THE HONOURABLE MR v. The Executive Engineer, (Distribution) Electricity Distribution Circle/South, Tatabad, Coimbatore.2. The Assistant Executive

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 14.6.2007CORAM :THE HONOURABLE MR.JUSTICE M.JAICHANDREN S.A.No.1187 of 1996M.Prem Selvi .. Appellant/PlaintiffVs.1. The Executive Engineer, (Distribution) Electricity Distribution Circle/South, Tatabad, Coimbatore.2. The Assistant Executive Engineer, Anti Power Theft Squad, Tamil Nadu Electricity Board, Tatabad, Coimbatore. .. Respondents/DefendantsPRAYER : This Second Appeal has been filed against thejudgment and decree of the learned Principal District Judge,Coimbatore, dated 5.7.1996, made in A.S.No.173 of 1995,reversing the judgment and decree of the trial Court, dated25.4.1995, made in O.S.No.1835 of 1990, on the file of the IIAdditional District Munsif Court, Coimbatore.For Appellant : Mr.R.Subramanian For Respondents : Mr.N.Muthusamy J U D G M E N TThis second appeal has been preferred against the judgmentand decree of the learned Principal District Judge, Coimbatore,dated 5.7.1996, made in A.S.No.173 of 1995, reversing thejudgment and decree of the trial Court, dated 25.4.1995, made https://hcservices.ecourts.gov.in/hcservices/ in O.S.No.1835 of 1990, on the file of the II AdditionalDistrict Munsif Court, Coimbatore.2. The suit in O.S.No.1835 of 1990, had been filed by theplaintiff, who is the appellant in the present second appeal,praying for the reliefs of declaration and permanentinjunction.3. The short facts of the case, as stated by theplaintiff, are as follows:The plaintiff is the owner of service connection No.716,at Rathinapuri in Coimbatore and she is the owner of a TextileUnit registered as a Small Scale Industry. The sanctioned loadof energy for the said service connection was 50 H.P. The SmallScale Industrial Unit is also having a generator with thecapacity of 52.5 KVA for additional power supply. The generatorwas connected to 65 H.P. Textile Machinery, while 34.5 H.P. outof the sanctioned load of 50 H.P. had been put to use. Only34.5 H.P. has been connected to the service connection, on7.5.1990. Since the generator was under repair, the machineriesconnected to the generator of 65 H.P. capacity was not working.4. The representative of the defendants' Department issaid to have inspected the unit of the plaintiff, on 7.5.1990,without giving notice regarding the purpose of his visit. Therepresentative of the defendants' Department had taken thesignature of a labourer, who was not well-versed with theelectricity system and that too, without telling him the natureand contents of the document, as the Proprietor of the textileunit was not in station on that day. 5. The second defendant had given the notice alleging that65 H.P. energy from the supply given by the defendant had beenconnected to the generator thereby, using a total energy of 109H.P, even though it was factually incorrect. To the notice,dated 18.5.1990, issued by the first defendant, the plaintiffhad given reply notices, dated 23.5.1990 and 4.6.1990. Sincethe defendants were threatening to take penal proceedings andalso since steps were being taken to disconnect the electricityservice connection, without following the procedure establishedby law and without following the principles of natural justice,the plaintiff had preferred the suit to declare the proceedingsof the defendants, dated 18.5.1990, as void, illegal andultravires. The plaintiff had also prayed for a permanentinjunction restraining the defendants, their men and servantsfrom in any way making any demand or from disconnecting theservice connection No.716 at Rathinapuri in Coimbatore. https://hcservices.ecourts.gov.in/hcservices/

