The Superintending Engineer,Tamil Nadu Electricity Board,Salem-5.2.Divisional Engineer (O&M),Tamil Nadu Electricity Board,Salem-5 v. Jayaraman

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 02-09-2009CORAMTHE HONOURABLE MR.JUSTICE M.JAICHANDRENSecond Appeal No.797 of 19941.The Superintending Engineer,Tamil Nadu Electricity Board,Salem-5.2.Divisional Engineer (O&M),Tamil Nadu Electricity Board,Salem-5 .. Appellants/Respondents/ DefendantsVersus1) Jayaraman (died)2) Sulochana3) J.Raman4) J.Lakmanan5) J.Rajendran6) J.Banumathi7) Minor J.Dinesh.. Respondents/Appellantrep. by his mother and Plaintiffnatural Guardian J.Banumathi(Respondents 2 to 7 the LRs of theSole respondent were impleadedas per the orders of this Court,dated 2.09.2009, made in C.M.P.No.15952 of 1998)PRAYER: Appeal against the judgment and decree dated 11.10.1993,made in A.S.No.55 of 1993, on the file of the Principal DistrictCourt, Salem, reversing the judgment and decree, dated 30.11.1992,made in O.S.No.7 of 1988, on the file of the Principal DistrictMunsif, Salem.For Appellants : Mr.N.MuthusamyFor Respondent : Mr.T.P.SankaranJ U D G E M E N TThis second appeal has been filed against the judgment anddecree, dated 11.10.1993, made in A.S.No.55 of 1993, on the file ofthe Principal District Court, Salem, reversing the judgment anddecree, dated 30.11.1992, made in O.S.No.7 of 1988, on the file thePrincipal District Munsif Court, Salem. https://hcservices.ecourts.gov.in/hcservices/

2. The plaintiff had filed the suit in O.S.No.7 of 1988,praying for a declaration and injunction to declare that the orderpassed by the Superintending Engineer, the first defendant in thesuit, dated 11.12.1987, as being arbitrary in nature and for apermanent injunction restraining the defendants and their men from,in any way, disconnecting the electricity supply, in S.C.No.67(Part IV) of M.P.K. Distribution of Arisipalayam Operation andMaintenance Section. The plaintiff had stated that he is the ownerof the service connection, in S.C.No.67 Tariff IV of M.P.K.Distribution of Arisipalayam Operation and Maintenance Section. Theplaintiff is using the service connection in his Dhal Mill. Thedefendants and their subordinates have allegedly inspected theservice connection, on 28.5.1984, and they had claimed that theplaintiff had tampered with the electricity meter and that he hadpilfered energy. The plaintiff had alleged that some of theauthorities of the Tamil Nadu Electricity Board had a grudgeagainst the plaintiff as he had made certain complaints against theAssistant Divisional Engineer. Therefore, the Assistant DivisionalEngineer concerned had foisted criminal cases against the plaintiffand his family members.3. The plaintiff had further stated that the provisionalassessment made by the Assistant Divisional Engineer, stating thata sum of Rs.1,59,356/- was due from the plaintiff, is arbitrary andbaseless. Pursuant to the directions issued by the High Court, theplaintiff had paid 1/8th of the provisional assessment and he hadfaced the enquiry conducted by the Divisional Engineer, Salem. Theplaintiff was not given sufficient opportunity to explain his caseas directed by the High Court. An order had been passed,arbitrarily, confirming the provisional assessment made against theplaintiff. Thereafter, the plaintiff had filed an appeal before thefirst defendant, challenging the order passed by the seconddefendant. During the pendency of the appeal, the DivisionalEngineer concerned had made an inspection of the plaintiff's mill,on 30.11.1987. All necessary particulars relating to the processesand the duration for each of the process and the actual consumptionof electricity for the processes had been submitted to him. Whileso, the Superintending Engineer, the first defendant in the suit,had compelled the plaintiff to pay a sum of Rs.89,641/-, under thethreat of disconnection of electricity supply to the Mill. Whileso, without giving any further opportunity to the plaintiff, afterthe inspection made by the Divisional Engineer concerned, theSuperintending Engineer passed an order, confirming the order ofthe second defendant. The order of the first defendant is arbitraryand without any basis. It is also a non-speaking order. No reasonshave been given by the first defendant for coming to hisconclusions. 4. In the written statement filed on behalf of thedefendants it has been stated that the service connection of theplaintiff, in S.C.No.67, had been inspected on 28.5.1984. There wastampering of the meter and theft of electricity had been committed.The allegation of the plaintiff that there was bitterness betweenthe plaintiff and the Assistant Divisional Engineer concerned, dueto the complaint made against him by the plaintiff, is false. No https://hcservices.ecourts.gov.in/hcservices/ case had been foisted, as alleged by the plaintiff. During thesurprise inspection by the officers of the Electricity Department,a number of cases of theft of electricity had been found.Therefore, several criminal complaints had been lodged in thatregard. The agreement made by the Assistant Divisional Engineer isonly in accordance with B.P.780, dated 21.6.1977, as per the termsand conditions of supply of electricity. 