Madras High Court
Tulsyan Nec Limited, Represented By Its ... vs The Chairman Tamil Nadu Electricity ... on 31 March, 2005
Author: P. Sathasivam
Bench: P. Sathasivam
JUDGMENT P. Sathasivam, J.
1. The above Original Side Appeal has been filed against the order of the learned single Judge dated 07.03.2005, made in O.A. No. 276 of 2004 in C.S. No. 283 of 2004, in and by which, the learned single Judge directed the applicant/appellant herein to pay a sum of Rs.1,00,00,000 /- to the Respondents/Tamil Nadu Electricity Board within four weeks from the date of the order and also directed the Electricity Board to adjust the payment to be made by the company for the energy generated by them first towards the arrears of assessment, which is under challenge.
2. Inasmuch as the appellant/plaintiff has preferred this appeal against the order passed in the petition filed for injunction and against the conditional order, we are of the view that it is unnecessary to refer to the factual matrix as averred by both parties. Likewise, it is also unnecessary to refer to the earlier proceedings/litigation between the appellant and the Tamil Nadu Electricity Board by way of Writ Petition and Writ Appeal. However, it is relevant to note that, by order dated 20.10.2003, a Division Bench o f this Court, in W.A. No. 3121 of 2003, directed the Tamil Nadu Electricity Board to furnish the relevant records, namely, billing data, load survey data, tamper data, instantaneous power factor, average power factor, KVA-Demand, cumulative MD, tamper information if any etc. as sought for by the appellant within seven days from the date of receipt of the order copy and permitted the Board to conduct and complete the enquiry after affording opportunity to the appellant within a period of one month from the date of furnishing of the said copies of the documents mentioned above. The Division Bench has also made it clear that if the appellant wants further explanation to be filed after receipt of those documents, they are free to do so within a period of one week after receipt of the same. With the said observation, the Writ Appeal was disposed of on 20.10.2003.
3. It is not in dispute that pursuant to the said direction, an enquiry was conducted by an Officer in the rank of Additional Chief Engineer, Tamil Nadu Electricity Board, after affording opportunity to the appellant. The Enquiry Officer was none else than one K. Kandasamy, Additional Chief Engineer, CEDC/West. It is also not in dispute that the enquiry was conducted on five occasions, namely, 18.11.2003, 29.11.2003, 05.12.2003, 18.12.2003 and 06.01.2004. It is also not in dispute that in all the above mentioned enquiries, the consumer, namely, the appellant herein, was afforded opportunity to participate and put forth their defence by letting in oral and documentary evidence.
4. No doubt, learned Senior Counsel appearing for the appellant, by drawing our attention to various questions put forth by the consumer/appellant and the answers given by the Officers of the Department, would contend that though an opportunity was given, in the absence of the details and answers for relevant questions/doubts raised by the consumer/appellant, the enquiry proceedings cannot be construed as proper and valid. It is also relevant to note that for the said doubt raised by the learned Senior Counsel for the appellant, learned Standing Counsel for the Tamil Nadu Electricity Board, who took notice even at the admission stage, also pointed out various questions and answers from the enquiry proceedings.
5. Though both sides before us have demonstrated their points, we are of the view that it is too early for this Court to give a finding with regard to the said enquiry in this appeal.
6. Ultimately, by assessment order dated 18.02.2004, the Additional Chief Engineer has concluded that as per clause8.02 of the Terms and Conditions of supply of Electricity, the extra levy payable by the consumer is worked out as Rs.3,79,03,901/-. He also enclosed the calculation sheet for easy reference to the consumer. After finding so, the consumer was asked to pay the said amount in 15 instalments as mentioned in the schedule of payment. It is further brought to our notice that even in the said order, the Additional Chief Engineer has drawn the attention of the consumer that if they are aggrieved by the said order, they are free to prefer an appeal before the Appellate Authority, namely, the Chief Engineer/Distribution/South Region/Chennai within 60 days from the date of receipt of the said order without prejudice to any other action that would be taken by the Tamil Nadu Electricity Board including disconnection of service as mentioned in the said order. For the reasons best known to the appellant/consumer, instead of resorting to such recourse as pointed out in the said order, they approached the Original Side of this Court and laid C.S. No. 283 of 2004. In the said suit, the plaintiff has prayed for a declaration declaring the Demand Notice issued by the 3rd defendant, viz., The Additional Chief Engineer/Enquiry Officer, Thirumangalam SS, Chennai-40, by letter No. ACE/CEDC/W/AEE/GL/AEE II/F Doc. HTSC 1111/D209/2004, dated 18.2.2004 as illegal, unconstit utional and inoperative; and for a consequential decree for injunction restraining the defendants or their men, agents, subordinates or anyone acting under them from recovering the sum of Rs.3,79,03,901/- from the plaintiff as penalty. Pending the said suit, the plaintiff has also filed O.A. No. 276 of 2004 praying for an order of interim injunction directing the respondents, their men, subordinates, agents and other persons who may be authorised by them from taking any steps to recover Rs.3,79,03,901/- as levy of penalty in any manner and forbearing them from disconnecting electricity supply to their factory in any division pursuant to the order passed by the Additional Chief Engineer/Enquiry Officer in his proceedings Lr. No. ACE/CEDC/W/AEE/Gl/AE2/FDoc.HTSC 1111/D209/2004 dated 18.02.2004. The said application was resisted by the Tamil Nadu Electricity Board by filing counter affidavit. In the counter affidavit, the Superintending Engineer, CEDC/West, Tamil Nadu Electricity Board, Thirumangalam, Anna Nagar, Chennai-40, has highlighted their stand, the details regarding the enquiry, the ultimate order passed, theft committed by the plaintiff as well as the loss of energy sustained by the Department etc.
