Madras High Court
C.Ramasamy vs Hospital 'Z' Reported In (1998) 8 Scc 296 on 9 October, 2013
Author: S.Manikumar
Bench: S.Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.10.2013 CORAM: THE HONOURABLE MR. JUSTICE S.MANIKUMAR W.P.No.18868 of 2013 M.P.No.2 of 2013 C.Ramasamy ... Petitioner v. 1.The Assistant Engineer, Operation & Maintenance, TNEB, Vaippamalai (West), Thiruchengodu Tk., Namakkal District 637 202. 2.The Assistant Executive Engineer, Operation & Maintenance, TNEB, Elachipalayam, Thiruchengodu, Namakkal District 637 202. 3.K.Chinnanna Gounder 4.K.Palaniappa Gounder .. Respondents Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus calling for the records pertaining to the impugned order, Letter No.A.E/O&M/Vai.Me./Ka: Thani/No.031/13-14 dated 04.05.2013 issued by the first respondent and quash the same and consequently to direct the respondents 1 and 2 to provide electricity supply to the house of the petitioner situated in Survey No.314/3B, Periamanali Village, Thiruchencode Taluk, Namakkal District and to pay compensation to the petitioner for the sufferings undergone by the petitioner. For petitioner : Mr.N.Subramaniyan For respondents 1 & 2 : Mr.S.K.Raameshuwar, Standing Counsel for TNEB For respondents 3 & 4 : Mr.Naveen Kumar Murthy O R D E R
This is yet another case of denial of electricity to the owner of a house, on the objections raised by his own kith and kin. The third respondent is the petitioner's father. The fourth respondent is the paternal uncle of the petitioner.
2. According to the petitioner, he is the owner of the land in Survey No.314/3B. He has put up a house in June, 2001. He has purchased the land in Survey No.314/3B including 1/3rd share in 314/3C of Periamanali Village, Thiruchengode Taluk, Namakkal District. He has made an application in June' 2011, to the Assistant Engineer, Operation & Maintenance, TNEB, Vaippamalai (West), Thiruchengodu Taluk, Namakkal District / first respondent for electricity supply. On 17.11.2011, the first respondent sent a reply to the petitioner stating that the respondents 3 and 4 are objecting to planting of electric posts or taking electric lines over the land situated in Survey No.314/3C, a common pathway, owned by the petitioner and respondents 3 and 4 and in such circumstances, respondents 1 and 2 have directed the petitioner to clear the objections or to provide an alternate route.
3. Thereafter, on 28.12.2011, the petitioner made an appeal to the concerned Superintending Engineer. The Assistant Executive Engineer, Operation and Maintenance, Tamil Nadu Electricity Board, Elachipalayam, Tiruchengode, Namakkal District, second respondent herein, sent a reply to the said appeal, stating that pursuant to the application, an estimate has been prepared and approved, and that electricity connection would be given subject to the Board's regulations , after allocation of electric posts and electric wires. Subsequently, the petitioner paid a sum of Rs.50/- towards the application and registration fees on 02.01.2012 and Rs.35,090/- towards caution deposit, CC Deposit, Development Charges and Erection Charges on 3.3.2012.
4. The petitioner has further submitted that when the respondents 1 and 2 have brought the electric poles to the site, objections were made by respondents 3 and 4 and their sons. Citing their objections, respondents 1 and 2, did not carryout the work which had been sanctioned and instead, directed the petitioner to solve the issue or to provide an alternate route.
5. The petitioner has further submitted that the lands situated in Survey No.314/3B includes 1/3rd share in the pathway in Survey No.314/3C and that the same was purchased by the petitioner from the legal heirs of Subramani Asari in the year 2001, vide registered Sale Deed No.683 dated 18.06.2001 on the file of Sub-Registrar, Velagoundampatti. Earlier, the said lands were purchased by the petitioner's vendor, Subramani, in the year 1957, vide registered Sale Deed Doc.No.2370 dated 08.10.1957, wherein, the pathway to the said land has been clearly stated. It is the further case of the petitioner that even as per the revenue records, right from the year 1957, i.e. for more than six decades, the land in Survey No.314/3C has been described as a common pathway, for the lands situated in Survey Nos.314/3B. The petitioner has further submitted that even the Village Administrative Officer, Periamanali revenue village, Thiruchengodu Taluk, Namakkal District has issued a certificate stating that there is no legal impediment to plant electric poles or take the electric lines above the land in Survey No.314/3C, which is a common pathway.
6. It is the further case of the petitioner that inspite of according administrative sanction, to provide electricity, only on the basis of the objections of the respondents 3 and 4, Service Connection has not been provided to him. By letter dated 4.5.2013, the first respondent has directed the petitioner to clear the objections, within 7 days from the date of receipt of the said letter or to provide an alternate route, so as to enable the licensee to take appropriate action for providing service connection and in the event of failure, recommendation would be made, for rejecting the application.
7. In the above circumstances, the petitioner has filed the present Writ Petition for a Certiorarified Mandamus to quash the Letter No.A.E/O&M/Vai.Me./Ka:Thani/No.031/13-14 dated 04.05.2013 issued by the Assistant Engineer, Operation & Maintenance, TNEB, Vaippamalai (West), Thiruchengodu Taluk, Namakkal District / first respondent, and consequently, prayed for a direction to the respondents 1 and 2 to provide electricity supply to the house of the petitioner situated in Survey No.314/3B in Periamanali Village, Thiruchengodu Taluk, Namakkal District. The petitioner has also prayed for a direction to the respondents to pay compensation to the petitioner for the suffering undergone by him.
8. Record of proceedings shows that pending disposal of this Writ Petition, in M.P.No.2 of 2013, the petitioner has prayed for an interim direction, directing the respondents 1 and 2 to provide electricity service connection to the house of the petitioner situated in Survey No.314/3B of Periamanali Village, Thiruchengode Taluk, Namakkal District. After taking note of Regulation 29(6) of the Tamil Nadu Electricity Distribution Code 2004, on 11.07.2013, an interim order has been passed directing the respondents 1 and 2 to provide electricity service connection to the petitioner's premises, and if necessary, respondents 1 and 2, have been permitted to seek for police assistance.
9. Aggrieved over the same, the fourth respondent has preferred Writ Appeal No.1619 of 2013. By the order dated 5.8.2013 of the Hon'ble Division Bench, the interim order granted in the Writ Petition has been stayed. Subsequently, on 5.9.2013, after hearing the learned counsel for both parties, the Hon'ble Division Bench, by considering the points urged by both parties, have to be adjudicated in the Writ Petition, disposed of the Writ Appeal and directed the Registry to post the Writ Petition for final hearing, and accordingly, this Writ Petition is taken up for disposal.
10. Assailing the correctness of the impugned the Letter No.A.E/O&M/Vai.Me./Ka:Thani/No.031/13-14 dated 04.05.2013 issued by the Assistant Engineer, Operation & Maintenance, TNEB, Vaippamalai (West), Thiruchengodu Taluk, Namakkal District / first respondent, Mr.N.Subramaniyan, learned counsel for the petitioner submitted that there is a gross failure of a mandatory duty, by respondents 1 and 2, in not providing electricity service connection to the residential premises of the writ petitioner.
11. In this context, learned counsel for the petitioner, invited the attention of this Court to Sections 10 and 16 of the Electricity Act, 2003, wherein, the licensee can enter upon any land for the purpose of erecting the towers or poles and for drawing electricity lines from the licensee's system. He further submitted that as per Section 164 of the Electricity Act, 2003, Tamil Nadu Electricity Board is the licensee and that respondents 1 and 2 are bound to provide electricity supply to the petitioner, as per Section 43 of the Electricity Act, read with Regulations of the Tamil Nadu Electricity Distribution Code, 2004.
12. In support of his contention, Mr.N.Subramaniyan, learned counsel for the petitioner placed reliance on the judgment of a Hon'ble Division Bench of this Court in C.Ram Prakash & another v. Power Grid Corporatin of India Ltd & another (2011-4-L.W.924) wherein, it has been held that while exercising the powers under Section 10, it is not necessary for the respondent to put the individuals/owners of the land on notice and that erecting of towers with overhead lines, would not amount to acquisition of land.
13. Attention of this Court was also invited to Regulation 29(6) of the Tamil Nadu Electricity Distribution Code, 2004, which empowers the licensee to install all requisite equipments, such as Transformers, Switch Gears, Meters etc, and to lay necessary cables or overhead lines and to provide connection thereon, to the consumers' premises and to permit the licensee to extend the supply to other consumers through the cables, lines, equipment, installed in the premises.
14. Inviting attention of this Court to Section 44 of the Electricity Act, 2003, Mr.N.Subramaniyan, learned counsel for the petitioner further submitted that the only exception from discharging their duty, not to supply electricity to any premises, is when the distribution licensee is prevented from doing so by cyclone, floods, storms or other crisis, beyond the licensee's control. In all other circumstances, when the intention of the legislature is to provide electricity supply to all the owners or occupiers, who use or intends to use electricity, respondents 1 and 2, are bound to provide service connection to the petitioner not-withstanding the objections raised.
15. Inviting attention of this Court to the width of the common pathway in Survey No.314/3C, as 4.4 Metre as per the Field Measurement Sketch, a copy of which is enclosed at page 30 of the typed set of papers, and the right of the petitioner to make use of his 1/3rd share in Survey No.314/3C, a common pathway, along with respondents 3 and 4, Mr.N.Subramaniyan, learned counsel for the petitioner further submitted that the objections of the respondents 3 and 4 are purely motivated, with an intention to deny electricity service connection, to the writ petitioner. In this context, he also submitted that when the width of the electricity pole to be erected at the site is only 8 inches, erection of posts in Survey No.314/3C, in the common pathway, would not, by any stretch of imagination, affect the ingress and egress of the respondents 3 and 4 or the carriers, used for transportation.
