Madras High Court
Flat Promoters' Association, Rep. By ... vs The State Of Tamil Nadu, Rep. By Its ... on 24 March, 2003
Equivalent citations: AIR2004MAD191, 2003(2)CTC90, AIR 2004 MADRAS 191, (2003) 4 MAD LW 408
ORDER K. Govindarajan, J.
1. In all these writ petitions, the petitioners have challenged the impugned Government Order passed in G.O.Ms.No.253, Public Works Department, dated 18.2.1992.
2. Before passing the impugned Government Order, the petitioners and other builders at Chennai could get power connection irrespective of the fact whether they completed the building or not.
3.The Government exercising powers given under Section 78-A of the Electricity (Supply) Act, 1948, hereinafter called 'the Act 1948' issued the impugned Government Order directing the Tamil Nadu Electricity Board to insist a person to apply for power connection to produce planning permission for the development as detailed in the Town and Country Planning Act, 1971 along with the completion certificate issued by the authority such as Local Planning Authority, Town Development Authority, Madras Metropolitan Development Authority or any other authority designated by the Government to issue planning permission and completion certificate as the case may be. It is also stated that if the person fails to produce the planning permission and the completion certificate, the Electricity Board shall refuse power connection.
4. Mr.Vijayan, learned Senior Counsel appearing for the respective petitioners submitted that the impugned Government Order, compelling the person to produce completion certificate is not to carry out the purpose of the Act 1948. He also submitted that such a direction has no nexus for the purpose of achieving the object of the Act 1948. It is his further submission that after the enactment of The Electricity Regulatory Commission Act, 1998, the State Government cannot exercise the power under Sec. 78-A of the Act 1948. Referring to the terms and conditions of Supply of Electricity of Tamil Nadu Electricity Board, learned Senior counsel submitted that while dealing with the application seeking power supply, the Electricity Board can only enforce the said terms and conditions, and the conditions mentioned in the impugned Government Order is beyond the scope of the terms and conditions of the Board and so it cannot be sustained. He also submitted that the impugned Government Order is issued only by the Public Works Department and not by the Electricity Department and so it cannot be taken as an order issued by a concerned Department so to say that it would bind the Electricity Board.
5. Mr. T.V. Ramanujan, learned Senior Counsel, appearing for the respective petitioner submitted that the powers and duties of the Electricity Board have been specified under Section 49 of the Act 1948, and no power is stipulated to insist upon production of completion certificate by the Board as it is nothing to do with the supply of electricity connection and so the Government under the guise of exercising powers under Sec. 78-A of the Act 1938 cannot issue certain direction which is irrelevant for the purpose for which the Act was enacted. He also submitted that there is no public interest involved in insisting the production of completion certificate for the purpose, of dealing with the application for power connection, which cannot be countenanced. Under Section 78-A of the Act 1948, a policy can be suggested by the Government. But the impugned order is not on the basis of any policy to enforce the scope of the Act 1948, and it should not be for the purpose of enforcing the provisions of the Town and Country Planning Act. He also submitted that there is no definition for the term 'completion certificate'. According to him, even a person who got permission to construct three floors is entitled to stop with ground floor and occupy the same and in such a situation, under the guise of the impugned order, the Electricity Board can refuse to grant power connection as such person cannot get completion certificate. In view of the said anomaly, the impugned order cannot be sustained.
6. Mr. Sadanand, learned counsel appearing for the respective petitioners relied on the decision in Chittoor Zilla Vyavasayadarula Sangham v. A.P. Seb, 2001(1) SCC 396, and submitted that the impugned order is outside the scope of Sections 49 and 59 of the Act 1948 and so it cannot be said that the same was issued exercising powers under Section 78-A of the Act 1948.
7. Mr. Muthukumaraswamy, Learned Additional Advocate General submitted, relying on Section 49(1) of the Act 1948, that the provision contains two tariffs and the impugned order relates to regulation of service connection which comes under the terms and conditions of the Board and so the Government are having power to give decision to the Board to implement the same under Section 78-A of the Act 1948 for the purpose of regulating the service connection. The said Commission is empowered only to regulate the tariff. The impugned order does not deal with the tariff. He also submitted that such a procedure is contemplated only to see that the power connections are given to the building which is legally constructed. Referring to various clauses in the terms and conditions, learned Additional Advocate General submitted that imposing such a condition in the impugned order is not a new procedure and it is similar to other conditions. He also submitted that the Electricity Board comes under the Public Works Department on the date of passing the impugned order and only subsequently separate Department called Energy Department was formed and so during the relevant period the Department of Public Works is the concerned Department. He further submitted that only on the basis of the policy of the Government, the Government have been exercising the power under Sec. 78-A of the Act 1948.