7. Considering the claim of both parties, the learned single Judge, by order dated 07.03.2005, made in O.A. No. 276 of 2004 in C.S. No. 283 of 2004, passed the conditional order as referred to above. Questioning the same, the present appeal has been filed.
8. Learned Senior Counsel for the appellant, after taking us through the enquiry proceedings, plaint averments and the particulars furnished in the affidavit filed in support of the injunction application as well as the order of the learned single Judge, would submit that in the light of the infirmities in the enquiry proceedings, which is under challenge by way of suit (C.S. No. 283 of 2004), and taking note of the fact that the appellant themselves are supplying power to the Tamil Nadu Electricity Board and also of the fact that there is no such complaint till this time, balance of convenience and prima facie case are in favour of the appellant and that the learned single Judge failed to consider the same and passed a cryptic order, imposing onerous conditions.
9. On the other hand, learned Standing Counsel appearing for the Tamil Nadu Electricity Board/respondents would submit that based on the directions of the Division Bench of this Court, a detailed enquiry was conducted at the level of one of the highest officers, viz., Additional Chief Engineer, reasonable opportunity was afforded to the appellant and ultimately a reasoned order has been passed by the Enquiry Officer, followed by a demand for payment. He also contended that though the consumer was asked to avail the alternative remedy as provided in the terms and conditions, the consumer has not availed the same and approached this Court. According to him, the suit itself is not maintainable and on the ground of availability of alternative remedy, the suit is liable to be dismissed. He also contended that the order of the learned single Judge is based on prima facie finding and it is only an interim arrangement and as and when the plaintiff succeeds in the suit, there will not be any difficulty in recovering the amount from the defendants/Electricity Board. Accordingly, he prays for dismissal of the appeal.
10. We have considered the materials placed and the rival contentions made by the respective counsel. We have also referred to the direction of this Court and the enquiry conducted by the Additional Chief Engineer. Inasmuch as the conclusion of the Additional Chief Engineer is under challenge by way of suit, which is pending before this Court, it is not proper for us to give any finding relating to the same at this juncture. However, the fact remains, the appellant was given adequate opportunity to put forth their defence and, in fact, they participated in the enquiry by examining witnesses on their side and also cross-examined the statement made by the Officers of the Board.
11. Learned Senior Counsel appearing for the appellant, by pointing out that the Meter in question was located in a room and nobody except the Department Officials can enter into the same, would state that it is highly impossible to arrive at the conclusion that the Meter was tampered by the appellant.
12. Here again, we are of the view that the said larger question has to be considered only at the time of trial by letting in evidence. Though an argument was advanced that the learned single Judge has not ascertained the balance of convenience and prima facie case, it is seen from the order of the learned single Judge that the learned Judge was conscious of the assessment order which was made after the enquiry by the Department and also aware of the fact that the amount was quantified for alleged theft of energy that too after adjudication. As rightly observed by the learned single Judge, whether the adjudicated assessment order is correct or not has to be decided only at the time of trial. Though the learned Judge has not referred to the pleadings of both parties in so many paragraphs, we are satisfied that the learned single Judge, taking note of the conclusion arrived at in the enquiry and of the fact that a huge amount is liable to be paid by the consumer, after observing that a blanket order of exparte injunction granted cannot be allowed to continue in favour of the applicant, imposed conditions as mentioned above.
13. Learned Senior Counsel also submitted that if the conditional order is being complied with, then, the applicant/appellant is complying with the direction of the Additional Chief Engineer for payment of the amount, for which alone, they approached this Court by way of Civil Suit. No doubt, the learned single Judge, after taking note of the fact that the amount demanded was arrived at only after the enquiry, directed the appellant for payment of Rs.1,00,00,000/- within a period of four weeks from 7.3.2005 and also directed the Board to adjust the rest of the amount from the payment payable by the Department in respect of the energy generated by the applicant/appellant.
14. In the light of our discussion, considering the materials placed, we are of the view that the major issues/questions raised by the appellant have to be considered only at the time of trial by letting in oral and documentary evidence. Taking note of the fact that the amount demanded was arrived at only after an enquiry, which was conducted after affording opportunity to the appellant, though the order of the learned single Judge is very brief, we are in agreement with the said conclusion and we do not find any valid ground for interference.
15. Accordingly, the appeal fails and the same is dismissed. No costs. C.M.P. Nos. 5626 & 5627 of 2005 are also dismissed.
16. After completion of the Judgment, learned Senior Counsel appearing for the appellant seeks further period of four weeks to make payment of Rupees one crore as ordered. Considering the grievance expressed, the appellant is granted another four weeks time from to-day.