IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.10.2009 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR Writ Petition Nos.23864, 23325, 21707 of 2008 and M.P.Nos.1, 1 ,1, 2 ,2 ,2, of 2008 A.Iyasamy President, TamilNadu Electrical (EB) Licensed Contractor's Central Association (Regd. 49/68) ... Petitioner in W.P.No.23864 of 2008 M.Chellappa President, TamilNadu Thaniar Minn Paniyalargal Mathia Sangam, ... Petitioner in W.P.No.23325 of 2008 Pon Krishnan The TamilNadu Min Oppendakarargal and Min-innaippukkarargal Central Association ... Petitioner in W.P.No.21707 of 2008 Vs. 1.Member/Accounts Accounts Branch, TamilNadu Electricity Board, No.144, Anna Salai, Chennai-600 002. 2.The Chairman, Distribution, TamilNadu Electricity Board, Electricity Avenue,l 800, Anna Salai, Chennai-600 002. 3.The Secretary to Government Department of Electricity, Fort St.George, Chennai-600 009. ... Respondents in all the the Writ petitions. Prayer in all the Writ Petitions: Writ of Certiorarified Mandamus calling for the records relating to the impugned order bearing No.CFC/GL/FC/DFC/AAO/ Rev/D.131/2008 dated 20.06.2008 on the file of the first respondent herein, quash the same and consequently direct the respondents herein to insist and obtain signatures of the Electrical Licensed Contractors for Low Tension Connections as mandated under Rule 45 of the Indian Electricity Rules, 1956. For petitioners : Mr.K.Govi Ganesan and M/s. Satish Parasaran & T.T.Ravichandran For Respondents : Mr.A.Selvendran, TNEB for RR1 & 2 Mr.P.Subramanian, AGP, for R3 COMMON O R D E R The petitioners in W.P.Nos.23864, 23325, 21707 of 2008 namely, Mr.A.Iyasamy, President, TamilNadu Electrical (EB) Licensed Contractor's Central Association (Regd. 49/68), and Mr.M.Chellappa, President, TamilNadu Thaniar Minn Paniyalargal Mathia Sangam, Mr.Pon Krishnan, The TamilNadu Min Oppendakarargal and Min-innaippukkarargal Central Association respectively, have challenged the impugned circular dated 20.06.2008, issued by the Member/Accounts Accounts Branch, TamilNadu Electricity Board, Chennai, the first respondent, and consequently prayed for a direction to the respondents to insist and obtain the signatures of the Electrical Licensed Contractors in the application form to be submitted by the consumers for Low Tension Service Connections and to follow the mandate under Rule 45 of the Indian Electricity Rules 1956. 2. As pleadings and submissions advanced by the learned counsel appearing for the parties are common, the Writ petitions, are being disposed of by a common order. Facts of the case are as follows: The Writ petitioners are Associations registered under Trade Union Act, and the members of the association are Licensed Contractors and Wireman, authorised to install electrical works in Low Tension Service, for which electrical connections are given by TamilNadu Electricity Board. The members of the petitioner's Associations are granted certificates of competencies periodically, for the purpose of carrying out electrical installations, and to issue certificate of competency, before the electrical installation work is carried out, and for the purpose of granting test certificate, to effect electricity connection in Low Tension Services. 3. The petitioners have submitted that as per rule 45 of the Indian Electricity Rules 1956, no electrical installation work including additions, alterations, repairs, and adjustments of the existing installations, for the purpose of supply of electricity shall be carried out, on behalf of any consumer except by a Licenced Electrical Contractor on his behalf by the State Government, and under the direct supervision of the persons holding the certificate of competency. 4. It is further submitted that, as per the practice, if any consumer wants to obtain supply of electrical energy, necessary forms would be submitted to the Board along with, the signatures of the Licensed Contractors. After the submission of the application, the test report in form 'D' would be submitted by the consumer prescribed by the Electricity Board, and that the same has to be certified by the Licenced Contractors, and thereafter installations would be inspected for the purpose of granting electricity supply. Thus as per the practice, the respondents would insist and obtain the signatures of the Electrical Licenced Contractor in Low Tension Service Connection Application Forms and also in the Test Report, in the prescribed Format. 5. The petitioners have further submitted that earlier, the respondents issued a circular dated 31.10.2000, by which, the condition to obtain the signatures of the Licensed Contractors in the application forms and the declaration, that has to be made in the test report was dispensed,and the aforesaid order passed by the Board had the effect of diluting the mandate contained in Rule 45 of the Indian Electricity Rules 1950. Therefore, Writ petition were filed in W.P.Nos.19616 and 19618 of 2000 to quash the said circular. This Court allowed the Writ Petitions, holding that the statutory requirements of certification by the Licensed Contractors are a positive requirement and that the application form, which is also a part of the statute as prescribed, cannot be amended or altered without invoking the rule making power and the same cannot be done by an administrative order. 