IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.1.2010 CORAM: THE HONOURABLE MS.JUSTICE R.MALA S.A.No.127 of 2003 N.Pasupathy .. Appellant / Plaintiff Vs. 1. The Divisional Engineer, C.E.S.T.N.E.B, Chengalpattu. 2. The Assistant Divisional Engineer, C.E.S.(O & M), T.N.E.B., Thirukalikundram. 3. The Junior Engineer, C.E.S.(O & M), T.N.E.B, Noruber Pattaraikazhani Post, Thirukalikundram. 4. The Assistant Accounts Officer, Revenue Branch, T.N.E.B., Chengalpattu. .. Respondents Second Appeal filed under section 100 of C.P.C. against the judgment and decree dated 4.4.2002 in A.S.No.107 of 2001 on the file of the Principal District Court, Chengalpattu, against the judgment and decree dated 12.4.2001 in O.S.No.437 of 1996 on the file of the District Munsif-cum-Judicial Magistrate Court, Thirukalikundram. For appellant : Mr.Y.K.Rajagopal For respondents: Mr.N.Muthuswamy JUDGMENT The Second Appeal is filed by the plaintiff against the judgment and decree dated 4.4.2002 in A.S.No.107 of 2001 on the file of the Principal District Court, Chengalpattu, reversing the judgment and decree dated 12.4.2001 in O.S.No.437 of 1996 on the file of the District Munsif-cum-Judicial Magistrate Court, Thirukalikundram. 2. The averments in the plaint are as follows: The plaintiff is the eldest son of one Natarajan, who died on 18.10.1995, leaving behind five sons, two daughters and a widow. He https://hcservices.ecourts.gov.in/hcservices/ was the absolute owner of the lands bearing S.No.158/6C, of an extent of 1 acre. In the partition that has taken place between the plaintiff's father and his brother Shivaraj, the plaintiff's father got 50 cents on the southern side. His father mortgaged the property in the year 1994 with one Dhasarammal, residing at Thirumani, Chengalpet. The cultivation is being done with the help of 3 H.P. Motor. From 1993 onwards, the plaintiff's father was not enjoying- cultivating 50 cents personally. Though the Service Connection and Motor stand in the name of the plaintiff's father, he was not using the same, as he has already mortgaged the lands. Suddenly, the plaintiff's father received a notice under Section 3(1) of the T.N.E.B.(Recovery of Dues) Act, for a sum of Rs.53,914/- on the ground of theft of energy by tapping LT3 phase supply directly by tapping by hooks and utilising 3 HP Motor used for cultivating of the lands, on the ground that the said act took place on 26.9.1994. Simultaneously, a criminal case was filed, which was ultimately dismissed. The plaintiff was not aware of these matters. When he was working in Coimbatore, till the death of his father, only on receipt of information only, he returned to the village. On 26.6.1996, fourth defendant issued notice against the plaintiff, alleging the theft of energy committed by his father. The plaintiff is not liable to pay that amount. Hence, he preferred an appeal against the said notice, before the Divisional Engineer, TNEB, Chengalpet. No enquiry has been conducted. He also contended in the appeal that they have been paying the "avyavaharika debt" and the plaintiffs being the son, is entitled to claim immunity from pious obligation. But the appellate forum not accepted the ground raised by the plaintiff and dismissed the appeal, directing the plaintiff to pay the amount within 30 days. That order is not valid and not binding upon the plaintiff. Hence, the plaintiff is constrained to file the suit for declaration that the order passed in appeal EE/O&M/CGL/REV.BR/Appeal petition No.1/96/96, dated 30.8.1996, communicated on 11.11.1996, is not valid and not binding and the consequential permanent injunction from taking out any proceedings for the recovery of the amount. He prayed for a decree. 3. The gist and essence of the written statement filed by the fourth defendant, adopted by the defendants 1 to 3, are as follows: During the lifetime of Natarajan, he got Service Connection to his pump-set in Service Connection No.25. The said Natarajan dishonestly abstracted electrical energy by applying hooks on the TNEB power lines and energised his 3 HP pump-set, thereby committed theft of power to the tune of Rs.53,914/-. It was detected by Anti Power Theft Squad on 26.9.1994. A show cause notice was served on 24.10.1994. After considering the reply issued by Natarajan, they issued initial assessment calling upon him to pay a sum of Rs.53,914/-. As per Clause 9 of the Terms and Conditions of Supply of Electricity, framed by the Tamil Nadu Electricity Board (for short, 'TNEB'), in exercise of the power conferred under Section 49 of the Electricity (Supply) Act, 1948. Natarajan, after receipt of show https://hcservices.ecourts.gov.in/hcservices/ cause notice, neither made the payment, nor made any appeal against the levy of charges. The said Natarajan filed O.S.No.16 of 1995 praying for getting a new Service Connection for 3 HP motor in the bore-well in S.No.158/6C, wherein, the theft of energy has been committed. The suit was pending. A criminal case was also filed against Natarajan in Cr.No.661/94 and since Natarajan died, charges against him abated. Then, notice