BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 11/02/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.387 of 2000 Tamil Nadu Electricity Board through its Superintending Engineer, Tirunelveli Electricity System, Tirunelveli - 627 011 having its office at Maharajanagar, Tirunelveli - 11. .. Appellant/Appellant/Defendant Vs M/s.Krishna Mines, a registered Partnership Firm, (Regd. No.23/92) through its Partner K.Sankar. .. Respondent/Respondent/Plaintiff Prayer Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 02.08.1999 in A.S.No.153 of 1997 on the file of the learned Principal District Judge, Tirunelveli in confirmingthe judgment and decree dated 24.06.1996 in O.S.No.90 of 1996 on the file of the learned Additional District Munsif, Tirunelveli. !For Appellant ... Mr.M.Suresh Kumar ^For Respondent ... Mr.M.Arumugam for Mr.A.Sankarasubramanian :JUDGMENT
This second appeal is focussed as against the judgment and decree dated
02.08.1999 passed in A.S.No.153 of 1997 on the file of the learned Principal
District Judge, Tirunelveli in confirming the judgment and decree dated
24.06.1996 passed in O.S.No.90 of 1996 on the file of the learned Additional
District Munsif, Tirunelveli.
2. The parties are referred to hereunder in the same order as they were
arrayed before the trial Court.
3. Niggard and bereft of details, the case of the plaintiff as stood
exposited from the records could be portrayed thus:
The plaintiff filed the suit in O.S.No.90 of 1996 before the learned
Additional District Munsif, Tirunelveli, airing the grievance, in demanding a
sum of Rs.88,530/- (Rupees eighty eight thousand five hundred and thirty only)
vide communication dated 22.09.1992 in reference No.AO/R/HTS/A2/F 12 D/409/92 by
the defendant Tamil Nadu Electricity Board.
4. The defendant Tamil Nadu Electricity Board committed error in assuming
and presuming as though there were defects in the electric meter and in simply
assessing the probable consumption charges in a sum of Rs.88,530/- (Rupees
eighty eight thousand five hundred and thirty only), and that too without even
adhering to the procedures contemplated in the Electricity Act, Rules and other
instructions thereunder relating to collection of the electricity charges.
Hence, the plaintiff filed the suit for the following reliefs:
(a) Declaring that the demand of Rs.88,530/- by the defendant in his
letter dated 19.01.1993 in reference No. AO/R/HTS/A2/F 12 D/10/93 is illegal;
and
(b) consequentially issuing permanent injunction restraining the defendant
his men, servants, agents, subordinates, Successors-in-Office etc. from in any
manner either disconnecting the HT SC No.12 on the basis of the illegal demand
or collecting the said amount of Rs.88,530/-“.
5. Impugning and challenging, denying and refuting the
allegations/averments in the plaint, the defendant Tamil Nadu Electricity Board
filed the written statement; the gist and kernel of it would run thus:
The plaintiff is enjoying HT SC No.12 with a sanctioned maximum demand of
500 KVA relating to the plaintiff’s limestone factory. During 7/90 and 8/90
(i.e.) while taking meter readings for the consumption recorded for board side
meter on 26.07.1990 and 27.08.1990, it was noticed that the metering set for
recording maximum demand (in KVA) was over shoot by failure of mechanism and
therefore the meter was disconnected on 30.08.1990 from service for
rectification. A healthy meter was also fixed on 11.09.1990 and average billing
was recommended by the Board Technical officers for the meter defect period from
26.07.1990 to 11.09.1990. Such removal of the defective meter and replacement
were done with the knowledge of the consumer i.e., the plaintiff herein. One
Thiru.S.Venkatakrishnan, was the authorised signatory of the plaintiff, who knew
about it also. The consumer side meter also was found defective during the
course of annual test on 11.09.1990, but it was not replaced so far. The Tamil
Nadu Electricity Board complied with the procedures as per the agreement between
the consumer and the Electricity Board and also as per the rules and regulations
governing the same. The suit filed by the plaintiff is not maintainable under
the law. Accordingly, the defendant Tamil Nadu Electricity Board prayed for the
dismissal of the suit.
