Madras High Court
Raja Mohan @ Mohan vs The Divisional Engineer on 9 March, 2016
Bench: S.Manikumar, C.T.Selvam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 09.03.2016
CORAM
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
and
THE HONOURABLE MR. JUSTICE C.T.SELVAM
W.P.(MD)No.4772 of 2016 and
W.M.P.(MD)No.4291 of 2016
Raja Mohan @ Mohan ... Petitioner
Vs.
1.The Divisional Engineer,
Operation and Maintenance,
Tamil Nadu Electricity Board,
Srirangam, Trichy.
2.The Assistant Divisional Engineer,
Operation & Maintenance,
Tamil Nadu Electricity Board,
Samayapuram,
Trichy.
3.The Junior Engineer,
Operation and Maintenance,
Tamil Nadu Electricity Board,
Siruganur,
Trichy.
4.S.K.Abdul Subahan ... Respondents
Writ petition filed under Article 226 of the Constitution of India
praying for issuance of a Writ of mandamus forbearing the 1 to 3 respondents
from giving electricity connection to the property situated in S.F.No.499/5
and S.F.No.498/1 in Sanamangalam village.
!For Petitioner : Mr.S.Muthukrishnan
For Respondent :
:ORDER
(order of this Court was made by S.MANIKUMAR, J.) The petitioner, a former Councillor of Manachanallur Panchayat Union and claiming himself to be a social worker, working for the welfare of people, has sought for a writ of mandamus forbearing the respondents 1 to 3 from giving electricity connection to the property situated in S.F.No.499/5 and S.F.No.498/1 in Sanamangalam village.
2. On the basis of the averments made in the supporting affidavit and the documents enclosed, Mr.S.Muthukrishnan, learned counsel for the petitioner submitted that earlier when the writ petitioner, brought to the notice of the District Collector, Trichirappalli, alleging encroachments and sought for removal, no action was taken. Hence, he filed W.P.(MD).No.5839 of 2015 for a mandamus directing the District Collector, Trichirappali to consider the representation dated 13.05.2008 and to take appropriate action, in accordance with law. Vide order dated 02.07.2008, the said writ petition was disposed of, giving directions to the District Collector, Trichirappali to consider the representation of the village people and pass orders, in accordance with law.
3. The learned counsel for the petitioner further contended that pursuant to the directions made in W.P.(MD).No.5839 of 2015, dated 02.07.2008, the Tahsildar, Manachanallur Panchayat, vide proceedings in R.C.No.A1/4631-2008, dated 23.08.2008 sent a letter to the District Collector, Trichirappalli stating that there were encroachments in S.No.499/5 and certain persons, had caused law and order problems.
4. He also submitted that the District Collector in Na.Ka.A8/2382/2008 dated 30.03.2009 has directed the Revenue Divisional Officer, Lalgudi, to take suitable action. As regards the enquiry report on the allegations against the Panchayat President of Sanamangalam Panchayat Union, the District Collector, in his further proceedings in Na.Ka.A8/2382/2008, dated 30.03.2009, has advised the District Superintendent of Police, (Law and Order) to supervise the activities of the Panchayat President, Sanamangalam Panchayat Union discreetly, even though there was no prima facie supporting materials and to take action on the alleged encroachers.
5. Learned counsel for the petitioner also relied on a report of the Village Administrative Officer of No.17, Periyakurukkai, Lalgudi Taluk, to contend that in S.No.499/5, Sanamangalam Panchayat Union, Manachanallur, there are encroachments. Added further, he also submitted that government property is openly sold by Mr.S.K.Abdul Subhan, respondent No.4 herein.
6. Attention of this court is also brought to a proceedings of the Tahsildar, Manachanallur in Na.Ka.No.AA1-100-2015, dated 11.06.2015, addressed to the Divisional Engineer, Operation and Maintenance, Srirangam, Tamil Nadu Electricity Board, wherein, the Revenue Authority has stated that the lands in S.Nos.498/1 and 499/5 belong to the Government and in the event of any request made to provide electricity service connection, in the above said survey numbers, the said request need not be accepted.
