Ramanathasamy Devasthanam vs The Assistant Engineer

[Cites 6, Cited by 0]

Madras High Court

Ramanathasamy Devasthanam vs The Assistant Engineer

2.The plaintiff had filed O.S.No.86 of 2000 before the District Munsif Court, Rameswaram for the relief of declaration that the order of the defendants dated 30.08.1999 is invalid and for consequential injunction restraining the defendants from claiming additional electricity consumption 2/14 https://www.mhc.tn.gov.in/judis S.A..No.1419 of 2003 charges for the period relating to April-1997 to December-1997. The suit was decreed by the trial Court as prayed for. Defendants filed A.S.No.15 of 2002 before the Principal District Court, Ramanathapuram. The learned District Judge was pleased to allow the appeal and dismissed the suit. As against the same, the present second appeal has been filed by the plaintiff.

3.The plaintiff has contended that the temple is a Hindu Religious Institution under the administration of the Commissioner, Hindu Religious and Endowment Department. According to the plaintiff, a meter was installed in the year 1996 and it was working in a good condition and at that point of time, monthly usage is about 16760 units. However on 30.08.1999, the defendants issued an order contending that between April -1997 and December 1997, the meter was defective and hence, an additional sum of Rs.51,256/- has to be paid in view of audit objection. The plaintiff had sent a reply stating that the reading between April -1997 and December-1997 was correct. However, the defendants have not accepted the same and insisted the plaintiff to deposit the said amount and in default to face disconnection. Hence, the present suit.

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4.The defendants filed a written statement contending that the meter installed in the year 1996 was sluggish in nature and it has stopped functioning from 26.02.1997 onwards. Hence, based upon the existing rules, the average was taken into consideration and calculated as 2510 units per month. The defendants had further contended that between April 1997 and December-1997, the meter was not functioning at all. However, during the said period, a lesser consumption charges were paid by the plaintiff. As per rules of the Tamil Nadu Electricity Board and terms and conditions, for the defective meter period, average has to be calculated. Only based upon the said rules and regulations, an amount of Rs.51,256/- was arrived at and a notice was issued.

5.The defendants had further contended that during the festival season, plaintiff temple has utilised more electricity and hence, the average arrived at by the electricity board is correct. The defendants had further contended that an alternative remedy is available before the electricity board authorities and hence, the present suit is not maintainable, in view of the statutory alternative remedy.

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6.The trial court after analysing the oral and documentary evidence, arrived at a finding that the order under challenge does not explain the mode in which the amount was arrived at. The trial Court further found that as per deposition of DW1, in December 1996, when the meter was in a good condition, the electricity consumption was at the rate of 16760 units per month. The trial Court further found that the defendants have not explained the basis on which the calculation of 21500 units per month was arrived at by the defendants. The said action has been effected by the defendants without issuing any notice or calling for any explanation from the plaintiff temple. The trial Court further found that the Technical Inspector has also not been examined to prove whether the electricity meter was defective during the relevant period. Based upon the said facts, the trial Court arrived at a finding that the amount demanded in the impugned notice is not legally sustainable. That apart, the trial Court further found that during the relevant period already the plaintiff temple has paid the electricity consumption charges by calculating it as 20200 units. However, due to audit objection, the unit level has been increased to 21510 units. Based upon the said findings, the trial Court decreed the suit as prayed for. 5/14 https://www.mhc.tn.gov.in/judis S.A..No.1419 of 2003

7.The First Appellate Court without going into the merits, the claim made by the plaintiff temple with regard to the impugned order dated 30.08.1999, considered the legal issued whether a civil suit is maintainable challenging the demand issued by the electricity department. The learned First Appellate Judge relied upon a judgement reported in 1997 Supreme Appeals Reporter (Punjab State Electricity Board and another Vs. Ashwani Kumar) to arrive at a finding that when there is a statutory alternative remedy, a civil suit is not maintainable. The learned Judge has also relied upon a judgment reported in 1999 (2) M.L.J. Page 151 ( The Tamil Nadu Electricity, Thanjavur Electricity System represented by its superintending Engineer Vs. Chandra Chakrapani) to arrive at a finding that a civil suit is not maintainable.

8.The First Appellate Court held that after receipt of Exhibit A1 order from the defendants board, the plaintiff ought to have filed an appeal before the Appellate Authority under Electricity Act. Without availing the said statutory remedy, filing a Civil suit is not maintainable. Hence, the First 6/14 https://www.mhc.tn.gov.in/judis S.A..No.1419 of 2003 Appellate Judge allowed the appeal and dismissed the suit on the ground of maintainability. As against the same, the above second appeal has been filed by the plaintiff.

9.The above second appeal has been admitted on the following substantial questions of law:

“1.Whether the Lower Appellate Court was justified in reversing the well considered judgement of the trial court on technical ground?

2.Whether the conclusion of the Lower Appellate Court that the suit is not maintainable in law since under the Rules in respect of the appellant's grievance, there is no provision for filing departmental appeal? “

10.The learned counsel for the appellant had contended that during for the relevant period already average meter reading was calculated by the department and consumption charges were paid by the plaintiff temple. However, due to audit objection, the present impugned order has been issued by the defendants board without issuing any notice or calling for any explanation from the plaintiff temple. That apart, the relevant period is covered under the Indian Electricity Act 1910 and the present facts and circumstances will not be covered by any statutory appeal remedy as 7/14 https://www.mhc.tn.gov.in/judis S.A..No.1419 of 2003 contemplated under the old Act namely the Indian Electricity Act 1910. The learned counsel had further contended that the present grievance of the appellant, cannot be redressed by way of departmental appeal. Hence, the learned counsel had contended that there is no alterative remedy at all and even assuming there is an alternative remedy, the same is not an efficacious remedy, in view of the facts and circumstances of the case. Hence, the First Appellate Judge was not right in deciding the maintainability of the civil suit on the ground of availability of an alternative remedy of the statutory appeal to the plaintiff temple. Hence, he prayed for allowing the second appeal.