8. Mr. Somayaji, learned Senior Counsel appearing for the respective respondents submitted that there is a procedure for granting completion certificate. He also relied on certain decisions to sustain the impugned order.
9. Before dealing with the above submissions made by the learned counsel on both sides, it is beneficial to reproduce Section 78-A of the Act 1948, which reads as follows:-
"78-A. Directions by the State Government:- (1) In the discharge of its functions, the Board shall be guided by such direction on questions of policy as may be given to it by the State Government.
(2) If any dispute arises between the Board and the State Government as to whether a question is or is not a question of policy, it shall be referred to the Authority whose decision thereon shall be final."
Exercising powers given under the said provision, the Government of Tamil Nadu in G.O.Ms.No.253, Public Works Department, dated 18.2.1992, have passed the following order:-
"The Governor of Tamil Nadu hereby directs that the Tamil Nadu Electricity Board shall, while a person applies for the power connection, insist him to produce planning permission for the development as detailed in the Town and Country Planning Act, 1971 (Tamil Nadu Act 35 of 1972) along with completion certificate issued by the authority such as the Local Authority, Local Planning Authority, New Town Development Authority, Madras Metropolitan Development Authority or any other authority designated by the Government to issue planning permission and completion certificate, as the case may be, whenever an application is received for power connection. If he fails to produce the planning permission and the completion certificate, the Board shall refuse power connection."
10. So the question now to be decided is whether the Government have power to issue such a direction to the Electricity Board to insist the petitioners to produce completion certificate from the concerned authority for consideration of the application to get power supply for the building.
11. The above said Government Order came to be passed on the basis of the proposal sent by the concerned authorities even in 1984 and after an elaborate discussion. Under Section 49(1) of the Act 1948, the Board is empowered to give power supply to any person upon such terms and conditions as the Board thinks fit and may for the purpose of such supply frame uniform tariffs. So from the said provision, it is clear that for regulating the power supply, the Board has power to have terms and conditions. So far as the tariff is concerned, now the Regulatory Commission has been appointed for the purpose of regulating the electricity tariff.
12. The terms and conditions for the supply of electricity by the Tamil Nadu Electricity Board, were framed exercising powers given under Section 49 of the Act 1948. "Consumer" has been defined under Clause 2.01 (iii)(a) of the terms and conditions. "Consumer's premises" is also defined under Clause 2.01 (v) of the terms and conditions. Clause 6.00 of the terms and conditions, is the relevant for the present purpose as it deals with requisition for supply of energy. Under Clause 6.01 (b) an applicant has to produce letter of consent to establish an industry, from the Tamil Nadu Pollution Control Board. Similarly, under Clause 6.03, if the tenant wants power supply he has to produce the proof of his being in lawful possession of the premises. Under Clause 6.02, if the tenant wants power supply he has to give consent letter from the owner. Under Clause 6.04, if a person who is occupying the Government land wants power supply, he has to produce 'no Objection Certificate' from the officer concerned. Even with respect to Flats as contemplated under Clause 6.08, the conditions stated above also apply along with the conditions stipulated by local body, etc., for getting supply of electricity to such building. Under Clauses 8.07 and 8.08, the procedures stipulated therein have to be followed for getting power connection to the storied buildings. Under Clause 28.01, if any request from the Tamil Nadu Pollution Control Board is received for stoppage of supply of electricity, the Electricity Board has to disconnect the same. Clause 31.03 deals with the temporary power connection with reference to commercial area or office or residential complexes. From the above said clauses of the terms and conditions, it is clear that the obligation to produce certain certificates and documents as a precondition for the purpose of considering the application for effecting power supply is contemplated under the terms and conditions of the Electricity Board. Only to discharge the said functions in regulating the power supply effectively, the Government have issued the impugned order to the Board directing it to get such certificates for the purpose of effecting power supply. The Board also has given effect to the same which can be evidenced from the circular dated 4.7.2002.
