Madras High Court
The Mohan Textiles, Rep. By Its Managing ... vs Tamil Nadu Electricity Board, Rep. By ... on 28 February, 2006
Equivalent citations: (2006)3MYSLJ
Author: S. Ashok Kumar
Bench: S. Ashok Kumar
JUDGMENT S. Ashok Kumar, J.
Page 1161
1. The plaintiff-Textile Unit has filed the suit for the relief of declaration and for continuous permanent injunction.
2. The averments in the plaint are the plaintiff textile unit was sanctioned with Service Connection Nos: 515, 516 and 517 by the defendant-Electricity Board and separate Cards have been issued. For the service connection No: 516, the sanctioned load was 94 H.P + 9 K.W as on 14.7.1986. The third defendant on 19.11.1986 inspected the Mill in the presence of the Sales Manager of the plaintiff Mill. Being the Sales Manager, he did not know the correct Horse Power of the machineries and gave wrong information. Hence, the plaintiff sent a letter on 12.12.1986 about the H.P., of the machineries. Later, on 19.12.1986 the second defendant issued a notice mentioning that 9.8 H.P of load had been used unauthorisedly a the time of inspection and also requesting to remove the said excess load. For which the plaintiff sent a letter on 24.12.1986. Thus when there is a dispute with regard to load, as per Schedule 6(3) of the Indian Electricity Act, only the Inspector has to determine the Page 1162 issue. No opportunity was given besides there was no enquiry. There was no details as to the method of calculation. Thus the provisional assessment issued without following the relevant Act and Rules is not valid in the eye of law.
3. The defendant-Electricity Board filed a written statement contending that they issued a notice prior to the inspection. During inspection in the presence of the representative of the plaintiff use of excess load was detected and for such violation of the terms and conditions of supply a notice was issued on 19.12.1986. Opportunity was given to the plaintiff to explain as to why over load was extracted. As per the Indian Electricity Act, the Assistant Divisional Engineer can also issue preliminary notice regarding the excess load. Notice and Provisional Assessment Notice have been issued by following the Act and Rules.
4. The learned District Munsif, Coimbatore, who tried the issues decreed the suit holding that usage of additional load was not proved by the defendants and the provisional assessment notice is not in accordance with rules and hence the same is not valid. On Appeal, the learned Subordinate Judge, Coimbatore reversed the said findings and allowed the appeal. Hence the second appeal by the plaintiff.
5. At the time of admission, the following substantial Question of Law was framed by this Court:-
Whether the judgment of the lower appellate court is vitiated by failure to apply the correct principles of law?
6. Heard Mr. K.Muthukumraswamy, learned counsel appearing for the appellant and Mr. S.Rajeswaran, learned standing counsel appearing for the respondents.
7. Learned counsel for the appellant firstly contended that the Electricity Board proceeded on the basis that the appellant had unauthorisedly used an additional load of 9.8 HP than the sanctioned load of 94 HP + 9 KW which is incorrect factually. According to the learned counsel 1 HP is equivalent to 0.746 KW i.e., 1.34 HP is equivalent to 1 KW. If that is so, 9 KW works out to 12.06 HP. On that basis, if the sanctioned load of 94 HP + 9 KW is calculated in HP, it comes to 106.06 HP and the connected load of 103.8 HP is lesser than the sanctioned load and hence there is no malpractice or violation of the terms and conditions of Supply.
8. Learned counsel for the appellant secondly contended that in Ex.A.8 Provisional Assessment Notice, the words "Amount of loss sustained by the Board. You may make..." as contained in Appendix-V have been omitted and thus Ex.A.8 is illegal and ununderstandable. In support of the said decision the learned counsel relies on the decision reported in Ramdas Sriniwas v. A.R. Antulay case .
9. Learned counsel for the appellant thirdly submitted that in Ex.A.8 it is stated as if the enquiry will be made both by the Superintending Engineer Page 1163 and Divisional Engineer, which procedure is contrary to provisions contained in Clause 5 of the Terms and Conditions of Supply.
10. Learned counsel for the appellant fourthly submitted that as per Clause 8 of Schedule of Terms and Conditions of Supply, the assessment shall be made at the rate of Rs. 1 per unit and the assessment made in the instant case at Rs. 2 per unit in Ex.A.8 is contrary to the said provisions.
11. Finally, the learned counsel for the appellant contended that after the enactment of Electricity Act 2003, which came into force on 10.6.2003, by Section 185 of the said Act, the earlier Electricity Act 1910 and Electricity Supply Act, 1948 have been repealed and by the new Act, the power is vested only with the Sate Electricity Regulatory Commission and the Electricity Board is devoid of any power and hence Ex.A.8 Provisional Assessment Notice ceased to have any effect as there is no saving clause.
12. Learned counsel for the appellant also contended that the first appellate court erred in holding that there is a Appellate Forum when the suit itself has been filed to declare that the Provisional Assessment Notice itself is bad in law.
