TAMIL NADU ELECTRICITY OMBUDSMAN 19- A, Rukmini Lakshmipathy Salai, (Marshal Road), Egmore, Chennai – 600 008.

Phone : ++91-044-2841 1376 / 2841 1378/ 2841 1379 Fax : ++91-044-2841 1377

Email : tnerc@nic.in Web site : www.tneo.gov.in

BEFORE THE TAMIL NADU ELECTRICITY OMBUDSMAN, CHENNAI

Present : Thiru. A. Dharmaraj, Electricity Ombudsman

Appeal Petition No.62 of 2015, Appeal Petition No. 63 of 2015,

Appeal Petition No. 65 of 2015 &Appeal Petition No. 66 of 2015

1. Tvl. N. Ramakrishnan & L. Azhakumani,Block No.7A, Flat No.9,Pristine Acres Phase – 1,Perumbakkam, Nokampalayam Road,Chennai 603 306. - A.P.No.62 of 2015

2. Tvl.Rajabharathi & Senthil Kumar,Block No.2A, Flat No.4,Pristine Acres Phase – 1,Perumbakkam, Nokampalayam Road,Chennai 603 306. - A.P.No.63 of 2015

3. Tvl. Sivakumargangadharan & VijayakumariBlock No.3C, Flat No.3,Pristine Acres Phase – 1,Perumbakkam, Nokampalayam Road,Chennai 603 306. - A.P.No.65 of 2015

4. Tvl. P.S.Ramprasad & HarilakshmiBlock No.7A, Flat No.1,Pristine Acres Phase – 1,Perumbakkam, Nokampalayam Road,Chennai 603 306. - A.P.No.66 of 2015

………..Appellants (Represented by Thiru C. Selvaraj)

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Vs

The Superintending Engineer,Chennai EDC/ South,TANGEDCO (formerly TNEB),110 KV SS Complex, K.K. Nagar,Chennai 600 078. ………..Respondent

(Rep. by Thiru Selvaraj, EE/Tambaram)

Date of hearing : 12.11.2015Date of Order : 12 .01 .2016

The Appeal petitions dated 31.7.2015 received from Thiruvalargal N.

Ramakrishnan & L. Azhakumani and Thiruvalargal Rajabharathi & Senthilkumar, were

registered as Appeal Petition No. 62 of 2015 and 63 of 2015 respectively. The Appeal

Petitions dated 10.8.2015 received from Thiru Sivakumargangadharan & Thirumathi R.

Vijayalakshmi and Thiru P.S. Ramprasad & Tmt. Harilakshmi were registered as appeal

petition Nos. 65 of 2015 and 66 of 2015 respectively.

As the subject matter of the above four appeal petitions are similar, all the above

four petitions were taken for hearing on 12.11.2015. Upon perusing the appeal petitions,

counter affidavits and after hearing both sides the following Common Order is passed

by the Electricity Ombudsman.

COMMON ORDER

1. Prayer of the Appellant:

All the Appellants have prayed to order for the payment of due compensation for

the deficiency of service committed in respect of effecting the service connection and

also to order for effecting the service connection based on the amendment to Section

27 of the Distribution Code notified on 3.12.2014.

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2. Brief history of the case:

2.1 In all the above cases the applications seeking service connection were

registered by the Respondents on 7.4.2015. The Assistant Engineer, Chithlapakkam

has requested for the completion certificate and informed to pay Rs. 8100/- towards

required charges for effecting the service connection. All the Appellants have paid the

required charges, but have not furnished the completion certificate. The service was not

effected. Hence, the Appellants have filed their petitions to CGRF of Chennai EDC/

South. The CGRF of Chennai EDC / South have issued its order on 25.7.2015.

Aggrieved by the Order of the CGRF Chennai EDC / South, the Appellants have filed

the Appeal Petitions before the Electricity Ombudsman.

3. Findings of the Forum:

3.1 The CGRF of Chennai EDC / South have issued its order on 25.7.2015. The

finding of the Forum is extracted below:-

“As per TNEB, Circular Memo No. CE/CommI!EE3/AEE 2/ F.Planning

Permission / D. No. 874/2006, dt. 22.11.2006, Planning Permit and compliance

Certificate (Completion Certificate) must be insisted in respect of

multistoried buildings and Special buildings while applying electricity Service

Connection to the said buildings. Also if the applicant fails to produce the

planning permit and compliance Certificate issued by the competent authority,

the field officials may refuse to effect Service Connection in respect of Special

buildings and multistoried buildings.

The above circular Memo was issued based on the Hon'ble High Court /

Madras directions to various departments in the W.P.No. 18898/2000,

19998/01 and 24316/02 and W.P.No. 17646/2006 dt. 23.8.2006 regarding

regularization of building deviating the planning permission.

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In TANGEDCO Memo No. CE/CommI/EE3/AEE2/F.Planning Permission/

D.653/12, DT. 3.12.12, the definition for Special buildings has been stated as

follows:

a) a residential or commercial buildings with more than 2 floors or

b) a residential building with more than six dwelling units or

c) a commercial building exceeding a floor area of 300 square meters.

It was further instructed in the above reference that the Planning Permit

and Completion certificate should be insisted for effecting electricity Service

Connection to the Special buildings as per the definitions of Special buildings as

mentioned above.

