JUDGMENT A.H. Saikia, J. 1. Heard Mr. H. Deka, learned Senior counsel assisted by Mr. M. Islam, learned Counsel for the appellant and also Mr. B. D. Das and Mr. N. Goswami, learned standing counsel, Assam State Electricity Board (for short, 'ASEB') appearing for the respondents. 2. This appeal is directed against the judgment dated 19-9-94 and decree dated 29-9-94 passed by learned Assistant District Judge, No. 1, Kamrup, Guwahati in Title Suit No. 163/90 dismissing the suit filed by the appellant as plaintiff seeking for - a) decree for declaration that the actions taken by the defendants imposing the assessment bill upon the appellant and for threatened disconnection of electricity connection of his saw mill as void, illegal and inoperative, and - b) for a permanent injunction restraining the respondents and their agents, workmen from realizing the amount of assessment bill and from disconnecting the electric service connection to his saw mill. 3. The brief facts as emerged from the pleadings exchanged by and between the parties as well as the impugned judgment are that the appellant was the proprietor of a saw mill under the name and style of M/s. New Saw Mill situated at Palasbari in the district of Kamrup. In 1974, the plaintiff obtained a electric connection to his saw mill to operate its machineries from ASEB for which two meters were installed. The meter No. 14835 (3x5) related to the power connection with a capacity and load of 51 K.W. when the domestic meter bearing No. 659236 (10-A) with a permitted load of 3 K.W. It was pleaded in the plaint that the appellant was paying charges for consumption of the electric energy for the related period regularly without any default. Two bills amounting to Rs. 4,887.79 and Rs. 366.73 dated 12-8-90 being prepared on the basis of meter reading on 30-7-90, were paid by the appellant within the prescribed period i.e. 5-9-90. However, on 18-8-90 a vigilance team comprising of 4 officers of ASEB/defendants inspected the premises of the saw mill of the appellant in his absence and allegedly detected certain irregularities in the electric connection and left a note thereof by those officers. 4. However, on 18-8-90 a vigilance team comprising of 4 officers of ASEB/defendants inspected the premises of the saw mill of the appellant in his absence and allegedly detected certain irregularities in the electric connection and left a note thereof by those officers. 4. Immediately, on coming to know about such inspection as well as alleged detection pertaining to noted irregularities, the appellant approached the authority through respondent No. 6, i.e. Sub-Divisional Officer, Mirza Electrical Sub-Division, Mirza on 20-8-90 by way of lodging a complaint with a request to correct the defects in the meters so found by those officers. The letter dated 20-8-90 may be reproduced herein below, which was exhibited as Exhibit No. 3: To The S.D.O. Mirza Electrical Sub-division, Mirza. Dated the 20th August, 1990 Subject: Meter Complaint, Sir, Humble submission is that I, Sri Naren Kalita of "New Saw Mill" is a regular consumer of industrial electricity provided by you. The Department has appointed four staff for redressing the complaints regarding electric supply in my mill. They repair the various defect of my mill at various times. The complaint book at the Palasbari center contains the complaints lodged by us at various times. A few days ago, the 'Cut-out' of our mill was replaced. On 18-8-90, a team of high officials of your department came (to my mill) and complained that three blackish substances had been showing out from the meter connections. But our knowledge in this regard is very limited. While replacing the 'Cut-out', your staff might have put them out. I regret the inconvenience caused to you by such act. In the circumstance, I beg to request you to correct the defect in our meter and to allow me pay the bill as per your departmental procedures, for which I am ever ready. Yours faithfully, Sd/- Naren Chandra Kalita, Proprietor for "NEW SAW MILL" 20/8/90. 5. I regret the inconvenience caused to you by such act. In the circumstance, I beg to request you to correct the defect in our meter and to allow me pay the bill as per your departmental procedures, for which I am ever ready. Yours faithfully, Sd/- Naren Chandra Kalita, Proprietor for "NEW SAW MILL" 20/8/90. 