BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 16/02/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.1266 of 2000 and S.A.No.1267 of 2000 1.The Chairman, Tamil Nadu Electricity Board, Mount Road, Chennai. 2.The Superintending Engineer, Tamil Nadu Electricity Board, Thanjavur. 3.The Executive Engineer, Operation & Maintenance, Tamil Nadu Electricity Board, Pattukottai. 4.The Assistant Engineer, Operation and Maintenance, Tamil Nadu Electricity Board, Perumalkoil, Pattukottai. .. Appellants/Appellants/Defendants in both the second appeals Vs Satchi Selvam .. Respondent/Respondent/Plaintiff in both the second appeals Prayer in both the second appeals Appeals filed under Section 100 of Civil Procedure Code, against the common judgment and decrees dated 16.11.1999 passed in A.S.Nos.97 and 98 of 1998 on the file of the learned Principal District Judge, Thanjavur in confirming the common judgment and decrees dated 05.01.1998 passed in O.S.Nos.4 and 5 of 1996 on the file of the learned Subordinate Judge, Pattukottai. !For Appellants ... Mr.M.Suresh Kumar ^For Respondent ... No appearance :JUDGMENT
These two second appeals are focussed as against the common judgment and
decrees dated 16.11.1999 passed in A.S.Nos.97 and 98 of 1998 on the file of the
learned Principal District Judge, Thanjavur in confirming the common judgment
and decrees dated 05.01.1998 passed in O.S.Nos.4 and 5 of 1996 on the file of
the learned Subordinate Judge, Pattukottai.
2. The parties are referred to hereunder in the same order as they were
arrayed before the trial Court.
3. Heard the learned counsel for the appellants. Despite printing the
name of the respondent, no one has appeared. This is an old matter.
4. These two second appeals are taken together for disposal as they
emerged out of the common Judgment passed in A.S.Nos.97 and 98 of 1998 on the
file of the learned Principal District Judge, Thanjavur.
5. A re’sume’ of facts absolutely necessary and germane for the disposal
of these two second appeals would run thus:
The nitty-gritty and gist and kernel of the case of the plaintiff as stood
exposited from the records in both the original suits in O.S.Nos.4 and 5 of 1996
could be portrayed thus:
6. The plaintiff is running an ice factory, enjoying the three phase
electricity supply. While so, the Tamil Nadu Electricity Board officials found
that out of the three phases, for one phase, there was no proper recording of
the supply in the meter. Thereupon, Ex.A5 the Inspection Report emerged and
consequently Ex.A6 the communication was sent calling upon the plaintiff to pay
the arrears. Whereupon, the plaintiff filed the suit in O.S.No.4 of 1996 for
declaration that the action taken by the Tamil Nadu Electricity Board officials
had to be declared as null and void and that there should not be any
disconnection of the electric supply to the plaintiff’s ice factory.
7. During the pendency of the said suit, it so happened that the Tamil
Nadu Electricity Board officials proceeded with their assessment in accordance
with Section 26(6) of the Indian Electricity Act, 1910 and assessed the arrears
of electric charges. Thereupon another suit was filed in O.S.No.5 of 1996 for
declaring such assessment as null and void and for injunction.
8. Per contra, the third defendant filed the written statements in both
the suits, which were adopted by the other defendants; the pith and marrow of
them would run thus:
The electricity Board officials properly conducted inspection and found
out that there were defects in the meter relating to supply of electricity under
one phase and that alone resulted in non-collection of electricity charges.
After finding out the defects in accordance with the procedures contemplated
under law, the arrears/ electricity charges were assessed and informed to the
plaintiff. 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 suits filed by the plaintiff are
not maintainable under the law. Accordingly, the defendants Tamil Nadu
Electricity Board prayed for the dismissal of both the suits.
9. Both the suits were taken up for joint trial by the trial Court. The
trial Court framed the relevant issues and during trial, on the side of the
plaintiff, P.W.1 examined himself as P.W.1. and Exs.A.1 to A.8 were marked. On
the side of the defendants, D.Ws.1 to 3 were examined and Exs.B.1 to B.6 were
marked.
10. The trial Court ultimately decreed both the suits.
11. Challenging the common Judgment and decrees of the trial Court, the
defendants Tamil Nadu Electricity Board preferred the first appeals, whereupon
the first appellate Court by a common Judgment dated 16.11.1999 confirmed the
common Judgment and decrees of the trial Court.
12. Being aggrieved by and dissatisfied with such common Judgments and
decrees of both the Courts below, the defendants Electricity Board filed these
two second appeals on the following grounds inter-alia thus:
The Courts below committed error in entertaining the matter as though the
civil Court had jurisdiction oblivious of the relevant provision of law and the
fact that the Electricity Board officials adhered to the procedures properly and
took action. Both the Courts below simply decreed the suits as though the
Electricity Board officials acted in violation of the Acts and Rules. The
plaintiff has not even prayed for sending the meter to the Chief Electrical
Inspector. Accordingly, the defendants Tamil Nadu Electricity Board prayed for
setting aside the common Judgments and decrees of the both the Courts below and
for dismissing the original suits.
13. The following substantial question of law was framed by my learned
Predecessor at the time of admitting these two second appeals:
“Whether the Courts below are correct in holding that the meters should
have been sent to the Chief Electrical Inspector and it is only the Chief
Electrical Inspector, the authority to decide the issue?”
14. At the time of arguments, I felt that it is just and necessary to
frame the additional substantial question of law also as under:
“Whether the civil Court had got jurisdiction to entertain the suits in
violation of the statutory provisions governing the electricity supply?”.
15. The substantial question of law and the additional substantial
question of law are taken together for discussion as they are interlinked with
one another.
16. Heard learned counsel for the appellants/ defendants.
17. 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 had given their verdicts on the contentious issues relating to
assessment of electric charges, which have arisen between the plaintiff and
defendant.
18. 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 appellants/defendants Tamil Nadu
Electricity Board would pray for setting aside the Judgments and decrees of both
the Courts below and consequently for dismissing the original suits 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 his grievance
redressed. It is also the contention of the learned counsel for the
appellants/defendants 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.
19. 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.
20. The learned counsel for the appellants/ defendants 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.
I could see considerable force in the submissions made by the learned counsel
for the appellants/defendants that before applying a particular decision of the
Hon’ble Apex Court, the ratio decidendi in it should be considered.
21. 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.”
22. 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 exhaust his remedy by approaching the
appropriate authorities and straight away the aggrieved party viz., the consumer
cannot file a civil suit.
23. 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, viz., the plaintiff and
arbitrarily and unilaterally arrived at the imaginary figure, as arrears. At
this juncture, I would like to highlight that the very institution of the suits
itself, is bad in law and both the Courts below without applying their mind on
the maintainability of the suits, 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.
24. The learned counsel for the appellant/ defendants 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”.
25. 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 suits were filed
erroneously by the plaintiff.
26. The Hon’ble Apex Court in Ashwani Kumar case has held that without
exercising such remedies a suit shall not be filed. 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”.
27. 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.
28. Accordingly, the Substantial Question of law No.1 is decided to the
effect that both the Courts below were wrong in holding that electric meter
should have been sent to the Chief Electrical Inspector and only the Chief
Electrical Inspector to decide the issue without considering the terms and
conditions of supply as set out supra. The Substantial Question of Law No.2 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).
29. With the above observations, these two second appeals are allowed
setting aside the common Judgments and decrees of both the Courts below and
consequently the Original Suits are dismissed. However, in the facts and
circumstances of the case, there is no order as to costs.
smn
To
1. The Principal District Judge,
Thanjavur.
2. The Subordinate Judge,
Pattukottai.
