C.B.M. College vs The Assistant Electrical Engineer on 2 November, 2011

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Madras High Court

C.B.M. College vs The Assistant Electrical Engineer on 2 November, 2011

Bench: V.Dhanapalan

       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED:     02.11.2011

CORAM:
THE HONOURABLE MR.JUSTICE V.DHANAPALAN

WRIT PETITION No.19465 of 2008

C.B.M. College,
rep.by its Secretary/Correspondent,
Sakethapuri, Kovai Pudur,
Coimbatore  641 042.						... Petitioner

Vs.

The Assistant Electrical Engineer,
Tamil Nadu Electricity Board,
Coimbatore Distribution Circle (South),
Kovai Pudur  641 042.						... Respondent

	Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorari to call for the records relating to the impugned order in Lr.No.AEE/K.P./Kattu GL/No.Nil dated 02.08.2008 issued by the respondent herein and quash the same.  

	For Petitioner	:	Mr.V.Mohanraj for 
					Mr.P.Muthukrishnan
	
	For Respondent	:	Mr.S.K.Rameshwar				

O R D E R

Heard Mr.V.Mohanraj, learned counsel appearing for P.Muthukrishnan, learned counsel for the petitioner and Mr.S.K.Rameshwar, learned counsel appearing for the respondent Electricity Board.

2. Challenging the impugned order in Lr.No.AEE/K.P./Kattu GL/No.Nil dated 02.08.2008 issued by the respondent herein and seeking to quash the same, the petitioner has filed the present writ petition.

3. According to the petitioner, their College is a government aided institution, established with an avowed object of imparting education for the rural mass in and around Coimbatore District and for that purpose, they approached the respondent for extending supply of electricity connection. The respondent Board granted service connection to the petitioner in S.C.No.387, an industrial line for bore well and other purposes in the year 1983. Earlier, in the year 1975, the respondent Board granted service connection in S.C.No.380, an industrial line for office use and in the year 1978, it granted service connection in S.C.No.392, an institutional line for Physics, Chemistry and aided lab. Thereafter, in 1979, the Board granted electricity service connection in S.C.No.393, an institutional line for S.F. Lab, M.B.A. and P.G. Block.

3a. The petitioner would state that the buildings for which electricity connection has been effected are independent and are permanently segregated and they are paying electricity charges without any default and there has been no objection from the side of the respondent Board for using 4 service connections all along. While so, the petitioner received a notice from the respondent on 28.07.2008, wherein the petitioner was called upon to apply for disconnection of 3 service connections within 7 days from the date of receipt of the notice failing which the service connection will be disconnected. To the said notice, the petitioner sent a reply on 01.08.2008 narrating the reasons for separate connections and requested the respondent to desist from disconnecting any service connection. But, without considering their objections, the respondent herein directed the petitioner to apply for disconnection of 2 service connections, failing which the service connection will be disconnected and the deposit will be appropriated towards the other service connections.

3b. It is the further submission of the petitioner that the distribution of electricity and supply of electricity in the State of Tamil Nadu is governed by Tamil Nadu Electricity Supply Code and Tamil Nadu Electricity Distribution Code, which have statutory force as provided under Sections 86 and 46 of Electricity Act, 2003. The Tamil Nadu Electricity Supply Code and Tamil Nadu Electricity Distribution Code came into force on 01.09.2004. There is no provision in the aforesaid code providing for retrospective operation of the said codes and therefore, the provisions of the aforesaid codes will come into operation prospectively.

3c. It is the contention of the petitioner that the above order of the respondent ought to have been issued under Section 27(13) of the Tamil Nadu Electricity Distribution Code (hereinafter referred to as 'Code'). Since the electricity connection was issued prior to the Code coming into force, the said provision will not apply to their case and therefore, the impugned order passed by the respondent is without jurisdiction.