5. It has also been stated that a fair opportunity had beengiven to the plaintiff by observing the rules and regulationsbefore the orders had been passed by the defendants. When theplaintiff had paid the amounts by admitting the facts he cannotraise any further objections. It is incorrect to state that theorder passed by the defendants are arbitrary and without sufficientreasons. They are in strict compliance with the directions issuedby the High Court, as well as in accordance with the terms andconditions of the supply of electricity. There is no cause ofaction for the filing of the suit. 6. Based on the averments made on behalf of the plaintiff,as well as the defendants, the following issues had been framed bythe trial Court"1) Whether the plaintiff is entitled to therelief of injunction, as prayed for in the plaint?2) Whether the plaintiff is entitled to any otherrelief?"7. The plaintiff had examined himself as a witness and thedefendants had examined four witnesses in support of their claims.Exhibits A-1 to A-25 had been marked on behalf of the plaintiff andExhibits B-1 to B-19 had been marked on behalf of the defendants. 8. The claim of the plaintiff that the allegation of theftagainst the plaintiff and the criminal case foisted against him wasdue to the fact that there was previous enmity between theplaintiff and the Assistant Divisional Engineer, Pazhanirajan, hadnot been believed by the trial Court. If there was any complaint,with regard to the deficiency of service or with regard to thedemand of money by the staff of the department, it was open to theplaintiff to bring it to the notice of the higher authorities.Since the plaintiff had not done so his claim that there were ill-feelings between him and the Assistant Divisional Engineer,Pazhanirajan, cannot be believed. Therefore, the trial Court hadheld that it cannot be concluded, based on the letters, dated12.5.1984 and 21.5.1984, marked as Exhibits A-1 and A-3,respectively, that the surprise inspection done, on 28.5.1984, inthe Dhal mill belonging to the plaintiff was accentuated due toprevious enmity. The trial Court had also come to the conclusionthat the plaintiff had made contradictory statements as to thereason why he was not available at the Mill during the inspectionby the authorities of the defendant department. In fact, he hadstated that he could not be available during the inspection as hehad gone out. Later, during the enquiry held, on 21.12.1985, and inthe affidavit filed in support of the writ petition before thisCourt he had stated that he was out of station at the time of theinspection, as he had gone to Chennai for eye treatment with https://hcservices.ecourts.gov.in/hcservices/ Dr.Agarwal, along with his daughter. However, there was no evidenceshown on behalf of the plaintiff to support the said claim.Therefore, the trial Court had not believed the claim of theplaintiff that the procedures required to be followed before aninspection was done had not been adhered to by the authorities ofthe respondent Department, during their inspection of thepetitioner's Mill, on 28.5.1984. The trial Court had also come tothe conclusion, based on the reports marked as Exhibits B-13 andB-16 that the original seals had been broken and bogus seals hadbeen put on the electricity meter available at the petitioner'sMill. Further, the provisional assessment notice, dated 10.6.1984,marked as Exhibit B-4 and the proceedings, dated 17.6.1987, markedas Exhibit B-7 and the order of confirmation by the firstdefendant, dated 11.12.1987, marked as Exhibit A-12, have been heldto be valid, as they are in accordance with the proceduresestablished by law. As such, the trial Court had concluded that theplaintiff was not entitled to the reliefs prayed for by him, in thesuit in O.S.No.7 of 1988. Accordingly, the trial Court by itsjudgment and decree, dated 30.11.1992, had dismissed the suit, inO.S.No.7 of 1988. 9. Aggrieved by the judgment and decree of the trial Court,dated 30.11.1992, the plaintiff had filed an appeal on the file ofthe District Court, Salem, in A.S.No.55 of 1993. The firstAppellate Court had framed the following points for consideration:"1) Whether the plaintiff is entitled to therelief of declaration as prayed for by him?2) Whether the plaintiff is entitled to therelief of permanent injunction?"10. Based on the contentions raised on behalf of theappellants, as well as the respondents and the evidence availableon record, the first Appellate Court had set aside the judgment anddecree of the trial Court, dated 30.11.1992, made in O.S.No.7 of1988, and it had decreed the suit in favour of the plaintiff. Thefirst Appellate Court had noted that no prior notice had beenissued to the plaintiff before conducting an inspection of theservice connection, in S.C.No.67, at the Dhal Mill belonging to theplaintiff, on 28.5.1984. On inspection the defendants had foundthat there was tampering of the meter relating to the serviceconnection, in S.C.No.67 and there was theft of electricity. Thefirst Appellate Court had found that the defendants had come to thesaid conclusion only on the basis that the seal on the electricitymeter was not similar to the one in the possession of the officersof the defendant Department. Though it was alleged that theplaintiff had refused to receive the notice of inspection theconcerned