Madras High Court
Thirumangalam Agricultural Producers vs The Superintending Engineer on 18 November, 2011
Author: M.Venugopal
Bench: M.Venugopal
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 18/11/2011
CORAM
THE HONOURABLE Mr.JUSTICE M.VENUGOPAL
Second Appeal (MD) No.643 of 2006
a n d
M.P.(MD) No.1 of 2006
Thirumangalam Agricultural Producers
Co-op Marketing Society Ltd
rep. through its Special Officer
Thirumangalam
Madurai. ... Appellant
Vs
1. The Superintending Engineer
Madurai Electricity Distribution Circle
Tamil Nadu Electricity Board
K. Pudur
Madurai 7.
2. The Assistant Engineer
Tamil Nadu Electricity Board
Thirumangalam
Madurai District. ... Respondents.
Appeal filed under Section 100 of the Code of Civil Procedure against the
Judgment and Decree dated 6/7/2005 passed in A.S.No.213 of 2004 on the file of I
Additional Subordinate Court, Madurai as confirming the judgment and decree
dated 5/1/2004 passed in O.S.No.10 of 2002 on the file of the District Munsif
Court, Thirumangalam.
!For Appellant ... Mr.R.Subramanian
^For Respondents ... Mr.Mohan Babu
- - - - - -
:JUDGMENT
The Appellant/Plaintiff has filed the instant Second Appeal as against the Judgment and Decree dated 6/7/2005 in A.S.No.213 of 2004 passed by the learned First Additional Sub-Judge, Madurai in confirming the Judgment and Decree dated 5/1/2004 in O.S.No.10 of 2002 passed by the learned District Munsif, Thirumangalam.
2. THE PLAINT SCENARIO:- The Appellant/Plaintiff/Society is engaged in marketing the consumer items like sugar, wheat, rice etc., and also ginning cotton and decorticating the ground nut. The farmers used to bring cotton and ground nut for ginning and decorticating purposes and the Appellant/Plaintiff/Society would do the job on receiving the conversion charges only according to the quantity brought by the farmers. Earlier, practically, there has been no competition for ginning the cotton. As such the Appellant/Plaintiff/Society would invariably received large quantities of cotton and ground nuts being brought by the farmers. At that time, there would be a full time functioning of machineries being used for ginning and decorticating purposes. Also, there would be the consumption of electricity to a considerable level and even on those occasions, the maximum electricity consumption charges would be around Rs.10,000/-.
3. The service connection available in the Appellant/Plaintiff/Society premises for operating the machinery is S.C.No.P267. The other service connection in the premises of the Appellant/Plaintiff/Society is S.C.No.P265 which is intended for the lighting purposes. The said service connection would be in operation to the fullest extent only when the machinery in the premises are operated. On other occasions, the lighting will be confined to the office room only which will not attract more than a minimum charge which would be around Rs.70/-. The audit books of the Plaintiff/Appellant/Society will clearly establish the amount of business done by the Society and how much of the conversion charges was received by the Appellant/Plaintiff/Society.
4. The Appellant/Plaintiff/Society received a notice from the Second Respondent/Second Defendant intimating that there was an excess amount of Rs.1,98,429/- in respect of S.C.No.P267 and an amount of Rs.3,834/- in respect of S.C.No.P265, towards electricity consumption charges payable by the Appellant/Plaintiff/Society to the Respondents/Defendants. The Appellant/Plaintiff/Society was required to pay the amount in full within seven days. No working sheet has been enclosed with the notices sent by the Second Respondent/Second Defendant. On what basis the Second Respondent/Second Defendant arrived at the amount mentioned in the notice has not been explained. The Appellant/Plaintiff/Society has every right to know on what basis, the Second Respondent/Second Defendant is demanding the excess amount. The Appellant/Plaintiff/Society has been without business practically for about two years and they have not received any cotton raw materials for ginning purposes. The Respondents/Defendants officials are taking the reading in the meter in the premises on regular basis and they did not even on one occasion point out any discrepancy. Therefore, the Appellant/Plaintiff/Society has been left with no alternative but to seek the relief of declaration to the effect that the notices sent by the Second Respondent/Second Defendant in respect of S.C.Nos.P.267 and P.265 are invalid and not binding on the Appellant/Plaintiff/Society. Since the Second Respondent/Second Defendant has been threatening the Appellant/Plaintiff/Society that if the excess electricity charges has not been paid in full, electricity consumption would be disconnected in the premises of Appellant/Plaintiff/Society.The Appellant/Plaintiff/Society has been forced to seek the relief of permanent injunction also, restraining the Respondents/Defendants from disconnecting the service connections in the premises of the Appellant/Plaintiff/Society.
5. WRITTEN STATEMENT PLEAS OF THE SECOND RESPONDENT/SECOND DEFENDANT(ADOPTED BY THE FIRST RESPONDENT /FIRST DEFENDANT):-The Appellant/Plaintiff/Society has completely suppressed that the meter installed in the Appellant/Plaintiff/Society premises had become defective since September 1998. The meters have been replaced to the knowledge of the Appellant/Plaintiff/Society.The Appellant/Plaintiff/Society has filed the suit as if the demand for payment of Rs.1,98,429/- and Rs.3,834/- are null and void.