6. The trial Court framed the relevant issues and during trial, on the
side of the plaintiff, P.W.1 was examined and Exs.A.1 to A.22 were marked. On
the side of the defendant, D.W.1 was examined and Exs.B.1 to B.7 were marked.
7. The trial Court ultimately decreed the suit.
8. Challenging the Judgment and decree of the trial Court, the defendant
Tamil Nadu Electricity Board preferred the first appeal, whereupon the first
appellate Court confirmed the Judgment and decree of the trial Court.
9. Being aggrieved by and dissatisfied with the Judgment and decree of
both the Courts below, the defendant Electricity Board filed this second appeal
on the following main grounds among others:
The Courts below committed error in giving a finding that the civil Court
had jurisdiction to entertain the suit. They committed error in holding that
notice under Rule 223 of the Tamil Nadu Electricity Board Manual was mandatory.
The Tamil Nadu Electricity Board Manual has no statutory force and it is
intended only to cover the administrative, financial and accounting procedure
concerning the Tamil Nadu Electricity Board. Ex.B5 is the agreement between the
plaintiff and the defendant and it is having binding force on the plaintiff.
The lower appellate Court fell into error in deciding that simply because there
was fall in the consumption of electricity by the plaintiff, the defendant
jumped to wrong assessment. Both the Courts below failed to consider that as
per Section 26(6) of the Act, arbitration alone is contemplated and the civil
Court’s jurisdiction is ousted. Both the Courts below proceeded on the
assumption as though the civil Court could decide on the contentious issues
relating to billing and accordingly decreed the suit. As per Section 49 of the
Electricity Supply Act 1948, Ex.B5 emerged, but the said legal position was not
considered in proper prospective by the lower Courts. Accordingly, the defendant
Tamil Nadu Electricity Board prayed for setting aside the Judgments and decrees
of the both the Courts below and for dismissing the original suit.
10. The following substantial questions of law were framed by my learned
Predecessor at the time of admitting this second appeal:
“1. Whether the Courts below are correct in holding that the notice under
Rule 223 of the Tamil Nadu Electricity Board Manual is mandatory?
2. Whether the Courts below are correct in decreeing the suit by
overlooking the fact that by Ex.B5 agreement the Plaintiff has undertaken to
comply with all the requirements of the Indian electricity Act and the terms and
conditions mentioned in Ex.B5, which are statutory in character?
3. Whether the Courts below are correct in holding that Civil Court has
jurisdiction to entertain the suit especially in the wake of Sec.26(6) of the
Act which provides for compulsory arbitration and impliedly ousting the
jurisdiction of the civil Court?”
11. The substantial questions of law are taken together for discussion as
they are interlinked with one another.
12. Heard both sides.
13. The learned counsel for the appellant/ defendant Tamil Nadu
Electricity Board by drawing the attention of this Court to the Judgments and
decrees of the Courts below would argue that both the Courts below assumed as
though civil Court has got jurisdiction to look into the factual aspects of the
matter and given their verdict on the contentious issues relating to assessment
of electric charges that has arisen between the plaintiff and defendant.
14. Citing the decision of the Hon’ble Apex Court in Pubjab State
Electricity Board and another v. Ashwani Kumar reported in (1997)5 Supreme Court
Cases 120, the learned counsel for the appellant/defendant Tamil Nadu
Electricity Board would pray for setting aside the Judgments and decrees of both
the Courts below and consequently for dismissing the original suit on the ground
that the civil Court has got no jurisdiction in this matter and that it is for
the plaintiff to approach the appropriate authority to get its grievance
redressed. It is also the contention of the learned counsel for the defendant
that without exhausting the remedies contemplated under the Electricity Act and
the relevant terms and conditions formulated under the Act, the plaintiff had
not right to file the suit.
