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2009 DIGILAW 205 (MP)

Siyabai Thakur v. M. P. State Electricity Board

2009-02-11

A.K.PATNAIK, AJIT SINGH

body2009
ORDER :- The petitioner is the President of Bheraghat Nagar Panchayat in district Jabalpur in the State of Madhya Pradesh and she has filed this writ petition as a Public Interest Litigation. She has stated that Bheraghat has been constituted as a Nagar Panchayat by a notification dated 27-5-1995 issued by the State Government under S. 5(2) of the Madhya Pradesh Municipalities Act, 1961 (for short 'the Municipalities Act'), with the villages of Bheraghat, Choukital, Bhadpura, Dalpatpur, Lamhetaghat and Gopalpur. She has stated that Bheraghat is a place for attraction to the tourists and the Bheraghat Nagar Panchayat is providing all facilities to the tourists in the area but power supply to the Bheraghat Nagar Panchayat area has been restricted by the respondent Nos. 1 to 4. The petitioner has, therefore, prayed for a writ of mandamus or other direction to the respondent Nos. 1 to 4 to supply electricity to the Bheraghat Nagar Panchayat area in the same proportion as is being supplied to Jabalpur City and to treat the Bheraghat Nagar Panchayat as a semi-urban area and not a rural area. 2. Mr. Rajesh Maindiretta learned counsel appearing for the petitioner submitted that by a notification dated 27-5-1995 Bheraghat has been constituted as a Nagar Panchayat and it will be clear from the language of S. 5 of the Municipalities Act under which Bheraghat has been constituted as a Nagar Panchayat that a Nagar Panchayat is an area in transition from a rural area to an urban area. He further submitted that by a subsequent notification dated 25-3-2006 issued by the State Government under S. 14 of the Electricity Act, 2003 (for short 'the Electricity Act'), the State Government has declared that all such area as rural area for the purpose of the Electricity Act other than larger urban area constituted under S. 7 of the Madhya Pradesh, Municipal Corporation Act, 1956 and smaller urbfu1 area or transitional area constituted under S.5 of the Municipalities Act and special area under S. 64 of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973. He submitted that it is, thus, clear that the Bheraghat Nagar Panchayat area is not a rural area and is entitled to supply of electricity in the same proportion in which the electricity is being supplied to urban areas appearing for the respondent Nos. He submitted that it is, thus, clear that the Bheraghat Nagar Panchayat area is not a rural area and is entitled to supply of electricity in the same proportion in which the electricity is being supplied to urban areas appearing for the respondent Nos. 1 to 4 on the other hand, submitted relying on the return filed by the respondent Nos. 1 to 4 that the Bheraghat Nagar Panchayat comes under the distribution licensee M.P. Poorva Kshetra Vidyut Vitran Company Ltd., Jabalpur and is a rural area. He further submitted that on account of deficiency of power as per the power cut schedule, electricity is being supplied to this rural area in accordance with the norms fixed by the Madhya Pradesh State Electricity Board. He further submitted that for the tourist activities in Bheraghat, however, electricity supply is being maintained as per the schedule applicable to the district headquarters. 4. Mr. Samdharshi Tiwari learned Government Advocate relying on the return filed by the respondent Nos. 5 and 6, submitted that in exercise of power under S. 37 of the Electricity Act, the State Government has by order dated 16-10-2007 directed the M.P. Load Despatch Centre to maintain smooth and stable electricity supply in the State in the manner indicated in the order dated 16-10-2007 and the order dated 16-10-2007 has provided different schedules for electricity regulation in urban areas and rural areas and the distribution companies are to comply with a direction in the order dated 16-10-2007. 5. We have considered the submissions of the learned counsel for the parties and we find that S. 42(1) of the Electricity Act provides that it shall be the duty of a distribution licensee to develop and maintain an efficient coordinated and economical distribution system in his area of supply and to supply electricity in accordance with the provisions contained in the Electricity Act. There is, thus, a statutory duty cast on the distribution licensee to supply electricity in its area in accordance with the provisions contained in the Electricity Act. Section 37 of the Electricity Act, however, empowers the appropriate Government to issue directions to the Regional Load Despatch Centres or the State Load Despatch Centres, as the case may be, to take such measures as may be necessary for maintaining smooth and stable transmission and supply of electricity to any region or State. Section 37 of the Electricity Act, however, empowers the appropriate Government to issue directions to the Regional Load Despatch Centres or the State Load Despatch Centres, as the case may be, to take such measures as may be necessary for maintaining smooth and stable transmission and supply of electricity to any region or State. Hence a distribution licensee while discharging its statutory duty under S. 42(1) of the Electricity Act has to supply electricity in accordance with the directions of the appropriate Government to the State Load Despatch Centres. 6. In exercise of power under Section 37 of the Electricity Act, the State Government has issued the Order dated 16-10-2007 regulating supply of electricity in Rabi season in view of difference of increasing demand of electricity and its availability and in the order dated 16-10-2007 the State Government has provided different schedules for urban areas and rural areas. In the order dated 16-10-2007, supply of electricity in urban areas is sought to be regulated to provide for load shedding during different hours in divisional headquarters, district headquarters and tehsil headquarters separately, but supply of electricity in rural areas is sought to be regulated by fixing hours of electricity supply for different months separately. The question, therefore, to be decided in this writ petition is whether the Bheraghat Nagar Panchayat is to be treated as a rural area or as an urban area for the purpose of regulation of supply of electricity in the order dated 16-10-2007. 