3d. The petitioner would also submit that Section 21 of the Code provides for contingencies, wherein the respondent is entitled to disconnect. The contingency under which the respondent is entitled to disconnect electricity connection is when the consumer fails to pay the electricity charge or any sum or subject to the provisions of Water (Prevention and Control of Pollution) Act, 1974, Air (Prevention and Control of Pollution) Act, 1981 and Environment (Protection) Act, 1986. According to the petitioner, they have not defaulted in paying the electricity charges as well as any other sum to the respondent and they have not violated the pollution laws. In such circumstances, the respondent has no jurisdiction to disconnect the service much less than issuing a threat. Aggrieved by the order passed by the respondent herein, having no other efficacious remedy, the petitioner has approached this court.

4. Respondent has filed a counter affidavit. He has stated that the following services were allotted to the petitioner :

(i) S.C.No.380 in the name of CBM Managing Trust under tariff 111B (Industrial);

(ii) S.C.No.387 in the name of CBM Sakunthala Memorial Trustee under tariff 111B (Industrial);

(iii) S.C.No.392 in the name of Secretary, CBM College under tariff under 11B (Education Institute);

(iv) S.C.No.393 in the name of CBM Sakunthala Memorial Trust under 11B (Education Institute);

4a. As per the terms and conditions of supply of electricity then in force and as per clauses 27(13) and (14) of the Distribution Code prescribed by the Tamil Nadu Electricity Regulatory Commission (in short 'TNERC') now in force, it has been prescribed that "within a door number or sub door number, an establishment or person will not be given more than one service connection." The petitioner has availed different categories of supply for different purposes in the same premises in contravention to the terms and conditions of supply and the tariff order of the TNERC. As per the orders of the TNERC, Low Tension tariff 11B is applicable for supply to industrial purposes and not for educational purposes. In the above circumstances, the petitioner has been requested by a letter dated 28.07.2008 to avail a single service connection by disconnecting the other three services. The letter has been issued in conformity with the provisions of the Code prescribed by the TNERC.

4b. It is further stated by the respondent that after the enactment of the Electricity Act, 2003, the TNERC has specified the Tamil Nadu Electricity Distribution Code under Section 50 of the said Act read with 181 thereof and all other powers enabling in that behalf. Also, as per Section 185 of the Electricity Act, the Indian Electricity Act, 1910 and the Electricity (Supply) Act, 1948 are repealed. Therefore, the provisions of the Distribution Code prescribed by the TNERC are valid and lawful.

4c. The respondent has reiterated the old Terms and Conditions of Supply of Tamil Nadu Electricity Board in the counter, as extracted hereunder:

8.01. No Low Tension Service connection will be given to connect electrical equipments located in more than one door number/sub-door number/survey field number/sub-divided survey field number. The consumer shall also not extend supply to another door number/sub-door number/survey field number/Sub-divided Survey Field Number. For this purpose, the door number or sub-door number shall be the number given by the local body. 8.02. Within a door number or sub-door number, an establishment or person will not be given more than one service connection. 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.

However, more than one service connection in a door number/sub door number will be given if the second service connection is for a welding set in the same door number/sub-door number.

In agricultural connections, where the consumer requires a separate service connection for utilizing energy for radios and other appliances including domestic lighting in the farm house, more than one service connection in the same Survey Field Number/Sub-divided survey field number will be permitted.

The existing High Tension Consumers who want to avail a separate service for their expanded industrial activities within a door number or sub-door number (in the same premises) a new service connection shall be given.

4d. The respondent would submit that the above clauses 8.01 and 8.02 apply to the petitioner and hence, pray for dismissal of the writ petition.

5. To the above counter affidavit, the petitioner has filed a Reply affidavit stating as follows:

There are independent blocks in the College with physical demarcations put up on different survey numbers.

---------------------------------------------------------------------------------------- S.No. S.C.No. Block Survey No. Year ------------------- --------------------------------------------------------------------- 1 380 Office Block 131/3 1975 2 392 Chemistry Block 131/3 131/5 1978 3 393 Main Block 463/2 1979 4 387 Bore Well 131/4 1983 Therefore, each premises to which separate service connection has been effected is physically segregated. The total extent of the campus is more than 42 acres and more than 2000 students are studying. The petitioner institution is an aided institution and therefore, the petitioner prays to allow the writ petition.

