IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 21.09.2011 CORAM: THE HON'BLE MR.JUSTICE V.DHANAPALAN WRIT PETITION NO.17479 and 18041 OF 2011 AND M.P.NOs.1, 1, 2 and 2 OF 2011 C.V.Thirugnanam .. Petitioner in both Writ Petitions Versus 1. The District Collector, Coimbatore District, District Collectorate, Coimbatore. 2. The Tahsildar, Coimbatore North Taluk, Coimbatore. 3. The Superintending Engineer, CEDC/METRO, Tamil Nadu Electricity Board, TANGEDCO, Tatabad, Coimbatore. 4. The Executive Engineer, CEDC/METRO, Tamil Nadu Electricity Board, TANGEDCO, Coimbatore Corporation Buildings, Town Hall, Coimbatore-641 045. 5. The Assistant Executive Engineer, CEDC/METRO, Tamil Nadu Electricity Board, TANGEDCO, Puliakulam, Coimbatore-641 045 https://hcservices.ecourts.gov.in/hcservices/ 6. Members of K.S.S.Nagar Kudiyiruppor Nala Sangam, rep. By its Secretary, N.Narayanan, Kallakuzhi, behind Pakshiraja Studio, Puliyakulam road, .. Respondents Puliakulam, Coimbatore-641 045. in both Writ Petitions (R6 impleaded as per order dated 29.7.2011 by MP.2/11 IN WP 17479/11) 7. The Junior Engineer Tamil Nadu Electricity Board, Puliyakulam, Coimbatore-45. .. 7th Respondent in WP.No.18041/11 (R7 Suo-moto impleaded as per order dated 2.8.2011) Prayer: These Writ Petitions are filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Mandamus and Writ of Certiorari, for the reliefs as stated hereinunder. For Petitioner: Mr.P.Valliappan For Respondents: Mrs.V.M.Velumani, Spl.G.P. for R1 and R2 Mr.S.K.Rameshwar, Standing counsel for TNEB for R3 to R5 Mr.K.Kalyanasundaram for R6 **** COMMON ORDER In W.P.No.17479 of 2011, the petitioner has sought for the issuance of a Writ of Mandamus, to forbear the respondents from providing electricity service connection to anyone in respect of the petitioner's property situate in T.S.Nos.1668/4B and 4C, Puliyakulam village, Coimbatore North taluk, Coimbatore-641 045 in contravention of the electricity laws. 2. In W.P.No.18041 of 2011, the petitioner has sought for the issuance of Writ of Certiorari, to call for the records of the first respondent pertaining to the proceedings in Ref.Rc.No.83/2011/CA, dated 20.07.2011 and quash the same. 3. The brief facts which led to filing of these writ petitions can be stated as under: https://hcservices.ecourts.gov.in/hcservices/ 3.1. According to the petitioner, he is the absolute owner of the property measuring a total extent of Acre 6.8 ½ situate in T.S.Nos.1668/4B and 4C, Puliyakulam village, Coimbatore North taluk, Coimbatore and the same is evidenced by registered sale deed dated 29.07.1909 in favour of the father of the petitioner, namely, Verivada Chettiyar and registered partition deed between the petitioner and his brothers, dated 30.4.1928. The said property was also dealt with under registered partition deeds dated 17.05.1945 and 18.3.1967 among the family members of the petitioner. On 17.10.2006, the second respondent by his proceedings in MTR No.1829/2006 has passed orders for transfer of patta in the name of the petitioner. Patta and other revenue records also stand in the name of the petitioner and no one has any right over the property. 3.2. The case of the petitioner is that some strangers claiming to be in possession of the aforesaid property, filed writ petitions in W.P.Nos.18463 and 18464 of 2010 before this Court, praying for a direction to the respondents 3 to 5 to provide electricity service connection though they were not in lawful possession over the property. The Electricity Act does not authorise the respondents 3 to 5 to give electricity service connection to the persons who are not lawful occupants of the property and there was no justification to seek the electricity service connection to a property which is not owned by them. By order dated 30.8.2004, this Court disposed of the above said writ petitions, directing the respondents therein to hold an enquiry in respect of the property in question and if the petitioners therein established that they are in legal occupation of the property, to consider the claim for providing electricity connection. Pursuant to the said order, the 2nd respondent conducted a detailed enquiry and by letter dated 13.12.2010, held that aforesaid persons who filed the writ petitions were illegal occupants in the patta land of the petitioner and consequently rejected the demand for electricity service connection. Thereafter, the petitioner and his family members have filed a suit in O.S.No.530 of 2011 before the I Additional District Munsif, Coimbatore for declaration and permanent injunction over the property in question and the said same is pending. 