1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 21.10.2011 CORAM THE HONOURABLE MR.JUSTICE V.RAMASUBRAMANIAN W.P.(MD) No.8752 of 2011 and M.P.(MD)Nos.1 and 2 of 2011 M/s.Kannan Chemical Products, D.No.64/Old No.24/3B-NGO Colony, Srivilliputtur – 636 125, Rep. By its Proprietor, A.Dhanabalan ... Petitioner Versus 1. The Superintending Engineer, Tamil Nadu Electricity Board, Virudhunagar. 2. The Executive Engineer, Distribution, Tamil Nadu Electricity Board, Rajapalayam. ... Respondents PRAYER : Writ petition is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, to call for the records of the first respondent in Lr.No.Me.Po.Vmpa / Virudhu / Oosepo/pothu/oopothu1/kattu/koppu A.No.638/11 dated 19.05.2011 quash the same and consequently direct the first respondent or anybody not to make any claim relating to HT SC 221 after 28.04.2011. For Petitioner : Mr.A.Sivaji For Respondents : Mr.G.Kasinathadurai Standing Counsel for TNEB O R D E R The petitioner has come up with the above Writ Petition challenging an order passed by the first respondent refusing to terminate the High Tension agreement and to grant Low Tension service connection to the petitioner. 2. Heard Mr.A.Sivaji, learned Counsel for the petitioner and Mr.G.Kasinathadurai, learned Standing Counsel for the respondents. 3. The petitioner entered into an agreement with the Tamil Nadu Electricity Board on 03.06.2004, for the supply of electrical energy for a maximum demand not exceeding 300 KVA, subject to the https://hcservices.ecourts.gov.in/hcservices/ 2 terms and conditions contained therein. Clause 11 of the agreement stipulated that the agreement shall remain in force until it is terminated by either party as provided in the conditions of supply. 4. It appears that on an allegation of theft of energy, a notice was issued to the petitioner seeking to recover an amount of Rs.17,47,860/-. Challenging the said demand, the petitioner filed a Writ Petition in W.P(MD)No.2722 of 2009. The said Writ Petition was admitted and an interim direction was granted to restore the electricity connection upon payment of 50% of the demand amount. The petitioner complied with the said order. 5. Subsequently an order confirming the provisional demand was issued, which came to be challenged once again in W.P(MD)No.6317 of 2009. Both the Writ Petitions are now pending and by virtue of the interim orders, the petitioner has the benefit of non payment of the remaining 50% of the demand. 6. Subsequently, the petitioner issued a notice dated 28.03.2011 seeking to terminate the High Tension power supply agreement dated 03.06.2004. The respondents rejected the request for termination of the said agreement, by the impugned order dated 19.05.2011 on the ground that unless the amount now due as balance namely, Rs.8,73,930/- is paid, the termination of the High Tension Power Supply Agreement and the conversion into Low Tension supply cannot be accepted. Therefore, the petitioner is before this Court. 7. The main contention of Mr.A.Sivaji, learned counsel for the petitioner is that insofar as theft of energy is concerned, the Special Court constituted under Section 153 of the Electricity Act, 2003 alone is competent to determine the civil liability, by virtue of Section 154(5) of the Act. It is on this basis that the earlier demand of the respondents directing the petitioner to make payment of an amount of Rs.17,47,860/- was challenged in the previous writ petitions. Therefore, the contention of the learned counsel for the petitioner is that the respondents are not entitled to recover the balance amount, in an indirect manner by refusing to accept the termination of the High Tension Power Supply Agreement. 8. However it is contended by Mr.G.Kasinathadurai, learned Standing Counsel for the Electricity Board that under Regulation 33 (5) of the Tamil Nadu Electricity Supply Code, 2004, the licensee is entitled to recover the dues if any from a consumer, in the case of termination, either by the consumer or by the licensee. Sub- Regulation (3) of Regulation 33 of the said Code entitles a consumer to terminate an agreement at any time by giving one month's notice in writing. Sub-Regulation (4) of Regulation 33 entitles the licensee to terminate the agreement by giving one month's notice, if the consumer had violated the terms of the agreement. Therefore, Regulation 33 actually provides a two way traffic to the consumer as well as the licensee to terminate the agreement by one month's notice in writing. https://hcservices.ecourts.gov.in/hcservices/ 3 9. Regulation 33 does not state anywhere that the termination of the High Tension Power Supply Agreement would depend upon its acceptance by either of the parties. If the licensee terminates the agreement under Sub-Regulation (4), it automatically comes into effect. Similarly, if the consumer terminates the agreement, the same also comes into effect without requiring any acceptance from the licensee. To say that the termination by a consumer under Sub- Regulation (3) would take effect only upon its acceptance by the respondents (licensees), would go against the very object of treating the terms of supply as one falling in the realm of a contract. Therefore, the only interpretation that could be given to Regulation 33(5) is that the respondents are entitled to recover the dues even after termination of the agreement. Sub-Regulation (5) does not state that the termination will come into effect after the recovery is completed. Termination is one thing and the recovery of the dues is another. 10. As a matter of fact, accepting the termination at the instance of a consumer would also benefit both the parties. The continuing liability of a consumer to keep paying the monthly minimum charges would get arrested if the termination is taken to have come into effect. If termination is not given effect to, the liability keeps mounting for the consumer and the headache continues for the Board. Therefore, accepting the termination is the only way to alleviate the sufferings of both parties. Therefore, I am of the view that the respondents cannot refuse to accept the termination notice issued on 28.03.2011 by the petitioner. 11. Insofar as recovery of dues is concerned, the only impediment for the respondents, is in the form of a stay order, granted by this Court. Therefore, the respondents will have to work out their remedies in terms of the provisions of Regulation 33(5) in the other Writ Petitions, where the petitioner has obtained a conditional order of stay. 12. In view of the above, the Writ Petition is allowed, the impugned order is set aside and the respondents are directed to give effect to the termination notice without prejudice to their claims and contentions in the other Writ Petitions. The respondents shall convert the High Tension into Low Tension service connection within a period of four weeks from the date of receipt of a copy of this order. Consequently, connected miscellaneous petitions are closed. No costs. Sd/- Assistant Registrar (AS) /True Copy/ Sub Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ 4 To 1. The Superintending Engineer, Tamil Nadu Electricity Board, Virudhunagar. 2. The Executive Engineer, Distribution, Tamil Nadu Electricity Board, Rajapalayam. +1 CC to Mr.A.Sivaji, Advocate (SR.No.36680) +1 CC to Mr.G.Kasinathadurai, Advocate (SR.No.36716) W.P.(MD) No.8752 of 2011 21.10.2011 ps NSV/3.11.11/4P/5C https://hcservices.ecourts.gov.in/hcservices/