IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:
27. 09.2013 CORAM: THE HONOURABLE MR. JUSTICE S. MANIKUMAR W.P.No.17608 of 2013 M.P.No.1 of 2013 1.T.M.Prakash 2.A.Amudha 3.R.Anbarasu 4.V.Ananthi 5.S.Boopathi Ammal 6.A.Elumalai 7.N.Kuppu 8.K.Pushpaveni 9.K.Shanthi 10.Kuppu 11.S.Uma Shankar ... Petitioners Versus 1. The District Collector, Tiruvannamalai District, Tiruvannamalai.
2. The Superintending Engineer, Tamil Nadu Electricity Board, Tiruvannamalai. ... Respondents Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of Writs of Mandamus, directing the respondents to provide electricity connection to the petitioners, based on Indemnity Bond submitted by the petitioners immediately. For Petitioners .. Mr.G.Pari For 1st respondent .. Mr.Vijayakumar, Addl. Govt. Pleader For 2nd respondent .. Mr.G.Vasudevan
ORDERThe petitioners have sought for a Mandamus, directing the respondents to provide electricity connection to them, based on Indemnity Bond.
2. It is the case of the petitioners that they are residing in Government poromboke lands, for the past 2 centuries and about 180 members are engaged in Laundary work. They have put up huts in the working place. Their children are studying in Schools and Colleges, but they do not have electricity connection. When they have made applications to the respondents, to provide electricity supply, the Superintending Engineer, Tamil Nadu Electricity Board, has directed them to obtain ".No Objection Certificates". from the District Collector, Tiruvannamalai, the 1st respondent herein. Therefore, they made a representation, dated 11.08.2010 to the 1st respondent, for grant of No Objection Certificate. Another representation, dated 31.05.2011, was also made to the Superintending Engineer, Tamil Nadu Electricity Board, Tiruvannamalai, 2nd respondent herein, to provide electricity. But the 2nd respondent has rejected the said request on 07.06.2011, citing irrelevant reasons.
3. On the above pleadings, Mr.Pari, learned counsel for the petitioners submitted that the petitioners are residing in Periyar Nagar, Tiruvannamalai District, and that they have been issued with Ration Cards by the Civil Supplies Corporation. Attention of this Court was also invited to the property tax receipts issued by Tiruvannamalai Municipality, for the years 2011-12, Voter's I.D., issued by the Election Commission of India, to prove that the petitioners are residing at Polur Road, 7th Street, Thiruvannamalai District.
4. Referring to Section 43 of the Electricity Act, 2003, which mandates the 2nd respondent to provide electricity supply, to an occupier of the land or premises and Regulation 27(12) of the Tamil Nadu Electricity Distribution Code, 2004, Mr.Pari, learned counsel for the petitioner submitted that a duty is cast upon the 2nd respondent to provide electricity supply, upon receipt of applications, along with an undertaking from the petitioners, as provided for.
5. Referring to the memo, dated 29.11.2005, of the Additional Chief Engineer, TEDC, Tiruvannamalai-4, stating that in respect of poromboke land, inside/outside Girivalam path, there is no need to provide electricity service connection, till a separate decision is taken, by the Committee, after consulting Municipal authorities, Panchayat authorities and Revenue Department, he submitted that the said memo cannot override the statutory provision and the Regulations framed thereunder, and indirectly curtail the rights of the petitioners, under the Statutory provisions, which includes the Distribution and Supply Codes, to obtain electricity supply, for living.
6. Learned counsel for the petitioners further submitted that when the Statute contemplates supply of electricity to even persons, in occupation of Government poromboke lands, the restriction imposed by the authorities, on the basis of the abovesaid memo, runs contrary to the Electricity Act, 2003 and Tamil Nadu Electricity Distribution Code, 2004. He further submitted that though the petitioners are residing in the abovesaid place, for long number of years, patta has not been given, despite request.
7. In this context, learned counsel for the petitioners invited the attention of this Court to the proceedings of the Tahsildar, Tiruvannamalai District, dated 23.10.1992, addressed to the Muncipal Commissioner, Tiruvannamalai Municipality and submitted that in the year 1992, the Tahsildar, has requested the Commissioner, Tiruvannamalai Municipality, to send a resolution, for grant of house site pattas, to the laundry workers, in respect of Survey Nos.95, 96, 10, 520 and 521, Chettikulam Medu, Tiruvannamalai. Endorsement of the Jamabanthi Officer cum Revenue Divisional Officer, Tiruvannamalai, on the request, dated 11.05.1992, made by the 1st petitioner, has also been referred.
8. Learned counsel for the petitioners also referred to another proceedings in Na.Ka.No.A5/68703/91, dated 19.12.1991 of the District Collector, Tiruvannamalai, by which, a reply has been sent to the 1st petitioner, General Secretary, Laundry Workers Welfare Association, 37, Polur Road, Tiruvannamalai, to the effect that, for issuance of house site pattas, action has been taken to sub-divide the lands in Survey Nos.95, 96, 10, 520 and 521, Chettikulamedu, Tiruvannamalai District. On the basis of the abovesaid documents, he submitted that laundry workers have been in possession and enjoyment of the properties mentioned in the writ petition, for a very long time and that they cannot be treated as encroachers.
9. Referring to the Display Board erected in Thanthai Periyar Nagar, Tiruvannamalai, earmarking that lands have been allotted to the beneficiaries of laundry workers and that nobody should encroach upon the said land, learned counsel for the petitioners submitted that it is the District Administration, which has been delaying assignment of lands to the petitioners, despite the proceedings, stated supra. According to him, the State Government have allotted funds to construct ".Salavaithurai". and that the petitioners have also contributed monetarily, for the construction and that electric connection has also been given to the said ".Salavaithurai".. Current Consumption Charges are being paid by the local administration, every month.
10. Learned counsel for the petitioners further submitted that when the matter of evicting the encroachers, in and around Girivala Pathai, came up before the Hon'ble Supreme Court in S.L.P.Nos.12443 to 12447 of 2001, the same has been disposed of on 03.10.2005, at that time, accepting the affidavit filed by the Municipal Commissioner, Tiruvannamalai, to take suitable action to prevent further encroachments on both sides of Girivala Pathai.
11. It is also the contention of the learned counsel for the petitioners that subsequently, on 13.09.2008, the Committee constituted for monitoring the activities, in and around Grivalam path, has passed a resolution to file a modification affidavit before the Hon'ble Supreme Court to assign pattas, to those, who are in occupation of Government poromboke lands, as per the then Government guidelines. But then, no steps have been taken.
12. Placing reliance on a decision of this Court in A.Muthusamy v. The Assistant Engineer, TNEB reported in 2009 (4) CTC606 learned counsel for the petitioners submitted that electricity service connection can be given to persons, who are in occupation of premises, even if their ownership is under dispute, provided they furnish a Indemnity Bond and pay necessary fee. He also submitted that the electricity supply can be given to those, who reside in Poromboke lands, as per the Distribution Code and the directives of Government, issued from time to time.
13. Placing reliance on a decision of this Court in Balasubramanian v. Ramaiah Thondaman reported in 2007 (13) SCC182 learned counsel for the petitioners further submitted that grant of patta cannot be equated to that of a document of title and at the most, patta proceedings and the ultimate order by the competent authority, granting patta may be used as a piece of evidence to show that the subject matter property is with the grantee. According to him, when proceedings for issuance of patta had already been issued, in respect of Survey Nos.95, 96, 10, 520 and 521, Chettikulamedu, Tiruvannamalai District, the Government have to grant patta, recognising their long possession and occupation of the properties at Polur Road. For the reasons stated supra, he prayed for a Mandamus.
14. The Superintending Engineer, Tiruvannamalai Electricity Distribution Circle, TANGEDCO, has filed a counter affidavit. Reiterating the averments made therein, Mr.G.Vasudevan, learned counsel appearing for the Electricity Board submitted that in the wake of the Government of India's decision, to bring the entire Girivalam Path in Tiruvannamalai, under the control of Archeological Survey India's jurisdiction, action was taken and several Writ Petitions were filed before this Court. Finally, the Apex Court, accepting the affidavit filed by the Municipal Commissioner, Tiruvannamalai, passed an order in S.L.P.Nos.12443 to 12447 of 2001, dated 03.10.2005, directing the District Administration, Tiruvannamalai and Tiruvannamalai Municipality, to take suitable action to prevent further encroachments on both sides of Girivalam Path.
15. Learned counsel appearing for the Electricity Board further submitted that with a view to implement the orders of the Hon'ble Supreme Court, dated 03.10.2005, a meeting was conducted on 23.11.2005, at the Tiruvannamalai District Collectorate, in which, eminent persons of various walks of life, officials of various Government Departments, including Tamil Nadu Electricity Board, in Tiruvannamalai Town, participated and that the meeting was presided over by Hon'ble Justice Mr.Venkataswamy (Retired). In the said meeting, on the basis of the views expressed by various participants and with a view to prevent further encroachments on both sides of Girivalam path, Tamil Nadu Electricity Board has been instructed not to effect new service connections and also, to disconnect all electricity service connections effected on both sides of Girivalam path.
16. Learned counsel for the Tamil Nadu Electricity Board further submitted that in pursuance of the decision, stated supra, new service connections are not effected to the premises, situated along side the areas, between the Hill and Girivalam path. When the petitioners have approached the Office of the Superintending Engineer, Tamil Nadu Electricity Board, Tiruvannamalai, they were orally informed that the constructions put up by them in poramboke lands, fall between the Hill and Girivalam path and in view of the decision taken in the meeting held on 23.11.2005, in which, Tamil Nadu Electricity Board had also participated, service connections cannot be effected.
17. Learned Counsel for the Board further submitted that when the 1st petitioner has sent a written representation, dated 31.05.2011, to the Assistant Engineer, O & M, Town, East, Tiruvannamalai, requesting to effect service connection to his premises, a reply, dated 07.06.2011, has been given, stating that since the 1st petitioner's premises, is situated in Periyar Nagar, which falls between the Hill and Girivalam path, service connection cannot be effected, as per the directives of the Hon'ble Supreme Court. The 1st petitioner was also informed that service connection could be effected to his premises, only if he obtains a ".No Objection Certificate". from the District Administration.
18. Learned counsel for the Tamil Nadu Electricity Board further submitted that though the petitioner has stated in his affidavit that he has submitted a representation, dated 19.05.2012, to the District Collector, Tiruvannamalai, seeking No Objection Certificate, for getting service connection, the Superintending Engineer, Tamil Nadu Electricity Board, Tiruvannamalai, is not aware of the outcome of the same. According to him, inspite of receiving the reply, dated 07.06.2011, sent by the Assistant Engineer, (O & M), Town, East, Tiruvannamalai, the petitioners have filed the present writ petitions, with incorrect averments.
