Madras High Court
The Executive Engineer vs Subramania Reddy on 31 January, 2012
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 31.01.2012 CORAM: THE HONOURABLE MR.JUSTICE M.VENUGOPAL SECOND APPEAL No.593 of 1999 1. The Executive Engineer, MEDC/North/Ponneri. 2. The Assistant Accounts Officer, MEDC/North/Ponneri. 3. The Assistant Executive Engineer, MEDC/North/Panjetty. ... Appellants/Defendants vs. Subramania Reddy ... Respondent/Plaintiff Second Appeal filed under Section 100 C.P.C. against the Judgment and Decree dated 10.06.1998 made in A.S.No.65 of 1996 on the file of the Sub Court, Tiruvallur, confirming the Judgment and Decree dated 22.03.1996 made in O.S.No.811 of 1992 on the file of the District Munsif Court, Ponneri. For Appellants : Mr.V.Viswanath For Respondent : Ms.D.Lavanya for Mr.N.R.Anantharamakrishnan .. .. .. .. .. .. .. J U D G M E N T
The Appellants/Defendants have projected this present Second Appeal as against the Judgment and Decree dated 10.06.1998 in A.S.No.65 of 1996 passed by the Learned Sub Judge, Tiruvallur, confirming the Judgment and Decree dated 22.03.1996 in O.S.No.811 of 1992 passed by the Learned District Munsif, Ponneri.
2. The First Appellate Court, viz., Learned Sub Judge, Tiruvallur, while passing the Judgment in A.S.No.65 of 1996 on 10.06.1998, has among other things, opined that in the trial Court Judgment, it is mentioned that the penalty is not liable to be paid by the Respondent/Plaintiff and further that he has to remit a sum of Rs.9,494.50 towards the balance outstanding electricity amount. Further, after the Judgment and Decree passed by the trial Court in the main suit, the Respondent/Plaintiff has paid a sum of Rs.9,494.50 being the electricity due amount to be paid to the Electricity Board and also obtained electricity connection as informed on the side of the Appellants/Defendants and as such the Appeal is not maintainable and dismissed the Appeal without costs, thereby confirming the Judgment and Decree passed by the trial Court in the main suit.
3. Before the trial Court, in the main suit, one to two issues have been framed for determination. On behalf of the Respondent/Plaintiff, witness P.W.1 has been examined and Ex.A1 has been marked. On the side of the Appellants/Defendants, witness D.W.1 has been examined and Exs.B1 to B5 have been marked.
4. The trial Court, on appreciation of the entire oral and documentary evidence available on record, has come to a clear conclusion that the Respondent/Plaintiff has sought permission with the Appellants/Defendants to pay a sum of Rs.9,494.50 in instalments and as regards the sum of Rs.9,494.50, the same is not hit by limitation and directed the Respondent/Plaintiff to pay the aforesaid amount to the Appellants/Defendants and also the Appellants/Defendants have been directed to receive the sum of Rs.9,494.50 from the Respondent/Plaintiff and to give reconnection to the disconnected electric supply and accordingly, passed a Decree of mandatory injunction without costs. The Respondent/Plaintiff has also been granted a month's time to pay the said sum of Rs.9,494.50 to the Appellants/Defendants.
5. At the time of admission of the Second Appeal, this Court has formulated the following Substantial Questions of Law for rumination :
(i) Whether the Courts below are correct in decreeing the suit in view of the decision rendered by the Hon'ble Supreme Court reported in JT 1997 (2) SC 328 ?
(ii) Whether the finding of the Courts below are correct in view of the decision reported in 1997 (III) CTC P.527 and 1999 (1) CTC 289 ?
(iii) Whether the decision of the Courts below are correct in view of the provisions of Section 24 of the Indian Electricity Act 1910?
The Contentions, Discussions and Findings on Substantial Questions of Law :
6. According to the Learned Counsel appearing for the Appellants/Defendants (E.B.), both the Courts below ought to have dismissed the suit in limine and should have held that the Respondent/Plaintiff is not entitled to claim the relief of mandatory injunction as claimed for by him in the plaint.