6. Learned counsel for the petitioner would contend that the respondent ought to have seen that the provisions of the Code operates prospectively and there is no provision in the Code for retrospective operation. It is his further contention that the respondent ought to have seen that as service connections were issued to the petitioner prior to the date of notification of the Code, the provisions of the same will not apply to the petitioner and that the petitioner has not defaulted in paying any electricity charges or any other sum due to the Electricity Board and has not violated any provisions of the pollution laws. Hence, the respondent has no authority or jurisdiction to disconnect the service connections provided to the petitioner.

7. Per contra, learned counsel for the respondent would submit that electricity supply to the petitioner is governed by the provisions of the Code after the enactment of the Electricity Act, 2003 and the terms and conditions of the agreement entered into at the time of availing the supply. As such, the petitioner is bound by the provisions of the same and the terms and conditions prescribed from time to time. It is his further submission that a letter has been issued to the petitioner to avail a single service connection within the same premise as per Sections 27(13) and (14) of the Code.

8. I have given careful consideration to the submissions made by the learned counsel on either side and perused the relevant materials on record.

9. Admittedly, the petitioner Educational Institution is an aided institution; the total extent of the campus is more than 42 acres and more than 2000 students are studying. They claim that they are imparting education for the rural people in and around Coimbatore District. The respondent Board initially granted four service connections to the petitioner in (i) S.C.No.380, an industrial line for office use in the year 1975 (ii) S.C.No.392, an institutional line for Physics, Chemistry and aided lab in the year 1978 (iii) S.C.No.393, and institutional line for S.F. Lab, M.B.A. and P.G. Block in the year 1979 and (iv) S.C.No.387, an industrial line for borewell and other purposes in the year 1983. Therefore, the petitioner claims that the premises to which separate service connections are effected are independent and physically segregated and there has been no objection from the side of the respondent for using four service connections all along.

10. While so, the respondent issued a notice to the petitioner on 28.07.2008 calling upon them to apply for availing a single service connection within 7 days from the date of receipt of the notice failing which the service connection will be disconnected. On inspection by respondent Board on 24.07.2008, it was found that the petitioner Institution had service connections in Service Connection Nos.380 III B, 387 III B, 392 II B and 393 II B Coimbatore Division II. Further, in the notice, it is stated that Service Connections to the petitioner Institution vide S.C.Nos.380 III B and 387 III B were granted for industrial purpose; but, no industrial activities took place in the College campus. It is seen that 3 service connections vide S.C.Nos.380 III B, 392 II B and 393 II B are used in the petitioner College campus and the other service connection vide S.C.No.387 III B is used for borewell purposes. As per the Board rules, only one service connection has to be used in the petitioner college campus. Therefore, the petitioner was called upon to give their explanation within seven days from the date of notice to connect the service load of three other service connections with the service connection available in the college campus and submit an application for disconnection of three service connections and adjustment of Security Deposit already paid.

11. To the said notice, the petitioner submitted a explanation on 01.08.2008 stating that the service connections are granted to each premises separately and they requested the respondent Board to permit them to use the service connections in the same position, as they were granted earlier without any change. However, the respondent Board issued the impugned communication intimating that the petitioner College has to retain one service connection and disconnect the other two services connections; otherwise the respondent Board will take steps to disconnect the two electricity connections. The petitioner assailed the impugned order on the ground that the Tamil Nadu Electricity Distribution Code operates prospectively and there is no provision in the Code for retrospective operation and that the service connections were issued to them prior to the date of Notification and retrospective effect shall not apply to the petitioner. It is seen from the impugned order that the provision of the Code is not applicable to the case of the petitioner as per Section 21 of the Code, which provides for disconnection only in the event of failure on the part of the consumer to pay electricity charges or any other sum due to the respondent Board or in violation of law. According to the petitioner, they have not defaulted in paying any electricity charges or any other sum due to the Electricity Board and not violated any provisions of the Act and therefore, the impugned order is liable to be quashed.

