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2008 DIGILAW 1712 (MAD)

The Assistant Engineer v. Kannan Chettiar

2008-06-11

R.BANUMATHI

body2008
Judgment :- Being aggrieved by allowing of Appeal reversing the Judgment of the trial court in respect of Service Connection No.395, Tamil Nadu Electricity Board has preferred this Appeal. For convenience, the parties are referred as per their array in the Original Suit. .2. Plaintiff is the consumer of electricity for his house bearing Door No.69, Subburoya Chetty street, Cuddalore-2 and the service connection number is 394. The next house on the eastern side is Door No.70 which also belongs to the Plaintiff for which the service connection is 395. On 23.09.1988, Anti Power Theft Squad, Villupuram had inspected the houses of the Plaintiff and had noticed certain violations, regarding which notice dated 21.01.1989 was sent to the Plaintiff. The Tamil Nadu Electricity Board has sent two provisional assessment notices on 21.01.1989 demanding the Plaintiff to pay a .sum of Rs.2798/ for service connection No. 394 and a sum of Rs.1190/- for service connection No.395. Alleging that false allegations have been made in the report by the Officers of Defendants Board and denying the violation of rules or misuse of service connections, the Plaintiff has filed the suit O.S. No.113 of 1989 for declaration that the demand in letter No.AEE/T/S/C Ud/C1/FAPTS/D695 dated 21. 89 is illegal, arbitrary, void and unenforceable and for permanent injunction restraining the Defendants, their men, servants and agents from disconnecting the service connection Nos. 394 and 395. 3. Resisting the suit, the Defendants Board filed written statement contending that the Plaintiff had taken water by a motor pumpset of 1 H.P. + 0.5 H.P. by using energy from the service connection No.394 for the use of the construction of new building on the eastern side of the Plaintiffs house for the purpose of household of the new building. The Defendants Board has further averred that the Plaintiff had extended the service connection to the above said new construction of the building for lighting purposes and the total Watts used for lighting purpose was 440 Watts from service connection No.395. Based on the inspection report, the Defendants Board has sent the impugned notice calling upon the Plaintiff to pay a sum of Rs.2798/-for service connection No.394 and a sum of Rs.1190/- for service connection No.395. The Defendants Board also inter alia raised the contention as to the maintainability of the suit. 4. Based on the inspection report, the Defendants Board has sent the impugned notice calling upon the Plaintiff to pay a sum of Rs.2798/-for service connection No.394 and a sum of Rs.1190/- for service connection No.395. The Defendants Board also inter alia raised the contention as to the maintainability of the suit. 4. On the above pleadings, four Issues and two additional Issues were framed before the trial court. The Plaintiff examined himself as P.W.1 and marked Exs.A1 to A3. On the side of the Defendants, D.W.1 and 2 were examined and Exs.B1 to B6 were marked. Upon consideration of oral and documentary evidence, the trial court held that unauthorised use of service connection No.394 was not proved by the Defendants Board and the trial court held that the demand in respect of service connection No.394 was not proper. Insofar as, lighting is concerned, on the evidence of D.W.1, the trial court held that from service connection No.395 electricity had been taken to the newly constructed house of the Plaintiff for lighting purposes and the trial court held that the Plaintiff is bound to pay the charges of demand for service connection No.395. .5. As against the findings in respect of service connection No.394, the Defendants Board has not preferred any appeal. Insofar as, service connection No.395, consumer has preferred an appeal challenging the findings of the trial court in respect of service connection No.395. The lower Appellate Court held that the Tamil Nadu Electricity Board can only take criminal action and cannot levy penal charges. Observing that the Plaintiff had already paid the metre reading charges and there was no necessity to pay further charges, the lower Appellate Court reversed the findings of the trial court in respect of service connection No.395. .6. Being aggrieved by the Judgment of the first Appellate Court, the Defendants Board has preferred this Second Appeal. The following substantial question of law was formulated for determination in the Second Appeal: Is the lower appellate court correct in holding that the appellant/defendant is not entitled to collect the penal rate for the unauthorized consumption of electrical energy while holding that there was unauthorized consumption of the electrical energy under the relevant provisions of the Electricity Act and Rules? 7. 7. Challenging the findings of the lower appellate court, the learned counsel Mr.N.Muthusami, appearing for the Tamil Nadu Electricity Board submitted that the lower appellate court erred in observing that the consumer need not pay additional charges for service connection No.395. The learned counsel for the Appellant would submit that as per the rules, for any new construction, temporary connection has to be obtained, for which consumption charges will have to be paid at higher rate and the lower appellate court was not right in quashing the impugned demand notice in respect of service connection No.395. Drawing attention of this Court to Terms and Conditions of Supply of Electricity, the learned counsel would further submit that compensation charges for violation shall be payable in addition to any other charges payable by the consumer in respect of the service connection and therefore, the first appellate court was not right in reversing the findings of the trial court. .8. Submitting that no perversity has been made out in the finding of the lower appellate court, the learned counsel Mr.V.Ragavachari, appearing for the Respondent contended that any consumption under service connection No.395 already covered under the metre reading and there was no loss to the Board and the lower