlord not to interfere with amenities enjoyed by tenant.- [(1) No landlord shall, without just or sufficient cause, cut off or withhold or cause to be cut off or withheld any of the amenities enjoyed by the tenant or were in existence during the previous tenancy].
(2) A tenant in occupation of a building may, if the landlord has contravened the provisions of this Section, make an application to the Controller complaining of such contravention.
(3) If the tenant satisfies the Controller that the amenities were cut off or withheld, or caused to be cut off or withheld, [***] the Controller may pass an interim order, directing the landlord to restore the amenities immediately, pending the inquiry referred to in sub-section (4).
Explanation.- An interim order may be passed under this sub-section without giving notice to the landlord.
[Provided that if the amenities are not restored within seven days from the date of the interim order, the Controller may permit the tenant to restore the amenities at his own cost and recover the cost of the expenses incurred by the tenant in respect of restoration of such amenities from the rent payable to the landlord in such monthly instalments as may be specified by the Controller.] (4) If the Controller or inquiry finds that the tenant has been in enjoyment of the amenities [or that the amenities were in existence during the previous tenancy] and that they were cut off or withheld by the landlord without just or sufficient cause or if the landlord was in any way responsible for the amenities being cut off or withheld, he shall make an order directing the landlord to restore such amenities.
(5) The Controller may, in his discretion, direct that compensation not exceeding fifty rupees-
(a) be paid to the landlord by the tenant, if the application under sub-section (2) was made frivolously or vexatiously;
(b) be paid to the tenant by the landlord, if the landlord had cut off or withheld the amenities or was in any way responsible for the amenities being cut off or withheld frivolously or vexatiously.
Explanation.- In this Section, the expression 'amenities' includes supply of water, electricity, passages, staircases, light, lavatories, lifts and conservancy or sanitary services.
18. Execution of orders.- [(1) Every order made under sections 10, 14, 15, 16 and 17 and every order passed on appeal under Section 23 or on revision under Section 25 shall be executed by the Controller, as if such order is an order of a Civil Court and for this purpose, the Controller shall have all the powers of a Civil Court.
(2) An order passed in execution under sub-section (1) shall not be subject to any appeal or revision.]"
7. The case of the petitioner is that in spite of specific direction by the Controller, the third respondent has not restored the electricity connection thereby disobeyed the order of the learned Controller.
8. The learned counsel appearing on behalf of the third respondent contends that an order of eviction has already been passed against the petitioner and therefore he is not a bona fide tenant.
9. This stand of the learned counsel for the third respondent is controverted by the petitioner by contending that on an appeal, the order of eviction has been stayed, therefore he is occupying the premises legally under the orders of the Appellate Authority.
10. The petitioner filed this writ petition with a prayer for issuance of separate electricity connection by invoking the Tamil Nadu Electricity Distribution Code.
11. Section 27 of the Tamil Nadu Electricity Distribution Code reads as under:-
"27.(1) The provision regarding the duty of Licensee as detailed in Section 43 to supply electricity on request is reproduced below:
"1) 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.
2) It shall be the duty of every distribution licensee to provide, if required, electric plant or electric line for giving electric supply to the premises specified in sub-section (1):
Provided that no person shall be entitled to demand, or to continue to receive, from a licensee a supply of electricity for any premises having a separate supply unless he has agreed with the licensee to pay to him such price as determined by the Appropriate Commission.
3) If a distribution licensee fails to supply the electricity within the period specified in sub-section (1), he shall be liable to a penalty which may extend to one thousand rupees for each day of default."
(2) Supply to Agricultural category:
Application for supply to agriculture category shall be in Form 2 of Annexure III. In respect of the agricultural category, this provision shall be governed by the directives issued by the Commission from time to time, on the basis of the guidance on this matter by the National Electricity Policy (as stipulated in sub-section 4 under Section 86 of the Act) and the policy directions in public interest given by the State Government under sub-section (1) of Section 108 of the Act.
(3) The application for HT supply shall be in Form 4. Application for LT supply (except Agricultural category) including Hut service shall be in Form 1 and 3 of Annexure III.
Note: Requisitions for supply of energy (Applications), even if incomplete, and irrespective of whether they are handed over in person or by post, should be acknowledged in writing. If they are in order, they shall be registered immediately and acknowledged. If they are incomplete, the defects should be indicated and returned without registration.
(4) An intending consumer who is not the owner of the premises he occupies shall produce a consent letter in Form 5 of Annexure III to this Code from the owner of the premises for availing the supply. If the owner is not available or he refuses to give consent letter, the intending consumer shall produce proof of his/her being in lawful occupation of the premises and also execute an indemnity bond in Form 6 of the Annexure III to this Code indemnifying the licensee against any loss on account of disputes arising out off effecting service connection to the occupant and acceptance to pay security deposit twice the normal rate.
(5) The application for H.T./L.T. industries under 'Red Category' or highly polluting as notified by the Government/Tamil Nadu Pollution Control Board from time to time shall be received only on production of letter of "consent to establish" issued by Tamil Nadu Pollution Control Board along with the application by the prospective consumer.