6. The case of the defendants is as follows:The sanctioned load for service connection No.716 atRathinapuri in Coimbatore is 50 H.P. + 5000 W, while theconnected load of the said service connection is only 37.5 H.P.and 200 W. at the time of effecting supply as per the TestReport. There was no permission given by the ElectricityDepartment to utilise the generator set, which was under repairat the time of inspection, on 7.5.1990. The plaintiff wastaking electricity from service connection No.716 byunauthorised extension. 7. During the inspection, on 7.5.1990, since unauthoriseduse of electricity was detected by the Inspecting Authority,the defendants' Department had directed the plaintiff to removethe unauthorised load and to stop misuse of energy. The claimof the plaintiff that the generator was under repair and themachineries connected with the said generator were kept idlewithout working is false. 8. The defendants' Department had initiated theproceedings as per the rules and regulations and therefore, itis proper, valid and legal. Since the proceedings wereinitiated as per the terms and conditions of the supply ofelectricity, principles of natural justice were not violated.The person, who had signed the notice of inspection, is well-versed with the maintenance of the machineries and that thenotice had been served on him since the Proprietor of the Unitwas not available in the premises and therefore, the notice isvalid and proper. If the plaintiff is aggrieved by the actiontaken by the defendants' Department, she had every right toprefer an appeal as contemplated under the rules andregulations of The Tamil Nadu Electricity Board relating toSupply of Electricity as well as the provisions of The IndianElectricity Act and The Indian Electricity Supply Act. Thesecond defendant had found unauthorised user of load of 75.5.H.P. and the observation Magazar was prepared for theinspection and detection and it was attested by the fitter-cum-Maistry working in the textile unit of the plaintiff. 9. The second defendant had issued a show cause notice,dated 18.5.1990, to remove the unauthorised load and to reportthe same to the defendants within the stipulated time. Theplaintiff, without complying with the requirements of the showcause notice, had rushed to the Court praying for the reliefsof declaration and permanent injunction. The suit is prematureand there is no cause of action for the suit. Therefore, thesuit has to be dismissed with costs. https://hcservices.ecourts.gov.in/hcservices/

10. Based on the averments made on behalf of the partiesconcerned, the trial Court had framed the following issues forconsideration:"1. Whether the plaintiff is entitledto the relief of declaration as prayed for?2. Whether the plaintiff is entitled tothe relief of permanent injunction as prayedfor?3. What other reliefs the plaintiff isentitled to?"11. The trial Court, having considered the oral anddocumentary evidence placed before it and based on thecontentions raised on behalf of the plaintiff as well as thedefendants, had come to the conclusion that the Anti PowerTheft Squad had inspected the textile unit of the plaintiff, on7.5.1990, only after issuing the necessary notice ascontemplated under the appropriate rules and regulations.Further, it had been held that the issue of notice for suchinspection had been done properly by obtaining the signature ofan employee of the textile unit. However, it was held that thedefendants had failed to establish the misuse of energy fromthe service connection No.176 at Rathinapuri in Coimbatore.Therefore, the plaintiff is entitled to the relief ofdeclaration that the proceedings issued by the defendants'Department, on 18.5.1990, are void, illegal, untravires andunenforceable and that the plaintiff is also entitled to therelief of permanent injunction as prayed for in the suit. 12. Against the judgment and decree passed by the IIAdditional District Munsif, Coimbatore, dated 25.4.1995, madein O.S.No.1835 of 1990, the defendants had filed an appealbefore the Principal District Judge, Coimbatore. The followingpoints were framed for consideration by the first appellateCourt:"1) Whether the plaintiff is entitledto the relief of declaration as prayed for?2. Whether the plaintiff is entitled tothe relief of permanent injunction as prayedfor?3. To what relief?"13. After perusing the records of the case and uponhearing both sides, the Principal District Judge, Coimbatore, https://hcservices.ecourts.gov.in/hcservices/ had found that the plaintiff had the right to prefer an appealto the appellate authority in accordance with the terms andconditions laid down by The Electricity (Supply) Act, 1948,applicable for the supply of energy. 