3.3. While that be so, the residents of Kallaukuzhi approached the District Collector, Coimbatore/first respondent made a representation seeking electricity connection. Based on the said representation, the first respondent by proceedings in Rc.No.83/2011/CA dated 20.07.2011 requested the 3rd respondent to provide electricity service connection to the residents of Kallakuzhi area residents. Pursuant to the same, the respondents 3 to 5 started to erect the poles and forming E.B.lines on a war footing manner, which is contrary to the earlier orders of this Court. Aggrieved by the same, the petitioner has made a representation and also sent a legal notice on 22.7.2011, requesting the respondents to drop the proposed action. However, since no action was taken by the respondents, the petitioner has come forward with these writ petitions, praying to forbear the respondents 3 to 5 from providing electricity service connection and to quash the proceedings https://hcservices.ecourts.gov.in/hcservices/ of the first respondent in Rc.No.83/2011/CA dated 20.07.2011. 4. On the above background of the pleadings and after hearing the learned counsel on either side on 2.8.2011, this Court passed the following order: "Heard the learned counsel for the petitioner. It appears that this Court, by its order, dated 30.8.2010 made in W.P.Nos.18463 and 18464 of 2010, directed the Junior Engineer, Tamil Nadu Electricity Board, Puliyakulam, Coimbatore-45, 1st respondent in those writ petitions, to issue notice to both the petitioners and the 3rd respondent in the writ petitions, calling them to appear for an enquiry to establish their case pertaining to the property in question. The grievance of the petitioner in these writ petitions is that, that opportunity – as directed by this Court – was not given. However, the petitioner has not made the concerned Junior Engineer in this Writ Petition. Considering the fact that he is a necessary party for effective adjudication of this writ petition, learned counsel for the petitioner is hereby permitted to implead the said Junior Engineer, Tamil Nadu Electricity Board, Puliyakulam, Coimbatore-45, as party respondent in this writ petition, in the Open Court. 2. Mr.G.Vasudevan, learned counsel appearing for the Tamil Nadu Electricity Board takes notice for R.3, R.4, R.5 and R.7. Mrs.V.M.Velumani, learned Special Government Pleader takes notice for R1 and R2. To enable both the learned counsel to take instructions, post the matter on 5.8.2011 at the end of 'Motion List'." 4.1. Thereafter, on 16.8.2011, this Court passed further orders as under: "In these matters, the claims and rival claims of the respective parties are to be clarified by the status report in respect of the lands in question and the claim of the parties as on date to be reported by the District Collector, Coimbatore District, the first respondent herein and therefore, the learned Special Government Pleader is directed to file a report from the District Collector, Coimbatore, stating the details about the lands in question as well as the claim of the respective parties." 4.2. Further, as there was no report received from the respondents, on 12.09.2011, this Court, after taking note of the earlier orders, granted one more week's time to the respondents to file the status report. Accordingly, on 20.09.2011, the District Collector, https://hcservices.ecourts.gov.in/hcservices/ Coimbatore in his proceedings in Lr.No.20464/2010/B1, dated 15.09.2011, filed the status report, which reads as under: "In connection with Writ Petitions W.P.Nos.17479/2011, and 18041/2011 pending before the Hon'ble High Court, Chennai and in pursuance of the directions of Hon'ble Judge of High Court, Chenni I herewith submit my status report in this case. "A vast extent of land in T.S.No.1668/1,2,3 and 4 in Puliyakulam village of Coimbatore (North) Taluk is called as Kallukuzhi. This was previously an unused quarried area. This is a waste land and unused by the owner of the land. This land was occupied by landless and houseless poor for some 80 years back. There are about 331 families in this area as per latest enumeration. The occupants being poor have spent their valuable money and have constructed tiled houses huts and pucca houses. These houses were bequeathed by their legal heirs with some alterations then and there. Most of the people are employed under the category daily wages within the locality as the land is within the city limits. As per the land records the land stands in the name of Thiru.C.V.Thirugnanam but the enjoyment rights are disputable since the lands in question are in adverse possession of the land owners by means of uninterrupted possession of the land continually by the occupants and a suit to decide the ownership of the land is pending on the file of District Munsif Court, Coimbatore in O.S.No.106/2010 and O.S.No.758/2010. The details of families residing in the area, their occupation, their monthly income etc., are appended herewith. There are about 294 children in the area out of which 285 go to school/College for education. Some basic amenities were already provided to the residents like common water connection etc. From the time since the occupation of land, the residents don't have electricity connection and after representations some of the residents have file writ petitions before the Hon'ble