6. The meter available in the Appellant/Plaintiff/Society premises during September 1998 has been fixed during March 1998. This meter is in respect of S.C.No.P-267. The meter which has become defective in S.C.No.P-267, has been replaced by another meter during March 1998. From and after September 1998, the meter available in the Appellant/Plaintiff's industry in S.C.No.P.267 has been showing lesser consumption and the Appellant/Plaintiff/Society is paying lesser consumption charges than the actual consumption. When enquired, it is represented that there is no adequate consumption. This continued till May 2000. During July 2000, it is found out that the meter in S.C.No.P.267 has been struck up. Hence S.C.No.P-267 has been replaced by another meter. Since it is represented by the assessor that there is no adequate use there is no opportunity for the revision of the bill. On 2/2/2001, the meter has been released and replaced by another meter on 5/2/2001.
7. In the meanwhile, the Electricity Board has introduced the system of replacing the Electro Magnetic Meter with Electronic Meters. On 21/6/2001, the existing electro magnetic meter has been replaced by an Electronic meter. Subsequently, the meter recorded heavy consumption. During the audit, the officials attached to the Audit Department have found out that till September 1998, there has been heavy consumption. After 21/6/2001, the very same situation has become revised and in the interim period, there is very low consumption. Therefore, the Audit Department has found out that the assessors representation that there is no adequate use, could not be accepted. Thereupon, the Audit Department has issued audit slip revising the bill for the Appellant/Plaintiff's industry from November 1998. The average has been worked out on the basis of the consumption recorded during July 1998 and September 1998. Accordingly, the assessment has been revised and after deducting the payment already made from November 1998, the Appellant/Plaintiff has been required to pay a sum of Rs.1,98,429/- to the Board. A notice has been issued to the Appellant/Plaintiff, directing him to pay the said amount. In the notice dated 1/11/2001, there is no threat of disconnection of the electric service connection.
8. If the Appellant/Plaintiff is aggrieved by the claim made in the notice dated 1/11/2001, it could have made a representation to the Board to redresss its grievance. Without availing the procedures prescribed by the Electricity Board, the Appellant/Plaintiff/Society has rushed to the Court. Hence the suit is a premature one. Without adopting the procedure prescribed by the Electricity Board, the Appellant/Plaintiff is not entitled to approach the Court. The claim made in the notice dated 1/11/2001 is valid in law. There is no cause of action for filing of the suit. The plaint lacks bonafides and merits. Hence, the suit is liable to be dismissed with costs.
9. Before the trial Court, on behalf of the Appellant/Plaintiff/Society, witness P.W.1 has been examined and Exs.A.1 to A.11 have been marked. On the side of the Respondents/Defendants, witness D.W.1 has been examined and Exs.B.1 to B.3 have been marked.
10. The trial Court in the main suit framed 1 to 4 issues and an additional issue for determination. On an appreciation of oral and documentary evidence available on record, the trial Court has come to a categorical conclusion that the Appellant/Plaintiff is to avail the remedies available before the Tamil Nadu Electricity Board as per the procedures contemplated and further, the Appellant/Plaintiff has been advised to follow the procedures contemplated by the Electricity Board and resultantly, dismissed the suit without costs.
11. Being dissatisfied with the Judgment and Decree made by the trial Court in O.S.No.10 of 2002 dated 5/1/2004, the Appellant/Plaintiff as an aggrieved person has filed A.S.No.213 of 2004 on the file of the First Appellate Court viz., the First Additional Sub-Judge, Madurai.
12. The First Appellate Court viz., the First Additional Sub-Judge, Madurai, after contest, while delivering the Judgment in Appeal Suit No.213/2004, as among other things, observed that the suit is a premature one and that 'the Civil Court has no jurisdiction to entertain the suit' and consequently, dismissed the Appeal, leaving the parties to bear their own costs.
13. Feeling aggrieved against the Judgment and Decree of the First Appellate Court, viz., the First Additional Sub-Judge, Madurai in A.S.No.213 of 2004 dated 6/7/2005, the Appellant/Plaintiff/Society, as an aggrieved person, has preferred the Second Appeal before this Court.
14. At the time of admission of the Second Appeal, this Court has formulated the following substantial questions of law for consideration:-
"(a). Have not the Courts below erred in non-suiting the plaintiff on the ground of lack of jurisdiction of the civil Court, when there is no statutory bar and thus, there is misconstruing of Section 9 of Civil Procedure Code?
(b). Have not the Courts below failed to see that under Section 145 of the Electricity Act, only in respect of the proceedings covered by Sections 126 and 127 of the Act, the Civil Court's jurisdiction is barred whereas the impugned notice are not covered by Section 126 of the Act?
(c). Has not the lower Appellate Court over looked that the trial Court has found all points in favour of the plaintiff but misconstruing Terms and Conditions has dismissed the suit?"
15. THE CONTENTIONS, DISCUSSIONS AND FINDINGS ON SUBSTANTIAL QUESTIONS OF LAW (a) to (c):- The learned counsel for the Appellant/Plaintiff contends that the trial Court as well as the First Appellate Court have wrongly held that the Civil Court has no jurisdiction.