As per the amendment to regulation 27 of Tamilnadu Electricity Distribution

code communicated vide Memo. No. CE/CommI /EE3/AEE2/ F.DC. Amendment/

D.08/15 dt.06.01.2015 in respect of explanation under sub regulation (16) it has

been stipulated that the Expression "Other compliances" occurring in the

explanation to Section 43(1) of the Act as reproduced in sub -regulation(1) shall

mean the documents mentioned in the forms specified in Annexure III to this Code

and any decree or order or judgement of courts.

In this connection specific instruction has been sought for from Head

quarters whether the Planning Permit and completion certificate are continued

to be insisted for multistoried and special building in respect of HT and LT

application registered subsequent to notifications dated 03.12.2014.

Since the instruction already issued vide Circular Memo No. CE/Comml/EE3/AEE2/

F. Planning Permission / D. No. 874/2006, dt. 22.11.2006 insisting for Planning

Permit and completion certificate in respect of multi-storied buildings and special

buildings had been issued based on the directions by the Hon'ble High

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Court/Madras in the WP No. 18898/2000, 19998/01 and 24316/02 and W.P.No.

17646 / 2006 dt. 23.8.2006, the Planning Permit and Completion certification are

still insisted since the above instructions have been issued based on Court order

which is to be complied as per the amendment notification also.

Regarding sanction of estimate and collection of Rs.8,100/- towards

estimate charges, it is reported by the concerned field Engineers that based on

the planning permit and undertaking to produce completion certificate already

furnished, necessary estimate was evolved and got sanctioned. An amount of

Rs.8100/- was collected towards CCD, MCD and Development charges

Order of the Forum In view of the above, the request of the above petitioner to effect the L T service

without completion certificate is not feasible of compliance.

Regarding delay in furnishing reply for the representation dated 4.5.15, the

petitioner is eligible for receiving compensation of RS.250/-. Hence

Executive Engineer/O&M/Tambaram is hereby directed to take immediate

action to pay the compensation charges to the petitioner and to furnish the

compliance report to this office within 15 days from the date of receipt of this order;”

4. Contentions of the Appellant furnished in the Appeal Petition:

4.1. As the Appellant’s in A.P.No. 63 of 2015, A.P.No.65 of 2015 & A.P.No.66 of

2015 advanced identical arguments as in A.P.No.62 of 2015, the arguments

given in A.P.No.62 of 2015 alone is discussed for the purpose of this order.

4.2. An application seeking service connection to the new residential building in

Chithlapakkam section area was registered on 7.4.2015.

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4.3. The AE / Chithlapakkam has informed the applicant by his letter dated 8.4.2015

to remit Rs.8100/- and the same was paid on 16.4.2015. In the letter, the AE has

directed the applicant to file completion certificate for getting the service

connection.

4.4. For the said letter the applicant has expressed his protest and requested to

communicate the copy of rules relied upon by him to demand for a completion

certificate.

4.5. The request for the copy of rules was never responded by the AE.

4.6. Hence a petition was filed before the CGRF on 26.5.2015 and enquiry held on

3.7.2015, the CGRF has given its order on 25.7.2015.

4.7. A reading of the order simply shows that the Chairman, CGRF has acted more

specifically as a Superintending Engineer This aspect is evident from the

information made available in page 6 of the order.

4.8. The order also states that the explanation for the other compliances in the

amendment notified on 3.12.2014 containing the words document mentioned in

the forms includes some writ petition filed in the year 2006. This aspect of the

CGRF was made amply clear as reproduced in para 4 of the order.

4.9. It is very clear that the CGRF has not taken the above explanation into

consideration. The order also does not carry with any reasons for the conclusion

arrived at.

5. Contentions of the Respondent furnished in the Counter Affidavit:

5.1. On 7.4.2015 the petitioners residing at Block No.7 A, Flat No.1,

Pristine Acres Phase-I, Perumbakkam, Nookampalayam Road,

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Chennai-603 306 submitted complaint that even after registering the

application on 07.04.2015 service connection was not provided within

30 days and hence the petitioner requested compensation.

5.2. On 07.04.2015 application was received from the Appellants and

registered as Regn.No.3150415891 dated and intimated the same to

the appellants' vide letter dated by Asst. Engineer /O&M

Sithalapakkam, CEDC/South, TANGEDCO Chennai 600 126 stating

that on inspection it is found that the building is having stilt + 4 Floors

and hence the further action will be taken on production of the

completion certificate and remit the CCD charges Rs.4,200/-, MCD

charges Rs.2,500/- and development charges within seven days

otherwise the application will be cancelled.

5.3. Instead of producing completion certificate and other certificates after

remitting the above charges of Rs. 8,100/- in total vide receipt NO.CHS

312/1A/2S/281 dated 16.04.2015 the Appellants sent a letter dated

27.04.2015 stating that a criminal action as per Rule may be taken

against the above said Asst. Engineer since the said A.E. has intention

not to give service connection within the stipulated period as per law.

5.4. The above said A.E. vide his letter dated 20.05.2015 addressed to the

Appellants stating that they have paid service connection charges of

Rs.8,100/ - and requested them to produce the completion certificate

since the said building is having stilt + 4 floors.