12. To examine the above, it has to be seen that in the years 1975, 1978, 1979 and 1983, during which periods, the petitioner had obtained electricity service connections, the Electricity Act, 1910 and the Electricity (Supply) Act, 1948 are the relevant laws and as per Section 185 of the Electricity Act, the above acts are repealed. Therefore, the provisions of the Distribution Code prescribed by the Electricity Regulation Commission are valid and lawful in view of the Electricity Act, 2003, and the Tamil Nadu Electricity Regulatory Commission has ratified the Tamil Nadu Electricity Distribution Code under Section 50 of the Act read with Section 181 of the Act.

13. As per the prevailing position, when the Indian Electricity Act, 1910 and Electricity (Supply) Act, 1948 were in force, the Special Terms and Conditions of Tamil Nadu Electricity Board, would read thus :

7.00 Special Terms and Conditions :

7.01 Subject to the provisions of Indian Electricity Act, 1910 and Electricity (Supply) Act, 1948, the Board may stipulate special terms and conditions in specific cases for extending supply.

8.00 SERVICE LINES :

8.01. No Low Tension Service connection will be given to connect electrical equipments located in more than one door number/sub-door number/survey field number/sub-divided survey field number. The consumer shall also not extend supply to another door number/sub-door number/survey field number/Sub-divided Survey Field Number. For this purpose, the door number or sub-door number shall be the number given by the local body.

8.02. Within a door number or sub-door number, an establishment or person will not be given more than one service connection. 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.

However, more than one service connection in a door number/sub door number will be given if the second service connection is for a welding set in the same door number/sub-door number.

14. Now, the present position is that Electricity Act 2003 came into force from June 2003 and Chapter 6 of the Tamil Nadu Electricity Distribution Code, 2004, which provides for the terms and conditions for supply of electricity, proviso to Section 27 (1) would read thus:

27. (1) Requisitions for supply of energy :

(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. Section 27 (13) and (14) would read thus :

(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 ore 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. A comprehensive reading of the terms and conditions of the Electricity (Supply) Act, 1948 and the terms and conditions framed under the Electricity Act, 2003 coupled with the provisions of the Code would reveal that 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 if there is a permanent physical segregation of areas for which different service connections are applied.

16. A perusal of the records would reveal that the petitioner has applied for service connection earlier and has got industrial service connection for office use in the year 1975; an institutional line for Physics, Chemistry and aided lab in the year 1978; an institutional line for S.F. Lab, M.B.A. and P.G. Block in the year 1979 and an industrial line for borewell and other purposes in the year 1983, which the respondent has granted considering the permanent physical segregation of the area in question at that time and the same are in existence till now. Be that as it may, clause 8.02 of the old terms and conditions of the Electricity (Supply) Act and clause 27(14) of the terms and conditions of the Tamil Nadu Electricity Distribution Code, 2004 are in similar lines, making it clear that more than one service connection will be given if there is a permanent physical segregation of areas for which different service connections are applied for and accordingly, the petitioner was granted separate service connections. In the given situation, it is not open to the respondent now to interpret the provisions as well as the terms and conditions of the Electricity Act,2003, in a different manner to defeat the very purpose of the legislation and also the provisions of the Electricity Distribution Code.

17. It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have a retrospective operation. But, the rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations. Unless there are words in the statute sufficient to show the intention of the legislature to affect existing rights, it is deemed to be prospective only nova constitutio futuris formam imponere debet non praeteritis a new law ought to regulate what is to follow, not the past.

18. The absence of a provision expressly giving a retrospective operation to the legislation is not determinative of its prospectivity or retrospectivity. Intrinsic evidence may be available to show that the amendment was necessarily intended to have retrospective effect and if the Court can unhesitatingly conclude in favour of retrospectivity, the Court would not hesitate in giving the Act that operation unless prevented from doing so by any mandate contained in law or an established principle of interpretation of statutes.

