IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 13/02/2004
CORAM
THE HONOURABLE MR.JUSTICE V.KANAGARAJ
SECOND APPEAL No.758 OF 1993
Padmavathi Ammal ... Appellant
-Vs-
1.The Tamil Nadu Electricity Board,
by its Superintending Engineer,
Cuddalore,
South Arcot District.
2.The Assistant Divisional Engineer,
Operation and Maintenance,
Tamil Nadu Electricity Board,
Vadalur,
South Arcot District. ... Respondents
Second Appeal preferred under Section 100 of the Code of Civil
Procedure for the relief as stated therein.
For appellant : Mr.K.Raghunathan
For respondents: Mr.S.Rajeswaran
:JUDGMENT
This Second Appeal is directed against the judgment and decree
dated 12.4.1993 rendered in A.S.No.231 of 1992 by the Court of Subordinate
Judge, Cuddalore thereby confirming the judgment and decree dated 2 4.1.1992
rendered in O.S.No.229 of 1989 by the Court of District Munsif, Cuddalore.
2. Tracing the history of the above second appeal coming to
be preferred, it comes to be known that the appellant herein has filed the
suit in O.S.No.229 of 1989 on the file of the Court of District Munsif,
Cuddalore as against the respondents/The Tamil Nadu Electricity Board and its
officials for declaration to the effect that the order dated 10.3.1989 made in
No.4648/88-89 by the respondents is deliberate and contrary to law and the
same is not legally valid and for permanent injunction from disconnecting the
Service Connection No.216 and for costs.
3. In the plaint, the appellant/plaintiff would submit that
he is running a rice mill viz. Vetrivel Rice Mills for which the service
connection number is 216 and the power supply was given by the respondents
with provision for a 20 H.P. Motor; that the Inspection Officer of the
respondents, having inspected the rice mill on 10.3.1989, submitted a report
stating thereby that instead of making use of a 20 H.P. Motor, the plaintiff
made use of a 30 H.P. Motor and hence required the plaintiff to pay a penalty
of Rs.14,970/= within fifteen days, lest they would cut-off the power supply,
as per the notice issued by the second defendant.
4. The plaintiff, therefore, has averred that they have not
made use of a 30 H.P. Motor and even if it is so, for the consumption they
have been paying the monthly rental to the respondent Board properly
accounting for the same in the meter without any default; that the notice has
been issued contrary to the law and justice, misusing the powers granted to
the respondents; that the charges are imaginary and false and they have not
been made on proper inspection of the site and therefore they need not have to
pay the penalty as per the notice issued dated 10.3.1989 and hence the suit
seeking the relief extracted supra.
5. In the written statement filed, the defendants would
submit that all the true facts and circumstances have not been brought forth
in the plaint; that on 23.1.1985, the Electricity Board Squad for Prevention
of Theft of Energy inspected S.C.No.216 and found out that instead of making
use of the 20 H.P. Motor, the plaintiff made use of 30 H.P. motor thus using
an additional power of 10 H.P. and therefore required the plaintiff to pay
the penal assessment of Rs.4,558/= within 15 days after the receipt of the
notice but instead, the plaintiff filed a writ petition in the High Court in
W.P.No.8409 of 1985 wherein it was ordered that the plaintiff should pay the
sum of Rs.2,279/= in favour of the Electricity Board and get the power supply
and sending a show-cause notice, the matter must be ultimately decided by the
Electricity Board; that they sent the show-cause notice dated 31.1.1986
requiring the plaintiff to reply within thirty days; that the plaintiff did
not at all give any reply and only on 4.10.1986, the plaintiff having remitted
the balance sum of Rs.1,982/= from the penal assessment kept quite and
continued to make use of the 30 H.P. motor; that the second defendant,
therefore, sent a communication dated 10.3.1989 to pay a sum of Rs.14,970/=
and hence the plaintiff has come forward to file the above suit; that the
inspection of the meter and the spot had been conducted meticulously and
without complying with the demand notice, the plaintiff has come forward to
file the above suit falsely. On such averments, the defendants/respondents
would pray to dismiss the above suit with costs.