16. Inviting attention of this Court to the Field Measurement Sketch, as well as to the photographs enclosed at Page 59 of the Typed Set of Papers filed along with the Writ Petition, learned counsel for the petitioner, further submitted that the pathway in Survey No.314/3C, exists right in front of the petitioner's land in Survey No.314/3B. Already, one pole has been erected. According to him, Regulation 27(6) of the Tamil Nadu Distribution Code, 2004, is not applicable to the case of the writ petitioner. According to him, Regulation 29(6) of the Tamil Nadu Electricity Distribution Code alone is applicable, and that the said provision has to be extended to an intending consumer also.
17. For the purpose of application of Regulation 29(6) of the Tamil Nadu Electricity Distribution Code, 2004, to the case on hand, learned counsel for the petitioner referred to Section 2(15) of the Electricity Act, 2003, which defines the word, Consumer, as any person who is supplied with electricity for his own use by a licensee or the Government or by any other person engaged in the business of supplying electricity to the public under this Act or any other law for the time being in force and includes any person whose premises are for the time being connected for the purpose of receiving electricity with the works of a licensee, the Government or such other person, as the case may be.
18. Earlier, when the matter came up for hearing, taking note of the submissions advanced by learned counsel for the petitioner that administrative sanction had already been granted for effecting service connection, this Court directed the learned counsel for the respondents 1 and 2, to produce the records. After perusal of the LT Lay Out of Ex.Chinnamanali 88 I 100 KVA EOS TO 1 NO COM SC, approved by the Assistant Executive Engineer, Engineer (O & M), TANGEDCO (West), Vaiyappamalai, Mr.N.Subramaniyan, learned counsel for the petitioner submitted that only two poles have to be erected, in the pathway in Survey No.314/3C. According to him, as per the Field Measurement Book, the length of the common pathway is 58.4 metres, only two poles have to be erected and that the same can be erected at both ends of the pathway. According to him, as per the topography of the area, sketch drawn by the authorities and sanction granted by the office of the Assistant Executive Engineer (O & M), TANGEDCO, West, Vaiyappamalai, one pole can be erected at the intersection of the panchayat road, where the common pathway, begins from the southern end, and the second pole can be erected, at the northern end of the pathway, in Survey No.314/3C, closer to the petitioner's land in Survey No.314/3B. According to him, if two poles are erected, at the abovesaid places, there will not be any reduction in the width of the common pathway.
19. At this juncture, on instructions from Mr.M.Ramesh, Assistant Engineer (O & M), TANGEDCO, West, Vaiyappamalai, present in the Court, Mr.S.K.Raameshuwar, learned counsel for the respondents 1 and 2, submitted that 3 poles have to be erected, whereas, the learned counsel for the petitioner submitted that the third pole to be erected is only a supporting pole, for the main pole from which power supply has to be drawn and that the same can be installed, at the beginning of the common pathway, from the southern side, where the pathway intersects the panchayat road.
20. Mr.M.Ramesh, Assistant Engineer (O & M), TANGEDCO, West, Vaiyappamalai, Namakkal District, present in the Court, fairly admitted that the suggestion made by learned counsel for the petitioner is feasible of compliance. The submission of the Assistant Engineer is placed on record.
21. On the basis of the affidavit in opposition by the Assistant Engineer (O&M), TANGEDCO, West, Vaiyappamalai, Mr.S.K.Raameshuwar, learned counsel for the respondents 1 and 2 submitted that the petitioner has made an application on 5.11.2011 for service connection for domestic construction at SF No.314/3B at Ottankadu, Kunjampalayam in Periamanali Village, Thiruchengodu Taluk, Namakkal District. The site was inspected and surveyed for the poles to be erected in the common pathway in SF No.314/3C. He further submitted that Survey No.314/3C is owned by Thiru.C.Ramasamy, Thiru.K.Palaniyappa Gounder and Thiru.K.Chinnanna Gounder, i.e. the petitioner and respondents 3 and 4. He further submitted that Respondent No.4, Thiru.K.Palaniyappa Gounder, made objections for erecting electric poles and for drawing lines, through the land in SF No.314/3C. Accordingly, the objection was informed to the petitioner on 17.11.2011 and that he was instructed to clear the objections or make arrangement for any alternate route, for erecting the electric poles and lines, for effecting service connection. He further submitted that the petitioner has submitted a Grievance Petition to the Superintending Engineer, NEDC, Namakkal, during Grievance Meeting on 28.11.2011, for service connection to his new domestic building without clearing the objection raised by the fourth respondent. In that meeting, it was ordered that the petitioner's application would be processed, as per norms, provided if the objection are cleared or if the applicant arranges for another route, for erecting electric poles.
22. Learned counsel for the respondents 1 and 2 further submitted that objections were raised by one Mr.P.N.Raja, S/o.Nalliya Gounder of the same village, for erecting the electric pole, through the land, East West, upto the panchayat road, adjacent to SF No.315/3A, as it would affect transportation of agricultural produce from the fields. In these circumstances, he submitted that as per Regulation 27(6) of the Tamil Nadu Electricity Distribution Code 2004, in case of any objection from a third party, the applicant has to arrange a way leave or show an alternate route, where there is no objection. For the reasons stated supra, he submitted that no manifest illegality is committed by respondents 1 and 2, in intimating the petitioner, about the non-feasibility, in providing service connection to his residential house. For the reasons stated supra, he prayed for dismissal of the Writ Petition.
23. On the basis of the grounds raised in the Writ Appeal No.1619 of 2013, Mr.Naveen Kumar Murthi, learned counsel for the respondents 3 and 4 submitted that if electric poles are to be erected in Survey No.314/3C, which is a common pathway, there would be reduction in the width of the common pathway and in such circumstances, no carrier, including an ambulance or fire engine, in case of emergency could be operated. Even a bullock cart or any other mode of transport cannot enter into the said pathway, and as a result, it would affect the ingress and egress of the respondents 3 and 4. However, learned counsel for the respondents 3 and 4, submitted that his clients have no objection for the petitioner being provided with electricity service connection, but the only objection of the respondents 3 and 4 is the manner, in which, it is now sought to be provided, cutting across the common pathway. Submissions of the learned counsel for the respondents 3 and 4 is placed on record.
Heard the learned counsel for the parties and perused the materials available on record.
24. Section 43 of the Electricity Act, 2003, deals with the duty to provide electric supply on request and the said Section reads as follows:
"(1) Save as otherwise provided in tis 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 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."
Let me consider some of the decisions of the Hon'ble Apex Court, as to how a provision has to be understood, as to whether, it is mandatory or directory.
25. As per Section 43 of the Electricity Act, on an application made by the owner or occupier of any premises, a duty is cast upon the licencee to supply of electricity to such premises, within one month, after receipt of the application requiring such supply. Sub-Section (3) of Section 4, states that if the 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.
26. Crawford on 'Statutory Construction' (Ed. 1940, Art. 261, p. 516) sets out the following passage from an American case approvingly:
"The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other."
27. In State of U.P., v. Baburam Upadhya reported in AIR 1961 SC 751, the Hon'ble Mr. Justice Subbarao, has observed that, "the Court may consider inter alia, the nature and design of the statute, and the consequences which would follow from construing it the one way or the other; the impact of other provisions whereby the necessity of complying with the provisions in question is avoided; the circumstances, namely, that the statute provides for a contingency of the non-compliance with the provisions; the fact that the non-compliance with the provisions is or is not visited by some penalty; the serious or the trivial consequences, that flow therefrom; and above all, whether the object of the legislation will be defeated or furthered".
In the same judgment, the Hon'ble Judge further held that when a statute uses the word 'shall', prima facie it is mandatory but the Court may ascertain the real intention of the legislature by carefully attending to the whole scope of the statute.
28. The Hon'ble Mr. Justice Hidayatullah, in M/s.Sainik Motors v. State of Rajasthan reported in AIR 1961 SC 1480, observed that ordinarily though the word shall is mandatory, it can be interpreted as directory if the context and intention otherwise demands.
29. In P.T.Rajan v. T.P.M.Sahir reported in 2003 (8) SCC 498, the following conclusions are relevant, 45. A statute as is well known must be read in the text and context thereof. Whether a statute is directory or mandatory would not be dependant on the user of the words shall or may. Such a question must be posed and answered having regard to the purpose and object it seeks to achieve.
46. ..
47. The construction of a statute will depend on the purport and object for which the same had been used. ...
48. ..
49. Furthermore, a provision in a statute which is procedural in nature although employs the word shall may not be held to be mandatory if thereby no prejudice is caused.
30. In Ashok Lanka v. Rishi Dixit reported in 2005 (5) SCC 598, para No.53 is relevant, which reads as under:-
53. The question as to whether a statute is mandatory or directory would depend upon the statutory scheme. It is now well known that use of the expression shall or may by itself is not decisive. The court while construing a statute must consider all relevant factors including the purpose and object the statute seeks to achieve. (see P.T.Rajan v. T.P.M.Sahir and U.P.SEB v. Shiv Mohan Singh).
31. In Delhi Airtech Services (P) Ltd., v. State of U.P., reported in 2011 (9) SCC 354, one of the substantial questions of law framed by the Hon'ble Supreme Court of India, was whether the provisions of Section 17(3-A) of the Land Acquisition Act, is mandatory or directory and whether non-compliance of the same, would vitiate the entire land acquisition proceedings, even when the land had already vested in the State, in terms of Section 17(1) of the Act. Due to the divergent views expressed by the Hon'ble Judges, the matter has been referred to a larger Bench. However, the decisions considered by Hon'ble Mr. Justice Swatanter Kumar, are worth consideration, in this case, 117. In `Principles of Statutory Interpretation', 12th Edition, 2010, Justice G.P. Singh, at page 389 states as follows:
As approved by the Supreme Court:
"The question as to whether a statute is mandatory of directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislation must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design and the consequences which would follow from construing it the one way or the other"
"For ascertaining the real intention of the Legislature", points out Subbarao, J, "the court may consider inter alia, the nature and design of the statute, and the consequences which would follow from construing it the one way or the other; the impact of the other provisions whereby the necessity of complying with the provisions in question is avoided; the circumstances, namely, that the statute provides for a contingency of the non- compliance with the provisions; the fact that the non-compliance with the provisions is or is not visited by some penalty; the serious or the trivial consequences, that flow therefrom; and above all, whether the object of the legislation will be defeated or furthered".
