Allowed

A. Gnanaprakasam v. the Assistant Executive -

Madras HC8 Apr 2022WP(MD)/2970/2010

Case brief

AI extract

What is this about?

The Madras High Court allowed a writ petition challenging an order refusing electricity service connection for an agricultural borewell. The court held that without explicit statutory provision, the Panchayat President's objection regarding proximity to a public drinking water source could not deprive the petitioner of his constitutional right to utilize his land.

What did the court decide?

The impugned order dated 20.08.2009 was set aside and the first respondent was directed to effect the service connection to the petitioner forthwith.

A. Gnanaprakasam Vs the Assistant Executive - — Service and Employment | Madras HC (2022)

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W.P (MD) No. 2970 of 2010

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED: 08.04.2022

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CORAM:

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THE HONOURABLE MR.JUSTICE B.PUGALENDHI

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W.P (MD) No. 2970 of 2010 and

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M.P. (MD) No. 2 of 2010

A.Gnanaprakasam

... Petitioner

-Vs-

1.The Assistant Executive Engineer (Distribution), Tamil Nadu Electricity Board, Nanguneri,

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Tirunelveli District.

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2.The Executive Engineer, Tamil Nadu Electricity Board, Tirunelveli District.

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3.The Superintending Engineer (Distribution), Tamil Nadu Electricity Board, Tirunelveli District. ... Respondents

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PRAYER: Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorarified Mandamus calling for the records of the impugned order of the first respondent in Letter No.AEE/Distn/NGRI/F.DKT/D.No. 38/2009, dated 20.08.2009 and quash the same and consequently direct the first respondent either to restore the agricultural service connection no.441 to irrigate the lands in S.No.133/1 and other survey numbers in Chinthamani Village, Nanguneri Taluk for exploiting the borewell situated in his residence or to give fresh connection to the borewell dug by the petitioner in his residence.

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For Petitioner : Mr.Niranjan S.Kumar

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For Respondents : Mr.S.Deenadhayalan Standing Counsel *****

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https://www.mhc.tn.gov.in/judis

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W.P (MD) No. 2970 of 2010

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O R D E R

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This writ petition is filed as against the letter of the Assistant Executive Engineer (Distribution), Tamil Nadu Electricity Board, Nanguneri, in Letter No.AEE/Distn/NGRI/F.DKT/D.No.38/2009, dated 20.08.2009 and for a consequential direction either to restore the agricultural service connection no.441 or to grant a fresh service connection to the borewell dug by the petitioner in his residence.

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2.The brief facts of the case are as follows:-

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2.1.According to the petitioner, he is an Agriculturalist, having five acres of land in Chinthamani Village, Nanguneri Taluk, Tirunelveli District. He was irrigating his fields from the borewell, which is available in his residence. The same is situated 150 meters away from the agricultural field. Since the petitioner used residential service connection for drawing water for his agricultural field, the Department levied him on commercial charges. In the year 2002, the petitioner applied for a separate electricity service connection for his agricultural field in S.No.133/1 in Chinthamani Village. He has also paid a sum of Rs.24,500/- towards the electricity charges and also dug a borewell in the land in S.No.133/1. Unfortunately, he could not get sufficient water and therefore, he supplied water from the borewell, which is available in his residence.

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2.2.It is his further case that he is having some issues with his brother, who

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is a neighbor. His brother lodged a complaint and based on that, the first

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W.P (MD) No. 2970 of 2010

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respondent has issued a communication vide letter dated 27.06.2009 that he has extended the service connection, without any authorization, to pump water for a distance of 150 meters; pumped borewater near public borewell, which would affect the public drinking water supply; and used 5 HP motor than the sanctioned strength of 3 HP. The petitioner has challenged this communication dated 27.06.2009 by filing W.P.(MD)No.7854 of 2009 and this Court disposed of the said writ petition with a direction to the petitioner to submit a reply to the impugned notice dated 27.06.2009 and also to apply for a fresh commercial connection for the other borewell and on such application, the Board was directed to consider the same in accordance with law within a period of two weeks. On receipt of the reply to the impugned notice, the first respondent was directed to conduct an enquiry and pass appropriate orders, after affording an opportunity to the petitioner.

