JUDGMENT
M. Chockalingam, J.
1. This second appeal has arisen from the Judgment and decree of the Additional District Judge, South Arcot rendered in A.S. No. 11 of 1990 dated 22-3-1990 confirming the Judgment and decree of the learned District Munsif, Vadalur made in O.S. No. 974 of 1986 dated 16-9-1989.
2. The appellants herein filed a suit seeking a declaration and consequential injunction with the following averments :-
The plaintiffs were the owners of the rice mill under the name and style of “Vijayalakshmi Rice Mill” at. Vadalur, Cuddalore Taluk. The service connection was standing in the name of their father, who was no more. The defendants Electricity board was supplying the power to the said rice mill under the service connection 301. Serakuppam Village. The plaintiffs have installed 20 H.P. motor in the suit service connection. The plaintiffs had received a communication on 26-3-1986 calling upon them to pay a sum of Rs. 5,606/- within seven days from the date of the receipt of the same, The plaintiffs had paid the said amount under protest. The plaintiffs reserved their right to fife a suit to recover the said amount. Whileso, the plaintiffs have received a communication dated 13-11-1986 from the second defendant viz., the Assistant Additional Engineer calling upon them to regularise or remove the load of 10 H.P. on the ground that it was unauthorised. It was only a judgment of imagination and not based on any technical data. The plaintiffs capacity of the motor was only 20 H.P. and it was installed 27 years ago by the plaintiffs’ father. The plaintiffs had no necessity to consume more load than the sanctioned load. The second defendant has sent a communication in reference No. Lr. No. ADF/ O&M/VAL/F.DOC/SC-301/D Camp/86 dated 13-11-1986, wherein it is stated that he would disconnect the service connection
if the plaintiffs did not employ with the directions given by him. The defendants had he right to do so, as the plaintiffs were net having any unauthorised toad of 10 H.P. The second defendant has disconnected the service connection on 20th November 1986 at about 5.00 p.m. the attitude and the conduct of the second defendant was highly illegal and arbitrary. The plaintiffs were therefore filing the suit for declaration that the disconnection as per the order dated 13-11-1986 above referred to by the second defendant was arbitrary, illegal, null and void and unreasonable and for mandatory injunction directing the second respondent to restore the said service connection.
3. The said suit was contested by the defendants/Electricity Board with the following averments :–
The suit filed by the plaintiffs was unjust, vexatious and deserved to be dismissed as not maintainable in law and on facts. One Rajangam was the original owner of service connection 301, Serakuppam Distribution and that the sanctioned load was 20 H.P. under the Industrial Tariff (Tariff IV). The service connection was effected from 24-10-1957 in the name of M. Rajangam. The defendants did not admit that the plaintiffs were the owners of the rice mill. The initial assessment notice was sent to Mr. M. Rajangam by registered post with acknowledgement due made on the provisional assessment notice, but the post was returened underlivered with the endorsement “deceased — returned to the sender.” The defendants Board had never been made aware by anyone or by the plaintiffs or any prior to that about the death of the said M. Rajangam. This fact was not so far brought to the notice of the second defendant or the Board. Thus, the plaintiffs had no locus standi to maintain the suit as against the defendants Board as its subordinate officials, since there was no privity of contract whatsoever between the plaintiffs or the Board. On this sole ground, the suit was liable to be dismissed. On sudden inspection of the service connection 301, Serakuppam Village by the Anti Power Theft Squad, Vlllupuram on 19-6-1985. It was detected that the occupier of the mill was using 30 H.P. motor against the sanctioned load of 20 H.P. This amounted to a mal practice as per the terms and conditions of B.P.Ms. No. 780 dated 21-6-1977. So. on
the inspection report drawn by the Anti Power Theft Squad, Villupuram, the second defendant has provisionally assessed the penal levy aa payable by the consumer of the service connection 301 at Rs. 5, 574/-and sent a notice to the occupier demanding for payment of the half of penal levy of Rs. 2,787/- plus Supervision charges of Rs.50/- within 15 days of service of the said notice. The said notice was returned as “deceased – returned to sender”. Accordingly the second plaintiff received the notice on 31-8-1985 representing that he was the son of the deceased Rajangam. He had readily paid the amount without any protest on 16-9-1985. The Divisional Engmeer/O&M/ KPD had assessed the final levy at Rs. 5,556/- plus supervision charges of Rs. 50/- vide his letter in