IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01/04/2004 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM SECOND APPEAL No.288 of 1993 A.S.P.Ammayappan .. Appellant -Vs- 1. Tamil Nadu Electricity Board rep. by its Superintending Engineer Ramanathapuram Electricity System Now Kamarajar District Electricity System at Virudhunagar 2. The Assistant Electricity Engineer Administration & Maintenance Tamil Nadu Electricity Board Dalavaipuram Kamarajar Dist. .. Respondents This second appeal is preferred under Sec.100 of the Code of Civil Procedure against the judgment and decree dated 30.11.1992 rendered in A.S.No.85 of 1990 on the file of the Subordinate Judge, Srivilliputhur confirming the decree and the judgment dated 3.1.1990 rendered in O.S.No.235 of 1986 on the file of the Additional District Munsif, Srivilliputhur. !For Appellant : Mr.S.Subbiah ^For Respondents : Mr.Rajeswaran :JUDGMENT What is challenged herein is the judgment of the learned Subordinate Judge, Srivilliputhur, made in A.S.No.85/90 wherein the judgment of the trial Court granting a decree in favour of the appellant/ plaintiff was reversed. 2. The following facts are noticed in the pleadings of the parties: The plaintiff filed the suit for declaration that the notice of the Electricity Board was illegal and for consequential permanent injunction alleging that he was running a theatre in the suit property; that the Electricity Board had given electricity service connection to his theatre under No.SC 205; that a meter was fixed in that regard; that he has got a generator also; that whenever there was power cut, the generator will be used by him; that the meter was found defective during February 1983; that the same was removed; that from February 198 3 to 5.8.1983, the charges were collected from him by adopting average unit system namely 620 units per month; that during the said period there were frequent power cut; that the Electricity Board was insisting the payment of Rs.315.70 for January 1983 and Rs.194.20 for the period from December 1981 to August 1982 on the ground that there was short assessment; that he paid all the charges without fail; that there was no due from his side; that the official of the Electricity Board was directed to include Rs.7,605.90 towards charges for the period from June 1982 to June 1983, while taking the reading for August 198 5 in respect of the plaintiff's theatre; that he sent objections to the department; but, the Electricity Board had sent a notice calling upon him to pay the said amount and directing that in case of nonpayment, his service connection will be disconnected; and that the demand by the Electricity Board was illegal. 3. The defendants while admitting all the above factual position, alleged in the written statement that at the time of the audit on 5.7.1 985, it was found that the meter has been struck up in January 1983, and average consumption of 620 units had been billed from 20.12.82 to 4.8.83, and a new meter was fixed on 5.3.85; that on review of the records, it was seen that the consumption recorded from 10.6.82 onwards were comparatively very low, and hence, it was presumed that the meter might have been defective from June 1982 onwards, and billing of average of 3 months consumption recorded from 10/82 to 12/82 in the reference was not correct; that the consumption recorded from January 1981 to February 1984 were worked out, and thus, there was a sum of Rs.7,605.90 deducting the earlier payment made by him; that a notice was served on him; that the Electricity Board was entitled to get the amount, and therefore, the suit was to be dismissed. 4. The trial Court framed the necessary issues, tried the suit and dismissed the same. The aggrieved plaintiff took it on appeal, wherein the judgment of the trial Court was reversed by the first appellate Court. Hence, this second appeal at the instance of the plaintiff. 5. At the time of admission, the following substantial questions of law were formulated by this Court: (1) Whether the Electricity Department can make a levy for consumption of electricity on the reasonings not contained as embodied under the terms and conditions of supply? (2) Can the Electricity Board against the specific provision relating to the compensation of electricity charges in the case of defective meters, adopt different procedure simply on the basis of audit objection? (3) Is onus of proof upon the Electricity Board the proof that the meter was defective even earlier? (4) Is the audit objection without a notice to the consumer will be binding upon the consumer? 6. After hearing the rival submissions, this Court has to necessarily set aside the judgment of the first appellate Court and restore that of the trial Court. 7. It is not in dispute that the appellant/plaintiff was enjoying the consumption of electric energy by having a service connection No.S.C.205 to his theatre. The meter was found to be defective in February 1983, and the same was removed, and a new one was fixed. From February 1983 onwards, the average unit was calculated, and the Electricity Board was recovering charges on that basis at the rate of 620 units per month. Again the meter was found to be defective. Then also, it was set right. It is not in controversy that as calculated by the Electricity Board on the basis of the average unit system, the amounts were paid by the appellant consumer. While so, the impugned notice was served upon him stating that he was liable to pay Rs.7,605.90 based on the audit report, and in default, his service connection would be severed. Under such circumstances, the plaintiff filed the instant suit. 8. From the available materials, it would be abundantly clear that when the meter fixed to Service Connection No.S.C.205 attached to the appellant's theatre, was found defective, the same was removed by the department. From the time of removal namely February 1983, average unit was calculated at the rate of 620 units per month by the department, and he has also been making the payment. It was the consistent case of the appellant that there was electric energy cut, and so many occasions, the theatre was run by use of the generator, and however, he was making the payment at the rate of 620 units per month as calculated and directed by the Electricity Board. At that juncture, the present notice was served on him. Even from the notice and the averments in the written statement, it would be clear that the said demand was made purely based on the audit report. The audit slip, which was marked as Ex.B2, reads as follows: "... On review of the records, it is seen that the consumptions recorded from 10-6-82 onwards are comparatively very low and it is presumed that the meter might have been defective from 6/82 onwards. Billing of average of 3 months consumptions recorded from 10/82 to 12/82 in the reference is not correct. The consumptions recorded from 1/81 to 2/84 are given below for comparison..." 9. Quite evident it is that such a calculation by the Electricity Board directing the party to make a payment was only based on the presumption on the audit side. It is not even based on any evidence. Now, at this juncture, this Court is able to see sufficient force in the contention put forth by the appellant's side that it is one without legal sanction or evidence, and apart from that, no fault can be found with the Department, when there was any direction to the consumer to make the payment, so long as it is well within the terms and conditions of the supply of electric energy. But, in the instant case, what was available was only the audit objection based on the presumption and nothing else. In such circumstances, the impugned notice has got to be struck down as one without any legal sanction. Hence, the judgment of the first appellate Court has got to be set aside, and the judgment of the trial Court has to be restored. 10. In the result, this second appeal is allowed, setting aside the judgment and decree of the first appellate Court and restoring the judgment of the trial Court. However, there cannot be any impediment for the department to issue notice giving an opportunity to the consumer and pass orders within the ambit of law and the terms and conditions of supply of electric energy. The parties shall bear their costs. Index: yes Internet: yes To: 1. The Subordinate Judge Srivilliputhur 2. The Additional District Munsif Srivilliputhur 3. The Record Keeper V.R. Section High Court, Madras. nsv/ 