If object of the enactment will be defeated by holding the same directory, it will be construed as mandatory, whereas if by holding it mandatory, serious general inconvenience will be created to innocent persons without very much furthering the object of enactment, the same will be construed as directory. But all this does not mean that the language used is to be ignored, but only that the prima facie inference of the intention of the Legislature arising from the words used may be displaced by considering the nature of the enactment, its design and the consequences flowing from alternative construction. Thus, the use of the words `as nearly as may be' in contrast to the words `at least' will prima facie indicate a directory requirement, negative words a mandatory requirement `may' a directory requirement and `shall' a mandatory requirement."
118. Maxwell, in Chapter 13 of his 12th Edition of `The Interpretation of Statutes', used the word `imperative' as synonymous with `mandatory' and drew a distinction between imperative and directory enactments, at pages 314-315, as follows:
"Passing from the interpretation of the language of statutes, it remains to consider what intentions are to be attributed to the legislature on questions necessarily arising out of its enactments and on which it has remained silent."
The first such question is: when a statute requires that something shall be done, or done in a particular manner or form, without expressly declaring what shall be the consequence of non-compliance, is the requirement to be regarded as imperative (or mandatory) or forms prescribed by the statute have been regarded as essential to the act or thing regulated by it, and their omission has been held fatal to its validity. In others, such prescriptions have been considered as merely directory, the neglect of them involving nothing more than liability to a penalty, if any were imposed, for breach of the enactment. "An absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially".
It is impossible to lay down any general rule for determining whether a provision is imperative or directory. "No universal rule," said Lord Campbell L.C., "can be laid down for the construction of statutes, as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Courts of Justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed."
And Lord Penzance said:
"I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject matter; consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory."
119. In a recent judgment of this Court, May George v. Tahsildar [(2010) 13 SCC 98], the Court stated the precepts, which can be summed up and usefully applied by this Court, as follows:
(a) While determining whether a provision is mandatory or directory, somewhat on similar lines as afore-noticed, the Court has to examine the context in which the provision is used and the purpose it seeks to achieve;
(b) To find out the intent of the legislature, it may also be necessary to examine serious general inconveniences or injustices which may be caused to persons affected by the application of such provision;
(c) Whether the provisions are enabling the State to do some things and/or whether they prescribe the methodology or formalities for doing certain things;
(d) As a factor to determine legislative intent, the court may also consider, inter alia, the nature and design of the statute and the consequences which would flow from construing it, one way or the other;
(e) It is also permissible to examine the impact of other provisions in the same statute and the consequences of non-compliance of such provisions;
(f) Physiology of the provisions is not by itself a determinative factor. The use of the words `shall' or `may', respectively would ordinarily indicate imperative or directory character, but not always.
(g) The test to be applied is whether non-compliance with the provision would render the entire proceedings invalid or not.
(h) The Court has to give due weightage to whether the interpretation intended to be given by the Court would further the purpose of law or if this purpose could be defeated by terming it mandatory or otherwise.
120. Reference can be made to the following paragraphs of May George (supra) :
"16. In Dattatraya Moreshwar v. The State of Bombay and Ors. [AIR 1952 SC 181], this Court observed that law which creates public duties is directory but if it confers private rights it is mandatory. Relevant passage from this judgment is quoted below:
`7........It is well settled that generally speaking the provisions of the statute creating public duties are directory and those conferring private rights are imperative. When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of legislature, it has been the practice of the Courts to hold such provisions to be directory only, the neglect of them not affecting the validity of the acts done.'
17. A Constitution Bench of this Court in State of U.P. v. Babu Ram Upadhya [AIR 1961 SC 751] decided the issue observing:
`29.....For ascertaining the real intention of the Legislature, the Court may consider, inter alia, the nature and the design of the statute, and the consequences which would follow from construing it the one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstance, namely, that the statute provides for a contingency of the non-compliance with the provisions, the fact that the non-compliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that flow therefrom, and, above all, whether the object of the legislation will be defeated or furthered.'
22. In B.S.Khuna and Ors. v. Municipal Corporation of Delhi and Ors. [(2000) 7 SCC 679], this Court considered the provisions of the Delhi Municipal Corporation Act, 1957, particularly those dealing with transfer of immovable property owned by the Municipal Corporation. After considering the scheme of the Act for the purpose of transferring the property belonging to the Corporation, the Court held that the Commissioner could alienate the property only on obtaining the prior sanction of the Corporation and this condition was held to be mandatory for the reason that the effect of non-observance of the statutory prescription would vitiate the transfer though no specific power had been conferred upon the Corporation to transfer the property.
23. In State of Haryana and Anr. v. Raghubir Dayal [(1995) 1 SCC 133], this Court has observed as under:
`5. The use of the word `shall' is ordinarily mandatory but it is sometimes not so interpreted if the scope of the enactment, or consequences to flow from such construction would not so demand. Normally, the word `shall' prima facie ought to be considered mandatory but it is the function of the Court to ascertain the real intention of the legislature by a careful examination of the whole scope of the statute, the purpose it seeks to serve and the consequences that would flow from the construction to be placed thereon. The word `shall', therefore, ought to be construed not according to the language with which it is clothed but in the context in which it is used and the purpose it seeks to serve. The meaning has to be described to the word `shall; as mandatory or as directory accordingly. Equally, it is settled law that when a statute is passed for the purpose of enabling the doing of something and prescribes the formalities which are to be attended for the purpose, those prescribed formalities which are essential to the validity of such thing, would be mandatory. However, if by holding them to be mandatory, serious general inconvenience is caused to innocent persons or general public, without very much furthering the object of the Act, the same would be construed as directory.' "
121. The Legislature in Sections 11A and 17(3A) of the Act has used the word `shall' in contradistinction to the word `may' used in some other provisions of the Act. This also is a relevant consideration to bear in mind while interpreting a provision.
122. The distinction between mandatory and directory provisions is a well accepted norm of interpretation. The general rule of interpretation would require the word to be given its own meaning and the word `shall' would be read as `must' unless it was essential to read it as `may' to achieve the ends of legislative intent and understand the language of the provisions. It is difficult to lay down any universal rule, but wherever the word `shall' is used in a substantive statute, it normally would indicate mandatory intent of the legislature.
123. Crawford on `Statutory Construction' has specifically stated that language of the provision is not the sole criteria; but the Courts should consider its nature, design and the consequences which could flow from construing it one way or the other.
124. Thus, the word `shall' would normally be mandatory while the word `may' would be directory. Consequences of non- compliance would also be a relevant consideration. The word `shall' raises a presumption that the particular provision is imperative but this prima facie inference may be rebutted by other considerations such as object and scope of the enactment and the consequences flowing from such construction.
125. Where a statute imposes a public duty and proceeds to lay down the manner and timeframe within which the duty shall be performed, the injustice or inconvenience resulting from a rigid adherence to the statutory prescriptions may not be a relevant factor in holding such prescription to be only directory. For example, when dealing with the provisions relating to criminal law, legislative purpose is to be borne in mind for its proper interpretation. It is said that the purpose of criminal law is to permit everyone to go about their daily lives without fear of harm to person or property and it is in the interests of everyone that serious crime be effectively investigated and prosecuted. There must be fairness to all sides. (Attorney General's Reference (No. 3 of 1999) (2001) 1 All ER 577 Reference : Justice G.P. Singh on `Principles of Statutory Interpretation', 11th Edition 2008). In a criminal case, the court is required to consider the triangulation of interests taking into consideration the position of the accused, the victim and his or her family and the public.
126. The basic purpose of interpretation of statutes is further to aid in determining either the general object of the legislation or the meaning of the language in any particular provision. It is obvious that the intention which appears to be most in accordance with convenience, reason, justice and legal principles should, in all cases of doubtful interpretation, be presumed to be the true one. The intention to produce an unreasonable result is not to be imputed to a statute. On the other hand, it is not impermissible, but rather is acceptable, to adopt a more reasonable construction and avoid anomalous or unreasonable construction. A sense of the possible injustice of an interpretation ought not to induce Judges to do violence to the well settled rules of construction, but it may properly lead to the selection of one, rather than the other, of the two reasonable interpretations. In earlier times, statutes imposing criminal or other penalties were required to be construed narrowly in favour of the person proceeded against and were more rigorously applied. The Courts were to see whether there appeared any reasonable doubt or ambiguity in construing the relevant provisions. Right from the case of R. v. Jones, ex p. Daunton [1963(1) WLR 270], the basic principles state that even statutes dealing with jurisdiction and procedural law are, if they relate to infliction of penalties, to be strictly construed; compliance with the procedures will be stringently exacted from those proceedings against the person liable to be penalized and if there is any ambiguity or doubt, it will be resolved in favour of the accused/such person. These principles have been applied with approval by different courts even in India. Enactments relating to procedure in courts are usually construed as imperative. A kind of duty is imposed on court or a public officer when no general inconvenience or injustice is caused from different construction. A provision of a statute may impose an absolute or qualified duty upon a public officer which itself may be a relevant consideration while understanding the provision itself. (See `Maxwell on The Interpretation of Statutes', 12th Edition by P. St. J. Langan and R. v. Bullock, [(1964)1 QB 481])
127. One school of thought has accepted that the word `shall' raises a presumption that the particular provision is imperative, while the other school of thought believes that such presumption is merely prima facie, subject to rebuttal by the other considerations mentioned above. For example, in M/s. Sainik Motors, Jodhpur & Others v. The State of Rajasthan [AIR 1961 SC 1480], the word `shall' has been held to be merely directory.
128. G.P. Singh in the same edition of the above-mentioned book, at page 409, stated that the use of the word `shall' with respect to one matter and use of word `may' with respect to another matter in the same section of a statute will normally lead to the conclusion that the word `shall' imposes an obligation, whereas the word `may' confers a discretionary power. But that by itself is not decisive and the Court may, having regard to the context and consequences, come to the conclusion that the part of the statute using `shall' is also directory. It is primarily the context in which the words are used which will be of significance and relevance for deciding this issue.
