Madras High Court
A.Sivaprakasam vs The Junior Engineer on 27 February, 2014
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:27.02.2014
CORAM
THE HONOURABLE MR.JUSTICE M.VENUGOPAL
W.P.No.16546 of 2013
A.Sivaprakasam ... petitioner
Versus
1.The Junior Engineer,
Tamil Nadu Electricity Board,
Rayappanur,
Kuttu Road P.O.,
Kallakurichi Taluk,
Villupuram District.
2.The Assistant Engineer,
Tamil Nadu Electricity Board,
Rayappanur,
Kuttu Road P.O.,
Kallakurichi Taluk,
Villupuram District.
3.The Junior Engineer,
Operation and Maintenance,
Tamil Nadu Electricity Board,
Kaniyamoor,
Chinna Salem P.O.,
Kallakurichi Taluk,
Villupuram District.
4.The Executive Engineer,
Tamil Nadu Electricity Board,
Anna Nagar,
Kallakurichi 606 202.
Villupuram District.
5.The Superintending Engineer,
Tamil Nadu Electricity Board,
Operation and Maintenance,
Kallakurichi,
Villupuram District 603 602.
6.The Chief Engineer,
Tamil Nadu Electricity Board Office,
9th Floor, Mount Road,
Chennai 600 002.
7.The Chairman,
Vigilance Officer,
Tamil Nadu Electricity Distribution Centre,
Mount Road,
Chennai 600 002.
8.The Special Officer,
Chief Minister Cell,
Secretariat,
Fort St. George,
Chennai 600 009.
9.A.Pichai Pillai
10.Subramanian ... Respondents
Prayer: Writ petition filed under Article 226 of the Constitution of India praying to issue a writ of Mandamus, directing 1 to 8 respondents to provide electricity service connection in respect of pump-set well situate in the schedule mentioned land at the petitioner with a further direction to award an amount of compensation of Rs.50,000/- (Rupees Fifty Thousand Only) to the petitioner herein.
For petitioner : Mr.Sivaprakasam
Party-in-person.
For Respondents : Mr.M.Varunkumar
for R1 to R7
Mr.V.Subbiah,
Special Govt. Pleader for R8
No Appearance for R9 and R10
O R D E R
The Petitioner has preferred the instant Writ of Mandamus praying for passing of an order by this Court in directing the Respondents 1 to 8 to provide electricity service connection, in respect of pump-set well situate in Survey No.23(4) measuring about 1 acre at Vasudevanur Village, Kallakurichi Taluk, Villupuram District. Further, he has sought for passing of an order by this Court in directing the Respondents 1 to 7 to award an amount of Compensation of Rs.50,000/- (Rupees Fifty Thousand Only) in his favour.
2. According to the petitioner, he is a small farmer. The Respondents 9 and 10 are his brothers. The Respondents 1 to 8 are empowered to supply motor service connection to him in the well situate on his lands. The properties falling in Survey No.23/4 absolutely belongs to him, which were obtained by partition dated 21.12.1997. In the said properties, he had dug a well in Survey No.23/4 during the year 1996 on his costs and efforts. The two certificates issued by the V.A.O are also proved that the land and well are owned by him in respect of Survey No.23/4. He is in possession and enjoyment of the well by cultivating the lands in Survey No.23/4 with the help of an oil engine purchased by him to prevent spending of money. Due to frequent repair of the oil engine, he could not draw out water from his well. As such, he projected an application before the 5th Respondent/Superintending Engineer (Operation and Maintenance) requesting to supply motor service connection in his own well situate in his own land bearing Survey No.23/4.
3. The third Respondent addressed a letter to the petitioner requiring him to rectify the defects pointed out therein and he complied with the same. The stand of the petitioner is that he sent a registered notice to the 4th Respondent for issuance of supply of motor service connection to his well in Survey No.23/4 and on 03.09.2011, it was acknowledged and he was not issued with the reply and also he was not given the supply of motor service connection. As such, he approached the Respondents which proved in vain. On 19.03.2012, the 7th Respondent sent a letter to the 6th Respondent interalia stating about the readiness of supply of service. But the second respondent's office no reply has been sent to the petitioner.