Engineer, who had made such a statement, had not beenexamined. Further, the Village Administrative Officer, who hadsigned on the notice, which was affixed on the meter at theplaintiff's Mill had also not been examined. According to the firstAppellate Court, D.W.1, namely Pazhanirajan, had stated, in hisevidence, that the plaintiff was not available to receive thenotice of inspection. However, during his cross examination he hadstated that the plaintiff had refused to receive the notice. Insuch circumstances, the first Appellate Court had concluded thatthere was no attempt to serve the notice of inspection on the https://hcservices.ecourts.gov.in/hcservices/ plaintiff. It was also found that the witnesses examined on behalfof the defendant Department had admitted that the electricity meterat the plaintiff's Mill was running and that it was not known as towhen the meter had been fixed. Further, the plaintiff had beenacquitted in the criminal case instituted against him, for theft ofelectricity, as found in Exhibit A-16. It had also been admittedthat no regular inspections were conducted, in respect of theelectricity meter. The first Appellate Court had also stated thatthere is no proper explanation as to how the theft had taken place.The first Appellate Court had also stated that proper opportunityhad not been given to the plaintiff during the enquiry, as directedby the High Court, in the writ petition filed before it. Therefore,it had come to the conclusion that the proceedings under challengein the suit were arbitrary and illegal.11. Aggrieved by the judgment and decree of the firstAppellate Court, dated 11.10.1993, made in A.S.No.55 of 1993, thedefendants have filed the present second appeal. The second appealhad been admitted by this Court on the following substantialquestions of law:"1. Is a notice necessary before inspection of aconsumer's premises and verification of the matter?2. Is the assessment of the alleged loss sufferedby the Board properly calculated as per the Rules"12. It has been submitted on behalf of the appellants thatthe judgment and decree of the lower Appellate Court, in reversingthe well considered judgment of trial Court, is improper, irregularand illegal. The lower Appellate Court had set aside the judgmentand decree of the trial Court, without properly appreciating theoral and documentary evidence available on record. The case of theplaintiff ought to have been rejected on the ground of estoppel, ashe had already paid the amount assessed by the defendant departmentas the amount due from him. The lower appellate Court had come tothe wrong conclusion that the inspection of the meter at theplaintiff's Mill ought to have been done only after the issuing ofa prior notice. The first Appellate Court had also committed anerror in coming to the conclusion that there was no opportunitygiven to the plaintiff before finalising the assessment. 13. The learned counsel for the appellants had furthersubmitted that no prior notice is necessary before conducting asurprise inspection, since the whole purpose of a surpriseinspection of the electricity meter would be lost if priorintimation is given to the owner and the occupier of the premisesor to their authorised representatives. It was also contended thatthe findings of the criminal court, resulting in the acquittal ofthe plaintiff, will not affect the proceedings initiated againstthe respondent. According to Clause 8.01 relating to theft ofenergy and extra levy of the terms and conditions of The Tamil NaduElectricity Board any consumer, who dishonestly abstracts or usesenergy shall be deemed to have committed theft, within the meaningof Indian Electricity Act, 1910 and the existence of artificialmeans of such abstractions shall be prima facie evidence of suchdishonest abstraction. From the test report of the meter it isclear that there was tampering of the meter. https://hcservices.ecourts.gov.in/hcservices/

14. The learned counsel for the appellant had relied on thedecision of the Supreme Court, reported in Hyderabad vanaspathiLtd. V. A.P.State Electricity Board [(1998) 4 SCC 470], to contendthat the Terms and Conditions of the Tamil Nadu Electricity Boardare statutory in character and that they cannot be said to bepurely contractual in nature. In the decision, reported inJ.M.D.Alloys Ltd. V. Bihar SEB [(2003 (5) SCC 226], it has beenheld that the purpose of trial under Sections 39 and 44 of IndianElectricity Act, is entirely different. The object is to punish andsentence the person, who is alleged to have committed the offence.The trial of the accused in a criminal case can have no bearing inthe matter of assessment made, in accordance with the tariff of thevalue of electricity dishonestly abstracted or consumed. Thelearned counsel had also relied on a judgment, dated 12.1.2009,passed by a Division Bench of this Court, in W.A.No.343 of 1998(batch), in support of his contentions. 