7. In the order dated 16-10-2007 "urban area" and "rural area" have not been defined. Section 14 of the Electricity Act is titled "grant of licence" and provides that the appropriate Commission may, on an application made to it under Section 15, grant a licence to any person - (a) to transmit electricity as a transmission licensee; or (b) to distribute electricity as a distribution licensee; or (c) to undertake trading in electricity as an electricity trader, in any area as may be specified in the licence. One of the provisos in Section 14 of the Electricity Act states that where a person intends to generate and distribute electricity in a "rural area" to be notified by the State Government such person shall not require any licence for such generation and distribution of electricity, but he shall comply with the measures which may be specified by the authority under Section 53. It is under this proviso to Section 14 that following notification dated 25-3- 2006 (Annexure P /15) has been issued by the State Government: "No 201O.F. 13-05, XIII. 2006, - In exercise of the powers conferred by Section 14 of the Electricity Act, 2003 (No. 36 of 2003), the State Government declares all such area as rural area for the purposes of the said Act, provided that the Governor, in exercise of the powers conferred under Section 7 of the Madhya Pradesh Municipal Corporation Act, 1956 (No. 23 of 1956) had not specified such area as larger urban area or under Section 5 of the Madhya Pradesh Municipalities Act, 1961 (No. 37 of 1961) has not specified such area as smaller urban area or transitional area and the State Government in exercise of its powers conferred under Section 64 of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 (No. 23 of 1973) has not designated such area as special area." The language of the aforesaid notification I dated 25-3-2006 makes it abundantly clear that a smaller urban area or a transitional area specified under Section 5 of the Municipalities Act is not rural area for the purpose of the Electricity Act. 8. We may now look into the provision of Section 5 of the Municipalities Act, which is quoted herein below : "So 5 Constitution of Municipal Councils and Nagar Panchayats.- (1) There shall be constituted,(ei) a Municipal Council for a smaller urban area; and (b) a Nagar Panchayat for a transitional area, that is to say, an area in transition from a rural area to an urban area : Provided that a Municipal Council or a Nagar Panchayat, as the case may be, may not be constituted in such urban area or part thereof as the Governor may, having regard to the size of the area and the municipal services being provided or proposed to be provided by an industrial establishment or a group of such establishments in that area and such other factors as he may deem fit, by public notification specify to be an industrial township: Provided further that when an area is notified to be a transitional area, the Gram Panchayat having jurisdiction over such area shall continue to function until a duly elected Nagar Panchayat is constituted under this Act. (2) In this section, 'a smaller urban area' or 'a transitional area' means such area as the Governor may, having regard to the population of the area, the density of the population therein, the revenue generated for local administration, the percentage of employment in non-agricultural activities, the economic importance or such other factors as he may deem fit, specify, by public notification for the purposes of this Act." Sub-section (1) of Section 5 of the Municipalities Act, thus, contemplates constitution of Municipal Council for a smaller urban area and Nagar Panchayat for a transitional area that is to say, an area in transition from a rural area to an urban area. Sub-section (2) of Section 5 of the Municipalities Act states that smaller urban area or transitional area means such area as the Governor may, having regard to the population of the area, the density of the population therein, the revenue generated for local administration, the percentage of employment in non-agricultural activities, the economic importance or such other factors, as he may deem fit, specify by public notification for the purpose of the Municipalities Act. 9. All the different aspects mentioned in Section 5 of the Municipalities Act must have been taken into consideration by the Governor before the Bheraghat Nagar Panchayat was constituted as transitional area under sub-section (2) of Section 5 of the Municipalities Act by notification dated 27-5-1995. We have, therefore, no doubt in our mind that the Bheraghat Nagar Panchayat has to be treated not as a rural area but as an urban area and has to be supplied electricity subject to the regulations in the urban areas made in the order dated 16-10-2007 of the State Government issued under Section 37 of the Electricity Act. The M.P. Poorv Kshetra Vidyut Vitaran Company Ltd. as a distribution licensee has to perform its statutory duty under Section 42 of the Electricity Act to supply electricity to the Bheraghat Nagar Panchayat subject to restrictions contained in the order dated 1610-2007 of the State Government under Section 37 of the Electricity Act relating to supply of electricity in the urban areas. 10. We accordingly direct the respondents No. 1 to 4 to ensure supply of electricity to the Bheraghat Nagar Panchayat area treating the same as urban area in accordance with the order issued by the State Government under Section 37 of the Electricity Act from time to time. 10. We accordingly direct the respondents No. 1 to 4 to ensure supply of electricity to the Bheraghat Nagar Panchayat area treating the same as urban area in accordance with the order issued by the State Government under Section 37 of the Electricity Act from time to time. The writ petition is allowed. No order as to costs. Petition allowed.