S.A. Ponnappan v. J.A. Bathurujaman

IN THE HIGH COURT OF JUDICATURE AT MADRASDate:- 15.04.2009CoramThe Honourable Mr. Justice P. JYOTHIMANIandThe Honourable Mrs. Justice ARUNA JAGADEESANW.A. No.1396 of 2007andM.P. No.2 of 2007 S.A. Ponnappan... Appellant/ 3rd Respondent ..Vs..1. J.A. Bathurujaman...ISt Respondent/ Petitioner2. The Tamil Nadu ElectricityBoard, rep. by its Chairman, Anna Salai, Chennai – 600 002.3. The Junior Engineer, Operation and Maintenance, Tamil Nadu Electricity Board, Padi, Chennai – 600 050.... Respondents 2 and 3/ Respondents 1 and 2Appeal filed against the order dated 30.08.2007 passedin W.P. No.20103 of 2007 on the file of this Court presented underArticle 226 of Constitution of India to issue a writ of mandamusdirecting the 2nd respondent to give electricity serviceconnection in the name of the petitioner in respect of the shopbearing door No. 262 M.T.H. Road, padi, Chenani 600 050 occupiedby the petitioner as tenant .For Appellant: Mr. M. DevendranFor Respondents : Mr. P. Rathnavel for R1 Mr. A. Selvendran for R2 and R3 https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT(Judgment was delivered by P. JYOTHIMANI, J.)The third respondent in the writ petition has filed thisappeal, aggrieved over the order dated 30.08.2007 passed by thelearned Judge in W.P. No.20103 of 2007, by which, the learnedJudge has directed the Electricity Board to provide electricityconnection to the first respondent herein within a period of twoweeks.2. The appellant, who is the landlord of the shoppremises bearing Door No.262, M.T.H. Road, Padi, Chennai – 600050, leased out the same to the first respondent herein on amonthly rent of Rs.1,150/-. The appellant appears to have filedR.C.O.P. No.5 of 2006 on the file of the District Munsif Court,Ambattur for eviction against the first respondent on the groundof wilful default in payment of rent and the said petition ispending. 3. It is the case of the first respondent that theappellant/landlord has failed to pay the electricity charges,which resulted in disconnection of electricity. In suchcircumstances, the first respondent filed a petition in R.C.O.P.No.16 of 2007 on the file of the District Munsif Court, Ambatturunder Section 17 of the Tamil Nadu Building (Lease and RentControl) Act, 1960 for restoration of electricity supply. Thefirst respondent also filed M.P. No.27 of 2007, praying forinterim restoration of electricity service connection. LearnedRent Controller, by an order dated 10.4.2007, granted interimorder, permitting restoration of electricity supply. 4. The allegation of the first respondent is that inspite of this interim order, the same was not complied with by theappellant. At the same time, the appellant-landlord filed apetition to set aside the ex parte interim order on the basis thatthe first respondent is in arrears of rent, apart from payment ofelectricity charges and the said petition is also pending beforethe learned Rent Controller.5. In the meantime, taking note of the fact that theappellant-landlord refused to provide electricity connection, thefirst respondent herein approached the Electricity Board viz.second and third respondents herein for restoration of electricityconnection. When the said respondents failed to do the same, thefirst respondent filed the aforesaid writ petition for restorationof electricity connection. Learned Judge, taking note of theprovisions of the Tamil Nadu Electricity Distribution Code, 2004 https://hcservices.ecourts.gov.in/hcservices/ (hereinafter referred to as "Code") and also taking note of thefact that the first respondent is in lawful occupation, directedthe Electricity Board to restore electricity connection, if thefirst respondent complied with all the requirements as per theRegulations of the Electricity Board. 6. Mr. Devendran, learned counsel appearing for thelandlord-appellant would vehemently contend that once the firstrespondent-tenant approached the Rent Controller under Section 17of the Tamil Nadu Building (Lease and Rent Control) Act, 1960 forthe purpose of restoration of electricity connection, especiallywhen there is a provision for interim order and the same has alsobeen obtained, it is for the first respondent to work out hisremedy before the Rent Controller under the Tamil Nadu Building(Lease and Rent Control) Act, 1960, which is a special enactmentfor rent control proceedings.7. Learned counsel appearing for the appellant alsosubmits that the first respondent is in arrears of rent and evenhe refused to pay the arrears of electricity charges. When thefirst respondent was not in lawful occupation, it is not properfor the learned Judge to direct the Electricity Board to restoreelectricity connection.8. On the other hand, learned counsel appearing for thefirst respondent submitted that when the landlord/appellant hasdeliberately refused to obey the interim order of restoration ofelectricity connection granted by the learned Rent Controller,the first respondent is definitely right in invoking the writjurisdiction for restoration of electricity connection. As perRule 27 of the Code, the first respondent can request forelectricity supply. 