IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 22.09.2010 CORAM THE HONOURABLE MR. JUSTICE M.M.SUNDRESH W.P. NO.14451 OF 2003 C.M.Kamaraj .. Petitioner Versus The Assistant Executive Engineer Tamil Nadu Electricity Board Central / Pollachi. .. Respondent PRAYER : Petition filed Under Article 226 of the Constitution of India praying to issue a Writ of certiorarified mandamus, calling for the records relating to the proceedings of the respondent in Letter No.AEE/Mai/Po/Va.Aa/Ka.No.Thani/V.No.113/03 dated 26.04.2003 and quash the same and consequently direct the respondent to shift the petitioner's electricity service connection in SC No.86 & 89 from 104, Udumalai Road, Pollachi to Sakthi Hotels at No.144 & 147, Coimbatore Road, Pollachi. For Petitioner : Mr.Palani Selvaraj For Respondent : Mr.J.Ravindran (TNEB) * * * * * O R D E R The petitioner has been running a Hotel. The petitioner is also having a service connection for the said Hotel. In view of the dispute as to whether the petitioner is liable to pay the consumption charges under tariff-4 or tariff-9, the petitioner was constrained to file a suit. The said suit filed by the petitioner was decreed and challenging the judgment and decree of the concerned Civil Court, the petitioner filed an appeal in A.S.No.16 of 1997 on the file of the Sub-Court, Udumalpet. 2.The Sub-Court, Udumalpet has dismissed the appeal filed in A.S.No.16 of 1997 confirming the decree of the District Munsif Court, Pollachi, in O.S.No.644 of 1995. The respondent filed a further appeal before the Honourable Court in S.A.No.1641 of 1998. During the pendency of the appeal, an order was passed by this Court in C.M.P.Nos.16789 and 16790 of 1998, seeking a direction to the petitioner to pay 50% of the outstanding amount. This court in the https://hcservices.ecourts.gov.in/hcservices/ above said applications has passed an order that a sum of Rs.3,40,687/- will have to be paid by the petitioner in installments. Accordingly, the petitioner has paid the said amount. 3.The petitioner was also having another property in Door No.104, Udumalai Road, Pollachi. In the said property, the petitioner is having two service connections in S.C.Nos.86 and 89 under Industrial Tariff. The petitioner made an application on 27.02.2003 seeking to transfer the service connections standing in Door No.104, Udumalai Road, Pollachi, to the Hotel situated in Door No.144, Coimbatore Road, Pollachi. The said application was rejected by the respondent in and by its letter dated 26.04.2003 stating that there was an arrears of Rs.9,39,671/- payable by the petitioner. Until and unless the said arrears is paid as stipulated by the Board Proceedings in B.P.MS(FB)No.61, dated 24.12.1988, the request of the petitioner cannot be considered. Challenging the said letter, the present writ petition is filed. 4.Mr.Palani Selvaraj, learned counsel appearing for the petitioner submitted that the petitioner has obtained an order from the Civil Court which was confirmed by the Appellate Court. The learned counsel submitted that the mere fact that the second appeal has been filed by the respondent cannot be a ground to hold that there is an arrears from the petitioner. Moreover according to the learned counsel, the petitioner has also complied with the directions of this Court passed in C.M.P.Nos.16789 and 16790 of 1998. Therefore, the learned counsel submitted that unless and until the appeal is allowed reversing the judgment and decree granted by the Court below, the respondent cannot claim the disputed amount as arrears. 5.Per contra, Mr.J.Ravindran, learned counsel appearing for the respondent submitted that the petitioner's arrears has been calculated on the footing that the consumption of electricity will have to be levied under tariff-9 instead of tariff-4. Therefore as per the board proceedings, unless and until the arrears are cleared the request for transfer cannot be considered. 6.This Court finds considerable force in the submissions made by the learned counsel for the petitioner. Unless and until a decree granted by the competent Civil Court is set aside, modified or verified by this Court, it cannot be construed that there is an arrears. The competent Civil Courts have held that the petitioner is liable to pay only under tariff-4 and not tariff-9. Therefore, it is not open to the respondent to contend that tariff-9 is applicable to the case of the petitioner and in view of the pendency of the second appeal the petitioner will have to pay the entire amount as calculated under tariff-9. 7.This Court has not granted any stay of the judgment and decree of the Courts below. Even otherwise the petitioner has to be https://hcservices.ecourts.gov.in/hcservices/ given the benefit of the decree by the Courts below. A mere pendency of the appeal cannot be a ground to hold that there is an arrears to be paid by the petitioner, treating the same as payable by classifying the same under tariff-9. It is one thing to say that the petitioner has to pay all the arrears while seeking the transfer if levied under tariff-4. However when there is a dispute as to whether the petitioner is liable to pay under tariff-9 or not, the said dispute has already resulted in a decree passed in favour of the petitioner, the same cannot be the basis for rejecting the request for transfer. When an amount due to the respondent is disputed and determined by the competent authority, then the same can be the basis for rejecting the request for transfer. As observed earlier in the present case on hand, unless and until the respondent succeeds in the second appeal, the disputed amount cannot be recovered from the petitioner and the same cannot be the basis for rejecting the request for transfer. 8.Therefore, this Court is of the opinion that the writ petition will have to be allowed, by directing the respondent to consider the application of the petitioner for transfer on merits and in accordance with law, without insisting for the arrears of any amount calculated based upon tariff-9. If any arrears is due from the petitioner by calculating the same under tariff-4, the petitioner will have to pay the same and on compliance of the said payment, the respondent will have to consider the request for transfer on merits and in accordance with law. In the event of the petitioner not paying any arrears, it is open to the respondent to make a claim by issuing a demand notice by computing the arrears under tariff-4. It is also made clear that any order of transfer passed is subject to the result of the second appeal pending between the parties. In the event of the second appeal being allowed, it is needless to say that the petitioner will have to pay all the arrears computed under tariff-9. 9.Accordingly, the respondent is directed to process the application of the petitioner and pass appropriate orders, within a period of three months, from the date of receipt of a copy of this order, in the light of the directions given above. If there is an arrears computed under tariff-4, the petitioner is directed to pay the same, within a period of four weeks, from the date of receipt of a copy of this order. 10.The writ petition is allowed accordingly. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ sri To The Assistant Executive Engineer Tamil Nadu Electricity Board Central / Pollachi. 1 cc To Mr.Palanisamy, Advocate, SR.69743 W.P. NO.14451 OF 2003 NSM(CO) sra 22/10/2010 https://hcservices.ecourts.gov.in/hcservices/