In the High Court of Judicature at Madras Dated : 13.08.2010 Coram The Honourable Mr.Justice R.SUBBIAH Second AppealNo.102 of 2002 1.The Superintending Engineer, Tamil Nadu Electricity Board, Thiruvannamalai Electricity Distribution circle, Vengikkal, Thiruvannamalai. 2.The Assistant Executive Engineer, Tamil Nadu Electricity Board, Thiruvannamalai Electricity Distribution circle, Vettavalam, (Sorathu) - 606 754. ... Appellants/ Respondents/ Defendants ..vs.. 1.Narayanan 2.Sakthivel ... Respondents/ Appellants/ Plaintiffs Second Appeal is filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 21.01.2000 made in A.S.No.139 of 1999 on the file of the Additional District Judge, Thiruvannamalai, reversing the Judgment and Decree dated 26.08.1999 made in O.S.No.1010 of 1996 on the file of the I Additional District Munsif's Court, Thiruvannamalai. For Appellant : Mr.N.Muthusamy For Respondents : Mr.J.Ramakrishnan for M/s.Sarvabhumen Associates JUDGMENT This appeal is filed as against the decree and judgment dated 21.01.2000 made in A.S.No.139 of 1999 by the Additional District Judge, Thiruvannamalai, reversing the judgment and degree dated 26.08.1999 made in O.S.1010 of 1996 on the file of the I Additional District Munsif's Court, Thiruvannamalai. https://hcservices.ecourts.gov.in/hcservices/ 2. The appellants are the defendants and the respondents are the plaintiffs before the trial Court. The respondents/plaintiffs filed the suit in O.S.No.1010 of 1996 before the trial Court against the Superintending Engineer and the Assistant Executive Engineer of Tamil Nadu Electricity Board respectively. The said suit was filed by the respondents/plaintiffs herein aggrieved over a letter dated 21.09.1996 issued by the second appellant Board directing the respondents/plaintiffs to pay a sum of Rs.14,414/- as the short fall amount omitted to be billed on the actual current consumed by the respondents. The said suit was filed for the following prayers i) for declaring that the order of the second defendant(2nd appellant) dated 21.09.1996 vide F/vz;/c/br/bgh//,/g//ntl;/nfhjdp/vz;/ 128/96 is null and void; ii) to restrain the defendants(appellants) and their subordinates from collecting the amount mentioned in that order by enforcing the same; and iii) to restrain the defendants(appellants) and their subordinates by means of a permanent injunction from disconnecting the service connection No.144 of Andampallam Village, Thiruvannamalai Taluk. The said suit was dismissed by the Trial Court. On appeal before the lower appellate Court, the decree and judgment of the trial Court were set aside by allowing the prayer sought for by the respondents/plaintiffs in O.S.No.1010 of 1996. Aggrieved over the same, the present appeal is filed by the Electricity Board. 3. Now the facts which are necessary to decide the issue involved in this appeal are as follows:- It is the case of the plaintiffs that the service connection No.144, Andampallam Village, originally stood in the name of one Indrani. The said Indrani died three years prior to the filing of the suit. After the death of the said Indhurani, the respondents/plaintiffs i.e., the husband and son of the said Indhurani were utilising the above said service connection. Whileso, the officials of the appellant Electricity Board had inspected the suit service connection on 24.08.1995 and alleged that there was a theft of electrical energy. But the respondents/plaintiffs contended that there was no theft of energy, but on the other hand, wrong reading of power consumption was only on account of the non functioning of the meter. However, since there was a threat of disconnection of service connection by the appellant Electricity Board, the respondents/plaintiffs have paid the fine amount as ordered by the appellants Electricity Board on 14.08.1995 and 16.09.1995. Subsequently, the appellant have installed the new meter, but it was also found to be defective. In the said situation, on 11.06.1996, the Anti Power theft Squad once again inspected the service connection No.144, and noticed that there was a wrong reading in the existing meter on account of the non- functioning of the said meter. Thereafter, on receipt of the intimation from Anti Power theft Squad, the assessment notice had https://hcservices.ecourts.gov.in/hcservices/ been issued for Rs.14,414/- and was sent to the respondents/plaintiffs by communication dated 21.09.1996, requesting the respondents/plaintiffs to pay the amount within seven days. Aggrieved over the said notice, the respondents/plaintiffs have filed the suit in O.S.No.1010 of 1996 for the prayer as stated supra. The said notice dated 21.09.1996 is illegal, arbitrary, void and against the principles of natural justice, since neither the show cause notice was issued nor any enquiry was conducted before passing the above said order. 