Madras High Court
Union Of India (Uoi) Rep. By Chief ... vs Vasantha Carbide Company Ltd., Rep. By ... on 5 February, 2004
Equivalent citations: 2004(1)CTC683, (2004)1MLJ721
JUDGMENT K. Govindarajan, J.
1. The defendants, having aggrieved by the judgment and decree dated 27.8.2003 in O.S. No. 59/2002, on the file of the learned Additional District Judge, Karaikal, have preferred the above Appeal.
2. The respondent/plaintiff filed the above suit in O.S. No. 59/2002 for a declaration that the disconnection of electrical energy of the plaintiff premises in pursuance of alleged notice dated 9.10.2002 is illegal and without jurisdiction and consequently directing the defendants to give electric connection to the plaintiff-company by way of mandatory injunction. The plaintiff-company is running an industry and service connection was effected to the said industry pursuant to the agreement dated 4.8.1997. On 8.10.2002 at about 17.30 hours, the 4th appellant along with the Assistant Executive Engineer/HT, Pondicherry inspected the service connection of the respondent/plaintiff-industry and they noticed certain violations. On 9.10.2002, a notice asking the respondent/plaintiff to show cause as to why extra levy for the violations set out in the said notice should not be collected from the respondent/plaintiff was issued to the plaintiff. On the same day, another letter was served on the respondent/plaintiff stating that "as the energy meter is not recording the actual energy consumed due to the above violation, it is considered necessary to disconnect the HT supply extended to your industry with immediate effect in the interest of this Department and to prevent loss of revenue to the Government." Simultaneously the power connection also had been disconnected. The respondent/plaintiff-company filed the above suit challenging the said action of disconnection and also prayed for reconnection, stating that the disconnection was without notice and without resorting to the procedure contemplated under Section 24 of the Indian Electricity Act, 1910 and so it is illegal. The respondent/plaintiff-company also denied the allegation of theft of electrical energy. According to the respondent/plaintiff, the non-disclosure of charge of theft of energy against the respondent/plaintiff on 8.10.2002 vitiates the entire proceedings.
3. The above said suit filed by the respondent/plaintiff on the above said grounds was defended by the appellants/defendants stating that notices were served by the Junior Engineer under due acknowledgment on 9.10.2002 and disconnection was made only in accordance with the terms and conditions of supply of electricity. It is also stated that the suit is not maintainable as the respondent/plaintiff is having alternative remedy by way of filing Appeal.
4. The learned Additional District Judge in the judgment dated 27.8.2003 found that the disconnection of power supply to the respondent/plaintiff-industry is illegal and so the plaintiff can sustain the suit seeking for reconnection. On the basis of the said finding, the learned Judge decreed the suit only insofar as it relates to restoration of power supply by granting mandatory injunction.
5. Though the Court below has given finding to the effect that the disconnection is illegal, in paragraph 14 of the judgment while answering Issue No. 1, no decree is granted with reference to the first limb of the prayer as stated in paragraph VI (a) of the plaint.
6. The points for determination in this Appeal are:-
(1) Whether the suit is maintainable at the instance of the plaintiff with reference to disconnection of power supply?
(2) Whether the judgment and decree granting mandatory injunction are sustainable without granting a decree with reference to the first limb of the prayer as prayed for in paragraph VI(a) of the plaint?
7. Learned Special Government Pleader for Pondicherry, appearing for the appellants/defendants submitted that the suit is not maintainable as the respondent/plaintiff is having alternative remedy before the appellate authority and so the Court below is not correct in entertaining the suit and decreeing the same. He relied on the decisions in Punjab State Electricity Board v. Ashwani Kumar, and N.D.M.C. v. Satish Chand (Deceased) by Lr.Ram Chand, JT 2003 (Suppl.1) SC 291 in support of his submission. Learned Special Government Pleader further submitted that though the respondent/plaintiff has sought for two reliefs, one is for a declaration and another is for mandatory injunction, the Court below is not correct in granting the consequential relief of mandatory injunction, rejecting the prayer for other relief. According to him, in view of the above, the judgment and decree of the Court below cannot be sustained in law. He also submitted that the Court below is not correct in coming to the conclusion that before effecting disconnection no notice was given. Referring to the notice dated 9.10.2002, the learned Special Government Pleader submitted that since such a notice was given, the Court below has misdirected itself in deciding the issue in favour of the respondent/plaintiff mainly on the ground that no notice was given before disconnection. He further submitted that even according to the terms and conditions, no such notice is necessary, before effecting disconnection. Learned Special Government Pleader further brought to our notice that the respondent/plaintiff filed an Appeal against the assessment regarding extra levy and the same is pending.
8. Learned Advocate General appearing for the respondent/plaintiff submitted that under the terms and conditions, no Appeal is provided against disconnection, but appeal remedy is provided only with respect to assessment of extra levy and so the contention raised by the learned Special Government Pleader appearing for the appellants/defendants that the suit is; not maintainable cannot be sustained. Even referring to the notice dated 9.10.2002, the learned Advocate General submitted that the said notice is not the notice giving opportunity to the respondent/plaintiff to show cause why disconnection could not be made, but it is an intimation to the respondent/plaintiff about the decision of the authorities disconnecting the power supply. So, the Court below is correct in decreeing the suit on the ground that the principles of natural justice was not followed. Learned Advocate General further submitted that though the Court below has not granted decree with respect to the prayer for declaration, in paragraph 14 of the judgment, the Court below has factually found that the disconnection is illegal and so the submission of the learned Special Government Pleader that without granting relief regarding declaration, the relief granted for mandatory injunction cannot be sustained, cannot be countenanced.