7. The Learned Counsel for the Appellants/Defendants (E.B.), urges before this Court that the suit service connection in S.C.No.36:144:90 (in the name of the Respondent/Plaintiff) has been disconnected long back and the Respondent/Plaintiff can only seek for a fresh service connection.
8. The Learned Counsel for the Appellants/Defendants (E.B.), submits that the trial Court and the first Appellate Court have failed to appreciate in regard to the fact that the claim of arrears of current consumption charges and BPSC charges by the Electricity Board is barred by limitation.
9. Lastly, it is the contention of the Learned Counsel for the Appellants/Defendants (E.B.) that while directing the Respondent/Plaintiff to pay a sum of Rs.9,494.50 to the Electricity Board, both the Courts below have incorrectly held that the Appellants/Defendants (E.B.) are not entitled to collect BPSC and other charges amounting to Rs.29,668/-.
10. Per contra, it is the contention of the Learned Counsel for the Respondent/Plaintiff that both the Courts below have appreciated the entire oral and documentary evidence available on record and has come to a clear conclusion that the Respondent/Plaintiff has to pay a sum of Rs.9,494.50 to the Electricity Board and to obtain reconnection and also subsequent to the Judgment and Decree passed by the trial Court in the main suit, the Respondent/Plaintiff has paid a sum of Rs.9,494.50 to the Appellants/Defendants (E.B.) and also obtained reconnection of electricity supply and in that view of the matter, the First Appellate Court has held in its Judgment in A.S.No.65 of 1996 that the Appeal filed by the Appellants/Defendants (E.B.) is not maintainable and dismissed the Appeal with costs.
11. The Respondent/Plaintiff in the plaint in O.S.No.811 of 1992 on the file of the trial Court has averred that he is the owner of Agricultural service connection bearing S.C.No.36:144:90 and that he has been prompt and regular in payment of current consumption charges and thereafter, the borewell has failed and he has incurred a loss and he has no source of income. Therefore, he has not been in a position to pay the consumption charges and the suit service connection has been disconnected ten years ago for non-payment of current consumption charges.
12. According to the Respondent/Plaintiff, he is a member of the Thamilaga Vivasayigal Sangam and in view of the order of the High Court in Writ Proceedings, the Respondent/Plaintiff is not liable for any belated payment of surcharge.
13. The Respondent/Plaintiff has averred that he is prepared to pay whatever amount that he is legally liable to pay to the Electricity Board and he is not liable for any belated payment of surcharge. Furthermore, finally he approached the Appellants/Defendants (E.B.) on 22.12.1992 offering to pay the dues legally recoverable from him demanded for reconnection and the Appellants/Defendants (E.B.) have been evasive and not at all receptive. Therefore, he has filed a suit praying for the relief of mandatory injunction in directing the Appellants/Defendants (E.B.), their men, servants, agents and subordinates to give electricity supply and reconnection to the suit service connection viz., S.C.No.36:144:90 in Perumalkuppam Village, Ponneri Taluk.
14. The second Appellant/second Defendant in his Written Statement (adopted by the 1st and 3rd Defendants), has taken a plea that the Agreement Holder of the agricultural suit, who disconnected service connection in S.C.No.36:144:90 at Perumalkuppam, Arani is one Thiru.Subramani. The service is 7.5 HP load and the supply has been disconnected for non-payment of current consumption charges for long back.
15. A notice has been issued to the Respondent/Plaintiff as per Section 3(1) of TNEB, (Recovery of Dues Act, 1978) (Tamil Nadu Act 29 of 1978), wherein, CC charges arrears up to November, 1981 in respect of Account No.36:144:90 has been claimed for Rs.9,494.50.