16. It is the further contention of the Learned counsel for the Appellant/Plaintiff that both the Courts should have seen that as per Section 145 of the Electricity Act, 2003, the jurisdiction of the Civil Court is passed only in respect of the proceedings covered as per Sections 126 and 127 of the Act.
17. Advancing his arguments, the Learned counsel for the Appellant/Plaintiff submits that the Respondents/Defendants have not furnished the working sheet together with demand notice and as such, there is no basis for demanding the excess amount.
18. The Learned counsel for the Appellant/Plaintiff projects a plea that the First Appellate Court ought to have seen that the trial Court has categorically found that the Respondents/Defendants are at fault in determining the defects in the meter as contemplated as per Section 26 (6) of the Electricity Act and without doing so, the Respondents/Defendants have arbitrarily determined the amount that Ex.B.2 dated 25/8/2001 is not correct and that the Department has not filed any documents to support their case.
19. Lastly, it is the contention of the Learned counsel for the Appellant/Plaintiff that the trial Court found everything in favour of the Appellant/Plaintiff, but dismissed the suit on the ground that the Appellant should have approached the authorities, which is unsustainable in law.
20. Contending contra, the Learned counsel for the Respondents/Defendants submits that the trial Court as well as the First Appellate Court have taken into consideration the oral and documentary evidence on record has come to a firm conclusion that the Appellant/Plaintiff has filed the suit in a premature fashion.
21. Further, it is the submission of the Learned counsel for the Respondents/Defendants that the suit filed by the Appellant/Plaintiff is not maintainable and that the Appellant/Plaintiff can follow the procedures prescribed under the Terms and Conditions of the Tamil Nadu Electricity Board and only after exhausting the said remedy, it is open to the Appellant/Plaintiff to approach a Court of Law.
22. It is the evidence of P.W.1 (Special Officer of the Appellant/Plaintiff) that for lighting in the Society, the service connection is P-265 and for breaking machine, the service connection is P-267 and during the agricultural period, if the meter is running for two months, then the electricity charge will come upto Rs.1,000/- approximately and from the beginning for service connection, P-265, they used to pay the old charge of Rs.75/- and during the year 1998, they have not received the good orders from the agriculturalists and as such, the breaking machines have not been used and kept as it is.
23. Continuing further, it is the evidence of P.W.1 that the second respondent/second defendant, has received a notice dated 1/11/2001 and in the said notice for service connection P-267, on inspection of the audit, a deficit sum of Rs.1,98,429/- has been mentioned, which amount has to be paid by the Appellant/Plaintiff and the said amount has to be paid within a period of seven days. Further, for service connection P-265, they received Ex.A.2 notice dated 1/11/2001, mentioning that they have to pay a sum of Rs.3,834/- for service connection P-265 and how, the said sum has been arrived at by means of calculating has not been furnished to the Appellant/Plaintiff.
24. The evidence of P.W.1 is to the effect that at the time of the Appellant/Plaintiff making the electricity charges amount, the Electricity Department informed that deficit amount also should be paid along with electricity charges and hence, the Appellant/Plaintiff has filed the present suit, seeking the relief that Exs.A.1 and A.2 notice dated 1/11/2001 are invalid and for the relief of declaration.
25. P.W.1 (in his cross-examination) has deposed that it is incorrect to state that during September 1998, their mill has been functioning properly and in their mill, the meter reader will come for once in two months. It is incorrect to state that before September 1998, average consumption for four months have been calculated and accordingly, a sum of Rs.1,98,429/- has been arrived at.
26. P.W.1 (in his re-examination) has deposed that the amount mentioned in Ex.A.1 does not contain a detail from which month the calculation has been done and the amount calculated as consumption charges by the Electricity Department from September 1998 will not bind the Appellant/Plaintiff at any point of time.
27. Added further, it is the evidence of P.W.1 that he does not know about the fact that on 25/3/1998, the damage meter has been changed and a new meter has been installed and even the new meter that has been installed has not been working. The said fact he does not know about it and further, on 2/2/2001 even the new changed motor also got burnt, he does not know about the same.
28. The evidence of P.W.1 is also to the effect that he does not know that on 28/6/2001, a new electronic meter has been changed and after installation of the new meter, after September 1998, before September month, the calculation reading has been calculated is not a correct one.
29. D.W.1 in his evidence (Assistant Engineer in Thirumangalam Nagar, Section of TNEB) has deposed that he retired from service on 31/3/2003 and for which the Appellant/Plaintiff Society, two electricity connections are there and 267 electricity connections have been given for running the machines and another electricity connection No.P.267, there is 45 HP electricity motor and P-265 service connection has been given for lighting use and after recording the electricity consumption, there are two separate meters which have been installed and during March 1998, P-267 service connection, on 25/3/1998 got repaired and immediately, a new meter has been installed and the consumer has been given the white card, but the electricity Department has been given the green colour card and in these two cards, when the electric meter got damaged or when a new meter has been installed, these facts will be recorded
30. Also, it is the evidence of D.W.1 that on 25/3/1998, in their office, in green colour card, the new meter fixation on 25/3/1998 will be entered which is Ex.B.1 and the new electric meter till September 1998 has been functioning properly and as per Accounts, on 4/7/1998 and as per electricity consumption collection on 25/7/1998, two months before 3965 units of electricity has been consumed and on 23/9/1998, the Appellant/Plaintiff has utilised 3960 unit electricity which has been recorded and thereafter, the consumption of electricity has been in low quantity and the meter reader on behalf of the electricity Board will take the reading and during July 2000, the meter has not been running and in August 2000, new meter has been fixed and in the new meter, low consumption has been registered and the new meter got burnt on 2/2/2001 and on 5/2/2001, the new meter has been installed.
