D. SARAVANAN versus SUPERINTENDING ENGINEER TANGEDCO TNEB DISTRIBUTION CIRCLE & ORS. on 12 April 2018

[2018] 3 S.C.R. 435

D. SARAVANAN

v.

SUPERINTENDING ENGINEER TANGEDCO TNEBDISTRIBUTION CIRCLE & ORS.

(Civil Appeal No. 3763 of 2018)

APRIL 12, 2018

[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]

Electricity Laws:

Tamil Nadu Electricity Distribution Code, 2004: Clause 27 –Requisition for supply of energy – Agricultural electrical serviceconnection – Application for grant of – Application returned afterpointing out the defect that application did not have signature ofVillage Administrative Officer – Removal of defects and resubmissionof the application, however, no action taken by respondent – Writpetition by the appellant – Direction by Single Judge to therespondent to consider the application – In pursuance thereof,submission of application by appellant on 27.01.2017 referring tohis earlier application – By another application submission ofdemand draft of Rs 550/- – Thereafter, communication by ExecutiveEngineer that application not submitted with the registration fee ofRs. 50/- –Respondent challenging judgment of the Single Judge onthe ground of incomplete application for non-submission ofregistration fee – Division Bench held that the application submittedby the appellant in 2017 be considered – On appeal, held: Clause27 cast obligation on the respondents-electricity department toindicate the defects in application and return the same – Non-submission of registration fee is also a defect in the application ascontemplated by Clause 27 – Note which is a statutory in natureobliges the respondents to communicate defects in the applicationreturned to the appellant – No such defect of non-deposit ofregistration fee of Rs.50/- was pointed out by the respondents –Respondents cannot be allowed to take the benefit of its inaction orits lapse which is not in conformity with the statutory obligationcast on it – Non-remittance of Rs.50/- was, thus, not such reason onthe basis of which entire claim of the appellant could be rejected –

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AClaim of appellant regarding seniority of his application from06.12.2010 cannot be accepted since the respondents immediatelypointed out the defect on 07.03.2011 and returned the applicationand re-submitted on 21.03.2011 – Appellant entitled forconsideration of his application from the date of resubmission-21.03.2011.B

Disposing of the appeal, the Court

HELD: 1.1 Clause 27 of the Tamil Nadu ElectricityDistribution Code, 2004 cast obligation on the respondents toindicate the defects in application and return the same. WhenCthe application of the appellant was returned on 07.03.2011 onlydefect pointed out was that ‘application does not have signatureof Village Administrative Officer’, no other defect was pointedout nor it was pointed out that registration fee of Rs.50/- is notdeposited. The respondents submitted that it was the duty of theappellant to deposit registration fee of Rs.50/- which is requiredDby the procedure prescribed. The respondents rely on aprocedure for getting agricultural service connection. In theprocedure as laid down by the respondents, registration fee ofRs.50/- was required to be submitted. The non-submission ofregistration fee is also a defect in the application as contemplatedEby Clause 27 of the Code, 2004. The note which is a statutory innature obliges the respondents to communicate defects in theapplication returned to the appellant. No such defect of non-deposit of registration fee of Rs.50/- has been pointed out by therespondents and now the entire case of the respondents is basedon the above shortcoming of non-deposit of registration fee ofFRs.50/-. The respondents cannot be allowed to take the benefitof its inaction or its lapse which is not in conformity with thestatutory obligation cast on it. It is further to be noted that videletter dated 10.02.2017 the demand draft of Rs.550/- wasdeposited which consisted registration fee of Rs.50/- and Rs.500/-Gas scheme advance. The said demand draft was returned by therespondents on 20.02.2017. The directions issued by the SingleJudge did not contain any direction which, in any manner, can besaid to cause any prejudice to the respondents. The Single Judgeonly permitted the appellant to fulfill the necessary conditions with regard to submission of the application/rectify the defects.The Single Judge also noticed that the shortcoming which waspointed out by the letter dated 07.03.2011 did not mention theshortcoming of non-remittance of Rs.50/-. Non-remittance ofRs.50/- was, thus, not such reason on the basis of which entireclaim of the appellant could be rejected. The petitioner in thewrit petition has also clearly mentioned that his application maybe considered under free agricultural service connection or underRevised Self Financing Scheme(RSFS) by paying the scheme costfor a sum of Rs.10,000/- or Rs.25,000/- or Rs.50,000/- by fixingthe seniority from 06.12.2010. [Para 15-16] [442-D-H; 443-A-E]