13. Learned Senior Counsel appearing for the respective petitioners tried to submit that insisting the petitioners to produce completion certificate is not the function of the Electricity Board as contemplated under Sec. 49 of the Act 1948 and it is only to regulate the functions under the provisions of the Town and Country Planning Act. Even if it is for the purpose of preventing illegal construction, it has to be done only under the provisions of Tamil Nadu Town and Country Planning Act, and the said Act has provided the necessary provisions for the same. This submission cannot be countenanced, because, insisting for production of completion certificate from the concerned authority is only to see that electricity is being supplied to the building constructed in accordance with law. So, it cannot be said that only to implement the provisions of the Town and Country Planning Act, the impugned Government Order is passed by the Government. Though the said purpose also would be served, the impugned order is passed on the basis of the policy of the Government that electricity connection should be given only to lawfully constructed buildings. This policy of the Government cannot be said as it is not to implement and it is alien to the object of the Act 1948.
14. It is no doubt true that the State Government have to perform their obligation within the limits for which they have been entrusted with. But for Section 78-A of the Act 1948, the State Government is not expected to give direction to the Board on the question of policy, as the Board which is a Statutory Body is expected to discharge its statutory obligation in terms of Sec. 49 of the Act 1948 independently. The Government giving policy directions exercising powers under Section 78-A of the Act 1948 is only for the purpose of effective performance of the Board and so the same would be binding on the Board.
15. The Apex Court in the decision in Chittoor Zilla Vyavasayadarula Sangham v. A.P.S.E.B, 2001 (1) SCC 396, has held as follows:-
"if any policy direction pushes the Board in its compliance beyond statutory limitations, it cannot be a direction within the meaning of Section 78-A. It is significant that the opening words of Section 78-A are, "in the discharge of its functions, the Board shall be guided by such directions. So, the direction of the State is for the guidance to the Board, in the discharge of its functions. Thus the power of giving direction has also limitation to give such direction which will subserve in performing its statutory obligation".
16. Though the power conferred upon the Government under Section 78-A of the Act 1948 is neither absolute nor unguided, even with reference to the direction given outside the purview of Section 78-A of the Act 1948, the Division Bench of the Andhra Pradesh High Court in the decision in A.P. State Electricity Board Vidyut Soudha v. Gowthami Solvent Oils, , has held that if it is given in the interest of public and in the interest of the economy of the State and the nation and it will bind the Electricity Board. The Division Bench has held as follows:-
"22.Section 78-A empowers the Government to issue directions to the Board on questions of policy. It further declares that the Board shall be guided by such directions in discharge of its functions. If, however, any dispute arises between the Board and the State Government as to whether a particular direction pertains to a question of policy or not, such dispute has to be referred to and decided by the Authority (created under Section 3), whose decision shall be final. It is obvious that this power conferred upon the Government is neither absolute, nor unguided. Any direction given shall be consistent with the provisions of the Act and the Rules, if any, made thereunder, and must be within the frame-work of the Act. (See Laker Airways, 1977 (2) All ER 182 (CA) and Bromley London Borough Council, 1982 (1) All ER 129 (HL): 1973 (227) EG 659). Indeed, the provisions of the Act themselves furnish a guidance to the Government in the matter of issuance of directions. Any direction issued by the State Government contrary to any particular provisions of the Act, or the Rules, would be outside the purview of Section 78-A. At the same time, however, it must be conceded that the Government is entitled to take into consideration the public interest and the interest of the economy of the State and the nation while giving such directions. Directions actuated by such considerations cannot be said to be either contrary to the provisions of the Act or outside the frame-work of the Act. As emphasized hereinbefore, the Board is not like any other private individual, or corporation; it is a statutory public corporation with a commitment to social good and to public welfare. Now, food is a basic necessity."
The above said judgment was confirmed by the Apex Court in the decision in Real Food Products Ltd. v. A.P.S.E. Board, .