31. It is the evidence of D.W.1 that initially the meter fixed at the Appellant/Plaintiff Society has been running on electric magnetic manner and electronic meter has been decided to be installed at the Appellant/Plaintiff Society based on policy decision and in June 2001, in the Appellant/Plaintiff Society, electronic meter has been fixed and after fixing the electronic meter, the consumption of unit has come to 3000 units reduced for two months and that the Madras accounts Office will conduct audit of an Electricity Board Accounts and they have given an audit copy of the report which is Ex.B.2, which was objected to on behalf of the Appellant/Plaintiff. Further, the audit report said that from the Appellant/Plaintiff Society, a sum of Rs.1,98,429/- has to be recovered and July 1998, September 1998, the consumption units have been taken into account and average has been calculated and only on that basis, the said sum of Rs.1,98,429/- has been arrived at and that the Appellant/Plaintiff is liable to pay the amount mentioned in the audit report and the Appellant/Plaintiff has not filed any appeal before the Superintending Engineer and Divisional Engineer Electricity Board in respect of Exs.A.1 and A.2 and without filing an appeal, the Appellant/Plaintiff has no right to file the suit before the Court of Law.
32. D.W.1 in his evidence has further deposed that P-265 electric moter has no damage whatsoever and Ex.A.2 is the notice where the average electricity consumption has been taken for P-265 service connection and on 25/3/1998, a sum of Rs.16,239/- has been paid by the Appellant/Plaintiff, after calculating the average amount.
33. The Learned counsel for the Appellant/Plaintiff, refers to clause 17.13 of the Terms and Conditions of the Tamil Nadu Electricity Board, wherein it is mentioned as follows:-
"In case the consumer does not agree with the assessment made by the Assistant Executive Engineer/Executive Engineer, the matter may be referred to the Executive Engineer/Superintending Engineer whose decision shall be final and binding on the consumer."
and contends that Ex.A.3 letter dated 28/8/2001 has been addressed by the Appellant/Plaintiff to the Second Respondent/Second Defendant, wherein it is inter alia mentioned that "it is highly unfair to assess the electricity charges under a defective meter on the assumption that Gin was in regular usage" and also a request has been made for making the proper assessment prudently and also according to the running details of the ginning machines very well available in the Society.
34. At this stage, this Court points out that the dispute regarding meter can be raised when a person lodges protest over the disputed bill.
35. It is to be noted that if the meter is defective, an application has to be made before the Electrical Inspector. The estimate of energy has to be calculated for a period of six months.
36. Indeed, when a procedure has been allowed to be followed in case of dispute regarding the correctness of meter, even an appointment of an Advocate Commissioner is not maintainable.
37. The Assessing Officer should provide a reasonable opportunity of hearing the parties before passing the final assessment order. In the instant case, though the Appellant/Plaintiff has been issued with Exs.B.1 and B.2 in respect of Electricity Board connection Nos.P-267 and P-265 addressed by the Second Respondent/Second Defendant demanding the amount mentioned therein. It is to be pointed out that Ex.B.3 letter dated 28/8/2001 has been sent by the Appellant/Plaintiff to the Second Respondent/Second Defendant, yet for Ex.B.3 letter dated 28/8/2001 of the Appellant/Plaintiff. Admittedly, no reply has been sent by the Second Respondent/Second Defendant.
38. Although, the Respondents/Defendants claim that Exs.A.1 and A.2 notices have been issued to the Appellant/Plaintiff based on the audit objection raised by the Tamil Nadu Electricity Board (Accounts Office), Chennai. A perusal of the same only makes a reference that the Appellant/Plaintiff should pay a sum of Rs.1,98,429/- within seven days from the date of receipt of the letter and also as per Ex.A.2, the Appellant/Plaintiff is to pay a sum of Rs.3,834/- to the Respondents/Defendants. Even in respect of Ex.A.2 letter, wherein the respondents/Electricity Board have claimed a sum of Rs.3,834/- to be paid by the Appellant/Plaintiff within seven days from the date of receipt of the said letter. There are no qualitative and quantitative details mentioned in Exs.A.1 and A.2 as to how the deficit amount has been arrived at, even though it has been mentioned as the said amount has been claimed as per Audit Inspection Demand.
39. The trial Court in para 25 of its Judgment has referred to the Tamil Nadu Electricity Board Terms and Conditions of the supply of electricity and the same is extracted as below:-
"17.00 Meters 17.13 In case the consumer does not agree with the assessment made by the Assistant Executive Engineer/Executive Engineer, the matter may be referred to the Executive Engineer/Superintending Engineer whose decision shall be final and binding on the consumer.