1.2 In so far as the claim of the appellant regarding seniorityof his application from 06.12.2010 is concerned, there is noinclination to accept the same since the respondents immediatelypointed out the defect on 07.03.2011 and returned the application.The application which was re-submitted on 21.03.2011 ought tohave been accepted by the respondents since no other defectwas pointed out. In any view of the matter, the appellant wouldhave asked to remit registration fee of Rs.50/- by the respondentsfor registering the application. In the LPA by which the judgmentof the Single Judge was challenged, the resubmission of theapplication on 21.03.2011 was not questioned, however, it waspleaded that after five years of resubmission, the writ petitionhas been filed. [Para 17] [443-F-H]

1.3 It is accepted that the appellant’s application wasresubmitted on 21.03.2011. The appellant, thus, was entitled toconsider his application treating to have been submitted on21.03.2011. The respondents on trivial issue of non-remittanceof Rs.50/- as registration fee has been denying the claim of theappellant. The Division Bench noted that the appellant is apracticing Advocate and he ought to have known about the rulesand regulations. The case of the appellant that he was not awarethat Rs.50/- was required to be deposited has been disbelievedonly because he is an Advocate. A presumption that an Advocateis supposed to know the law can be raised but there can be nopresumption that an Advocate is well aware of all proceduralrequirements regarding making of an application for agricultural AB

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Aservice connection. The payment of Rs.50/- as registration feewas a part of the procedure. The procedure also clearly indicatesthat a scheme is applicable category wise which could have beenavailed by anyone. There was no excluded category so as to inferthat a practicing Advocate is not eligible to avail the benefit ofthe scheme. [Para 18] [444-B-E]

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1.4 The Division Bench without any basis refused to acceptthe stand of the appellant that he is not aware that Rs.50/- was tobe submitted as registration fee. The respondent while writingletter dated 07.03.2011 pointed out the defect in the applicationdated 06.12.2010 and the defect of non-remittance of Rs.50/- asCregistration fee would have been as well pointed out which couldhave obviated the litigation and loss of time and energy of boththe parties. The respondents cannot be allowed to take benefitof their lapse in not pointing out the defect while they wrote letterdated 07.03.2011. However, the appellant was entitled forDconsideration of his application only with effect from 21.03.2011which is the date on which application was resubmitted and therespondents cannot be allowed to take benefit of their own inactionin not communicating the defect by letter dated 07.03.2011. [Para19] [444-G-H; 445-A-B]

E1.5 The respondents are directed to consider the applicationof the appellant treating it to be registered with effect from21.03.2011, i.e., the date it was resubmitted; the appellant shallresubmit a fresh demand draft of Rs.550/- which was returned bythe respondent on 20.02.2017; and the respondents may processthe application and intimate within a period of three months aboutFany further fee or other requirements. [Para 20] [445-C-D]

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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3763of 2018.

From the Judgment and Order dated 28.06.2017 of the High Courtof Judicature at Madras at Madurai in W. A. (MD) No. 846 of 2017.

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S. Nagamuthu, M. P. Parthiban, A. S. Vairawan, Ms. Sneha Kalita,Advs. for the Appellant.

Vinodh Kanna B., Adv. for the Respondents.

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D. SARAVANAN v. SUPERINTENDING ENGINEERTANGEDCO TNEB DISTRI. CIRCLE

The Judgment of the Court was delivered by ASHOK BHUSHAN, J. 1. Leave granted.

2. This appeal has been filed against the Division Bench judgmentdated 28.06.2017 of the Madurai Bench of Madras High Court allowingthe writ appeal filed by the respondents. The appellant aggrieved by thejudgment of the Division Bench has come up in this appeal.