15. In his refutory arguments, the learned counsel for the
respondent/plaintiff would cite the following decisions:
(i) Dhulabhai etc. v. State of Madhya Pradesh and another reported in AIR
1969 Supreme Court 78.
(ii) M.P. Electricity Board, Jabalpur v. M/s.Vijaya Tiber Co., reported in
AIR 1997 Supreme Court 2364.
16. It is therefore, just and necessary to look into the issue as to
whether the civil Court had jurisdiction to entertain the suit at all. This is
a pure question of law and necessarily it has to be decided by this Court in
this second appeal.
17. The learned counsel for the respondent/ plaintiff by placing reliance
on the cited decisions supra would develop his arguments to the effect that
simply because some procedures are contemplated under the Electricity Act and
Rules and even under the Tamil Nadu Electricity Board (Recovery of Dues) Act,
1978 (Act No.29 of 1978), the civil Court jurisdiction is not barred and that
both the Courts below gave a categorical finding that the defendant was not
justified in ignoring the mandatory provisions as contemplated under Rule 223 of
the Tamil Nadu Electricity Board Manual.
18. Whereas the learned counsel for the appellant defendant Tamil Nadu
Electricity Board would submit that the ratio decidendi in the Hon’ble Apex
Court in Ashwani Kumar case cited supra is actually to be applied in this case,
whereas the decisions cited by the learned counsel for the respondent/ plaintiff
would not apply so far this case on hand is concerned. I could see considerable
force in the submissions made by the learned counsel for the appellant/defendant
that before applying a particular decision of the Hon’ble Apex Court, the ratio
decidendi in it should be considered.
19. The decision of the Hon’ble Apex Court in Ashwani Kumar case is
relating to the Electricity Act itself. An excerpt from it would run thus:
“8. 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.
9. Shri Goyal has contended that the authorities do not hear the parties,
nor give a reasoned order. Therefore, the parties cannot be precluded to avail
of the remedy of a suit. We cannot accept such a broad and generalised
proposition. When the provision for appeal by way of review has been provided by
the statutory instructions, and the parties are directed to avail of the remedy,
the authorities are enjoined to consider all the objections raised by the
consumer and to pass, after consideration, the reasoned order in that behalf, so
that the aggrieved consumer, if not satisfied with the order passed by the
Board/appellate authority, can avail of the remedy available under Article 226
of the Constitution. Therefore, by necessary implication, the appropriate
competent authority should hear the parties, consider their objections and pass
the reasoned order, either accepting or negativing the claim. Of course it is
not like a judgment of a civil court. It is then contended that the respondent
has been subjected to pay huge amount of bill in a short period; hence, it is a
case for interference . We find no force in the contention. May be that due to
the advice given by the counsel, the respondent obviously has availed of the
remedy of the suit, instead of departmental appeal. In our view, by necessary
implication the suit is not maintainable. Therefore, the respondent is at
liberty to avail the remedy of appeal within six weeks from today and raise the
factual objections before the Board and the Board/appellate authority would
consider and dispose of them, as indicated earlier, on merits.”
20. Whereas the decisions cited by the learned counsel for the
respondent/plaintiff are positing to the general power of the civil Court to
entertain suits by invoking Section 9 of C.P.C., whereas the Hon’ble Apex Court
in Ashwani Kumar case has clearly held that when the Electricity Board or
Electricity Authority demands electricity charges, by stating that there was
wrong billing due to the defect in the electricity meter concerned, the consumer
has to exhause his remedy by approaching the appropriate authorities and
straight away the aggrieved party viz., the consumer cannot file a civil suit.
21. Here, the background facts have to be seen. Admittedly and
indubitably the grievance of the plaintiff is that the electricity board
unilaterally adjudged as though there were defects in the electric meter and
that too without informing the consumer concerned the plaintiff, simply
arbitrarily and unilaterally arrived at the imaginary figure, so to say,
Rs.88,530/- (Rupees eighty eight thousand five hundred and thirty only) as
arrears. At this juncture, I would like to highlight that the very institution
of the suit itself is bad in law and both the Courts below without applying
their mind on the maintainability of the suit, simply jumped to the conclusion
as though the mandatory provision under Section 223 of the Tamil Nadu
Electricity Board Manual has not been complied with.