(6) Where the intending consumer's premises has no frontage on a street and the supply line from the Licensee's mains has to go upon, over or under the adjoining premises of any other person (Whether or not the adjoining premises is owned jointly by the intending consumer such other person), the intending consumer shall arrange at his/her own expense for any necessary way leave, licence or sanction before the supply is effected. Even when the frontage is available, but objections are raised for laying lines/cables/poles through a route proposed by the Licensee involving minimum cost and in accordance with the technical norms, to extend supply to the intending consumer, the intending consumer shall arrange at his/her own expense necessary way leave licence or sanction before the supply is effected. Any extra expense to be incurred by the Licensee in placing the supply line in accordance with the terms of the way leave, licence or sanction shall be borne by the intending consumer. In the event of way-leave, licence or sanction being cancelled or withdrawn, the intending consumer shall at his/her own cost arrange for any diversion of the service line or the provision of any new service line thus rendered necessary.
(7) It shall not be incumbent on the Lincensee to ascertain the validity or adequacy of way-leave, licence or permission obtained by the intending consumer. The consumer is liable for damages, if any, claimed by the person giving way-leave, licence or permission.
(8) Applicants requiring service connections to buildings comprising several flats, apartments, etc., (irrespective of purpose i.e., domestic, commercial, etc.) shall ensure that all the conditions stated above and also the conditions stipulated by Local body CMDA, etc. in respect of supply of electricity to such buildings are strictly complied with. Failure in this regard may entail denial of service connection until all the conditions are fulfilled.
(9) In case of LT three phase supply, the Licensee shall ensure the following:
(i) For all LT three phase services other than domestic and agricultural category, when the contracted demand exceeds 18.6 KW (25 HP), the meter in the service shall have the KW demand recording facility.
(ii) For all LT three phase services other than domestic and agricultural category, when the contracted demand does not exceed 18.6 KW (25 HP) and KW recording facility is not available in the meter, the consumer shall not be permitted to have excess connected load over and above the contracted demand. The consumer shall however be permitted to opt for meters with KW demand recording facility, allowed to have connected load in excess of contracted demand and covered under the provisions of the excess demand charges as stipulated in the Supply Code.
(10) Notwithstanding anything contained in this clause, the Licensee will refuse to supply electricity to an intending consumer for any industry, including welding purpose in any predominantly residential area, if in the opinion of the Engineer, such supply will cause voltage fluctuations in the supply to the area and consequent inconvenience in that area. The decision of the Engineer as to whether there will be voltage fluctuations in the said area shall be final and binding on the intending consumer. "Residential" area means area recognized as such by Municipal Corporations, Municipalities, Townships, Panchayats or such other local authorities constituted under any law for the time being in force. If however, the area under consideration is declared as a residential cum industrial area by the competent bodies, the above provision shall not apply.
(11) The requirement to be notified by the Authority through regulations shall be complied with for availing the service connection.
(12) Supply shall be given in poromboke land on production of necessary documents as per the directive from the Government from time to time.
(13) Within a door number or sub door number, an establishment or person will not be given more than one service connection.
(14) Where more than one person or more than one establishment is in occupation of a door number or sub door number, more than one service connection will be given only if there is a permanent physical segregation of areas for which different service connections are applied for.
(15) In case of flat system and shopping complexes where more than one flat or shops are located, more than one service shall be given.
(16) In case of non compliance by the Licensee, of the provisions as above, the intending consumer can approach the Consumer Grievance Redressal Forum."
12. The contention of the learned counsel for the petitioner, by making reference to the Tamil Nadu Electricity Distribution Code, is that under Section 27 sub clause 4, the respondent Board is under legal obligation to grant separate connection to the petitioner as he has agreed to comply with the conditions of the Tamil Nadu Electricity Distribution Code.
13. On consideration of the matter, I find that no case is made out for issuance of writ in nature of mandamus, for the reason that a person is not entitled to two remedies at the same time.
14. It is not in dispute that an order under Section 17 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, has already been passed directing the third respondent to restore the electricity connection of the petitioner immediately and furthermore, matter is still pending before the authorities under the Rent Control Act, the petitioner therefore has a remedy to execute that order passed under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960.
15. Once an alternative statutory remedy is available, (In this case not only available but availed, which can be enforced under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960), the writ of mandamus for a separate connection would not be maintainable. The writ petition is accordingly dismissed as not maintainable. However, petitioner shall be at liberty to execute the order passed by Controller in accordance with law. No costs.
25.01.2011 Index : Yes/No Internet : Yes/No jrl To
1. The Chairman, Tamil Nadu Electricity Board, No.800, Anna Salai, Mount Road, Chennai 600 002.
2. The Assistant Engineer, Tamil Nadu Electricity Board, Pulianthope Division, Chennai 600 012.
VINOD K.SHARMA,J.
Jrl W.P.No.219 of 2011 25.01.2011