3. The brief facts of the case which are necessary to be noted fordeciding this appeal are:

The appellant has submitted an application dated 06.12.2010praying for grant of Agricultural Electricity Service Connection for useof agricultural equipments with reference to his agricultural landadmeasuring 5 acres. The application was returned by the ExecutiveEngineer (Distribution) Rural, Tamil Nadu Electricity Board, with thefollowing observation:

“The application which you sent does not have signatureof VAO, Village Administrative Officer and hence the same isreturned back.”

4. The appellant after getting defects removed, resubmitted theapplication on 21.03.2011. No action having been taken by the respondentson the said application writ petition was filed by the appellant in theMadurai Bench of Madras High Court.

5. Learned Single Judge after noticing the case of the appellantdisposed of the writ petition with the following direction:

“4. The above submission made by the learned counselfor the respondents is placed on record. It is open to thepetitioner to fulfill the necessary conditions with regard tosubmission of application/rectify the defects, if any, in theapplication already filed, within a period of one month fromtoday and thereafter, the respondents shall consider theapplication of the petitioner in accordance with law and passappropriate orders, if there are no legal impediments within aperiod of one month thereafter.

With the above direction, this Writ Petition is disposedof. No costs.”

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A6. In pursuance of the direction of learned Single Judge dated20.01.2017, the appellant submitted an application on 27.01.2017 referringto his application as earlier made on 06.12.2010 with request to providethe details of the fees to be remitted. By further application dated10.02.2017 demand draft of Rs.550/- was also submitted. The ExecutiveEngineer vide his letter dated 15.02.2017 communicated that theBapplication of the appellant having not been submitted along with paymentof fee of Rs.50/- as per procedure to obtain agricultural electricity serviceconnection and further he has not deposited Rs.500/- towards planadvance deposit. Letter stated that in the event a fresh application isfiled along with recent revenue documents along with fee of Rs.50/-, theCapplication shall be considered as fresh application on priority basis.Further, by letter dated 20.02.2017 the Assistant Executive Engineerreturned demand draft for Rs.550/- and the appellant was requested toapply afresh as advised earlier on 15.02.2017.

7. The respondent challenged the judgment of the learned SingleDJudge dated 20.01.2017 by filing a Letters Patent Appeal(Writ Appeal)before the Madras High Court at Madurai. In the LPA main groundtaken was that application of the appellant was not submitted along withregistration fee of Rs.50/-, the same was not a complete application,hence, learned Single Judge committed error in directing to considersuch application. The Division Bench vide its judgment dated 28.06.2017Eset aside the order of learned Single Judge. The Division Bench furtherobserved that the application submitted by the appellant in the year 2017be considered, if it is otherwise in order and pass orders in accordancewith law. The appellant aggrieved by the judgment of Division Benchhas come up in this appeal.

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8. A perusal of the judgment of the Division Bench indicates thatthe Division Bench took the view that the appellant (who was respondentin the writ appeal) being member of the legal profession is presumed tobe aware of the rules and regulations, hence, no relaxation or latitudecan be granted to the appellant. The Division Bench, further, observedGthat attempt of the appellant/writ petitioner is to take advantage of hisown wrong in not complying with the terms and conditions stipulated forgrant of free agricultural service connection.

9. A counter-affidavit has been filed by the respondents wherethe provisions of Tamil Nadu Electricity Distribution Code, 2004

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(hereinafter referred to as the ‘Code, 2004’) have been referred. Therespondents have supported the order passed by the Division Bench. Itis pleaded that application of the appellant dated 06.12.2010 having beenincomplete on account of non-deposit of registration fee of Rs.50/-, thesame was not required to be registered. It is further pleaded that theappellant approached the High Court after a delay of six years.

10. We have heard the learned counsel for the parties and perusedthe records.

11. From the judgment of the Division Bench which is impugnedin this appeal it is clear that application for agricultural service connectionsubmitted by the appellant is registered in the year, 2017 and therespondents have been directed to consider the same in accordancewith law. The only issue needs to be considered is as to whether theappellant is entitled to treat his application from any earlier point of time.