129. Statutes which encroach upon rights, whether as regards person or property, are subject to strict construction in the same way as penal Acts. It is a recognized rule that they should be interpreted, if possible, so as to respect such rights and if there is any ambiguity, the construction which is in favour of the freedom of the individual should be adopted. (See `Maxwell on The Interpretation of Statutes', 12th Edition by P. St. J. Langan)
130. This Court in the case of Devinder Singh (supra) held that the Land Acquisition Act is an expropriatory legislation and followed the case of Hindustan Petroleum Corporation v. Darius Shapur Chennai and Ors. [(2005) 7 SCC 627]. Therefore, it should be construed strictly. The Court has also taken the view that even in cases of directory requirements, substantial compliance with such provision would be necessary.
131. If I analyze the above principles and the various judgments of this Court, it is clear that it may not be possible to lay down any straitjacket formula, which could unanimously be applied to all cases, irrespective of considering the facts, legislation in question, object of such legislation, intendment of the legislature and substance of the enactment. In my view, it will always depend upon all these factors as stated by me above. Still, these precepts are not exhaustive and are merely negative. There could be cases where the word `shall' has been used to indicate the legislative intent that the provisions should be mandatory, but when examined in light of the scheme of the Act, language of the provisions, legislative intendment and the objects sought to be achieved, such an interpretation may defeat the very purpose of the Act and, thus, such interpretation may not be acceptable in law and in public interest.
132. Keeping in mind the language of the provision, the Court has to examine whether the provision is intended to regulate certain procedure or whether it vests private individuals with certain rights and levies a corresponding duty on the officers concerned. The Court will still have to examine another aspect, even after holding that a particular provision is mandatory or directory, as the case may be, i.e., whether the effect or impact of such non-compliance would invalidate or render the proceedings void ab initio or it would result in imposition of smaller penalties or in issuance of directions to further protect and safeguard the interests of the individual against the power of the State. The language of the statute, intention of the legislature and other factors stated above decide the results and impacts of non-compliance in the facts and circumstances of a given case, before the Court can declare a provision capable of such strict construction, to term it as absolutely mandatory or directory.
32. As per Section 43 of the Electricity Act, on an application made by the owner or occupier of any premises, a duty is cast upon the licencee to supply of electricity to such premises, within one month, after receipt of the application requiring such supply. Sub-Section (3) of Section 4, states that if the 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.
33. In Section 43 of the Electricity Act, the word "shall" is used. Applying the principles of law to the Electricity Act, Distribution and Supply Codes, as regards supply of electricity, from the language employed in Section 43 of the Act, ie., duty to supply electricity on request and Section 44 of the Act, ie., exceptions from discharging the duty to supply electricity, which states that nothing contained in Section 43 shall be taken as requiring a distribution licensee to give supply of electricity to any premises, if he is prevented from so doing by cyclone, floods, storms or other occurrences beyond his control, it could be concluded that there is a statutory obligation to provide electricity to a owner or occupier of the premises.
34. The term Premises, defined as per Section 2(51) of the Electricity Act, includes any land, building or structure. Occupier means the person in occupation (whether as owner or otherwise) of the premises, where electricity is used or intended to be used. As per Regulation 27(1) of the Tamil Nadu Distribution Code, 2004, the provision regarding the duty of licensee, as detailed in Section 43 of the Electricity Act, ie., duty to supply electricity on request, is that on an application by the owner or occupier of any premises, the licensee shall give supply of electricity to such premises, within one month, after the receipt of the application requiring such supply, failing which, the licence shall be liable to a penalty of one thousand rupees, for each day of default.
35. Proviso to Section 43(2) of the Electricity Act, states 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. As per Regulation 27(1), the provision regarding the duty of licensee, as detailed in Section 43 of the Act, to supply electricity, on request, is reproduced below:
(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 electrification of such village or hamlet or area.
Provided that the licensee will refuse to supply electricity to an intending consumer who had defaulted payment of dues to the licensee in respect of any other service connection in his name.
36. Reading of the statutory provisions of the Act and the Code framed by the authorities, makes it clear that the intention of the Legislature is to provide electricity supply to all the persons, whether they are the owners of the property or occupiers, as the case may be. As stated supra, as between the owner and occupier, like in the case of a landlord and tenant, a mortgagee, assignee and any other person, who is in lawful possession and not a tress-passer, and even in the case of those residing in government poromboke lands, there is a provision for supply of electricity, subject to the submission of an undertaking, etc., as stated supra.
37. When consequences of penalty on failure to comply with a prescribed requirement is provided for, by the statute, there cannot be any doubt that such statutory provision must be interpreted as mandatory. A mandatory provision gives no discretion and it is intended to be obeyed. Discretionary power gives the authority to use it, as the discretion. The latter can be fulfilled substantially. When failure to adhere to the provisions or in compliance of the same, entails penalty, then it should be the construction and intention of the Legislature, to make it mandatory.
38. In the light of the legal pronouncements of the Apex Court, Section 43 of the Electricity Act and the Regulations framed thereunder, have to be construed as mandatory, to provide electricity supply, to the owner or occupier of the premises and to those, who reside in Government poromboke lands also, where electricity is used or intended to be used.
39. 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.
40. Reverting back to the case on hand, material on record discloses that on 08.10.1957, the petitioner's vendor, Subramani, has purchased the subject lands, under registered Sale Deed No.2370. Thereafter, the petitioner has purchased the subject lands on 18.06.2001, under registered Sale Deed No.683, on the file of Sub-Registrar, Velagoundampatti, from the said Subramani. In both the documents, the common pathway has been clearly mentioned. Revenue records appended to the typed set of papers, pertaining to Village No.90, Periyamanali, also categorically discloses that the land in Survey No.314/3C is a pathway.
Schedules both in Tamil and Translated version is as follows:
