Divisional Engineer (West),Tamil Nadu Electricity Board,Salem - 5 v. J.Rajendra Prasad

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 05.04.2007CORAM:THE HONOURABLE MR. JUSTICE P.JYOTHIMANISecond Appeal No.691 of 1995and C.M.P.No.7531 of 1995Divisional Engineer (West),Tamil Nadu Electricity Board,Salem - 5 .. Appellant(Defendant)-Vs-J.Rajendra Prasad.. Respondent (Plaintiff)APPEAL under Section 100 of the Code of Civil Procedure againstthe judgment and decree made in A.S.No.14 of 1993 dated12.10.1993 on the file of the Court of District Judge, Salem,confirming the judgment and decree in O.S.No.923 of 1997 dated06.04.1992 on the file of the Principal District Munsif Court,Salem.For Appellant:M/s. N.MuthusamyFor Respondent:No Appearance- - -J U D G M E N TThe unsuccessful defendant, the Tamil Nadu ElectricityBoard, in both the Courts below, is the appellant in the abovesecond appeal. The suit was filed by the plaintiff for adeclaration that the order passed by the defendant on09.06.1987 is not binding on the defendant and also for apermanent injunction not to interfere with the electricityservice connection in respect of Account No.64, Tariff No.IV,MBK Arisipalayam O & M. The case of the plaintiff was that hegot the above said tariff connection for his Doll Mill and thedefendant on the basis of an inspection stated to have beeneffected on 25.05.1984 has found that the seal has been brokenand a bogus seal was implanted and therefore a criminalcomplaint was given before the Learned First Class JudicialMagistrate, Salem in C.C.No.188 of 1986 under Sections 39(1)and 44(c) of the Indian Electricity Act. In the meantime, thedefendant-Board has sent an initial assessment notice as per https://hcservices.ecourts.gov.in/hcservices/ the terms and conditions of supply on 10.06.1984 demanding anamount of Rs.3,31,580/-. When the respondent/plaintiff hasapproached the High Court by filing a writ petition against thesaid order, the High Court in W.P.Nos.6130 to 6132 of 1984 hasgranted an order of interim stay and even before the order ofstay, the plaintiff paid a sum of Rs.43,453.75 and the HighCourt has directed that after giving opportunity to theplaintiff, final order should be passed and on any suchdecision, for the payment of the amount, the same shall bepermitted to be paid in three instalments. Thereafter, therewas no notice and the plaintiff was under the impression thatfurther proceedings will be proceeded after Criminal case isover. However, by a letter dated 09.06.1987, marked on theside of the defendant as Ex.B-4, stating as if there was aninspection conducted and order has been passed and furtherstating as if the plaintiff has given explanation and ignoringthe order of the High Court in W.P.Nos.6130 to 6132 of 1984directed the plaintiff to pay a sum of Rs.2,90,126.25. Thesaid order was challenged on the ground that it is against theprinciples of natural justice and passed without givingopportunity and the same was against the order of this HighCourt passed in the above writ petition. 2. The defence of the defendant in the suit was that thenotice has been issued after the issuance of initial assessmentand in fact the plaintiff's father has requested foradjournment on few occasions and on that basis there was anenquiry conducted in which the plaintiff, his brother and hisfather have participated and only after the enquiry the orderwas passed. The Trial Court and also the First Appellate Courton an appreciation of evidence as well as the various documentshas decreed the suit and as against the same, the defendant hasfiled the present second appeal.3. While admitting the above second appeal, the followingsubstantial questions of law were framed:-“1. Whether the Courts below are right inholding that the plaintiff did not commit theftof energy, particularly, when the bogus sealshave been substituted in the place of originalseals?2. Whether the Courts below are right in findingthat the amount claimed by the appellant Boardwas without basis, particularly, when theDepartment conducted the enquiry properly as perthe direction of this Hon 'ble High Court inW.P.No.6131 of 1984?3. Whether the lower Courts were right in https://hcservices.ecourts.gov.in/hcservices/ considering the decision rendered by theCriminal Court while deciding the Civilliability?4. Whether the Courts below are right in sittingover the inspection and the subsequentassessment made by the Appellant Department inexercise of their powers under terms andconditions of supply?”4. At the outset, it is seen from the judgment of theLearned First Appellate Judge in A.S.No.14 of 1993 that pendingthe appeal, the plaintiff has filed a document apart from theadditional documents filed by the defendant. The additionaldocuments filed on behalf of the plaintiff in the appellateside was marked as Ex.A-1 that is the order in CriminalRevision Case No.506 of 1989 dated 05.08.1993 in which thisCourt while confirming the order of the Criminal Court below,wherein the prosecution was launched against the plaintiffunder the Electricity Act, as stated above, has held thatexcept stating that there is a difference between the seal,which was fixed earlier and also the seal brought by theDepartment, there was no other evidence to prove that theft wascommitted by the plaintiff and in view of the same, theplaintiff was acquitted. In addition to that, both the Courtsbelow, on an appreciation of the various documents especiallythe documents filed on the side of the defendants relating toExs.B-2 and B-3 apart from Ex.B-10, have come to a categoricconclusion that the Junior Engineer stated to have executed theinspection was not examined and there was no record produced toshow that notice was given in accordance with law. Therefore,by relying upon condition No.64 of the terms and conditions ofSupply of Electricity, both the Courts below have come to theconclusion on a factual assertion that no opportunity was givento the plaintiff before passing the order imposingresponsibility on the plaintiff under Ex.B-4.5. In this regard, it is relevant to point out that evenunder the Terms and Conditions of Supply of Electricity, therespondent-Board has the responsibility to pass initialassessment of notice directing the party to pay 50% andthereafter giving show cause notice to the consumer andconducting an enquiry after giving opportunity, the final ordershould be passed, which is admitted. In view of the above saidfactual position and based on terms and conditions of which thesupply of electricity has been given to the consumer, theCourts below have correctly come to the conclusion that theorder passed by the Appellant-Board is not enforceable in law.It was also found that the order came to be passed by theAppellant-Board inspite of the specific directions given in https://hcservices.ecourts.gov.in/hcservices/ W.P.Nos.1630 to 1632 of 1984 marked as Ex.A-1. 6. Further, in the circumstance that the Criminal Courtitself has acquitted the plaintiff on the charge of the powertheft and there is no question of subsequent inspection statedto have been made by the Board, as it was seen in theadditional documents filed on behalf of the defendants, whichwas found by the learned First Appellate Judge and is not inconformity with the order of this Court passed in W.P.Nos.1630to 1632 of 1984 in Ex.A-1.7. In view of the above said facts, the judgment anddecree of the Courts below are confirmed and the second appealstands dismissed. The substantial questions of law framed areanswered in favour of the respondent. 8. In the result, the second appeal dismissed withproportionate costs thereof. Consequently, the connected CMPis closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarsrkTo1. The District Judge, Salem2. The Principal District Munsif, Salem.3.The Record Keeper,VR Section, High Court, Madras.+1cc to Mr.N.Muthuswami, Advocate Sr 21813VC (CO)km/4.6.Second Appeal No.691 of 1995and C.M.P.No.7531 of 1995