19. Referring to Regulation 27(12) of the Tamil Nadu Distribution Code, 2004, learned counsel for the Board further submitted that unless and until, a No Objection Certificate is produced from the Revenue Authorities, Electricity supply cannot be given. He strongly relied on the decision of the Supreme Court in S.L.P.Nos.12443 to 12447 of 2001 and the decision taken in the Joint Action Committee meeting held on 23.11.2005. For the abovesaid reasons, he prayed for dismissal of the writ petition. Heard the learned counsel for the parties and perused the materials available on record.
20. Before adverting to the facts of this case, at the outset, this Court deems it consider, as to whether, the Electricity Act, 2003 and the Tamil Nadu Distribution Code, 2004, framed thereunder, in exercise of the powers conferring under Sections 46 and 86 of the Electricity Act, 2003, casts a mandatory duty, on the licencee to provide electricity supply to a owner or occupier of a premises, or whether it is only directory.
21. Section 43 of the Electricity Act, 2003, deals with the duty to supply on request and the said Section reads as follows: ".(1) Save as otherwise provided in tis 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 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.".
22. In exercise of the powers conferring under Sections 46 and 86 of the Electricity Act, 2003, the State Electricity Regulatory Commission has framed the Tamil Nadu Electricity Distribution Code, 2004. Regulation 27 of the Tamil Nadu Electricity Distribution Code, 2004 deals with requisitions for supply of energy and Clause 12 of the said Regulation, relevant for this case, is extracted hereunder: ".(12) Supply shall be given in poromboke land on production of- (i) No Objection Certificate obtained from the Officer (not below the rank of Deputy Tahsildar) or (ii) Where such No Objection Certificate could not be produced by the applicant for service connection the following undertaking shall be furnished:- (1) ".I am aware that I am liable to be evicted and for supply disconnection at any time, if the lands are required by the Government and/or any dispute arises at a later date and that electricity supply given in this regard will not confer any claim on ownership of the land. (2) I am aware that the above undertaking shall not confer permanent and full right to the ownership of the land.". Let me consider some of the decisions of the Hon'ble Apex Court, as to how a provision has to be understood, ie., as to whether, it is mandatory or directory.
23. As per Section 43 of the Electricity Act, on an application made by the owner or occupier of any premises, a duty is cast upon the licencee to supply of electricity to such premises, within one month, after receipt of the application requiring such supply. Sub-Section (3) of Section 4, states that if the 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.
24. Crawford on 'Statutory Construction' (Ed. 1940, Art. 261, p. 516) sets out the following passage from an American case approvingly as follows: ".The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other.".
25. In State of U.P., v. Baburam Upadhya reported in AIR1961SC751 the Hon'ble Mr. Justice Subbarao, has observed that, ".the Court may consider inter alia, the nature and design of the statute, and the consequences which would follow from construing it the one way or the other; the impact of other provisions whereby the necessity of complying with the provisions in question is avoided; the circumstances, namely, that the statute provides for a contingency of the non-compliance with the provisions; the fact that the non-compliance with the provisions is or is not visited by some penalty; the serious or the trivial consequences, that flow therefrom; and above all, whether the object of the legislation will be defeated or furthered".. In the same judgment, the Hon'ble Judge has further held that when a statute uses the word 'shall', prima facie it is mandatory but the Court may ascertain the real intention of the legislature by carefully attending to the whole scope of the statute.
26. The Hon'ble Mr. Justice Hidayatullah, in M/s.Sainik Motors v. State of Rajasthan reported in AIR1961SC1480 observed that ordinarily though the word shall is mandatory, it can be interpreted as directory if the context and intention otherwise demands.
27. In P.T.Rajan v. T.P.M.Sahir reported in 2003 (8) SCC498 the following conclusions are relevant, 45. A statute as is well known must be read in the text and context thereof. Whether a statute is directory or mandatory would not be dependant on the user of the words shall or may. Such a question must be posed and answered having regard to the purpose and object it seeks to achieve.
46. ..
47. The construction of a statute will depend on the purport and object for which the same had been used. ...
48. ..
49. Furthermore, a provision in a statute which is procedural in nature although employs the word shall may not be held to be mandatory if thereby no prejudice is caused. 28. In Ashok Lanka v. Rishi Dixit reported in 2005 (5) SCC598 para No.53 is relevant, which reads as under:- 53. The question as to whether a statute is mandatory or directory would depend upon the statutory scheme. It is now well known that use of the expression shall or may by itself is not decisive. The court while construing a statute must consider all relevant factors including the purpose and object the statute seeks to achieve. (see P.T.Rajan v. T.P.M.Sahir and U.P.SEB v. Shiv Mohan Singh). 29. In Delhi Airtech Services (P) Ltd., v. State of U.P., reported in 2011 (9) SCC354 one of the substantial questions of law framed by the Hon'ble Supreme Court of India, was whether Section 17(3-A) of the Land Acquisition Act, 1894, is mandatory or directory and whether non-compliance of the same, would vitiate the entire land acquisition proceedings, even when the land had already vested in the State, in terms of Section 17(1) of the Act. Due to the divergent views expressed by the Hon'ble Judges, the matter has been referred to a larger Bench. However, the decisions considered by Hon'ble Mr. Justice Swatanter Kumar, are worth consideration, in this case, 117. In `Principles of Statutory Interpretation', 12th Edition, 2010, Justice G.P. Singh, at page 389 states as follows: As approved by the Supreme Court: ".The question as to whether a statute is mandatory of directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislation must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design and the consequences which would follow from construing it the one way or the other". ".For ascertaining the real intention of the Legislature"., points out Subbarao, J, ".the court may consider inter alia, the nature and design of the statute, and the consequences which would follow from construing it the one way or the other; the impact of the other provisions whereby the necessity of complying with the provisions in question is avoided; the circumstances, namely, that the statute provides for a contingency of the non- compliance with the provisions; the fact that the non-compliance with the provisions is or is not visited by some penalty; the serious or the trivial consequences, that flow therefrom; and above all, whether the object of the legislation will be defeated or furthered".. If object of the enactment will be defeated by holding the same directory, it will be construed as mandatory, whereas if by holding it mandatory, serious general inconvenience will be created to innocent persons without very much furthering the object of enactment, the same will be construed as directory. But all this does not mean that the language used is to be ignored, but only that the prima facie inference of the intention of the Legislature arising from the words used may be displaced by considering the nature of the enactment, its design and the consequences flowing from alternative construction. Thus, the use of the words `as nearly as may be' in contrast to the words `at least' will prima facie indicate a directory requirement, negative words a mandatory requirement `may' a directory requirement and `shall' a mandatory requirement.".
118. Maxwell, in Chapter 13 of his 12th Edition of `The Interpretation of Statutes', used the word `imperative' as synonymous with `mandatory' and drew a distinction between imperative and directory enactments, at pages 314-315, as follows: ".Passing from the interpretation of the language of statutes, it remains to consider what intentions are to be attributed to the legislature on questions necessarily arising out of its enactments and on which it has remained silent.". The first such question is: when a statute requires that something shall be done, or done in a particular manner or form, without expressly declaring what shall be the consequence of non-compliance, is the requirement to be regarded as imperative (or mandatory) or forms prescribed by the statute have been regarded as essential to the act or thing regulated by it, and their omission has been held fatal to its validity. In others, such prescriptions have been considered as merely directory, the neglect of them involving nothing more than liability to a penalty, if any were imposed, for breach of the enactment. ".An absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially".. It is impossible to lay down any general rule for determining whether a provision is imperative or directory. ".No universal rule,". said Lord Campbell L.C., ".can be laid down for the construction of statutes, as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Courts of Justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed.". And Lord Penzance said: ".I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject matter; consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory.".
119. In a recent judgment of this Court, May George v. Tahsildar [(2010) 13 SCC98, the Court stated the precepts, which can be summed up and usefully applied by this Court, as follows: (a) While determining whether a provision is mandatory or directory, somewhat on similar lines as afore-noticed, the Court has to examine the context in which the provision is used and the purpose it seeks to achieve; (b) To find out the intent of the legislature, it may also be necessary to examine serious general inconveniences or injustices which may be caused to persons affected by the application of such provision; (c) Whether the provisions are enabling the State to do some things and/or whether they prescribe the methodology or formalities for doing certain things; (d) As a factor to determine legislative intent, the court may also consider, inter alia, the nature and design of the statute and the consequences which would flow from construing it, one way or the other; (e) It is also permissible to examine the impact of other provisions in the same statute and the consequences of non-compliance of such provisions; (f) Physiology of the provisions is not by itself a determinative factor. The use of the words `shall' or `may', respectively would ordinarily indicate imperative or directory character, but not always. (g) The test to be applied is whether non-compliance with the provision would render the entire proceedings invalid or not. (h) The Court has to give due weightage to whether the interpretation intended to be given by the Court would further the purpose of law or if this purpose could be defeated by terming it mandatory or otherwise.
120. Reference can be made to the following paragraphs of May George (supra) : ".16. In Dattatraya Moreshwar v. The State of Bombay and Ors. [AIR1952SC181, this Court observed that law which creates public duties is directory but if it confers private rights it is mandatory. Relevant passage from this judgment is quoted below: `7........It is well settled that generally speaking the provisions of the statute creating public duties are directory and those conferring private rights are imperative. When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of legislature, it has been the practice of the Courts to hold such provisions to be directory only, the neglect of them not affecting the validity of the acts done.' 17. A Constitution Bench of this Court in State of U.P. v. Babu Ram Upadhya [AIR1961SC751 decided the issue observing: `29.....For ascertaining the real intention of the Legislature, the Court may consider, inter alia, the nature and the design of the statute, and the consequences which would follow from construing it the one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstance, namely, that the statute provides for a contingency of the non-compliance with the provisions, the fact that the non-compliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that flow therefrom, and, above all, whether the object of the legislation will be defeated or furthered.' 22. In B.S.Khuna and Ors. v. Municipal Corporation of Delhi and Ors. [(2000) 7 SCC679, this Court considered the provisions of the Delhi Municipal Corporation Act, 1957, particularly those dealing with transfer of immovable property owned by the Municipal Corporation. After considering the scheme of the Act for the purpose of transferring the property belonging to the Corporation, the Court held that the Commissioner could alienate the property only on obtaining the prior sanction of the Corporation and this condition was held to be mandatory for the reason that the effect of non-observance of the statutory prescription would vitiate the transfer though no specific power had been conferred upon the Corporation to transfer the property.