Lr. No. DE/O&M/ KPD/Adm./Doc.39/P.R. 689/86 datede 26-3-1986 within 30 days from the date of receipt of this notice. The above final assessment notice was acknowledge by one Kasinathan on 5-4-1986 and the balance amount has been paid in full on 30-9-1986 without any protest. The allegations contra to the same were denied as false. After collecting the full assessment amount, a notice was served on the party to remove or regularise the unauthorised additional load of 10 H.P. within five days or otherwise, the suit service connection 301 shall be disconnected. The said notice was also duly acknowledged by the said Kasinathan on 14-11-1986. Since the unauthorised additional load was neither regularised nor was removed within the time stipulated, the service conncetion was disconnected on 20-11-1986. Meanwhile, the same service conncetion was inspected by the Divisionl Engineer and the Assistant Divisional Engineer, Anti Power Theft Squad on 12-11-1986 and found that the unauthorised additional load of 10 H.P. which was detected on 19-6-1985 was still continuing. In addition to that, an unauthorised extended supply to a load of 140 watts to the adjacent residential house was also found by the above said Officer. The penal levy for the unauthorised additional load of 10 H.P. from the date of first inspection viz., 19-6-1985 till the date of disconnection i.e. 20-11-1986 was assessed at Rs. 16,184/- and the penal levy for the unauthorised load of 140 watts to the adjacent house was assessed at Rs. 270/-. Thus, the consumer, having
played an unfair practice over the Board and having taken advantage of the unauthorised consumption of electrical energy, was not entitled to claim for an equitable relief much less the relief of mandatory injunction as against the defendants for restoration of service connection. The action of the second defendant in making initial assessment of penal levy and the notice issued by him is legal and valid, Further the notice issued for the removal unauthorised additional load and the disconnection of the service connection No. 301 for non removal of unauthorised additional load of 10 H.P. is legal and valid and was in confirmity with the provisions of B.P. Ms. No. 780 dated 21-6-1977. As per the terms and conditions of supply in Clause 30 Sub-clause (3), the second defendant was the competent authority to issue an order for the removal of unauthorised additional load. The second defendant was empowered to order disconnection of supply, in case the party failed to remove the unauthorised additional load, the plaintiffs were not entitled to get service connection No. 301, Serakuppam Distribution reconnected without complying the following requirements :-
i) Removal of unauthorised additional load of 10 H.P.;
ii) Payment of Penal Levy from the date of inspection i.e. 19-6-1985 to the date of disconnection, which worked out to Rupees 16,184/-:
iii) Payment of the Penal Levy for unauthorised extension of 140 watts to the adjacent house, which works out to Rs. 270/-and
iv) Production of documentary evidence for the legal heirship and ownership of the rice mill.
By the act of the consumer, the defendants Board was put to serious loss of revenue and the Board was legally entitled to be compensated in terms of penal levy as per the provisions of B.P. Ms. The plaintiffs had no cause of action as against the defendants. Hence, the suit got to be dismissed.
4. On the above pleadings, the trial Court framed the necessary issues, tried the suit and dismissed the same. Aggrieved over the same, the plaintiffs have preferred an appeal in A.S. No. 11 of 1990 on the file of the
learned Additional District Judge, South Arcot. The dismissal of the said appeal is culminated in this second appeal filed by the plaintiffs.
5. At the time of admission, the following substantial questions of law were formulated.
i) Whether Ex. B.2 has any evidentiary value at all to prove that there was an excess load in the service connection concerned? and
ii) Would the civil Court be estopped from going into the question as to whether there is any excess load or not simply because Ex. B. 3 makes a demand on the basis that there was an excess load and that payment had been made under the same without questioning the order, thereby allowing it to become final?
6. This second appeal is an outcome of the confirmation of a judgment of the trial Court dismissing the suit filed by the appellants herein seeking for a declaration that the disconnection of service connection No. 301. Serakuppam Distribution made pursuant to an order of the second respondent dated 30-11-1986 was arbitrary, illegal, unreasonable, null and void and for a consequential mandatory injunction. Both the Courts below have disagreed with the contentions putforth by the appellants, and found that the disconnection of service connection No. 301 was perfectly valid in the eye of law, which is being challenged herein.