5. However, despite the said communication made by the appellant, the defendants vide communication dated 29-8-90 informed the plaintiff/appellant that evidence revealed that he was directly or indirectly involved in the act of malpractice and as such the compensation bill that was assessed on the basis of Sections 21-22 of the Terms and Conditions of Supply, 1986 (for short, 'the Terms') was being served upon him and accordingly directed him to deposit the amount of the assessment bill within fifteen days from the presentation of the bill informing him that he might prefer an appeal against the assessment bill to the appellate authority. This communication was exhibited as Exhibit No. 4, which may be extracted as under: Memo No. MESD/Acc-11/90/1117 Dated 29-8-90 From : Asstt. Executive Engr. Mirza Electrical Sub-Division, ASEB Date of issue 28-8-90 Place-Mirza Ref : Report of Vigilance on 18-8-90 To, The M/s. New Saw Mill, Palasbari, Hudumpur Dear Sir(S)/Madam, This compensation bill is being served on you, which has been assessed on the basis of Sections 21 & 22 of the Terms and Conditions of Supply, ASEB, 1986 Evidence revealed that you were directly or indirectly involved in the act of malpractice. A statement showing your involvement along with the assessment bill are being enclosed herewith as Annexure-I & II respectively. You are requested to pay the amount of the assessment bill within 15 days from the date of presentation of the bill failing which the amount in the assessment bill shall be treated as arrear due against you and your service connection may be disconnected as per Section 24 of Indian Electricity Act, 1910. An appeal may be preferred by you against the assessment bill to the appellate authority, if you so desire namely E.E.GED (W) Ghy-9 Please acknowledge receipt Thanking you Yours faithfully Sd/- illegible 28-8-90 Signature Authorised Officer of the Board. 6. The assessment bill which was exhibited as Exhibit No. 5 carried the amount of Rs. 63,403.20/- as compensation. An appeal may be preferred by you against the assessment bill to the appellate authority, if you so desire namely E.E.GED (W) Ghy-9 Please acknowledge receipt Thanking you Yours faithfully Sd/- illegible 28-8-90 Signature Authorised Officer of the Board. 6. The assessment bill which was exhibited as Exhibit No. 5 carried the amount of Rs. 63,403.20/- as compensation. It was pleaded in the plaint in para 10 thereto that being aggrieved by such assessment bill as compensation, the plaintiff filed an appeal on 8-9-90 before the Executive Engineer, Guwahati Electric Division, West praying inter alia that the plaintiff be exempted from paying the compensation-cum-assessment bill. 7. Since no action was taken from the side of ASEB/defendants, the plaintiff/appellant filed the instant Title Suit with the prayer mentioned above. 8. Refuting the allegations made in the plaint, the ASEB contested the suit by filing written statement wherein they denied all the averments made in the plaint stating inter alia that the plaintiff was authorized to use two meters both the commercial and domestic with a capacity of 51 K.W and 3 K.W respectively. On inspection it was detected that both the meters were bypassed from the metering system and thereby drawing current without meter recording in two phases and such bypassing was itself an evidence of tampering that might even be done through by some electrical mechanic and/or person having such knowledge and experience. The plaintiff was thus found to have indulged in theft/cheating ASEB in the matter of payment of value of current consumed by him. The assessment bill in question was prepared on the basis of findings of inspection note/report and in terms of the relevant rules and in the same manner disconnection notice was also issued in accordance with law. Entire action was taken against the petitioner as he was found to have committed the malpractice. Moreso, the plaintiff did not make any appeal before the competent authority for redressal of his grievance, if any and as such the suit was liable to be dismissed. 9. On the basis of the pleadings and upon hearing learned Counsel for the parties, learned trial Court framed as many as six issues which read as follows: 1) Whether the plaintiff has causes of action for the suit? 2) Whether the suit is barred by limitation? 9. On the basis of the pleadings and upon hearing learned Counsel for the parties, learned trial Court framed as many as six issues which read as follows: 1) Whether the plaintiff has causes of action for the suit? 2) Whether the suit is barred by limitation? 3) Whether the plaintiff has right to go to the Court before any appeal being filed before the higher authorities of the ASEB against the order of the Executive Engineer as per rules of the Board and whether the plaintiff exhausted all the means available to him before going to the Court? 4) Whether the plaintiff committed malpractice by drawing electric energy in excess of sanctioned limit of 51 K.W. by surreptitious means and whether this action of the plaintiff amounted to an offence under Section 39 of the Indian Electricity Act, 1910? 5) Whether the plaintiff tampered the metering system bypassing the said system through illegal means? 