23. In State of Haryana and Anr. v. Raghubir Dayal [(1995) 1 SCC133, this Court has observed as under: `5. The use of the word `shall' is ordinarily mandatory but it is sometimes not so interpreted if the scope of the enactment, or consequences to flow from such construction would not so demand. Normally, the word `shall' prima facie ought to be considered mandatory but it is the function of the Court to ascertain the real intention of the legislature by a careful examination of the whole scope of the statute, the purpose it seeks to serve and the consequences that would flow from the construction to be placed thereon. The word `shall', therefore, ought to be construed not according to the language with which it is clothed but in the context in which it is used and the purpose it seeks to serve. The meaning has to be described to the word `shall; as mandatory or as directory accordingly. Equally, it is settled law that when a statute is passed for the purpose of enabling the doing of something and prescribes the formalities which are to be attended for the purpose, those prescribed formalities which are essential to the validity of such thing, would be mandatory. However, if by holding them to be mandatory, serious general inconvenience is caused to innocent persons or general public, without very much furthering the object of the Act, the same would be construed as directory.' ".
121. The Legislature in Sections 11A and 17(3A) of the Act has used the word `shall' in contradistinction to the word `may' used in some other provisions of the Act. This also is a relevant consideration to bear in mind while interpreting a provision.
122. The distinction between mandatory and directory provisions is a well accepted norm of interpretation. The general rule of interpretation would require the word to be given its own meaning and the word `shall' would be read as `must' unless it was essential to read it as `may' to achieve the ends of legislative intent and understand the language of the provisions. It is difficult to lay down any universal rule, but wherever the word `shall' is used in a substantive statute, it normally would indicate mandatory intent of the legislature.
123. Crawford on `Statutory Construction' has specifically stated that language of the provision is not the sole criteria; but the Courts should consider its nature, design and the consequences which could flow from construing it one way or the other.
124. Thus, the word `shall' would normally be mandatory while the word `may' would be directory. Consequences of non- compliance would also be a relevant consideration. The word `shall' raises a presumption that the particular provision is imperative but this prima facie inference may be rebutted by other considerations such as object and scope of the enactment and the consequences flowing from such construction.
125. Where a statute imposes a public duty and proceeds to lay down the manner and timeframe within which the duty shall be performed, the injustice or inconvenience resulting from a rigid adherence to the statutory prescriptions may not be a relevant factor in holding such prescription to be only directory. For example, when dealing with the provisions relating to criminal law, legislative purpose is to be borne in mind for its proper interpretation. It is said that the purpose of criminal law is to permit everyone to go about their daily lives without fear of harm to person or property and it is in the interests of everyone that serious crime be effectively investigated and prosecuted. There must be fairness to all sides. (Attorney General's Reference (No.3 of 1999) (2001) 1 All ER577Reference : Justice G.P. Singh on `Principles of Statutory Interpretation', 11th Edition 2008). In a criminal case, the court is required to consider the triangulation of interests taking into consideration the position of the accused, the victim and his or her family and the public.
126. The basic purpose of interpretation of statutes is further to aid in determining either the general object of the legislation or the meaning of the language in any particular provision. It is obvious that the intention which appears to be most in accordance with convenience, reason, justice and legal principles should, in all cases of doubtful interpretation, be presumed to be the true one. The intention to produce an unreasonable result is not to be imputed to a statute. On the other hand, it is not impermissible, but rather is acceptable, to adopt a more reasonable construction and avoid anomalous or unreasonable construction. A sense of the possible injustice of an interpretation ought not to induce Judges to do violence to the well settled rules of construction, but it may properly lead to the selection of one, rather than the other, of the two reasonable interpretations. In earlier times, statutes imposing criminal or other penalties were required to be construed narrowly in favour of the person proceeded against and were more rigorously applied. The Courts were to see whether there appeared any reasonable doubt or ambiguity in construing the relevant provisions. Right from the case of R. v. Jones, ex p. Daunton [1963(1) WLR270, the basic principles state that even statutes dealing with jurisdiction and procedural law are, if they relate to infliction of penalties, to be strictly construed; compliance with the procedures will be stringently exacted from those proceedings against the person liable to be penalized and if there is any ambiguity or doubt, it will be resolved in favour of the accused/such person. These principles have been applied with approval by different courts even in India. Enactments relating to procedure in courts are usually construed as imperative. A kind of duty is imposed on court or a public officer when no general inconvenience or injustice is caused from different construction. A provision of a statute may impose an absolute or qualified duty upon a public officer which itself may be a relevant consideration while understanding the provision itself. (See `Maxwell on The Interpretation of Statutes', 12th Edition by P. St. J.
Langan and R. v. Bullock, [(1964)1 QB481) 127. One school of thought has accepted that the word `shall' raises a presumption that the particular provision is imperative, while the other school of thought believes that such presumption is merely prima facie, subject to rebuttal by the other considerations mentioned above. For example, in M/s. Sainik Motors, Jodhpur & Others v. The State of Rajasthan [AIR1961SC1480, the word `shall' has been held to be merely directory.
128. G.P. Singh in the same edition of the above-mentioned book, at page 409, stated that the use of the word `shall' with respect to one matter and use of word `may' with respect to another matter in the same section of a statute will normally lead to the conclusion that the word `shall' imposes an obligation, whereas the word `may' confers a discretionary power. But that by itself is not decisive and the Court may, having regard to the context and consequences, come to the conclusion that the part of the statute using `shall' is also directory. It is primarily the context in which the words are used which will be of significance and relevance for deciding this issue.
129. Statutes which encroach upon rights, whether as regards person or property, are subject to strict construction in the same way as penal Acts. It is a recognized rule that they should be interpreted, if possible, so as to respect such rights and if there is any ambiguity, the construction which is in favour of the freedom of the individual should be adopted. (See `Maxwell on The Interpretation of Statutes', 12th Edition by P. St. J.
Langan) 130. This Court in the case of Devinder Singh (supra) held that the Land Acquisition Act is an expropriatory legislation and followed the case of Hindustan Petroleum Corporation v. Darius Shapur Chennai and Ors. [(2005) 7 SCC627. Therefore, it should be construed strictly. The Court has also taken the view that even in cases of directory requirements, substantial compliance with such provision would be necessary.
131. If I analyze the above principles and the various judgments of this Court, it is clear that it may not be possible to lay down any straitjacket formula, which could unanimously be applied to all cases, irrespective of considering the facts, legislation in question, object of such legislation, intendment of the legislature and substance of the enactment. In my view, it will always depend upon all these factors as stated by me above. Still, these precepts are not exhaustive and are merely negative. There could be cases where the word `shall' has been used to indicate the legislative intent that the provisions should be mandatory, but when examined in light of the scheme of the Act, language of the provisions, legislative intendment and the objects sought to be achieved, such an interpretation may defeat the very purpose of the Act and, thus, such interpretation may not be acceptable in law and in public interest.
132. Keeping in mind the language of the provision, the Court has to examine whether the provision is intended to regulate certain procedure or whether it vests private individuals with certain rights and levies a corresponding duty on the officers concerned. The Court will still have to examine another aspect, even after holding that a particular provision is mandatory or directory, as the case may be, i.e., whether the effect or impact of such non-compliance would invalidate or render the proceedings void ab initio or it would result in imposition of smaller penalties or in issuance of directions to further protect and safeguard the interests of the individual against the power of the State. The language of the statute, intention of the legislature and other factors stated above decide the results and impacts of non-compliance in the facts and circumstances of a given case, before the Court can declare a provision capable of such strict construction, to term it as absolutely mandatory or directory. 30. Now, let me consider some of the decisions of the Hon'ble Apex Court on the scope and effect of regulations, framed by the competent authorities under the Act.
31. In Sukhdev Singh v. Bagatram Sardar Singh Raghuvanshi reported in 1975 (1) SCC421 the Supreme Court, while explaining the scope and characteristics of the Regulations framed under the Companies Act, at Paragraphs 10 to 25, held as follows: 10. The contentions on behalf of the State are these. Regulations are framed under powers given by the statute affecting matters of internal management. Regulations do not have a statutory binding character. Terms and conditions of employees as laid down in the regulations are not a matter of statutory obligations. Regulations are binding not as law but as contract. Regulations have no force of law. Regulations provide the terms and conditions of employment and thereafter the, employment of each person is contractual.
11. The contentions on behalf of the employees are these. Regulations are made under the statute. The origin and source of the power to make regulations is statutory. Regulations are self binding in character. Regulations have the force of law inasmuch as the statutory authorities have no right to make any departure from the regulations.
12. Rules, Regulations, Schemes, Bye-laws, orders made under statutory powers are all comprised in delegated legislation The need for delegated legislation is that statutory rules are framed with care and minuteness when the statutory authority mating the rules is after the coming into force of the Act in a better position to adapt the Act to special circumstances. Delegated legislation permits utilisation of experienced and consultation with interests affected by the practical operation of statues.
13. In England the Statutory Instruments (Confirmatory Powers) Order, 1947 contemplates orders in Council or other instruments which are described as orders. The Rules Publication Act 1893 in England defines ".rule making authority". to include every authority authorised to make any statutory rules. Statutory rules are defined there as rules, regulations or by-laws made under any Act of Parlia- ment, in England. Orders are excluded from the statutory definition of statutory rules as being administrative. In England regulation is the term most popularly understood and the one favoured by the Committee on Ministers, Powers, who suggested that regulations should be used for substantive, law and rules for procedural law, while orders should be reserved to describe the exercise of executive power or the taking of a judicial or quasi judicial decision (See Craies on Statute Law, 7th Ed. at p. 303). The validity of statutory instruments is generally a question of vires, i.e., whether or not the enabling power has been exceeded or otherwise wrongfully exercised.
14. Subordinate legislation is made by a person or body by virtue of the powers conferred by a statute. By-laws are made in the main by local authorities or similar bodies or by statutory or other undertakings for regulating the conduct of persons within their areas or resorting to their undertakings. Regulations may determine the class of cases in which the exercise of the statutory power by any such authority constitutes the making of statutory rule.
15. The words ".rules". and ".regulations". are used in an Act to limit the power of the statutory authority. The powers of statutory bodies are derived, controlled and restricted by the statutes which create them and the rules and regulations framed thereunder. Any action of such bodies in excess of their power or in violation of the, restrictions placed on their powers is ultra vires. The reason is that it goes to the root of the power of such corporations and the declaration of nullity is the only relief that is granted to the aggrieved party.
