Madras High Court
Vasudevan vs The Tamil Nadu Electricity Board on 30 October, 2014
Author: R.Mahadevan
Bench: R.Mahadevan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 30.10.2014. CORAM THE HON'BLE MR.JUSTICE R.MAHADEVAN S.A.No.879 of 2006 and M.P.No.1 of 2006 Vasudevan Appellant vs. 1. The Tamil Nadu Electricity Board, rep by Superintendent Engineer, Electricity Distribution Circle, Tiruvannamalai. 2. The Junior Engineer (O&M), Tamil Nadu Electricity Board, Polur (Town). Respondents Second Appeal against the judgment and decree dated 7.4.2006 in A.S.No.16 of 2005 on the file of the Sub Judge, Tiruvannamalai as against the judgment and decree dated 30.3.2005 in O.S.No.358 of 1998 on the file of the District Munsif, Polur. For appellant : Mr.V.Raghavachari For respondents : Mr.V.Viswanathan JUDGMENT
Plaintiff in O.S.No.358 of 1998 on the file of the District Munsif, Polur is the appellant in the second appeal.
2. The appellant/plaintiff filed the abovesaid suit for the relief of declaration that the notices dated 25.8.1998 and 28.7.1998 are illegal and void, for grant of permanent injunction restraining the defendants from collecting consumption charges under Tariff III-B and for grant of mandatory injunction directing the defendnats to effect a separate single phase service connection under Tariff V to the plaintiff's premises. The case of the plaintiff is as follows:-
The plaintiff was running an ice candy manufacturing unit with service connection No.04330 under low tension tariff III-B. Subsequently, the plaintiff, on getting a certificate from the Director of Industries and Commerce, Chennai to the effect that his unit is a Small Scale Industry, applied to the Electricity Board to change the Tariff from III-B to III-A. The second defendant also converted the service connection from Tariff III-B to III-A and the plaintiff was paying the charges under such cateogry. Whileso, the defendants have issued the impugned notice dated 25.8.1998 which is challenged by way of filing the suit. Further, the defendants have issued another notice dated 28.7.1998 rejecting the request for separate connection under Tariff V sought for by the plaintiff for lighting and running a fan in the verandha of the premises where his Ice Factory is being run. Therefore, the plaintiff has filed the suit as against both the notices issued by the defendants.
3. The suit was resisted by the defendant/respndent herein contending that vide Government Order 17, dated 14.2.1997, the Government had issued revised Tariff rates wherein the ice fctory has been categorised as an inudstry and the tariff was also changed and that the concession that was given to the plaintiff was withdrawn and the same was intimated to the plaintiff on 25.8.1998 and that according to the terms and conditions of Supply of Electricity approved in B.P.61 dated 24.12.1998, vide clause 501, the consumer shall pay charges as per the tariff that are being revised from time to time. It was further contended by the defendants that more than one service connection would be given, only if there is a permanent physical segregation of areas. The plaintiff has an appellate forum to vindicate his grievance, but, instead of doing so, he has come up with the present suit and hence, it may be dismissed, it was further contended by the defendants.
4. The Trial Judge framed five issues which are as follows:-
i) Whether the plaintiff is entitled for declaring the notice dated 25.8.1998 and 28.7.1998 as illegal and void?
2) Whether the plaintiff is entitled for permanent injunction from collecting the consumption under tariff III-B?
3) Whether the plaintiff is entitled for mandatory injunction prayed for?
4) Whether the suit filed by the plaintiff without first availing the remedy provided under Electricity Act is maintainable?
5) To what relief?
5. The plaintiff examined himself as PW1 and marked 6 documents while the Junior Engineer of the defendant Electricity Board was examined as DW1 and 6 documents were marked. After trial, the Trial Court dismissed the suit. On appeal, the appellate court concurred with the finding of the Trial Court. As against the same, the present second appeal has been filed by the plaintiff.
6. The second appeal has been admitted identifying the following substantial questions of law:-
i) When the registration certificate Ex.A6 shows that the appellate unit is a small scale Industry, whether the name 'Simla Ice Factory'would change the nature of its operation as to manufacture?
ii) Having found that the respondent Electricity Board is incorrect in levying charges on manufacturing basis to the appellant, whether the courts below are right in advising the Board to reconsider its levy instead of declaring the impugned order as void ab initio?
7. The arguments advanced by Mr.V.Raghavachari, learned counsel for the appellant and by Mr.V.Viswanathan on behalf of the respondents are heard. The materials available on record are also perused.
8. The suit is one for the relief of declaration and injunction. The main grievance of the appellant/plaintiff is that when he has got Permanent Registration Certificate, Ex.A6 issued by the Director of Industries and Commerce, Chennai to the effect that his unit is a Small Scale Industry, the Tariff adopted by the Board is suddenly changed to exorbitant levels without issuing any show cause notice in that regard.