6. The trial Court, based on the above pleadings, would frame
the following issues for determination of all the questions raised in the
whole of the suit viz.:
1.Whether the suit is barred by the doctrine of lapse?
2.whether it is true that the plaintiff misused the power?
3.Whether, in this case, the Court Fee has not been properly paid?
4.Whether the plaintiff is entitled for declaration? and
5.What relief, if any, is the plaintiff entitled to?
7. The trial Court, then would conduct a thorough trial
wherein on the part of the plaintiff and the defendant, they would each
examine one witness as P.W.1 and D.W.1 respectively for oral evidence and on
behalf of the plaintiff, she would m ument as Ex.A.1 for documentary evidence
and 13 documents would be marked as Exs.B.1 to B.1 3 on behalf of the
defendants. Thereupon, the trial Court having had its own discussions on the
facts and circumstances of the case issue-wise, would arrive at easy
conclusions deciding issues No.1 and 2 against the plaintiff and in favour of
the defendants and regarding the third issue framed pertaining to the Court
Fee, the trial Court would conclude that proper Court Fee has been paid and
for the fourth issue, the trial Court would conclude that the plaintiff is not
entitled to get the relief of declaration, thus ultimately answering the 5th
issue to the effect that the plaintiff is not at all entitled to any relief
sought for and would dismiss the suit.
8. So far as the appreciation of evidence by the trial Court
to arrive at the above conclusion is concerned, regarding the oral evidence,
though both the witnesses would adhere to the pleadings of the plaintiff and
the defendants respectively, it would be laid emphasis on the part of the
defendants that the plaintiff was making use of a 30 HP motor even though she
is permitted to use only a 20 HP motor and hence based on Ex.B.1 report, a
notice in Ex.B.2 dated 3.5.1985 followed by Exs.B.8 and B.9 was issued and
ultimately sending Ex.B.13 for removal of the 30 HP motor, but the plaintiff
did not at all come forward to do the same, but only filed the above suit and
hence the trial Court factually would arrive at the conclusion that the
plaintiff is not entitled to any relief sought for thus dismissing the suit.
9. On appeal by the plaintiff, the first appellate Court, the
Court of Subordinate Judge, Cuddalore also would assess the facts and
circumstances of the case as pleaded before the trial Court and framing its
own points for consideration viz. (1) whether the appellant was entitled to
the declaration and permanent injunction and (2) whether the appeal is liable
to be allowed, would have its own dissection of the facts and circumstances of
the case in the light of the materials placed on record and would ultimately
concur with the trial Court thus dismissing the appeal with costs and it is
against these concurrent judgments rendered by the trial Court and the first
appellate Court as well, the plaintiff in the suit has come forward to prefer
the above second appeal on certain grounds brought forth in the grounds of
appeal and this Court admitted the same for determination of the following
substantial questions of law:
1.The Courts below overlooked that as per Board Proceedings M.S.No.78 0 an
initial assessment notice has to be issued thus giving the consumer an
opportunity and only thereafter a final assessment is to be made which in the
instant case Ex.A.1 is a final notice which is thus contrary to the procedure
laid down in the Board proceedings.
2.The courts below erred in not adverting to the factum of noncompliance with
the procedure before the issuance of Ex.A.1 which is a final order.
10. During arguments, the learned counsel for the appellant
having assessed the facts pleaded on both sides would raise a legal point for
proper consideration of this Court that in the circumstances of the case, the
authorities concerned i.e. the respondents should have had an initial
assessment as per the Board’s proceedings in M.S.No.780 and notice issued to
the plaintiff with an opportunity to be heard and only thereafter a final
assessment has to be made, which in the instant case has not been done and
Ex.A.1 being the final notice, is contrary to the proceedings laid down in the
Board’s proceeding and as per Clause 37, Point 6.01 of the Terms and
Conditions of Supply of Electricity of Tamil Nadu Electricity Board
(hereinafter referred to as the Terms and Conditions).
