Electricity Board,by its Junior Engineer O & M,Melpatti Section,Melpatti and Post, Gudiyattam v. 1.Mohideen Sahib2.Abdul Rahaman

IN THE HIGH COURT OF JUDICATURE AT MADRASDated.: 29.08.2007CORAM:THE HONOURABLE MR. JUSTICE K.MOHAN RAMSecond Appeal No.1271 of 2006 & M.P.No. 2 of 2006Tamil Nadu Electricity Board,by its Junior Engineer O & M,Melpatti Section,Melpatti and Post, Gudiyattam Taluk... Appellant/Appellant/Defendant -Vs-1.Mohideen Sahib2.Abdul Rahaman .. Respondents/Respondents/ PlaintiffsAPPEAL filed under Section 100 of Code of Civil Procedure against thejudgment and decree, dated 27.01.2006, made in A.S.No.23 of 2004 onthe file of the Subordinate Court, Gudiyattam, confirming the judgmentand decree dated 21.11.2003 made in O.S.No.631 of 1999 on the file ofthe District Munsif Court, Gudiyattam. For Appellant :Mr.N.MuthuswamiFor Respondents :Mr.K.A.Ravindran- - -J U D G M E N TThe unsuccessful defendant in O.S.No.631 of 1999 on the file ofthe District Munsif Court, Gudiyattam, has filed the above secondappeal.2. For the sake of convenience, the parties are referred to asper their ranking in the suit.3. The case of the plaintiffs is as follows:-The 1st plaintiff had set up flour mill and obtained electricityservice connection bearing No.120 from the defendant ElectricityBoard; in 1996 the 1st plaintiff's unit was recognised as a tiny unitby the Government of Tamilnadu and certificate to that effect wasissued; the tariff to the 1st plaintiff's service connection wasclassified under Tariff III-A; the second plaintiff started a business https://hcservices.ecourts.gov.in/hcservices/ of hulling paddy, soapanut power and decorticating of groundnut inOctober 1998 and the same was recognised as tiny unit and the secondplaintiff got the electricity service connection No.193 which wasclassified under Tariff III-A; while so according to the plaintiffsthe defendant without issuing any notice and conducting any enquirychanged the tariff from III-A to tariff III-B and such change intariff effected by the defendant is against the principles of naturaljustice and hence filed the suit for declaration and for consequentialpermanent injunction.4. The defendant contested the suit inter alia contending asfollows:The plaintiffs were allowed to enjoy the said service connectionunder Tariff III-A; as per G.O.Ms.No.29, dated 31.01.1995, theplaintiffs units were treated as tiny units and thereforeclassification of the unit was made under tariff III-A but the correcttariff applicable is III-B; the entry in the green card which is inthe custody of TNEB and in the white card which is in the custody ofthe plaintiffs was made on 16.07.1999 and after the tariff was changedthe plaintiffs were called upon to pay charges under tariff III-B.The defendant Board is acting only as per the curricular issued by theGovernment and the proceedings issued by the TNEB; it is contendedthat previous notice or enquiry is not required for change in thetariff.5. After framing appropriate issues, the suit was taken up fortrial and during trial on the side of the plaintiffs, the 2nd plaintiffwas examined as P.W.1 and Exhibits A1 to A4 were marked. On the sideof the defendant one witness was examined as D.W.1 and Exhibit B1 toB4 were marked. The Trial Court on a careful consideration of theoral and documentary evidence adduced in the case, held that thechange of tariff by the defendant has civil consequences and thereforethe change of tariff without any notice to the plaintiffs violates theprinciples of natural justice and accordingly decreed the suit forpermanent injunction. Being aggrieved by that the defendant filed anappeal in A.S.No.23 of 2004, on the file of the Subordinate Court,Gudiyattam. The lower appellate court also on an independentconsideration of the evidence on record and the reasoning of the trialcourt agreed with the findings of the trial court and dismissed theappeal. Being aggrieved by that the defendant is before this Court inthe above second appeal.6. Heard Mr.N.Muthuswami learned counsel for the appellant andMr.K.A.Ravindran learned counsel for the respondents.7. The learned counsel appearing for the appellant submitted thatboth the courts below have not properly considered Exs.B1 and B2, theGovernment orders and the relevant circulars issued by the Government. https://hcservices.ecourts.gov.in/hcservices/