4. The said case of the plaintiff was resisted by the appellant Electricity Board that the revision of billing by the appellant Board was only on account of wrong billing due to the defective meter. The assessment was made only as per the terms and conditions of the supply of electricity. Therefore, it is incorrect to state that the order dated 21.09.1996 is illegal and void. 5. In order to prove their case, on the side of the respondents/plaintiffs, the first respondent examined himself as P.W.1 and 9 documents were marked as Exs.A1 to A9. On the side of the defendants/appellants two witnesses were examined as D.W.1 & 2 and 7 documents were marked as Ex.B1 to Ex.B7. The Trial Court after analyzing the entire evidence has come to the conclusion that as per the terms of conditions of the supply of Electricity, the consumer is bound to pay the short-fall amount as per the rules and further the Trial Court has also come to the conclusion that the calculation made in Ex.A8 i.e., order dated 21.09.1996 is also correct and thus dismissed the suit. Aggrieved over the same, the respondents/plaintiffs preferred an appeal before the lower appellate Court in A.S.No.139 of 1999. On appeal, the judgment and degree of the trial Court was set aside, mainly on a finding that when a defect was noted by the appellant Electricity Board, in the meter fixed by them, they ought to have given an opportunity to the consumer before passing an order directing the consumer to pay the short-fall amount. Aggrieved over the same, the Electricity Board has filed the present second appeal by raising the following question of law:- 1.Whether the lower Appellate Court is correct in not appreciating the appellant's case that as per clause 19.06 of the Terms and Conditions of supply the bills was revised and assessment was issued? 2. Whether the lower appellate Court is correct in holding that no opportunity was given before the issue of assessment notice? 6. The learned counsel appearing for the appellants submitted that affording an opportunity before passing the impugned order does not arise in this case, because by notice dated 21.09.1996, the appellant's Board had directed the respondents only to pay the https://hcservices.ecourts.gov.in/hcservices/ short-fall amount, which was omitted to be included in the earlier bills in respect of the actual current consumed by the respondents. 7. By way of reply, the learned counsel appearing for the respondents submitted that when it is an admitted fact that the wrong reading was only due to the wrong functioning of the meter, the respondents/plaintiffs cannot be taken into surprise by directing them to pay a short fall amount without affording an opportunity to put forth their case before passing the impugned order. Therefore, there is a violation of the principles of natural justice in passing the impugned order dated 21.09.1996. Under such circumstances, no fault could be found in the judgment and degree passed by the lower appellate Court. In support of his contention, the learned counsel appearing for the respondents/plaintiffs relied upon the judgment reported in (2004)1 M.L.J. 721 in the case of Union of India, represented by Chief Secretary, Pondicherry Territory and others Vs. Vasantha Carbide Company Limited, Karaikal, represented by Managing Director, P.R.Nalamaharajan and another judgment reported in (2007)3 M.L.J.282 in the case of Divisional Engineer(West), Tamil Nadu Electricity Board, Salem. Vs. J.Rajendra Prasad 8. Heard, the learned counsel appearing on either side and perused the materials available on record. 9. It is the case of the respondents/plaintiffs that when it is an admitted fact that the meter, fixed in the premises in respect of service connection No.144 was defective, the appellants Board ought to have given sufficient opportunity to the respondents calling upon them to submit their explanation before passing the impugned order. But in the instant case, without affording opportunity, the appellants Board has directly issued the order dated 21.09.1996 directing the respondents/plaintiffs to pay a sum of Rs.14,414/- as a short-fall amount due to the wrong reading of the meter on account of non- functioning. 