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2014 DIGILAW 1677 (MAD)

Rajendra R. Mehta v. Tamil Nadu Electricity Board

2014-06-24

C.S.KARNAN

body2014
Judgment C.S. Karnan, J. 1. The short facts of the case are as follows:- The writ petitioner is the owner and developer of the property situated at T.S. No. 80/1 to 12, 113/2, 3 & 4, Block No. 38 of Arunachalam Road, Saligramam, Chennai - 93 and he had applied for planning permission to construct Block (A, B, C) Basement + stilt + 17 floors, Block D, Multilevel parking (4 floors) with swimming pool, Block E, Basement + ground floor, service block. Accordingly, the fifth respondent herein, viz. The Chennai Metropolitan Development Authority has approved planning permission for construction of the same under permit No. 5960, dated 17.05.2011 and obtained building permission from the Corporation of Chennai in CEBA/CD08/00142 of 2011, dated 11.06.2011. In accordance with the planning permission, the petitioner put up the building thereon. The entire construction was over as early as in the month of December 2013. The petitioner additionally added that there are no major deviations and violations in constructions except incompletion of additional common amenities in the building. As the building is ready for occupation, the petitioner approached the third and fourth respondents herein, viz. the Superintending Engineer and the Assistant Engineer (O & M), who are attached to the Tamil Nadu Electricity Board to receive the application for providing electricity service connection. The third and fourth respondents insisted that the petitioner should enclose the completion certificate from the fifth respondent herein, for receiving and considering the said application. Hence, they refused to receive the application for providing the electricity service connection. 2. The petitioner further submits that nowhere under the provisions of the Tamil Nadu Electricity Act or Regulations do provide for insistence of completion certificate for receiving and considering application for electricity service connection. Anyhow, while the petitioner approached the fifth respondent herein with a request for issuance of completion certificate, the fifth respondent officials took their own time in considering the same and simply pointed out the minor changes which are not violation at all. Anyhow, while the petitioner approached the fifth respondent herein with a request for issuance of completion certificate, the fifth respondent officials took their own time in considering the same and simply pointed out the minor changes which are not violation at all. As electricity service connection is a basic amenity and without which he and others cannot occupy the building, the petitioner has filed the present writ petition seeking direction for receiving the petitioner's application and provide electricity service connection to the building put up at T.S. No. 80/1 to 12, 113/2, 3 & 4, Block No. 38 of Arunachalam Road, Saligramam, Chennai - 93 and common areas of the property. The petitioner reliably learnt and understood that under similar circumstances, this Court was pleased to issue directions to the Tamil Nadu Electricity Board authorities to provide service connection without insisting upon the completion certificate from the planning authorities. Hence, the writ petitioner has sought direction to the respondents 1 to 4 to receive his application and consider the same and to provide electricity service connection to the building and for the common areas of the building put up by the petitioner at T.S. No. 80/1 to 12, 113/2, 3 & 4, Block No. 38 of Arunachalam Road, Saligramam, Chennai - 93, without insisting upon completion certificate / No objection certificate from the fifth respondent-Chennai Metropolitan Development Authority. 3. The third respondent has filed a counter statement on behalf of other respondents 1, 2 and 4, who are attached to the Tamil Nadu Electricity Board. The third respondent submits that in the first instance, the above writ petition is neither maintainable in law nor on facts in as much as the fact admitted by the petitioner in the affidavit itself that the building to which electricity supply is sought comprises of basement, stilt and 17 floors etc., and as such, the petitioner is bound to produce completion certificate issued by the fifth respondent herein Chennai Metropolitan Development Authority in terms of the orders passed by the Hon'ble First Bench of this Court in W.P. Nos. 18898 of 2009 and etc, batch dated 23.08.2006 and as reiterated by this Court by a common order dated 06.09.2013 in W.P. Nos. 16780 of 2013 and etc. batch. 18898 of 2009 and etc, batch dated 23.08.2006 and as reiterated by this Court by a common order dated 06.09.2013 in W.P. Nos. 16780 of 2013 and etc. batch. Further, the claim of the petitioner to provide electricity supply without insisting on completion certificate/no objection certificate is against the statutory provisions contained in the Tamil Nadu Electricity Distribution Code, 2004 i.e. "other compliances" under Regulation 27(1) r/w the explanation after regulation 27(16) of the said Code and as such, the petitioner is not entitled to any mandamus as against the orders of this Court and the statutory provisions. 