has been issued to the plaintiff on 31.7.1996. He contested the same. Only after considering his averment, order has been passed and appeal has been dismissed. Notice has been issued to recover the amount as per the TNEB (Recovery of Dues) Act. Without following the procedures and without making payment of aggregate amount within 30 days, the plaintiff filed the suit. So, the plaintiff is not entitled to any relief. The averments in the plaint in paragraphs 3 to 10 are specifically denied. There is no cause of action for the suit. The suit is not maintainable. Hence, they prayed for dismissal of the suit. 4. The trial Court, after considering the averments, both in the plaint and in the written statement, framed six issues for consideration and after considering the oral evidence of P.W.1, D.Ws.1 to 4, Exs.A-1 to A-3 and Ex.B-1 to B-8, granted permanent injunction against the defendants from proceeding against the suit schedule described property as per the Order dated 30.8.1996, but the suit as against the relief of declaration of the appeal order dated 30.8.1996, was dismissed. Against that, the defendants preferred appeal. The plaintiff also preferred cross appeal. The first appellate Court, framed five points for determination and after considering the arguments of the counsel for the parties, allowed the appeal and set aside the judgment and decree passed by the trial Court and dismissed the suit. The cross appeal was also dismissed. A direction has been given stating that the Electricity Board is entitled to claim the amount towards electricity charges for the electricity theft committed by the plaintiff's father Natarajan on 26.9.1994, by filing calculation as to how the claim of Rs.53,914/- has been arrived at. Against that, the present Second Appeal has been preferred by the plaintiff. 5. At the time of admission of the Second Appeal, the following substantial question of law was framed for consideration: "Whether the first appellate Court was correct in dismissing the suit, when the trial Court has directed the Electricity Board to calculate the charges for the electric theft allegedly committed by the consumer?" Substantial question of law: 6. The appellant as plaintiff filed the suit for declaration that the appeal order passed by the defendants is null and void and for consequential relief not to recover the amount stating that the https://hcservices.ecourts.gov.in/hcservices/ notice has been issued that his father has committed theft of energy. The show cause notice has been issued and after receipt of the explanation, demand for Rs.53,914/- has been issued. After the death of the father, the appellant preferred appeal before the defendants and that has not been considered and the appeal has been dismissed without giving opportunity and hence, he prayed for a decree. 7. The respondents as defendants resisted the suit, stating that the plaintiff's father has committed theft of energy for irrigating his lands and so, it is not "avyavaharika debt" and considering the provisions of the Clauses in the Terms and Conditions of Supply of Electricity, notice has been issued and only after receiving explanation, the order has been passed. After receipt of the order, the plaintiff's father has not filed any appeal but however, the appellant-plaintiff preferred an appeal and that has been considered and disposed of. Then only, the order has been passed to recover the amount. Hence, the defendants prayed for dismissal of the suit. 8. The trial Court, after considering the oral and documentary evidence, decreed the suit only in respect of prayer for injunction and dismissed the suit in respect of the prayer for declaration. Against that, the defendants preferred appeal. The plaintiff also preferred cross appeal. The first appellate Court, considering the arguments of the counsel for the parties, allowed the appeal and set aside the judgment and decree of the trial Court and dismissed both the cross appeal and the suit filed by the plaintiff. Against the judgment and decree of the first appellate Court, the present Second Appeal has been preferred by the appellant-plaintiff. 9. Learned counsel for the appellant-plaintiff would contend that even though the first appellate Court has observed that the respondents-defendants have to file the calculation memo, but so far no calculation memo has been filed. The theft of energy has been done by his father. It is not pious obligation on the part of the legal heirs of the deceased father and since the damage is for energy theft, and it is "avyavaharika debt" and so, the plaintiff is not liable to pay the amount. The first appellate Court and the trial Court have not considered this aspect in proper perspective and hence, he prayed for allowing this Second Appeal. 