22. The learned counsel for the appellant/ defendant Tamil Nadu
Electricity Board read out the relevant provisions of Clauses 17.10, 17.11,
17.12 and 17.13 in the Terms and Conditions of Tamil Nadu Electricity Board, and
it is extracted here under for ready reference:
“17.10: Where supply to the consumer is given without a meter or where the
meter fixed is found defective or to have ceased to function and no theft of
energy or violation is suspected, the quantity of electricity supplied during
the period when the meter was not installed or the meter installed was
defective, will be assessed as mentioned hereunder:
The quantity of electricity, supplied during the period in question will
be determined by taking the average of the electricity supplied during the
preceding four months in respect of High Tension Service connections and two
assessment period (four months) in respect of Low Tension service connections,
provided that the conditions in regard to use of electricity during the said
four months/two assessment period were not different from those which prevailed
during the period in question. In respect of High Tension service connections,
where the meter fixed for measuring the Maximum Demand becomes defective, the
Maximum Demand will be assessed by computation on the basis of the average of
the recorded demand during the previous four months.
Where the meter becomes defective immediately after the service connection
is effected, the quantum of electricity supplied during the period in question
is to be determined by taking the average of the electricity supplied during the
succeeding two assessment period, provided the conditions in regard to the use
of electricity in respect of such Low Tension service connections are not
different.
17.11: If the conditions in regard to use of electricity during the two
periods as mentioned above were different, assessment will be made on the basis
of any consecutive four months period during the preceding twelve months when
the conditions of working were similar to those in the period covered by the
billing.
17.12: Where it is not possible to select a set of four months, the
quantity of electricity supplied will be assessed by the Assistant Executive
Engineer in the case of Low Tension service connections and by the Executive
Engineer in the case of High Tension service connections on the basis of the
connected load and the hours of usage of electricity by the consumer.
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”.
23. A mere reading of those paras extracted supra would indicate that
whenever there is any defect noted in the electric meter, the authority
concerned has got the right to proceed under those clauses. Clause 17.13 would
contemplate referring of the matter to the Assistant Executive Engineer/
Executive Engineer of the Electricity Board and it is clear that two tier system
is contemplated. If the consumer is aggrieved by the procedures to be adopted
by the Board official relating to the defective meter then he could get the
matter referred to the the Assistant Executive Engineer/ Executive Engineer for
getting it decided. Even thereafter if he is not satisfied, he could very well
approach the Superintending Engineer. As such there are inbuilt safeguards
prescribed as above. Oblivious of clause 17.10 to 17.13, the suit was filed
erroneously by the plaintiff.
24. The Hon’ble Apex Court in Ashwani Kumar case has held that without
exercising such remedies a suit shall not be filed. The learned counsel for the
respondent/plaintiff would cite Section 5 of Tamil Nadu Electricity Board
(Recovery of Dues) Act, 1978 (Act No.29 of 1978). I would like to point out
that reading of Section 5 of Tamil Nadu Electricity Board (Recovery of Dues)
Act, 1978 (Act No.29 of 1978) in isolation would not in any way serve the
purpose. Necessarily Sections 3 and 4 Tamil Nadu Electricity Board (Recovery of
Dues) Act, 1978 (Act No.29 of 1978) also should be read conjunctively and hence
Sections 3, 4 and 5 of Tamil Nadu Electricity Board (Recovery of Dues) Act, 1978
(Act No.29 of 1978) are extracted here under for ready reference:
“3. Bills to state the date by which payment are to be made and
consequences of non-payment.- (1) Every bill for dues payable to the Board by a
debtor shall be in the form prescribed by the Board and shall specify
conspicuously the date by which such dues are to be paid and shall be served in
such manner as may be prescribed by rules.
(2)(a) If a debtor disputes his liability to pay the whole or part of the
dues specified in the bill referred to in sub-section (1), he may, within such
time as may be prescribed, prefer an appeal to the appellate authority to be
specified by the Board.