12. As per the counter-affidavit filed by the respondents only limitedagricultural service connections are given in each year that too on thebasis of seniority of the application. There is no dispute of the fact betweenthe parties that originally the application was filed for agricultural serviceconnection on 06.12.2010 on which an objection was raised by therespondent- The Executive Engineer (Distribution) vide letter dated07.03.2011 stating that the application sent by the appellant does nothave signature of Village Administrative Officer and hence the same isreturned back. The appellant obtained signature of Village AdministrativeOfficer and re-submitted the application on 21.03.2011. No action wastaken by the respondents, thereafter, the writ petition was filed in theMadurai Bench of the Madras High Court. The writ petition was disposedof by the learned Single Judge on 20.01.2017 directing the respondentsto consider the application of the appellant in accordance with law. Theappellant was granted liberty to fulfill the necessary conditions with regardto submission of application/rectify the defects. After the order of theCourt, the Executive Engineer pointed out that application having notbeen submitted with registration fee of Rs.50/-, the same cannot beconsidered and it is open for the appellant to make a fresh applicationalong with necessary fee.

13. The respondents rely on the provisions of the Code, 2004,Clause 27(1), Explanation of which is to the following effect:

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A“27. Requisitions for Supply of Energy:

(1) xxx xxxxxx

Explanation:- For the purposes of this sub-section,“application” means the application complete in all respectsin the appropriate form, as required by the distributionBlicensee, along with documents showing payment of necessarycharges and other compliances.”

14. In Clause 27, itself there is a note to the following effect:

“Note: Requisitions for supply of energy (Application), evenif incomplete, and irrespective of whether they are handedover in person or by post, should be acknowledged in writing.If they are in order, they shall be registered immediately andacknowledged. If they are incomplete, the defects should beindicated and returned without registration.”

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D15. The above provision, thus, cast obligation on the respondentsto indicate the defects in application and return the same. When theapplication of the appellant was returned on 07.03.2011 only defect pointedout was that ‘application does not have signature of Village AdministrativeOfficer’, no other defect was pointed out nor it was pointed out thatregistration fee of Rs.50/- is not deposited. The respondents submittedEthat it was the duty of the appellant to deposit registration fee of Rs.50/-which is required by the procedure prescribed. The respondents rely ona procedure for getting agricultural service connection, Annexure R/1has been filed with the heading “PROCEDURE FOR GETTINGAGRICULTURAL SERVICE CONNECTION”, Clause 7 of whichis to the following effect:F

“7. The filled up application form along with above mentioneddocuments should be submitted at the Executive Engineer/Operation and Maintenance Office of the jurisdictionconcerned. For registering the application Rs.50/- has to bepaid. After registering the application an acknowledgementGmentioning the registration number and date of registrationwill be given to the applicant.”

16. Thus, in the procedure as laid down by the respondents,registration fee of Rs.50/- was required to be submitted. The non-submission of registration fee is also a defect in the application asH

contemplated by Clause 27 of the Code, 2004. The note as extractedabove which is a statutory in nature obliges the respondents tocommunicate defects in the application returned to the appellant. Nosuch defect of non-deposit of registration fee of Rs.50/- has been pointedout by the respondents and now the entire case of the respondents isbased on the above shortcoming of non-deposit of registration fee ofRs.50/-. Can the respondents be allowed to take the benefit of its inactionor its lapse which is not in conformity with the statutory obligation caston it ? The answer obviously has to be ‘no’. It is further to be noted thatvide letter dated 10.02.2017 the demand draft of Rs.550/- was depositedwhich consisted registration fee of Rs.50/- and Rs.500/- as schemeadvance. The said demand draft was returned by the respondents on20.02.2017. The directions issued by the learned Single Judge as extractedabove in paragraph 4 of the judgment did not contain any direction which,in any manner, can be said to cause any prejudice to the respondents.Learned Single Judge only permitted the appellant to fulfill the necessaryconditions with regard to submission of the application/rectify the defects.Learned Single Judge has also noticed that the shortcoming which waspointed out by the letter dated 07.03.2011 did not mention the shortcomingof non-remittance of Rs.50/-. Non-remittance of Rs.50/- was, thus, notsuch reason on the basis of which entire claim of the appellant could berejected. The petitioner in the writ petition has also clearly mentionedthat his application may be considered under free agricultural serviceconnection or under Revised Self Financing Scheme(RSFS) by payingthe scheme cost for a sum of Rs.10,000/- or Rs.25,000/- or Rs.50,000/-by fixing the seniority from 06.12.2010.