4. The grievance of the petitioner is that the Respondents had not followed the doctrine of legitimate expectation and he had submitted his application to the Electricity Board authorities on 03.02.1996 for power supply and its registration number and the readiness of sanction is placed in Number 533/96. According to him, he has made out a case for the grant of supply of electricity service connection to the petition mentioned property.
5. On behalf of Respondents 1 to 7, it is represented before this Court that the petitioner, an earlier occasion, projected W.P.No.19508 of 2012, claiming the same relief as prayed for him in the present writ petition. As such, the present writ petition filed by the petitioner is not prima facie maintainable in the eye of law.
6. The Learned counsel for Respondents 1 to 7 submits that as per the direction of this Court issued in W.P.No.19508 of 2012 dated 17.10.2012, (filed by the petitioner), the second respondent/Assistant Engineer, TNEB, Rayappanur, Kallakurichi Taluk, Villupuram District made an inspection at the petitioner's land and well in Survey No.23/4, Vasudevanur Village, on 10.09.2012 along with the Village Administrative Officer, accompanied with 10th Respondent A.Subramanian and that the petitioner was not available in the village. However, during the second respondent's inspection, it came to light that two wells are existing viz., one well is jointly existing in S.F.No.23/3 and 23/4 without water and is in the deteriorated condition. Another well is existing in S.F.No.23/2 and 23/20 which is having sufficient water with parapet wall. Both wells are jointly owned and under the enjoyment of all the three 'legal heirs'. The Patta is also standing in the name of all the three legal heirs, after the demise of the petitioner's father. A detailed field inspection report was filed in W.P.No.19508 of 2012.
7. The Learned counsel for the Respondents 1 to 7 brings it to the notice of this Court that in W.P.No.19508 of 2012 in Paragraph Nos.10 and 11, this Court on 17.10.2012 passed the following order:
"10. In the light of the above stated position, in order to meet the ends of justice, this Court is of the opinion that it would be appropriate to direct the 2nd respondent herein to consider petitioner's claim in accordance with the existing provisions of the relevant Act and Regulations. The 2nd respondent is hereby directed to receive necessary documents from the petitioner, issue notice to the concerned parties, namely brothers of the petitioner, give an opportunity of hearing to all concerned, hear them and pass appropriate orders in accordance with law and on merits within a period of four weeks from the date of receipt of a copy of this order.
11. As regard the claim of the petitioner for an award of compensation, it is the duty and obligation of any claimant to put fourth appropriate pleadings to establish his contentions about the quantum of loss suffered by him and equally, it is the responsibility of the concerned authority to put forth his defence in resisting such a claim. But, the contentions of both the parties can be decided in accordance with law not only on examination of the facts pleaded but, it has to be decided by letting in evidence both oral and documentary, before a Court of competent jurisdiction. In the absence of any such claim based on any pleading, it is not for this Court to consider the same and hence, this Court is not inclined to consider the claim of the petitioner for compensation. However, it is open to the petitioner to claim any compensation, if he so desires, from a competent Court of jurisdiction in accordance with law."
8. Added further, on behalf of Respondents 1 to 7, it is represented before this Court that the father of the petitioner, Athimoolam had applied for free agriculture service connection for his well in S.F.No.23/4, Vasudevanur Village and the above application was registered as Divisional Engineer, O & M, Kallkurichi Office vide registration No.533, on 03.02.1996. 30 days notice was issued on 01.11.2011 to him, to produce all the revenue records and to report his readiness to avail the free agriculture service connection on or before 03.12.2011. Subsequently, it came to light that the petitioner's father Athimoolam died leaving behind him three sons viz., 1.Pichai Pillai, 2.Siva Prakasam (petitioner in the present writ petition) and another viz., Subramanian (10th respondent in the writ petition) as his Legal Heirs.
9. The Learned counsel for the Respondents contents that the writ petitioner failed to obtain consent from his brothers and he filed W.P.No.19508 of 2012 and obtained a direction to the 2nd Respondent to inspect the site in question in the presence of respective parties and verified as to what are the wells situated in the area in question etc. A joint inspection notice was issued on 10.09.2012 to the said Pichaipillai, to the present writ petitioner and to the 10th respondent, who are the legal heirs of late Athimoolam. The site was inspected by the 2nd Respondent accompanied by the Village Adminsitrative Officer in the presence of writ petitioner and Subramanian, 10th respondent. In as much as the present writ petitioner was not available in the village. The 2nd Respondent submitted the inspection report to this Court.