(b) The appellate authority shall, while deciding the appeal, follow such
procedure as may be prescribed by rules.
(c) The dues as determined by the appellate authority in the case of an
appeal under this sub-section, shall be paid by such date as may be specified by
the appellate authority.
(3) If the dues as mentioned in the bill under sub-section (1), are not
paid by the date specified in the bill, and in the case of an appeal under sub-
section (2), the dues as determined by the appellate authority are not paid by
the date specified by such authority, the debtor shall be liable to pay, in
addition thereto such penalty which may be specified by the Board, and such dues
and penalty shall be recoverable along with the costs incurred in making such
recovery, in the manner hereinafter laid down in this Act.
4. Notice of demand for dues and penalty not paid.- If the dues as
mentioned in the bill under sub-section (1) of Section 3 are not paid by the
date specified in the bill and in the case of an appeal under sub-section (2) of
Section 3, the dues as determined by the appellate authority are not paid by the
date specified by such authority, the prescribed authority may at any time serve
or cause to be served upon him a notice of demand in the prescribed form,
stating the name of the debtor, the amount payable by him on account of the
various dues, penalty and the costs of recovery.
Explanation.- The sending of the notice by registered post shall be deemed
to be sufficient service on the person concerned.
5. Suit to challenge liability to payment.- Where a notice of demand has
been served on, the debtor or his authorised agent under Section 4, he may, if
he denies his liability to pay the dues, penalty or cost or any part of any of
them, institute a suit within three months from the date of service of notice of
demand, after depositing with the prescribed authority the aggregate amount
specified in the notice of demand under protest in writing that he is not liable
to pay the same. Subject to the result of such suit, the notice of demand shall
be conclusive proof of the various dues, penalty and costs mentioned therein”.
25. A cumulative and conjoint reading of those three Sections of Tamil
Nadu Electricity Board (Recovery of Dues) Act, 1978 (Act No.29 of 1978) would
amply make the point clear that before filing a civil suit, invoking Section 5
of the said act, the consumer should exhaust his remedy contemplated under
Sections 3 and 4 of the said Act. But in this case, it was not done so. It is
therefore clear that both the Courts below fell into error in upholding the
plaintiff’s case.
26. One other important feature also should be noted. Both the Courts
below even though held that notice was not issued under Rule 223 of the Tamil
Nadu Electricity Board Manual and that the defendant resorted to recover the
dues, nonetheless they failed to direct the authority to resort to proper
action. Necessarily if there is any defect in the procedures followed, the
Court should direct them to adhere the proper course. But in this case, what
had happened is that the lower Courts blindly agreed with the plaintiff’s case
and and decreed the suit. On that aspect also both the Courts below were wrong
in their approach.
27. In this factual matrix, I would like to observe that it is open for
the plaintiff to approach the appropriate authority under the aforesaid
provisions, excluding the time taken for prosecuting the matter before the
Courts and the Electricity Board Authorities also shall do well to see that
without raising any limitation point shall consider the matter as per law.
Accordingly, the Substantial Question of law No.1 is decided to the effect that
both the Courts below were not justified in their approach by holding that
notice under Rule 223 of the Tamil Nadu Electricity Board Manual, was mandatory
even though it is not so in the wake of other statutory safeguards. The
Substantial Question of law No.2 is decided to the effect that both the Courts
below have not properly considered Ex.B5 in the light of the terms and
conditions, which were formulated under Section 49 of Electricity supply Act.
The Substantial Question of Law No.3 is decided to the effect that the civil
Court has no jurisdiction to entertain the suit in view of Clauses 17.10, 17.11,
17.12 and 17.13 of the Terms and Conditions of Tamil Nadu Electricity Board and
Sections 3, 4 and 5 of Tamil Nadu Electricity Board (Recovery of Dues) Act, 1978
(Act No.29 of 1978).
28. With the above observations, the second appeal is disposed of. In the
facts and circumstances of this case, there is no order as to costs.
smn
To
1. The Principal District Judge,
Tirunelveli.
2. The Additional District Munsif,
Tirunelveli