16. In England subordinate legislation has, if validly made, tile full force and effect of a statute, but it differs from a statute in that its validity whether as respects form or substance is normally open to challenge in the, Courts.
17. Subordinate legislation has, if validly made, the, full force, and effect of a statute. That is so whether or not the statute under which it is made provides expressly that it is to have effect as if enacted therein. If an instrument made in the exercise of delegated powers directs or forbids the doing of a particular thing the result of a breach thereof is, in the absence of provision to the contrary, the same as if the command or prohibition had been contained in the enabling statute itself. Similarly, if such an instrument authorises or requires the doing of any act, the principles to be applied in determining whether a person injured by the act has any right of action in respect of the injury are not different from those applicable whether damage results from an act done under the direct authority of a statute, Re Langlois and Biden, (1891) 1 Q.B. 349 and Kruse v. Johnson, (1898) 2 Q.B. 91.
18. The authority of a statutory body or public administrative body or agency ordinarily includes the power to make or adopt rules and regulations with respect to matters within the province of such body provided such rules and regulations are not inconsistent with the relevant law. In America a ".public agency". has been defined as an agency endowed with governmental or public functions. It has been held that the authority to act with the sanction of Government behind it determines whether or not a governmental agency exists. The rules and regulations comprise those actions of the statutory or public bodies in which the legislative element predominates. These statutory bodies cannot use the power to make rules and regulations to enlarge the powers beyond the scope intended by the legislature. Rules and regulations made by reason of the specific power conferred on the statute to make rules and regulations establish the pattern of conduct to be followed. Rules are duly made relative to the subject matter on which the statutory bodies act subordinate to the terms of the statute under which they are promulgated. Regulations are in aid of the enforcement of the provisions of the statute. Rules and regulations have been distinguished from orders or determination of statutory bodies in the sense that the orders or determination are actions in which there is more of the judicial function and which deal with a particular present situation. Rules and regulations on the other hand are actions in which the legislative element predominates.
19. The process of legislation by departmental regulations saves time 'and is intended to deal with local variations and the power to legislate by statutory instrument in the form of rules and regulations is conferred by Parliament and can be taken away by Parliament. The legislative function is the making of rules. Some Acts of Parliament decide particular issues and do not lay down general rules.
20. The justification for delegated legislation in threefold. First, there is pressure on parliamentary time. Second, the technicality of subjectmatter necessitates prior consultation and expert advice on interests concerned. Third, the need for flexibility is established because it is not possible to foresee every administrative difficulty that may arise to make adjustment that may be called for after the statute has begun to operate. Delegated legislation fills those needs.
21. The characteristic of law is the manner and procedure adopted in many forms of subordinate legislation. The authority making rules and regulation must specify the source of the rule and regulation making authority. To illustrate, rules are always framed in exercise of the specific power conferred by the statute to make rules. Similarly, regulations are framed in exercise of specific power conferred by the statute to make regulations. The essence of law is that it is made by the law-makers in exercise of specific authority. The vires of law is capable of being challenged if the power is absent or has been exceeded by the authority making rules or regulations.
22. Another characteristic of law is its content. Law is a rule of general conduct while administrative instruction relates to particular person. This may be illustrated with reference to regulations under the Acts forming the subject matter of these appeals. The Life Insurance Corporation Act as well as the Industrial Finance Corporation Act confers power on the Corporation to make regulations as 'Lo the method of recruitment of employees and the terms and conditions of service of such employees or agents. The Oil and Natural Gas Commission Act under section 12 states that the functions and terms and conditions of service of employees shall be such as may be provided by regulations under the Act. Regulations under the 1959 Act provide inter alia the terms and conditions of appointment and scales of pay of the employees of the Commission. The regulations containing the terms and conditions of appointment are imperative. The administrative instruction is the entering into contract with a particular person but the form and content of the contract is prescriptive and statutory.
23. The noticeable feature is that these, statutory bodies have no free hand in framing the conditions and terms of service of their employees. These statutory bodies are bound to apply the terms and conditions as laid down the regulations. The statutory bodies are not free to make such terms as they think fit and proper. Regulations prescribe the terms of appointment, conditions of service and procedure for dismissing employees. These regulations in the statutes are described :as ".status fetters on freedom of contract".. The Oil and Natural Gas ,Commission Act in section 12 specifically enacts that the terms and ,conditions of the employees may be such as may be provided by regulations. There is a legal compulsion on the Commission to comply with the regulations. Any breach of such compliance would be a breach of the regulations which are statutory provisions. In other ,statutes under consideration, viz., the Life Insurance Corporation Act and the Industrial Finance Corporation Act though there is no specific provision comparable to section 12 of the 1959 Act the terms and conditions of employment and conditions of service are provided for by regulations. These regulations are not only binding on the authorities but also on the public.
24. Broadly stated, the distinction between rules and regulations on the one hand and administrative instructions on the other is that rules and regulations can be made only after reciting the source of power whereas administrative instructions are not issued after reciting source of power. Second the executive power of a State is not authorised to frame rules under Article 162. This Court held that the Public Works Department Code was not a subordinate legislation (See G.J.Fernandes v. State of Mysore & Ors., (1967) 3 S.C.R. 636). The, rules under Article 309 on the other hand constitute not only the constitutional rights of relationship between the State and the Government servants but also establish that there must be specific power to frame rules and regulations.
25. The Additional Solicitor General submitted that regulations could not have the force of law because these regulations are similar to regulations framed by a company incorporated under the Companies Act. The fallacy lies in equating rules and regulations of a company with rules and regulations framed by a statutory body. A company makes rules and regulations in accordance with the provisions of the Companies Act. A statutory body on the other hand makes rules and. regulations by and under the powers conferred by the Statutes creating such bodies. Regulations in Table-A of the Companies Act are to be adopted by a company. Such adoption is a statutory requirement. In the same paragraph, the Apex Court made the distinction in respect of companies incorporated under the Act and the companies, which are creatures of statutes. ".A company cannot come into existence unless it is incorporated in Accordance with the provisions of the Companies Act. A company cannot exercise powers unless the company follows the statutory provisions. The provision in the Registration Act requires registration of instruments. The provisions in the Stamp Act contain provisions for stamping of documents. The non-compliance with statutory provisions will render a document to be of no effect. The source of the power for making rules and regulations in the case of Corporation created by a statute is the statute itself. A company incorporated under the Companies Act is not created by the Companies Act but comes into existence in accordance with the provisions of the Act. It is not a statutory body because it is not created by the statute. It is a body created in accordance with the provisions of the statute. 32. In Peerless General Finance and Investment Co. Ltd., v. Reserve Bank of India reported in 1992 (2) SCC343 the Supreme Court, having considered the regulations issued by the Reserve Bank of India, at Paragraphs 52 and 53, held that the regulations issued under the Chapter 3-B of the Reserve Bank of India Act, 1934, are statutory regulations. While saying so, the Supreme Court also considered a decision made in State Bank of U.P., v. Babu Ram Upadhya reported in 1961 (2) SCR679= AIR1961SC751 where the Apex Court held that rules made under a statute must be treated, for all the purposes of construction or obligations, exactly, as if they were in that Act and are to the same effect, as if they were contained in the Act and are to be judicially noticed, for all purposes or construction or obligations.
33. In Peerless General Finance's case (stated supra), the Supreme Court also took note of another decision in D.V.K. Prasada Rao v. Govt. of A.P., reported in AIR1984A.P. 75, wherein, the same view was laid down. The Supreme Court in Peerless General Finance's case (cited supra), observed that the directions are incorporated and become part of the Act itself. They must be governed by the same principles, as the statute itself. The statutory presumption that the legislature inserted every part thereof, for a purpose to and the legislative intention should be given effect to. 34. In St. John's Teacher's Training Institute v. Regional Director, NCTE, reported in 2003 (3) SCC321 at Paragraph 10, observed as follows: A Regulation is a rule or order prescribed by a superior for the management of some business and implies a rule for general course of action. Rules and Regulations are all comprised in delegated legislations. The power to make subordinate legislation is derived from the enabling Act and it is fundamental that the delegate on whom such a power is conferred has to act within the limits of authority conferred by the Act. Rules cannot be made to supplant the provisions of the enabling Act but to supplement it. What is permitted is the delegation of ancillary or subordinate legislative functions, or, what is fictionally called, a power to fill up details. The legislature may, after laying down the legislative policy confer discretion on an administrative agency as to the execution of the policy and leave it to the agency to work out the details within the frame work of policy. The need for delegated legislation is that they are framed with care and minuteness when the statutory authority making the Rule, after coming in to force of the Act, is in a better position to adapt the Act to special circumstances. Delegated legislation permits utilisation of experience and consultation with interests affected by the practical operation of statutes. Rules and Regulations made by reason of the specific power conferred by the Statutes to make Rules and Regulations establish the pattern of conduct to be followed. Regulations are in aid of enforcement of the provisions of the Statute. The process of legislation by departmental Regulations saves time and is intended to deal with local variations and the power to legislate by statutory instrument in the form of Rules and Regulations is conferred by Parliament. The main justification for delegated legislation is that the legislature being over burdened and the needs of the modern day society being complex it can not possibly foresee every administrative difficulty that may arise after the Statute has begun to operate. Delegated legislation fills those needs. The Regulations made under power conferred by the Statute are supporting legislation and have the force and affect, if validly made, as the Act passed by the competent legislature. (See Sukhdev Singh v. Bhagatram, AIR1975SC1331 35. In Andhra Bank v. B.Satyanarayan reported in 2004 (2) SCC657 the Supreme Court held that a valid regulation once framed would be a part of the statute.
36. In Section 43 of the Electricity Act, the word ".shall". is used. Applying the principles of law to the Electricity Act, Distribution and Supply Codes, as regards supply of electricity, from the language employed in Section 43 of the Act, ie., duty to supply electricity on request and Section 44 of the Act, ie., exceptions from discharging the duty to supply electricity, which states that nothing contained in Section 43 shall be taken as requiring a distribution licensee to give supply of electricity to any premises, if he is prevented from so doing by cyclone, floods, storms or other occurrences beyond his control, it could be concluded that there is a statutory obligation to provide electricity to a owner or occupier of the premises.
37. The term premises, defined as per Section 2(51) of the Electricity Act, includes any land, building or structure. As stated supra, occupier means the person in occupation (whether as owner or otherwise) of the premises, where electricity is used or intended to be used. As per Regulation 27(1) of the Tamil Nadu Distribution Code, 2004, the provision regarding the duty of licensee, as detailed in Section 43 of the Electricity Act, ie., duty to supply electricity on request, is that on an application by the owner or occupier of any premises, the licensee shall give supply of electricity to such premises, within one month, after the receipt of the application requiring such supply, failing which, the licence shall be liable to a penalty of one thousand rupees, for each day of default.