10. As per order dated 17.10.2012, in W.P.No.19508 of 2012, notice was issued to the legal heirs of deceased Athimoolam, viz. the writ petitioner and his two brothers and the second respondent requested the petitioner and his brothers through the notice that free agriculture service connection could be given in the name of all the three legal heirs or in the name of any one with the written consent of the other two. The Legal Heirs of late, Athimoolam had made objection to the name transfer of the application in the name of petitioner. On 26.02.2011, the writ petitioner projected the transfer application in a complete manner. On 30.03.2011, the 2nd Respondent requested the petitioner to comply with the defects in the name transfer application, which was submitted by him earlier to the order of this Court. He had not provided the necessary documents and although he submitted the documents, which are inconsistent in the revenue records.
11. The Learned counsel for Respondents 1 to 7 proceeds to bring it to the notice of this Court that the document relied on by the petitioner in the present writ petition are prior to filing of the earlier writ petition in W.P.No.19508 of 2012 and that he suppressed the earlier writ petition No.19508 of 2012 and its order in the present writ petition.
12. The contention of Respondents 1 to 7 is that after the demise of petitioner's father Athimoolam, he along with other two legal heirs are entitled to get free agriculture service connection or in the name of any one with the written consent of other two Legal Heirs and further, it is the primordial duty of the writ petitioner to obtain no objection or written consent from his brothers to get service connection.
13. In regard to the claim of compensation of Rs.50,000/- (Rupees Fifty Thousand only) sought for by the petitioner in the writ petition, it is represented on behalf of Respondents 1 to 7 that they are not liable to pay the compensation amount in question, because of the fact that the delay to obtain service connection is not on their part and added further, the petitioner has not submitted relevant, suitable revenue documents in accordance with law till date.
14. Apart from the above, in W.P.No.15839 of 2013 (filed by the petitioner) before this Court, it is brought to the notice of this Court on behalf of Respondents 1 and 2 that the 10th respondent subramanian (in the present writ petition) has filed O.S.No.48 of 2013 on the file of Sub Court, Kallakurichi and the said suit was filed for partition among the said Subramanian, his brother Pichaipillai and the present writ petitioner. The said suit as on date is pending. In fact the petitioner in W.P.No.15839/13 had sought for issuance of separate Patta in his favour and his request for the same was negatived by the proceedings of the Revenue Tahsildar, dated 15.04.2013. This court, after appreciating the rival contentions and on taking note of the entire attendants facts and circumstances of the said case, ultimately dismissed the said W.P.No.15839/2013.
15. It is to be noted that Section 43 of Tamil Nadu Electricity Act, 2003 under the caption that due to supply on request runs 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, 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 clarification of such village or hamlet or area.
[Explanation. - For the purposes of this sub-section, "application" means the application complete in all respects in the appropriate form, as required by the distribution licensee, along with documents showing payment of necessary charges and other compliances:] (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 penalty which may extend to one thousand rupees for each day of default."
16. It is to be remembered that just because a power supply was given to a party does not confer ownership over the disputed land. Further, ordinarily the board can supply electricity subject to the execution of indemnity bond in the prescribed form. As a matter of fact, the Electricity Board is vested with the power to modify, alter or delete any terms and conditions of the supply and no notice required as per the decision Madura Coats Ltd., Madurai Vs. State of Tamil Nadu [2005 (5) CTC 133].
17. Indeed, Regulation 25 of the Tamil Nadu Electricity Distribution Code, 2004 and Section 42 of the Electricity Act, 2003 cast a duty on the Electricity Board to provide supply of electricity to owner or occupier of any premises whenever he applies for it as per the decision Bharat Heavy Electricals Ltd., Vs. Tamil Nadu Electricity Board [2007(2) MLJ 111 (Madras)]
18. It cannot be forgotten that the term 'Res Judicata' in law is treated as branch of 'Estoppel'. Also, 'Res Judicata' is a rule of procedure. In fact, it is not concerned with the question whether previous decision is right or wrong. A plea of 'Res Judicata' concerns the jurisdiction of Court which tries the proceedings. The doctrine of 'Res Judicata' is not merely a matter of procedure but also a doctrine evolved by the Courts in larger public interest. Moreover, 'Constructive Res Judicata' would apply even in case of title. Added further, the term 'Constructive Res Judicata' are quite applicable even when Civil Procedure Code is not available. To put it precisely, 'Constructive Res Judicata' is applicable to the writ petitions.
