Judgment :- 1. The High Tension Consumer i.e., the plaintiff, contending that he has suffered High Tension, because of the extra demand made for a sum of Rs.13,99,454/-, having succeeded in the District Munsif Court as well as in the first appellate court claims that again he is put under High Tension because of the second appeal filed by the Tamil Nadu Electricity Board. 2. The Tamil Nadu Electricity Board and its officers / Engineers in various cadres functioning under Tamil Nadu Electricity Board, who are defendants 1 to 5 are the appellants herein. 3. Prior to the filing of the suit in O.S.No.1558 of 2000, which is being continued by the filing of the second appeal, a suit had been filed in O.S.No.3521 of 1996 seeking the relief of declaration and injunction. The trial court dismissed the suit giving a finding that the plaintiff must first exhaust the alternative remedy of appeal provided under the Statute and without first exhausting the remedy, the suit should not have been filed. Accordingly, the plaintiff filed the Departmental Appeal. After the Departmental appeal, which did not consider the objection of the plaintiff, the plaintiff has filed the suit in O.S.No.1558 of 2000. 4. The plaintiff / respondent herein filed a suit for declaration that the impugned order passed by the second defendant, dated 11.07.1996, demanding payment of Rs.13,99,454/- towards extra electricity charges is illegal and for consequential permanent injunction restraining the defendants from disconnecting the electricity service connection No.6151. 5. By the judgment, dated 27.09.2001, the suit was decreed as prayed for with costs. As against the decreeing of the suit, the Electricity Board filed an appeal in A.S.No.78 of 2002, which was dismissed, thereby confirming the judgment and decree passed in O.S.No.1558 of 2000. 5.1. Challenging the decree and judgment referred above the present second appeal has been filed by the Electricity Board. 5.2. At the time of admission, the following substantial questions of law were framed:- "(i) Whether the judgment of both the Courts below are not vitiated for their failure to relevant to the fact that the plea of limitation can be a defence only in a suit and would not be available in a case where the Appellant Department seeks to enforce its right under Section 24 of the Indian Electricity Act for disconnection on the ground of arrears? (ii) Whether the judgment of the Courts below do not suffer from errors of law in failing to notice that limitation bars only the remedy by way of suit and does not extinguish the right?" 5.3. But during arguments, the learned counsel on both sides conceded that the following substantial question of law would be the more appropriate for consideration. Therefore, the re-formulated substantial question of law, at the time of hearing the second appeal, runs thus:- "Whether the findings of courts below that the demand made by the Electricity Board is against law and without following the procedure prescribed has been given based on no evidence or by mis-appreciation of the evidence? whether the findings of the courts below are perverse?" 6. The brief facts:- The plaintiff is a Private Limited Company incorporated under the Indian Companies Act, 1956, engaged in spinning yarn business at Coimbatore. The plaintiff was paying the electricity charges in accordance with the demand raised by the first defendant. The Electricity Department Officials were inspecting the electrical installations and the electric meter regularly in the plaintiff's premises and they never complained of any irregularity or malpractice. The plaintiff received a demand notice for a sum of Rs.13,99,454/- for the period from May 1989 to May 1991 towards extra consumption of electricity. 7. The plaintiff preferred departmental appeal and the appeal was dismissed on 26.09.2000. The findings are biased findings. Hence the plaintiff filed the suit pleading that the demand was illegal and arbitrary. 8. The suit was resisted by the defendants on the following contentions:- (i) The plaintiff committed malpractice in the consumption of electricity. (ii) The demand was made based on the report by Anti Power Theft Squad alleging malpractice in the plaintiff's company. (iii) The dismissal of the Departmental Appeal was justified as the findings were given after conducting a full fledged enquiry. (iv) The demand was raised based upon the details of production of yarn and the units consumption for the period from April 1989 onwards. 9. Based on the pleadings, the trial court framed general issues as to declaration and injunction without any special reference to the pleadings. It is relevant to quote the issues framed by the first appellate court, which is found more relevant. 