Madras High Court
R.Thangavel vs The Executive Engineer (O&M) on 10 December, 2013
Author: S.Manikumar
Bench: S.Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.12.2013
CORAM
THE HONOURABLE Mr.JUSTICE S.MANIKUMAR
Writ Petition No.32284 of 2013
R.Thangavel ... Petitioner
.Vs.
1. The Executive Engineer (O&M),
TANGEDCO, Uratchi Kottai,
Bhavani Tk, Erode District
2. The Junior Engineer (O&M),
TANGEDCO, Jambai,
Bhavani Taluk, Erode District ... Respondents
PETITION filed under Article 226 of The Constitution of India praying for the issuance of Writ of Mandamus directing the respondents to grant electricity connection to Arulmigu Om Kaliamman Alayam, by considering the petitioner's application, dated 20.08.2009.
For Petitioner : Mr.A.Gokulakrishnan
For Respondents : Mr.S.K.Rameshwar, Standing Counsel
- - - -
O R D E R
Petitioner, claiming himself to be a Trustee of Arulmigu Om Kaliamman Temple, stated to be in existence for time immemorial, has sought for a writ of mandamus, directing the respondents to provide electricity service connection to the said Temple, by considering the representation, dated 20.08.2009.
2. Record of proceedings shows that on 27.11.2013, Mr.S.K.Rameshwar, learned Standing Counsel for the respondents, has been directed to take notice and get instructions, and thus Court notice to respondents has been waived.
3. It is the case of the petitioner that the application, dated 20.08.2009, has been made to The Junior Engineer (O&M), TANGEDCO, Jambai, Bhavani Taluk, Erode District / the second respondent herein. In response to the same, the second respondent orally denied to accept the said application, unless the same is enclosed with a "No Objection Certificate", from the revenue authority. Reference has also been made to Regulation 27(12) of The Tamil Nadu Electricity Distribution Code, 2004 (Hereinafter referred to as the code) and on the above said pleadings, Mr.A.Gokulakrishnan, learned counsel for the petitioner, submitted that there is no prohibition for supply of electricity to the occupants of the Government Poramboke Land, either it is temple or individuals.
4. Counter affidavit has been filed by the Junior Engineer (O&M), TANGEDCO, Jambai, Bhavani Taluk, Erode District / the second respondent herein. On the basis of the above, the learned Standing Counsel for the respondents submitted that no application in the proper format has been received by the second respondent, to provide electricity service connection to Arulmigu Om Kaliamman Temple, at Survey No.939/1, Jambai Village, Bhavani Taluk, Erode District.
5. Learned Standing Counsel for the respondents further submitted that though Regulation 27(12) of the Code, empowers the authorities to provide electricity service connection to an occupant of the Government Poramboke land, on production of necessary documents, as per the directives of the Government from time to time, inserted in the Distribution Code, as per the Commissioner's Notification No.TNERC/DC/8-3, dated 31.05.2006 (with effect from 21.06.2006). He also submitted that the Chairman, TANGEDCO, in Memorandum No.CE/Comml/EE3/AEE1/F.Instruction/D.530/2010, (Techl. Br), dated 12.10.2010, has issued further instructions, in the matter of providing service connections to the religious structures in public places in Tamil Nadu. According to the learned Standing Counsel for the respondents, in respect of service connection to the religious institutions in public places, the same shall be considered only, if "No Objection Certificate", and clearance, from the District Collector, is given.
6. Learned Standing counsel for the respondents further submitted that, if the petitioner is able to get "No Objection Certificate" from the District Collector and enclose necessary documents, as provided for under Regulation 27(12) of the Code, the same would be considered, as per the Statute and Code.
7. The aforesaid submission of the learned counsel for the respondents is placed on record.
8. At this juncture, Mr.A.Gokulakrishnan, learned counsel for the petitioner, brought to the notice of this Court that, when a request for issuance of "No Objection Certificate", was made, vide proceedings in Rc.No.7965/2013/A1, dated 22.07.2013, the same has been rejected by the Tahsildar, Bhavani.
9. Though the request for the issuance of No Objection Certificate has already been turned down, the supporting affidavit, dated 26.11.2013, is silent on the above said aspect. When the petitioner is aware of the rejection of the request for No Objection Certificate from the Revenue Authority, he should have either challenged the rejection, dated 22.07.2013, in the manner known to law and that he should have also averred the same in the supporting affidavit. There is a suppression of material fact.