6) Whether the suit is liable to be dismissed? 10. Both the parties examined one witness each. Upon hearing learned Counsel for the parties and also on appreciation of the evidence on record, the learned trial Court basically dealing with the issue Nos. 4 and 5, came to the finding that the appellant was found to be involved in malpractice by way of tampering with the meters and accordingly the suit was dismissed. Hence, this First Appeal. 11. Impugning the judgment, Mr. Deka, learned senior counsel for the appellant, has contended that the appellant was no way involved in the act of tampering with the meters and as such no malpractice was committed by him as found by the lower Court. His contention is that the trial Court in deciding those issue Nos. 4 and 5, totally ignored the evidence on record. Entire finding was based on presumption. The testimony of the parties did not disclose that in any manner, the petitioner at any point of time involved in tampering with the meters. In support of his submission, Mr. Deka, has invited attention of this Court to the findings arrived at in deciding the issue Nos. Entire finding was based on presumption. The testimony of the parties did not disclose that in any manner, the petitioner at any point of time involved in tampering with the meters. In support of his submission, Mr. Deka, has invited attention of this Court to the findings arrived at in deciding the issue Nos. 4 and 5 to the effect that plaintiff, being the custodian of the meters and other related installations, duty cast on him to keep the metering system in safe custody so that no tampering could be done and bypassing of metering system was out and out evidence of such act of tampering. It was observed that energy drawn by such bypassing or tampering was evidently enjoyed/availed by the plaintiff in operation of his saw mill and such fact raised presumption that either the plaintiff himself or anybody interested for him caused such act of tampering and by-passing of metering system. Even the learned trial Court misread the evidence of the plaintiff to the effect that since his own 'mistry' (mechanic) sometime dealt with or handle the internal installations relating to the electric connection meters, the act substantiated presumption of involvement of the plaintiff in the act of bypassing of metering system when the plaintiff in his evidence categorically deposed that he used his private electrician only to repair internal defects which clearly shows that at no point of time the meters were tampered with by him. 12. Mr. Deka, learned Senior Counsel has also contended that the finding arrived at to the effect that "The plaintiff is found to have expressed his readiness to pay the amount of assessment bill (Exhibit 5) vide his application dated 20-8-90 proved and marked Exhibit 3 addressed to the defendants. This fact show that he has thereby conceded to the allegation of bypassing of metering system and the claim made by the defendants vide Exhibit 5 (assessment bill)" was wholly incorrect and not borne out of the record and the same suffered from perversity. Referring to the said application dated 20-8-90 as already quoted above, Mr. Deka, learned Senior Counsel has stated that there was no whisper in the said application that the plaintiff ever conceded that he tampered with the meters and the said petition was solely in the nature of complaint placed before the authority to correct the defect as found by inspecting team. Deka, learned Senior Counsel has stated that there was no whisper in the said application that the plaintiff ever conceded that he tampered with the meters and the said petition was solely in the nature of complaint placed before the authority to correct the defect as found by inspecting team. Finally it is submitted on behalf of the appellant that before issuing the impugned assessment bill imposing the compensation holding that the plaintiff was directly or indirectly involved in the malpractice, no notice whatsoever was ever issued to him by way of giving any opportunity of being heard. In view of the above fact situation, according to Mr. Deka, the impugned judgment of the lower Court may be set aside and quashed and decree as prayed for in terms of the plaint may be passed by allowing this appeal. 