"U:/100f;F epyk; fpiuak; 1957 Mk; mf;nlhgu; khjk; 8 njjp jpUr;br';nfhL jhYf;fh bghpakzypf;fpuhkk; f!;gh bghpa kzypapypUf;Fk; gapu; $Ptdk; Rf;fpukzp Mrhhp kidtp mfpyhz;l mk;khs; (1) ,ts; kf;fs; ikdu;fs; c&z;Kf Mrhhp (2) gpr;rdhrhp (3) uh$khzpf;f Mrhhp (4) nkw;go 2.3.4 yf;fkpl;l ikdu;fSf;F fhu;oaDk; jha[k; rt[uT&izffu;j;jpa[khd 1 yf;fkpl;l mfpyhz;l mk;khs; c';fSf;F nkw;goa[{hpypUf;Fk; nkw;go $Ptdk; m';fKj;J Mrhhp kfd; Rf;fpukzp Mrhhpahpa ehd; vGjpf; bfhLj;j g{uh epy Rj;jf; fpuak; gj;jpuk; vd;dbtd;why; ehd; gHdpr;nrj;jpu';fSf;Fngha; tut[k; Kd; fld; fl;Ltjw;fhft[k; jpUr;br';nfhL m';fKj;J Mrhhp kfd; rutz Mrhhpaplk; gl;l fld;fl;Ltjw;fhf c';fsplk; ,jpy; fz;l epyj;ija[k; U:/100-? K:gyF E}W U:gha; bgw;Wf; bfhz;L ,jpy; fz;l epyj;ij c';fSf;F fpuak; bra;J tpl;nld;/ fpuaj; bjhif U:/100-? buhf;fkha; c';fsplk; bgw;Wf; bfhz;Lk; fpua epyj;ija[k; ,d;W c';fspl RthjPdk; bra;J tpl;nld;/ ,dp ,f;fpiua brhj;ijg; gw;wp vdf;Fk; vd;dpl ,ju thu!;fSf;Fk; vt;tpj ghj;jpaKj; Rje;jpuKk; ,dp fpilahJ/ ,dp eP';fs; ,f;fpua brhj;ij Rje;juj;Jld; ru;t jhdhjp tpf;fpua';fSf;F nahf;fpakha; g[j;jpu gt[j;jpu ghughpae;jk; Mz;lDgtpj;Jf; bfhs;s ntz;oaJ/ ,f;fpuar; brhj;jpd; nghpy; vt;tpj tpy;y';fs; fpilahJ/ gpd;dhy; VjhtJ tpy;y';fk; Vw;gl;lhy; mjw;F ehd; cj;jputhjk; fpuak; bgw;w mfpyhz;lk;khs; vdf;Fk; kidtp ?? ,f;fojk; 3 thp fe;jdh moj;jy; Rf;fd; mthpgpsg;g[ moj;jy; Rf;fpukzp Mrhhp (2) ?? fpuar;brhj;Jf;fs; bryk; ky;yrKj;jpuk; rg;o jpUr;br';nfhL jhYf;fh bghpa kzypf;fpuhkk; f!;gh bghpa kzypapy; vdf;F RahT&pjkha[k; gpJuhT&pjkha[k; ghj;jpag;gl;L ehd; mDgtpj;J te;J c';fsplk; RthjPdj;jpy; ,d;W tpl;l epyj;jpw;F rf;Fge;jp gl;lh be/52 bghpa kzypapypUe;J itag;g kiy nghFk; bjd;tly; ,l;nlhpf;Fk; fpHf;F brke;jhd; g{uhf;Fk; bjw;F fhspak;khs; ghg;ghk;khs; tlf;F epyj;jpw;Fk; nkw;F jhr Xl;ld; t/epyj;jpw;Fk; tlf;F kj;jpapy; brf;fhd; g{uh gphpt[ g{uh V/5/4f;F jP U:/5/14/10 ,jd; kj;jpapy; nkw;go brf;F ge;jpapy; bghJtpy; V/155f;F jP/U:/1/13/2y; bghJtpy; rhp ghjp epyk; ,jpYs;s khtpil ,jw;F kutiffSk; ,jw;F rk;ge;jg;gl;l ,jpy; fpHg[uKs;s bjd;tly; bghspf;fiuapy; bghJtpy; rhpghjpa[k; ,e;j epyj;jpw;F jlk; m';fKj;J Mrhhp ehjk;khs; nfhtpy; g[";irapYk; bjw;F g[uk; filrpapy; 5 Ks mfyj;jpy; fpH nkw;fha; jlk; ele;J bfhs;s khK:y;go ghj;jpak; Vw;gl;lJ/ ,JfSk; nkw;go bghpa kzyp fpuhkk; ej;jj;jpy; rf;Fge;jp tpy;iy tPl;od; Kd; thrYf;Fk; nkw;F m';fsk;kd; nfhtpYf;Fk; bfhs;sk;gl;liuf;Fk; ? fpH nky; jlj;jpw;Fk; tlf;F bfhs;sk;gl;liuf;Fk; fpHf;F rPu';f ft[z;ld; gl;lh epyj;jpw;Fk;bjw;F kj;jpapy; bjd;tly; Ksk; 13 fpHnky; Ksk; 30 ,e;j mst[s;s epyk; g{uht[k; ,jd; kj;jpapy; nkw;F fpHf;Fg; ghu;j;j 3 m';fz Tiu tPL 2k; ,jd; fjt[ epyt[s;sij 2k; tlf;F bjw;F Rw;wis Rtu;fSk; ,itfs; jhd; ,f;fpuar; brhj;Jf;fs; ,f;fojk; 4 thp jpUj;jy; gpJuhT&pjkha[k; thp gpsg;g[ 6 thp gpsg;g[ be/52 thp gpsg;g[ ?? fPuy; Rf;fpukzp Mrhhp rhT&p bfhkuntyp ghisak; m/ khug;g ft[z;ld; mg;ght[f; ft[z;lu; kfd; bfhkuntyp ghisak; nf/fe;jrhkpf; ft[z;ld; fhsp ft[z;ld; kfd; vGjpdJ A.Subbaraya Pillai fu;zk; bghp kzyp Madras 691 be/8/10/57 Rf;fukzp Mrhhp bghpa kzyp ehY U:gha; K.Ramaswami S.V.itag;gkiy/ fpiuar; brhj;J tptuk;
ehf;fy; hpo ntyft[z;lk;gl;o rg;hpo bghpakzyp fpuhkk; r/be/315-2V g[/bcwf; 0/42/5f;F V1/05 ,jw;F jP/U:/1/31 cs;s epyj;jpy; ,d;W fpiuak; bra;a[k; g[";ir cHtil epyj;jpw;F rf;Fg;ge;jp tptuk; ,d;W v';fshy; fpiuak; bgWk; rp/Rg;gpukzp epyj;jpw;F bjw;F fPH;f;fz;l 2tJ mapl;lr; brhj;jpw;F tlf;F i& fpuhkk; r/be/315-3V epyj;jpw;F nkw;F r/be/315-1V epyj;jpw;F fpHf;F ,jd; kj;jpapy; g[/V/ 0/52 1-2 brd;l; cs;s cHtil epyk; g[uh fpiuak; ,Jt[k;/ mapl;lk; 2 i& fpuhkk; r/be/315-2gp g[/bcwf; 0/00/5f;F V 0/01 ,jw;F jPu;it U:/0/02 cs;s epyk; g[{uh fpiuak; ,Jt[k;/ mapl;lk; 3 i& fpuhkk; r/be/315-2gp g[/bcwf; 0/20/0f;F V 0/49 ,jw;F jPu;it U:/0/62 cs;s epyk; g[{uh fpiuak; ,Jt[k;/ mapl;lk; 4 i& fpuhkk; r/be/314-3rp g[/bcwf; 0/03/5f;F V 0/09 ,jw;F jPu;it U:/0/10 cs;s epyj;jpy; bghJtpy; 3y; 1 ghfk; epyk; g{uh i& 1.2.3.4 mapl;l fpiuar; brhj;jpw;F jlghj;jpak; bghpakzyp fpuhkk; r/be/312y; bjd;tlyhf bry;Yk; jhu;rhiyf;F fpHg[wkhf r/be/314-3rp. 1gp 315-1gp. 2Gp ,itfspy; fpHnkyhf bry;Yk; ghijapd; tHpahft[k; i& fpiua epy';fSf;F nkw;fz;l ghijapd; tHpahf Ms;. fhy;eilfs; tz;o. thfd';fs; rfyKk; nghftu jlghj;jpak; i& fpiua epy';fSf;F cz;L i& brhj;J bghpakzyp Cuhl;rpf;Fk; vsr;rpghisak; Cuhl;rp xd;wpaj;jpw;Fk; rk;ge;jg;gl;lJ i& brhj;jpd; kjpg;g[ U:.40.200-? Mfk;/"
Sale of Land for Rs.100/-
On this the 8th day of October 1957, this absolute deed of sale is executed by me, Sukiramani Achari, S/o.Angamuthu Achari, agriculturist, residing in Periyamanali, Periyamanali Village Kaspa, Tiruchengode Taluk, To and in favour of you, (1) Akilandaammal, agriculturist, residing at the aforesaid village, her minor sons (2) Shanmuga Achari, (3) Pichan Achari, (4) Rajamanicka Achari, which is as follows :-
I, in order to settle the loan obtained by me from Saravana Achari, S/o.Angamuthu Achari, Tiruchengode to go to holy shrines like Pazhani and to settle loans that I had obtained already, I received a sum of Rs.100/- (Rupees Hundred only) from you and sold the land mentioned herein, to you. I received the sale consideration of Rs.100/- from you, in cash and handed over the possession of the land on this day itself. Hereinafter, there will not be any rights or claims whatsoever, either to me or my other heirs in respect of this property sold to you. Hereinafter, you shall put your possession and enjoyment in this sale property with absolute rights such as right to gift and sale from generation to generation. This sale property is free from any encumbrances. If any encumbrance arises in future, I will indemnify the same.
The property, which is sold, is situated in Periyamanali, Periyamanali Village Kaspa, Tiruchengode Taluk, Mallasamudhram Sub District, belonged to me as my own property and as my ancestral property, which had been in my enjoyment till this day, is handed over to your possession on this day, bearing patta No.52 and bound on the East by : the road running south to north leading to Vaiyappa Mountain from Periyamanalai South by : the entire land of Semandhan West by : the land belonging to Kaliammal Papayammal situated on the north North by : The land belonging to Dasa Ottan on the west comprised within the aforesaid boundaries, the entire land of "checkkan" measuring acre 5.4 at the value of Rs.5.14.10. Comprising within the aforesaid boundaries, equal half share of the property in common, measuring Acre 1.55 at the value of Rs.1.13.2, inclusive of the timber and all fruit bearing trees, in the ridge running from south to north on the eastern side, relating to this, equally half share in common. The pathway to this land lies in the punja land belonging to Anganamuthu Achari and Nathammal Temple and the punja land belonging to Venkitta Boyan Chekkan and there was customary right of pathway, 5 cubit in breadth, from east to west at the end of the southern side. Inclusive of the aforesaid property and the boundaries for the aforesaid Periyamanali Village Natham, West by the front entrance of the tiled house, North by the Angalamman Temple, the smithy or forge of the blacksmith and East to west pathway;
East by the smithy of the blacksmith, South by the patta land belonging to Sriranga Gounder and comprised within the aforesaid boundaries, the entire land measuring 13 cubit, from south to north, 30 cubit from east to west and comprised within the aforesaid land, the two thatched houses, each measuring 3 Anganam, (1 Anganam = 72 sq.ft., 12 ft x 6 ft.) facing west-east with two door frames with compound walls on the northern and southern sides. These are only the properties, which are sold.
Schedule of Property Within the Namakkal Registration District, Velagoundampatti Sub Registration District, Periyamanali Village, S.No.315/2A the punja cultivation land measuring about Punja Hectare 0.42.5 - Acre 1.05, with the tax assessment of Rs.1.31 bounded on the South by - The land belonging to C.Subramani, purchased on sale by us, on this day North by - Below mentioned property in Item No.2 West by - Land in the aforesaid village bearing S.No.315/A East by - The land in S.No.315/1A comprised within the aforesaid boundaries, the entire cultivation land measuring punja acre 0.52-1/2 cents.
Item No.2 In the entire Punja land measuring hectare 0.00.5 - Acre 0.01 with the tax assessment of Rs.0.02 comprised in S.No.315/2B of the aforesaid village.
Item No.3 In the entire Punja land measuring hectare 0.20.0 - Acre 0.49 with tax assessment of Rs.0.62 comprised in S.No.314/3B of the aforesaid village.
Item No.4 The whole of 1/3 share in the entire land in common, measuring punja hectare 0.03.5 - Acre 0.09, with the tax assessment of Rs.0.10. The right of pathway to the aforesaid items 1, 2, 3, 4, is through the pathway running east to west in S.Nos.314/3C, 1B, 315/1B, 2B on the eastern side of the Tar road running south to north in S.No.312 of Periamanali Village. The aforesaid lands have right of pathway for men, cattle, cart and other vehicles through the aforesaid pathway. The said property falls within the limits of Periamanali Panchayat and Elacipalayam Panchayat. The value of the aforesaid property is Rs.40,200/-."
The extract found at Page 12, pertaining to the abovesaid Survey Number, is reproduced hereunder:
314/3B 3gh u g[[ /// 8-3 5 U:/3 ig/09 0/20/0 ig 62 458 m/Rg;ukzp mrhhp 314/3C 3gh u g[[ /// 8-3 5 U:/3 ig/09 0/30/0 ig 10 706 f/rp;ddd;dd ft[z;lh; (1). f/gHdpag;gg ft[z;lh; (2) m/Rg;ukzpa Mrhhp (3) g{!;jpjghijp
41. Material on record further discloses that the petitioner has been issued with patta No.458, in respect of the land in Survey No.314/3B, measuring an extent of 0.20.0 Acres and he has paid the tax. In respect of Survey No.314/3C, measuring an extent of 0.03.5 Acres, patta has been issued to the petitioner and he has paid the amount. That apart, patta has been issued, in respect of the lands in Survey No.315/2A and 2B, measuring an extent of 0.42.5 and 0.00.5 Acres respectively, in the name of the petitioner.