17. While dealing with the similar issue, the learned Judge of the Karnataka High Court in the decision in K.S. Susheela v. Karnataka Electricity Board, , where the Regulations insisting to produce a certificate that the building concerned is an unauthorised one for the purpose of getting power supply, it is held as follows:-
"11.The illustration given by the learned Counsel that the Government cannot refuse to give a ration card to a family on the ground that it is residing in an unauthorised construction is not at all apposite. There is a clear and inseparable nexus between a building and supply of electric energy or water to the building. They are so essential supplies with which alone a building becomes fit and suitable for residential or non-residential use. Therefore, any rule framed imposing a condition namely that production of a certificate for the construction is an authorised one is necessary for the supply of electric energy would be a valid condition and within the powers of the Board under Section 79 of the (1948) Act. In the light of the above discussion, I answer the question set out first as follows:
Regulation 2(f) of the Electricity supply Regulations made by the Karnataka Electricity Board which provides that the Board may require an applicant seeking supply of electric energy to produce a certificate from the concerned Local Authority to the effect that the construction is an authorised one as a condition for supply of electric energy, is valid."
18. The Division Bench of this Court in the decision in Arul, P. & 237 Ors. v. Tamil Nadu Electricity Hoard & 22 Ors. 1996 W.L.R. 215, while deciding the scope of Section 78-A of the Act 1948 has held that any view expressed by the State Government on a question of policy is in the nature of a direction to be followed by the Board in the area of policy to which it relates to the Board shall be completed under such direction as long as it is a direction on the question of policy.
19. While challenging the withdrawal of concessional tariff given to the agriculturists, cottage industries, etc., the Division Bench of the Andhra Pradesh High Court in the decision in Nava Bharat Ferro Alloys Ltd. v. A.P.S.E. Board, Hyderabad, AIR 1985 A.P. 299, has held as follows:-
"54.Under Section 78-A of the Supply Act, the Board, in the discharge of its functions, shall be guided by such directions on questions of policy as may be given to it by the State Government. The State has got manifold functions, including the giving of encouragement to entrepreneurs to set up industries either in the private sector, public sector or joint sector. In the initial periods, the industries would be requiring supply of power at concessional rates. If the matter was to be left to the Board, the Board may not be in a position to offer any concessions to such entrepreneurs. It is clear that the Government steps in and gives directions to the Board as may be necessary to supply power to those new industries at concessional tariffs, during the formative years. The State, in formulating its socio-economic policies, would be inclined to show some concessions in favour of consumers availing supply for agricultural or community purposes and such like occupations justifying the fixation of tariffs at a lower level. In our view, the fixation of tariffs is, therefore, a major policy decision which the Board can take concerning which the Government can effectively intervene by acting under Section 78-A of the Supply Act. In one of the early cases which came up before this Court in W.A.No.359/74 and batch this question arose before a Division Bench consisting of Obul Reddi, C.J., and Lakshmaniah, J., whether a certain decision taken by the State Government on 12.4.73 was a policy decision. There was a difference of opinion between the two learned Judges and the matter was subsequently referred to Sambasiva Rao, J., (as he then was). Obul Reddi, C.J., held:
"Section 49(3) does not prevail over the powers vested in Government by Section 78-A. It is open to the Government to lay down its policy in the matter of fixation of tariff rates; but any policy decision of its must be in consonance with the requirements of Sub-section (3) of Section 49. the requirements of Sub-section (3) of Section 49 must be satisfied."
Sambasiva Rao, J., held:-
"In this connection the power of the government to issue directions under Section 78-A of the Act on questions of policy should also be borne in mind. Once a direction is given on a policy matter, which must necessarily include in its ambit the rates that should be charged from consumers, the Board is bound to be guided by them."
In Nava Bharat Ferror Alloys Ltd. v. A.P.S.E.B., W.P.No.4405/77 dt. 5.12.1980, a Division Bench of this Court expressed itself:
"The location of the plant had no bearing on the question of granting concessional rates, which is readily a policy decision to be taken in a larger context."
55. A Division Bench of the Madras High Court in Madras Aluminium Company Ltd. v. Tamil Nadu State Electricity Board, C.C.No.308/77 and batch dt.22.10.1984 observed:
"Under Section 78-A of the Supply Act in the discharge of its functions, the Board shall be guided by such directions on questions of policy as may be given to it by the State Government. Since the discharge of its functions include agreeing to supply at a Special rate for a specified period of time, the Government could give directions under this Section to the Board in this regard to the rate of supply with reference to a case falling under Section 49(3) if it was considered to be a policy matter."