16. According to the Appellants/Defendants (E.B.), the Belated Payment Surcharge up to December 1992 comes to Rs.26,259.10; the monthly minimum charges from December 1981 to September 1984 comes to Rs.170/- and lumpsum charges from September 1984 to July 1990, comes to Rs.3,239.70. Further, the Respondent/Plaintiff has represented during October 1991 for payment of arrears by instalments, which has been permitted, but he has not paid the amount so far. He has filed the present suit in the District Munsif Court, Ponneri for restoration of electricity supply during December 1992.
17. The Respondent/Plaintiff has demanded a concession in regard to the restoration of electricity supply, since he is an Agriculturist. But, since he has approached for the relief of concession to the Agriculturists beyond 31.12.1991, he is not entitled to avail the benefits.
18. P.W.1 (Respondent/Plaintiff), in his evidence, has deposed that six months before filing of the suit, he put a new bore and requested the Appellants/Defendants (E.B.) to restore his electricity connection, but he has been informed that he has to pay a sum of Rs.33,000/-, but he could not pay such amount and since the Electricity Board has not collected the arrears within three years, the claim is barred by limitation and since the Appellants/Defendants (E.B.) have not accepted his plea of limitation, he has filed the present suit.
19. P.W.1 (in his cross-examination), has categorically admitted that since he has not paid the outstanding amount, the electricity service connection has been disconnected ten years before and he has not been issued with Section 3(1) notice as per the TNEB Recovery of Dues Act, 1978 and it is not correct to state that he has approached the Appellants/Defendants (E.B.) and requested for payment of the outstanding amount in instalments.
20. The evidence of P.W.1 proceeds to the effect that it is incorrect to state that as per the Electricity Board terms and conditions, he has to pay the amount mentioned in the Written Statement and further, it is not correct to state that as per the Revenue Recovery Act, he has to pay the amount claimed by the Appellants/Defendants (E.B.).
21. It is the evidence of D.W.1 (Assistant Accounts Officer of TNEB) that the due in respect of the suit electricity service connection amounts to Rs.9,494.50 for the period from June 1978 till November 1981 and that the demand will be sent in writing and if the electricity charges are not paid in time, the service connection will be disconnected.
22. It is the evidence of D.W.1 that the electricity due amount and the penalty amount are beyond limitation and before 31.12.1991, the Respondent/Plaintiff (Consumer) has not been informed to pay the electricity charges and that the petition given by the Respondent/Plaintiff in writing has not been filed and he does not know about the petition given by the Respondent/Plaintiff in writing.
23. D.W.1 (in his cross-examination), has deposed that as per Ex.B5, the balance is Rs.13,963/- and in Ex.B3, there is no reference as to the delayed penalty interest and as per Ex.B5, a month's electricity charges will have to be paid next month.
24. The Learned Counsel for the Appellants/Defendants (E.B.) submits that the Courts below have incorrectly decreed the suit because of the fact that as per Section 24 of the Indian Electricity Act, the Electricity Board is entitled to demand and collect any charge from the Consumer and collect the same towards the electricity energy supply by the Board. To lend support to his contention that the Appellants/Defendants (E.B.) are entitled to demand and collect any charge from the Respondent/Plaintiff in respect of electrical energy supply by the Electricity Board, the Learned Counsel for the Appellants/Defendants relies on a decision of the Honourable Supreme Court reported in Judgment Today 1997 (2) SC 328 (M/s.Swastic Industries vs. Maharashtra State Electricity Board), wherein it is held as follows:
"Section 60-A of the Electricity (Supply) Act, 1948 envisages the enlargement of the period of limitation in certain circumstances, i.e. intervening period of the constitution of the Board, and the right of the State to recover the amounts due to the State for consumption of electricity delegating the power to the Board.
This is an enabling provision by way of suit. Despite the fact that Section 24 of the Indian Electricity Act clearly empowers the Board to demand and collect any charge from the Consumer and collect the same towards the electrical energy supplied by the Board.