42. Copy of the Field Measurement Book, enclosed at Page 30 of the typed set of papers, for Survey No.314, also clearly indicates that there is a common pathway in Survey No.314/3C. The Village Administrative Officer, 90, PeriyaManali Village, Tiruchengode, Namakkal District, has also issued a Certificate to the effect that the lands in Survey Nos.314/3C, 314/1A, 315/1B, 315/2B and 315/3B, are common pathway and there is no legal impediment to give electric supply in the abovesid survey numbers. The said Certificate is extracted hereunder:
fpuhk eph;thf mjpfhhp rhd;wpjH;
ehkf;fy; khtl;lk; jpUr;brh';nfhL tl;lk; bghpakzyp fpuhkk; rh;nt vz;/314/3C, 314/1A, 315/1B, 315/2B and 315/3B, ,itfs; midj;Jk; bghJghijahf cs;sJ/ ,itfspd; tHpahf jpU/rpd;dz;zft[z;lh; kfd; rp/uhkrhkp vd;gtUf;Fr; brhe;jkhdJ tPl;ow;F kpd; ,izg;g[ tH';fshbkdt[k; ,jpy; ntW ahUf;Fk; ghj;jpakpy;iy/ fPH; ,lg;gl;oUf;Fk; khjphp ifbaGj;J jpU/rp/uhkrhkp vd;gtUilaJ vd;W cWjp bra;fpnwd;/ xg;gk;-= fpuhk eph;thf mjpfhhp 90 bghpakzyp fpuhkk;
jpUr;br';nfhL Tk. ehkf;fy; Dt.
tpz;zg;gjhuhpd;
khjphpf; ifbahg;gk;/ xg;gk;-= rp/uhkrhkp Translated version of the above certificate is as follows:
Certificate from the Village Administrative Officer Within the Namakkal District, Tiruchengode Taluk, Periamanali Village, all the lands in S.No.314/3C, 314/1A, 315/1B, 315/2B and 315/3B are common pathways. Through these, electricity service connection to the house of C.Ramasamy, S/o.Thiru.Chinnana Gounder, could be given and no one else has any rights therein. I declare that the specimen signature, affixed hereunder, belongs to Thiru.C.Ramasamy.
Sd/-
Village Administrative Officer, 90, Periamanali Village, Tiruchengode Taluk, Namakkal District.
Specimen Signature of the Applicant Sd/- C.Ramasamy"
43. It is the case of the petitioner that he has constructed a house in June' 2011 and that the President, Periyar Village has levied a sum of Rs.77/- towards House Tax for the said construction. The tax receipt number is HA.No.120974, dated 16.05.2011, for the period 2011-2012. The contention of the petitioner that the land in Survey No.314/3C is a common pathway, in which, he has got 1/3rd share has not been disputed. The same is supported by the entries in the documents, such as, Registered Sale Deed No.2370, dated 08.05.1957 and Registered Sale Deed No.683, on the file of Sub-Registrar, Velagoundampatti, dated 18.6.2001. Moreover, there is a clear description of the property in the Field Measurement Book. Thus, the petitioner has substantiated that the he is also owner of the property, for which, electricity supply is sought for, including 1/3rd share in the common pathway in Survey No.314/3C, by adducing evidence, produced before this Court.
44. There is also evidence to prove that the petitioner is the owner of the property in Survey No.314/3B. Further, the fact that the petitioner has made a request to provide electricity service connection for his domestic construction in Survey No.314/3B of Periamanali Revenue Village, Tiruchengode Taluk, Namakkal District and on 17.11.2011, an Inspection has been made by the authorities, are admitted.
45. The averments made in the supporting affidavit shows that after inspection, the petitioner has paid a sum of Rs.50/- for application and registration fees on 02.01.2012 and Rs.35,090/- towards caution deposit, CC deposit, Development Charges and Erection Charges on 03.03.2012 and that the same have not been disputed. The further contention that subsequent to the abovesaid payment, the official respondents 1 and 2 have brought the electric poles to the site and on the objections of respondents 3 and 4 and their sons, failed to install the electric posts for providing electricity to the petitioner, has also not been disputed.
46. From the materials on record, it could be deduced that on the basis of the objections made by the respondents 3 and 4, for erecting the electric poles and lines, the official respondents 1 and 2 have asked the petitioner to clear the objections and make an alternate route, within 7 days from the date of receipt of the said letter, for erecting the poles and lines, drawing for effecting service connection.
47. The petitioner has also sent a letter, dated 26.12.2011, to the District Collector, Namakkal, stating that though he had completed the construction six months ago, the official respondents 1 and 2 have not provided electricity service connection. He has also expressed the agony and hardship faced by his children, studying in Schools. There was also difficulty in drawing water and therefore, he has sought for intervention of the District Collector.
48. The petition submitted to the District Collector, Namakkal, in No.TP/11/20420, has been forwarded to the Executive Engineer, Tamil Nadu Electricity Board, Tiruchengode and that the petitioner has been directed to contact him. Thereafter, the petitioner has sent a letter to the Superintending Engineer (O & M), Namakkal, reiterating the difficulties expressed by his family, without basic amenity of electricity and the sufferings expressed by his wife and children in the house, living in darkness and highlighted the fact, as to how, education of his children has been affected.
49. To the abovesaid letter, dated 28.12.2011, the Assistant Executive Engineer (O & M), Tamil Nadu Electricity Board, Elachipalayam, has sent a reply, dated 04.05.2012, to the petitioner stating that administrative sanction for providing electricity to the residence of the petitioner has been obtained and as and when electric poles and electric lines are allotted, subject to the Rules and Regulations of the Board, extension of the lines would be made and accordingly, service connection would be granted. The said letter is extracted hereunder:
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vyr;rpghisak; 637 202/ Translated version of the abovesaid letter is as follows:
Tamil Nadu Electricity Production and Distribution Corporation From To Assistant & Executive Engineer, Thiru.C.Ramasamy, Operation and Maintenance, S/o.Chinnanna Gounder, Tamil Nadu Electricity Board, Ottangadu, Elachipalayam - 637 202. Periyamanali (P.O) Lr.N.2.A.E.E./O&M/A.P/req.complaint/No.63, dated 04.05.2012 Sir, Sub: Electricity - Namakkal Electricity Board, Tiruchengode Division - Vaiyapimalai/West -
reply for the complaint petition from Thiru Ramasamy, S/o Chinnanan, Ottangadu -
regarding.
Ref.: Your letter dated 28.12.2011.
-----
Explanation is given as hereunder in respect of your complaint letter, cited under reference.
As estimate has been prepared for your application, which was registered, requesting electricity connection and permission was granted for the same. It is informed that after the allotment of electric post and electric lines, extension work would be completed in accordance with the rules and regulations of the electricity board and electricity connection would be provided.
Yours, Sd/-
Assistant & Executive Engineer, Operation and Maintenance, Tamil Nadu Electricity Board, Elachipalayam 637 202.
50. Even after the receipt of Rs.35,090/- towards the caution deposit, CC deposit, Development Charges and Erection Charges, as early as on 03.03.2012, the official respondents 1 and 2 have failed to erect the posts and draw the lines for providing electricity service connection. Material on record discloses that there has been exchange of notices between the private respondents and the petitioner. When the execution of the work was physically prevented and when the private respondents and his men have threatened the petitioner, a complaint, dated 08.04.2013, has been presented to the District Collector, Namakkal District and that the same has been forwarded to the Superintendent of Police, Namakkal District in T.P.No.13/14005. The Sub-Inspector of Police, Eleachipalayam Police Station, Namakkal District, has also registered a complaint in Serial No.51/2013, dated 01.05.2013.
51. There are no details, as to what has happened to the complaint. However, vide proceedings in f/vz;/2/bgh-,&g-it/kiy nkw;F-f/jdp-vz;/031-13-14. ehs; 04/05/13, the Assistant Engineer (O & M), Vaipamalai (West), has sent a letter to the petitioner, stating that when men from TANGEDCO, attempted to provide service connection on 04.05.2013, respondents 3 and 4 have objected to the erection of the poles in Survey No.314/3C and thus, the work could not be executed and hence, by the abovesaid letter, the Assistant Engineer has instructed the petitioner to clear the objections, within 7 days from the date of receipt of the said letter and make an alterate route and further informed him that only when the alternate route is provided, domestic service connection would be provided to the petitioner, failing which, recommendations would be made to reject the application of the petitioner.
52. Execution of work under the Electricity Act, 2003, is a statutory function. If the men, engaged in the execution of the work, for which, there is a sanction by the Authority, are prevented from exercising their duties, that would amount to an offence punishable under the Indian Penal Code. Therefore, on 04.05.2013, if the Board's men were physically prevented or obstructed, the official respondents 1 and 2 ought to have filed a Police complaint against those, who had prevented the public servants, from discharging their duties. Instead, it is unfortunate that the official respondents 1 and 2 have instructed the petitioner to clear the objections and instructed him to find out some other alternate route for providing domestic service connection.
53. The contention of the respondents 1 and 2 that in the event of the petitioner, not clearing the objections or making any alternate arrangement, recommendations would be made to reject the application of the petitioner for domestic service connection, despite the grievances expressed by the petitioner, to various authorities, viz., the District Collector, Namakkal, Superintending Engineer (O & M), Namakkal and others, reflects failure on the part of respondents 1 and 2, in performing their statutory duties. They have also failed to approach the Police to take necessary action against respondents 3 and 4, for preventing their men, from discharging their duties.
54. At this juncture, this Court deems it fit to extract few provisions relating to way-leave. In exercise of the powers conferred under Section 86 and 46 of the Electricity Act, 2003, the Tamilnadu Electricity Regulatory Commission, Chennai, has framed the Tamilnadu Electricity Distribution Code, vide notification No.TNERC/DC/8/61 dated 21.07.2004. The provisions of this Code have come into effect on 1st September 2004, the date on which, it was published in Tamilnadu Government Gazette.
55. Regulation 27 deals with the requisition for supply for energy, and as per 27(4) of the regulations "An intending consumer who is not the owner of the premises 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 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 licencee 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."