High Court, Chenni in W.P.Nos.19766/2010 to 19770/2010 to direct the Electricity Board to provide electricity connections. The Hon'ble High Court, Chennai while disposing the above writs have ordered that the first respondent (Junior Engineer, TNEB, Puliyakulam) should decide whether the petitioners are entitled to electricity connections as per clause 27(4) of the distribution code. That apart, https://hcservices.ecourts.gov.in/hcservices/ the first respondent may also require the petitioners to execute indemnity bond for providing electricity connections. In another Writ Petitions filed by Tvl.R.Jothilakshmi and M.Saminathn to provide electricity connections in Writ Petition Nos.18463/2010 and 18464/2010 before the Hon'ble High Court, Chennai, the High Court in its common order dated 30.08.2010 has held that the first respondent (Junior Engineer, TNEB) should hold enquiry and pass appropriate orders in accordance with law. In both the cases the Assistant Executive Engineer, TNEB, Puliakulam has rejected the petitioners claim for providing electricity connections citing code 27(4) of Tamil Nadu Electricity Distribution Code. "Meanwhile on 18.07.2011, many school going and residents of Kallukuzhi area people of Puliyakulam Village, Coimbatore (North) Taluk have given a petition to the Collector, requesting electricity connection to their houses. They expressed that they are residing in this area for more than 80 years and they have been denied of electricity connection for no fault of them and their education is affected because they could not study in the night, do their home work etc. On enquiries, it was found that there is lot of truth in their contention that the residents of Kallukuzhi are residing in this area for a long time. However, it was found that the civil rights and patta are under some dispute and as on date they have no patta in their name. Further it was found that the authorities have no locus standi to prevent the electricity connection on the basis of the records to prove their civil right and as per law, the long term occupation itself confers possessional rights on the people. "Further, it was found that as on date, all the people residing in this area are effectively possessing the land by way of constructing tiled houses, huts and pucca houses and the human life and their comforts, their future education, present education should not be affected because of lack of electricity in this modern developed stage, that too in a city like Coimbatore. Hence the Superintending Engineer (CEDC Metro) TANGEDCO, Coimbatore was requested vide Collector letter No.83/2010/CA dated 20.07.2011 to give Electricity connection to these households until the legal dispute come to an end and continue the supply of https://hcservices.ecourts.gov.in/hcservices/ electricity until the dispute come to a finality. "Now the land owner who doesn't have enjoyment rights over the land has filed the writ petitions in W.P.No.17479/2011 and 18041/2011 to forebear the authorities to provide electricity connections to the residents and also to quash the letter of District Collector in No.83/2011 CA dated 20.07.2011. The Assistant Executive Engineer, Puliyakulam/CEDC/Metro, Coimbatore in his letter has stated that all the above seven writ petitioners have been provided with electricity connections and further 66 nos.of applications were registered by the residents of the area from 02.08.2011 and in order to effect the service connections to the registered applications a new 100 KVA/11 KV Distribution Transformer was proposed and the work is under progress and after completion of work the service connections will be effected. This is the present status as on date. "I wish to add the following points with the status report: "1.Enquires reveals that the people residing in the Kallukuzhi area are residing for 80 years and they have possessional and enjoyment rights and thus have the advantage of adverse possession as per records submitted by them and hence eligible for electricity connections and basic amenities. "2. When the claim for ownership of the land was not made before proper legal forum all these 80 years by the land owner, the question of raising the issue belatedly now seems to be an after thought. "3.Further the dispute of ownership among the residents and the owner of the land is pending on file of District Munsif, Coimbatore in O.S.No.758 of 2010 and there is a stay granted by the District Munsif, Coimbatore in this case favouring the residents. Another Civil Suit in O.S.No.106 of 2010 is also pending on the file of District Munsif, Coimbatore regarding the ownership dispute. "4. As per 285 latest enumeration there are about 331 families in the area. There are about 285 school and College going children in the area. They are leading a miserable life without electricity connection and their education is seriously jeopadarised and there are about 9 dropouts due to non-availability of electricity. A legal dispute of ownership