38. Proviso to Section 43(2) of the Electricity Act, states 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. As per Regulation 27(1), the provision regarding the duty of licensee, as detailed in Section 43 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 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. 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. 39. Some of the clauses in Regulation 27, relevant for this case, are extracted hereunder: ".(11) The requirement to be notified by the Authority through regulations shall be complied with for availing the service connection. (12) Supply shall be given in poromboke land on production of- (i) No Objection Certificate obtained from the Officer (not below the rank of Deputy Tahsildar) or (ii) Where such No Objection Certificate could not be produced by the applicant for service connection the following undertaking shall be furnished:- (1) ".I am aware that I am liable to be evicted and for supply disconnection at any time, if the lands are required by the Government and/or any dispute arises at a later date and that electricity supply given in this regard will not confer any claim on ownership of the land. (2) I am aware that the above undertaking shall not confer permanent and full right to the ownership of the land. (13) Within a door number or sub door number, an establishment or person will not be given more than one service connection. (14) ........... (15) In case of flat system and shopping complexes where more than one flat or shops are located with permanent physical segregation, more than one service shall be given. 40. Annexure III to the Tamil Nadu Electricity Distribution Code, 2004, deals with Formats. Form 1 deals with an application form, for L.T. Service connection (except agriculture and hut). Form 3 deals with an application form for Hut Service and Form 5 deals with Owner Consent Letter for getting New Supply. Form 6 is the Indemnity Bond to be furnished by an intending consumer, who is not the owner of the premises and applies without the consent of the owner.
41. Thus, reading of the statutory provisions of the Act and the Code framed by the authorities, makes it clear that the intention of the Legislature is to provide electricity supply to all the persons, whether they are the owners of the property or occupiers, as the case may be. As stated supra, as between the owner and occupier, like in the case of a landlord and tenant, a mortgagee, assignee and any other person, who is in lawful possession and not a tress-passer, and even in the case of those residing in government poromboke lands, there is a provision for supply of electricity, subject to the submission of an undertaking, etc., as stated supra.
42. When consequences of penalty on failure to comply with a prescribed requirement is provided for, by the statute, there cannot be any doubt that such statutory requirement must be interpreted as mandatory. A mandatory provision gives no discretion and it is intended to be obeyed. Discretionary power gives the authority to use it, as its discretion. The latter can be fulfilled substantially. Failure to adhere to the provisions or in compliance of the same, entailing penalty, then it should be the construction and intention of the Legislature, is to make it mandatory.
43. In the light of the legal pronouncements of the Apex Court, Section 43 of the Electricity Act and the Regulations framed thereunder, have to be construed as mandatory, to provide electricity supply, to the owner or occupier of the premises and to those, who reside in Government poromboke lands, where electricity is used or intended to be used.
44. Now reverting back to the case on hand, at the outset, this Court is not inclined to accept the contention of the learned counsel for the petitioners that they are not encroachers of Government poromboke lands. If they are not encroachers, there is absolutely no necessity for the 1st petitioner to make a representation for issuance of a ".No Objection Certificate"., form the District Administration. For clarity, the letter, dated 19.05.2012, of the 1st petitioner, addressed to the District Collector, Tiruvannamalai, is extracted hereunder: ".flikf;Fhpa mYtyh; mwptJ jpUtz;zhkiy efh; nghS:h; rhiy. 7tJ bjU. vz;/220m vd;Dk; Kfthpapy; gy Mz;Lfhykhf ehd; FoapUe;J tUk; ,lk; muR g[wk;nghf;F ,lkhFk;/ mjd; g[y vz;/96 brl;oFsk; g[wk;nghf;fhFk;/ rk;ke;jg;gl;l ,lj;jpy; ,Uf;Fk; vdJ FoapUg;g[f;F kpd; ,izg;g[ ju tUtha; Jiw eph;thfj;jpd; cj;jut[f;F cl;gl;l mYtyhplk; jilapy;yh rhd;W bgw;W ju ntz;Lk;/ je;jhy; kpd; ,izg;g[ jug;gLk; vd;W jpUtz;zhkiy nkw;F kpd; thhpa kf;fs; bjhlh;g[ mYtyh; kw;Wk; braw;bghwpahsh; fojk; K:ykhf nfl;Lf;bfhz;Ls;shh;/ mjd;go vdJ FoapUg;g[f;F kpd; ,izg;g[ nfl;Lg;bgw jilapy;yh rhd;W tH';Fk;go gzpt[ld; nkl;Lf;bfhs;fpnwd;/". Translated version of the above letter reads as follows: ".To the notice of dutiful officer, The place in which, I reside for several years at No.220A, 7th Street, Polur Road, Tiruvannamalai Town, is a Government poromboke land. Its survey number is 96, Chettikulam Poromboke. The Public Relation Officer and Executive Engineer, Tiruvannamalai West, vide his letter, has stated that a No Objection Certificate shall be obtained from the Revenue Authorities and that the electricity service connection will be given only if the certificate is produced. Accordingly, I request you to issue me No Objection Certificate for obtaining electricity service connection to my residence.".
45. Even from the counter affidavit of the Superintending Engineer, Tiruvannamalai Electricity Distribution Circle, TANGEDCO, Vengikkal, Tiruvannamalai 606 604, it is evident that when the petitioners have approached his Office, for effecting electricity service connection, they were orally informed that since the constructions put up by them fall in poramboke lands, between the Hill and Girivalam path and in view of the decision taken in the Joint Action Committee's meeting held on 23.11.2005, in which, the Tamil Nadu Electricity Board had also participated, service connections cannot be effected.
46. Though the petitioners have contended that they have been residing in the premises hereditarily for nearly two Centuries, no documents have been filed to substantiate the same. But it is admitted by the Superintending Engineer, Tiruvannamalai Electricity Distribution Circle that the petitioners have been residing in Government Poromboke lands, falling between the Hill and Girivalam path, atleast since 2005 or even before. From the perusal of the Photographs enclosed in the typed set of papers, it is also evident that there is a ".Salavaithurai"., where clothes are being washed.
47. As stated surpa, in proceedings in Mu.Mu.No.22298/90, dated 23.10.1992, the Tahsildar, Tiruvannamalai, has requested the Commissioner, Tiruvannamalai Municipality, to send necessary resolution for assignment of house site pattas, to the laundry workers in T.S.No.95, 96, 10, 520 and 521. Perusal of the said letter, also shows that earlier, a letter in Na.Ka.No.A9.22298/90, dated 27.11.1990, has been sent in this regard and followed by reminders. A copy of the said proceedings has been marked to the 1st petitioner, General Secretary, Laundry Worker's Welfare Committee, 37, Polur Road, Tiruvannamalai, The Revenue Inspector, Tiruvannamalai (North) and Land Surveyor, Tiruvannmalai.
48. As stated supra, the Jamabanthi Officer cum Revenue Divisional Officer, Tiruvannamalai, while endorsing the request, dated 11.05.1992, has stated that action has been taken on the request, for assigning pattas. The District Collector, Tiruvannamalai, has also made an endorsement, vide proceedings in Na.Ka.No.A5/68703/91, dated 19.12.1991, stating that steps have been taken for assigning house site pattas, in respect of lands in Survey Nos.95, 96, 10, 520 and 521, Chettikulamedu, Tiruvannamalai District. Copy of the said endorsement has been sent to the 1st petitioner, General Secretary, 37, Polur Road, Tiruvannamalai.
49. All the above proceedings indicate that in the year 1991-92, steps have been taken to provide house site pattas, to the laundry workers in the abovesaid Survey Numbers, and sub-divisions were directed to be made. Therefore,, it could be deduced that the laundry workers did not own any place and that is, why, the District Administration has thought it fit to assign house site pattas. No materials have been produced before this Court, about the further action taken, in this regard. But it is the representation of the learned counsel for the Electricity Board, that the petitioners did not like that place.
50. Be that as it may, perusal of the order made in S.L.P.Nos.12443 to 12447 of 2001, shows that writ petitions have been filed in this Court, for directions to the Commissioner, Tiruvannamalai Municipality, in any manner, permitting any construction activity, in the circuit path or about thirteen kilometers or in and around the holy hill or Tiruvannamalai and in particular, prohibiting construction (exceeding the height of five meters) of whatever nature, permanent, semi-permanent or temporary and a further direction has been sought to remove the encroachments, including hutments, which had been put up in and around Annamalai Hill and along side Giripradakshina Path, from Annamalaiswamy Ashram to Pachiammal Temple, in clockwise direction, in the land lying between the Hill and Giripradakshina path. This Court has appointed a Special Co-ordination Committee, for a period of two years and issued various directions. Besides, a Special Coordination Committee, comprising of twenty three members of which, Hon'ble Justice T.S.Arunachlam, has been appointed as the Chairperson, Local Area Committee and comprising of various members, has been constituted. On the Special leave petitions filed by the Commissioner of Tiruvannamalai Municipality, the order of this Court has been stayed, in terms of the orders passed on 6th August, 2001. Thereafter, various orders have been passed and directions have been issued to the Archaeological survey of India, as also to the Ministry of Tourism, Government of India. In July' 2005, a detailed affidavit has been filed by the Commissioner of Thiruvannamalai Municipality, placing on record, the various steps being taken, including certain short-term measures and developmental works, within the Town. On perusal of the affidavit filed, the Hon'ble Supreme Court, by order, dated 12th July, 2005, has expressed a tentative view that the Special Leave Petitions can be disposed of, by accepting the suggestions, as contained in the affidavit and directed that the work of development and management, including removal of encroachments, etc., shall be undertaken, as suggested in the affidavit and in consultation with Hon'ble Mr. Justice T.S.Arunachalam. The writ petitioner and all the parties have also submitted that it would be appropriate that developmental works are undertaken, as suggested in the affidavit and that the direction of this Court, constituting a Committee has been substituted, by directing the works to be undertaken as per the affidavit of July, 2005, in consultation with Hon'ble Mr. Justice T.S.Arunachalam or any other retired Judge. The Supreme Court has also taken note of the fact that the Government of India had filed an affidavit, stating that it may be permitted to withdraw the preliminary notification, dated 20th September, 2002, declaring the Temple as a National Monument. On the communication from Hon'ble Mr. Justice T.S.Arunachalam, expressing certain personal difficulties, the Hon'ble Supreme Court, vide order, dated 03.10.2005, has directed that all necessary measures, as stated in the affidavit, shall be undertaken by the Municipality and other connected authorities/committees, in consultation with Hon'ble Mr. Justice K.Venkataswami, Retired Judge of the Supreme Court.