11.00 MEMORANDUM OF APPEAL 11.01 The consumer shall, if he desires to prefer an appeal mentioned in clauses 6.03 and 8.04 of this schedule, file the memorandum of appeal in four copies duly signd by him (appellant) with such other documents and material as he deems relevant in the matter. The appeal should be made in the appellate authority within the period specified in clauses 6.03 and 8.04 of this schedule.
12.00 DISPOSAL OF APPEAL 12.01 The appellate authority will dispose of the appeal (confirm, modify or set aside the assessment) after considering the memorandum of appeal and the material placed before him by the appellant and other materials pertaining to the enquiry. The appellate authority will furnish the reasons leading to the conclusion arrived at by him. It shall not be obligatory for the appellate authority to give a personal hearing; but if a request is made for such hearing by the appellant, the appellate authority will grant personal hearing to the appellant. The appellant may be represented by an Advocate or any other person at such hearing, provided that the appellant files proper vakalath or power of attorney, as the case may be.
40. Further, condition no. 36, speaks of Board's rights regarding the terms and conditions of supply of electricity.
41. The condition 36.01 enjoins that "the Board will have the right to change from time to time the Terms and Conditions of supply of Electricity by special or general proceedings."
42. Also, the condition 36.02 specifies that "The Board will have the right to relax modify or waive any of the clauses of Terms and Conditions of supply of electricity in respect of any consumer or any class of consumers."
43. From the aforesaid terms and conditions of Supply of Electricity as approved in B.P.Ms.(FB) No.61 (Administrative Branch dated 24/12/1988 and amended upto 31/8/1995), it is candidly clear that, if the Appellant/Plaintiff has not agreed with the demand of amounts mentioned in Exs.A.1 and A.2 letter dated 1/11/2001, then it is open to the Appellant/Plaintiff to approach the concerned Executive Engineer/Superintending Engineer for redressal of its grievance. Also, the Appellant/Plaintiff has a right to prefer an appeal and if he files any appeal as against the order passed by any concerned/appropriate authority/Tamil Nadu Electricity Board, then the Appellate authority is duty bound to dispose of the said appeal in the manner known to law and in accordance with law.
44. The Appellant/Plaintiff before the trial Court has relied upon the following decisions, wherein it is held as follows:-
(a). In M.P.E.B AND OTHERS Vs. Smt.BASANTIBAI reported in AIR 1988 SUPREME COURT - 71), it is held as follows:-
"In the instant case the dispute relates to whether the electricity meter is correct one or it is faulty not recording the actual electrical energy consumed in running the oil mill of the consumer. So this dispute squarely falls within the provisions of the said Act and as such it is the Electrical Inspector who alone is empowered to decide the dispute. If the Electrical Inspector comes to the finding that the meter is faulty and due to some defect it has not registered the actual consumption of electrical energy, then the Inspector will estimate the amount of energy consumed and will fix the amount to be paid in respect of such energy consumed within a period not exceeding six months. The Electricity Board is not competent pending the determination of this dispute by the Electrical Inspector to issue the notice threatening disconnection of supply of electricity for non-payment of supplementary bill prepared and sent by it. The Board is also not competent to prepare and send a supplementary bill in respect of energy consumed by the consumer from the one phase which stopped functioning and did not record any consumption of energy. 1982 MPLJ (Notes) (37)p.22, Overrules. AIR 1962 Mys 209 and AIR 1981 Madh Pra 170, Approved."
(b). In M/s. REGAL THEATRE AND OTHERS Vs. M.P.E.B., RAMPUR AND OTHERS reported in AIR 1987 MADHYA PRADESH - 276, wherein at page Nos.276 and 277, it has laid down as follows:-
"Where the Electricity Board raised the demand for 2/3rd consumption on the ground that the consumer's meter is recording only 1/3rd consumption and the consumer is disputing the claim of the Board, it was for the Board to get the dispute decided by Electrical Inspector. The Board could not have by itself decided that the meter installed was not recording actual consumption because such decision could only be given by referring the dispute to the Electrical Inspector, Demand raised is liable to quashed."
(c). Apart from the above decisions, the learned counsel also placed reliance on the decision of TOPASA RAMASA PATIL Vs. KARNATAKA ELECTRICITY BOARD, BANGALORE AND OTHERS reported in AIR 1989 KARNATAKA 279, wherein it is held as follows:-
"In matters of slow or faulty recording of the meter, it is only the Electrical Inspector who is authorised to decide the dispute. If the meter is not working properly that is undoubtedly a dispute and this dispute has to be decided by the Electrical Inspector. Therefore, if the Electricity Board wants to raise a bill in regard to the actual consumption of energy not correctly recorded by the meter, it has to approach the Electrical Inspector and get the same tested and settled. It cannot unilaterally raise a bill without reference to the Electrical Inspector as provided under S.26 (6) of the Electricity Act."