6. The petitioners have further submitted that thereafter, the first respondent issued a circular dated 05.04.2002, stating that the signature of the wiring contractors shall be obtained in the application forms prescribed for Low Tension Service connections and in the original test report, thereby, giving effect to the orders passed by this Court in the above said Writ petitions. Inspite of the circular dated 05.04.2002, some of the field officers of the respondent Board did not insist for the signatures of the Licensed Contractors in the application forms and on the contrary, permitted wiremen to construct electrical installation in Low Tension Service to the consumers. In these circumstances, the Board passed an order on 15.09.2005, stating that the TamilNadu Electricity Regulatory Commission had given directions to the Chief Electrical Inspector to give effect to section 53 (A) of the Electricity Act 2003. Inspite of the directions granted by the Board, again some of the field officers did not insist on obtaining the signatures of the Electrical Licensed Contractors in the application forms submitted by the consumers. Therefore, the associations' were constrained to send representations dated 25.01.2008, 27.03.2008 and 24.06.2008 bringing it their notice that the statutory provisions contained in Indian Electricity Rules have not been given effect to. The first respondent by impugned circular has revised the instructions issued earlier and directed the Superintending Engineers of the respective districts, stating that the signatures of the wiring contractors in Low Tension Service application forms are not required and the signatures of the Licenced Wiring contractors have to be obtained in the Test Report in form-B. In these circumstances, the writ petitioners have approached this Court, for the relief as stated supra. 7. While entertaining the Writ petitions this Court, has granted interim stay of the impugned circular. The Secretary, TamilNadu Electricity Board, Chennai, in his counter affidavit filed on behalf of respondents 1 & 2 have submitted that the TamilNadu Electricity Board is bound by the provisions of the TamilNadu Electricity Supply and Distribution Code as specified by the TamilNadu Electricity Regulatory Commission(hereinafter called as Commission). In exercise of the powers conferred upon it by the Electricity Act 2003, Electricity Supply and Distribution Code was notified in the Official Gazette of the Government of TamilNadu. 8. In regulation No.27 of the TamilNadu Electricity Supply and Distribution code, the commission has inter-alia prescribed the terms and conditions of supply of electricity. In Form No.1 appended to the said Code the Commission has specified the Form of requisition of supply of Low Tension Energy(single phase/three phase). In the Form so specified, there is no provision for obtaining the signature of the electrical contractors by the competent authority. Therefore, the respondent Board has issued a Circular dated 20.06.2008, which is in accordance with the statutory provisions of the TamilNadu Electricity Supply and Distribution Code. 9. The respondents have further submitted that the provisions of the Code have come into force from 01.09.2004 onwards, and therefore, the impugned Circular which is issued in accordance with the provisions of the Code cannot be questioned at this point of time, and therefore, the Writ petitions are to be dismissed inlimini. 10. Referring to Rule 45 particularly sub rule 2 of the Indian Electricity Rules, the respondents 1 & 2 have submitted that the statutory rules do not cast upon any duty on the part of the Board to obtain the signatures of the electrical contractors in the application forms. It is further submitted that, sub rule 2 would come into operation only when an occasion arises, to energize i.e., power supply by the Board, to the consumer's installation, on payments of necessary charges and on satisfaction of the conditions prescribed for supply of electricity, and also after satisfying that the consumer has produced a declaration/certificate issued by the consumers/electrical contractor in the test report at the time of connecting the power supply, electricity to the consumer's main, to the board i.e., while effecting the service connection. 11. The respondents 1 & 2 have further submitted that the Writ petitions have been filed for unlawful gain, more particularly to harass the field officials of the Board and general public namely, the intending consumers, who would be forced to engage the electrical contractors even for submission of application forms, for getting service connection from the Board. 