20. The Apex Court in the decision in Real Food Products Ltd. v. A.P. State Electricity Board, , had an occasion to deal with the scope of Section 78-A of the Act and held as follows:-
"8. The only surviving question is with regard to the nature and effect of the direction given by the State Government under Section 78-A of the Act. The question has to be examined in the context of the facts of the present case which is confined to the charging of a flat rate per H.P., for agricultural pump-sets. The nature of the function of the Board in fixing the tariffs and the manner of its exercise has been considered at length in the earlier decisions of this Court and it does not require any further elaboration in the present case. Section 78-A uses the expression "the Board shall be guided by such directions on questions of policy as may be given to in by the State Government". It does appear that the view expressed by the State Government on a question of policy is in the nature of a direction to be followed by the Board in the area of the policy in which it relates. In the context of the function of the Board of fixing the tariffs in accordance with Section 49 read with Section 59 and other provisions of the Act, the Board is to be guided by any such direction of the State Government. Where the direction of the State Government, as in the present case, was to fix a concessional tariff for agricultural pump-sets at a flat rate per H.P., it does relate to a question of policy which the Board must follow. However, in including the specific rate in a given case, the action of the State Government may be in excess of the power of giving a direction on the question of policy, which the Board, if its conclusion be different, may not be obliged to be bound by. But where the Board considers even the rate suggested by the State Government and finds it to be acceptable in the discharge of its function of fixing the tariffs, the ultimate decision of the Board would not be vitiated merely because it has accepted the opinion of the State Government even about the specific rate. In such a case the Board accepts the suggested rate because that appears to be appropriate on its own view. If the view expressed by the State Government in its direction exceeds the area of policy, the Board may not be bound by it unless it takes the same view on merits itself."
21. So, if the respondents are able to establish that the direction is only with reference to the functions of the Board as contemplated under Sec. 49 of the Act 1948, the Government are having jurisdiction to issue such direction. Section 49 of the Act 1948 empowers the Board to supply power upon such terms and conditions as the Board thinks fit. So the Board is competent to make a rule to the effect that production of a certificate, stating that the building concerned is an authorised one, as a condition precedent for supply of electricity effectively and so the Government Order issuing policy direction under Section 78-A of the Act 1948 is within their powers given under the statute. As held by the Apex Court in the decision stated supra, if it is within the purview of Section 49 of the Act 1948, then such a direction binds the Electricity Board and so it has to be carried out. The impugned requirement cannot be construed as it is beyond the scope of Section 49 of the Act 1948 and also the terms and conditions, as the impugned order is passed only to see that the said basic amenity is to be given only to the buildings which have been constructed according to the plan and relevant provisions of law and the Regulations, it also cannot be said that there is no nexus between the building constructed and the supply of electric energy.
22. Learned Senior Counsel appearing for the respective petitioners relied on the decision of this Court in Theatre Mathi A/c v. State of Tamil Nadu, 2001(1) M.L.J. 301, in which this Court has struck down the Rule creating an obligation on the part of the owner of the theatre to produce no due certificate' with respect to the property tax to the building consisting the cinema theatre. While considering the said Rule, this Court has held that such a condition imposed has no nexus to enforce the provisions of Cinematograph Act and the Rules made thereunder. The said conclusion was arrived at only on the basis that the local authorities are empowered to collect tax and so such a condition cannot be included in the relevant rules. The said decision cannot be relied on to the issue raised in the present case, as the condition imposed here is to achieve the policy, namely, the power supply can be given only to the buildings constructed in accordance with the Rules and Regulations. So, the contention raised, on the basis of the above said decision, by the learned Senior Counsel appearing for the respective petitioners cannot be countenanced.