51. Material on record further discloses that a meeting has been held on 23.11.2005 at the Tiruvannamalai District Collectorate and the following agendas have been taken up for discussion, (1)Conversion of Sodium Lamp into CFL. (2)Illuminating Sodium Lamp on Full Moon day only. For other days, CFL lamp may have to be used. Proposals to be evolved for this switching arrangements. (3)Electricity Lighting arrangements in the said areas and provision of 'UG' cable connection may be considered within the area of 'Madaveethi'. (4)Electricity service connections in the inner and outer area Girivalam path may be given only on production of Planning approval for patta lands. (5)For poromboke land inside/outside Girivalam path no need to give electricity service connection till a separate decision is taken after consulting Municipal Authorities. Panchayat Authorities and Revenue Department. (6)As per the stay order of the Hon'ble High Court of Madras, the District Collector of Tiruvannamalai had given instructions to Tamil Nadu Electricity Board not to give any Electricity Service connections inner and outer ".Girivalam Path".. Now in the light of orders of the Hon'ble Supreme Court of India, Electricity Service Connections may be given to the residence and other establishments in the said areas, Madaveethi and other development areas, inter and outer ".Girivalam Path". areas on production of Planning Permission for Patta Lands.".
52. Thereafter, the Additional Chief Engineer, TEDC, Tiruvannamalai-4, has issued a Memo No.ACE/TEDC/TL/TD/TA2F.Girivalam/D.No.547/05, dated 29.11.2005. According to the learned counsel appearing for the respondents, the Committee had decided not to give electricity service connection, till a separate decision is taken, after consulting the Municipal, Panchayat authorities and the Revenue Department. Though the memo reads that as per the stay order of this Court, the District Collector has given instructions, not to give Electricity service connection, in the inner and outer area of Girivalam path, the memo further reads that in the light of orders of the Hon'ble Supreme Court of India, electricity service connections may be given to those, who are residing and other establishments in areas, viz., Madaveethi and other development areas, inter and outer ".Girivalam Path". areas, on production of Planning Permission for Patta Lands.
53. The memo also makes it clear that in the case of those residing in T.S.No.95, 96, 10, 520 and 521, in and around Girvalam path, a decision has been taken to provide electricity service connection, for those, who are residing in patta lands, if planning permission is given, which means that there is no intention to deny the basic amenity to those, who have obtained planning permission. Proceedings in Memo Na.Ka.No.A2/23871/1998, dated 13.09.2008, shows that on 09.09.2008, the Committee has convened a meeting in the presence of Hon'ble Mr.Justice K.Venkatesamy and others. It was the 5th meeting, presided over by Hon'ble Mr. Justice K.Venkatesamy and more than 39 persons, representing, various walks of life, have participated. After deliberations on various issues, the Committee has resolved as follows: ".1/ fphptyg; ghijapy; cs;s epykhw;wk;. epy xg;gil bra;ag;gl;l muR epy';fs; muR tpjpj;j epge;jidapd;go bray;gLfpwjh?. vd fz;fhzpj;J mwpf;if bra;a ntz;Lk;/ 2/ epy khw;wk; epy xg;gil bra;ag;gl;L gad;gLj;jhj muR epy';fis (epy xg;gil-epy khw;wk;) uj;J bra;a ntz;Lk;/ 3/ kiyapy; ,ukzh!;tuk; Kjy; gr;irak;kd; nfhapy; tiuapy; cs;s Mf;fpukpg;g[fis nkYk; mjpfhpf;fhjthW xU jLg;g[ RtUk; epue;ju milahsKk; mikf;f jpUf;nfhapy; epjpapnyh my;yJ ntW tifapnyh epjp Mjhuk; jpul;l mwpt[Wj;jg;gl;lJ/ 4/ jpUtz;zhkiyapy; cs;s tUtha;j; Jiw epy';fis tdj;Jiwf;F fhg;g[ fhLfshf (Reserve Forest) xg;gilf;ft[k; nrthuj;jpfSk;. Rw;Wyh gazpfSk; kiyia rhjhuz fhy';fspYk; jpUtpHh fhy';fspYk; tdj; Jiwapd; ,ila{W ,d;wp gad;gLj;j Vw;ghL bra;at[k; mnj rkak; ,J Fwpj;J ePjpkd;w-tUtha;j; Jiwapy; tpl;L tdj; Jiwf;F xg;gilf;f khtl;l Ml;rpah; nfl;Lf; bfhs;sg;gl;lhh;/ 5/ jw;nghJs;s muR tHpfhl;Ljypd;go Ie;J Mz;LfSf;F nky; Mf;ukpg;gpy; cs;s tPLfSf;F gl;lh tH';FtJ Fwpj;J cr;r ePjpkd;wj;jpy; Modification Affidavit jhf;fy; bra;a efuhl;rp eph;thfk; eltof;if vLf;f jPh;khdpf;fg;gl;lJ/ 6/ fpuptyg; ghijapy; Reverse Osmosis Kiwapy; FoePh; 09/09/2008 Kjy; tH';f Vw;ghL bra;jikf;Fk; fphptyg; ghijapd; nkk;ghl;L FGtpw;F khtl;l Ml;rpah; mYtyfj;jpy; jdp miwa[k; kw;Wk; bjhiyngrp ,izg;g[ tH';fpaikf;Fk; khtl;l eph;thfj;jpw;F ed;wp bjhptpf;fg;gl;lJ/ 7/ mz;zhkiyahh; kiyapy; cr;rePjpkd;w jPh;g;gpw;F gpwF tH';fg;gl;l kpd; ,izg;g[fis Jz;og;gjw;F kpd; thhpaj;jplk; mwpt[Wj;jg;gl;lJ/ 8/ kiyapy; cs;s Mf;fpukpg;g[fSf;F kpd; ,izg;g[ bgWtjw;fhf tl;lhl;rpah; kpd; thhpaj;jpw;F jilapd;ik brd;W tH';ff; TlhJ vd mwpt[Wj;jg;gl;lJ/ 9/ re;juyp';fk;. Vfhk;gnu!;tu; nfhtpy; mUfpy; cs;s Mf;fpukpg;g[fis mfw;w mwpt[Wj;jg;gl;lJ/ 10/ fpuptyg; ghijapy; mjpf rj;jj;Jld; bray;gLk; nfr;l; tpw;gidahsu;fs; xypbgUf;fpfis gad;gLj;j khtl;l fhty; fz;fhzpg;ghsh; mDkjpf;ff; TlhJ vd;w jPu;khdpf;fg;gl;lJ/ 11/ fpuptyg; ghijapy; kpd; jpUl;il jLf;f kpd; thhpaj;jplk; nfl;Lf; bfhs;sg;gl;lJ/ 12/ fpupty;gghijapy; 9 kPl;lUf;F nky; fl;oa[s;s fl;ol';fis mg;g[wg;gLj;j elto;fif vLf;f efuhl;rpia nfl;Lf; bfhs;sg;gl;lJ/ 13/ mga kz;lgj;jpid gGJ ghh;f;f jPh;khdpf;fg;gl;lJ/ Translated version is as follows: ".(1) Whether the Government land in the Girivalam path, circumambulate the hill, that were alienated/assigned, has been functioning as per the norms stipulated by the Government?. It shall be monitored and a report shall be submitted in that regard. (2) In respect of the Government lands, which were alienated/assigned and not used, the land alienation/land assignment shall be cancelled. (3) In order to prevent the further encroachment in the hill from Ramanaswaram till Panchiamman Temple, it has been instructed to mobilise fund from the temple fund or through some other means by constructing a preventive wall and to give a permanent identification. (4) The District Collector is requested to make arrangements to assign the lands, belonging to the Revenue Department, as Reserve Forest and for the devotees and tourists to use the hill, during regular periods and during festivals, without any hindrance from the Forest Department, and at the same time, the District Collector is requested to assign the land to the Forest Department. (5) As per the present guidelines of the Government, it has been decided that the Municipal Administration shall file modification affidavit in the Supreme Court of India, with regard to grant of patta to the houses, which have been under encroachment for more than five years. (6) We express our gratitude to the District Administration for the arrangements made to supply drinking water through Reverse Osmosis, from 09.09.2008 in the ".Girivalam". path of the hill and for having granted seperate room and telephone connection in the Office of the District Collector, for the Development Committee of the Girivalam path. (7) The Electricity Board has been instructed to serve the electricity service connection in the ".Annamalaiar Hill"., which was granted after the order passed in by the Supreme Court of India. (8) It has been instructed that the Tahsildar shall not give ".No Objection Certificate". to the Electricity Board, for obtaining electricity service connection for the encroachments, made in the hill. (9) It has been instructed to remove the encroachments made near Chandralingam and Egambareswar Temple. (10) It is resolved that the District Superintendent of Police shall not permit the audio cassette vendors, who are functioning with much noise in the Girivalam path, to use speakers.
11. The Electricity Board is requested to prevent electricity theft in the ".Girivalam". path.
12. The Municipality has been requested to take steps to remove the buildings constructed of more than nine meters in the Girivalam path.
13. It has been resolved to remove the hall meant for refugees.".
54. Among other things, Resolution No.5 passed by the Committee is to file a modification affidavit before the Hon'ble Supreme Court, by Tiruvannamalai Municipality to regularise their occupation of government poromboke lands and to grant patta to the houses, which have been under encroachment for more than five years. Resolution No.7 is to advice the Tamil Nadu Electricity Board to disconnect the service connections given, after the judgment of the Hon'ble Supreme Court. Resolution No.8 is to the effect that the Tahsildar, should not give ".No Objection Certificates". to the encroachers, to obtain electricity service connection.
55. The District Collector, Tiruvannamalai District, has not filed any counter affidavit, as to what action has been taken, pursuant to the resolutions. It is not known, as to whether, steps have been taken by the Commissioner, Tiruvannamalai Municipality, to file any modification affidavit, in the Hon'ble Supreme Court, for taking appropriate action, for issuance of house site pattas, to those, who have been in occupation of Government lands for more than 5 years, as per the then existing guidelines. Resolution No.5 clearly indicates that the Committee has taken a decision that the lands are not longer required.