15. It was also submitted that the plaintiff, in the suitO.S.No.7 of 1988, had not proved that the authorities of thedefendant Electricity Department had acted in a mala fide manner.Since the plaintiff had already paid 50% of the amount assessedagainst him, he is liable to pay the balance amount of Rs.69,715/-,along with the belated payment and surcharge due from him. 16. Per contra, the learned counsel appearing on behalf ofthe respondents, in the present second appeal, had submitted thatthe defendants in the suit had not established the fact that therewas theft of electricity by tampering the electricity meter fixedat the Dhal Mill relating to the service connection, in S.C.No.67,belonging to the plaintiff. Therefore, the question of assessmentof the amount liable to be paid by the plaintiff would not arise.Since notice of inspection is a must, the alleged inspectionconducted by the authorities of the defendant electricitydepartment, dated 28.5.1984, is not in order. The notice ought tohave been served on the owner of the premises or his authorisedrepresentative. Even though an Assistant Engineer of the defendantDepartment had stated that the plaintiff had refused to receive thenotice of inspection he was not examined on behalf of the defendantelectricity Department. No reasons have been given for notexamining the Village Administrative Officer, who is said to havesigned the notice affixed on the meter before the Inspection wasdone. There is no statement as to the method or the mode used bythe plaintiff for misusing the electricity. 17. The learned counsel appearing on behalf of therespondents had also relied on the following decisions of thisCourt:1) J.Singh Vs. K.Murthy (AIR 1967 SC 947)2) Subramaniam V. State (1992 MLJ (CRI) P.409) https://hcservices.ecourts.gov.in/hcservices/ 3) M/s.Apollo Enterprises Vs. State by S.I of Police (1995 MLJ Reports 27)4) Ekambaram V. Subamanian (1999(1) MLJ 575)5) R.Chinnathambi V.Palanisami [(2002) 3 MLJ 16]The learned counsel had also submitted that the first AppellateCourt had given proper reasons for arriving at its conclusions. Theconclusions are not based solely on the findings in the criminalcase in which the plaintiff had been acquitted. 18. In view of the contentions raised by the learnedcounsels appearing on behalf of the appellants, as well as therespondents, and in view of the citations relied on by the learnedcounsels and on a perusal of the records available, this Court isof the considered view that sufficient evidence was available forthe defendants in the suit to come to the conclusion that theplaintiff was liable for the amount assessed to be due from him,since the reports relating to the inspection and testing of theelectricity meter of the electricity service connection at the DhalMill belonging to the plaintiff, in S.C.No.67, had clearly shownthat there was tampering of the meter after the removal of theoriginal seal of the defendant Department. It is clear that thereis no provision for the issuing of a prior notice before a surpriseinspection is made by the authorities of the electricitydepartment. Further, the proceedings of the defendants relating tothe assessment of the amount due from the plaintiff are inaccordance with the terms and conditions of the Tamil NaduElectricity Board. From the decisions relied on by the learnedcounsel for the appellants, it is clear that the proceedingsinitiated for the criminal offence of theft of energy, underSection 39 of the Indian Electricity Act, 1910, is a separateprocedure, apart from the proceedings that could be initiated bythe Department for assessing the value of electricity, dishonestlyabstracted or consumed by the person concerned. Even if theplaintiff had been acquitted in the criminal proceedings initiatedagainst him, for the theft of electricity, under Section 39 of theIndian Electricity Act, 1910, it cannot be said that there is a barfor initiating further proceedings against him for the dishonestuse of electrical energy. The plaintiff has not been in a positionto substantiate his claim of mala fides against the defendants, bysufficient evidence. It has also not been shown as to how theenquiry conducted by the authorities of the defendant department isnot in accordance with the directions issued by this Court. Even ifthe Village Administrative Officer, who had signed on the noticeaffixed on the electricity meter and the Assistant Engineer,belonging to the defendant Department, who had stated that theplaintif had refused to receive the notice, had not been examined,it would not be fatal to the case of the defendants. Once it isfound that the electricity meter had been tampered it is for theplaintiff to have given sufficient explanation in support of hisclaim that there was no theft of electricity in respect of hiselectricity service connection, in S.C.No.67, at the Dhal Mill https://hcservices.ecourts.gov.in/hcservices/ belonging to him. Since sufficient evidence had been shown onbehalf of the defendants to substantiate their claims, the findingsof the first Appellate Court cannot be sustained. Hence, thejudgment and decree of the first Appellate Court, dated 11.10.1993,made A.S.No.55 of 1993, is set aside and the judgment and decree ofthe trial Court is restored. Accordingly, the second appeal standsallowed. No costs. Sd/Asst.Registrar/true copy/Sub Asst.Registrarcsh To1) The Principal District Judge, Salem.2) The Principal District Munsif, Salem.3) The Section Officer, V.R.Section, High Court, Madras.+ 1 cc to Mr.T.P.Sankaran, Advocate, Sr 49506+ 1 cc to Mr.N.Muthusamy, Advocate, SR 43988Second Appeal No.797 of 1994BV (CO)RH (29.1.10)