17. In so far as the claim of the appellant regarding seniority ofhis application from 06.12.2010 is concerned, we are not inclined toaccept the same since the respondents immediately pointed out the defecton 07.03.2011 and returned the application. The application which wasre-submitted on 21.03.2011 ought to have been accepted by therespondents since no other defect was pointed out. In any view of thematter, the appellant would have asked to remit registration fee of Rs.50/-by the respondents for registering the application. It is relevant to noticethat in the LPA by which the judgment of the learned Single Judge waschallenged, the resubmission of the application on 21.03.2011 was notquestioned, however, it was pleaded that after five years of resubmission,the writ petition has been filed. It shall be useful to notice ground ‘c’ ofthe writ appeal which is to the following effect:

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A“c. The Learned Judge ought to have seen that the writpetitioner has submitted the application on 06.12.2010 andresubmitted on 21.03.2011 and has filed the writ petition inthe year 2016 i.e. after the lapse of five years and no reasonwas attributed to delay in filing.”

B18. We, thus, accept that the appellant’s application wasresubmitted on 21.03.2011. The appellant, thus, was entitled to considerhis application treating to have been submitted on 21.03.2011. Therespondents on trivial issue of non-remittance of Rs.50/- as registrationfee has been denying the claim of the appellant. The Division Bench inits judgment has noted that the appellant is a practicing Advocate and heCought to have known about the rules and regulations. The case of theappellant that he was not aware that Rs.50/- was required to be depositedhas been disbelieved only because he is an Advocate. A presumptionthat an Advocate is supposed to know the law can be raised but therecan be no presumption that an Advocate is well aware of all proceduralDrequirements regarding making of an application for agricultural serviceconnection. The payment of Rs.50/- as registration fee was a part of theprocedure envisaged by the respondents as is clear from Annexure R/1to the counter-affidavit. The procedure Annexure R/1 also clearlyindicates that a scheme is applicable category wise which could havebeen availed by anyone. There was no excluded category so as to inferEthat a practicing Advocate is not eligible to avail the benefit of the scheme.The procedure (Annexure R/1) clearly contemplates:

“A. Free agricultural service connection is being given to thefollowing categories and the Board is bearing entire estimatecost.F

i. Normal :-

Any one can apply in this case.

ii. xxxxxxxxx.”

19. We are of the view that the Division Bench without any basisGrefused to accept the stand of the appellant that he is not aware thatRs.50/- was to be submitted as registration fee. The respondent whilewriting letter dated 07.03.2011 pointed out the defect in the applicationdated 06.12.2010 and the defect of non-remittance of Rs.50/- asregistration fee would have been as well pointed out which could haveH

obviated the litigation and loss of time and energy of both the parties.We are, thus, of the view that the respondents cannot be allowed to takebenefit of their lapse in not pointing out the defect while they wroteletter dated 07.03.2011. We, however, are of the view that the appellantwas entitled for consideration of his application only with effect from21.03.2011 which is the date on which application was resubmitted andthe respondents cannot be allowed to take benefit of their own inactionin not communicating the defect by letter dated 07.03.2011.

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20. We, thus, dispose of this appeal with the following directions:

(1) The respondents are directed to consider the application ofthe appellant treating it to be registered with effect from 21.03.2011, i.e.,the date it was resubmitted.

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(2) The appellant shall resubmit a fresh demand draft of Rs. 550/-which was returned by the respondent on 20.02.2017.

(3) The respondents may process the application and intimatewithin a period of three months about any further fee or other requirementsDwhich need to be complied with by the appellant for the purpose.

Nidhi Jain

Appeal disposed of.

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