should not be a constraint to achieve the objects of education and https://hcservices.ecourts.gov.in/hcservices/ running the day to day life of the occupants. "5. The Socio economic condition of the people residing in the area is very low and hence provision of basic amenities is a must for their upliftment of the people and hence in order to provide specific relief to the suffering people a decision was taken to provide electricity connection without prejudice to the ownership suits, in the public interest. "6. Apart from being respondent in two civil suits the land owner has filed a civil suit in O.S.No.530 of 2011 before the District Munsif, Coimbatore for claiming ownership of land and the same is pending. "7.Pending of ownership claims could not be a hindrance to provide basic amenities to the people who are living the area for a long time. "8.Finally without prejudice to the civil suits pending it may be submitted before the Hon'ble High Court that as against the rights of the paper-owner in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possessor who has for a long period of time cared for the land, developed it as against the owner of the property who has ignored the property. These poor people have took all pain to developing this land and for fault of the owner whose claims for ownership is belated, they cannot be deprived of electricity connection. Further, School going children cannot be deprived of education by depriving electricity. "9.Further, all the residents there are eligible for electricity connections subject to the finality of civil suits by means of submitting Deed of Indemnity (In cases where the owner is not available or refused to give his consent in writing to provide electricity connection) and this right cannot be denied. "I enclose herewith report of Tahsildar, Coimbatore (North) along with enumeration of families, records submitted by them to prove their occupation in the land for long period etc., I request that the Hon'ble High Court may kindly be apprised of these facts and also the right the plight of poor people living without electricity for a long time and dismiss the two writ petitions." 5. In the light of the above position, the petitioner claims his title over the property in question whereas, the members of the 6th https://hcservices.ecourts.gov.in/hcservices/ respondent claim right over the same property by adverse possession stating that they have been in possession of the property for the past eighty years by constructing the houses and huts therein. In fact, the claims of the respective parties is the subject matter of a civil suit in O.S.No.758 of 2010 pending before the District Munsif, Coimbatore. Apart from the said suit, another suits in O.S.No.106 of 2010 and 530 of 2011 were filed before the said District Munsif Court, Coimbatore claiming ownership of the property. 6. Therefore, the claims of the petitioner as well as the members of the 6th respondent had been sub judice before the District Munsif Court, Coimbatore. Therefore, it is for the parties to establish their respective claims over the property in the manner known to law by adjudicating the civil suits before the concerned District Munsif Court, Coimbatore. 7. As far as the reliefs sought for in these writ petitions are concerned by the petitioner, viz., i)to forbear the respondents from providing electricity service connection to anyone in respect of the petitioner's property situate in T.S.Nos.1668/4B and 4C, Puliyakulam village, Coimbatore North taluk, Coimbatore-641 045 in contravention of the electricity laws ii)to quash the proceedings of the first respondent dated 20.7.2011, in and by which, the first respondent requested the Superintending Engineer (CEDC Metro), Coimbatore to provide electricity to members of the 6th respondent, it is to be noted from the comprehensive report submitted by the District Collector, Coimbatore that the land comprised in T.S.No.1668/1, 2, 3 and 4 in Puliyakulam village over which, the petitioner and the members of the 6th respondent claim their title, was occupied by landless and houseless poor for the past 80 years back and there are about 331 families living in the said area by constructing tiled houses and huts and though as per the revenue records, the said land stands in the name of the petitioner, however, the the members of sixth respondent are in uninterrupted physical possession and they filed civil suits claiming adverse possession. In such circumstances, having taken note of these facts, the first respondent/District Collector sent a letter dated 20.7.2011 to the third respondent/Superintending Engineer (CEDC Metro), requesting him to provide electricity connection in the said area. The said letter, dated 20.7.2011 sent by the District Collector reads as under: "On 18.7.2011, many school going children and residents of Kallukuzhi area people of Puliakulam village, Coimbatore (North) Taluk have given a petition to the Collector in the Grievance Day requesting