4. The third respondent additionally added that the Hon'ble First Bench of this Court, in W.P. Nos. 18898 of 2009 and etc. batch dated 23.08.2006, in Consumer Action Group Vs. State of Tamil Nadu reported in 2006(4) CTC 483 , has ordered as follows:- 32. In the result, in view of the foregoing discussion, we pass the following order:- (i) To (viii) - XXXX (ix) To avoid further violations, building should be certified as having been constructed in compliance of planning permit and other applicable laws. The Certifying Officer will be personally responsible if any illegal building is certified. Electricity, water connection and occupation should be contingent on such certificate." 5. The third respondent further submits that pursuant to the said order, the Tamil Nadu Electricity Regulatory Commission, a statutory body created under the Electricity Act, 2003, has amended Regulation 27 of the Tamil Nadu Electricity Distribution Code, 2004 and the amended provision is extracted below for better appreciation of the case on hand. "27. Requisitions for Supply of Energy:- (i) The provision regarding the duty of Licensee as detailed in Section 43 1(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 with 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. Explanation – For the purpose of this sub-section "application" means the application complete in all respects in the appropriate form, as required by the distribution licensee, along with documents showing payment of necessary charges and other compliances. Explanation after regulation 27(16) of the TNE Distribution Code. "Explanation – For the removal of doubts, the expression "other compliances" occurring in the Explanation to Section 43(1) of the Act as reproduced in sub-regulation (1) above, shall include the following, namely:- (a) The compliance by the intending consumer of other laws of the State of Tamil Nadu relating to the obtaining of permit or approval or sanction or consent from the appropriate authorities as mentioned in such laws in regard to construction, alteration or repairs to buildings or establishment of new industries or factories or other establishments for which supply of electricity is required by such intending consumer. (b) The compliance by the intending consumer of the provisions contained in Sub Regulations (4), (11) and (12) above. (c) The compliance by the intending consumer of any decree or order or judgment of any civil Court in regard to the supply of electricity or other requirements mentioned in such decree or order of judgment." 6. The third respondent additionally added that pursuant to the said order of the Hon'ble First Bench of this Court and the statutory provisions above said, various instructions as detailed below have been issued by the Tamil Nadu Electricity Board, to insist for completion certificate in order to provide electricity supply to the multi-stored buildings and special buildings. (i) Circular Memo No.CE/Comml/EE3/AEE2/F.Planning Permission / D.874/2006, dated 22.11.2006. (ii) Memo No.CE/Comml/EE3/AEE2/F.Planning Permission / D.1024/2006, dated 29.12.2006. (iii) Memo No.CE/Comml/EE3/AEE2/F.Planning Permission / D.653/2012, dated 03.12.2012. (iv) Memo No.CE/Comml/EE3/AEE2/F.Planning Permission / D.184/2013, dated 19.03.2012. 7. (i) Circular Memo No.CE/Comml/EE3/AEE2/F.Planning Permission / D.874/2006, dated 22.11.2006. (ii) Memo No.CE/Comml/EE3/AEE2/F.Planning Permission / D.1024/2006, dated 29.12.2006. (iii) Memo No.CE/Comml/EE3/AEE2/F.Planning Permission / D.653/2012, dated 03.12.2012. (iv) Memo No.CE/Comml/EE3/AEE2/F.Planning Permission / D.184/2013, dated 19.03.2012. 7. Therefore, the third respondent submits that in the light of the said order of this Court and statutory provisions above said, the petitioner is bound to produce the completion certificate issued by the CMDA in order to enable the respondents to consider to provide electricity supply to the subject buildings, as per the orders passed by the Hon'ble First Bench of this Court and statutory provisions of the respondents-Board. Hence, the respondents 1 to 4 pray to dismiss the above revision petition. 8. The fifth respondent / CMDA has filed a counter statement and resisted the writ petition. The fifth respondent submits that based on the above writ petition, the site was inspected on 20.03.2014 and it was observed that:- (i) Construction of Block A, B & C have been structurally completed and the terrace floor is under construction. (ii) Construction of Block D is not yet started and the space earmarked for Block D is vacant. (iii) Construction of ramps and non FSI space at stilt floor is not completed in all the Blocks. (iv) Multilevel parking shown in between Block-A & B and B & C and the service Block E are not provided. (v) Sump is not constructed and excavation work for the sump is under progress. (vi) Construction of compound wall around the site is not completed fully. (vii) Joineries works have fitted only upto 7 Floors in Block A, B and C. (viii) Wall has been constructed around stilt parking floor, which is not covered in the approved plan and hence, stilt parking floor is not exemptable for Non-FSI. (ix) Outer plastering work for the part of the building in Block-C is pending. (x) Due to the piling of construction materials around the building and the stilt parking floor and the construction work is still under progress, the measurements were not taken. 