8. The learned counsel for the appellant further submitted thatthe issuance of Exs.A1 and A2 certificates certifying the units run bythe plaintiffs as tiny industrial unit alone will not enable theplaintiffs to get their service connection classified under TariffIII-A. The learned counsel further submitted that unless and until theunits run by the plaintiffs come under any one of the categoriesenumerated under Low Tension tariff III-A, the plaintiffs cannot claimto be charged under Tariff III-A. The learned counsel furthersubmitted that under Low Tension tariff III-B the following categoriesare included namely, "Coffee grinding, Ice factory, Body building unit, Saw mill,Rice mill, Flour mill, Prawn farming, Poultry farming,Battery charging unit and industries not covered under Lowension Tariff III"and therefore the learned counsel submitted that when admittedly theplaintiff's unit is a flour mill and flour mill is included in TariffIII-B, the same will come under Tariff III-B. The learned counselfurther submitted that though under the Low Tension tariff III-A tinyunits are included, the plaintiffs are not entitled to be chargedunder Low Tension tariff III-A since the plaintiffs are running flourmill. The learned counsel further submitted that since the change intariff has been entered in the green card and white card and the whitecard is always with the plaintiffs it should be taken that they hadnotice about the change in tariff. Alternatively, the learned counselsubmitted that by non-issuance of notice no prejudice what-so-ever hasbeen caused to the plaintiffs because the change in tariff has to beconsidered only in the light of the relevant circulars issued by theGovernment and the proceedings issued by the Electricity Board.9. Per contra, the learned counsel for the respondents submittedthat though the change in tariff is caused in the white card which isin the custody of the plaintiffs no specific notice informing theplaintiffs that the tariff is going to be changed from tariff III-A toIII-B has been issued and prejudice has been caused to therespondents by non issuance of notice.10. I have carefully considered the submission made on eitherside and the materials available on record and the judgments of thecourts below.11. In the memorandum of grounds of the second appeal thefollowing substantial question of law has been framed:-"Whether the courts below have committed an errorof law in decreeing the suit filed by the plaintiffswith reference to classification of the category of https://hcservices.ecourts.gov.in/hcservices/ consumers under Low Tension tariff III-A to Low Tensiontariff III-B as found under G.O.Ms.No.17, EnergyDepartment dated 14.02.1997 under the provisions of TheTamil Nadu Revision of Tariff on Supply of ElectricalEnergy Act, 1978 (Act No.1 of 1979)?12. The tariff charges payable to the Tamil Nadu ElectricityBoard by any consumer on the energy supplied by the Board is specifiedin the schedule to the Tamil Nadu Revision of Tariff on Supply ofElectrical Energy Act, 1978 (herein after referred to as the 'Act').Under Section 4 of the Act, the State Government is empowered to amendthe schedule to the Act. In exercise of the power under Section 4 ofthe above Act, the State Government from time to time issues variousstatutory orders and the same are published in the Tamil NaduGovernment Gazette. By issuing such statutory orders, the schedule tothe Act is being amended from time to time. Ex.B1 is one suchGovernment Order issued in G.O.Ms.No.29 dated 31.09.1995.13. The courts below ought to have considered the case of theplaintiffs in the light of Ex.B1 and decided the question as towhether the plaintiffs service connections will fall under tariffNo.III-A or tariff No.III-B. But both the courts below have not donethat. If the classification of the service connection of theplaintiffs has been made strictly in accordance with Ex.B1 then noexception can be taken to the change of classification of theplaintiffs service connections from category III-A to III-B.Admittedly, the plaintiffs are running flour mill and the serviceconnection has been obtained by the plaintiff only to run the flourmill. There is also no dispute that the units run by the plaintiffshave been certified as tiny units as evidenced from Exs.A1 and A2which have been issued by the District Industries Centre. Since theDistrict Industries Centre has issued Exs.A1 and A2 certificatescertifying the units namely flour mills run by the plaintiffs as tinyunit, the plaintiffs are claiming that their service connections oughtto be classified under tariff III-A.14. As seen from Ex.B1, Low Tension tariff III-A