appellate court rightly held that no additional charges are payable for service connection No.395. The learned counsel for the Respondent would further submit that no substantial question of law is involved and the finding of fact recorded by the first appellate court cannot be interfered ith. 9. There is no dispute that service connection Nos.394 and 395 belong to the Plaintiff. Equally, the factum of inspection on 23.09.1988 also not disputed. The case of the Defendants Board is that in service connection No.394, the Plaintiff had taken water by motor pumpset of 1 H.P. + 0.5 H.P. for the use of construction of new building on the eastern side of the Plaintiffs house which belongs to the Plaintiffs wife. On the evidence of D.W.1, trial court recorded a finding that water was taken to overhead tank and from the overhead tank, water was taken in water pots and taken to newly constructed house and there was no direct use of service connection No.394 for taking water to newly constructed house. As the Board has not preferred any appeal challenging the same, the finding in respect of service connection No.394 has become final. 10. As the Board has not preferred any appeal challenging the same, the finding in respect of service connection No.394 has become final. 10. During inspection D.W.1 has noticed that from service connection No.395, electricity connection has been taken to newly constructed house belonging to the Plaintiffs wife. D.W.1 has prepared Ex.B1 mahazar noticing electricity connection to the newly constructed house to seven bulbs and four tube lights totaling 440 Watts. On the evidence of D.W.1 and Ex.B1 mahazar and other documents, the trial court has recorded clear finding that there was unauthorized supply of energy to newly constructed house bearing Door No.71 belonging to the Plaintiffs wife. 11. As per Clause 31.01 the consumer shall not supply part or whole of the energy supplied to him by the Board to any other person unless he gets the approval of the Board and also holds a suitable sanction or licence for distribution and sale of energy granted by the State Government. Part I of Schedule deals with violations and theft of energy. As per Clause 1.01 of Part I of the Schedule, contravention of any provisions of the Terms and Conditions of Supply of Electricity prescribed by the Board.....Tariff notification issued by Government of Tamil Nadu from time to time and any other law governing the supply of electricity or rules framed thereunder shall be treated as violation and the consumer indulging in any violation shall be liable for action as may be prescribed by the Board in this behalf. As per Clause 2.01 Part I of Schedule for any violation compensation charges shall be payable in addition to any other charges payable by the consumer in respect of the service connection at the rates notified in the Tariff Notification. The learned counsel for the Appellants Board has drawn the attention of this court to Clause 2.02 Part I of Schedule in respect of compensation charges that shall be paid by the consumer in respect of violations in metered Low Tension Service Connections. As per Clause 2.02(II) the unauthorised/misused consumption in units shall be calculated as per formula shown in Clause 5.01 of the schedule and the units so arrived shall be charged at the rates indicated thereon. 12. As per Clause 2.02(II) the unauthorised/misused consumption in units shall be calculated as per formula shown in Clause 5.01 of the schedule and the units so arrived shall be charged at the rates indicated thereon. 12. As per the terms and conditions of the Tamil Nadu Electricity Board, the Defendants Board is empowered to levy compensation charges/penal charges for violation in addition to any other charges payable by the consumer in respect of the service connection. While so, the lower appellate Court was not right in saying that the Plaintiff had already paid the charges payable by him and no further charges can be levied. The lower Appellate court was also not right in observing that if at all there was any violation, the Defendants Board could take only penal action and no compensation charges could be levied. Such finding ignores the terms and conditions of supply of electricity and that supply of electricity to the Plaintiff is governed by the terms and conditions. 13. Referring to AIR 1991 Allahabad 196 (Aditya Rotor Spin (P) Ltd., Kanpur and another v. U.P. State Electricity Board, Lucknow and another) the lower appellate court observed that be forever proceed to disconnect the service connection, the Electricity Board ought to have given opportunity to the Plaintiff to make representation. In my considered view, the Defendants Board did give such an opportunity to the Plaintiff to make his representation/appeal and in the mean time calling upon him to pay 50% of the provisional assessment as per the terms and conditions of supply. The decision AIR 1991 Allahabad 196 (Aditya Rotor Spin (P) Ltd., Kanpur and another v. U.P. State Electricity Board, Lucknow and another) is not applicable to the facts of the present case. From the evidence of D.W.1 and from Ex.B1, unauthorised connection of electricity to the newly constructed house is writ large on the face of the record. The lower appellate court committed serious and substantial error in ignoring the material evidence and interfering with the findings of the trial court. The findings of the lower Appellate court in respect of service connection No.395 cannot be sustained and is liable to the set aside restoring the Judgment of the trial court. 14. In the result, this Second Appeal is allowed. The findings of the lower Appellate court in respect of service connection No.395 cannot be sustained and is liable to the set aside restoring the Judgment of the trial court. 14. In the result, this Second Appeal is allowed. The Judgment of the lower appellate court in A.S. No.86 of 1991 dated 05.09.1991 on the file of the Additional Sub Court, Cuddalore is set aside and the Judgment of the trial court in O.S. No.113 of 1989 dated 13.08.1990 on the file of the Principal District Munsif Court, Cuddalore is confirmed. No costs.