7. Arguing for the appellants, the learned counsel interalla would urge that both the lower Courts, without proper appreciation of the evidence, have come to a wrong conclusion and found the disconnection was valid, that both the Courts were erred in finding that the appellants have allowed the order under Ex. B.3 to become final and hence they were not entitled to any relief, that it is pertinent to note that an order under Ex. B. 3 was a consequence to Ex. B. 2 and when the appellants challenged the validity of Ex. B.2 itself, then there was no bar for the Court to consider the attack on Ex. B.2, B. 3 and B. 4, that Ex. B.2 had not been proved in accordance with law and therefore, the Courts should have decided the issue afresh whether there was any excess load connection or not’, that Ex. B.2 did not contain the necessary details even
as per the evidence of D.W. 1 and therefore, no reliance could be placed upon the same, that the money demanded under Ex. B. 3 was paid and on that amount, the order under Ex. B. 3 cannot be treated as become final, that it is pertinent to note that those payments were made only on protest, which would clearly indicate that the appellate reserved their right to question the same, that there was no material to show that the appellants were using unauthorised load of 10 H.P. at the time of the inspection, that it was not known as to how and on having what test, the authorities of the Electricity board fixed that there was consumption of 10 H.P. in excess than 20 H.P. and thus, the same was arbitrary, which would vitiate all the subsequent proceedings and hence, both the Courts should have granted the relief as asked for by the appellants and hence the appeal has to be allowed, setting “aside the judgments of the lower Courts in granting the relief as asked for.
8. Vehimently opposing all the above contentions of the appellants side, the learned counsel for the Electricity Board interalia, would submit that it is an admitted fact that service connection No. 301, Serakuppam was in the name of one Mr. Rajangam. Though it is contended by the appellants’ side that he died long back, it was not brought to the notice of the Electricity Board and thus there was no contract between the plaintiffs and the Electricity Board and on that ground, the suit filed by the plaintiffs was not maintainable and that on inspection of service connection No. 301 by the Anti Power Theft Squad, it was found that they were making unlawful consumption and unauthorised consumption of 10 H.P., that the inspection was made in the presence of the Manager of the consumers and the copy of the report has been served on them and that initial assessment was made calling upon them to pay the penal levy. Accordingly, the plaintiffs have also paid without any protest whatsoever and notice was given intimating them that the plaintiffs should either regularise or remove the load of 10 H.P. and if not so, that will be followed by disconnection, but the plaintiffs did not care for the same, that under such circumstances, the second defedant had no option than to disconnect the service connection on 20-11-1986, that it is pertinent to note that this unauthorised additional
load of 10 H.P. was continued by the appellants from the time of the first inspection viz., 19-6-1985 till the date of disconnection dated 21-11-1986 and an unauthorised extension of supply to a load of 140 watts to the adjacent house and both were assessed at Rs. 16,184/- and Rs. 270/- respectively and notice has also been served on them, that as per the terms and conditions of the board, under which the said electrical service connection was given, the authorities of the Board were competent to disconnect and initiate further action in that regard and thus, both the lower Courts have taken into consideration of the above and they have correctly dismissed and rejected the claim of the appellants herein. Added further, learned counsel for the Electricity Board would submit that the appellants without exhausting the remedies available under the Electricity Act, they filed a suit and hence, the suit itself was not maintainable. In support of his contention, the learned counsel relied upon a decision of this Court reported in (1999) 2 Mad. LJ 151 (the T. N. Electricity, Thanjavur Electricity System v. Chandra Charkrapani).
9. The contention putforth by the appellants herein before both the Courts below and equally here also was that the disconnection of service connection No. 301, Serakuppam Distribution by the Electricity Board pursuant to an order under Ex. A. 1 dated 13-11-1986 was illegal and arbirary and hence, the Electricity Board should be directed to restore the said service connection. Adnmittedly the said service connection was given to one Mr. Rajangam and was given on 24-10-1957 for a connected load of 20 H.P. There is no material available or any evidence adduced by the appellants herein to show that after the death of the said Mr. Rajangam, there was any agreement between the plaintiffs and the Electricity Board in respect of the said service connection. However, it is not in dispute that they have been the consumers under the said service connection No. 301, Serakuppam distribution. The plaintiffs have no where averred in their plaint about the surprise inspection that was made by the Anti Power Theft Squad on 19-6-1985. but from the available evidence, it would be clear that an inspection of the said service connection No. 301 was made by the Anti Power Theft Squad. Villupuram on 19-6-1985 in the