23. Mr.T.V.Ramanujan, learned Senior Counsel and Mr. Sadanand, learned counsel appearing for the respective petitioners took a stand that there is no such procedure contemplated under the Town and Country Planning Act, as to how and when such completion certificate has to be given. According to him, a person though got sanctioned plan for a multi-storeyed building, he is entitled to construct a portion of the same and postpone or stop further construction. In such circumstances, if the authorities refuse to issue completion certificate on the basis of the sanctioned plan, such a person cannot get power supply at all. Now the Member-Secretary of the 4th respondent in W.P.No.32160/2002 has filed a affidavit stating that "so far no builder or developer or individual has approached the 4th respondent for issuance of completion certificate in part". It is also stated that they will give necessary and appropriate instructions to that effect. When the 4th respondent can formulate guideline to meet out such a situation, the impugned order need not be set aside on that basis as its validity has to be decided on the basis of the power of the State Government to issue the same.
24. It cannot be said that there is no nexus between the building constructed and the supply of electricity, with which alone the building becomes fit and suitable either for residential or non-residential use. When the State Government and the Electricity Board try to regulate certain illegalities in the interest of the public, this Court cannot issue a Writ as sought for to effect power supply even if the building is constructed illegally and contrary to the planning permission. It cannot be denied that the functions of the Court is to enforce law in the public interest and not to direct the authorities to ignore law on the only ground that there will be hardship to the petitioners. In fact, in the counter filed by the 1st respondent--Government, they have come forward with the following reasons for taking such a policy decision which read as follows:-
"70.It is submitted that the Chennai Metropolitan Development Authority is receiving many complaints and objection from the general public, flat buyers about the unauthorised and deviated constructions. On one side, there are certain builders and individuals, who construct buildings in deviation to the approved plan in violation of rules. There is no justification, leaving these unscrupulous scot free. Taking advantage of the loopholes in the provisions of the acts and rules many in the past have made construction in violation of the rules, sold them to unwary buyers and escaped from the clutches of the law. There were many disputes between the buyers and the sellers in non-fulfilling the agreements like constructions, made illegally in the common areas/terraces conversion of car parking into shops, building more than what is permitted ultimately and these are being referred to Chennai Metropolitan Development Authority in the form of complaints. It is therefore necessary that to achieve an orderly growth of the City, to take deterrent action against unauthorised construction and to protect the flat buyers, the only weapon which could act as deterrent is denial of services."
In view of the above said reasonings and also the discussion made before passing the impugned order, the submission made by Mr. Vijayan, learned Senior Counsel appearing for the respective petitioners that the State Government exercising powers under Section 113-A of the Town and Country Planning Act, exempted the buildings constructed contrary to the planning permission by collecting regularisation fees and so it cannot be said that the present move is for the public interest. Such granting of exemption is approved by the Apex Court in the decision in Consumer Action Group v. State of T.N., , holding as follows:-
"37. ... The Government may have a gainful eye in this process of regularisation to gain affluence by enriching coffers of the State resources but this gain is insignificant compared to the loss to the public, which is State concern also as it waters down all preceding developments. Before such pattern becomes cancerous and spreads to all part of this country, it is high time that remedial measure was taken by the State to check this pattern.
25. The Apex Court also advised the State Government, to do certain things to curb illegalities, as follows:-
38, ... Unless check at the nascent stage is made, for which it is for the State to consider what administrative scheme is to be evolved, it may be difficult to control this progressive illegality. If such illegalities stay for long, waves of political, humanitarian, regional and other sympathies develop. Then to break it may become difficult. This inflow has to be checked at the very root. The State must act effectively not to permit such situation to develop in the wider interest of the public at large. When there is any provision to make illegal construction valid on that ground of limitation, then it must mean that the statutory authority in spite of knowledge has not taken any action. The functionary of this infrastructure has to report such illegalities within the shortest period, if not, there should be stricter rules for their non-compliance. We leave the matter here by bringing this to the notice of the State Government to do the needful for salvaging the cities and country from the wrath of these illegal colonies and construction."
The above said observation of the Apex Court was given taking into consideration the public interest, and so the steps taken by the Government have to be construed only in compliance with the direction issued by the Apex Court. When the Government have taken a policy decision in the interest of the public and also within the purview of their power given under Section 78-A of the Act 1948, as stated already, this Court while exercising jurisdiction under Article 226 of the Constitution of India is not inclined to interfere with the impugned order.
26. For all the reasons stated above, these writ petitions are dismissed accordingly. No costs. Connected Miscellaneous Petitions are closed.