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2013 DIGILAW 4219 (MAD)

Sheik Mathar v. Tamilnadu Electricity Board

2013-12-17

S.MANIKUMAR

body2013
Judgment : 1. As per the supporting affidavit to this writ petition, the petitioner is a tenant in respect of a shop at Door No.51, MTH Road, Thirumullaivoyal, Chennai – 62. According to the petitioner, when the landlord attempted to evict him forcibly, he has filed, O.S.No.53 of 2013 and obtained an interim injunction on 13.02.2013, on the file of the learned District Munsif, Ambattur. The landlord, has filed RCOP No.16 of 2013 on the file of the same Court for eviction on the grounds of wilful default. Though, there was no arrears of rent, the landlord disconnected the electricity supply to the petitioner's shop and therefore, the petitioner was constrained to file M.P.No.59 of 2013 in R.C.O.P.No.15 of 2013 directing the landlord for restoration of electricity supply. 2. It is the further case of the petitioner that vide order of the learned District Munsif, dated 30.04.2013 in M.P.No.59 of 2013, restoration of electricity supply was ordered. It is the grievance of the petitioner that though a representation dated 03.05.2013, was made by the petitioner to the Assistant Engineer, Operation and Maintenance, TNEB, Thirumullaivoyal, Chennai – 62, the 1st respondent, to restore electricity supply, to the shop, the same has not been done. 3. According to the petitioner, that vide letter dated 03.05.2013 when the petitioner has come forward to pay the advance and other amounts, the Electricity Board ought to have considered the order made in M.P.No.59 of 2013 dated 30.04.2013 and restored the electricity. In the abovesaid circumstances, mandamus has been sought for, directing the Assistant Engineer, to provide electricity connection to the shop at Door No.52, MTH Road, Thirumullaivoyal, Chennai – 62. 4. Heard the learned counsel for the petitioner and perused the materials available on record. 5. Before adverting to the submissions advanced in respect of the relief sought for this Court deems it fit to extract Section 17 of the Tamilnadu Buildings (Lease and Rent Control) Act, 1960. "17. Landlord not to interfere with amenities enjoyed by tenant: (1) No landlord shall, without just or sufficient cause, cut off or withhold or cause to be cut off or withheld any of the amenities enjoyed by the tenant or were in existence during the previous tenancy. (2) A tenant in occupation of a building may, if the landlord has contravened the provisions of this section, make an application to the Controller complaining of such contravention. (2) A tenant in occupation of a building may, if the landlord has contravened the provisions of this section, make an application to the Controller complaining of such contravention. (3) If the tenant satisfies the Controller that the amenities were cut off or withheld, or caused to be cut off or withheld, the Controller may pass an interim order, directing the landlord to restore the amenities immediately, pending the inquiry referred to in sub-section (4) (4) If the Controller or inquiry finds that the tenant has been in enjoyment of the amenities [or that the amenities were in existence during the previous tenancy] and that they were cut off or withheld by the land lord without just or sufficient cause or if the landlord was in any way responsible for the amenities being cut off or withheld, he shell make an order directing the landlord to restore such amenities. (5) The Controller may, in his discretion, direct that compensation not exceeding fifty rupees - (a) be paid to the landlord by the tenant, if the application under sub-section(2) was made frivolously or vexatiously; (b) be paid to the tenant by the landlord, if the landlord had cut off or withheld the amenities or was in any way responsible for the amenities being cut off or withheld frivolously or vexatiously." 6. Admittedly, there is dispute between the landlord and tenant. In M.P.No.59 of 2013, filed under Section 17(3) of the Tamilnadu Buildings (Lease and Rent Control) Act, 1960, the petitioner, by impleading the landlord alone has sought for a direction to permit him to restore the electricity connection at the cost of the petitioner and to recover the same from the rent payable to the respondent in respect of the suit property. The learned rent controller vide order dated 30.04.2013, has passed the following orders. "Respondent called absent. The counter not filed. Set exparte. Heard the petitioner. Though the interim restoration was ordered in the previous petition, connection, is not yet restored. Hence, petition allowed" 7. Admittedly, the electricity board is not a party in M.P.No.59 of 2013 in RCOP No.16 of 2013 on the file of the learned District Munsif, Ambattur. "Respondent called absent. The counter not filed. Set exparte. Heard the petitioner. Though the interim restoration was ordered in the previous petition, connection, is not yet restored. Hence, petition allowed" 7. Admittedly, the electricity board is not a party in M.P.No.59 of 2013 in RCOP No.16 of 2013 on the file of the learned District Munsif, Ambattur. During the course of arguments, it was submitted by Mr.V.Bhiman, learned counsel for the petitioner that as usual the electricity department has refused to take note of the interim order passed in M.P.No.59 of 2013 in RCOP No.16 of 2013, to restore electricity. In the abovesaid circumstances, mandamus is sought for against the electricity department. 8. As per the provisions of the Tamilnadu Buildings (Lease and Rent Control) Act, 1960, electricity is one of the basic amenities to be provided by the landlord. It is not the case of the petitioner that the electricity board has disconnected supply. On the contrary, it is the specific case of the petitioner that in order to evict the petitioner, by resorting to coercive steps, electricity supply has been disconnected by the landlord. If a landowner does not restore electricity supply inspite of the Civil Court's order to restore, the course open to the tenant is to move the Magistrate under the Criminal Procedure Code, as there is no specific provision under the Rent Control Act, even though the section imposes fine. Reference can be made to the decision of this Court in Stalin.D. Vs. M.Selvamani, reported in 2003(1) CTC 742 . 9. In as much as the electricity board, is not a party respondent to the order made in M.P.No.59 of 2013 in RCOP No.16 of 2013, on the file of the District Magistrate, Ambattur, the said order is not binding on the 1st respondent to restore electricity when the service connection, stands in the name of the landlord. However, if the tenant is in lawful occupation of the premises, then, under the electricity laws, he can always make an application to the competent authority for supply of electricity. 10. In the case on hand, except a representation dated 03.05.2013, made to the Assistant Engineer, Operation and Maintenance, TNEB, Tirumullaivoyal, Chennai – 62, there are no materials to substantiate that the petitioner has made any proper application to the competent authority for supply of electricity, through separate service connection 11. 10. In the case on hand, except a representation dated 03.05.2013, made to the Assistant Engineer, Operation and Maintenance, TNEB, Tirumullaivoyal, Chennai – 62, there are no materials to substantiate that the petitioner has made any proper application to the competent authority for supply of electricity, through separate service connection 11. Unless and until the petitioner makes out a case of his entitlement to seek for a separate service connection by making appropriate application in the prescribed form, satisfying the requirements under the electricity laws, it cannot be said that the 1st respondent has failed to exercise his duty, for which a mandamus can be issued. Writ of mandamus cannot be issued merely because a person is praying for. One must establish his legal right first and then, he must seek for a 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 by in 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. 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. 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. 12. 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. 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) 13. In the light of the decisions and the discussions, this Court is not inclined to hold that the petitioner has established a case for issuance of mandamus. Hence, the writ petition is dismissed. No costs.