7. Thus, in the light of the abovesaid proceedings, learned counsel for the petitioner, submitted that the encroachers in S.Nos.498/1 and 499/5 are not entitled to have electricity service connection. In the above said circumstances, he submitted that when there is a failure to perform the statutory duties, mandamus is sought for.
8. Heard the learned counsel for the petitioner and perused the materials on record. Document No.1 enclosed in the typed set of papers is the copy of the A Register. Relevant entries in the A-Register shows to the effect that the lands in Sy.Nos.498/1 and 499/5 have been classified as ?Tharisu? (Government Land).
9. Indisputably, in the revenue records, it has been classified as 'tharisu'. (Government land). Pursuant to the directions of this court in W.P.No.5839 of 2008, dated 02.07.2008, revenue officials, have recorded that in Sy.Nos.499/5, there are alleged encroachments and hence, action has been directed to be taken. However, we find that there are no materials in the typed set of papers to show as to what action, has been taken, after 2008 and 2009.
10. Further, material on record discloses that the Village Panchayat council has passed a resolution on 19th October 2009 to grant patta to the poor and landless people in S.No.499/5 measuring 0.81.0 ares. Certificate of the Village Administrative Officer, No.17, Periyakurukkai, Lalgudi Taluk, dated 11.01.2010 shows to the effect that some people have already encroached upon the lands in Sy.No.499/5. Patta seemed to have been issued to certain persons. House tax has also been levied to an occupant, namely, Chellapappu, residing at Door No.6/68, Thirumal Nagar, M.R.Palayam. The Certificate of the Village Administrative Officer, No.17, Periyakurukkai, Lalgudi Taluk, dated 11.01.2010 is extracted hereunder:
JpUr;rp khtl;lk;> 17> bghpa FWf;if fpuhk eph;thf mYtyh; kz;zr;rey;Yhh; tl;lhr;rpaUf;F gzpe;J vGjpf;bfhz;l rhd;W ,yhy;Fo tl;lk;> bghpa FWf;if fpuhkj;ij rhh;e;j fPH;f;fz;l egh;fs;. kz;zr;rey;Yhh; tl;lk;> rdkq;fyk; rpuhk g[y vz;. 499/5y; 0.81.0 Vh;]; muR jPh;it Vw;gl;l g[Q;ir jhpR epyj;jpy; fPw;W Foirfs; nghl;L Mf;fpukpg;g[ cs;sth;fspd; nkw;go fpuhkj;jpy; brhe;j tPL> kw;Wk; epyk; cs;sJ vd;gjw;fhd fPH;fz;lthW rhd;W mspf;fg;gLfpwJ.
1. mq;fk;khs;> f/bg.fz;zd; brl;o
2. fhh;j;jpfh> f/bg> bry;yj;Jiu ,th;fs; ,UtUk; xbu Flk;gj;ij nrh;e;jth;fs;. nkw;go egh;fSf;F bghpaFWf;if fpuhkj;jpy; g[y vz;.480/3y; 0.36 Vh;] epyk; brhe;jkhf cs;sJ. (gl;lh vz; 982) Mfk;. bkw;goahUf;F TN 45/J 8875 TVS Victor vd;w mk;ghrpl;lh; fhh; kw;Wk; TNN-1631 L tPyh; nkhl;lhh;
irf;fps; brhe;jkhf cs;sJ. ,th; tPLfl;Lk; fhd;l;uhf;lh; nk];jphp bjhHpy; bra;J tUfpd;whh;.
3. jdbyl;Rkp> f/bg. brq;fkiy ,th; fztid ,He;J tpjit. ,th; fzth; nkhl;lhh; tpgj;jpy; fle;j rpy Mz;LfSf;F Kd; ,we;Jtpl;lhh;. ,tUf;F muR 1 yl;rk; epthuzkhf tHq;fpa[s;sJ. nkYk; nkw;go fpuhkj;jpy; xU Xl;L tPLk;> xU TiutPLk; ,uz;L tPLfs; brhe;jkhf cs;sJ.