12. The respondents have further submitted that, Rule 139 of the Indian Electricity Rules, would apply only to the consumers/owner/occupier, the contractor (if any) or the person through whom the work is being or was carried out and the person under whose immediate supervision the work is being or was carried out. 13. Referring to the statutory provisions of the Code, the respondents 1 & 2 have contended that earlier, the orders issued by the Board in Circular dated 31.10.2000, was based on the terms and conditions of supply, as formulated by the Board in exercise of his powers under the Repealed Electricity (supply) Act 1948, but while issuing the present Circular the Board has followed the statutory provisions of the Code framed by the TamilNadu Electricity Regulatory Commission and therefore, there is no illegality in the impugned circular. 14. The respondents have further submitted that after the enactment of Electricity Act 2003, the TamilNadu Electricity Regulatory commission, has framed the TamilNadu Electricity Distribution and Supply Code and that the same has to be followed by the Board (licensee). As per the said, Code in the application form (Form No.1) of requisition for LT service connection for LT energy there is no provision for obtaining the signatures of the licensed wiring contractors, but the declaration/certificate by the electrical contractor/consumer is certainly a requirement in the test report. 15. According to the respondents 1 & 2, the test report will be taken only after remittance of necessary charges for the new electricity service connection. In the test report, two forms are available Form "A" and Form "B". In Form A, the consumer should give a certificate that the electrical installation works were carried out by "X" under the direct supervision of the licensed Chief Electrical Inspector to government. In Form "B", the licensed wiring contractor should give a declaration/certificate that the wiring works were carried out as per the Indian Electricity Rules and Regulations. Based on the declaration given by the consumer, and the licensed certified wiring contractor the TamilNadu Electricity Board would effect service connection. 16. The respondent 1 & 2 have submitted that there is no contravention of rule 45 of the Indian Electricity Rules 1956, after the introduction of the Electricity Act 2003 and the code. It is further submitted that before the enactment of the Electricity Act 2003, and introduction of the formation of the TamilNadu Electricity Regulatory Commission, orders were issued in Board proceedings (ch) No.5 dated 05.04.2002 restore the Original Low Tension application and the procedure for getting Low Tension Electricity Supply connection. The Electricity Board is bound to follow the provisions of the code and as such, there is a necessity to issue the impugned Circular. The respondents 1 & 2 have submitted that the petitioners have not established any legal or statutory right to insist that the consumers should obtain the signatures of the licenced contractors in the applications to be submitted by them for effecting Low Tension Electricity Supply. For the above said reasons, they prayed for dismissal of the Writ petition. 17. Referring to rule 45 of the Indian Electricity Rules 1956, and the Circular memo No 1075/05 dated 19.05.2005, of the TamilNadu Electricity Board, Mr.K.Govi Ganesan, Learned counsel for the petitioners submitted that inasmuch, as the Indian Electricity Distribution Code has not dispensed with the statutory requirement as laid down in rule 45(1) of the Electricity Rules, the field officers were instructed to obtain the signatures of the electrical wiring contractors who are licensed in the application forms notified in the TamilNadu Electricity Distribution Code and in the test report. He also brought to the notice of this Court, that the Chief Financial Controller (General), TamilNadu Electricity Board, Chennai, in his letter No.71 dated 25.01.2006, addressed to the President, TamilNadu Private Licensed Contractors Association, has stated that all the Chief Engineers and Superintending Engineers of the distribution circles were instructed to implement the above said circular memo dated 15.09.2005, issued by the Member, Distribution TamilNadu Electricity Board, and therefore there is absolutely no reason to supersede the same by the impugned order. 18. Placing strong reliance on the decision of this Court made in TamilNadu Minn Oppanthatharargal and another, TamilNadu, represented by its Secretary, and another, reported in 2002 WLR 130 learned counsel for the petitioners submitted that the impugned Circular is contrary to the orders passed by this Court, and as long as rule 45 of the Indian Electricity Rules remains intact, the first respondent has no jurisdiction to issue a circular, contrary to the statutory requirements as laid down under rule 45(1) of the Indian Electricity rules. 19. learned counsel for the petitioners further submitted that when rule 45 of the Indian Electricity Rules mandates that all electrical installation works have to be carried out, only by the electrical licensed contractors and under the direct supervision of the persons holding the certificate of competency, by virtue of the impugned circular, any person without a proper competency certificate can install the electrical works and thereby, the safeguards which are provided under the statute would be ignored by the field officers and in such an event, the Board would be failing in its duty to implement the statutory provisions. 