IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 24TH MAY 2010 / 3RD JYAISHTA 1932 SA.No. 991 of 1996() ------------------------------ AS.38/1993 of SUB COURT, QUILANDY OS.22/1989 of MUNSIFF COURT, QUILANDY .................... APPELLANT/RESPONDENT IN THE COURT BELOW AND PLAINTIFF IN THE TRIAL COURT: --------------------------------------------------------------------------- M. ABDULLA KUTTY HAJEE, S/O.ABOOBACKER HAJI, SADIQUE MANZIL, PANTHALAYANI AMSOM, KOVILKANDY DESOM, QUILANDY TALUK. BY ADV. SRI.N.L.KRISHNAMOORTHY, SRI.K.LAKSHMINARAYANAN RESPONDENTS/APPELLANTS IN THE COURT BELOW AND DEFENDANTS IN THE TRIAL COURT: ------------------------------------------------------------------------------ 1. THE EXECUTIVE ENGINEER, (NC), ELECTRICAL MAJOR SECTION, KOYILANDY, KOZHIKODE DISTRICT. 2. ASSISTANT ENGINEER, KERALA STATE ELECTRICITY BOARD, KOYILANDY, KOZHIKODE DISTRICT. 3. THE CHAIRMAN, KERALA STATE ELECTRICITY BOARD, THIRUVANANTHAPURAM. R1 TO R3 BY ADV. SRI.A.SUDHI VASUDEVAN, SC, KSEB. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 24/05/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. SA.No. 991 of 1996 ORDER ON C.M.P. NO.2213/1996 IN S.A. NO.991/1996 DISMISSED 24/05/2010. SD/- P.BHAVADASAN, JUDGE //TRUE COPY// P.S. TO JUDGE rs. P.BHAVADASAN, J. ------------------------- S.A No.991 of 1996 -------------------------- Dated this the 24th May, 2010 J U D G M E N T The plaintiff in a suit for declaration and for permanent injunction is the appellant. He is a partner of "Crescent Ice and Cold Storage", Koyilandy. 2. He has obtained electric connection with Consumer No.2309. On 19.1.1989 the plaintiff received a notice from the first defendant. It is alleged that plaintiff has committed theft of electrical energy which said to have been detected on 12.1.1989. Plaintiff says that such incident had occurred in this regard. Defendants demanded a sum of Rs.1,26,743.35 towards the dues from the plaintiff. Plaintiff denied the allegation of theft. It is pointed out that he had never been given an opportunity to answer the allegations. It is pointed out that there is no bona fides in the claim made by the respondents and that the allegation of inspection etc. are false. It is also contended that the mode for the purpose of computing the amount due is also illegal. It is not in accordance with the S.A No.991 of 1996 2 relevant provisions. On the basis of these allegations, the suit has been filed. 3. The defendants resisted the suit. The suit is not maintainable. It is pointed out that this Court had no jurisdiction to try the matter. It is also pointed out that theft of electricity was detected in the premises of the plaintiff, on 12.1.1989. The Sub Engineer prepared a site mahazar and complaint was made to the police. A case was registered against the consumer as Crime No.21/89 under Section 379 IPC and under Section 44 (c) of the Indian Electricity Act. The bills are proper and justified. Petitioner is guilty of tampering with the meter. Petitioner was aware of all the proceedings. They prayed for dismissal of the suit. 4. Necessary issues were raised for consideration. The evidence in the case consists of oral testimony of PW1 DW 1 to DW3. Exts.A1 to A5 were marked from the side of the plaintiff and Exts. B1 to B8 were marked from the side of the defendants. The trial court on an appreciation of evidence came to the conclusion that plaintiff had S.A No.991 of 1996 3 established his case and decreed the suit as prayed for. 5. Defendants carried the matter in appeal as A.S. No.38/1993 before the Sub Court, Koyilandy. The appellate court allowed the appeal and dismissed the suit. So the Second Appeal. 6. The following substantial questions of law were raised for consideration. 1. Whether the electricity board is authorised to disconnect the electrical supply without any advance notice? 2. Whether the suit is not maintainable in view of section 69 of the Indian Partnership Act? 3. Whether the meter installed in the plaintiff's premises has been tampered as contended by the defendant Board? 4. Whether the Board has erred in not referring the matter to the Electrical Inspector? 5. Whether the decree and judgment of the lower court would required any interference? 7. Learned counsel for the appellant contended that the tampering alleged was without any evidence and the plaintiff was not given an opportunity to answer the claim made by the defendants. The entire proceedings said S.A No.991 of 1996 4 to have been followed by the respondent Board is in total violation of the mandatory provisions of law and therefore nonest. It is pointed out that even according to the respondents as soon as the tampering was detected it was rectified which is quite contrary to the procedure to be followed by the Board. The evidence shows that the police was informed after the rectified meter was installed. That is something unknown in law. It is therefore clear that respondents had not acted in accordance with law and the story of theft of electrical energy is open to serious doubt. 8. Learned counsel appearing for the respondents pointed out that at the time of inspection by the Electrical Inspector, plaintiff/employee was present in the premises and he was aware of the proceedings. A site mahazar was prepared immediately and two witnesses had attested to the same. It is also pointed out that a complaint has been preferred before the Police reporting theft of energy and case has been registered against the plaintiff. S.A No.991 of 1996 5 9. It must be said that there is considerable force in the submission made by the learned counsel for the appellant. Going by the provisions of the relevant Act, Rules and Regulations, it is very evident that the procedure adopted and followed by the Board Officers is contrary to the provisions. The procedures followed are clearly illegal and irregular. Going by the relevant Rules and Regulations, once the officer concerned detects that the meter has been tampered with and there is theft of electrical energy, he has to inform police about the same and only after the police arrives he can do anything with the meter. It is also necessary for the officer concerned to prepare a site mahazar as well as seizure mahazar containing all the details. Surprisingly enough, in the case on hand, even going by the evidence furnished by the defendants, it is seen that as soon as the tampering was noticed, the officer rectified and reinstalled the same, and thereafter he informed the police. This is obviously in violation of the relevant rules and regulations. What is more surprising is that the seizure mahazar was prepared S.A No.991 of 1996 6 three months after the detection of the irregularity. No explanation whatsoever is offered for the delay. 10. It is true that the police have registered a case. But that is not the end of the matter. Even though a contention is raised by the respondent that the plaintiff has other methods to have his grievances redressed under the statute itself, in the case on hand that will serve no purpose because whatever evidence the plaintiff could have adduced has been lost due to the acts committed by the officers of the Board itself. 11. Apart from the above fact, it is not discernible as to how the amount of Rs.1,26,743.35 demanded from the plaintiff has been arrived at. If one goes through the evidence of D.W.1, it is rather shocking. That will show that the entire procedure adopted by the Board is not in accordance with law. 12. Whatever that be, as per the interim orders of this court, the plaintiff has paid a sum of Rs.50,000/-. Considering the various aspects, it is felt that that the S.A No.991 of 1996 7 payment of the said amount would be sufficient to meet the demands made by the Board. Without going into the other aspects of this case, this appeal is disposed of holding that in relation to the claim made by the Board against the plaintiff, which is the subject matter of this proceedings, payment of Rs.50,000/- already made by the plaintiff will be treated as in total discharge of the liability. There will be no order as to costs. P.BHAVADASAN, JUDGE ma S.A No.991 of 1996 8 S.A No.991 of 1996 9