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5.5. On inspection it was found that the said building is

having stilt + 4 floors having no planning permission obtained from

CMDA as per the instructions issued by the respondent herein vide

Memo No. CE / COMML/EE3 / AEE 2 / F Planning permission/D.653 /

2012 dated 03.12.2012 and recently communicated the Clarification

report herein vide Memo No. CE/Comml/EE3/AEE2/F. Plg Permit

Sec / D. 731/15 dt. 27.8.2015 wherein it is instructed that planning

permit and completion certificate should be insisted for effecting

service connection to the special buildings as per the definition of

special buildings as stated below :

a. A residential or commercial buildings with more than two floors or

b. A residential building with more than six dwelling units.

c. A commercial building exceeding a floor area of 300 sq. mts.

5.6. It was reiterated by the Respondent herein In Memo

No.SE/CEDC/S/AEE/DEV./CHD/D.368/2015 dated 23.02.2015. "As per

the explanation under "other compliances" issued in notification no.

TNERC/DC/8-21dt. 7.10.2014 (published in Govt. Gazettee dt.

3.12.2014), Planning permit & Completion certificate are to be insisted

for special and multi-stories buildings in Chennai Metropolitan area in

compliance of common order dt. 23.8.2006 passed by the First Bench

of the Madras High Court in W.P. No. 18898 of 2000 and etc. batch".

5.7. As per regulation 27(16) (a) of Tamil Nadu Electricity Distribution Code

2004 the appellants are entitled to produce the completion certificate

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obtained from CMDA since the building was built without planning

permission from the CMDA and also emphasized any decree or order

or Judgment of Court as specified in Annexure-3 of the Distribution

Code 2004.

5.8. The Honorable Division Bench by order of direction dated 23.08.2006

passed in W.P.No. 18898/2000 etc., batch directed that to avoid future

violation, buildings should be certified having been constructed in

compliance of planning permit and other applicable laws and the

certifying officer will be personally responsible if any illegal building is

certified and electricity, water connection and occupation should be

contingent on such certificate and hence completion certificate is

essential to effect the service connection to the building of the

Appellants.

5.9. The above Distribution Code is the law framed by the TNERC, Chennai

constituted as per the Indian Electricity Act 2003 and valid law to be

followed by the Appellants and also the appellants have to follow the

Rules and Regulations of the CMDA and they are bound to follow the

Rules, Regulations of CMDA and TANGEDCO and the Code of TNERC

Chennai and as per the expression other compliance occurring in the

explanation to Section 43(1) of the Act as produced in Sub-regulation

(1) and in Regulation 27(16) (a) in Tamil Nadu Electricity Distribution

Code 2004 shall include the following namely :

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a. The compliance by the intending consumer of other laws of the State of

Tamil Nadu relating to the obtaining of permit or approval or sanction or

consent from the appropriate authorities as mentioned in such laws in

regard to construction, alteration or, repairs to the buildings or

establishment of new Industries or Factories or other establishments

for which supply of electricity is required by such intending consumer.

5.10. The respondent side official has acted in accordance

with the existing rule and regulations of TANGEDCO and CMDA and

as per the existing law by receiving the application, preparing the

estimate and collecting the charges and proper inspection was done

by the Asst. Engineer concerned and the respondent's memo dated

03.12.2014 is valid and as per existing law and the circular memo

dated 22.11.2006,insisting planning permit and completion certificate

in respect of multi storied and special buildings issued based on the

directions of the Honorable Division Bench dated 23.08.2006 which is

to be complied as per the amendment notification dated 06.01.2015

and based on the planning permission and undertaking already

submitted stating production of completion certificate necessary

estimate was evolved and got sanctioned and the same is as per

existing rules and regulations of TANGEDCO and the existing laws.

6. Hearing held by the Electricity Ombudsman:

6.1. To enable the Appellants and the Respondent to put forth their arguments in

person, a hearing was held before the Electricity Ombudsman on 12.11.2015.

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6.2. Thiru C. Selvaraj, has attended the hearing on behalf of the Appellants and put

forth his side arguments.

6.3. Thiru Selvaraj, EE / Tambaram has attended the hearing on behalf of the

Respondent and put forth his side arguments.

7. Arguments of the Appellant :

7.1. Thiru C. Selvaraj has reiterated the contents of the counter.

7.2. Thiru C. Selvaraj informed that as per the amendment issued for the Distribution

Code, other compliance has been amended as the documents mentioned in the

forms specified in Annexure III to this Code and any decree or order of

judgments of the Court only. There is no instruction to furnish Completion

Certificate. Hence insisting of the completion certificate is violation of the

provisions of the Distribution Code.

7.3. The other compliance before the amendment was insisting the appropriate

authorities approval or sanction with regard to construction / alteration or repairs

to buildings (i.e) the planning approval was insisted. But the amended

explanation to other compliance does not insist the above. It insists only the

certificate regarding ownership. Hence, argued that insisting of compliance

certificate is not in line with the regulation.

7.4. He also argued that any decree order / judgement of courts mentioned in the

amendment relates to the ownership only and not to any other issues.

7.5. Thiru. Selvaraj also argued that the judgement referred by the Respondent was

issued during 2006 and it is a case filed by the consumer section group against

the Regularisation scheme and hence it cannot binding the TANGEDCO.

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7.6. He also argued that as per Section 43 of the Electricity Act, 2003 the licensee

has to effect supply within the time limit prescribed by the concerned Electricity

Regulatory Commission. There is no condition to insist any other

approval/certificate including completion certificates.

7.7. He argued that for violation in building rules, the concerned authorities alone can

take action. Insisting completion report from CMDA for effecting supply is not

conforming to the Act.