10. Remedy, under Article 226 of the Constitution of India, is equitable. Here is a case, where, the petitioner, in the humble opinion of this Court, has suppressed the fact of rejection, dated 22.07.2013, and at Paragraph No.4 of the affidavit, has only averred that the Junior Engineer (O&M), TANGEDCO, Jambai, Bhavani Taluk, Erode District, has orally denied to accept the application, unless the same was enclosed with a copy of the "No Objection Certificate" from the Revenue Authority.
11. For better appreciation of the facts, this Court deems it fit to extract the proceedings in Rc.No.7965/2013/A1, dated 22.07.2013, issued by the Tahsildar, Bhavani:-
<nuhL khtl;lk;. gthdp tl;lk;. $k;ig?M fpuhkk;. ej;jk; g[yvz;/1286-2(hP/r/vz;/939-1gFjp) bkhj;j tp!;jPh;zk; 1580 r/kP muRg; g[wk;nghf;F epyj;jpy; cs;s xk;fhspak;kd; nfhtpYf;F kpd;,izg;g[ bgw jilapd;ikr;rhd;W tH';ff;nfhhp jkpH;ehL khepy jfty; Mizahplk; mspj;j nky;KiwaPl;L kDtpd; nghpy; kDjhuUf;F gpd;tUkhW jfty; tH';fg;gLfpwJ/ kDjhuhpd; nfhhpf;if ftdKld; ghprPyiz bra;ag;gl;lJ/ muR epy';fspy; cs;s kjrhh;ghd tHpghl;Lj; jy';fSf;F kpd; ,izg;g[ bgw jilapd;ikr; rhd;W tH';ff; TlhJ vd tHpfhl;Ljy;fs; murhy; tH';fg;gl;Ls;sjhy;. kDjhuUf;F jilapd;ikr; rhd;W tH';f ,ayhJ vd bjhptpf;fg;gLfpwJ/
12. A perusal of the Memorandum No.CE/Comml/EE3/AEE1/ F.Instruction/D.530/2010, (Techl. Br), dated 12.10.2010, indicates that the said Memorandum has been issued, pursuant to the directions of the Supreme Court in SLP No.8519/2006. The memorandum is extracted here-under:-
"Sub.: Electricity Removal/Relocation/Regularisation of encroachments in public places by the way of religious structures Direction of Hon'ble Supreme Court of India direction in SLP No.8519/2006 Govt. Policy formulation Further instructions issued Regarding.
Ref.: Memo. No.CE/Comml/EE3/AEE1/F.Instruction/ D.526/10, dt. 8.10.10.
---
In continuation to the instructions issued in the reference cited, further instructions are issued.
1.The instructions issued vide ref. Cited shall be implemented forthwith without any exception.
2.In future, the service connections to the religious structures in public places shall be effected only after obtaining NOC and clearance from the District Collectors concerned.
3.A list of region wise service connections that have already been effected to the religious structures in public places in Tamil Nadu since 13.9.2010 is enclosed herewith. Hence all Chief Engineer/Distribution are instructed to furnish the following details within two days.
3.1. Name of Region-
3.2. Name of the Service Connection.
3.3 SC. NO.-
3.4. Whether NOC from concerned department was obtained while effecting supply. If so, Name of the Department which has issued NOC may be furnished.
Encl.: List of services effected.
13. As per the memorandum, cited supra, in respect of service connections to religious structures in public places, the same shall be effected only after "No Objection Certificate and clearance" is issued by the concerned District Collectors. Admittedly, in the case on hand, the request for No Objection Certificate from the District Collector, has already been rejected by Proceedings No.RC/7965/2013/A1, dated 22.07.2013.
14. Regulation 27(12) of the Code alone would not lend any support to the case of the petitioner. As stated supra, there is suppression of material fact, required for considering the request of the petitioner. This Court is not inclined to extend equity in favour of the petitioner. At this juncture, this Court deems it fit to consider few decisions.