11.Per contra, the learned counsel for the respondents had contended that whenever a dispute with regard to electricity consumption charges arises, an appeal within the department is available and hence, the present suit is barred under Section 9 of C.P.C. He had further contended that for the period during which the meter was defective, the calculation was made only based upon the existing rules and regulations of the electricity board and hence, the plaintiff temple cannot have any objection to the said calculation. Along with Exhibit A1 order a calculation memo has also been 8/14 https://www.mhc.tn.gov.in/judis S.A..No.1419 of 2003 enclosed. He had further contended that the trial Court without considering the maintainability of the civil suit, has decided the suit on its merits. Hence, he prayed for dismissal of the second appeal.

12.I have given anxious consideration to the submissions made on either side.

13.It is admitted by both the parties that the mater was defective between April 1997 and December 1997. It is also an admitted fact that for the said period for which the meter was defective, the defendants electricity board resorted to the average mode of calculation and arrived at a finding that the plaintiff temple would have used 20200 units. This presumptive calculation basis of average was accepted by the plaintiff temple and charges were already paid. However on 31.08.1999, an order has been passed by the defendant board claiming enhanced amount for the same period for which already charges have been calculated on presumptive basis.

14.A perusal of Exhibit A1 will indicate that due to audit objection, the calculation of 20200 units which was already made was 9/14 https://www.mhc.tn.gov.in/judis S.A..No.1419 of 2003 enhanced to 21510 units. The said enhancement has been effected only based upon certain audit objection.

15.Though it is an admitted fact that along with Exhibit A1 a calculation sheet was enclosed, a copy of the said audit objection was not furnished to the plaintiff temple. That apart, no show cause notice or any demand was offered to the plaintiff temple to indicate its stand or object to the mode of arriving at the average value. This is not the first time for which an average value is arrived at for the defective meter period. For the same relevant period already an average value has been arrived at by the department which has been accepted by the temple and the charges were already been paid. When that be the case, the defendant board when it chooses to enhance the average value that was arrived at earlier, certainly they should have given an opportunity to the plaintiff temple to put forth their case.

16.The enhancement of presumptive average value has been effected by the defendants department not on its own but based upon certain 10/14 https://www.mhc.tn.gov.in/judis S.A..No.1419 of 2003 audit objection. When an enhancement is made due to audit objection, the question of invoking an alternative remedy of filing an appeal before the Appellate Authority does not arise. Only when the enhanced presumptive value has been arrived at by the board, the question of approaching the Appellate Authority would arise. No Appellate Authority would be in a position to question the objection raised by the authorities of the audit department. Hence, the contention of the learned counsel for the appellant/plaintiff that the plaintiff temple is not in a position to invoke an alternative remedy of statutory appeal is well founded.

17.When there is no alternative remedy of filing a statutory appeal as against the audit objection, the civil suit filed by the plaintiff temple is perfectly maintainable. The alternative remedy of statutory appeal is available only where there is a dispute with regard to the defective meter or with regard to the current consumption charges. But in the present case, the order challenged in the suit dated 30.08.1999 arises out of an audit objection. Hence, the plaintiff temple is not in a position to avail an alternative remedy of statutory appeal.

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18.As discussed earlier, the electricity board has already arrived at a presumptive value for the disputed period and collected current consumption charges from the plaintiff temple. However, it has chosen to pass an order enhancing the said presumptive value based upon certain audit objection without issuing a show cause or calling for an explanation from the plaintiff temple. Hence, the order is not legally sustainable. The trial Court has thoroughly discussed the oral and documentary evidence on either side and has arrived at a finding that the order has not been legally passed. However, the First Appellate Court has non-suited the plaintiff solely on the ground of availability of alternative remedy. As discussed earlier, there is no alternative remedy is available to the plaintiff temple, in view of the audit objection. Hence, the judgment and decree of the First Appellate Court is based upon an erroneous appreciation not only to the facts but also with regard to the maintainability of the suit.

19.In view of the above said discussion, both the substantial questions of law are answered in favour of the appellants. The judgement and decree of the First Appellate Court is set aside. The judgement and 12/14 https://www.mhc.tn.gov.in/judis S.A..No.1419 of 2003 decree of the trial Court is restored. The second appeal is allowed. No costs. Consequently, the connected miscellaneous petition is closed.




                                                                                    07.06.2022
                     Index    : Yes / No
                     Internet : Yes / No
                     msa

                     To

1.The Principal District Judge, Ramanathapuram

2.The District Munsif, Rameswaram

3.The Section Officer V.R.Section Madurai Bench of Madras High Court Madurai 13/14 https://www.mhc.tn.gov.in/judis S.A..No.1419 of 2003 R.VIJAYAKUMAR,J.

msa Pre-delivery Judgment made in S.A.No.1419 of 2003 and CMP.No.12856 of 2003 07.06.2022 14/14 https://www.mhc.tn.gov.in/judis

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