10. Per contra, it is the defence of the appellants Board that as per clause 19.14 and 19.16 of the Terms and Conditions of the supply of electricity, the Board is having every right to revise the bill, if the board found that there was a wrong billing due to the defective meter. Under the terms and conditions, issuing the notice calling for the explanation of the consumer is not mandatory. 11. In view of the submissions made by the learned counsel appearing on either side the question that has arisen before this Court whether the order dated 21.09.1996 was passed in violation to the principles of natural justice or not?. In support of the submission made by the learned counsel appearing for the respondents/plaintiffs, he relied upon two judgments reported in https://hcservices.ecourts.gov.in/hcservices/ (2004)1 M.L.J. 721 in the case of Union of India, represented by Chief Secretary, Pondicherry Territory and others Vs. Vasantha Carbide Company Limited, Karaikal, represented by Managing Director, P.R.Nalamaharajan and another judgment reported in (2007)3 M.L.J.282 in the case of Divisional Engineer(West), Tamil Nadu Electricity Board, Salem. Vs. J.Rajendra Prasad, in support of his contention that the notice is necessary. But a reading of the judgment would show that there was an allegation of theft of energy against the consumer, only when a notice was issued directing the consumer to pay the amount along with penalty, this Court has held that no opportunity was given to the consumer before passing the order imposing penalty on the consumer. In the instant case, what was claimed by the appellants Board is only a short-fall amount which was omitted to be billed on account of non-functioning of the meter. In fact, as per clauses 19.14 and 19.16, of the terms and conditions of supply of electricity, the Board was empowered to revise the bill if any short-fall arises out of any reason attributable to the Board like defective meter etc. The relevant clauses are as follows:- 19.14: Where arrears arise due to revision of past bills/assessments for various reasons viz., defective meter, defective metering arrangement in correct application of Tariff, wrong billing, revision of tariff etc, payments in instalments will be permitted. The facility of payment in instalments will be made available to the consumer on request. 19.16: Revision of bills for low Tension service connections arising out of any reason attributable to the Board like defective meter, defective metering arrangement, incorrect application of tariff wrong billing etc. will be made for the duration of the period for which such revision is called for, subject to a maximum back period of three years from the date of billing. 12. Even if the respondents/plaintiffs feel, aggrieved over the assessment made by the appellants Board on account of the order dated 21.09.1996 issued by the appellant's Board their remedy lies only with the department. In fact, the said order was passed according to the terms and conditions of electricity, I do not find any violation to the principles of natural justice, because the amount claimed by the appellant is only a short-fall amount on account of the wrong reading of the defective meter. Hence, in my considered opinion, the lower appellate Court is not correct in not appreciating the appellant's case that as per clauses 19.14 and 19.16 of the supply of Electricity, the bill was revised and an assessment order was issued. Accordingly, the substantial question of law raised by the appellant Board referring to clauses 19.14 and https://hcservices.ecourts.gov.in/hcservices/ 19.16 of the Terms and Conditions of the supply of Electricity is answered in favour of them and the Judgment and degree of the lower appellate Court is hereby set aside and the judgment and degree dated 26.08.1999 in O.S.No.1010 of 1996 on the file of the I Additional District Munsif, Thiruvannamalai is hereby confirmed. 13. In the result, this appeal is allowed. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. rrg To 1.The Additional District Judge, Thiruvannamalai. 2.The I Additional District Munsif's Court, Thiruvannamalai. 3. The Section officer VR Section, High Court, Madras 1 cc to Mr.N. Muthuswami, Sr. 59804 1 cc to Mr.J. Ramakrishnan, Advocate, Sr. 59353 Second AppealNo.102 of 2002 BS (CO) kk 21/10 https://hcservices.ecourts.gov.in/hcservices/