1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 14.06.2011 CORAM: THE HONOURABLE MR.JUSTICE B.RAJENDRAN Writ Petition (MD)No.1868 of 2011 and MP(MD)No.1 of 2011 Muthu Lakshmi Murugesan ..Petitioner Vs. 1.The Superintending Engineer(Metro) Tamil nadu Electricity Generation and Distribution Corporation, K.Pudur, Madurai-7. 2.The Assistant Engineer, Tamil Nadu Electricity Board, Jaihindpuram Distribution Circle, Madurai. ..Respondents Prayer: Writ Petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Mandamus, directing the respondents to consider the representation dated 16.02.2011 and consequently direct the respondents to remove the pole erected by them to install a transformer in R.S.No.69/1, Ward No.62, Jaihindpuram, Nethaji Street, Madurai for an extent of 4 cents 163 ½ sq.feet. For Petitioner : Mr.S.M.P.Amalan For Respondents : Mr.M.Sureshkumar ORDER The petitioner has filed this writ petition for a writ of Mandamus, directing the respondents to consider the representation dated 16.02.2011 and consequently to direct the respondents to remove the pole erected by them to install a transformer in R.S.No.69/1, Ward No.62, Jaihindpuram, Nethaji Street, Madurai for an extent of 4 cents 163 ½ sq.feet. 2.According to the petitioner, the property in question is a vacant site and he owned the property adjoining the vacant site and the poles have been erected at the time of filing of this writ petition and they are trying to install the transformer and if it is installed his right in access to the property will be effected. Therefore, he has submitted a representation seeking them to remove https://hcservices.ecourts.gov.in/hcservices/ 2 the transformer/poles already erected mainly on the ground that he is in possession of the property. 3.Learned counsel for the respondents brought to the notice of this Court that the poles were erected not in the property of the petitioner but it is erected only on the road adjoining to his property. He would contend that even in the sale deed which has been produced by the petitioner which is available on the typed set of papers it is very clearly stated the description of property that there is a common path way which is 20 feet road. Therefore, it is situated in the public road, the petitioner cannot have any grievance at all. Hence, the question of considering the alleged representation itself does not arise when he has no right over the same. He further would contend that erection work has been completed and only energising work is pending and only because of the interim injunction granted by this Court, they could not proceed further. 4.Heard the submissions made by the learned counsel on either side. 5.The only grievance of the petitioner is that the respondent is trying to erect the transformer after installing the poles in his property. But now, learned counsel for the petitioner fairly admitted that it is situated in the road and for the road, he has given 10 feet from his land which is 20 feet road and the ten feet was originally given by him now it was converted as road, therefore, he is affected. But the fact remains that the poles which have been erected is in the public road even as per the title deed produced by the petitioner himself wherein it has been clearly stated that it is a road which can be utilised for public including to transmit the electricity service connection line. Under these circumstances, the petitioner cannot now have any grievance at all that the installation of the poles and erection of the transformer is in his property whereas it is situated only in the public road. Furthermore, Mandamus seeking for considering his representation will not arise. In this connection, it is relevant to refer the decision of the Division Bench of this Court in M.Ingaci Vs. The Commissioner, Devakottai & Others, reported in 2010-2-L.W.785, to which I was also a party. In the said decision, following the Supreme Court decision, this Court has held that an application that could not even be considered, cannot be directed to be considered by the authority. Therefore, very strongly opposes the application of this nature and the maintainability of the application also. The Supreme Court in the case of A.P.SRTC Vs. G.Srinivas Reddy, reported in (2006) 3 SCC 674 = 2006-3-L.W.170, had observed as follows:- “19.There are also several instances where unscrupulous petitioners with the connivance of "pliable" authorities have misused the direction "to consider" issued https://hcservices.ecourts.gov.in/hcservices/ 3 by court. We may illustrate by an example. A claim, which is stale, time- barred or untenable, is put forth in the form of a representation. On the ground that the authority has not disposed of the representation within a reasonable time, the person making the representation approaches the High Court with an innocuous prayer to direct the authority to "consider" and dispose of the representation. When the court disposes of the petition with a direction to "consider", the authority grants the relief, taking shelter under the order of the court directing him to "consider" the grant of relief. Instances are also not wanting where authorities, unfamiliar with the process and practice relating to writ proceedings and the nuances of judicial review, have interpreted or understood the order "to consider" as directing grant of relief sought in the representation and consequently granting reliefs which otherwise could not have been granted. Thus, action of the authorities granting undeserving relief, in pursuance of orders to "consider", may be on account of ignorance, or on account of bona fide belief that they should grant relief in view of the court's direction to "consider" the claim, or on account of collusion/connivance between the person making the representation and the authority deciding it. Representations of daily-wagers seeking regularisation/absorption into regular service is a species of cases, where there has been a large-scale misuse of the orders "to consider". 6.Following the Apex Court's judgment cited supra, a Division Bench of this Court, in M.Ingaci Vs. The Commissioner, Devakottai & Others, reported in 2010-2-L.W.785, had in para 8 observed:- “.... 8. Why we are extracting this judgment in such detail is that we should be aware of the consequences of our order when we direct the authorities to "consider". In the aforesaid situation, if the learned Judge, before directing the authorities to consider, had heard the petitioner herein, then the order of the Division Bench reprimanding the 5th respondent would have been brought to the notice of the learned Single Judge. Some time, we also come across cases where our directions is to an authority who cannot really pass an effective order and the effective order can only be passed by an authority superior to the one to whom we issue directions. Obviously, when the order is not complied with, since it cannot be complied with because of the hierarchy discipline, the officer has to face the contempt. All these can be avoided if we only bear in mind the https://hcservices.ecourts.gov.in/hcservices/ 4 guidelines given in the above case by the Supreme Court before we direct the respondent to "consider and pass orders". 7.Accordingly, the writ petition fails and the same is dismissed. No costs. Consequently, connected miscellaneous petition is closed. Sd/- Assistant Registrar(C.O.) /True Copy/ Sub Assistant Registrar To 1.The Superintending Engineer, Tamil nadu Electricity Generation and Distribution Corporation, K.Pudur, Madurai-7. 2.The Assistant Engineer, Tamil Nadu Electricity Board, Jaihindpuram Distribution Circle, Madurai. sms akm/24.06.11 /4p-3c/ Writ Petition (MD)No.1868 of 2011 14.06.2011 https://hcservices.ecourts.gov.in/hcservices/