RFA 64/2005 BEFORE HON’BLE MR. JUSTICE AMITAVA ROY HON’BLE MR. JUSTICE P.K.SAIKIA JUDGMENT & ORDER Amitava Roy, J The instant appeal has been preferred against the judgment and o rder dated 4.9.2004 passed by the learned Civil Judge (Senior Division), Tinsuki a in Title Suit No. 2/95 instituted by the respondents herein. Thereby, the suit has been decreed declaring, amongst others, the disconnection of electric suppl y to the factory premises of the respondent No.1 as well as the demand of Rs. 15 ,55,200/- as compensation for breach of the Terms and Conditions of Supply to be illegal. A mandatory injunction directing restoration of the supply of electric ity to the aforementioned premises has also been issued. 2. We have heard Mr BD Das, learned counsel for the appellants. Tho ugh the names of the learned counsel for the respondents appeared in the cause l ist, none was in attendance when the appeal was called on for hearing. No prayer for adjournment as well was made on their behalf. Having regard to the year of registration of the appeal, in the above premise, the learned counsel for the ap pellants was heard. 3. As referred to hereinabove, the respondents initiated the lis th rough the aforementioned suit praying for a decree inter alia for declaration th at the compensation bill under Memo No. AM/DIRCA/20/AB/94/2344 dated 26.12.94 to the tune of Rs. 15,55, 200/- was illegal and the allegation brought in the lett er No. AM/DIRCA/20/AB/94/2342 dated 23.12.94 baseless. A mandatory injunction wa s sought for directing the defendants therein to restore the supply of electrici ty in the factory premises of the respondent No.1 via Electric Meter No. 7097561 . The respondent No.1 was introduced to be a partnership firm with the responden t Nos. 2 to 5 as the partners thereof. The firm was said to be engaged in the bu siness of manufacture and sale of tea and was a consumer under the appellant Boa rd vide Meter No. 7097651. The respondents claimed to be regular in payment of t he energy bills for the electricity consumed by them and that their consumption of the supply was in strict compliance of the Terms and Conditions of Supply as formulated by the Board. They averred that on 22.12.94, the appellant No.5, whil e the attorney of the respondent Nos. 2 to 4 was out of station, conducted a rou tine inspection of the electric meter installed in the factory premises of the r espondent No.1 and alleged to have detected tampering with it. A Meter Testing R eport was drawn up on the very same day. The respondents/ plaintiffs alleged tha t the said authority of the Board thereafter forced and compelled their employee s to put their signatures thereon. The respondents further alleged that on the n ext day the said authority again visited the factory premises of the respondent No.1 and without affording any opportunity of furnishing explanation or defence to the imputation made, disconnected the electric supply and also handed over a letter being No. AM/DIRCA/ 20/AB/94/2342 dated 23.12.94 citing the reasons for such disconnection to be: i) interference and tampering with the meter system; ii) theft of energy. 4. While asserting against the accusation of interference and tampe ring with the electric meter to be baseless and only a ruse to shift the blame o f the Board on them, the respondents averred that eventually a Bill No. 10246/01 0 dated 26.12.94 along with a forwarding letter No. AM/DIRCA/20/AB/94/2342 dated 26.12.94 was served on them claiming an amount of Rs. 15,55,200/- as compensati on for the alleged malpractices. The respondents in the plaint repudiated this a ction to be wholly illegal and arbitrary and maintained that the disconnection o f electricity had brought all their manufacturing activities to a screeching hal t besides adversely affecting the livelihood of a large number of employees. 5. The appellants filed a joint written statement contending inter alia against the maintainability of the suit. They averred that on 22.12.94, in course of the routine inspection of electric installations in the premises of th e respondent No.1 in presence of the representatives of the respondents/ plainti ffs, clear evidence of opening of the meter box through the hinges of its door w as detected though the seal affixed on the other side thereof was found to be in tact. It was stated as well that the Inspecting Officer then suspected interfere nce with the meter and on opening the meter box by removing the seal in presence of the representatives of the respondents/ plaintiffs, it was found that the ph ase sequence in the meter had been altered and that the C.T. connections from th e said phases had been reversed. The appellants further averred that the Inspect ing Officer then prepared a report recording the above findings on which the rep resentatives of the respondents/ plaintiffs signed. The allegation of obtaining such signatures by force was denied. The appellants further clarified that the meter had connections in three phases and the C.T. connections for each of these were independent and separately connected with the meter terminal block attache d to the meter to ensure correct reading of the energy consumed. They mentioned as well that any alteration or change of phase sequence or reversal of C.T. conn ections would not only result in disruption of the recording of the meter but al so adversely affect the normal movement of the meter, consequently, recording le sser consumption of