56. When a resolution has been passed by the Committee, in 2008, to file a Modification Affidavit, it could be seen that there is a deviation from the stand of the Committee. Earlier, in 2005, for removal of encroachments, directions were sought for, but subsequently, the Committee constituted to carry out the developmental works, had suggested in the affidavit, dated 03.10.2005, for removal of encroachments. But in the year 2008, it has taken a decision to file a modification affidavit in the Hon'ble Supreme Court. Nevertheless, the Committee has also resolved to advice the Electricity Board, to disconnect the electricity service connection, granted, after the judgment of the Hon'ble Supreme Court and advice the Tahsildar, not to issue any ".No Objection Certificate"..
57. Regulation 2(x) of the Tamil Nadu Electricity Distribution Code, 2004, defines the word, Occupier as the person in occupation (whether as owner or otherwise) of the premises, where electricity is used or intended to be used. The word occupier is defined in the same manner, in Regulation 2(p) of the Tamil Nadu Electricity Supply Code, 2004. The above definition clearly convey that any person, who intends to use electricity, can seek for supply.
58. As per the Regulation 27(4) of the Tamil Nadu Electricity Distribution Code, 2004, an intending consumer who is not the owner of the premises, shall produce a consent letter in Form 5 of Annexure III, to the Tamil Nadu Electricity Distribution Code, from the owner of the premises, for electricity supply. If the owner is not available or refuses to give a consent letter, the intending consumer shall produce proof of his/her being in lawful occupation of the premises and also execute an indemnity bond in Form 6 of the Annexure III to this code, indemnifying the licensee against any loss on account of disputes arising out of effecting service connection to the occupant and acceptance to pay security deposit, twice the normal rate.
59. The word ".occupier"., means any person in occupation (whether as owner or otherwise) of the premises, where electricity is used or intended to be used, has been expanded in the Tamil Nadu Electricity Distribution Code, 2004, to an intending consumer also, who is not the owner of the premises, but in ".lawful occupation"., of the same.
60. The issue, as to whether, persons in occupation of Government poromboke lands, can also been given electricity service connection, has been considered by the Tamil Nadu Electricity Regulatory Commission. Regulation 27(12) has been amended, vide Commission's Notification No.TNERC/DC/8-3, dated 31.05.2006, with effect from 21.06.2006. Before the amendment, the said regulation stood as follows: Supply shall be given in poromboke land on production of necessary documents as per the directive from the Government from time to time. After the amendment, as per the above notification, the amended Regulation reads as follows: (12) Supply shall be given in poromboke land on production of- (i) No Objection Certificate obtained from the Officer (not below the rank of Deputy Tahsildar) or (ii) Where such No Objection Certificate could not be produced by the applicant for service connection the following undertaking shall be furnished:- (1) ".I am aware that I am liable to be evicted and for supply disconnection at any time, if the lands are required by the Government and/or any dispute arises at a later date and that electricity supply given in this regard will not confer any claim on ownership of the land. (2) I am aware that the above undertaking shall not confer permanent and full right to the ownership of the land.".
61. At this juncture, it is also worthwhile to extract Forms 3 and 6 in Annexure-III, dealing with applications for hut service and Indemnity Bond, with reference to Regulation 27(3) and (4), as follows: FORM-3 APPLICATION FOR HUT SERVICE (Refer clause 27(3) (Form of requisition for supply of Low Tension Energy 40 Watts to huts in Panchayats) To The Engineer of the Licensee Sir, 1. I hereby request you to supply electrical energy to my hut described below:
2. I agree to pay for energy, service connection meter rent and other charges including security deposit as demanded in accordance with the regulations prescribed by Tamil Nadu Electricity Regulatory Commission.
3. I wish to be charged under Tariff under schedule of the TNERC tariff order dated.
4. I agree to receive supply only for 40 W lamp and utilize the energy for my hut described hereunder and I agree that the authorities may disconnect the service connection in case I utilise the energy above 40 W.
5. In case I sell or otherwise dispose of the hut, I agree to give one Calendar month notice in writing and pay all the arrears to the Licensee.
6. I will make arrangements to make the single point wiring for lighting in my hut in accordance with the Code provisions and the safety rules prescribed by the Authority . I request the Licensee to provide single point wiring for lighting in my hut and the necessary payment will be made by me.
7. Self Declaration The service connection applied for the hut is owned by me and a) it is built in my patta land (Land Tax Receipt is enclosed) b) it is built in the private land and No Objection Certificate obtained from the landowner is enclosed. c) it is built in the poromboke land and No Objection Certificate obtained from the Officer (not below the rank of Deputy Tahsildar) is enclosed. d) It is built in the poromboke land and I furnish the following undertaking,- (1) I am aware that I am liable to be evicted and for supply disconnection at any time if the lands are required by the Government and / or any dispute arises at a later date and that electricity supply given in this regard will not confer any claim on ownership of the land. (2) I am aware that the above undertaking shall not confer permanent and full right to the ownership of the land. (Delete clause not applicable) 8. Description of the premises (a) Name of the applicant (b) Father's Name (c) Adi Dravidar / Other Castes (d) Survey No./ identification of hut (e) Area of hut (f) Whether the hut constructed with clay soil / thatched roof (g) Village and Taluk (h) Tenanted by (Name in block letters) (i) Applicants correspondence address Signature of the Consumer/ left thumb impression FORM-6 (To be obtained in a stamped paper). (Refer clause 27(4) Indemnity Bond from the occupier when there is no consent letter from owner. Indemnity Bond to be furnished by an intending consumer who is not the owner of the premises and applies without the consent of the owner. DEED OF INDEMNITY THIS DEED OF INDEMNITY EXECUTED ON THIS, THE ..................DAY OF ...........TWO THOUSAND ............by Thiru./Tmty....................... S/o. D/o W/o...................... residing at ................................. having office / workshop at ..........................................hereinafter called the indemnifier (which terms shall mean and include executors, administrators, heirs, successors and assigns) to and in favour of the (name of Licensee and address), a body corporate, hereinafter called the Licensee (which terms shall mean and include its successors in office and assigns). WHEREAS the consumer has taken on lease the premises in Door No.................for the purpose of......... from Thiru./Tmty ....................................S/o D/o W/o......... residing at ................................ who is the owner of the above said premises. AND WHEREAS the consumer has approached the said owner of the premises to give his /her consent in writing to avail of a service connection in his/her name for the purpose of his / her business. AND WHEREAS the said owner is not available/has refused to give his/her consent in writing for the purpose. AND WHEREAS the indemnifier has requested the Licensee to give a service connection in his/her name subject to execution of an indemnity bond by him/her indemnifying the Licensee against any damage or loss caused to the Licensee in respect of the service connection in his/her name. AND WHEREAS in consideration of the acceptance of the above for a service connection in his/her name, the indemnifier hereby agrees to indemnify the Licensee against all proceedings, claims, demands, costs, damages, expenses which the Licensee may incur by reason of a fresh service connection given to the indemnifier without the consent of the owner of the premises. The indemnifier further undertakes to make good any sum that may be found to be and become payable to the Licensee with regard to all liabilities and claims personally as well as by means of both movable and immovable properties. The indemnifier agrees that the enhanced Security Deposit paid by him shall be adjusted against the arrears of current consumption charges but also against any claim that may arise in the event of termination of the agreement prior to the expiry of the contracted period. The indemnifier further undertakes that the Licensee shall be at liberty to disconnect the service connection given to him/her , and also for loading the dues remaining unpaid by him/her to other service connection (s) that may stand in his/her name. NOW THE CONDITION OF THE above written bond is such that if the indemnifier shall duly and faithfully observe and perform the above said conditions, then the above written bond shall be void, otherwise the same shall remain in full force. IN WITNESS WHEREOF Thiru/ Tmty ............................................the indemnifier has signed this deed on the day month and year herein before first mentioned. SIGNED AND DELIVERED BY In the presence of Witness (Name and Address)- 1.
2. 62. Representations made to the District Administration to issue ".No Objection Certificates"., gives a clear indication that they are in occupation of Government poromboke lands. A combined reading of Regulation 27(12) with the application Form, for Hut service as provided in Form-3, makes it clear that a person, requiring electricity service connection, should obtain a ".No Objection Certificate". from the officer, not below the rank of Deputy Tahsildar or where such ".No Objection Certificate". could not be produced by the applicant, for service connection, he must give an undertaking, as stated supra.
63. The Memo, dated 29.11.2005, runs contrary to Regulation 27(12) read with Form-3 of Annexure-III, by which, persons in occupation of poromboke land, can seek for supply of electricity, by giving an undertaking that they are aware that they would be evicted and for disconnection of supply, at any time, if the lands are required by the Government, and/or any dispute arises at a later point of time. Supply of electricity would not confer any claim on ownership of the land.
64. When the Tamil Nadu Electricity Regulatory Commission, a Statutory body, constituted under the Act, in exercise of powers, conferred under Sections 46 and 86 of the Electricity Act, 2003, has framed the Tamil Nadu Electricity Distribution Code, a delegated legislation, this Court is of the view that the decision of the Joint Action Committee meeting held on 23.11.2005, which has culminated into a Memo, dated 29.11.2005, not to provide electricity connection to those, who reside in poromboke lands, inside/outside Girivalam path, till a separate decision is taken, after consulting the Municipal authorities, Panchayat authorities and Revenue Department runs contrary to the delegated legislation. The decision taken by the Committee cannot either directly or indirectly curtail the rights of the occupants, in poromboke lands, for getting electricity connection. When the delegated legislation, by devising a procedure, enables the occupant of poromboke lands, upon satisfying the requirement, to seek for electricity supply, the decision of the Committee, in effect and substance, has gone beyond the same. Anything done or ordered to be done, contrary to the delegated legislation cannot be approved, as a valid action, falling within the statutory provisions of electricity laws.
65. When Tamil Nadu Electriciy Distribution Code, 2004, makes it mandatory on the licencee, to provide electricity supply, to those, who are in occupation of poromboke lands, on production of ".No Objection Certificate"., from the Officer, not below the rank of Deputy Tahsildar or where no such No Objection Certificate could not be produced by the applicants for service connection and when the applicants can give an undertaking or declaration, stated supra, the licencee cannot deny electricity service connection to the petitioners, who have substantiated their continuous occupation and also admitted by the 2nd respondent, in his counter affidavit.
66. Lack of electricity supply is one of the determinative factors, affecting education, health, cause for economic disparity and consequently, inequality in the society, leading to poverty. Electricity supply is an aid to get information and knowledge. Children without electricity supply cannot even imagine to compete with others, who have the supply. Women have to struggle with firewood, kerosine, in the midst of smoke. Air pollution causes lung diseases and respiratory problems. Electricity supply to the poor, supports education and if it is coupled with suitable employment, disparity is reduced to certain extent. Lack of education and poverty result in child labour.