13. In support of the impugned judgment, Mr. Das, learned Standing Counsel, ASEB has forcefully argued that it is a clear case of malpractice as a high level vigilance team, on a surprise inspection found both the meters of the plaintiff tampered with and submitted report which was at no point of time challenged by the plaintiff. Referring to the averments made in the plaint, Mr. Das has argued that the plaint did not disclose any case for getting any such relief so prayed for in the plaint itself. Accordingly, learned trial Court was wholly justified in dismissing the plaint by deciding both issue Nos. 4 and 5 against the plaintiff. Mr. Das has also rejected the fact the petitioner had approached the appellate authority and the same was reflected apparently from the finding of the Court below. In deciding issue Nos. 3, the learned trial Court was categorical that admittedly at no point of time, any appeal was preferred by the appellant. According to him, since the appellant failed to prove his case according to the Terms, the suit was not maintainable and the trial Court rightly dismissed the suit. 14. Having given my anxious consideration to the contentions and arguments advanced on behalf of the rival parties and also on close scrutiny of the material evidence on record as well as exhibits, this Court has taken up the issue Nos. 4 and 5 being the relevant issues for effective adjudication of the case at hand. The moot question in both the. 4 and 5 being the relevant issues for effective adjudication of the case at hand. The moot question in both the. issues is whether the plaintiff committed any malpractice by way of tampering with the metering system by means of bypassing. It appears that inspection by the vigilance team was effected on 18-8-90 in absence of the appellant and report was left on the same day in the premises itself which was exhibited as Ext.-2 and the same may be noticed as under: 'New Saw Mill' Mirza Electrical Sub-Division, No. 14835 3x5 A ECE make Reading : 01295 C.T. 200/5 Capacitor 15 Kv AR. Two Nos. of CT (No. C 9079, C 9064) bypassed & P.T. connections found open, Meter Cover-Seal 2T/C seal found NTI m-seal intact. Capacitor switch is under lock and key and key is not available with the signatures of the consumer. So capacitor switch position could not be ascertained. Advised key should be available at all time. Connected load as found: 1. Motors 11 KW x 3 No. = 33 KW 15 KW x 1 No. = 14 KW 0.75 KW x 1 No. = 0.75 48.75 KW It is seen from the report, Ext.-2 that 2 Nos. of CT {C-9079 and 9064) bypassed and FT connection was found open. But it was mentioned categorically that meter cover of seal (2T/C seal) was found intact. 15. Turning to the deposition of the plaintiff who examined himself as PW. 1, it transpires that he testified that the vigilance team on their visit and inspection on 18-8-90 found those meters to be defective and consequently they served him with Ext.-2. Immediately, thereafter, on 20-8-90, the plaintiff wrote to defendant No. 6 to verify and correct any defect in his meter. The receipt of the said communication was duly acknowledged. Subsequently, on 29-8-90 he was served with an assessment bill amounting to Rs. 63,403.60 and along with the said bill, a letter was issued alleging that plaintiff was directly or indirectly involved in malpractice. The deposition of this witness would show that no action was taken by ASEB in response to the communication dated 20-8-90. P.W. 1 also deposed that on 8-9-90, he preferred an appeal against such bill before defendant No. 4, i.e. Executive Engineer, Machkhowa who expressed verbally his inability to do anything in that regard. The said appeal was exhibited as Ext. P.W. 1 also deposed that on 8-9-90, he preferred an appeal against such bill before defendant No. 4, i.e. Executive Engineer, Machkhowa who expressed verbally his inability to do anything in that regard. The said appeal was exhibited as Ext. 6 which fact was also admitted by the defendants/ASEB in their written statement in para-9. In view of this evidence, this Court is of the view that the trial Court lost sight of this deposition as well as pleadings of the parties and as such perversity dominates the finding in deciding issue No, 3 against the plaintiff. 16. It also appears from the testimony of PW. 1, that ASEB also lodged a police case under Section39 of Indian Electricity Act, 1910 (for short, 'the Act') for his prosecution on the ground of theft of energy and the trial Court vide judgment and order dated 13-1-92 in CR Case No. 3756/98 (Ext. 7) was pleased to acquit the plaintiff from that charge. The plaintiff categorically stated that the defendants did such works as examining his meter repairing the same etc. and he did never lay his hand on the meter. In cross he deposed that his own mechanic repaired his internal defects only and he lodged complaint when there was any defect in the connection. He denied the suggestion that he or his men tampered with the meter and the line. 17. On the other hand, DW. 1 Arun Kanti Ghosh, as Superintending Engineer and one of the member of the vigilance team, the lone witness adduced on behalf of the defendants, deposed that he checked the electric installations during the inspection of the mill in question and found