19. Four factors are necessary for interpretation of a statute. They are, (i) general scope and purview of the statute; (ii) the remedy sought to be applied; (iii) the former state of the law; and (iv) what it was the legislature contemplated.

20. The presumption against retrospective operation is not applicable to declaratory statutes. In determining, therefore, the nature of the Act, regard must be had to the substance rather than to the form. If a new Act is to explain an earlier Act, it would be without object unless construed retrospectively. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended. An amending Act may be purely declaratory to clear a meaning of a provision of the principal Act which was already implicit. The above is the law laid down by the Supreme Court in Zile Singh v. State of Haryana, (2004) 8 SCC 1. The said principle is also enunciated by the Supreme Court in State of Punjab v. Bhajan Kaur and Others, (2008) 12 SCC 112.

21. In the case on hand, the old Act and the new Act provide a provision for providing more than one electricity connection where more than one person or establishment is in occupation of a door number or sub-door number, if there is a permanent physical segregation of areas for which different service connections are applied. Under the circumstances, when the petitioner has been enjoying such a connection for more than three decades, it is not proper for the respondent to interpret the present Act and the terms and conditions of the Code in a different manner to give effect retrospectively, taking away the vested right of the petitioner.

22. It is also a well settled proposition that a change in the substantive law, as opposed to adjective law, would not affect the existing rights unless the legislature has enacted otherwise, either expressly or by necessary implication.

23. In the instant case, when the Act contemplates certain vested rights, both in the original as well as in the new terms and conditions, and the said rights having been enjoyed by the petitioner institution and allowed by the respondent for a considerable period of time, it will not be possible for the respondent to proceed against the petitioner, by giving a different interpretation to the Act or the Code.

24. Significant it is to mention that the impugned order, dated 02.08.2008, calling upon the petitioner to apply for a single service connection as against the four connections, does not speak as to under what provisions the said order is passed. Even assuming, as contended by the learned counsel for the respondent, that the said order has been passed as per Section 27 and sub-sections (13) and (14) thereof of the Code, the said provisions shall apply only prospectively, but not retrospectively. Equally, it is nowhere stated in any of the provisions that those persons or establishments who are already having more than one service connection have to apply for single service connection.

25. It is well settled, as stated above, that any law, Act, order, rule or regulation shall be only prospective unless it is expressly stated therein that it has retrospective effect. In the present case, Clause 8.02 of the old terms and conditions of the Act and Clause 27 (14) of the new terms and conditions of the Code unequivocally state that where more than one person or establishment is in occupation of a door number or sub-door number, more than one service connection will be given if there is a permanent physical segregation of areas for which different service connections are applied, which means that one door number or sub-door number will be given more than one connection if that premises consists of more than one person or establishment, subject to the condition of permanent physical segregation of areas, for which different service connections are applied. So, the case of the petitioner herein exactly falls under the above category, as there is permanent physical segregation of areas, for which different service connections are applied and given. As such, Clause 8.01 of the old Act and Clause 27 (13) of the Code shall not have any adverse effect on the above category of cases. Therefore, in the absence of any specific provision in the Act or the Code as to application of retrospection to the service connections prior to the coming into force of the said Act and the Code, the impugned order, which is passed without any reference to the provisions of the Act or the Code, is unsustainable in law.

26. In view of what is stated above, the action contemplated by the respondent and the impugned proceedings initiated by him are ex facie illegal and contrary to the provisions of the Electricity Act and the Tamil Nadu Electricity Distribution Code and the same cannot be sustained. Accordingly, the impugned order dated 02.08.2008 passed by the respondent is quashed and the Writ Petition is allowed. No costs.

To :

The Assistant Electrical Engineer, Tamil Nadu Electricity Board, Coimbatore Distribution Circle (South), Kovai Pudur 641 042

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