20. He further submitted that though the Board has contended there is a change in distribution supply code there is no change in the rule, which mandates signatures from the licensed contractors at the time of submission of the application forms for low tension electricity supply. 21. Referring to rule 139 of the Indian Electricity Rules, Learned counsel for the petitioner further submitted that, if the electrical installation works including additions, alterations, repairs, adjustments of existing installments for the purpose of supply of electricity is carried out by an unlicensed electrical contractor on behalf of any consumer, then the contractor who gives the test report and declaration will be liable for penal action under Rule 139 of the rules and therefore, the first respondent has no jurisdiction or authority to dispense with the requirement of obtaining the signatures of the licensed contractors. For the above said reasons, he prayed that the impugned Circular should be set aside. 22. Heard the learned counsel for the parties and perused the materials available on record. 23. The Electricity Act, 2003, which has come into force with effect from 10.06.2003. Act 36 of 2003, is intended to consolidate the laws relating to the generation, transmission, distribution, trading and use of electricity and generally for taking measures conductive to the development of electricity industry promoting competition therein, protecting interest of consumers and supply of electricity to all areas, rationalisation of electricity tariff, ensuring transparent policies, constitution of Central Electricity Authority, Regulatory Commission and establishment of Appellate Tribunal and for matters connected therewith and incidental thereto. As per section 50, the State Commission shall specify an Electricity Supply Cod to provide for recovery of electricity charges, intervals for billing of electricity charges disconnection of supply of electricity for non-payment thereof; restoration of supply of electricity; tampering, distress or damage to electrical plant, electric lines or meter, entry of distribution licensee or any person acting on his behalf for disconnecting supply and removing the meter; entry for replacing, altering or maintaining electric lines or electrical plant or meter. As per Section 82, every State Government shall, within six months from the appointed date, by notification, constitute for the purposes of this Act, a Commission for the State to be known as the (name of the State) Electricity Regulatory Commission. 24. Rule 45 and 139 of the Indian Electricity rules are extracted here: Rule: 45 Precautions to be adopted by consumers, owners, occupiers, electrical contractor,electrical workmen and suppliers.--(1) No electrical installation work, including additions alterations, repairs and adjustments to existing installations, except such replacement of lamps, fans, fuses, switches, low voltage domestic appliances and fittings as in no way alters its capacity or character, shall be carried out upon the premises of or on behalf of any consumer, supplier, owner, or occupier, for the purpose of supply to such consumer, owner, or occupier except by an electrical contractor licenced this behalf by the State Government and under the direct supervision of a person holding a certificate of competency and by a person holding a permit issued or recognized by the State Government: Provided that in the case of works executed for or on behalf of the Central Government and in the case of installations in mines, oil-fields and railways, the Central Government and in other cases the State Government may, by notification in the Official Gazette, exempt, on such conditions as it may impose, any such work described therein either generally or in the case of any specific class of consumers, suppliers, owners or occupiers, from so much of this sub-rule as requires such work to be carried out by an electrical contractor licenced by the State Government in this behalf. No electrical installation work which has been carried out in contravention of sub-rule (1) shall either be energised or connected to the works of any supplier. 25. Rule:139 penalty for breach of Rule 45.-- Where any electrical installation work of the nature specified in sub-rule (1) of Rule 45 has been carried out otherwise than (a) under the direct supervision of a person holding a certificate of competency issued by the State Government under that rule; and (b) In the absence of any applicable exemption under the proviso to sub-rule of that rule, by an electrical contractor licenced by the State Government in this behalf; the consumer, owner or occupier, the contractor (if any) or the person through whom the work is being or was carried ut and the person under whose immediate supervision the work is being carried out, shall each be punishable with fine which may extend to three hundred rupees. 