(d). However, the Respondents/Defendants cited a decision in PUNJAB STATE ELECTRICITY BOARD AND ANOTHER Vs. ASHWANI KUMAR reported in (1997) 5 SUPREME COURT CASES - 120, wherein, at page Nos.123 and 124, at paragraph No.8, it has hold hereunder:-
"The question then arises whether the civil court would be justified in entertaining the suit and issue injunction as prayed for? It is true, as contended by Shri Goyal, learned Senior Counsel, that the objections were raised in the written statement as to the maintainability of the suit but the same were given up. Section 9 of the CPC provides that the civil court shall try all suits of civil nature, subject to pecuniary jurisdiction, unless their cognizance is expressly or by necessary implication barred. Such suit would not be maintainable. It is true that ordinarily, the civil Court has jurisdiction to go into and try the disputed questions of civil nature, where the fundamental fairness of procedure has been violated. The statutory circulars adumbrated above do indicate that a fundamental fairness of the procedure has been prescribed in the rules and is being followed. By necessary implication, the cognizance of the civil cause has been excluded. As a consequence, the civil Court shall not be justified in entertaining this suit and giving the declaration without directing the party to avail of the remedy provided under the Indian Electricity Act and the Indian Electricity (Supply) Act and the Instructions issued by the Board in that behalf from time to time as stated above."
(e). Yet another decision in {1. TNEB by its SUPERINTENDING ENGINEER (SOUTH) SOUTH ARCOT ELECTRICITY SYSTEM, VILLUPURAM 2. THE Jr. ENGINEER TNEB, KANDAMANGALAM 3. THE Asst. DIVISIONAL ENGINEER TNEB, VALAVANUR Vs. K.KAMARUDEEN} reported in 2001 (3) L.W - 285, relied on the side of the Respondents/Defendants, wherein at page Nos.285 and 286, it has held as follows:-
"Only a provisional show cause notice was issued by the Department calling upon the plaintiff to pay a sum of Rs.6,255/-. The only course open to the plaintiff is to prefer an appeal provided under the statutory rules. It is also pertinent to point out that the plaintiff has not come to the court with clean hands. He had gone to the extent of stating that no inspection was made by the Electricity Board Officials on 5/1/1985 and no notice was also given. The records filed on the side of the defendants clearly and clinchingly established that proper procedure has been followed by them and in fact, the plaintiff has also subscribed his signature in the documents. No valid reason has been given by the Plaintiff for not preferring an appeal provided under the statutory rules and under the circumstances. I am of the view that the suit is premature and not maintainable. It is unfortunate that the lower appellate court has misdirected itself."
45. At this stage, it is not out of place for this Court to pertinently point out that the assessment proceedings under the old Act for the action that has been taken place when the old Act has been in force is to continue as per the decision in {EXECUTIVE ENGINEER (DISTRIBUTION), TAMIL NADU ELECTRICITY BOARD, THIRUCHENDUR Vs. S.J.GAYAS AND OTHERS) reported in (2008) 2 MLJ - 812, wherein at page Nos.812 and 813, it is held hereunder:-
"All the assessment orders were issued well before the coming into force of the new Act and even legal proceedings were initiated by the consumers, challenging such assessment orders and in some cases, directions were issued to issue fresh assessment orders, after quashing the earlier assessment orders. Accordingly, new assessment orders were issued by the Electricity Department, probably after rectifying the queries pointed out by the legal for a, by which time the new Act came into force. It is also to be pointed out that the proceedings initiated by the Electricity Department were dragged on by the consumers under some pretext or other, initiating one proceeding or other and when the new Act came to force, whereunder the tariff rates are reduced, they have changed the stance and started arguing that they must be extended the benefit of new tariffs prescribed under the new Act. These are the matters whereunder theft of electricity worth Lakhs of rupees is the subject matter and if proved, the consumers are liable for punishment under the criminal proceedings initiated by the Department. When such is the factual matrix wherein the original proceedings initiated by the Department were successfully dragged by the consumers till the new Act came into force, at no stretch of imagination, the Court can find fault with the Department in initiating the proceedings under the old Act since even when a new assessment order has to be issued, as directed by the Courts, since the date of detection of the offence and the period of commission of such offence and even the date of issuance of the original assessment orders are well prior to the coming into force of the new Act, the tariff rates as are applicable on the date of commission of offence alone are applicable and just for the simple reason that the new Act has prescribed lesser tariffs, it cannot be made applicable to the cases of the consumers particularly since such assessment orders are saved under Section 185 (2) (a) of the 2003 Act. A careful study of the entire materials placed on record would establish, in more than one way, the sole intention of the consumers in these cases to avoid the payment of the amounts claimed under the assessment orders, passed by the Department, on having found them to have committed electricity theft, which is a very serious offence. The Electricity energy generated and distributed is a 'material source of the community'. There can be no doubt that such electricity thefts would paralyse the entire system, besides putting the Electricity Boards and consequently the State in a pathetic situation, leading to chaos and shortage in suppliers to the genuine consumers also, which should be avoided by strict adherence of the laws and none should be allowed to resort to collapse the entire system impairing very purpose of such laws and such menace should be curbed with an iron hand for the betterment of the Society at large."
46. In JAYARAMACHANDRAN Vs. TAMIL NADU ELECTRICITY BOARD (AIR 2002 MADRAS
- 230), it has held that "the suit filed without without exhausting remedies under the Act is not maintainable."