7.8. Citing the E.O.’s order in O.P.No.5 of 2007 on a similar issue, he argued that the

E.O. has already ordered that an obiter dicta is not binding upon TNEB and

denial of supply to the petitioner is not in consonance with the statutory

provisions of the Act.

7.9. Thiru C.Selvaraj also citing the note put up to the Commission while amending

the explanation for other compliance and argued that as per the note, Electricity

Supply is a right to life in terms of Article 21 of Constitution of India and also

noted that in many cases of building violations, the Court has issued directions to

TANGEDCO to effect supply. In view of the above, he argued that the said Court

Order insisting Completion Certificate may not be relevant to the amended

regulation.

8. Arguments put forth by the representative of the Respondent:

8.1. Thiru Selvaraj, EE / Tambaram reiterated the contents of the counter.

8.2. The EE argued that as per the order of the Hon’ble High Court of Madras in

W.P.No. 18898/2000 and other writ petitions, completion certificate has to be

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obtained before effecting supply to any building. He cited para 32 (ix) of the said

judgment in support of his argument.

8.3. The EE also argued that as per the amended regulation the other compliances

means compliance of the order of the Court also. As per the direction of Hon’ble

High Court in W.P.No.18898 of 2000 and others, the supply has to be effected

only if the building is certified by the certifying officer that the building has been

constructed in consonance with the planning permit and other applicable laws.

Hence, in accordance with the above direction of the Court only the completion

certificate is insisted by the Respondent.

8.4. With regard to the judgements delivered subsequently to order to effect supply,

the EE argued that they are all individual cases decided based on the merits of

each case and till date there is no order to set aside the above direction of the

Court.

8.5. As insistence of completion certificate is as per the direction of Hon’ble High

Court in W.P.No.18898 of 2000 & others, the EE argued that the insistence of

production of the completion certificate by the licensee is in line with the

Regulations framed by the Commission.

9. Written Argument of the Appellant :

9.1 New Service connection is an exclusive domain of Electricity Act and

Distribution Code; They don't require completion certificate from CMDA; as

seen from:

a. Amended Electricity Act 2003, S.43(1) (covers new connections entirely)

b. TNERG Notification No.TNERC/DC/8-6 dt: 10.09.2007

c. TNERC Notification No.TNERC/DC/8-21 dt : 07.10.2014.

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9.2 S.43(1) of Electricity Act is a complete code and unambiguous. The same is

recognized by TNERC by its amendments to distribution code # 27 vide two.

notifications above; in which many restrictions were removed to make it to comply with

S.43(1). No arbitrary procedures can be used to deny new service U/S.43(1)!.

9.3 The Electricity supply being in the concurrent list of the Indian Constitution, it is

settled that no state laws/statutes can override Electricity Act and rules

thereof.

9.4 It was for these reasons, the Hon'ble Madras High Court in W.P.No.17531 of

2014 (S.N.Rajkumar Vs TNEB & Ors, Dt : 17.07.2014) referring to the earlier decisions

in W.P.No.3847 and 3848 of 2012, W.P.No.5661 and 5662 of 2013 and W.P.No.18314

of 2013, held that these judgments have become final and is in operation. and thus

directed TANGEDCO to not to insist on completion certificate.

9.5 An appeal by TANGEDCO against one such writ order was dismissed recently by

Division Bench of High Court in W.A.No.33/2015.

9.6 The Electricity Act is a self-contained code with rules and regulations framed

thereunder regulating practice and procedure; thus no court can interfere with the same

as long as the Act is intra vires. It is a well- settled legal principle that a body created

by an Act/Statute must conform to the provisions / of the regulating Act/Statute. It was

TANGEDCO's responsibility to tell the same to the High Court.

9.7 The respected Electricity Ombudsman while dealing with the exact issue herein,

in its order in O.P.No.5/2007 dt:20.06.2007 clearly articulated and held that the High

Court's direction in Consumer Action Group us Tamil Nadu: (23.08.2006) is only an

obiter dicta and not the ratio decidenti and it is also against the

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Electricity Act and thus is NOT binding on TANGEDCO; for the following reasons :

a. The issue dealt with in that judgment is different from the issue at hand.

b. The prayer in the judgment has nothing to do with the current issue.

c. The respondent TNEB /TANGEDCO was only a proforma respondent.

d. No prayers were sought against TNEB/TANGEDCO.

f. The judgment and prayers neither challenged nor referred to Electricity Act and

rules thereof. The decision is also not in consonant with Electricity Act.

9.8 TANGEDCO being just a licensee and service provider and TNERC being the

authority under The Electricity Act in whose full control all licensees operate, no

order(s) can be passed against any licensees without making TNERC a party to the list.

Thus the 2006 High Court Judgment, to the extent it purports to direct

TANGEDCO, is fatal and thus can't be binding on TNERC and TANGEDCO.

9.9 Thus the above judgment's reference to obtaining of completion from CMDA for

supply of electricity is not a ratio decidendi of the High Court but only an obiter dicta

(mere'per incuriam') and, it is legally settled, it is NOT binding.;

9.10 Respondent's illegal action cannot be legitimized by using mere observations (in

nature) of High Court as observed by Hon'ble Calcutta High Court in

Banwari Lal Vs Sheo Sankar Misser (26.03.1907), "a practice which is in contravention

of the law, even if such practice be the practice of a High Court, cannot make

lawful that which is unlawful, nor can a practice of a Court justify a Court inputting upon

an Act of the Legislature a construction which is contrary to the plain wording of the Act.