15. As regards suppression, useful reference can be made to the decision of the Supreme Court in Arunima Baruah v. Union of India reported in 2007 (6) SCC 120, wherein, at Paragraphs 11 to 14, it held as follows:
"11. The courts jurisdiction to determine the lis between the parties, therefore, may be viewed from the human rights concept of access to justice. The same, however, would not mean that the court will have no jurisdiction to deny equitable relief when the complainant does not approach the court with a pair of clean hands; but to what extent such relief should be denied is the question.
12. It is trite law that so as to enable the court to refuse to exercise its discretionary jurisdiction suppression must be of material fact. What would be a material fact, suppression whereof would disentitle the appellant to obtain a discretionary relief, would depend upon the facts and circumstances of each case. Material fact would mean material for the purpose of determination of the lis, the logical corollary whereof would be that whether the same was material for grant or denial of the relief. If the fact suppressed is not material for determination of the lis between the parties, the court may not refuse to exercise its discretionary jurisdiction. It is also trite that a person invoking the discretionary jurisdiction of the court cannot be allowed to approach it with a pair of dirty hands. But even if the said dirt is removed and the hands become clean, whether the relief would still be denied is the question.
13. In Moody v. Cox [(1917) 2 Ch. 71: (1916-17) All ER Rep 548 (CA)], it was held: (All ER pp. 555 I-556 D) It is contended that the fact that Moody has given those bribes prevents him from getting any relief in a court of equity. The first consequence of his having offered the bribes is that the vendors could have rescinded the contract. But they were not bound to do so. They had the right to say no, we are well satisfied with the contract; it is a very good one for us; we affirm it. The proposition put forward by counsel for the defendants is: It does not matter that the contract has been affirmed; you still can claim no relief of any equitable character in regard to that contract because you gave a bribe in respect of it. If there is a mistake in the contract, you cannot rectify it, if you desire to rescind the contract, you cannot rescind it, for that is equitable relief. With some doubt they said: We do not think you can get an injunction to have the contract performed, though the other side have affirmed it, because an injunction may be an equitable remedy. When one asks on what principle this is supposed to be based, one receives in answer the maxim that anyone coming to equity must come with clean hands. I think the expression clean hands is used more often in the textbooks than it is in the judgments, though it is occasionally used in the judgments, but I was very much surprised to hear that when a contract, obtained by the giving of a bribe, had been affirmed by the person who had a primary right to affirm it, not being an illegal contract, the courts of equity could be so scrupulous that they would refuse any relief not connected at all with the bribe. I was glad to find that it was not the case, because I think it is quite clear that the passage in Dering v. Earl of Winchelsea [(1787) 1 Cox Eq Cas 318: 2 Bos & P 270], which has been referred to, shows that equity will not apply the principle about clean hands unless the depravity, the dirt in question on the hand, has an immediate and necessary relation to the equity sued for. In this case the bribe has no immediate relation to rectification, if rectification were asked, or to rescission in connection with a matter not in any way connected with the bribe. Therefore that point, which was argued with great strenuousness by counsel for the defendant, Hatt, appears to me to fail, and we have to consider the merits of the case.
14. In Halsburys Laws of England, 4th Edn., Vol. 16, pp. 874-76, the law is stated in the following terms:
1303. He who seeks equity must do equity.In granting relief peculiar to its own jurisdiction a court of equity acts upon the rule that he who seeks equity must do equity. By this it is not meant that the court can impose arbitrary conditions upon a plaintiff simply because he stands in that position on the record. The rule means that a man who comes to seek the aid of a court of equity to enforce a claim must be prepared to submit in such proceedings to any directions which the known principles of a court of equity may make it proper to give; he must do justice as to the matters in respect of which the assistance of equity is asked. In a court of law it is otherwise: when the plaintiff is found to be entitled to judgment, the law must take its course; no terms can be imposed.
* * * 1305. He who comes into equity must come with clean hands.A court of equity refuses relief to a plaintiff whose conduct in regard to the subject-matter of the litigation has been improper. This was formerly expressed by the maxim he who has committed iniquity shall not have equity, and relief was refused where a transaction was based on the plaintiffs fraud or misrepresentation, or where the plaintiff sought to enforce a security improperly obtained, or where he claimed a remedy for a breach of trust which he had himself procured and whereby he had obtained money. Later it was said that the plaintiff in equity must come with perfect propriety of conduct, or with clean hands. In application of the principle a person will not be allowed to assert his title to property which he has dealt with so as to defeat his creditors or evade tax, for he may not maintain an action by setting up his own fraudulent design.