67. When right to education upto the age of 14 years is a fundamental right, when right to health is also recognised as a right to life, under Article 21 of the Constitution of India, access to electricity supply should also be considered as a right to life, in terms of Article 21 of the Constitution of India. The respondents ought to have addressed all the issues, instead of banking on the Committee's decision, which in the humble opinion of this Court, is not in aid of human right, but inapposite to the need for, providing the basic amenity, electricity. The authorities ought to have considered, whether it would be effective enforcement of Article 21 or Article 21-A of the Constitution of India, while denying the petitioners, access to electricity supply.
68. The respondents ought to have visualised the difficulties of the women, children and aged persons, living in the huts for several years, without electricity. Electricity supply is an essential and important factor for achieving socio-economic rights, to achieve the constitutional goals with sustainable development and reduction of poverty, which encompasses lower standards of living, affects education, health, sanitation and many aspects of life. Food, shelter and clothing alone may be sufficient to have a living. But it should be a meaningful purpose. Lack of electricity denies a person to have equal opportunities in the matter of education and consequently, suitable employment, health, sanitation and other socio-economic rights. Without providing the same, the constitutional goals, like Justice, Liberty, Equality and Fraternity cannot be achieved.
69. Right to electricity to a person in occupation of Government poromboke lands is recognised in the Distribution Code and it is integral to the achievement of socio-economic rights. It is extricably related to amolerate poverty. Electricity is an implicit component and facet of human right. In the light of the above discussion, the respondents ought to have come forward to provide electricity supply to the petitioners, instead of opposing the relief sought for.
70. Access to electricity should be construed as a human right, of course, to the requirements to be satisfied under the electricity laws. Denial of the same, upon even satisfying the requirements, would amount to violation of human rights. The action of the respondents is regressive. Electricity supply under the Electricity Act, the Distribution and Supply Code, is a legal right. At this juncture, this Court deems it fit to consider the meaning of the word, 'right' and few decisions, as to when a Mandamus, can be sought for, 71. The word ".right, or in its plural form ".rights,". is a common term, of broad signification. It is a generic, abstract, and comprehensive term, having a wide scope of meaning in its various legal applications, and it has no satisfactory definition or explanation, except in connection with some concrete conception of thing out of which it grows. It may mean any legal right as the word is normally used, or it may be limited to some specific one of the large class of recognised ".rights.". It may be a right to do something, to have something, to be something, or even to let alone; it may refer to a right or privilege to use a highway or other public facility, or to utilise one of the great institutions of nature, or, on the other hand, it may refer to personal liberty, security, health, or property.
72. In Wharton's Law Lexicon, the word 'Right' means; 1) is a legally protected interest 2) is an averment of entitlement arising out of legal rules 3) right is an interest recognised and protected by moral or legal rules 4) right, comprehends every right known to the law.
73. In K.J.Aiyar's Judicial Dictionary, the word 'Right' means; 1) a right is a legally protected interest, 2) a right is an interest which is recognised and protected by law.
74. In Stroud's Judicial Dictionary, the word 'Right' means, is where one hath a thing that was taken from another wrongfully, as by disseisin, discontinuance, or putting out, or such like, and the challenge or claime that he hath who should have the thing, is called right.
75. In State of Kerala v. A.Lakshmi Kutty reported in 1986 (4) SCC632 the Supreme Court held that a Writ of Mandamus is not a writ of course or a writ of right but is, as a rule, discretionary. There must be a judicially enforceable right for the enforcement of which a mandamus will lie. The legal right to enforce the performance of a duty must be in the applicant himself. In general, therefore, the Court will only enforce the performance of statutory duties by public bodies on application of a person who can show that he has himself a legal right to insist on such performance. The existence of a right is the foundation of the jurisdiction of a Court to issue a writ of Mandamus.
76. In Raisa Begum v. State of U.P., reported in 1995 All.L.J.
534, the Allahabad High Court has held that certain conditions have to be satisfied before a writ of mandamus is issued. The petitioner for a writ of mandamus must show that he has a legal right to compel the respondent to do or abstain from doing something. There must be in the petitioner a right to compel the performance of some duty cast on the respondents. The duty sought to be enforced must have three qualities. It must be a duty of public nature created by the provisions of the Constitution or of a statute or some rule of common law.
77. In Mr.'X' Vs. Hospital 'Z' reported in (1998) 8 SCC296 while considering the right of privacy and the violations of personal rights, the conflict between fundamental right of the parties, at paragraph No.15, the Apex Court explained the word ".right". as follows: ".RIGHT". is an interest recognised and protected by moral or legal rules. It is an interest the violation of which would be a legal wrong. Respect for such interest would be a legal duty. That is how Salmond has defined the ".Right".. In order, therefore, that an interest becomes the subject of a legal right, it has to have not merely legal protection but also legal recognition. The elements of a ".LEGAL RIGHT". are that the ".right". is vested in a person and is available against a person who is under a corresponding obligation and duty to respect that right and has to act or forbear from acting in a manner so as to prevent the violation of the right. If, therefore, there is a legal right vested in a person, the latter can seek its protection against a person who is bound by a corresponding duty not to violate that right. 78. Writ of mandamus cannot be issued merely because, a person is praying for. One must establish the right first and then he must seek for the 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 in a series of decisions. (a) In the decision reported in (1996) 9 SCC309(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 SCC150(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 SCC280(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. 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.
79. 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. 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) 80. A writ of Mandamus, can be issued by the court, in its discretion, for which, it must be shown that, there is a non discretionary legal duty upon the authority against whom, the relief is sought for and that the person approaching the High Court under Article 226 of the Constitution of India, has to prove that he has a legal right to be enforced against the authority, for the failure of performance of a legal or statutory duty, by the authority against whom, the relief is sought for.
81. Removal of encroachment is different, from entitlement to seek for electricity supply. The law applicable for removal of encroachment and the mandatory duty to provide electricity, under the electricity law, are different and distinct. The delegated legislation, taking note of occupation of those in poromboke lands, has recognised them as ".occupiers"., entitled to seek for electricity supply, and in such circumstances, while removal of encroachment can be done, as per the procedure under the Encroachment Laws, supply of electricity cannot be denied to the ".occupier". of poromboke lands. When statutory provisions do not differentiate a owner and occupier for the use or intended to use, electricity supply even by a person in occupation of poromboke lands, denial of electricity supply by the respondents, to the petitioners, who are in occupation, atleast from 2005 onwards, amounts to discrimination and violative of Article 14 of the Constitution of India.
82. From the materials on record, it could be deduced that atleast from 2005 onwards, the petitioners are residing, in and around Girivalam path, without electricity supply. Food, Shelter and clothing are the basic amenities for living. Water is indispensable. Though the District Administration and Commissioner, Tiruvannamalai Municipality, have claimed that the petitioners are encroachers, in and around Girivala Pathai, they cannot be expected to live in darkness. Even an occupant in a Government poromboke land, is entitled to seek for a decent living with basic amenities, like water, food, shelter and clothing. Electricity is indispensable. In the wake of the statutory provisions, it would be inappropriate to contend that the petitioners are not entitled to electricity supply. As stated supra, though the Municipality and District Administration, in the year 2005, have decided to remove the encroachments, much water has flown under the bridge and things have changed in the year 2008, when the Committee has decided to file a modification affidavit to regularise their occupation, ie., to assign house site pattas, in terms of Government Orders.
83. As between the owner and an intending consumer, who is not the owner of the premises, it is suffice that the intending consumer, produces a consent letter in Form 5 of Annexure III of the Distribution Code from the owner of the premises for availing supply. If the owner is not available or refuses to give consent letter, the intending consumer shall produce proof of his/her being in lawful occupation of the premises and also execute an indemnity bond in Form 6 of the Annexure III of the code indemnifying the licensee against any loss on account of disputes arising out off effecting service connection to the occupant and acceptance to pay security deposit twice the normal rate.
84. In the case of those, who reside in Poromboke lands, to produce a ".No Objection Certificate from the Officers, not below the rank of Deputy Tahsildar and if such certificate is not produced, an undertaking is sufficient. In the light of the statutory provisions and for all the reasons, stated supra, this Court is of the view that the petitioners are entitled to seek for electricity service connection.
85. The issue as to whether the petitioners are entitled to pattas, in the places, where they now reside, cannot be adjudicated in this writ petition.
86. Before parting with the case, it is my humble view that when lot of devotees visit the temple, and go around the Girivalam Path, hoping that 'God' would fulfil their aspirations, answer their prayers, pardon them, for their sins and wrong doings, and offer their prayers, with things, starting from flowers to Gold, why should the Committee, hopefully comprising of God fearing persons, should deny them even 'basic lighting', in the families of poor laundary workers, solely, on the ground that they do not own a place for living. At this juncture, this Court is reminded of a saying, ".ViHapd; rphpg;gpy; ,iwtid fhz;fpd;nwd;/". When a mechanism legally devised is available in the Code framed under the Electricity Act and admittedly, when they are residing in the place, from 2005 onwards, this Court is of the view that there is a failure on the part to discharge their statutory duties.
87. It is the fundamental duty of the respondents to show compassion to those who are living in huts and tenements for long number of years, taking into consideration their socio-economic disabilities, without electricity supply for many years. Preamble to the Constitution of India guarantees right of every person to justice, social, economic and political. When socio and economic justice is the mandate of the Constitution of India, it is a traversity of justice to deny electricity to the petitioners. Income is one of the sources for achieving an egalitarian society and it is the fundamental right to decent living. Providing electricity to the poor, subject to the satisfying conditions, as per the electricity laws, would reduce the economic imbalance and help the under privileged. The authorities should be pragmatic and realistic to the constitutional goals. The weaker sections and under privileged do not crave, in their heart, for power in hierarchical positions, they only want electric power to have ".lighting". in their house. Hut dwellers cannot expect and afford luxury. But for them, it is only a basic amenity. Electricity supply should, not only be extended to pattadars or the owners of lands, but it should also be extended to the poor and the needy, who live in government poromboke lands, when they substantiate occupation, for a considerable period.
88. On the facts and circumstances of the case, the respondents are directed to consider the case of the petitioners and provide electricity connection, based on their applications, along with the necessary undertaking and Indemnity Bond, to be submitted by them. Electricity supply to be granted, within a period of four weeks from the date of receipt of the applications and other requirements. No costs. Consequently, connected Miscellaneous Petition is also closed. 27.09.2013 Index: Yes Internet: Yes skm To 1. The District Collector, Tiruvannamalai District, Tiruvannamalai.
2. The Superintending Engineer, Tamil Nadu Electricity Board, Tiruvannamalai. W.P.No.17608 of 2013