9. The fifth respondent additionally added that in view of the above mentioned irregularities and as the construction was in under progress, the building cannot be considered as a completed one. The writ petitioner has not applied for any completion certificate or filed application to CMDA for the above said building. 9. The fifth respondent additionally added that in view of the above mentioned irregularities and as the construction was in under progress, the building cannot be considered as a completed one. The writ petitioner has not applied for any completion certificate or filed application to CMDA for the above said building. As per DR 4(5)(a), the petitioner shall not put the building to use without obtaining completion certificate. The petitioner shall submit the application in complete shape for issue of completion certificate, before probable date of completion to CMDA for obtaining completion certificate. As and when the completion certificate application is received for competent building, the site will be inspected and examined with reference to the approved plan and completion certificate, norms approved by the monitoring committee. The completion certificate will be issued based on the merits of the cases and the contentions of the petitioner is not correct. 10. The fifth respondent further submits that the subject building is not yet ready for occupation and the building is still under construction. As per the DR 4(5), the petitioner shall not put the building to use without obtaining completion certificate. As per the Development Regulations 5 (a), which is part of the second master plan approved by Government of Tamil Nadu, in G.O. Ms. No. 190 H & UD, Dept., dated 02.09.2008, it is mandatory on the part of the developer to put the building into use only after obtaining completion certificate. The Development Regulation 5(a) reads as follows:- "Any person who is acquiring interest shall not put the building to use without obtaining completion certificate from CMDA for Special Buildings, Group Developments, Multi-Storeyed Buildings and Institutional Buildings and such other developments as may be notified by the CMDA from time to time." As such, the writ petitioner has violated the Development Regulations of the Chennai Metropolitan Development Authority. Therefore, this respondent entreats the Court to dismiss the writ petition. 11. The highly competent counsel, Mr. R. Mohan, appearing for the petitioner submits that the petitioner has constructed A, B and C blocks consisting of basement + stilt + 17 floors and Block D, Multilevel parking consisting of 4 floors with swimming pool and Block E consisting of Basement + ground floor, service block. 11. The highly competent counsel, Mr. R. Mohan, appearing for the petitioner submits that the petitioner has constructed A, B and C blocks consisting of basement + stilt + 17 floors and Block D, Multilevel parking consisting of 4 floors with swimming pool and Block E consisting of Basement + ground floor, service block. The construction had been completed as per the planning permission granted by the fifth respondent herein under Permit No. 5960, dated 17.05.2011 and also obtained building permission from the Corporation of Chennai in his proceedings No. CEBA/ CD08 / 00142 / 2011, dated 11.06.2011. The entire construction was over as early as in the month of December 2013. There is no major or minor violations or deviations in the said constructed building. Now, the building is ready for occupation. Hence, the petitioner approached the third and fourth respondents, viz. The Superintending Engineer, K.K. Nagar and the Assistant Engineer, Operation and Maintenance, Saligramam to receive the application for providing electricity service connection. Both the respondents insisted the writ petitioner should produce the building completion certificate from the CMDA. Further, the electricity is a basic amenity and therefore, the petitioner is entitled to receive electricity service connection for his buildings as it is his Fundamental and Personal Rights as per Articles 14 and 21 of the Constitution of India. Further, the statutory rules have been framed by the respondents, which are against the present law. Further, the respondents 1 to 4 have no locus-standi to insist the petitioner to produce completion certificate and no objection certificate from the CMDA. The respondents 1 to 4 are bound to give electricity service connection for supply of electricity to the newly constructed building. If any minor deviation is found, it can be rectified as per Rules and Regulations of the fifth respondent. The duty of the respondents 1 to 4 is only to generate and distribute electricity supply for the consumer, who requires it. The petitioner has constructed the building on the strength of planning permission and building permission, which had been granted by the CMDA and Chennai Corporation, after observing all legal formalities. Therefore, the petitioner is entitled to receive electricity service connection from the respondents 1 to 4, without production of completion / no objection certificate of CMDA. In support of his case, the very competent counsel has cited a judgment in W.P. Nos. Therefore, the petitioner is entitled to receive electricity service connection from the