4. bry;yg;ghg;g[, f/bg.uh$P vd;gtUf;F bghpa FWf;if fpuhkk; fjt[ vz;.5/214y; xU Tiu tPL cs;sJ. ,e;j tPl;Lf;F muR ,ytr kpd; ,izg;g[ bfhLj;Js;sJ. nkw;go tPl;Lf;F gQ;rhaj;Jf;F tPl;L thp brYj;jp mDgtpj;J tUfpwhh;.
5. mQ;rhk;g[yp> j/bg.bgUkhs; vd;gtUf;F bghpa FWf;if fpuhkj;jpy; ,th; kidtpf;F ghj;jpakhd ,uz;L Tiu tPLfs; ,oe;j epiyapy; fhypahf cs;sJ. Epyk; nkw;go fpuhkj;jpy; g[y vz;.308/4y; Rkhh; 3 Vf;fh; epyk; cs;sJ. nkYk; rdkq;fyk; fpuhkj;jpy; g[y vz;.508/3y; 0.80.5 Vh;]; epyj;jpy; fpzW btl;o ,ytr tptrhap kpd; ,izg;g[ bgw;Ws;shh;. ,tuJ FLk;gj;jpw;F ouhf;lh; kw;Wk; og;gh; cHt[ ,ae;jpu tz;ofs; cs;sJ. nkYk; jpUr;rp khefuk; @Puq;fk; gFjpapy; ,tUf;F tPL brhe;jkhf cs;sJ vd tprhuizapy; bjhpatUfpwJ. nkw;fz;l egh;fSf;F fpuhk fzf;Ffis rhpghh;j;J brhj;J cs;sJ vd rhd;W mspf;fg;gLfpwJ.
(sd.) fpuhk eph;thf mYtyh;
17> bghpa FWf;if yhy;Fo tl;lk;.
11. When the matter stood thus, the petitioner, has sent an advocate notice, dated 23.10.2012 to the Divisional Engineer, Operation and Maintenance, Tamil Nadu Electricity Board, Srirangam, Trichy and two others, not to provide electricity connection to those who had allegedly encroached Sy.No.499/5. The lawyer's notice stated supra does not refer to sy.No.498/1. The petitioner seemed to have sent a representation dated 26.06.2015 captioned as ?Appeal? to the District Managing Committee and the District Collector, Trichirappalli, once again reiterating that there are encroachments in Sy.No.498/1 and 499/5, Manachanallur Taluk, Sanamangam Village, Lalgudi Taluk, Trichiripalli District. The Tahsildar, Manachanallur, by his proceedings dated 11.06.2015 has requested Divisional Engineer, Operation and Maintenance , Tamil Nadu Electricity Board, Srirangam, not to entertain any request, if any made, for supply of electricity connection in Sy.Nos.498/1 and 499/5.
12. The documents produced by the petitioner indicate that some representations have been made in the year 2008-2009 for removal of the alleged encroachments in Sy.Nos.498/1 and 499/5. Document enclosed in the typed set of papers shows that house tax has been levied to one of the occupants residing in Dr.No.6/68, Thirumal Nagar, M.R.Palayam. Though the petitioner has contended that the government property is sold by respondent No.4, there is absolutely no material supporting the same. Even as per the revenue records viz., A Register enclosed in the typed set of papers, lands in Sy.Nos.498/1 and 499/5 situated at Manachanallur Taluk, Sanamangam Village, Lalgudi Taluk, Trichiripalli District, have been described only as ?Tharisu? (Government land). In a country like India, poor and landless people, some times encroach upon the Government poromboke lands. Such encroachment over a period of time has also been recognised by the Government, so as to enable them to seek for issuance of patta, if such lands are not required by the Government. Unless and until public at large is affected, in any manner, causing obstruction to any pathway or rearing cattle and for any other genuine public purpose, eviction cannot be sought on the sole ground that there are encroachments. Insofar as removal of encroachment is concerned, it is for the authority to decide as to whether the land allegedly encroached is required or not.