13. Learned standing counsel appearing for the respondent-Electricity Board contended that only on detecting use of unauthorised load by the Anti Power Theft Squad of the respondent-Board, notice was issued to remove the said unauthorised load. The learned counsel also contended that in Ex.A.4 Notice itself it was stated that "The bills will be revised for a back period of one year prior to the date of inspection as per revised terms and conditions of supply. In reply to that, in Ex.A.5, the plaintiff in the last paragraph stated that "if there is any procedure to levy penalty even for the mistake in giving the load particulars, I request that the penalty may be arrived from the last date of inspection of the premises by your A.E., A.D.E., or D.E. In Ex.A.7 letter dated 23.2.1987 the plaintiff wrote to the respondent-Board that the 9 KW load was connected on 18.11.1986 based on their requisition with ADE in addition to 94 HP already sanctioned. Thus the appellant has admitted that 9 KW is excess/additional load. In Ex.A.5 the appellant has stated that he is prepared to pay the penalty charges. Thus on the materials available by his own admissions the plaintiff has been found to be using unauthorised load of 9 KW.
14. As regards the provisional assessment, there is an amendment substituted on 20.1.1986. The date of inspection was on 18.11.1986 and that is why it has been assessed at the revised rate of Rs. 2 per unit. Admittedly the appellant has not filed any appeal. The learned counsel for the respondents submitted that a suit cannot be filed straightway when there is an alternate remedy of appeal as has been held by the Supreme Court in AIR 1997 Punjab and Harayana page 76.
15. Admittedly, this case falls under "malpractice" for the alleged unauthorised load or load used for other purpose. In this connection even as seen from the provisional assessment notice, Ex.A.8, it is seen that the said notice is not in the prescribed format. As has been rightly contended by the learned counsel for the appellant, the printed format of the second paragraph should be as follows:-
Page 1164 The above factors indicates that you are guilty of malpractice. An enquiry will be made into the mater by he Superintending Engineer/Divisional Engineer who will fix the amount of loss sustained by the Board. you may make appropriate representation to him in this regard.
16. As contended by the learned counsel for the appellant in Ex.A.8, the wordings ..."amount of loss sustained by the Board. you may make..." are missing which only shows the non application of mind on the part of the concerned authorities. By this omission one could say that there is no allegation of loss sustained by the Board. Moreover, as provided in the format, the enquiry will be made in the matter either by the Superintending Engineer or Divisional Engineer and to whom the aggrieved person may make appropriate representation. In the notice the wordings of both the Superintending Engineer and the Divisional Engineer find place without scoring out the other and thus the appellant has been put in a position of not being known with whom he shall make a representation. As rightly held by their Lordships, in Ramdas Srinivas Nayak v. A.R. Antulay reported in 1984 SC 718, the "Law requires a thing to be done in a particular manner. It shall be done in that manner only. Other modes of performance are forbidden. Accordingly, Ex.A.8, Provisional Assessment Notice, not being in the prescribed format is illegal and unenforceable in the eye of law.
17. The trial court also held that a prior show cause notice as provided in the Terms and Conditions of Supply" has not been issued to the appellant, instead directly the provisional assessment notice has been issued to him.
18. As regards the alleged unauthorised load capacity, as seen from Ex.A.8 provisional assessment notice the actual connected load at the time of inspection has been mentioned as 103.8 HP + 680 W and sanctioned and permitted load has been noted as 94 HP + 9KW and unauhorised load or load misused for other purpose has been noted as 9.8 HP. In this connection, as rightly argued by the learned counsel for the appellant, if 9KW load is converted in terms of horse power (HP), it works out to 12.06 HP as 1 HP is equivalent to 0.746 KW. Though as seen from Exs.B.6, Inspection Report, which has been filed in the first appellate court, it is seen that 94 HP is meant for motive and 9KW is meant for lighting purposes, it is not clear whether the respective sanctioned loads of the same Service Connection with a common reading meter have to be used only for such purposes and they shall not be connected together. Admittedly, as seen from Ex.A.8 provisional assessment notice, the total capacity of 94 HP + 9 KW is for the S.C. No. 516. In this regard, even the trial court found that the it is only on the statement given by the sales manager of the appellant the use of unauthorised load has been detected.
19. It is very unfortunate that the defendants have not produced copy of the Inspection report or the Diary relating to the inspection or the details of machineries with such horse powers, which were unauthorisedly connected before the trial court. Nor, such details have been given in the written Page 1165 statement filed by them. Nor a copy of the same have been given to the appellant. Even in Exs.B5 to B.7 there is no details as to the machineries with which excess load was connected and the value of the Horse Power of such machineries. Even the alleged statement, based on which the unauthorised load has been detected has not been produced though it is contended that the same has been given back to the appellant which has been disbelieved by the trial court. Thus, in the absence of any explanation as to substantiate the alleged use of unauthorised load of electricity, when the total sanctioned and permitted load is 106.06 HP for S.C. No. 516 as contended by the counsel for the appellant and even the use of 103.8 HP + 680 W at the time of inspection is within the sanctioned and permitted load of 106.06 HP (94 HP + 12.06 HP), it has to be held that the Electricity Board has not proved its case by adducing sufficient, relevant and accepting materials.
20. As rightly contended by the counsel for the appellant, when the provisional notice itself is illegal in the eye of law, the contention of the counsel for the respondent that the appellant has to only invoke the appellate remedy and the suit is not maintainable cannot be countenanced.
21. For the reasons stated above, the substantial question of law is answered accordingly and the Second Appeal is allowed confirming the judgement and decree of the trial court. No costs.