Since the law is clear in the instant case, even a High Court cannot make a direction

against the valid law !.

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9.11 Further, as stated by the Hon 'ble Supreme Court in Union Of India & Anr Vs

Shardindu (C.A.No.2676 of 2007) “the Court can merely interpret a provision so as to

make explicit the intention of the legislature. It cannot rewrite, recast or redesign the

provision, since the power to legislate has not been conferred on the court.”

9.12 This Ombudsman's office held in A.P.No.14 of 2014, if the subject matter is

already decided then the same must apply to all parties so long as the subject matter

is same. Since this subject matter was already decided in O.P.No.5/2007 dt:20.06.2007

(TNEO), and TANGEDCO having complied with it, the same is binding on the

respondents ; which is also correct position of the law and legal principles.

9.13 A combined reading of "other compliances" referred in explanation of S.43(1),

S.46, S.86 and S.181 of Electricity Act makes it obvious that it must be only for

enabling the license provide service and cannot be used to obrogate the rights of the

owner/occupier by applying unrelated restrictions. Restrictions such as completion

certificates or others unrelated to S.46, S.86 and S.181 cannot be imposed by the

licensee and/or the TNERC as they are not covered in S.46 or S.86 or S.181. Thus the

decree or order or judgment referred in TNERC Notification No. TNERC DC/8-21,

dt:7.10.2014 must only be related to enabling the distribution of electricity and

operations thereof & nothing else!.

9.14 Hon'ble Apex Court in Chameli Singh Vs State of U.P. (1996) 2 SCC 549; (AIR

1996 SC 1051), held that access to Electricity is a fundamental right and a human right

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under Article 19(1) of the Constitution. Similarly Madras High Court in T.M.Prakash Vs

The District Collector(WP No. 17608 of 2013), dt:27.09.2013 declared that access to

electricity supply should also be a right to life, and concludes it to be a fundamental

right, human right and a legal right (para 67 to 70); and further held that there is a

statutory obligation to provide electricity to a owner or occupier of the premises and it is

mandatory u/s.43 of Electricity Act At para 81, it is held: The law applicable for removal

of encroachment and the mandatory: duty to provide electricity per electricity law, are

different and distinct.

9.15 Further page 34 of TNERC Note file dated 25.03.2014 on the amendments of

regulation 27 of the Distribution Code makes it clear that the Hon 'ble TNERC did not

include building violations and Completion Certificate thereof in . "other compliances"

Thus TANGEDCO cannot impose such restrictions on its own.

9.16 The 2006 'High Court judgment in Consumer action (supra) is not a

ratio decidenti as it does not even mention the G.O 112/2004 and the

Electricity Act, and thus is NOT binding on authorities as held by Supreme

Court in Municipal Corporation Of Delhi vs Gurnam Kaur (1989 AIR 1988

SCR Supl.(2) 929):

"Precedents sub silentio and without argument are of no moment -

What is binding on an authority is the principle upon which the case

was decided - Obiter dicta are not binding."

"Precedents of law, which are not part of the ratio decidendi are

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classed as obiter dicta and are not authoritative. "

"A decision should be treated as given per incuriam when it is given

in ignorance of the terms of a statute or of a rule having the force of

a statute.

9.17 Thus this illegal practice of requiring completion certificate from CMDA for

effecting new service connection is no longer 'res integra'. It would be a travesty of

justice to allow the respondents to abuse consumer in violation of the Electricity Act and

rules thereof.

9.18 Further, the Town and Country Planning Act (TCP Act) and Development Control

Rules (DCR) are a complete code that empowers CMDA to be able to deal

with illegal constructions. It is neither the responsibility of the respondents, and nor can

the respondents be allowed to make Electricity Act to be sub-servient to DCR and TCP

Act. As observed by apex court in so many cases, that bona fide ends (however

laudable it is) cannot be achieved by questionable means, especially when the State is

involved.

9.19 “The application shall be accompanied with the following documents” It deals

with the document to be enclosed by the applicant along with application. Hence, it is

more clear that the ‘court order’ to be enclosed by the applicant must be the order from

the court to the effect of conferring the ownership right of the applicant relating to his

property. There is no scope for referring any other orders relating to the violation etc.,

which in no way connected to the proof of ownership.

9.20 In the written argument recorded on 18.12.2015, the Appellant has stated the

following :

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(i) As seen in the note of TNERC dt.25.3.2014 page 31 TANGEDCO has requested

to retain the explanation citing various G.O’s, Court order.

It is clear from the above Court orders referred by the TANGEDCO must also

include the W.P. of 2006, which is made a dispute at the hearing by the opposite party

TANGEDCO.

(ii) In the same page of the note file, it is clearly stated the amendment proposed in

the light of the remarks made by all stake holders. This also corroborates the

consideration of the W.P. 2006.

(iii) In page 34 of the note file, its more clearly mentioned about the remarks made by

legal wing in page 22 of the note file. Accordingly, it is clear that legal wing has given it

remarks after taking into account the W.P. of 2006 also. In the same para of the note

file, it is clearly mentioned electricity is a right to life under article 21 of Constitution.

Hence, it is more clear that electricity cannot be denied to the citizen’s imposing

unrelevant and unrelated conditions.