13. On that aspect as to whether electricity supply can be given to an occupier of a poromboke land, after considering the statutory provisions in the Electricity Act, 2003, Tamil Nadu Electricity Distribution Code, 2004 and in particular Regulation 27 of the Code, one of us (SMKJ) in W.P.No.17608 of 2013 and M.P.No.1 of 2013, dated 27.09.2013 in T.M.Prakash and Others V. District Collector, Thiruvannamalai District, Tiruvannamalai and Another reported in (2014) 1 MLJ 261 at paragraph Nos.57, 58, 59, 60, 62, 65, 66, 67, 68, 69 70, 81 and 87 held as follows:
?57. Regulation 2(x) of the Tamil Nadu Electricity Distribution Code, 2004, defines the word, Occupier as the person in occupation (whether as owner or otherwise) of the premises, where electricity is used or intended to be used. The word occupier is defined in the same manner, in Regulation 2(p) of the Tamil Nadu Electricity Supply Code, 2004. The above definition clearly convey that any person, who intends to use electricity, can seek for supply.
58. As per the Regulation 27(4) of the Tamil Nadu Electricity Distribution Code, 2004, an intending consumer who is not the owner of the premises, shall produce a consent letter in Form 5 of Annexure III, to the Tamil Nadu Electricity Distribution Code, from the owner of the premises, for electricity supply. If the owner is not available or refuses to give a 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 of effecting service connection to the occupant and acceptance to pay security deposit, twice the normal rate.
59. The word "occupier", means any person in occupation (whether as owner or otherwise) of the premises, where electricity is used or intended to be used, has been expanded in the Tamil Nadu Electricity Distribution Code, 2004, to an intending consumer also, who is not the owner of the premises, but in "lawful occupation", of the same.
60. The issue, as to whether, persons in occupation of Government poromboke lands, can also been given electricity service connection, has been considered by the Tamil Nadu Electricity Regulatory Commission. Regulation 27(12) has been amended, vide Commission's Notification No.TNERC/DC/8-3, dated 31.05.2006, with effect from 21.06.2006. Before the amendment, the said regulation stood as follows:
Supply shall be given in poromboke land on production of necessary documents as per the directive from the Government from time to time. After the amendment, as per the above notification, the amended Regulation reads as follows:
(12) Supply shall be given in poromboke land on production of-
(i) No Objection Certificate obtained from the Officer (not below the rank of Deputy Tahsildar) or
(ii) Where such No Objection Certificate could not be produced by the applicant for service connection the following undertaking shall be furnished:-
(1) "I am aware that I am liable to be evicted and for supply disconnection at any time, if the lands are required by the Government and/or any dispute arises at a later date and that electricity supply given in this regard will not confer any claim on ownership of the land.
(2) I am aware that the above undertaking shall not confer permanent and full right to the ownership of the land."
62. ............. A combined reading of Regulation 27(12) with the application Form, for Hut service as provided in Form-3, makes it clear that a person, requiring electricity service connection, should obtain a "No Objection Certificate" from the officer, not below the rank of Deputy Tahsildar or where such "No Objection Certificate" could not be produced by the applicant, for service connection, he must give an undertaking, as stated supra.
65. When Tamil Nadu Electriciy Distribution Code, 2004, makes it mandatory on the licencee, to provide electricity supply, to those, who are in occupation of poromboke lands, on production of "No Objection Certificate", from the Officer, not below the rank of Deputy Tahsildar or where no such No Objection Certificate could not be produced by the applicants for service connection and when the applicants can give an undertaking or declaration, stated supra, the licencee cannot deny electricity service connection to the petitioners, who have substantiated their continuous occupation and also admitted by the 2nd respondent, in his counter affidavit.
66. Lack of electricity supply is one of the determinative factors, affecting education, health, cause for economic disparity and consequently, inequality in the society, leading to poverty. Electricity supply is an aid to get information and knowledge. Children without electricity supply cannot even imagine to compete with others, who have the supply. Women have to struggle with firewood, kerosine, in the midst of smoke. Air pollution causes lung diseases and respiratory problems. Electricity supply to the poor, supports education and if it is coupled with suitable employment, disparity is reduced to certain extent. Lack of education and poverty result in child labour.