It would, thus, be clear that the right to recover the charges is one part of it and right to discontinue supply of electrical energy to the consumer who neglects to pay charges is another part of it. The right to file a suit is a matter of option given to the licensee, the Electricity Board. Therefore, the mere fact that there is a right given to the Board to file the suit and the limitation has been prescribed to file the suit, it does not take away the right conferred on the Board under Section 24 to make demand for payment of the charges and on neglecting to pay the same. They have the power to discontinue the supply or cut-off the supply, as the case may be, when the consumer neglects to pay the charges. The intendment appears to be that the obligation are mutual."
25. The pith and substance of the contention advanced by the Learned Standing Counsel for the Electricity Board is that the Electricity Board has the power under the Electricity Act to discontinue electricity supply or cut-off the supply when the Respondent/Plaintiff (Consumer) neglects to pay the due charges. As per Section 24 of the Indian Electricity Act, the Board is competent to make demand for payment of charges and on neglect to pay the same, the Board is entitled to file a suit against the Consumer.
26. It is to be pointed out that in the present case on hand, admittedly, the Appellants/Defendants (E.B.) have not filed a suit claiming arrears of electricity charges or any penalty amount due to be paid by the Respondent/Plaintiff before the competent Civil Court.
27. Also, the Learned Counsel for the Appellants/Defendants (E.B.) cites a decision of this Court reported in 1997 (III) CTC 527 (Asmath Begum vs. The Superintending Engineer, Tamil Nadu Electricity Board, Mattur and others), wherein, it is held that the right to recover the arrears due to Electricity Board cannot be lost by any period of limitation stipulated in Limitation Act and the provisions contained in Section 24 is special provision to safeguard the interest of Electricity Board and the amount due to Board could not be prevented from being recovered by having recourse to Section 24 of Electricity Act.
28. In short, the substance of the stand of the Appellants/Defendants (E.B.) is that the power of disconnection and the power of dismantling of installation for non-payment of dues cannot be lost by any period of limitation adumbrated under the Limitation Act.
29. Apart from the above, the Learned Counsel for the Appellants/Defendants (E.B.) cites another decision of this Court reported in 1999 (I) CTC 289 (S.M.Amarchand Sowcar (died) and others vs. Tamil Nadu Electricity Board, Kancheepuram and others), wherein, it is held that in a suit for declaration, the order of disconnection of electricity does not involve right to property or right of legal character and Courts cannot grant futile Decree or Order. Further, as per the terms and conditions of agreement providing for disconnecting service connection, when there are arrears in respect of another service connection of the same consumer, the parties to the agreement are bound by the agreement. Furthermore, it is also held in the said decision that the right to disconnect supply to Consumer is always available and not circumscribed by any limitation and that such right is not dependant on existence of the Board's right to recover its dues by filing a suit and the question of limitation would arise only when the Board files a suit to recover the arrears of electricity charges.
30. At the risk of repetition, this court once again points out that the Appellants/Defendants (E.B.) have not filed a suit against the Respondent/Plaintiff claiming arrears of electricity charges or any amount due as surcharge amount or any penalty amount. Therefore, the plea of limitation cannot be availed by the Respondent/Plaintiff in the considered opinion of this court. Unfortunately, both the trial Court as well as the First Appellate Court have overlooked the ingredients of Section 24 of the Indian Electricity Act, 1910, which has resulted in serious miscarriage of justice as opined by this court. One cannot ignore the fact that the word 'Due' under Section 24 of the Indian Evidence Act, 1910 takes within its ambit the amount payable, even though their recovery may be barred by law of limitation.
31. The mandate prescribed under Sections 20 or 24 of the Indian Evidence Act, 1910 cannot be superceded, circumvented or supplanted or evaded or avoided by any Court of Law to grant the relief of injunction, muchless the mandatory injunction as sought for by the Respondent/Plaintiff in the suit.
32. To put it succinctly, both the trial Court and the First Appellate Court have committed serious material irregularity coupled with patent illegality in decreeing the suit and has taken away the right of the Electricity Board to collect its lawful and legitimate dues to be paid by the Respondent/Plaintiff.