10. Per contra, learned counsel for the respondents-defendants would contend that since the father has not used the energy for illegal and immoral purpose, but consumed energy for cultivation purpose and used it only for the benefit of family and so, it is "avyaviharika debt" and the legal heirs of the deceased Natarajan are liable to pay the amount. The calculation memo has been filed. Hence, there is no infirmity or illegality in the judgment and decree passed by the first appellate Court. He further submits that the energy theft has been calculated in accordance with the Terms and Conditions of Supply of Electricity of the TNEB. The terms and conditions are https://hcservices.ecourts.gov.in/hcservices/ under Clause 8.02 of the Terms and Conditions of Supply of Electricity. He also relied upon the decision of the Supreme Court reported in 1998 (4) SCC 470 (Hyderabad Vanaspathi Ltd. Vs. A.P. State Electricity Board), stating that the Terms and Conditions of Supply of Electricity, have been upheld and accepted by the Apex Court and hence, there is no infirmity or illegality in the judgment and decree passed by the first appellate Court. He prayed for dismissal of the Second Appeal. 11. Admitted facts are that Natarajan, the appellant-plaintiff's father was having wife and children. He died intestate, leaving behind his wife, the plaintiff-Pasupathy, brothers--Sankar, David Balaraman, Thiagarajan, Ravichandran and daughters--Vanitha and Gandhimathi. He is the owner of the property consisting of 50 cents in S.No.158/6C. The case of the respondents-defendants is that the plaintiff's father has committed theft of energy and at the time of inspection by the Anti Power Theft Squad on 26.9.1994, that has been detected. Hence, as per the procedures, notice has been issued to the father of the plaintiff, in Ex.B-1, dated 4.10.1994. The plaintiff's father gave explanation under Ex.B-2, on 24.10.1994. It was not satisfactory. Hence, Ex.B-3 order has been passed on 11.1.1995 demanding Rs.53,914/-. That has been received by the plaintiff, vide Ex.B-4 acknowledgement card. 12. Moreover, a compliant has also been given and a criminal case was also registered and the charge sheet has also been filed. During the pendency of the criminal case, the plaintiff's father died, and so, the charges abated. That is evidenced by Ex.B-6 letter written by Sub-Inspector of Police to the Assistant Executive Engineer. Then only, notice under Ex.A-1=Ex.B-7 has been issued on 26.6.1996, demanding Rs.53,914/-. He preferred appeal and that memorandum has been marked as Ex.A-2. After considering the appeal, the Divisional Engineer has passed an order as per Ex.A-3=Ex.B-8. Then only, the appellant-plaintiff herein preferred the suit. 13. The appellant-plaintiff has taken a plea that his father has committed theft of energy and argued that the 'kartha' committed and incurred for illegal purpose and hence, the children, the heirs, are not liable to pay the amount. Application of the doctrine of pious obligation extended to all the debts, is not tainted by illegality or immorality. But here, the father has committed theft of energy, and the same is illegal and hence, the sons and heirs of Natarajan are not liable to pay the amount. While considering Hindu Law, it is true that for the debts incurred by the father for illegal purpose or immoral purpose, the doctrine of pious obligation will not be applicable, but here, the father has committed the theft of energy for irrigating his land and for helping his family and for the benefit of the family members. In the abovesaid circumstances, the argument advanced by the learned counsel for the appellant-plaintiff that the sons are not liable to pay the "avyavaharika debt", because, https://hcservices.ecourts.gov.in/hcservices/ as already stated, he has not committed theft for illegal purpose or immoral purpose, but to enrich his heirs, for the benefit of heirs, he committed such illegal act and hence, the argument advanced by learned counsel for the appellant does not merit acceptance. 14. The next limb of argument advanced by the learned counsel for the appellant-plaintiff is that the charges against his father have abated and hence, the sons are not liable to pay the amount. It is true that as soon as the death of the accused, the charges will be abated. But the amount claimed under Exs.A-1 and A-3 is not the fine amount. Since the father committed theft of energy, the respondents- defendants are following the procedures laid down under the Terms and Conditions of Supply of Electricity framed by the TNEB, which was upheld by the Apex Court in the decision reported in 1998 (4) SCC 470 (cited supra). Clause 8.02 of the Terms and Conditions of Supply of Electricity states in specific terms as follows:' "8.00 THEFT OF ENERGY AND EXTRA LEVY: ..... 8.02 Extra levy for theft of energy by tampering of meters/meter seals will be made at the rates given below: (a) for a period of twelve months; or (b) for a period from the date of prior inspection if any by the APTS or MRT wing to the date of detection; or (c) for a period from the date of replacement of meter to the date of detection; or (d) for a period from the date of service connection to the date of detection whichever period of the above is less. For other cases of theft of energy, the extra levy will be made for a period of twelve months or from the date of service connection to the date of detection whichever period is less at the same rates given below." So, it is not the fine amount. It is damages awarded for commission of theft of energy for the loss suffered by the TNEB. 15. In the above circumstances, the argument of the learned counsel for the appellant-plaintiff that since the charges against the plaintiff's father, Natarajan, abated, the sons are not liable to pay the amount, is unacceptable, because, the claim is not the fine amount. 