47. In KALIAMOORTHY Vs. ASSISTANT DIVISIONAL ENGINEER, TAMIL NADU ELECTRICITY BOARD reported in 2000 (1) MLJ - 174 MADRAS - 6, the Plaintiff filed a suit for injunction from restraining the Board from imposing the penalty for misuse of electric energy and it is held that an alternative remedy is available before the authorities and so, the suit is not maintainable.
48. In the decision of Honourable Supreme Court BIHAR ELECTRICITY BOARD Vs. DHANAWAT RICE AND OIL MILLS reported in 1999 (1) SUPREME COURT CASES - 452, it has hold that "when supply of electricity is disrupted by tripping, load shedding and power goods, it would be beyond the control of the consumer to consume the electricity upto the minimum guarantee. In such circumstances, the liability of the consumer to pay the minimum guarantee charges cannot be wholly waived, but he would be entitled to proportionate reduction."
49. Only in case where there is no tampering of meter, Section 26 (6) of the Indian Electricity Act, 1910 will apply and not when there is tampering of meter and theft of electricity in the considered opinion of this Court.
50. Section 24 of the Evidence Electricity Act, 1910 is a special provision. Therefore, the limitation is not applicable, in the considered opinion of this Court.
51. It cannot be gain said that the Electricity Bill 2001 has been finalised after extensive discussions and consultations with the States, all other stakeholders and experts. Also, the Bill seeks to replace the Indian Electricity Act, 1910, the Electricity Supply Act, 1948 and the Electricity Regulatory Commissions Act, 1998.
52. Further Section 185 of the Tamil Nadu Electricity Act, 2003 under the caption REPEAL AND SAVING, speaks as follows:-
"(1) Save as otherwise provided in this Act, the Indian Electricity Act, 1910 (9 of 1910), the Electricity (Supply) Act, 1948 (54 of 1948) and the Electricity Regulatory Commissions Act, 1998 (14 of 1998) are hereby repealed.
2. Notwithstanding such repeal:
(a) anything done or any action taken or purported to have been done or taken including any rule, notification, inspection, order or notice made or issued or any appointment, confirmation or declaration made or any licence, permission, authorisation or exemption granted or any document or instrument executed or any direction given under the repealed laws shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this Act;
(b). the provisions contained in Sections 12 to 18 of the Indian Electricity Act, 1910 (9 of 1910) and rules made thereunder shall have effect until the rules under Sections 67 to 69 of this Act are made;
(c). the Indian Electricity Rules, 1956 made under Section 37 of the Indian Electricity Act, 1910 (9 of 1910) as it stood before such repeal shall continue to be in force till the regulations under Section 53 of this Act are made;
(d). all rules made under sub-section (1) of Section 69 of the Electricity (Supply) Act, 1948 (54 of 1948) shall continue to have effect until such rules are rescinded or modified, as the case may be;
(e). all directives issued, before the commencement of this Act, by a State Government under the enactments specified in the Schedule shall continue to apply for the period for which such directions were issued by the State Government.
(3) The provisions of the enactments specified in the Schedule, not inconsistent with the provisions of this Act, shall apply to the States in which such enactments are applicable.
(4). The Central Government may, as and when considered necessary, by notification, amend the Schedule.
(5). Save as otherwise provided in sub-section (2), the mention of particular matters in that section, shall not be held to prejudice or affect the general application of Section 6 of the General Clauses Act, 1897 (10 of 1897), with regard to the effect of repeals."
53. This Court aptly recalls the decision in ASHMATH BEGUM Vs. TAMIL NADU ELECTRICITY BOARD, MATTUR reported in 1997 (III) CTC - 527, wherein it has held that "The bar of limitation prescribed in the Limitation Act will not deter the Electricity Board from exercising its power of disconnection under Sections 20 of the Act and the Board could disconnect the very connection of the consumer or any other services connection of the same consumer. Hence, the contention raised by the learned counsel appearing for the appellants deserves to be rejected."
54. This Court quotes the decision of the Honourable Supreme Court in M/s.SWASTIC INDUSTRIES Vs. MAHARASHTRA STATE ELECTRICITY BOARD reported in JT 1997 (2) SC - 328, wherein, it has observed and held as follows:-
"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."
55. It is not out of place for this Court to point out that the Tamil Nadu Electricity Board Terms and Conditions supply of Electricity, Clause 8 speaks of theft of energy and extra levy and 8.01 and 8.02 are as follows:-
56. The Tamil Nadu Electricity Board Terms and Conditions of Supply of Electricity Clause 8.00 speaks of Theft of Energy and Extra Levy and 8.01 and 8.02 are as follows:
"8.01. Any consumer who dishonestly abstracts or uses energy shall be deemed to have committed theft within the theft within the meaning of Indian Electricity Act, 1910 as amended by the Tamil Nadu Government and the Indian Penal Code and the existence of artificial means for such abstractions shall be prima facie evidence of such dishonest abstraction. Illegal restoration of supply to a disconnected service connection will fail under this category.