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2.3.According to the petitioner, he has submitted a reply cum representation to the impugned notice dated 27.06.2009 on 18.08.2009 and also submitted a representation for temporary commercial service connection for the borewell in his residence bearing Door No.3/145 in West Street, Chinthamani Village, to draw water for agricultural purpose to cultivate his crops. This representation of the petitioner was rejected by the impugned letter dated 20.08.2009 stating that the President of Chinthamani Panchayat has objected to effect service connection for his borewell since it is near the existing drinking water panchayat service. The petitioner was further directed to obtain no

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W.P (MD) No. 2970 of 2010

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objection certificate from the Panchayat President for effecting fresh commercial connection. Aggrieved over the same, the petitioner has moved the present writ petition.

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3.Learned Counsel for the petitioner submitted that at the instance of the petitioner's brother, the Panchayat President is raising certain objections and preventing the petitioner from having the service connection. The respondents / Tamil Nadu Electricity Board are also simply refusing the grant of service connection by referring the objections raised by the Panchayat President, without there being any statutory provision.

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4.Learned Standing Counsel for the respondents submitted that since the petitioner has utilized the service connection in no.441 other than the sanctioned strength and pumped water to nearby land, a notice was issued and thereafter, the service connection was disconnected on 14.07.2009. With regard to the application for fresh commercial connection, the petitioner was advised to get a no objection certificate from the President of Chinthamani Panchayat, since the President has raised objections that the proposed new borewell is situated within 100 meters from the Panchayat public borewell.

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5.This Court paid it's anxious consideration to the rival submissions and also to the materials placed on record.

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W.P (MD) No. 2970 of 2010

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6.The petitioner, who is an Agriculturalist, require electricity service connection for his borewell and is also prepared to pay the charges on commercial unit. The respondents, by referring the objections raised by the Panchayat President that the borewell is situated within 100 meters from the public borewell, has directed the petitioner to obtain a no objection certificate from the Panchayat President.

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7.Right of property is guaranteed under the Constitution of India. No person shall be deprived of his property saved by the authority of law, as per Article 300A of the Constitution of India. The right of property, which was originally declared as a Fundamental right, is now made as a Constitutional right, by way of 44^th Amendment to the Constitution with effect from 1979. Even now, the right of property is constitutionally recognized to be a legal right against the executive interference. The Hon'ble Supreme Court has clearly stated that the Executive cannot deprive a person of his property without the authority of law.

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8.In this case, the petitioner claims that the Panchayat borewell is 200 meters away from his land, however, the respondents claim that it is within 100 meters. Be that as it may, the Panchayat President cannot have an objection for grant of service connection for a land owner, who is adjacent to the public borewell. There is no statutory backing for the same. No doubt, the duty is cast

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W.P (MD) No. 2970 of 2010

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upon the Panchayat to provide drinking water to the residents of the Panchayat.

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But, by referring the same, they cannot deprive a person from utilizing his land, which is a constitutionally recognized right. No where in the Electricity Act or in the Code of Supply, any such condition is prescribed for the Electricity Board to grant service connection only after obtaining a no objection certificate from the Panchayat President. The rule is silent and there is no explicit provision prohibiting the sinking of borewell within 100 metres from the public borewell and therefore there cannot be such a condition, as against the right guaranteed under the constitution.

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9.In view of the foregoing discussions, it is crystal clear that in the absence of any such explicit provisions and also against the right guaranteed under the Constitution, the impugned order dated 20.08.2009 came to be passed under a wrong presumption. Therefore, the same is accordingly set aside. The first respondent is directed to effect the service connection to the petitioner, forthwith, based on his application dated 18.08.2009.

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In the result, the writ petition stands allowed. There shall be no order as to costs. Consequently, connected miscellaneous petition stands closed.

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Internet : Yes 08.04.2022 Index : Yes / No gk

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https://www.mhc.tn.gov.in/judis

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W.P (MD) No. 2970 of 2010

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1.The Assistant Executive Engineer (Distribution), Tamil Nadu Electricity Board, Nanguneri, Tirunelveli District.

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2.The Executive Engineer, Tamil Nadu Electricity Board, Tirunelveli District.

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3.The Superintending Engineer (Distribution), Tamil Nadu Electricity Board, Tirunelveli District.

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https://www.mhc.tn.gov.in/judis

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W.P (MD) No. 2970 of 2010

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B.PUGALENDHI, J.

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W.P (MD) No. 2970 of 2010 and M.P. (MD) No. 2 of 2010

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08.04.2022

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https://www.mhc.tn.gov.in/judis

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A. Gnanaprakasam v. the Assistant Executive -

Case brief

What is this about?

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A. Gnanaprakasam v. the Assistant Executive -

Case brief

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