is applicableto cottage and tiny industries, small gem cutting units where cuttingoperation is done with or without power, power looms and sericultureprovided that the connected load shed not exceed 10 Horse Power. LowTension Tariff III-B is applicable to the following categories namelyCoffee grinding, Ice factory, Body building unit, Saw mill, Rice mill,Flour mill, Prawn farming, Poultry farming, Battery charging unit andindustries not covered under Low Tension Tariff III. A reading of theabove said two tariff classifications makes it clear that cottage andtiny units will fall under Low Tension tariff III-A but if the tinyunits happens to be a flour mill, which is enumerated under LowTension III-B, then such a tiny unit cannot be classified as comingunder Low Tension tariff III-A. Since flour mill has been https://hcservices.ecourts.gov.in/hcservices/ specifically included under Low Tension tariff III-B even if it hasbeen classified as tiny unit, it cannot come under Low Tension tariffIII-A. Only tiny units of any other description except the unitscovered by Low Tension tariff III-B will come under Low Tension tariffIII-A. Since flour mill has been enumerated under Low Tension TariffIII-B, the claim of the plaintiffs that as the flour mill run by theplaintiffs has been certified as tiny unit by the District IndustriesCenter, the same should be classified only under Low Tension tariffIII-A cannot be accepted.15. Both the courts below have miserably failed to consider thecase of the plaintiffs in the light of Ex.B1 which is a statutoryorder issued by the Government in exercise of its power under Section4 of the Act.16. The contentions of the learned counsel for the respondentsthat the change of classification from tariff III-A to tariff III-Bwithout giving any notice or opportunity of hearing to the respondentsis bad in law is also not sustainable. The change in tariff is notedin the green card as well as in the white card; while the green cardis kept by the appellant, the white card is always be with therespondents. From the entry made in the white card the respondentswould have come to know about the change in tariff and in fact theyhad come to know about the same. The respondents ought to havechallenged the same by preferring a statutory appeal but therespondents have not done so. Admittedly, no separate notice has beenissued to the respondents by the appellant before effecting change intariff and it may amount to violation of the principles of naturaljustice. Mere violation of the principles of natural justice in theabsence of any prejudice being caused to the respondents will notinvalidate the change in tariff effected by the appellant. Even if anotice has been issued prior to effecting change in the tariff, sinceadmittedly the plaintiffs are running a flour mill, the plaintiffscould not have given any acceptable explanation to bring their serviceconnection within Tariff III-A. Even if an opportunity is given tothe respondents that also will not serve any useful purpose. Sincethey will be putting forth the very same contentions that are beingurged before this Court. As pointed out above the only contention ofthe respondents is that since the plaintiffs units have been certifiedas tiny unit by the District Industries Center as evidenced fromExs.A1 to A2 they should be included only in tariff III-A and notunder tariff III-B. 17. This court has also held that simply because the plaintiffshave been certified as tiny units by the District Industries Center,that alone will not clothe the respondents with any right to includetheir service connection under tariff III-A. Therefore the reasoningof the Courts below that as no notice was issued for effecting changein tariff there is violation of the principles of natural justice and https://hcservices.ecourts.gov.in/hcservices/ therefore the plaintiffs / respondents are entitled to get a decree ofpermanent injunction is unsustainable and accordingly the substantialquestion of law is answered in favour of the appellant and against therespondents and the second appeal is allowed and the judgment anddecree of the courts below are set aside. However, there will be noorder as to costs. Consequently, the connected M.P. is closed.Sd/Asst.Registrar/true copy/Sub Asst.Registrarkk To1.The Subordinate Court, Gudiyattam.2.The District Munsif Court, Gudiyattam.+1cc to Mr.K.A.Ravindran, Advocate Sr 54323+1cc to Mr.N.Muthuswami, Advocate Sr 54306JSK (CO)km/17.9.S.A.No.1271 of 2006and M.P.No.2 of 2006