67. When right to education upto the age of 14 years is a fundamental right, when right to health is also recognised as a right to life, under Article 21 of the Constitution of India, access to electricity supply should also be considered as a right to life, in terms of Article 21 of the Constitution of India. The respondents ought to have addressed all the issues, instead of banking on the Committee's decision, which in the humble opinion of this Court, is not in aid of human right, but inapposite to the need for, providing the basic amenity, electricity. The authorities ought to have considered, whether it would be effective enforcement of Article 21 or Article 21-A of the Constitution of India, while denying the petitioners, access to electricity supply.
68. The respondents ought to have visualised the difficulties of the women, children and aged persons, living in the huts for several years, without electricity. Electricity supply is an essential and important factor for achieving socio-economic rights, to achieve the constitutional goals with sustainable development and reduction of poverty, which encompasses lower standards of living, affects education, health, sanitation and many aspects of life. Food, shelter and clothing alone may be sufficient to have a living. But it should be a meaningful purpose. Lack of electricity denies a person to have equal opportunities in the matter of education and consequently, suitable employment, health, sanitation and other socio-economic rights. Without providing the same, the constitutional goals, like Justice, Liberty, Equality and Fraternity cannot be achieved.
69. Right to electricity to a person in occupation of Government poromboke lands is recognised in the Distribution Code and it is integral to the achievement of socio-economic rights. It is extricably related to amolerate poverty. Electricity is an implicit component and facet of human right. In the light of the above discussion, the respondents ought to have come forward to provide electricity supply to the petitioners, instead of opposing the relief sought for.
70. Access to electricity should be construed as a human right, of course, to the requirements to be satisfied under the electricity laws. Denial of the same, upon even satisfying the requirements, would amount to violation of human rights. The action of the respondents is regressive. Electricity supply under the Electricity Act, the Distribution and Supply Code, is a legal right. ........
81. Removal of encroachment is different, from entitlement to seek for electricity supply. The law applicable for removal of encroachment and the mandatory duty to provide electricity, under the electricity law, are different and distinct. The delegated legislation, taking note of occupation of those in poromboke lands, has recognised them as "occupiers", entitled to seek for electricity supply, and in such circumstances, while removal of encroachment can be done, as per the procedure under the Encroachment Laws, supply of electricity cannot be denied to the "occupier" of poromboke lands. ......
87. It is the fundamental duty of the respondents to show compassion to those who are living in huts and tenements for long number of years, taking into consideration their socio-economic disabilities, without electricity supply for many years. Preamble to the Constitution of India guarantees right of every person to justice, social, economic and political. When socio and economic justice is the mandate of the Constitution of India, it is a traversity of justice to deny electricity to the petitioners. Income is one of the sources for achieving an egalitarian society and it is the fundamental right to decent living. Providing electricity to the poor, subject to the satisfying conditions, as per the electricity laws, would reduce the economic imbalance and help the under privileged. The authorities should be pragmatic and realistic to the constitutional goals. The weaker sections and under privileged do not crave, in their heart, for power in hierarchical positions, they only want electric power to have "lighting" in their house. Hut dwellers cannot expect and afford luxury. But for them, it is only a basic amenity. Electricity supply should, not only be extended to pattadars or the owners of lands, but it should also be extended to the poor and the needy, who live in government poromboke lands, when they substantiate occupation, for a considerable period.?
14. Insofar as the prayer for a mandamus directing the respondents 1 to 3 not to give electricity connection to the dwellers/occupants of Sy.Nos.498/1 and 499/5 situated at Manachanallur Taluk, Sanamangam Village, Lalgudi Taluk, Trichiripalli District, the same cannot be granted, in the light of the statutory provisions in Tamil Nadu Electricity Code. Hence, supply of electricity to an individual cannot be restrained by a mandamus. In the light of the above discussion and decision taken note of, this court is not inclined to issue any mandamus as prayed for.
15. Accordingly, this writ petition is dismissed. There is no order as to costs. Consequently, connected miscellaneous petition is also dismissed.
To
1.The Divisional Engineer, Operation and Maintenance, Tamil Nadu Electricity Board, Srirangam, Trichy.
2.The Assistant Divisional Engineer, Operation & Maintenance, Tamil Nadu Electricity Board, Samayapuram, Trichy.
3.The Junior Engineer, Operation and Maintenance, Tamil Nadu Electricity Board, Siruganur, Trichy..