9. The learned Addl. District Judge in the trial Court has found, while considering Issue Nos. 1 and 2, that the disconnection of power supply is illegal and so the suit filed by the respondent/plaintiff is sustainable. Considering Ex.A5, dated 9.10.2002, the show cause notice issued with respect to the extra levy for the violations as mentioned in the said notice, the Court below held that it is for the respondent/plaintiff to file Appeal according to the terms and conditions. The Court below also found that the disconnection of power supply was made without issuing notice to the respondent/plaintiff before making such disconnection.
10. The learned Special Government Pleader appearing for the appellants/defendants submitted that notice was given on 9.10.2002 before disconnecting the power supply and so the Court below is not correct in coming to the conclusion that such a notice was not given. Unfortunately, the said document is not marked. What is marked is Ex.A5, the show cause notice for making extra levy. That has been referred to in paragraph 15 of the judgment. As no such document was produced before the Court below to establish that such a notice was given in compliance with the principles of natural justice, the finding of the Court below cannot be assailed in this regard. Learned Special Government Pleader has not taken us even to the oral evidence with reference to the said notice. But, on the other hand, his submission is that since no provision in the terms and conditions of supply of electricity, creating obligation on the part of the 1st appellant-government to afford an opportunity by giving show notice before disconnection of power supply, the said ground cannot be relied upon to set aside the action of the 1st respondent-government disconnecting the power supply.
11. It is also submitted by the learned Special Government Pleader that without prejudice to the other right of Department, the Department is having power to disconnect the power supply as per clause 88 of the Terms and Conditions if there is reason to believe that the consumer has contravened any of the provisions of the Indian Electricity Act or "Restriction and Control" Orders of the terms and conditions of supply of electricity or committed breach of the agreement with the Department and no prior notice is contemplated under the said clause. Though in this case a show cause notice under Ex.A5 was issued saying that the respondent/plaintiff violated the terms and conditions by committing theft of energy, it cannot be said that the said notice was issued giving opportunity to the plaintiff before disconnecting power supply. A perusal of the said clause No. 88 shows that it is only an enabling power to disconnect the supply of electricity on the grounds mentioned therein. But, the Department cannot disconnect the power supply without giving prior notice to the consumer. This is on the basis of the principles of natural justice and the same has to be read into with the said clause. The respondent/plaintiff cannot assume for themselves that the consumer has contravened any of the provisions of the Indian Electricity Act or Electricity (Supply) Act or the Indian Electricity Rules 1956 or "Restriction and Control" Orders of the terms and conditions of supply of electricity or the agreement with the Department. That is the matter which has to be decided only on giving prior notice to the consumer and after conducting an enquiry in the presence of the consumer. In this regard, it is beneficial to refer to Sec. 24 of the Indian Electricity Act, 1910 which provides for disconnection of electricity supply when the consumer neglects to pay the charges. Even in such cases, it is made clear that a notice is obligatory on the part of the Department before disconnection of such supply of electricity. Though not such obligation is not created under clause 88, applying the principles of natural justice, a notice is required while exercising powers under the said clause of the terms and conditions of supply of electricity.
12. Moreover, under Sec. 39 of the Indian Electricity Act, the consumer is liable to be punished with imprisonment for a term which may exceed to three years or fine or both for theft of energy. The said provision further places the burden on the consumer to establish that there was no such theft of energy as alleged by the licensee. Even while considering the said provision, the Apex Court in the decision in Municipal Corpn., of Delhi v. M/s.Ajanta Iron & Steel Co. Pvt. Ltd., , held as follows:-
"We do not understand as to what is the difficulty in the way of the appellant (Municipal Corporation of Delhi) to serve a notice on the consumer before disconnecting supply. It has to be appreciated that the licensee undertaking is performing a public duty and is governed by a special statute and the law also contemplates service of a notice before disconnection of supply of electricity."
13. From the above discussion it is clear that the submission of the learned Special Government Pleader, Pondicherry, appearing for the appellants that no prior notice is necessary for disconnecting the power supply cannot be accepted and so the Court below is correct in holding that the disconnection of power supply by the appellants cannot be sustained for want of notice giving opportunity to the consumer.
14. Learned Special Government Pleader, Pondicherry, appearing for the appellants/defendants submitted that the suit is not maintainable as the respondent/plaintiff is having effective alternative remedy against the impugned action of disconnection of power supply. Here also, as rightly submitted by the learned Advocate General, the remedy of filing Appeal is provided only against the Order of assessment of extra levy and not against disconnection of power supply. It is also submitted that an Appeal was preferred against the Order of assessment, with which we are not concerned in this Appeal. Learned Special Government Pleader further relied on the decisions in in support of his submission that if alternative remedy is available, the suit cannot be sustained. As stated earlier, against the disconnection of power supply, no Appeal is provided under the terms and conditions. But, Appeal is provided only against the Order of assessment of extra levy. So the said argument of the learned Special Government Pleader that the suit is not maintainable cannot be countenanced.
15. Though the learned Special Government Pleader further submitted that the Court below is not correct in decreeing the suit for mandatory injunction without granting a decree for declaration as sought for, the Court below has given finding that the disconnection of power supply is illegal, stating as follows:-
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16. For the foregoing reasons, we do not find any reason to interfere with the judgment dated 27.8.2003 passed by the Court below. Accordingly, this Appeal is dismissed. No costs. C.M.P. No. 15939/2003 is also dismissed.