16. Another limb of argument advanced by the learned counsel for the appellant-plaintiff is that as per the judgment of the first appellate Court, the learned Judge has specifically given a direction that the Electricity Board is entitled to claim the amount by furnishing the calculation as to how they arrive at Rs.53,914/-. In the first appellate Court judgment, it is stated as follows: "13. ..... The Electricity Board is entitled to claim the amount towards the electricity charges for the electricity theft committed by the plaintiff's father https://hcservices.ecourts.gov.in/hcservices/ deceased Natarajan on 26.9.1994 by filing the calculation as to calculation as to how such claim of Rs.53,914/- has been arrived at. ..." 17. At this juncture, learned counsel for the respondents- defendants filed a copy of calculation, i.e. working sheet as to how they arrive at Rs.53,914/-, which reads as follows: "WORKING SHEET as per calculation 8.02 of the Terms and Conditions of Supply of electricity Units consumed: Connected load found at the time of inspection divided by diversity factor x load factor x hours per day x duration in days. Duration in days: 3 x 0.746 x 0.8 x 10 x 365 days = 6534.96 units = 6535 units. Loss of revenue: Units levied x 3 times the highest Low tension tariff rate. 6535 x 3 x 2.75 Rs.53913.75 or Rs.53914/- (Rupees Fifty three thousand nine hundred and fourteen only) Executive Engineer O & M/Chengalpattu." 18. The said calculation has been made in pursuance of Clause 8.02 of the Terms and Conditions of Supply of Electricity. Admittedly, the Terms and Conditions of Supply of Electricity have been upheld by the Supreme Court in the decision reported in 1998 (4) SCC 470 (cited supra), wherein, in paragraph 39, the Supreme Court held as follows: "39. In M.P. Electricity Board v. Harsh Wood Products (1996 (4) SCC 522) the Court held that Section 24 of the Electricity Act would apply to a case of regular supply made and prior demand of payment of electricity charges and it does not apply to demand on detection of pilferage. The Court upheld the validity of similar conditions of supply of electricity and held that on a prima facie conclusion of power theft reached by the authorities, it was not necessary to give a further hearing to the consumer and the action taken by the Board disconnecting the supply was not violative of Articles 20 (1) and 14 of the Constitution and the principles of https://hcservices.ecourts.gov.in/hcservices/ natural justice. We are in agreement with the view expressed therein." So, the arguments advanced by the learned counsel for the appellant- plaintiff does not merit acceptance. 19. As discussed supra, the appellant-plaintiff's father Natarajan has committed theft of energy and it was detected by the Anti Power Theft Squad. A show cause notice was also issued under Ex.B-1. Explanation has also been received as per Ex.B-2. Then only, the order has been passed as per Ex.B-3 and the appellant-plaintiff's father received the same under Ex.B-4. He has not preferred any appeal. After his death, the appellant-plaintiff has received recovery notice. Immediately, he preferred appeal as per Ex.A-2. The order has been passed as per Ex.A-3. Subsequently, the appellant- plaintiff has come forward with the suit. The act of the appellant's father Natarajan may be illegal. But he has committed the theft of energy only for the benefit of his family and so, the family members ought to have paid the amount and that the damages for the energy theft has been calculated in pursuance of the Terms and Conditions of Supply of Electricity. Besides that, after the disposal of the First Appeal, the respondents-defendants-Electricity Board have filed working sheet of calculation for arriving at Rs.53,914/- on the basis of the Terms and Conditions of Supply of Electricity. In the abovesaid circumstances, the appellant-plaintiff is liable to pay the amount demanded in Ex.A-1. Hence, I do not find any illegality or irregularity in the judgment and decree passed by the first appellate Court and they are liable to be confirmed. The substantial question of law is answered accordingly. 20. In fine, the Second Appeal is dismissed. The judgment and decree of the first appellate Court are hereby confirmed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar cs To 1. The Principal District Judge, Chengaplattu. 2. The Principal District Munsif-cum-Judicial Magistrate, Thirukalikundram. 3. The Section Officer, V.R.Section, High Court, Madras. 1 cc To Mr.N.Muthusami, Advocate, SR.162 S.A.No.127 of 2003 ksj(co) sra 25.01.2010 https://hcservices.ecourts.gov.in/hcservices/