The maxim does not, however, mean that equity strikes at depravity in a general way; the cleanliness required is to be judged in relation to the relief sought, and the conduct complained of must have an immediate and necessary relation to the equity sued for; it must be depravity in a legal as well as in a moral sense. Thus, fraud on the part of a minor deprives him of his right to equitable relief notwithstanding his disability. Where the transaction is itself unlawful it is not necessary to have recourse to this principle. In equity, just as at law, no suit lies in general in respect of an illegal transaction, but this is on the ground of its illegality, not by reason of the plaintiffs demerits. (See also Snells Equity, 13th Edn., pp. 30-32 and Jai Narain Parasrampuria v. Pushpa Devi Saraf [2006 (7) SCC 756]"
16. In the case of, Prestige Lights Ltd., v. State Bank of India reported in 2007 (8) SCC 449, at Paragraphs 26, 33, 34 and 35, it has been held as follows:
"26. In Gorden v. Gorden, (1904) 73 LJ 41 : 90 LT 597 : 16 Dig 90, 1128, Cozens Hardy, L.J. put the principle succinctly in the following words; "I desire expressly to limit my judgment to a case in which the [party in contempt] is saying that the order complained of is outside the jurisdiction of the court, as distinguished from the case of an order which, although it is within the jurisdiction of the court, ought not, it is said, to have been made.
........
33. It is thus clear that though the appellant- Company had approached the High Court under Article 226 of the Constitution, it had not candidly stated all the facts to the Court. The High Court is exercising discretionary and extraordinary jurisdiction under Article 226 of the Constitution. Over and above, a Court of Law is also a Court of Equity. It is, therefore, of utmost necessity that when a party approaches a High Court, he must place all the facts before the Court without any reservation. If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the Court, the Writ Court may refuse to entertain the petition and dismiss it without entering into merits of the matter.
34. The object underlying the above principle has been succinctly stated by Scrutton, L.J., in R v. Kensington Income Tax Commissioners, [(1917) 1 KB 486 : 86 LJ KB 257 : 116 LT 136], in the following words: "(I)t has been for many years the rule of the Court, and one which it is of the greatest importance to maintain, that when an applicant comes to the Court to obtain relief on an ex parte statement he should made a full and fair disclosure of all the material facts, not law. He must not misstate the law if he can help the Court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts, and the penalty by which the Court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it, the Court will set aside, any action which it has taken on the faith of the imperfect statement". (emphasis supplied)
35. It is well settled that a prerogative remedy is not a matter of course. In exercising extraordinary power, therefore, a Writ Court will indeed bear in mind the conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the Court, the Court may dismiss the action without adjudicating the matter. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of Court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ courts would become impossible."
17. In the case of, Udayami Evam Khadi Gramodyog Welfare Sanstha v. State of U.P., reported in 2008 (1) SCC 560, at Paragraph 15, it has been held as follows:-
"15. A writ remedy is an equitable one. A person approaching a superior court must come with a pair of clean hands. It not only should not suppress any material fact, but also should not take recourse to the legal proceedings over and over again which amounts to abuse of the process of law. In Advocate General, State of Bihar v. M/s.Madhya Death Khair Industries and Anr. [1980 (3) SC 311, this Court was of the opinion that such a repeated filing of writ petitions amounts to criminal contempt."
18. That apart, mere sending a representation to provide electricity supply does not satisfy the requirement of making the application in the prescribed format, along with production of necessary documents. In all respects, the petitioner has not made out a strong case. Considering the above, this Court is of the opinion that the petitioner has not satisfied the requirements for issuance of a writ of mandamus, directing the respondents to provide electricity service connection to Arulmigu Om Kaliamman Temple, by considering the petitioner's application, dated 20.08.2009.
16. For the aforesaid reasons, this writ petition is dismissed. No costs.
10.12.2013 Index:Yes Internet: Yes srk To
1. The Executive Engineer (O&M), TANGEDCO, Uratchi Kottai, Bhavani Tk, Erode District
2. The Junior Engineer (O&M), TANGEDCO, Jambai, Bhavani Taluk, Erode District S.MANIKUMAR, J., srk W.P.No.32284 of 2013 10.12.2013