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2008 DIGILAW 975 (MAD)

V. Suryakantham and Another v. V. Anandan and Others

2008-03-18

K.RAVIRAJA PANDIAN, P.P.S.JANARTHANA RAJA

body2008
Judgment : Per K. RAVIRAJA PANDIAN, J. The writ petitioner in W.P. No. 77 of 2005 and W.P. No. 27381 of 2007 and the fourth respondent in W.P. No. 37181 of 2005 are the appellants in all these appeals. 2. The appellant in WA. Nos. 1400 and 1414 of 2007, Suryakantham filed writ petition in W.P. No. 77 of 2005 seeking for the relief of issuance of a writ of mandamus directing the Tamil Nadu Electricity Board and the. Assistant Executive Engineer, Tamil Nadu Electricity Board, Nandanam Distribution System to disconnect the two extra service connection provided to the flats bearing Door No.97/98, RK Mutt Road,Mandaveli, Chennai. Likewise, the appellant in W.A. No. 1413 of 2007 filed the writ petition in W.P. No. 27381 of 2007 for the same relief directing the Assistant Executive Engineer and the Assistant Engineer of the respondent Electricity Board to forthwith disconnect the two extra commercial electricity connections given to the 4th respondent Anandan. Subsequently, as the Electricity Board has disconnected the service connection, the respondent Anandan has filed the writ petition in W.P. No. 37181 of 2005 seeking for the issuance of a writ of certiorarified mandamus to call for the records pertaining to the show cause notice of the Executive Engineer of the Tamil Nadu Electricity Board, UV Nagar-O&M dated 26.10.2005 and quash the same as unlawful and to direct the second and third respondents to restore the electricity connection to the basement portion of the premises bearing Nos. 97 and 98, R.K. Mutt Road,Mandaveli, Chennai- 600 028. 3. The case of the appellants to seek the relief was that the third respondent in the first writ appeal was the sole owner of the immovable property, that he sold the undivided share of two pieces of land to the appellants and the construction was made by the respective parties who made application to the Electricity Board for service connection. Accordingly, it was given that the entire building is in a residential complex. While that being so, the said Anandan had applied for two commercial electricity service connections in the ground floor, which is a common area for all. Accordingly, it was given that the entire building is in a residential complex. While that being so, the said Anandan had applied for two commercial electricity service connections in the ground floor, which is a common area for all. He has converted the common area and running a jewelry shop therein, which is impermissible in law and the conversion of the ground floor as a shop itself is against the planning permission granted and tantamounts to violation of the planning permission and the occupation of the portion, which is put up not in accordance with the sanctioned plan, which would amount to illegal construction. For the illegal construction, the service connection cannot be provided with. The appellants have also contended that in the common area, each owner of the flat is having undivided share and without earmarking the common undivided share, the action of the said Anandan to put up construction is not authorised by any statutory provisions, which ultimately resulted in illegal construction and put up against of statutory provisions. When the appellant is also having an undivided share, the electricity connection cannot be granted without their consent; on that score, sought for the relief of disconnection. The learned single Judge who heard the writ petition alter hearing the parties has recorded a finding that there was no materials made available to the Court, to come to the conclusion that the area was the residential area or classified as residential zone. There was no necessity for the officials of the Corporation of the Madras to give a certificate of no objection on the mere claim asking by the first respondent. These facts are disputed question of fact. The appellant cannot invoke the jurisdiction of this Court and for a direction to the Electricity Board to disconnect the service connection. For those reasonings, non-suited the appellant for the relief sought for and in respect of the writ petition filed by the 4th respondent Anandan, the learned single Judge after taking note of the fact that the connection has been originally provided by the Electricity Board as per Clause 27(4) of the Tamil Nadu Electricity Board Distribution Code, 2004, held that the Electricity Board cannot have any jurisdiction to decide as to whether the construction put up is in accordance with the sanctioned plan or commercial or non-commercial. Further, the Electricity Board after making inspection of the property only granted the service connection. The disconnection is not supported by any statutory provisions; on that reasoning granted the relief as prayed for in the writ petition Hence, the appellant is before us by filing the appeal. 4. Mr. R. Thiagarajan, learned Senior Counsel appearing for the appellants submitted that when the ownership of the Anandan itself is disputed and the civic authorities has also issued demolition notice having found that the construction has not been put up as per the sanctioned plan and there are deviation, the Electricity Board should not have granted connection for commercial purpose. 5. On the other hand, learned counsel appearing for the respondents argued for supporting the judgment of the learned single Judge. 6. We have heard the learned counsel appearing for the Electricity Board. 7. Having heard the learned counsel for the respective parties, we are of the view that the relief sought for by the appellants cannot be granted for the following reasons. The entire relief is sought for on the ground that the 4th respondent Anandan has violated the sanctioned plan in putting up the construction and has put up a shop in the ground floor, which has been earmarked for the common purpose and the service connection has been obtained by him for commercial purpose, when the entire stretch of R.K. Mutt Road has been classified as a residential area. We are of the view that making provision for the electricity service connection is regulated by the terms and conditions for supply of electricity, a regulation formulated under the Electricity Act, 2003. Clause 27 of the Tamil Nadu Electricity Board Distribution Code, 2004, which reads as follows: “ 27. We are of the view that making provision for the electricity service connection is regulated by the terms and conditions for supply of electricity, a regulation formulated under the Electricity Act, 2003. Clause 27 of the Tamil Nadu Electricity Board Distribution Code, 2004, which reads as follows: “ 27. Requisitions for supply of energy.- ( 1) The provision regarding the duty of licensee as detailed in Section 43 to supply electricity on request is reproduced below: (1) 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 alter 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.” The Electricity Board having satisfied the requirement of Clause 27 of the Code has granted service connection. Section 55 of the Indian Electricity Board, 2003 provides that any person neglects to pay any charge for electricity or any sum other than a charge for electricity due from him, the authority can disconnect. 8. The Tamil Nadu Electricity Supply Code, 2004 and Chapter 3 provides for disconnection of the electricity service connection already given for non-payment pf electricity charges only. 8. The Tamil Nadu Electricity Supply Code, 2004 and Chapter 3 provides for disconnection of the electricity service connection already given for non-payment pf electricity charges only. In the absence of any specific provisions empowering the Electricity Board to disconnect the service connection on the complaint made by some of the building owners that the jewellery shop has been constructed in the common area which is in violation of the sanctioned plan, we afraid of such a direction can be given by way of a mandamus by invoking the power under Article 226 of the Constitution of India. The entire ground of attack of the appellants is that the construction put up is not in accordance with the statutory provision of the Madras City Municipal Corporation Act and DCR framed thereunder. If that be so, it is well open to the appellants to move the appropriate authority or forum for appropriate action. Leaving that, a relief which is unsupported by any statutory provision is sought for which has been rightly rejected by the learned single Judge. We find no reason to interfere with the orders of the learned single Judge in the absence of any statutory provision in support of the Electricity Board to disconnect the connection already given. 9. Accordingly, the writ appeals are dismissed. This judgment would not preclude the appellants to invoke any other remedy available to them under law. Consequently, connected miscellaneous petitions are also dismissed. No costs.