TAMIL NADU ELECTRICITY OMBUDSMAN

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

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BEFORE THE TAMIL NADU ELECTRICITY OMBUDSMAN, CHENNAI

Present : Thiru. A. Dharmaraj, Electricity Ombudsman

Appeal Petition No.62of 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

  1. 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

  1. Tvl. Sivakumargangadharan & Vijayakumari

Block No.3C, Flat No.3,

Pristine Acres Phase – 1,

Perumbakkam, Nokampalayam Road,

Chennai 603 306.-A.P.No.65 of 2015

  1. Tvl. P.S.Ramprasad & Harilakshmi

Block No.7A, Flat No.1,

Pristine Acres Phase – 1,

Perumbakkam, Nokampalayam Road,

Chennai 603 306.-A.P.No.66 of 2015

………..Appellants

(Represented byThiru C.Selvaraj)

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 : 12.11.2015

Date 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.

  1. Brief history of the case:

2.1In 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.

  1. Findings of the Forum:

3.1The 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.

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 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;”

  1. Contentions of the Appellant furnished in the Appeal Petition:
  2. 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.
  3. An application seeking service connection to the new residential building in Chithlapakkam section area was registered on 7.4.2015.
  4. 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.
  5. 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.
  6. The request for the copy of rules was never responded by the AE.
  7. 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.
  8. 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.
  9. 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.
  10. 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.
  1. Contentions of the Respondent furnished in the Counter Affidavit:
  2. On 7.4.2015 the petitioners residing at Block No.7 A, Flat No.1, Pristine Acres Phase-I, Perumbakkam, Nookampalayam Road, Chennai-603306 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.
  3. 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.
  4. 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. 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.
  6. 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 / AEE2 /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:
  1. A residential or commercial buildings with more than two floors or
  2. A residential building with more than six dwelling units.
  3. A commercial building exceeding a floor area of 300 sq. mts.
  4. 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. As per regulation 27(16) (a) of Tamil Nadu Electricity Distribution Code 2004 the appellants are entitled to produce the completion certificate 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.
  6. 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.
  7. 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:
  1. 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.
  2. 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.
  1. Hearing held by the Electricity Ombudsman:
  2. 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.
  3. Thiru C. Selvaraj, has attended the hearing on behalf of the Appellants and put forth his side arguments.
  4. Thiru Selvaraj, EE / Tambaram has attended the hearing on behalf of the Respondent and put forth his side arguments.
  5. Arguments of the Appellant:
  6. Thiru C.Selvaraj has reiterated the contents of the counter.
  7. 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.
  8. 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.
  9. 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.
  10. 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.
  11. 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/certificateincludingcompletion certificates.
  12. 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.
  13. 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.
  14. 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.
  1. 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 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.

  1. Written Argument of the Appellant :

9.1New 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.

9.2S.43(1) of Electricity Act is a complete code and unambiguous. The same is recognized by TNERCby its amendments to distribution code #27 vide two. notifications above; in which many restrictions wereremoved 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 theIndian Constitution, it is settled that no state laws/statutes can override Electricity Act and rules
thereof.