energy. The appellants asserted that the alteration of the p hase sequence and reversal of C.T. connections as detected cannot occur unless s ome external agency in collusion with the consumer (respondents/ plaintiffs) had caused the same and that such illegal interventions amount to interference with the meter and the meter system as envisaged in Clause-19 and 21(ii)(g) and (i) of the Terms and Conditions of Supply. The appellants averred as well that the r espondents had agreed to avail the supply of electricity from the Board subject to the compliance of the electricity laws and the Terms and Conditions of Supply and as the meter was in their (respondents/ plaintiffs) exclusive custody being installed in their premises, it was their sole responsibility to ensure against the access thereto of any person other than the authorized representative(s) of the Board. The appellants, therefore, asserted that alteration of phase sequenc e and the reversal of C.T. connection were unauthorized and illegal acts attribu table to the respondents/ plaintiffs for making wrongful gain to themselves and wrongful loss to the Board justifying the disconnection of electric supply and t he demand of compensation therefor as permissible under the Terms and Conditions of Supply. 6. On the basis of the pleadings of the parties, the following issu es were framed: 1. Whether the suit is maintainable ? 2. Whether there is cause of action for this suit ? 3. Whether the plaintiffs have violated any terms and conditions of supply ? 4. Whether the allegation of the defendants is baseless, illegal and inoperative ? 5. Whether the plaintiffs are entitled to a decree as prayed for ? 6. To what relief, if any, parties are entitled ? 7. Whereas the respondents/ plaintiffs examined two witnesses and a dduced documentary evidence as well, the appellants cited one witness to endorse their pleaded case. By the impugned judgment and order, as aforementioned, the suit was decreed granting the reliefs prayed for. 8. Mr Das has argued that the learned Trial Court had totally misre ad the evidence on record and, consequently, the findings recorded against the a ction taken by the appellant Board are unsustainable in law and on facts. While insisting that the supply of electric energy and the consumption thereof have to be assuredly in strict compliance of the Terms and Conditions of Supply, the an omalies noticed in the electric meter installed in the factory premises of the r espondent No.1 clearly testify the malpractice of interference and tampering the rewith for theft of energy, thus, justifying the steps taken by the appellant Bo ard. According to the learned counsel, as the interference and tampering with t he electric meter in the manner as detected is an impossibility without the over t association and connivance of the consumer thereof, the learned Trial Court mi sdirected itself in sustaining the respondents’/ plaintiffs’ plea to the contrar y, thus, vitiating the impugned judgment and order. As the findings of alteratio n of the phase sequence in meter and the reversal of the C.T. connections from t he phase had remained uncontroverted, having regard to the fact that at all rele vant times the meter was in the exclusive custody of the respondents/ plaintiffs , the learned Trial Court ought not to have decree the suit only on the consider ation that the outer seal thereof (meter) had been found to be intact, he pleade d. Mr Das argued that it being the categorical and unambiguous stand of the appe llant Board that the meter had been interfered with by an external agency with t he obvious approval and assistance of the consumer by opening it through the hin ges of its door, however, maintaining its seal to be intact, the learned Trial C ourt erred in disregarding the meter testing report leading to erroneous conclus ions. Maintaining that the remedial steps taken by the appellant Board did not s tem from any bias or malafide, Mr Das asserted that the finding of harassment an d humiliation recorded in the impugned judgment and order is without any factual basis. As the action taken by the appellant Board had been in furtherance of pu blic interest as warranted and in meticulous compliance of the relevant law and the Terms and Conditions of Supply, the impugned judgment and order ought to be se aside, he urged. Mr Das, to buttress his contentions, placed reliance on the decision of the Apex Court in Jagannath Singh @ Jainath Singh & Anr -vs- B.S. Ra maswamy & Anr., AIR 1966 SC 849. 9. We have duly taken note of the pleaded versions as well as the a rguments advanced on behalf of the appellants. The learned Trial Court, as the i mpugned judgment and order would reveal, concluded against the tampering, altera tion or reversal of the phases and C.T. connections chiefly in view of the fact that in terms of the Meter Testing Report (Exhibit-5) the sealed cabinet contain ing the meter box and the C.T. connections was found intact. It also took notic e of the omission in the said report of any observation that the alleged tamperi ng had been effected through the hinges of the door of the meter box. It, thus, ruled against any possible tampering with this device without breaking of the se al of the steel cabinet which housed the meter box and the meter connections. T he allegation of malpractice, the learned Trial Court concluded, was, thus, base less and concocted and levelled only to harass the respondents/ plaintiffs. That