56. As per Regulation 27(6) of the Tamilnadu Electricity Distribution Code, 2004, "where the intending consumer's premises has no frontage on a street and the supply line from the licencee'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 and 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 licencee involving minimum cost 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 licencee 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."
57. Regulation 29 deals with service lines. Sub regulation 5 & 6, are reproduced hereunder, "5. The consumer shall provide free of cost to the licencee adequate land/space in his/her premises, as may be considered necessary by the Engineer and afford all reasonable facilities for bringing in not only cables or overhead lines from the licencee's system for servicing the consumer but also cables or overhead lines connecting other consumers. The land/space should be at a location near the entrance to the premises and should be easily accessible to licencee's officials for inspection.
6.The consumer shall permit the licencee to install all requisite equipments such as transformers, switchgears, meter etc., and to lay necessary cables or overhead lines and to provide connections thereto on the consumer's premises and shall also permit the licencee to extend supply to other consumers through the cables, lines and equipments installed in the consumer's premises, provided that supply to the consumer in the opinion of the Engineer is not thereby unduly affected."
58. Reading of Section 43 of the Act and the regulations extracted supra, makes it clear that an owner or occupier of premises may seek for supply of electricity to his premises and within one month, from the date of receipt of the application, the distribution licencee has to provide supply and if there is a failure to do so, the licencee shall be liable to a penalty which may extend to one thousand rupees for each day of default. However, supply of electricity is subject to the Tamilnadu Electricity Distribution Code 2004.
59. Regulation 27(6) of the Tamilnadu Electricity Distribution Bode 2004, contemplates that when objections are raised, for laying lines, cables, poles, through a route proposed by the licencee involving minimum cost and in accordance with the technical norms, the intending consumer shall arrange at his/her own expense necessary way leave, licence or sanction before the supply is effected. Any extra expenses to be incurred by the licencee in placing the supply line in accordance with the terms of way leave, licence or sanction shall be borne by the intending consumer.
60. However, reading of Regulation 29(5), indicates that an existing consumer shall provide free of cost to the licencee, adequate land/space in his / her premises, as may be considered necessary by the Engineer and afford all reasonable facilities for bringing in not only cables or overhead lines from the licencee's system for servicing the consumer but also cables or overhead lines connecting other consumers. In the case on hand, the petitioner is not an existing consumer, but an intending consumer, who under the Electricity Act and the regulations framed, is entitled to seek for supply. The land/space should be at a location near the entrance to the premises and should be easily accessible to licencee's officials for inspection.
61. A combined reading of 27(6) and 29(5) and (6) of the regulations indicates that when the existing consumer is obligated to provide free of cost for the licencee, adequate land/space in his/her premises, as may be considered necessary by the Engineer and afford all reasonable facilities for bringing in not only cables or overhead lines from the licencee's system for servicing the consumer, but also cables or overhead lines connecting other consumers, there is no reason as to why such an obligation should not be cast upon the existing consumer, to provide the licencee adequate land / space etc., for bringing in not only cables or overhead lines from the licencee's system to an intending consumer also.
62. The term 'way leave", used in the Code, has not been defined in the Act. Hence external aid is taken from Dictionary and the meaning of the term is as follows:
(i) "way leave", as per Oxford Dictionary, means a right of way granted by a landowner generally in exchange for payment and typically for purposes such as erection of telegraph wires or laying of pipes.
"Licence", means a permit from any authority to own or use something, do a particular thing or carry on a trade.
"Sanction", means Official permission or approval for an action.
(ii) As per the Advanced Law Lexicon by P.Ramanatha Aiyar, "way leave" means, a right-or-way (usually created by an express grant) over or through land for the transportation of minerals from a mine or quarry - the royalty paid for such a right.
(iii) As per Words and Phrases (Volume 44), the term 'way leave' means a right of way. In considering the extent to which a way leave may be used, the very object of the grant or reservation to which it is ancillary must be borne in mind, and this may involve a use of a different kind from that which was actually in contemplation at the time of grant or reservation.
63. Wayleave is a terminable licence that provides rights for an electricity company to install and retain their apparatus either underground cables or overhead lines across land. In common parlance, it can be said as permission for the way or the space, to be used by the distribution licencee to lay poles and to draw the transmission lines, to provide electricity supply to the owner or occupier of any premises.
64. Way leave is the authority under law or licence or sanction issued by the user of the land to erect poles in a person's land or premises, for the purpose of installation and retention of apparatus, erecting poles and overhead lines or underground cables, and such other incidental works. It is the right exercised by the user of the land or space to have access and to do the above works. The user of the land is not the intending consumer, who seeks electricity supply. It is the licencee, who is the user of the land or premises. At this juncture, it is pertinent to state that as per Section 43 of the Act, every distribution licencee, 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. Therefore, it would be appropriate to insist that the intending consumer to obtain way leave, or clear any objections. It is for the licencee to assess and make arrangements for the way leave or grant licence or sanction, depending upon the route, through which lines have to be drawn. At this juncture, this Court deems it fit to reiterate that sanction has already been accorded by the the Assistant Executive Engineer (O & M), Tamil Nadu Electricity Board, Elachipalayam in LT Lay Out of Ex Chinnamanali 88 I 100 KVA EOS TO 1 NO COM SC.
65. As per Regulation 27 of the Distribution Code, where the intending consumer's premises has no frontage on a street and the supply line from the licencee'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 and 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 licencee involving minimum cost 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 licencee 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. The obligation cast on the intending consumer to arrange for way leave, for any diversion of the service line, is onerous, as the intending consumer, will not be in a position to decide the direction or the route, from which the lines have to be drawn. It is for the licencee to decide. It should also be borne in mind, the cost be as less as possible and the damage likely to be caused should be minimal.
66. In a given case, if the lands are adjacent or contiguous, and if existing consumer due to any estranged relationship or for any other ulterior motive, object to the service connection being given to the land owner or occupier and whose lands are adjacent or contiguous, then the licencee cannot shirk his responsibility to provide electricity connection to the applicant. Further, in a given case, if the overhead lines have to be drawn from the licencee system through some posts, and if any objection is made by a third party, then in such cases, the intending consumer would never get domestic supply or agricultural connection. Usage of the words 'licence' or 'sanction' in the Code, and in the absence of any rule, made in furtherance of Section 67(2) of the Act or any procedure, in the form of guidelines or instructions, placed before this Court by the Board, the inference that could be made is that it is the distribution licencee who has to issue the licence, or sanction, before the supply is effected and the intending consumer cannot be compelled to get a way leave from the adjacent or contiguous owners, when they are objecting. The provision enabling way leave or licence or sanction to be issued by the competent authority can be with reference only to the cost to be borne by the applicant, for providing electricity supply line, to an intending consumer. As stated supra, if the lines of a consumer and an intending consumer are located parallelly, or diagonally or in any other direction for that matter and if the existing consumer objects to the supply being given to the intending consumer, then no supply can be effected.
67. When Electricity supply under Section 43 of the Electricity Code, is intended to be provided to the owner or occupier of the premises, morefully elaborated, as lawful occupant in the Distribution Code, then, it is imperative on the part of the authorities under the Electricity Act, 2003 and Tamil Nadu Electricity Distribution Code, 2004, to provide electricity service connection to the intending consumer, by collecting necessary costs, including the cost for availing way leave.
68. As per the abovesaid regulations, the intending consumer shall arrange at his / her own expense necessary way leave licence or sanction before the supply is effected. If there is any objection, then the authority, has to issue a licence, which means a permit to use the land/space, for erecting the poles for drawl of electricity supply or issue a sanction, which is an official permission or approval of an action by the authority or by his subordinates. An intending consumer, can only be asked to pay the extra expenses, if any.
69. Reverting back to the case on hand, perusal of the copy of the Field Measurement Book, stated supra, makes it clear that the land in Survey No.314/3C is a common pathway, which is duly certificed by the Village Administrative Officer, Village 90, PeriyaManali Village, Tiruchengode, Namakkal District, FMB Sketch and sale deeds. The width of the common pathway in Survey No.314/3C, is stated to be 4.4 Metres and the width of the electricity pole to be erected at the site is 8 inches. Learned counsel appearing for the Electricity Board has not disputed the same.
70. As demonstrated by the learned counsel for the petitioner, by taking this Court, through the copy of the Field Measurement Book, stated supra, the pathway in Survey No.314/3C, is right in front of the property of the petitioner in Survey No.314/3B. As per the Field Measurement Book, the length of the common pathway measures 58.4 Meters. On the Western side of the petitioner's house, there is a Panchayat road. From the perusal of the FMB Sketch, it is clear that the common pathway intersects Panchayat road.
71. LT Lay Out of Ex.Chinnamanali 88 I 100 KVA EOS TO 1 NO COM SC, has been issued by the Assistant Engineer, O & M, TANGEDCO, West, Vaiyappamalai. As per the version of the petitioner, the requirement is two poles and that the third pole has to be erected is only a supporting pole, for the main pole from which power supply is drawn. This is also not disputed by respondents 1 and 2. When the learned counsel for the petitioner suggested that out of the two poles, one pole can be erected at the intersection of the panchayat road, where the common pathway begins from the southern end and that the second pole can be erected, at the northern end of the pathway in Survey No.314/3C, closer to the petitioner's land in Survey No.314/3B and further contended that if the two poles are erected, at the abovesaid places, there will not be any reduction in the width of the common pathway, Mr.M.Ramesh, Assistant Engineer (O & M), TANGEDCO, West, Vaiyappamalai, Namakkal District, present in the Court, has fairly admitted that the suggestion made by learned counsel for the petitioner is feasible of compliance.