8.02 Extra levy for theft of energy will be made for a period of 12 months or from the date of service connection to the date of detection, whichever period is less at the rates given below:-
(i) For Energy:-
(a)Low Tension Service Connection:- Highest Low Tension tariff rate x 3, The charges arrived at will be rounded off to the next higher rupee.
(b)High Tension Service Connection:-
Highest High Tension Tariff rate x 4.
The charges arrived at will be rounded off to the next higher rupee.
(ii) For maximum demand: (In High Tension Service Connection):-
Highest High Tension tariff rate for maximum demand x 4.
Extra levy for illegal restoration of supply to a disconnected service connection will be made for a period of twelve months immediately preceding the date of detection of the violation or for the period from the date of disconnection of the service connection to the date of detection of the illegal restoration, whichever period is less, at the rates given above etc."
57. Also, the Clause 10.00 refers to the Officers authorised to inspect service connection, issue show cause notice, make assessment and functions as Appellate Authority in cases of violation or theft of energy which is as follows:
Sl.
No. Type of Service Connection To Inspect Officers To issue show-causes notice Authorise To make Assess- ment As Appellate Authority 1 2 Low Tension service connection including temporary service connection.
High Tension service connections including temporary service connection Any officer not below the rank of Junior Engineer.
Grade II.
Any Officer not below the rank of Junior-Engineer Grade II Assistant Executive Engineer Executive Engineer Executive Engineer Superin- tending Engineer Superin- tending Engineer Chief Engineer
58. Moreover, Clause 11.01 deals with the memorandum of appeal, if a consumer desires to prefer an appeal mentioned in clauses 6.03 and 8.04 of this schedule etc. The clause 12.00 refers to 'Disposal of Appeal' and 12.01 refers to the manner in which the appellate authority will dispose of the appeal, after considering the memorandum of appeal and the material placed before him by the appellant and other materials pertaining to the enquiry etc. As a matter of fact, clause 13.01 refers to the Power of Chief Engineer/Chairman who may suo moto call for and examine the records of any order passed or proceedings recorded by the assessing authority or appellate authority for the purpose of satisfying himself regarding the prosperity or legality or such orders or proceedings and may pass such order in reference thereto as he may think fit etc. 13.02 speaks of the Chairman's suo moto powers have been exercised by the Chief Engineer.
59. That apart, the Electricity Act, 2003, does not provide for transfer of pending appeals to a different fora, the aggrieved person cannot be denied his rights and so proceedings already taken will have to be continued, as per the decision, reported in 2003 (4) CTC - 385 (COIMBATORE STOCK EXCHANGE LTD Vs. TNERC.
60. On a careful consideration of respective contentions and for the foregoing and qualitative discussions mentioned supra, this Court is of the considered view that the Appellant/Plaintiff has a viable, efficacious and alternative remedy of approaching the appropriate authorities mentioned under the Tamil Nadu Electricity Board. As a matter of fact even the Tamil Nadu Electricity Department proceedings clearly enjoins the assessment to be made by the Executive Engineer/Superintending Engineer, in case when a party does not agree with the assessment made by the Assistant Executive Engineer, also, an appeal forum is also provided before the appropriate authority as per the Terms and Conditions of supply of Electricity and as per clause 6.03 and 8.04 of the schedule and also the appellate authority can dispose of the appeal in the manner known to law. When such a self-contained remedy is available under the Tamil Nadu Electricity Act, then, the present suit filed by the Appellant/Plaintiff before the Civil Court is a premature and otiose one.
61. In short, the suit filed by the Appellant/Plaintiff is not maintainable before the trial Court. Therefore, this Court without going into the merits and demerits of the matter on the aspect of maintainability holds that the suit filed by the Appellant/Plaintiff is not maintainable and as such, dismisses the Second Appeal leaving it open the substantial questions of law a, b and c.
62. In the result, the Second Appeal is dismissed, leaving the parties to bear their own costs. The Judgment and Decree of the First Appellate Court dated 6/7/2005 in A.S.No.213 of 2004 and the Judgment and Decree of the trial Court in O.S.No.10 of 2002 dated 5/1/2004 are hereby confirmed by this Court, for the reasons assigned in this appeal. Liberty is granted to the Appellant/Plaintiff to raise all factual and legal issues before the Respondents/Defendants/appropriate authority in the manner known to law in regard to the claim made by the Respondents/Defendants as per Exs.A.1 and A.2 and upon hearing the objections of the Appellant/Plaintiff and providing reasonable opportunity, it is open to the Respondents/Defendants to pass appropriate orders in the manner known to law and in accordance with law, of course, after providing due opportunities to both the parties. The Respondents/Defendants are also to provide a working sheet with necessary details to the Appellant/Plaintiff for considering their objections in regard to the claim made by the Electricity Board. In any event, the Respondents/Defendants is to pass appropriate orders by taking into the consideration of Ex.A.3 letter dated 28/8/2001 of the Appellant/Plaintiff within a period of twelve weeks from the date of receipt of a copy of this Judgment. Consequently, the connected Miscellaneous Petition is also dismissed.
mvs.
To
1. I Additional Subordinate Court, Madurai
2. The District Munsif Court, Thirumangalam.