9. Learned counsel for the appellant would submit that when such change of tariff is proposed, it is mandatory on the part of the Electricity Board to issue prior notice since his unit was treated originally as a small scale industry as evidenced by Ex.A6 and now it is deemed as a manufacturing unit and hence, there is clear violation of principles of natural justice. He further submitted that though the name of his company is styled as 'Simla Ice Factory', no manufacturing activity is involved to treat the same as a manufacturing unit.
10. Learned counsel for the respondents-Electricity Board submitted that it is not mandatory to issue show cause notice to the consumer for each and every tariff change like the issue of disconnection or action proposed to be taken in case of theft of energy especially when the tariff change is effected and their claim is on the basis of the Government Order 17 dated 14.2.1997 and therefore, there is no violation of principles of natural justice and if at all, the plaintiff is aggrieved, it is for the plaintiff to challenge the Government Order.
11. It is not in dispute that originally, the plaintiff was given the concession deeming it as Small Scale Industry as evidenced by Ex.A6, Permanent Registration Certificate issued by the District Industries Centre, Tiruvannamalai District. The plaintiff has produced Electricity Consumption Charges card and receipt viz., Exs.A2 and A4. The grievance is that subsequently, the concession was withdrawn by the Electricity Board. Of course, it is not a case of theft of energy or a proposed disconnection. Similarly, it is not a regular hike in tariff. The tariff is changed totally considering the consumer under some other category. Therefore, it is needless to say that an opportunity has to be afforded to the consumer prior to effecting the change of tariff categorising the consumer into some other category. The Board cannot simply issue a notice demanding higher tariff in such case. Hence, this court is of the view that both the courts below have committed error in rejecting the case of the plaintiff with regard to declaration and permanent injunction.
12. With regard to the prayer of mandatory injunction for directing the respondents/defendants to effect a separate connection, on perusal of the entire materials available on record, it is found that the defendants have expressed the impossibility of providing a separate service connection in the same premises which is within the ambit of the powers and competency of the Board as rightly observed by the courts below.
13. It is submitted by the learned counsel for the respondents-Electricity Board that the appellate remedy available to the plaintiff has not been exhausted by him and hence, the suit is not maintainable.
14. In a similar case in MOHAN TEXTILES v. TAMIL NADU ELECTRICITY bOARD, ((2006) 3 MLJ 207), this court has held that provisional assessment order made without a show cause notice is defective on account of non-application of mind and the suit filed therein without exhausing the appellate remedy was held to be maintainable. In RANBAXY LABORATORIES v. PUNJAB STATE ELECTRICITY BOARD (AIR 2004 PUNJAB AND HARYANA 137), it has been held that since the statute has not constituted alternative dispute settlement mechanism, therefore, such alternative dispute settlement mechanism established by the Board by way of regulations is in the nature of departmental remedies which cannot oust the jurisdiction of the Civil Court.
15. In NAGALAKSHMI FLOUR MILLS (P) LT. v. THE SUPERINTENDING ENGINEER (1998(1) CTC 170), a Division Bench of this court, while dealing with a similar situation, held as follows:-
"Therefore, we see no justification for withdrawing the concession without providing an opportunity of being heard. On this ground, we set aside the order of the learned single Judge, keeping open all the contentions of the appellant and the respondent Board may issue a show cause notice notifying him the grounds for withdrawing the concession and after affording an opportunity of being heard which includes the argument and evidence within a reasonable time, with reasons to be stated and may pass such suitable orders in accordance with law within six months from the date of this order and the amount deposited in pursuance of the direction of this Court in this appeal to carry an interest of 10% p.a. from today, till such time the matter is disposed of and to be adjusted towards the amount if payable by the appellant."
16. Therefore, this court is of the view that jurisdiction of the civil courts is not ousted by the appellate remedy available for the plaintiff. Hence, the suit filed by the plaintiff is maintainable. In the light of the above observation, both the substantial questions of law are answered in favour of the appellant/plaintiff.
17. In the result, the second appeal succeeds. The judgment and decree in A.S.No.16 of 2005 on the file of the Sub Judge, Tiruvannamalai and the judgment and decree in O.S.No.358 of 1998 on the file of the District Munisf, Polur with regard to declaration and permanent injunction are set aside. The suit is decreed with regard to declaration and permanent injunction and dismissed with regard to the prayer for mandatory injunction. However, it is made clear that it is open to the respondents/defendants to issue show cause notice and proceed afresh in accordance with law. The deposit made by the appellant/plaintiff as directed by this court as a pre-condition for grant of interim injunction is directed to be refunded to the appelant/plaintiff. The connected miscellaneous petition is closed. However, there shall be no order as to costs.
30.10.2014.
Index: Yes.
Internet: Yes.
ssk.
To
1. Sub Judge, Tiruvannamalai.
2. District Munsif, Polur.
3. The Tamil Nadu Electricity Board, rep by Superintendent Engineer, Electricity Distribution Circle, Tiruvannamalai.
4. The Junior Engineer (O&M), Tamil Nadu Electricity Board, Polur (Town).
5. The Section Officer, V.R. Section, High Court, Madras.
R.MAHADEVAN, J.
Ssk.
S.A.No.879 of 200630.10.2014.