14. It was also found that the proceedings initiated bythe defendants' Department on the report of the Anti PowerTheft Squad cannot be held to be contrary to any of theprovisions of law or against the principles of natural justice.Since no proceedings had taken place, based on the report, theplaintiff could not be said to be prejudiced. Even if anadverse order was to be passed, the plaintiff could file anappeal against the said order, in accordance with the terms andconditions applicable to the supply of electricity asprescribed by The Electricity (Supply) Act, 1948. As aconsequence, the lower appellate Court had held that in view ofthe plaintiff not being entitled to the relief of declarationas prayed for, the findings given by the trial Court for therelief of permanent injunction cannot be sustained.Accordingly, the lower appellate Court had set aside thejudgment and decree of the trial Court by dismissing the suitin O.S.No.1835 of 1990, on the file of the II AdditionalDistrict Munsif, Coimbatore. 15. Aggrieved by the judgment and decree of the lowerappellate Court, dated 5.7.1996, made in A.S.No.173 of 1995,the plaintiff has preferred the present second appeal.16. The second appeal has been admitted on the followingsubstantial questions of law:"1. Whether the lower appellate Courtwas right in holding that theplaintiff/appellant should have waited forthe completion of the enquiry by therespondents more so when there is nostatutory bar for a civil Court entertaininga suit?2. Whether the lower appellate Courtwas right in relying upon the observationMahazar Exhibit B.4 when nobody connectedwith the same have been examined?"17. The learned counsel appearing on behalf of theappellant had submitted that the lower appellate Court haderred in dismissing the suit filed by the plaintiff stating https://hcservices.ecourts.gov.in/hcservices/ that the plaintiff should have awaited the result of theenquiry initiated against her, especially, when there is nostatutory bar or prohibition against the filing of the saidsuit. 18. The learned counsel appearing on behalf of theappellant had also submitted that the lower appellate Courtought not to have reversed the findings of the trial Courtwithout properly appreciating the evidence on record. 19. On the contrary, it has been stated by the learnedcounsel appearing on behalf of the respondents that the enquirycontemplated against the appellant has not been completed tilldate, in view of the pendency of the present second appeal onthe file of this Court. 20. It was also stated that it would be open to theplaintiff to challenge any adverse order that may be passedagainst her on completion of the enquiry, in accordance withthe procedure established by law. The suit filed by theplaintiff is premature and that the lower appellate Court hadrightly dismissed the same. 21. On analysing the rival contentions made on behalf ofthe appellant as well as the respondents and on a perusal ofthe records available before this Court, it is seen that themain point for consideration arising in the present secondappeal is as to whether the suit filed by theplaintiff/appellant is maintainable, in view of theavailability of an alternative remedy provided under the termsand conditions relating to the supply of electricity prescribedby The Electricity (Supply) Act, 1948, and in accordance withthe other provisions of law available to the plaintiff. It washeld by this Court in TAMIL NADU ELECTRICITY BOARD REPRESENTEDBY EXECUTIVE ENGINEER (OPERATION AND MAINTENANCE), PANTRUTI ANDOTHERS Vs. CHAKKARAVARTHY ((2005) 2 M.L.J. 426), that the suitfiled challenging the order passed by the authority of thedefendants Department cannot be challenged, in view of thespecific provision of the appeal provided under the relevantlaw applicable to the case. https://hcservices.ecourts.gov.in/hcservices/

22. In the above circumstances, this Court is of theconsidered view that the appellant has not shown sufficientcause or reason to interfere with the findings of the lowerappellate Court, dated 5.7.1996, made in A.S.No.173 of 1995.Accordingly, the second appeal stands dismissed. No costs. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarlanTo:1.The Principal District Judge,Coimbatore.2.The II Additional District Munsif,Coimbatore.3.The Section Officer,VR Section, High Court, Madras.+1cc to Mr.N.Muthusamy, Advocate Sr 35122+1cc to Mr.R.Subramanian, Advocate Sr 35170VRK (CO)km/19.7.S.A.No.1187 of 1996