respondents 1 to 4, without production of completion / no objection certificate of CMDA. In support of his case, the very competent counsel has cited a judgment in W.P. Nos. 4267 and 4268 of 2013 and the operative portion of which reads as follows:- "8. Both the writ petitions are, thus orders, directing the respondents 1 to 4 in W.P. No. 4267 of 2013 to provide electricity service connection to the property in question, within four weeks from the date when the petitioner approaches them with an application to provide electricity service connection enclosing all the relevant documents. Respondents 1 and 2 in W.P. No. 4268 of 2013 are directed to provide water and sewerage connection to the property in question, within four weeks from the date when the petitioner approaches them with necessary application form for providing water and sewerage connection enclosing all relevant documents. However, the CMDA authorities are at liberty to take proceedings against the petitioner, if there is any deviation in the construction that has been put up by it." 12. The very competent counsel, Mr. P. Gunaraj appearing for the respondents 1 to 4 submits that by this Hon'ble First Bench judgment of this Court in W.P. Nos. 18898 of 2009 and etc. in a batch of cases, it is clearly mentioned that the claim of the petitioner to provide electricity supply without insisting on completion certificate / no objection certificate is against the statutory provisions contained in the Tamil Nadu Electricity Distribution Code. Further, the judgment of the Hon'ble First Bench of this Court had been confirmed and operated upon. The respondents 1 to 4 have insisted the petitioner to produce no-objection certificate as it is a legal formality. As such, the petitioner has to comply with the said regulation. Further, the no objection certificate is required by law. Hence, the very competent counsel entreats the Court to dismiss the above writ petition. 13. The very competent counsel, Mr. P. Tamilmani, appearing for the fifth respondent submits that the fifth respondent's official had inspected the petitioner's constructed building on 20.03.2014and has observed 10 violations. The same has been pointed out to the petitioner at the time of inspection. Hence, the very competent counsel entreats the Court to dismiss the above writ petition. 13. The very competent counsel, Mr. P. Tamilmani, appearing for the fifth respondent submits that the fifth respondent's official had inspected the petitioner's constructed building on 20.03.2014and has observed 10 violations. The same has been pointed out to the petitioner at the time of inspection. Further, the planning permission and building permission for construction of the land building granted by the fifth respondent and Chennai Corporation had been violated and the construction is still at an incomplete stage. Under the circumstances, the petitioner is not entitled to receive electricity service connection without producing no objection certificate. Further, the construction work is under process and the petitioner had not applied for any completion certificate to the fifth respondent. Without obtaining a completion certificate which is mandatory under Development Regulations 4(5)(a), the petitioner is not entitled to receive electricity service connection. As per Development Regulations 5(a), for special buildings, group development, multi-storeyed buildings and institutional buildings have to strictly follow the said regulations. The writ petitioner's building comes under the category of multi-storeyed building and as such, he has to produce the no-objection certificate, which is mandatory. 14. On considering the facts and circumstances of the case and arguments advanced by the learned counsels on all sides and on perusing the typed-set of papers and case laws, this Court is of the view that the order passed by the learned Single Judge of this Court in W.P. Nos. 4267 and 4268 of 2013, dated 13.03.2013 is squarely applicable to this case. Further, if any violation, minor or major deviations or variations are there, the fifth respondent authorities are open to take necessary legal action against the petitioner. As of now, the petitioner has the requisite planning permission and building permission for construction of his building situated at T.S. No. 80/1 to 12, 113/2, 3 & 4, Block No. 38 of Arunachalam Road, Saligramam, Chennai - 93. Further, electricity, which is a basic amenity should be provided at once as required by the lawful occupants of the building, as it is their personal and fundamental rights. 15. Further, electricity, which is a basic amenity should be provided at once as required by the lawful occupants of the building, as it is their personal and fundamental rights. 15. Therefore, this Court directs the respondents 1 to 4 herein to receive the application of the petitioner and to provide electricity service connection to the petitioner's building and for the common areas of the building put up by the petitioner at T.S. No. 80/1 to 12, 113/2, 3 & 4, Block No. 38 of Arunachalam Road, Saligramam, Chennai - 93, within a period of four weeks from the date of receipt of the application, without insisting on completion certificate / no objection certificate. 16. In the result, the above writ petition is allowed. There is no order as to costs.