JUDGMENT
T.V. Masilamani, J.
1. The appellants are the defendants who failed before the Courts below.
2. The respondents/plaintiffs filed the suit for declaration that the order in ADE/O & M/N/TL/R II/D6/82 dated 20.1.1982 issued by the appellants is null and void and for mandatory injunction to restore the electric service connection in S.C. No. 35, in favour of the respondents.
3. The appellants/defendants resisted the suit on the ground that the electric meter installed in the said service connection was found defective at the time of inspection and therefore on a calculation of the consumption charges payable by the respondents, the appellants were constrained to issue a notice calling upon them to pay a sum of Rs. 2,837/- towards loss of energy.
4. The learned District Munsif, having analysed the evidence, both oral and documentary, adduced on either side and upon hearing the arguments of both sides, decreed the suit as prayed for.
5. Aggrieved by the said judgment and decree passed by the Trial Court, the appellants herein, preferred the appeal before the Subordinate Judge, Tiruvannamalai. In turn, the learned Subordinate Judge, after considering the recorded evidence and upon hearing the arguments advanced on either side, dismissed the appeal, confirming the findings rendered by the Trial Court. Hence, the Second Appeal.
6. The contentions of the Appellant/plaintiff in the plaint are briefly as follows:-
The plaintiff has got the Service Connection No. 35 of Vinnavanur Village, 20 years back for agricultural purpose in his name. On account of agitation by agriculturists that their electricity connection should not be disconnected and on account of the Associations decision the plaintiffs and all other agriculturists did not pay the electricity consumption charges. But the defendants suddenly on 19.1.1982 disconnected the service connection and on 20.1.1982, the second defendant sent a notice to the plantiffs with false reasons and demanded a sum of Rs. 2,837/- towards consumption charges; whereas the plaintiffs are liable to pay only Rs. 406.90. Hence, the suit has been filed for restoration of electric service connection.
7. The averments in the written statement filed by the second defendant and adopted by the first defendant are briefly as follows:-
There was no increase in the electricity charges and therefore the plaintiffs have no genuine reason for non-payment of consumption charges. The plaintiff was not a member of the Agriculturists Association. The defendants, with the help of Sub-Collector and Deputy Superintenent of Police, disconnected the electric connection. The plaintiff had also refused to receive the notice issued by the defendant nor paid the arrears due to the Electricity Board. Whileso, on inspection by the Junior Engineer, it was found that the plaintiff had given direct connection from the electricity post illegally, without the knowledge of the defendants and there was tampering with the meter as the reading noted as 5947 on the forenoon of 19.1.1982 was found to be 5941 on that evening at 3.45 p.m. Therefore, a police complaint was lodged against the plaintiff for theft of electricity. The defendants had taken photograph of the tampering and therefore the suit is liable to be dismissed.
8. In the above circumstances, the Trial Court framed the following issues for trial:-
(i) Whether the disconnection of the electric service connection is against the provisions of law?
(ii) whether the plaintiffs are entitled to have disconnected electric supply restored as prayed for?
(iii) whether the notice dated 20.1.1982 issued by the defendants is null and void?
(iv) to what relief the plaintiffs are entitled?
9. The learned District Munsif, having analysed the evidence on record and upon hearing both sides held on the above issues that the action of the defendants in disconnecting the electric service connection is illegal and therefore found that the said proceedings dated 20.1.1982 issued by the defendants is null and void and also directed the defendants to restore the electric supply to the plaintiffs. Thus the suit was decreed as prayed for by the Trial court.
10. As against the Judgment and decree passed by the Trial Court, the defendants preferred the appeal before the Sub Court, Tiruvannamalai and the learned Subordinate Judge, having analysed the recorded evidence in the light of the Judgment rendered by the Trial Court, framed the following points for consideration:-
(i) whether the notice given by the respondents on 20.1.1982 has to be declared as null and void?
(ii) whether the plaintiff is entitled to the relief for mandatory injunction and restoration of the electric supply as prayed for?
(iii) To what relief the appellant/ plaintiff is entitled?
11. The learned Subordinate Judge, having analysed the evidence in the light of the above points for consideration, arrived at the conclusion that the defendants ought to have followed the procedure laid down under Section 26(6) of the Indian Electricity Act, 1910 and that therefore the dis-connection of the electric service connection and the subsequent proceedings issued by the respondents/defendants are illegal. Hence, she confirmed the findings of the Trial Court and dismissed the appeal. Hence, this Second Appeal.
12. At the time of admission, the following substantial questions of law have been framed for consideration:-
“(i) Whether the Courts below are justified in sitting over the inspection and judgment made by the appellant Engineers in exercise of their powers under terms and conditions of supply which are statutory in force?
(ii) Whether the light of the evidence on record, the theft of energy is not established and if so, whether the appellants are not entitled to demand the compensation as provided underthe terms and conditions of supply?
13. The learned counsel for the appellants has argued that both the courts below have failed to analyse the evidence and probabilities of the case and also erred in not appreciating the provisions of law relating to the question to be decided. Similarly learned counsel for the appellants has submitted that the courts below erred in not taking into consideration the fact of non payment of consumption charges which led to disconnection of service connection.
14. Heard Mr. S. Rajeswaran, learned counsel appearing for the appellants and Mr. G. Rajan, learned counsel for Respondents 1 to 3.
15. A careful perusal of the judgments of the first Appellate Court would indicate that as per Section 26(6) of the Indian Electricity Act, 1910, the Electricity Board is duty bound to send the defective meter for examination by the Electrical Inspector appointed on that behalf and obtain a report before ever claim for loss of energy is made.
16. Section 26(6) of the Indian Electricity Act, 1910, reads as follows:-
“Where any difference or dispute arises as to whether any meter referred to in sub-section (1) is or is not correct, the matter shall be decided, upon the application of either party, by an Electrical Inspector; and where the meter has, in the opinion of such Inspector ceased to be correct, such Inspector shall estimate the amount of the energy supplied to the consumer or the electrical quantity contained in the supply, during such time, not exceeding six months, as the meter shall not, in the opinion of such Inspector, have been correct; but save as aforesaid, the register of the meter shall, in the absence of fraud, be conclusive proof of such amount or quantity:
PROVIDED that before either a licensee or a consumer applies to the Electrical Inspector under this sub-section, he shall give to the other party not less than seven days notice of his intention so to do.”
17. As has been rightly pointed out by the learned counsel for the respondents, there is no evidence adduced by the appellants to show that the meter installed in the respondents electric service connection had ever been sent for examination in accordance with the said provision of law to the Electrical Inspector and report obtained. It is seen from the Judgment rendered by the courts below that such failure on the part of the appellants to send the defective meter to the Electrical Inspector for examination had been taken note of and accordingly findings rendered in favour of the respondents.
18. In view of the above factual position on the aspect of the matter, this court is of the considered view that since the appellants failed to follow the procedure laid down under Section 26(6)of the Electricity Act, as a pre-condition to disconnect the service connection and to demand payment of the amount towards loss of energy, it is no longer open to the appellants to urge that the appeal has to be allowed. Thus appeal deserves no merit and is therefore liable to be dismissed.
19. The learned counsel for the respondents has submitted that if the respondents had deposited a sum of Rs. 2,837/- before the Trial Court as a pre-condition for getting an interim order, the same may be directed to be refunded to the respondents. Accordingly, if the said amount had been deposited in the Trial Court, the respondents are entitled to get refund of the same.
20. With the above observations, the appeal is dismissed and there will be no order as to costs.