that two connections of the three-phased meters had been opened for which reason they did not show the meter readings. Though power was utilized, since the meter connections had been loosened, the consumption was not shown on the meter. In cross, he testified that the fault in the meter was the responsibility of the Board which generally inspected the meter once in a six months. But he failed to say when these meters were earlier checked before their such inspection. Even he stated that he did not verify whether the said meter was at all checked earlier. He stated that the meter reader maintained a card. He made entry in the card as well as in the notebook. But he failed to say when these meters were earlier checked before their such inspection. Even he stated that he did not verify whether the said meter was at all checked earlier. He stated that the meter reader maintained a card. He made entry in the card as well as in the notebook. At the time of inspection, he did not find the meter reading card. Reinforcing his testimony in cross, he stated that Board maintained the meter and if there were complaint, the Board official went and rectified the meter and apart the meter, other installation were maintained by the consumer. This witness nowhere mentioned what actual defects were found except the bypassing in the meter when the report showed that main seal remained intact without being broken. In the instant case, in view of the deposition of DW. 1, ASEB did nothing to correct the defects in the meters in spite of the complaint made by the appellant by his communication dated 28-8-90. 18. Mr. Das learned Standing Counsel for the respondent has referred to two decisions of the Apex Court reported in- (i) [1997] 2 SCR 1143, State Electricity Board v. Ashwani Kumar and (ii) [2003] 2 SCR 690 , (J.M.D. Alloys Ltd. v. Bihar State Electricity Board). 19. In Ashwani Kumar's case (supra) the Apex Court in paragraph-8 in answering a question whether the Civil Court would be justified in entertaining the suit and issue injunction as prayed without availing the alternative statutory remedy, held that ordinarily, the Civil Court had jurisdiction to go into and try the disputed questions of civil nature, where the fundamental fairness of procedure was violated, however the Civil Court would not be justified in entertaining the suit and giving the declaration without directing the party to avail of the remedy provided under the Indian Electricity Act and the Indian Electricity (Supply) Act and the instructions issued by the Board from time to time. In the instant case it revealed from the record that the appellant had already approached to the appellate authority but reasons best known to them, no action was taken on such appeal, though that fact was at no point of time, denied by the defendants. 20. In the instant case it revealed from the record that the appellant had already approached to the appellate authority but reasons best known to them, no action was taken on such appeal, though that fact was at no point of time, denied by the defendants. 20. In J.M.D. Alloy's case (supra), the Supreme Court accepted the view taken by the concerned Chief Engineer being the appellate authority, that the appellant was liable for assessment in question for tampering with the seal fixed on CT/PT box by giving reasonable opportunity of hearing to them. In that case, the appellant was charged with the allegation of tampering with the seal of the meter fixed on CT/PT box and accordingly they were slapped with a compensation bill amounting to 8,55,77,131/- that was challenged in the High Court under writ jurisdiction under the Article 226 of the Constitution and High Court disposed of the said writ petition by issuing direction to the Chief Engineer to take up the matter after giving reasonable opportunity of hearing who in turn decided the matter against the appellant holding him to be involved in tampering with the seal of the meter and fresh bill to the amount indicated above was issued. Being aggrieved by the said decision, the appellant again moved the High Court wherein the said decision of the Chief Engineer was upheld by holding that since the order was passed by the Chief Engineer after taking into account the facts in its entirety and after giving reasonable opportunity of hearing to the appellant, under Article 226 the question of fact could be entertained and accordingly writ petition was dismissed. They approached the Apex Court which dismissed the appeal accepting the finding of the High Court as correct for which no interference was called for. 21. On perusal of the aforesaid authority, it is seen that the case therein was pertaining to breaking of the seal for which the appellant was found liable to pay such amount as compensation. But in