9. The Code was notified by the State ElectricityRegulatory Commission as per Notification No. TNERC/SC/7/1 dated21.7.2004 by virtue of the powers conferred under the ElectricityAct, 2003 (Central Act 36 of 2003). Rule 27 of the Code dealswith requisitions for supply of energy. In the said Rule, withregard to supply, Clause 4 reads as follows:-"An intending consumer who is not the ownerof the premises he occupies shall produce aconsent letter in Form 5 of Annexure III tothis Code from the owner of the premises foravailing the supply. If the owner is notavailable or he refused to give consent letterthe intending consumer shall produce proof ofhis/her being in lawful occupation of thepremises and also execute an indemnity bond in https://hcservices.ecourts.gov.in/hcservices/ Form 6 of the Annexure III to this Codeindemnifying the licensee against any loss onaccount of disputes arising out of effectingservice connection to the occupant andacceptance to pay security deposit twice thenormal rate."10. The above provision makes it clear that an intendingconsumer, who is in lawful occupation, can apply to theElectricity Board, with the consent of the landlord, for supply ofelectricity. In case if the owner refused to give consent letteror he is not in station, the consumer shall produce a proof thathe is in lawful occupation of the premises and also execute anindemnity bond in Form 6 of the Annexure III to this Codeindemnifying the Electricity Board against any loss on account ofdisputes arising out of effecting service connection. 11. In such view of the matter, when there is a provisionas enacted by the State Electricity Regulatory Commission inaccordance with Section 86 of the Electricity Act, 2003 (CentralAct 36 of 2003), certainly the lawful occupant has a right tohave the electricity supply and if he is compelled to lead hislife in darkness, it would amount to make him lead an animal life,which is not the purport of the Constitution. Therefore, we areof the view that the said Clause confers such valuable right tothe occupant. 12. As per Section 10(2)(1) of the Tamil Nadu Buildings(Lease and Rent Control) Act, 1960 (hereinafter referred to as"the Act"), the landlord can approach the Rent Controller foreviction of the tenant on the ground of wilful default of paymentof rent etc. and get remedy. It is the contention of the landlordthat when the first respondent/tenant has already approached theRent Controller by filing a petition under Section 17 of the Act,he should not have approached the writ Court. It is not as if thelandlord is left in lurch. In the circumstances, where the tenantis in default and when the rent control proceedings is pending,the landlord has a right to approach the Rent Controller underSection 11 of the Act for an appropriate direction. 13. In such view of the matter, it is not possible toaccept the contention of the appellant as if when there is aneffective alternative remedy available to the first respondent, heought not to have approached the Electricity Board for the purposeof restoration of electricity supply. We see no reason tointerfere with the order passed by the learned Judge. The writappeal fails and the same is dismissed. Consequently, theconnected M.P. is also dismissed. https://hcservices.ecourts.gov.in/hcservices/

14. Considering the fact that the appellant, being thelandlord, has filed eviction petition on the ground of wilfuldefault and the tenant has also approached the Rent Controller forrestoration of electricity under Section 17 of the Code, we areinclined to direct the Rent Controller to dispose of both thepetitions at an early point of time. It is submitted that therent control petition is posted to 1.6.2009. Hence, the learnedRent Controller is directed to dispose of both R.C.O.Ps. at anearly point of time, by giving opportunity to both the parties,in any event within a period of four months from 1st June, 2009 andreport the same to this Court. No costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.ssa.To1. The Chairman, The Tamil Nadu Electricity Board, Anna Salai, Chennai – 600 002.2. The Junior Engineer, Operation and Maintenance, Tamil Nadu Electricity Board, Padi, Chennai – 600 050.3. The Rent ControllerDistrict Munsif, Ambatturcopy toThe Section OfficerJudicial Department (AF Section)High Court, Madras (For watching report)1 cc to Mr.P. Rathnavel, Advocate, SR. 140331 cc to MR.M. Deveneran, Advocate, Sr. 13992W.A. No.1396 of 2007 andconnected M.P.RSY (CO)kk 21/4