(iv) In page 35 of the note file, it is more clearly mentioned the documents to be

enclosed by the applicant should relate to the proof of ownership. This explanation

exclusively deals with the documents to be enclosed by the applicant. Hence, there is

no scope of importing any other documents which are in no way related to the

documents to be enclosed by the applicant. As such the contention raised by the

opposite party relating to the Court Orders has no validity and is not sustainable.

(v) Without prejudice to the above averment, it is to be submitted that W.P. of 2006

may have its validity until the amendment notified on 3.12.2014. As per general law the

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order of the Court made in W.P. of 2006 losses its validity on the notification of the new

amendment.

10. Findings of the Electricity Ombudsman :

10. On a careful consideration of the arguments put forth by both the parties, I find

the following as the issues to be resolved.

(i) Whether the contentions of the Respondent that insisting of completion

certificate based on the direction given by the Hon’ble High Court of

Madras in W.P.No.18898 of 2000, W.P.No.19998 of 2001, W.P.No.24316

of 2002 and 17646 of 2006 in line with the Distribution Code is

acceptable?

(ii) Whether service could be effected to the Appellants?

11. Findings on the first issue:

11.1. The Respondent argued that as per the amended version of the other

compliance, any order or decree or judgement of the Court has to be complied by

the consumer while effecting supply. In the judgement dated 23.8.2006, in

W.P.No.18898 of 2000, 19998 of 2001, 24316 of 2002 and 17646 of 2006 the

Hon’ble High Court of Madras has directed that to avoid further violation,

buildings should be certified as having been constructed in compliance of

planning permit and other applicable laws. Electricity connection should be given

on production of such certificate.

11.2. The Appellant argued that as per Section 43 of the Electricity Act, the supply

shall be effected within a month or if it involves extension work within a period as

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specified by the Commission. The production of completion certificate was not

insisted in the Act and also not in the Regulation framed by the Commission.

11.3. The Appellant argued that whether the building is in compliance to planning

permit or not is to be checked by the respective authority and if there is any

violation then the concerned authority has to take action on the violation, citing

the violation and refusing electricity supply is not the duty of the TANGEDCO.

11.4. The Appellant also argued that the decree, order or the judgement referred in

the explanation given for the other compliances in Distribution Code is relevant to

the ownership of the property only and the licensee is wrongly quoting the said

rule for completion certificate. The only requirement of the document as specified

in the format to Application specified in Distribution Code for obtaining the service

connection, i.e. documents of ownership. Hence, he argued that the Court Order

shall also be regarding the ownership of property only.

11.5. The Appellant also argued that in number of cases of building violation, the

Court has directed the TANGEDCO to effect supply. The same was cited in the

note put up to Commission while seeking approval for the amendment in respect

of other compliance. In such a situation, denying supply for want of completion

certificate is not as per the amended explanation given for other compliances.

11.6. In this case, both the Appellant and the Respondent have cited the amended

explanation given under Regulation 27 (16) of the Distribution Code in support of

their arguments. Hence, the same is extracted below :-

Explanation:- For the removal of doubts, it is hereby declared that the

expression “other compliances” occurring in the Explanation to section 43(1) of

the Act as reproduced in sub- regulation (1) shall mean the documents

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mentioned in the Forms specified in ANNEXURE III to this Code and any decree

or order or judgment of Courts.

11.7. On a careful reading of the above explanation given for the other compliance, it

means the documents mentioned in the form specified in Annexure III to this

Code and any decree or order or judgement of the Court. Here the word ‘and’ is

important. It specifies the documents specified in Annexure III to Distribution

Code and also compliance to any decree or order or judgement of the Court. In

this regard, the Appellant argued that the decree or order or judgement of the

Court referred in the regulation is also in respect of the ownership documents

only and not any other direction of the Court.

11.8. As the Appellant argued that it is only the ownership documents, I would like to

refer the documents mentioned in Annexure III to Distribution Code, the same is

extracted below:-

Note : The application shall be accompanied with the following documents:

(i) Certified copy of proof of ownership such as sale deed/ partition deed/gift

settlement /allotment letter/computer patta / ownership certificate issued by revenue

department officials /court judgment or recent property tax receipt.

(ii) In the case of joint property, certified copies of proof of ownership such as legal

heir certificate along with parent documents specified in note(i) above and consent

letters from co-owners. If consent letter is not produced, an indemnity bond with

enhanced security deposit.

(iii) If the Applicant is not the owner, consent letter from owner in Form No.5 or valid

proof of occupancy, and indemnity bond in Form No.6.

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11.9. On a careful reading of note (i) it is noted that the certified copy of proof of

ownership such as sale deed / partition deed / gift settlement / computer patta /

ownership certificate issued by Revenue Department officials / Court judgement

or recent property tax receipt. It is noted that in respect of the ownership

documents, the Court judgement was also specified in note (i). Hence, if the

Decree or Order or judgement of Courts specified after the conjunctive ‘and’ in

the other compliances refers to ownership documents as contended by the

Appellant, there is no necessity to mention it again after the conjunctive term

‘and’ when it has been clearly mentioned under note 1. Hence I am unable to

accept the argument of the Appellant that the Decree or Order or Court

Judgement refers to document in support of ownership.

11.10. I am of the view that the other compliances means, furnishing of documents as

specified in Annexure III to the Distribution Code and compliance to any decree

or order or judgement of the Courts.