11. On the part of the respondents also, though the learned
counsel representing them, on facts, would adhere to the merit of the case as
it has been decided by the Courts below, he has no say regarding the legal
question raised by the learned counsel for the appellant and hence it has
become incumbent on the part of this Court to focus its attention on the legal
question raised by the appellant under Clause 37, Point 6.01 of the Terms and
Conditions si nce it is relevant for consideration the said Point is extracted
hereunder:
“On detection of violation, the officer authorised to issue show cause notice
as per Clause 10 of this Schedule will issue a notice to the consumer asking
him to remove the violation within twenty-four hours or seven days as the case
may be, failing which the supply will be disconnected and to show cause why
the compensation charges should not be levied for having committed the
violation. Reply to show cause notice shall be sent by the consumer within
seven days from the date of receipt of notice.”
12. In consideration of the facts pleaded, having regard to
the materials placed on record and upon hearing the learned counsel for both,
it has become necessary on the part of this Court to decide the question of
law raised on the part of the appellant as it has been reduced into the first
substantial question of law that as per the Board Proceedings in M.S.No.780 an
initial assessment notice has to be issued thus giving the consumer an
opportunity to be heard and only thereafter a final assessment is to be made
which in the instant case has been done under Ex.A.1 and this procedure being
mandatory and having not been adopted by the Electricity Board authorities,
the respondents herein, it would be pointed out that the judgments and decrees
passed by both the Courts below, for non-consideration of this material and
procedural aspect get only vitiated in law.
13. Though the above question raised is a procedural one,
still, since it is related to the opportunity that is initially to be afforded
to the consumer, no mention need be necessary that non-issuance of such a
notice on initial assessment seeking the explanation of the consumer would be
opposed to the high principles of natural justice.
14. Since it is, though not openly admitted, patent and
glaringly visible that no such initial assessment notice has been issued
giving the plaintiff an opportunity to be heard prior to resorting to pas the
final assessment order as it could be seen in Ex.A.1 in the case in hand and
the same being contrary to the procedures laid down by law, it has to be held
that the factum of non-compliance of this legal procedure would only pave the
way for the final assessment notice issued in the second respondent’s
proceeding No.4648/88-89 dated 10.3.1989 to get vitiated in law.
15. Since the case of the respondent constituted against the
appellants fails on account of the non-compliance of the mandatory provisions
of law as brought forth above, the case constructed on facts and circumstances
before both the Courts below and the materials made available and appreciated
by the Courts below need not be discussed much less since the above proceeding
being the second appeal wherein only substantial questions of law have to be
answered on the background of the facts and circumstances and evidence. Since
both the above substantial questions of law framed have to be answered only in
favour of the appellant and against the respondents case, this Court is of the
firm view that the fact situation need not have to be gone into, to any extent
and the legal question raised on the part of the plaintiff, the appellant
herein, since touches the very root of the principle based on which the
edifice has to be built and for non-compliance of the same, the proceeding
initiated by the respondents against the appellant as per their order dated
10.3.1989 made in No.4648/88-89 would only get vitiated and hence the
judgments rendered by both the Courts below would only become liable to be set
aside and hence the following judgment:
In result,
(i)the above second appeal succeeds and the same is allowed.
(ii)the judgment and decree dated 12.4.1993 rendered in A.S.No.231 of 1992 by
the Court of Subordinate Judge, Cuddalore and the judgment and decree dated
24.1.1992 rendered in O.S.No.229 of 1989 by the Court of District Munsif,
Cuddalore are hereby set aside.
(iii)The suit in O.S.No.229 of 1989 on the file of the Court of District
Munsif, Cuddalore stands decreed as prayed for.
However, in the circumstances of the case, there shall be no order as
to costs.
Index: Yes
Internet: Yes
Rao
To
1.The Subordinate Judge, Cuddalore
2.The District Munsif, Cuddalore.