they did not violate the Terms and Conditions of Supply was recorded as well. 10. It is indubitable that the respondents/ plaintiffs at all releva nt times had been availing the electricity supplied by the appellant Board under an agreement undertaking to comply with the terms and conditions of such supply . The pleadings as well as the evidence on record demonstrate in unambiguous ter ms that the meter box with the incidental trappings had been installed by the ap pellant Board, whereafter, the same remained in the exclusive custody of the res pondents/ plaintiffs. The Meter Testing Report (Exhibit-5) recorded the conclusi ve finding following the examination of the meter as follows:- Meter connection found as stated in SL 12(5) (c). There is evidence of meter ta mpering, without breaking the box seal. Capacitor bank out of order. . 11. That the report further disclosed alteration of phase sequence i n the meter and reversal of the C.T. connection from the related phases is a mat ter of record. The correctness of this finding remains uncontroverted, though th e respondents/ plaintiffs have vehemently denied the allegation of tampering or interference with the meter for unlawful gain. The witness of the appellant Boar d while admitting that the meter and the meter terminal box were located in one box installed in the premises of the respondents/ plaintiffs, explained the conn ections as hereinbelow:- C.T. Connection - R- Phase ..... 1 and 2 Y- Phase - 4 and 5 B- Phase - 7 and 8 Potential connection - R- Phase 3 (Potential terminal) Y Phase 6 B Phase 9 Neutral - 10 . 12. According to this witness, the C.T. connections for each of the three said phases were independent and separately connected with the meter termi nal box attached with the meter. He testified that any alteration or change of t he phase sequence and reversal of the C.T. connection would not only cause disru ption of the recording of the meter reading properly, but also would adversely a ffect the normal movement of the meter, thus, recording lesser consumption of en ergy. He clarified that such alteration of phase sequence and reversal of C.T. c onnection is possible only through some external agency in collusion with the re spondents/ plaintiffs. He deposed that such unauthorized handling of the meter w ould amount to interference therewith as per Clause 19 and 21(ii)(g) and (i) of the Terms and Conditions of Supply. He stated in clear terms that on the inspect ion of the meter box there existed clear evidence of opening thereof through the hinges of the door without breaking the seal affixed to the box. He clarified a s well that no one can have access to the C.T. connection without tampering the box in course of which the seal affixed thereto is likely to be damaged. He admi tted that the seal, in the instant case, had been found to be intact and that he omitted to mention in his report that the tampering had been done through the h inges. 13. The evidence of the witness of the appellant Board read as a who le does not rule out the feasibility of tampering with the meter box and the met er in the case in hand with the intervention of an expert technical person. The fact that the seal on the meter as well as the meter box was found to be intact does not ipso facto render the tampering or interference therewith to be an impo ssibility. This assumes significance in the face of the unrefuted state of the m eter demonstrating alteration of its phase sequence and reversal of the C.T. con nections thereby slowing down the meter to record incorrect readings to indicate lesser energy consumed to the benefit of the consumer. Admittedly, the meter wi th the meter box had been in the exclusive custody of the respondents/ plaintiff s at all relevant times and it is illogical to assume that the anomalies noticed in the device were with the knowledge and approval of the appellant Board at th e time of its installation at the first instance. Even assuming that it was the handiwork of one or more of its unscrupulous officials, the respondents/ plainti ffs as the consumer cannot in law be permitted to reap the benefit thereof. The learned Trial Court clearly left out of consideration these aspects while decree ing the suit. 14. In this view of the matter, on a consideration of the totality o f the materials on record, the appellants’ plea of misreading and/or mis-appreci ation of the pleadings and the evidence on record by the learned Court below com mends for acceptance. The conclusion of the learned Trial Court that the allegat ion of tampering and interference with the meter/ meter box was baseless and mad e only to harass the respondents/ plaintiffs also do not have any factual founda tion. It is nobody’s case that such acts, if proved, would not amount to malprac tice under the Terms and Conditions of Supply for which electricity to the facto ry premises of the respondent No.1 could not have been discontinued and that the compensation bill could not have been raised. Such a step is available to the B oard, having regard to the nature of the malpractice detected, even without a pr ior notice as contemplated in Clause-23(e) of the Terms and Conditions of Supply . The compensation bill as well is in accordance with Clause- 22 thereof. 15. Having regard to the determination made hereinabove, we find sub stance in the appeal. It is, thus, allowed. The impugned judgment and order appe aled against is interfered with. No costs.