19. The term 'Res Judicata' is based on two principles, (a) There should be an end of litigation (b) No one should be vexed twice for the same cause.
20. Be that as it may, as far as the present case is concerned, this Court very relevantly points out that in view of the fact that a partition suit in O.S.No.48 of 2013 is pending on the file of Sub Court, Kallakurichi (filed by the brother of petitioner Subramanian-10th respondent in the present writ petition) and also this Court taking note of another important fact that the petitioner has not submitted relevant, suitable revenue documents before the Electricity authorities and to put it precisely, in view of the fact that the petitioner has not produced no objection or written consent from his brothers, to obtain service connection to the subject matter of the property in issue, comes to a resultant conclusion that the petitioner is to await for the out come of the decision of the civil suit in O.S.No.48 of 2013 pending on the file of Sub Court, Kallakurichi. After deliverance of judgment by the trial Court in the said suit, it is open to the petitioner to proceed further in the manner known to law and in accordance with law. As such, the relief sought for by the petitioner, when the suit in O.S.No.48 of 2013 is pending on the file of trial Court, the electricity service connection sought for by him the present writ petition cannot be granted in the eye of law. In this regard, this Court has taken very much into consideration, the brothers of the petitioner have not given any written consent or no objection in regard to the petitioner's claim of right of agriculture service connection in respect of the subject matter of property in issue. Viewed from any angle, the writ petition fails.
21. In the result, the writ petition is dismissed, leaving the parties to bear their own costs. The petitioner is directed to abide by the out come of the judgment of O.S.No.48 of 2013 and as soon as the trial Court delivers the judgment in the said suit, then it is open to the petitioner to chalk-out his further course of action in the manner known to law and in accordance with law.
22. As regards the claim of compensation of Rs.50,000/- (Rupees Fifty Thousand only), sought for by the petitioner in the present writ petition, the same is not granted by this Court, because of the fact that the petitioner's similar plea pertaining to compensation was earlier rejected by this Court dated 17.10.2012 in W.P.No.19508 of 2012 (filed by the petitioner) and the said finding operates as a Res Judicata much less a constructive Res Judicata and as such, the claim of the petitioner, for the second time, in the present writ petition is clearly hit by the said principles. Consequently, the claim of the petitioner in this regard claiming compensation is outrightly rejected in limine by this Court, as not maintainable. Liberty is granted to the petitioner to project necessary fresh petition/application, after judgment being delivered by the trial Court in O.S.No.48 of 2013 on the file of Sub Court, Kallakurichi.
27.02.2014
Index : Yes/No
Internet : Yes/No
vsm
To
1.The Junior Engineer,
Tamil Nadu Electricity Board,
Rayappanur,
Kuttu Road P.O.,
Kallakurichi Taluk,
Villupuram District.
2.The Assistant Engineer,
Tamil Nadu Electricity Board,
Rayappanur, Kuttu Road P.O.,
Kallakurichi Taluk,
Villupuram District.
3.The Junior Engineer,
Operation and Maintenance,
Tamil Nadu Electricity Board,
Kaniyamoor, Chinna Salem P.O.,
Kallakurichi Taluk,
Villupuram District.
4.The Executive Engineer,
Tamil Nadu Electricity Board,
Anna Nagar, Kallakurichi 606 202.
Villupuram District.
5.The Superintending Engineer,
Tamil Nadu Electricity Board,
Operation and Maintenance,
Kallakurichi,
Villupuram District 603 602.
6.The Chief Engineer,
Tamil Nadu Electricity Board Office,
9th Floor, Mount Road,
Chennai 600 002.
7.The Chairman,
Vigilance Officer,
Tamil Nadu Electricity Distribution Centre,
Mount Road,
Chennai 600 002.
M.VENUGOPAL, J.
vsm
8.The Special Officer,
Chief Minister Cell,
Secretariat, Fort St. George,
Chennai 600 009.
W.P.No.16546 of 2013
27.02.2014