11.11. The another argument put up by the Appellant is that the direction of the Hon’ble

High Court in the Consumer Action Group vs the State of Tamil Nadu dated

23.8.2006 is only an observation and hence not binding TANGEDCO as they are

not a party in the said case.

11.12. In this regard, I would like to refer para 32 (ix) of the said order dated 23.8.2006

in W.P.No.18898 of 2000, 19998 of 2001 and 24316 of 2002, 17646 of 2006,

27383 and 27384 of 2000, 29477& 29478 of 2001, 33424 & 33425 of 2002.

“32. In the results, in view of the foregoing discussion, we pass the following

order :-

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****************

(ix) To avoid future violations, buildings should be certified as having been

constructed in compliance of planning permit and other applicable laws. The

certifying officer will be personally responsible if any illegal buildings is certified.

Electricity, water connection and occupation should be contingent on such

certificate. In respect of the builders who have been identified by the Monitoring

Committee as having put up illegal building, constructions by such builders

should be certified for compliance only by the Chief Planner, who shall bear

personal responsibility.”

11.13. On a careful reading of the order, it is noted that the Hon’ble High Court has only

passed orders and insisting of completion report is an order and not an

observation. The TNEB was impleaded suo motu as Respondent 5 as per the

order of Court dt. 21.7.2006. Hence, I am of the view that the order of the

Hon’ble Court given in para 32 (ix) is not an observation but an order binding the

TNEB, a Respondent in W.P. No.17646 of 2006.

11.14. The another argument put up by the Appellant is that the Hon’ble High Court has

given direction to effect supply in case of violation of planning permit in W.Ps.

17531 of 2014, citing earlier orders in W.P.No.3847 of 2012, W.P.No.5661 &

5662 of 2013, W.P.No.18314 of 2013. Hence, their case may also be considered

for effecting supply.

11.15. The case referred by the Appellants are individual cases and Hon’ble High Court

has ordered TANGEDCO to effect supply without insisting of completion

certificate based on merits of each case. But the Hon’ble Court has not set aside

the orders of High Court given in para 32 (ix) of the orders dated 23.8.2006

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insisting completion certificate. Hence, compliance of the said High Court orders

dated 23.8.2006 is necessary.

11.16. The Appellant also cited the note submitted to the Commission for amending the

explanation given for other compliances and argued that for Violation to Building

Regulations and for polluting the environments, the concerned competent

authorities alone have to deal it in the manner known to law. Hence, argued that

for violation of building regulation, the concerned authority may take action. The

licensee has to effect supply as it is a right to life as specified in W.P.no.17608 of

2013.

11.17. The Appellant cited the note file of TNERC, dt.25.3.2014 and put forth the

following arguments.

(i) The TANGEDCO has requested to retain existing provision citing various

G.O’s Court Order direction from Govt. Hence, the Court Order referred

by TANGEDCO include’s W.P.No. 2006 also.

(ii) In page 34 of the note file, the remarks made by the legal wing was

mentioned. Hence, it is clear that the legal wing has given its remarks after

taking into account of W.P. No. 2006 also.

(iii) In page 35 of the note file, it is more clearly mentioned that the documents

to be enclosed by the applicant should relate to the proof of ownership.

This explanation deals with the documents to be enclosed by the

applicant.

11.18. As per above, the applicant argued that the amendment was issued

considering the remarks of TANGEDCO and other stake holders which includes

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the said Court Order also. Further, the Appellant argued that as per the note file,

the documents relating to ownership alone are to be covered in other

compliances.

11.19. In this regard, I would like to refer the draft amendment published in the website

on 21.2.2013. The said portion is extracted below :

(7) For the explanation under sub regulation (16), the following explanation shall

be substituted namely :

Explanation : For the removal of doubts, it is hereby declared that the

expression “other compliance” occurring in the explanation to section 43(1) of

the Act as reproduced in sub regulation (1) shall mean the documents mentioned

in the form specified in Annexure III to these regulations.

11.20. On a careful reading of the above draft, it is seen that the original version of the

amendment proposed is only the documents mentioned in the form specified in

Annexure III to this regulations. But, based on the remarks of stake holders like

TANGEDCO and taking into account of the Court Order only, the following has

been added in the final version after Annexure III to this regulation and approved

by the Commission.

“and any Decree or Order or judgment of Courts.”

11.21. As the addition ( of compliance to) of any Decree or Order or judgment of Courts

in the amendments is made based on the remarks of the stake holders, the

argument of the Appellant that as per the note file of TNERC, other compliance

means only the documents mentioned in the forms specified in the Annexure III

is not acceptable to me.