electricity connection to their houses. They expressed that they are residing in this area for more than 80 years and they have been denied of electricity connection for no fault of them and their education is affected because they could not https://hcservices.ecourts.gov.in/hcservices/ study in the night, do their home work etc. On oral enquiries, I found there is lot of truth in their contention that the residents of Kallukuzhi are residing in this area for a long time. However, the civil rights and patta are under some dispute and as on date they have no patta in their name. However, I find that the authorities have no locus standi to prevent the electricity connection on the basis of the records to prove their civil right. As per law, the long term occupation itself confers possessional rights on the people. "As on date, all the people residing in this area are effectively possessing the land by way of constructing tiled houses, huts and pucca house. The human life and their comforts their future education, present education should not be affected because of lack of electricity in this modern developed stage, that too in a city like Coimbatore. Hence I request you to immediately give Electricity connection to these households until the legal dispute come to an end and continue the supply of electricity until the dispute come to a finality. Erection of poles and forming of EB lines for this purpose to be taken by you in a war footing manner." 8. Therefore, keeping in view of the above narrated facts and circumstances and having regard to the fact that the members of the 6th respondent have been residing over the land for the past 80 years and the plight of the students who are residing there, I am of view that the relief sought for in the writ petitions by the petitioner to restrain the officials of the Electricity Board to provide electricity to the said area on the ground that they are not the owners of the property, cannot be justified. Electricity is one of the essential basic amenities for everyone to live and without the same, the common living condition would be malaise and miserable and also the education of the students would be affected. Therefore, considering the socio, economic condition of the people residing in the area, in order to provide basic amenity of electricity to them which is a must for their upliftment, this Court is inclined to direct the respondents to proceed with the proposed action of giving electricity by invoking the provisions of Clause 27(4) of the Tamil Nadu Electricity Supply Distribution Code, 2004, which safeguards the interest of both parties, namely, the land owner and the persons who are residing in the property for which electricity service connection is sought for and it is always subject to the establish of ownership in the manner known to law. However, it is to be noted that providing electricity by invoking under this provision would not confer any right or title on the person who gets electricity service connection. It is relevant to extract Clause 27(4) of the Tamil Nadu Electricity Distribution Code, 2004 as under: https://hcservices.ecourts.gov.in/hcservices/ "An intending consumer who is not the owner of the premises, he occupies shall produce a consent letter in Form 5 of Annexure III to this Code from the owner of the premises for availing the supply. If the owner is not available or he 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 to this Code indemnifying the licence against any loss on account of dispute arising out of effecting service connection to the occupant and accept to pay security deposit twice the normal rate." 9. Therefore, on a perusal of the above, it is clear that the occupant of the premises who is not the owner, can avail the electricity on producing proof of his being in lawful occupation of the premises as well as executing an indemnity bond and making security deposit in the event of any loss arising out of effecting such service connection. 10. It is admitted fact that the members of the 6th respondents have been in occupation of the premises for the past several years and even claiming the ownership over the said property, they filed a civil suit and it is pending before the civil Court. In such circumstances, the members of the 6th respondent are certainly entitled to avail the electricity. However, it is made clear that providing the electricity service connection to the members of the 6th respondent itself does not confer any right or title over the property and it is always subject to the outcome of the civil suits pending before the civil Court. 11. In view of the above facts and circumstances, the respondents 3 to 5 are directed to provide electricity to the area wherein, the members of the 6th respondent are living, by invoking provisions under Clause 27(4) of the Tamil Nadu Electricity Supply Distribution Code, 2004 and subject to compliance of the terms and conditions envisaged therein by the 6th respondent. As regards