presence of one Veerappa Padeyachi. A perusal of Ex. 3, 2 would dearly reveal that the inspection was done in his presence, According to the said report, it is found that the capacity of the motor when tested was found with 30 H.R. white the sanctioned load was only 20 H.P. and thereby an unauthorised additional load of 10 H.P. was detected. No doubt it was a mal practice committed by the consumers. Following the same, a provisional assessment was made and a communication was served on the consumers, directing them to pay a sum of Rs. 2,787/- plus Rs.50/- towardes the inspection charges. It is not in dispute that the appellants made the said payment. A final assessment notice, Ex. B. 3 dated 28-3-1986 was issued by the Divisional Engineer making a demand of Rs. 5606/- being the value of the unauthorised load along with the inspection charges. It is pertinent to note that the said notice was acknowledge by one Kasinathan, representing the consumers. A perusal of the said notice would clearly reveal that the consumers were directed to pay the said sum within 30 days therefrom. Since the plaintiffs have already paid a sum of Rs. 2787/-, they made the balance payment of Rs. 2819/- on 30-9-1985. At this Juncture, it has to be pointed out that though it is contented by the appellants’ side that those amounts were paid under protest, there is no material available to prove the same. The said notice, Ex. B.3 was served upon one Mr. Kasinathan under Ex. A.4. According to P.W. 1, the said Kasinathan, who was the brother-in-law of the first plaintiff, was conducting the rice mill on lease. But the plaintiffs did not choose to examine the said Kasinathan. In the absence of any evidence, it has to be found that those amounts were paid without any protest. After payment of the assessed amount as per the final notice, a notice dated 13-11-1986 under Ex. A. 1 was served on the plaintiffs to remove or regularise the unauthorised load of 10 H.P. within five days, failing which the service connection would be disconnected. It is not disputed by the plaintiffs that the said notice was acknowledge on 14-11-1986. It is also not the case of appellants that the said unauthorised additional load was either disconnected or regularised within the stipulated time. Since the consumers/ plaintiffs failed to comply with the directions given under Ex. A. 1, the service
connection was disconnected on 20-11-1966. The learned counsel-appearing for the respondent would contend that the said disconnection was effected in view of the terms and conditions and in confirmity with the provisions of D.P. No. 780 dated 21 -8-1977. Sub Clause 3 of Rule 3,8 of the terms and conditions of Supply reads as follows :-
“In the case of L.T. Service where unauthorised additional load is detected the service shall be disconnected after giving 5 days notice. In addition compensation charges shall also be levied as per Clause 9 of the Schedule the Terms and Conditions of the supply. The supply shall be reconnected only when the additional load is removed or when the additional load is regularised.”
From the above, it would be clear that when the service connection No. 301 with a sanctioned load of 20 H, P. was inspected on 21-6-1977 by the Anti Power Theft Squad, it was found with 30 H.P. that is there was an unauthorised consumption of 10 H.P., that the provisional assessment of final assessment notices were served, that the consumers have made the full payment without any protest whatsoever and following the same there was direction, either to regularise or to remove the unauthorised load, and that the plaintiffs as consumers have failed to follow the same. Under the said circumstances, the Electricity Board was perfectly correct in making the disconnection of service connection No. 301 in question.
10. At this Juncture, it has to be pointed out that the plaintiffs are not whispered anything about the inspection that was made by the Anti Power Theft Squad on 19-6-1985 and without challenging the inspection and detection of the unauthorised consumption of 10 H.P., they could not come forward with a suit challenging the disconnection pursuant to Ex. A. I notice dated 13-11-1986. The learned counsel for the respondent Board brought to the notice of the Court that the suit filed by the appellants was not maintainable since they have not exhausted the remedies available under the Electricity Act. This Court had an occasion to consider either a suit filed by the consumer without exhausting the remedies available under the Electricity Act was maintainable and has found in the negative in a case reported in (1999) 2 Mad. LJ 151
(The T. N. Electricity, Thanjavur Electricty System v. Chandra Chakrapant) has held as follows :–
“The plaintiff, if aggrieved, should avail the remedy provided under the Electricity Act and the instructions issued by the Board without resorting to civil Court. Only after exhausting these remedies has the plaintiff got the right to file a suit. The suit is not maintainable under law. Also the lower Court’s approach relating to the question of law is wrong.”
Following the said decision, it has to be held that the suit filed by the appellants without exhausting the remedies available under the Electricity Act is not maintainable.
11. For the discussions made and the reasons stated above, the Court is unable to agree with any one of the contentions put forth by the appellant’s side and hence, the appeal has got to be dismissed.
12. The learned counsel for the appellants would submit that if the Court comes to the conclusion that the suit is not maintainable, opportunity should be given to the appellants plaintiffs to seek remedies before the appropriate forum.
13. In the result, the appeal is dismissed with costs. However, it is open to the plaintiffs to put forth their representations to the appropriate authority within one month from the date of this Judgment and on receipt of the same the appropriate authority is directed to consider and pass suitable orders within a period of two months therefrom.