33. This Court worth recalls the decision in Jayaramachandran vs. Tamil Nadu State Electricity Board reported in AIR 2002 (Madras) 230, wherein, it is held that suit filed without exhausting remedies under the Act is not maintainable.
34. Further, this Court aptly points out a decision reported in 2007 (5) MLJ 58 (Madras) (Nahar Enterprises vs. The Chairman, Tamil Nadu Electricity Board, Chennai and others), wherein, it is held that the suit filed challenging the order of assessment of extra levy on the ground of alleged theft of energy is not maintainable before the Civil Court, since the Civil Court's jurisdiction is impliedly barred because of the fact that effective remedy of Appeal is provided.
35. Moreover, in a decision reported in 1999 MLJ (Suppl.) 361 (Madras) (Raniammal and others vs. Divisional Electrical Engineer, Tamil Nadu Electricity Board, Kumbakonam and another), it is held that the Board can disconnect supply of electricity to any other service connection of the Consumer in case of default by the Consumer.
36. Also, in a decision reported in 1999 MLJ (Suppl.) 510 (Madras) (Tamil Nadu Electricity Board, Thanjavur Distribution System, Thanjavur and others vs. Shanmuga Engineering College and Shanmuga Polytechnic, Vallam, Thanjavur), it is held that a Civil Court cannot give a finding on question of excess load.
37. In view of the candid fact that the Electricity Board's right to recover the dues is an independent and also an indefeasible right, it is not open to the Respondent/Plaintiff in law to take a plea or to contend that the suit filed by him in regard to the restoration of electricity service connection in S.C.No.36:144:90 by means of mandatory injunction and further to make a plea without recovery of arrears is barred by limitation or untenable in the eye of law. It cannot be gainsaid that the disconnection of electricity for non-payment of dues by the Electricity Board in respect of consumption is not a case of one involving any right to property or right to legal character in the manner known to law.
38. If a Judgment is void on the face of it, then it is not legally enforceable at all. Continuing further, by such void Judgment/Judgments, no rights will flow or accrue and divested and none can be obtained, in the considered opinion of this court, for the simple reason that such Judgment neither binds nor bars any one.
39. For the foregoing reasons and in the light of the detailed, qualitative and quantitative discussions mentioned supra and on overall assessment of the attending facts and circumstances of the case, in a conspectus and in a cumulative fashion, this court is left with no other option but to come to a categorical, irresistable conclusion that the suit filed by the Respondent/Plaintiff on the file file of O.S.No.811 of 1992 is not maintainable in the eye of law. Therefore, both the Courts below have committed a material irregularity and patent illegality in decreeing the suit thereby warranting interference of this court in the Second Appeal, because of the fact that the Judgment of the trial Court and that of the First Appellate Court not only suffer from perversity, but the same are not based on well settled legal position in law.
40. Accordingly, the Substantial Questions of Law 1 to 3 are answered against the Respondent/Plaintiff and decided in favour of the Appellants/Defendants (E.B.). Resultantly, the Second Appeal succeeds.
41. In the result, the Second Appeal is allowed leaving the parties to bear their own costs. Resultantly, the Judgment and Decree of the First Appellate Court dated 10.06.1998 passed in A.S.No.65 of 1996 are set aside by this Court for the reasons assigned in this Appeal to promote substantial cause of justice.
42. It is made clear that the payment of arrears of Rs.9,494.50 by the Respondent/Plaintiff and the subsequent restoration of electricity supply for the suit service connection in S.C.No.36:144:90 by the Appellants/Defendants (E.B.) will not preclude the Appellants/Defendants in any manner to claim the arrears of amount to be determined by them after following the due procedural aspects of law, by taking recourse to appropriate proceedings before the competent forum or to make the claim as per the Electricity Act.
Index : Yes
Internet : Yes 31.01.2012
abe
To :
1. The Sub Court, Tiruvallur.
2. The District Munsif Court, Ponneri.
M.VENUGOPAL,J.
Abe
Judgment in
S.A.No.593 of 1999
Dated: 31.01.2012