72. The grievance of the respondents 1 and 2 seemed to be that if the poles are erected, through the land in Survey No.314, EastWest, upto the panchayat road, adjacent to SF.No.315/3A, it would affect transportation of agricultural produce from the fields and would cause reduction in the width of the common pathway and consequently, affect commutation of vehicles. As this Court has already stated that it is not for the intending consumer to arrange for a way-leave or sanction or licence, for erection of electric poles and when the feasibility of erection of the electric poles for providing domestic service connection to the petitioner, as suggested by the learned counsel for the petitioner, with reference to the Field Measurement Book and Topography, has been accepted by Mr.M.Ramesh, Assistant Engineer (O & M), TANGEDCO, West, Vaiyappamalai, Namakkal District, it is for the respondents 1 and 2 to provide electricity to the petitioner. The objections of respondents 3 and 4 that one of the joint owner and who has all the rights, in the common passage should not be provided with domestic electric connection and that he should live in darkness, is opposed to equity and good conscience.
73. The petitioner has a right in the common pathway. He is also aware that the common pathway has to be used by all the land owners, including himself. The contingency of an ambulance or a fire engine, operating in the common pathway, arises only when there is an untoward incident, if any, in future. Installation of '8' Inches pole is not going to materially alter the width of the common pathway. On the facts and circumstances of the case, the petitioner and his family members are living in darkness from 2011 onwards. On the contra, respondents 3 and 4 are more interested in having access to take their agricultural produce. When the petitioner craves for supply of electricity for living, the respondents have projected a case, as if their ingress to egress to their property would be restricted. In the light of the statutory provisions, decisions and discussion, the objections made by respondents 3 and 4 are motivated, untenable and overruled. By erecting a pole with a width of 8 inches, the ingress and egress of the respondents, would never be restricted.
74. 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 electricity supply. Women have to struggle with firewood, kerosine, in the midst of smoke. Air pollution causes lung diseases and respiratory problems. Electricity supply, 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.
75. 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. In the humble opinion of this Court, the decision of respondents 1 and 2, denying supply of electricity on the above objections, 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 an effective enforcement of Article 21 or Article 21-A of the Constitution of India, while denying the petitioner, access to electricity supply.
76. 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 not be sufficient to have a living. 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.
77. Electricity is a 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 petitioner, instead of opposing the relief sought for. Electricity supply under the Electricity Act, the Distribution and Supply Code, is a legal right. At this juncture, this Court deems it fit to consider the meaning of the word, 'right' and few decisions, as to when a Mandamus, can be sought for.
78. The word "right, or in its plural form "rights," is a common term, of broad signification. It is a generic, abstract, and comprehensive term, having a wide scope of meaning in its various legal applications, and it has no satisfactory definition or explanation, except in connection with some concrete conception of thing out of which it grows. It may mean any legal right as the word is normally used, or it may be limited to some specific one of the large class of recognised "rights." It may be a right to do something, to have something, to be something, or even to let alone; it may refer to a right or privilege to use a highway or other public facility, or to utilise one of the great institutions of nature, or, on the other hand, it may refer to personal liberty, security, health, or property.
79. In Wharton's Law Lexicon, the word 'Right' means; 1) is a legally protected interest 2) is an averment of entitlement arising out of legal rules 3) right is an interest recognised and protected by moral or legal rules 4) right, comprehends every right known to the law.
80. In K.J.Aiyar's Judicial Dictionary, the word 'Right' means; 1) a right is a legally protected interest, 2) a right is an interest which is recognised and protected by law.
81. In Stroud's Judicial Dictionary, the word 'Right' means, is where one hath a thing that was taken from another wrongfully, as by disseisin, discontinuance, or putting out, or such like, and the challenge or claime that he hath who should have the thing, is called right.
82. In State of Kerala v. A.Lakshmi Kutty reported in 1986 (4) SCC 632, the Supreme Court held that a Writ of Mandamus is not a writ of course or a writ of right but is, as a rule, discretionary. There must be a judicially enforceable right for the enforcement of which a mandamus will lie. The legal right to enforce the performance of a duty must be in the applicant himself. In general, therefore, the Court will only enforce the performance of statutory duties by public bodies on application of a person who can show that he has himself a legal right to insist on such performance. The existence of a right is the foundation of the jurisdiction of a Court to issue a writ of Mandamus.
83. In Raisa Begum v. State of U.P., reported in 1995 All.L.J. 534, the Allahabad High Court has held that certain conditions have to be satisfied before a writ of mandamus is issued. The petitioner for a writ of mandamus must show that he has a legal right to compel the respondent to do or abstain from doing something. There must be in the petitioner a right to compel the performance of some duty cast on the respondents. The duty sought to be enforced must have three qualities. It must be a duty of public nature created by the provisions of the Constitution or of a statute or some rule of common law.
84. In Mr.'X' Vs. Hospital 'Z' reported in (1998) 8 SCC 296, while considering the right of privacy and the violations of personal rights, the conflict between fundamental right of the parties, at paragraph No.15, the Apex Court explained the word "right" as follows:
"RIGHT" is an interest recognised and protected by moral or legal rules. It is an interest the violation of which would be a legal wrong. Respect for such interest would be a legal duty. That is how Salmond has defined the "Right". In order, therefore, that an interest becomes the subject of a legal right, it has to have not merely legal protection but also legal recognition. The elements of a "LEGAL RIGHT" are that the "right" is vested in a person and is available against a person who is under a corresponding obligation and duty to respect that right and has to act or forbear from acting in a manner so as to prevent the violation of the right. If, therefore, there is a legal right vested in a person, the latter can seek its protection against a person who is bound by a corresponding duty not to violate that right.
85. Writ of mandamus cannot be issued merely because, a person is praying for. One must establish the right first and then he must seek for the prayer to enforce the said right. If there is failure of duty by the authorities or inaction, one can approach the Court for a mandamus. The said position is well settled in a series of decisions.
(a) In the decision reported in (1996) 9 SCC 309 (State of U.P. and Ors. v. Harish Chandra and Ors.) in paragraph 10, the Apex Court held as follows:
10. ...Under the Constitution a mandamus can be issued by the court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and the said right was subsisting on the date of the petition....
(b) In the decision reported in (2004) 2 SCC 150 (Union of India v. S.B. Vohra) the Supreme Court considered the said issue and held that 'for issuing a writ of mandamus in favour of a person, the person claiming, must establish his legal right in himself. Then only a writ of mandamus could be issued against a person, who has a legal duty to perform, but has failed and/or neglected to do so.
(c) In the decision reported in (2008) 2 SCC 280 (Oriental Bank of Commerce v. Sunder Lal Jain) in paragraphs 11 and 12 the Supreme Court held thus,
11. The principles on which a writ of mandamus can be issued have been stated as under in The Law of Extraordinary Legal Remedies by F.G. Ferris and F.G. Ferris, Jr.:
Note 187.-Mandamus, at common law, is a highly prerogative writ, usually issuing out of the highest court of general jurisdiction, in the name of the sovereignty, directed to any natural person, corporation or inferior court within the jurisdiction, requiring them to do some particular thing therein specified, and which appertains to their office or duty. Generally speaking, it may be said that mandamus is a summary writ, issuing from the proper court, commanding the official or board to which it is addressed to perform some specific legal duty to which the party applying for the writ is entitled of legal right to have performed.
Note 192.-Mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. The chief function of the writ is to compel the performance of public duties prescribed by statute, and to keep subordinate and inferior bodies and tribunals exercising public functions within their jurisdictions. It is not necessary, however, that the duty be imposed by statute; mandamus lies as well for the enforcement of a common law duty.
Note 196.-Mandamus is not a writ of right. Its issuance unquestionably lies in the sound judicial discretion of the court, subject always to the well-settled principles which have been established by the courts. An action in mandamus is not governed by the principles of ordinary litigation where the matters alleged on one side and not denied on the other are taken as true, and judgment pronounced thereon as of course. While mandamus is classed as a legal remedy, its issuance is largely controlled by equitable principles. Before granting the writ the court may, and should, look to the larger public interest which may be concerned-an interest which private litigants are apt to overlook when striving for private ends. The court should act in view of all the existing facts, and with due regard to the consequences which will result. It is in every case a discretion dependent upon all the surrounding facts and circumstances.
86. When a Writ of Mandamus can be issued, has been summarised in Corpus Juris Secundum, as follows:
Mandamus may issue to compel the person or official in whom a discretionary duty is lodged to proceed to exercise such discretion, but unless there is peremptory statutory direction that the duty shall be performed mandamus will not lie to control or review the exercise of the discretion of any board, tribunal or officer, when the act complained of is either judicial or quasi-judicial unless it clearly appears that there has been an abuse of discretion on the part of such Court, board, tribunal or officer, and in accordance with this rule mandamus may not be invoked to compel the matter of discretion to be exercised in any particular way. This principle applies with full force and effect, however, clearly it may be made to appear what the decision ought to be, or even though its conclusion be disputable or, however, erroneous the conclusion reached may be, and although there may be no other method of review or correction provided by law. The discretion must be exercised according to the established rule where the action complained has been arbitrary or capricious, or based on personal, selfish or fraudulent motives, or on false information, or on total lack of authority to act, or where it amounts to an evasion of positive duty, or there has been a refusal to consider pertinent evidence, hear the parties where so required, or to entertain any proper question concerning the exercise of the discretion, or where the exercise of the discretion is in a manner entirely futile and known by the officer to be so and there are other methods which it adopted, would be effective." (emphasis supplied)
87. A writ of Mandamus, can be issued by the court, in its discretion, for which, it must be shown that, there is a non discretionary legal duty upon the authority against whom, the relief is sought for and that the person approaching the High Court under Article 226 of the Constitution of India, has to prove that he has a legal right to be enforced against the authority, for the failure of performance of a legal or statutory duty, by the authority against whom, the relief is sought for.
88. Hence, the impugned order is liable to be set aside and accordingly, set aside. The Writ Petition is allowed. Respondent Nos.1 and 2 are directed to provide electricity service connection to the above S.MANIKUMAR, J.
skm said petitioner's residential premises within two weeks from the date of receipt of a copy of this order, if required, with the assistance of police. If any obstructions are made, it is open to the respondents 1 and 2 to launch prosecution for preventing the public servants from discharging their duties. Connected Miscellaneous Petition is closed. No costs.
09.10.2013 Index: Yes/No Internet: Yes/No skm W.P.No.18868 of 2013