the instant case, allegation was that the meters were bypassed. Save and except the report above noticed indicating that seal was intact, there was no credible or overwhelming evidence to show that seal of the meter was broken. From the evidence of DW. 1, it is noticed that the meter connection was loosened. But in the instant case, allegation was that the meters were bypassed. Save and except the report above noticed indicating that seal was intact, there was no credible or overwhelming evidence to show that seal of the meter was broken. From the evidence of DW. 1, it is noticed that the meter connection was loosened. The record including the evidence do not reveal that how and when this meter connection was loosened. Any fault in meter was responsibility of the Board and this factum was admitted by the said officer in his evidence and it was duty of the Board to generally inspect the meter half yearly. But DW. 1 failed to state when the meter was checked prior to their inspection. Having received this report, the plaintiff immediately approached, vide its communication dated 20-8-90, the authority to correct the defect in his meter and allow him to pay the bill as per departmental procedure. But the authority maintained total silence regarding correction of the meter in defect. Even his appeal was not considered, on the contrary, he was served with this assessment bill along with notice/communication wherein it was said that the petitioner was directly or indirectly involved in the malpractice. Neither in the pleadings nor from the facts and circumstances of the case, it has come out that any malpractice was done by the plaintiff/appellant. Significantly, it is noticed that no notice whatsoever was given to the appellant prior to arriving at a decision that he was directly or indirectly involved in the malpractice. 22. Now let us read the meaning of 'malpractice' as provided in Clause 21 of the Terms as under: 21 MALPRACTICE (I) Malpractice : Contravention of any provision of the terms and conditions of supply, 1986, the Indian Electricity Act, 1910, the Electricity (Supply) Act, 1948, the Indian Electricity Rules, 1956 or any other law/rule governing the supply and use of electricity regulating order shall be treated as malpractice, and the consumer indulging in any such malpractice shall be liable at law/rule/order, subject to the generality as above. (II) Cases mentioned hereunder, shall be generally treated as malpractice: (a) Unauthorized supply of electricity to any service which is disconnected by the Board. (b) Exceeding connected load authorized by the Board. (II) Cases mentioned hereunder, shall be generally treated as malpractice: (a) Unauthorized supply of electricity to any service which is disconnected by the Board. (b) Exceeding connected load authorized by the Board. (c) Addition, alteration and extension of electrical installation in the consumer's premises without permission of the Board or extension to any premises other than the one for which supply was contracted for. (d) Non-compliance of orders in force imposing restriction of use of energy for rational and equitable distribution thereof. (e) Use of electricity for any purpose other than that for which supply is contracted for. (f) Resale of energy without the permission of the Board. (g) Theft of energy. (h) Obstruction to lawful entry of authorized officers/employees of the Board into the consumer's premises. (i) Interfering and tampering with the meter and metering system. 23. In this instant, allegation against the appellant was theft of energy as mentioned in Clause 21(g) of the Terms. However, this Court, in view of the discussion hereinabove and after carefully going through the meaning of Clause 21(g) of the Terms, does not find any sufficient materials for indictment of the appellant in commission of 'malpractice'. Evidence of DW 1, did not disclose substantially anything to hold that he committed any malpractice. Even the Criminal Court acquitted the appellant from the charge of theft in the related criminal case that was initiated against him by ASEB. 24. For the reasons, discussions and observations as above, this Court cannot persuade itself to accept the submissions made and the cases cited above, on behalf of the ASEB and accordingly it is of the view that it is a fit case for interference with the impugned judgment and order. Consequently, the impugned judgment stands set aside and quashed. The suit of the plaintiff/appellant is hereby decreed and the entire action taken by the officer of ASEB i.e. respondents/defendants against the appellant in regard to the issuance of notice, report and assessment bill is hereby quashed. 25. In the result, appeal succeeds and stands allowed. However, there shall be no order as to costs. Appeal allowed