26. Pleadings disclose that the TamilNadu Electricity Regulatory Commission in exercise of the power conferred under section 50 of the Act has formulated the TamilNadu Electricity Supply and Distribution Code, and that the same has been notified in the Government gazette on 01.09.2004. The Supply and Distribution Code formulated by the Regulatory Commission has to be followed by the Board (Licensees) and also by the consumers who apply for electricity service connection. They are also bound to follow the regulations regarding, supply, tariff, and such other matters provided therefor in the code. 27. Regulation 27 of the TamilNadu Electricity Supply and Distribution Code deals with the terms and conditions of the supply of electricity Form 1 appended to the code, relates to the application form for LT service connection except agriculture. Prior to the introduction of the Electricity Supply and Distribution Code the consumers have to obtain the signatures of the wiring contractor with their Seal and address. 28. As per the Code, the test report, will be taken only after remittance of necessary charges for new electricity service connection. The test report consists of two forms. Form A has to be furnished by the consumer. In addition to the particulars of domestic electrical appliances, like lights fans etc., the consumer has to give a declaration that electrical installation in his/their premises were carried out by one "X" who holds the contractor's licence issued by the electrical wireman supervisor and contractor licensing Board, Chennai, and that the work was carried out under the direct supervision of 'Y' holding the certificate of competency. Form "B" is a declaration of the contractor and the person holding the certificate of competency who are responsible for construction of installation. The Form prescribed by the Board prior to the introduction of the code is as follows: FORM-I TamilNadu ELECTRICITY BOARD FORM OF REQUISITION FOR SUPPLY OF LOW TENSION ENERGY (Except Agriculture and Hunts) Applicant's Name : Father/Husband Name : Address : For Office Use Tariff No. Reg.Fees: Receipt No. & Date To The Assistant Engineer/ Regn.No Mere Service/ Junior Engineer Regn.Date Extension T.N.E.B. ........................................(Section Office) Sir/Madam, 1. I request you to supply electrical energy to the premises here in after described. 2. I agree to pay the tariff as notified from time to time for the energy supplied through the service connection and other dues including the current consumption and additional current consumption deposit as may be demanded and revised by the board from time to time. 3. I will avail supply under......(Domestic/Pub.lighting & water supply/Recog.Edu instns., etc./actual places information technology industries/Commercial). 4. I agree to take supply for more than two years and utilise the energy in the premises described hereunder. 5. In case, I sell or otherwise dispose of the property/vacate the premises while the supply is continued in my name, I agree to give one calendar month/seven days notice in writing and pay all the arrears to the Board. Failing such notice, I hold myself responsible for all the charges payable in the service including energy consumed in the premises even after my vacation or dispossession. 6. Description of Premises: Door No. Street Town/Village Taluk Owned by (name in Block letters) Tenanted by (Name in Block letters) 7.The following are my requirement: Lighting number & wattage Total: Points/Wattage Lights Fans Domestic electrical appliance cookers Water heaters Refrigeration Other purpose Wall plugs 5 amps -do- 15 amps Motors: Industrial Pumps Other purposes 8. I declare that I............................................ am the legal owner or lawful occupier of the above said premises. 9. I declare that there is no disconnected service in my building and no court case in pending and no objection for the building to get service connection and that the meter board is placed at convenient height to take meter reading. 10. (A) For mere service connection from overhead lines only: I declare that I. My building is within 36.56 meters (120 feet) from nearest TNEB Pole. II. the vertical clearance of the service connection wire is well within the clearance from the ground as per Indian Electricity Act and Rules framed thereunder. (The clearance as of now is) III. Service connection wire is with enough way leave or I am enclosing no objection letter from the concerned, if it crosses the other's concerned building/Land. IV. No L.T./H.T./E/H.T. Lines crosses in any way over by build (B)For service connection involving extension, I agree to pay the difference in estimate charges. (C) I hereby undertake to provide space as per Board requirement in out premises if the total floor area is 900 sq.mts. And above for erection of Board equipments. 11. I/We, undertake and certify that all the particulars and information furnished above are true, correct, complete and upto-date in all respects to the best of my knowledge and also undertake to indemnify the TamilNadu Electricity Board against any loss caused to it as a result of effecting electric supply to the said premises on the strength of such particulars and information. I further agree that case any of the particulars or information furnished above is found to be false at the time of effecting service connection or at a later date, the electric supply to the premises