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11.22. In this regard, I would like to refer the explanation given under regulation 27(16),

of the Distribution Code before the amendment dated 3.12.2014 which is

extracted below:-

“ Explanation:- For the removal of doubts, the expression “other compliances”

occurring in the Explanation to section 43(1) of the Act as reproduced in sub-

regulation (1) above, shall include the following, namely:— (a) the compliance by

the intending consumer of other laws of the State of Tamil Nadu relating to the

obtaining of permit or approval or sanction or consent from the appropriate

authorities as mentioned in such laws in regard to construction, alteration or

repairs to buildings or establishment of new industries or factories or other

establishments for which supply of electricity is required by such intending

consumer; (b) the compliance by the intending consumer of the provisions

contained in sub regulations (4), (11) and (12) above; (c) the compliance by the

intending consumer of any decree or order or judgment of any civil court in

regard to the supply of electricity or other requirements mentioned in such decree

or order or judgment”

11.23. On a careful reading of the said Regulation, it is noted that before amending the

explanation under Regulation 16, the planning approval, approval for

establishment of factories, etc. were covered in other compliances. But in the

amended version, the compliance does not include the permission or approval or

sanction from the appropriate authorities as mentioned in such laws in regard to

construction, alteration or repairs to buildings or establishment of new industries

or factories or other establishments. Hence, for violation of such sanction or

approval or permit, the concerned authorities have to take action. But, here the

Hon’ble Court has given direction to effect supply after getting completion

certificate from the concerned authorities to avoid future violations. As other

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compliance include the order of Court, I am unable to accept the argument of the

Appellant.

11.24. With regard to the argument of the Appellants that in Order No. O.P.5 of 2007,

the Electricity Ombudsman has directed the TANGEDCO to effect supply in a

premises at No.23, New Beach Road, Thiruvanmiyur. I would like to note that

the above order was issued prior to the notification of amendment to the

Explanation given under Regulation 16 of the Distribution Code. Now as per the

amended version of the other compliance, compliance to any order, decree or

judgement of the Court is also insisted. As the Judgement dated 23.8.2006

given in W.P.No.18898 of 2000, W.P.No.1998 of 2001, W.P.No.24316 of 2002

and W.P.No.17646 of 2006 is insisting buildings shall be certified as having been

constructed in compliance of planning permit and other applicable laws for

effecting supply, I am of the view that the ruling in O.P.No.5 of 2007 cannot be

applied to the present case as there is a change in the Regulation.

11.25. In view of the findings given in foregoing paras, I am of the view that the

contention of the Respondent that insisting of completion certificate as per the

direction of the Hon’ble High Court in the WPs referred is conforming to the

Distribution Code is acceptable to me.

12. Findings on second issue :

12.1 The Appellant argued that their application was registered on 7.4.2015 and they

have paid the charges for effecting a new connection on 16.4.2015 also. But, the

service was not effected. Hence, argued that the services are to be effected.

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12.2 The Respondent argued that the Appellants have not produced the completion

certificate. Hence, their services were not effected.

12.3 As per my findings on the first issue, the completion certificate has to be

furnished for effecting supply to the Building. Hence, I am unable to accept the prayer of

the Appellant that service has to be effected without insisting of completion certificate.

12.4 Further, I would like to refer the note under regulation 27(3) of the Distribution

Code which is reproduced below :

27. Requisitions for Supply of Energy: (1) xxxx xxx xxxx(2) xxx xxx xxxx(3) The application for HT supply shall be in Form 4. Application for LT supply ( except Agricultural category) including Hut service shall be in Form 1 & 3 of Annexure III.

Note : Requisitions for supply of energy ( Applications) , even if incomplete, and irrespective of whether they are handed over in person or by post, should be acknowledged in writing. If they are in order, they shall be registered immediately and acknowledged. If they are incomplete, the defects should be indicated and returned without registration.12.5 As per the above regulation, the applications are to be registered if they are in

order and if it is incomplete, the application shall be returned without registration duly

indicating the defects.

12.6 As the application was received without completion certificate, the respondent

would have returned the application duly indicating the reasons for returning it. But, in

the case on hand the respondent have collected the charges for effecting the service

connection. The above procedure lapse is a mistake on the part of the Respondent.

13. Conclusion :

13.1 In view of my findings in para 11&12 above , I am unable to interfere with the

orders of CGRF of Chennai EDC / South.

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13.2 With the above findings, the A.P.No.62 of 2015, 63 of 2015, 65 of 2015 & 66 of

2015 were disposed by the Electricity Ombudsman. No costs.

(A. Dharmaraj) Electricity Ombudsman

To1) Tvl. N. Ramakrishnan & L. Azhakumani,Block No.7A, Flat No.9,Pristine Acres Phase – 1,Perumbakkam, Nokampalayam Road,Chennai - 603 306.

2) Tvl.Rajabharathi & Senthil Kumar,Block No.2A, Flat No.4,Pristine Acres Phase – 1,Perumbakkam, Nokampalayam Road,Chennai - 603 306.

3) Tvl. Sivakumargangadharan & VijayakumariBlock No.3C, Flat No.3,Pristine Acres Phase – 1,Perumbakkam, Nokampalayam Road,Chennai - 603 306. 4) Tvl. P.S.Ramprasad & HarilakshmiBlock No.7A, Flat No.1,Pristine Acres Phase – 1,Perumbakkam, Nokampalayam Road,Chennai - 603 306.

5) The Superintending Engineer,Chennai EDC/ South,TANGEDCO (formerly TNEB),110 KV SS Complex, K.K. Nagar,Chennai - 600 078.

6) The Chairman & Managing Director,TANGEDCO,NPKR Maaligai, 144, Anna Salai, Chennai – 600 002.

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7) The Secretary, Tamil Nadu Electricity Regulatory Commission,No.19A, Rukmini Lakshmipathy Salai,Egmore, Chennai – 600 008.

8) The Assistant Director (Computer) - FOR HOSTING IN THE TNEO WEBSITE PLEASETamil Nadu Electricity Regulatory Commission,No.19-A, Rukmini Lakshmipathy Salai,Egmore, Chennai – 600 008.

31