9. Based on the pleadings, the trial court framed general issues as to declaration and injunction without any special reference to the pleadings. It is relevant to quote the issues framed by the first appellate court, which is found more relevant. The point for determination framed in the first appeal are, (i)Whether the plaintiff proved that the impugned order, dated 11.07.1996, issued by the respondents/defendants was illegal and arbitrary? (ii) Whether the appellants / defendants proved that the plaintiff committed the alleged malpractice in the consumption of electricity in the textile mill, Shri Iyyan Textiles Mills Pvt. Ltd., for the period from May 1989 to May 1991 as per the impugned order dated 11.07.1996 in the suit? 10. Before going into the facts of the case, it is relevant to refer the terms and conditions regarding electricity supply. 11. Section 49 of the Electricity (Supply) Act, 1948 empowers the Board to prescribe such terms and conditions as it think fit for supplying electricity to any person other than licensee. The Board is the State within the meaning of Article 12 of the Constitution of India. This section also empowers the Board to frame uniform tariff for such supply. 12. According to the terms and conditions of supply of electricity, consumers have been divided into two categories, namely, High Tension Consumer and Low Tension Consumer. As per the terms, demand is also classified as, (a) average demand; (b) maximum demand; (c) permitted demand; (d) sanctioned demand or contracted demand. 13. It is relevant to refer to the following clauses in the terms and conditions of the Tamil Nadu Electricity Board:- 13.1. 2.01 – Compensation charges for violation 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, Terms and Conditions of Supply of Electricity and 'Restriction and Control orders. 13.2. 6.00 - Procedure for collecting compensation charges and for taking other action. 13.3. The Procedure provides for inspection of the service connection by the specified officer and in case of violation show cause notice has to be issued and then only assessment can be made. 13.4. 10.01 - The officers, who have been authorised to inspect service connection, issue show cause notice, make assessment and function as Appellate Authority in case of violation or theft of energy, are as follows:- 13.5. 13.4. 10.01 - The officers, who have been authorised to inspect service connection, issue show cause notice, make assessment and function as Appellate Authority in case of violation or theft of energy, are as follows:- 13.5. 6.00 provides for procedure to be followed for collecting compensation charges. 13.6. 6.01 - On detection of violation, the officer authorised to issue show cause notice as per Clause 10 of this Schedule will issue a notice to the consumer (vide Appendix IV) asking him to remove the violation within twenty-four hours or seven days, as the case may be, failing which, the supply will be disconnected and to show cause why the compensation charges should not be levied for having committed the violation. Reply to show cause notice shall be sent by the consumer within seven days from the date of receipt of notice. 13.7. Therefore, according to this clause, two steps are contemplated, one step is towards setting right the mischief committed by removal of the violation, thereby preventing the further recurrence of the mischief. The second step is collection of compensation charges. Before collecting the compensation charges, show cause notice, calling upon the consumer, as to why compensation charges should not be collected, for having committed the violation, granting seven days time, should be issued. 13.8. The further procedure to be followed are given in Clause 6.02, which is extracted for convenient reference. 13.9. 6.02 - If the consumer fails to send the explanation within the stipulated time or if the explanation is not satisfactory, the Officer authorised to issue Show-cause notice will send a report to the Assessing Officer. The Officer authorised to make assessment, if convinced that there has been a violation (a) after conducting a detailed enquiry within fifteen days from the date of issue of Show-cause notice, (b) by giving a reasonable opportunity to the consumer to represent and (c) after examining the materials available in the case, will assess the compensation charges payable and issue speaking order to the consumer directing him to pay the charges in equal monthly instalments with a maximum of - (a) Five instalments for amount up to Rs.1,00,000/- (b) Ten instalments for amount above Rs.1,00,000/- and upto Rs.10,00,000/- and (c) Fifteen instalments for amount exceeding Rs.10,00,000/-. The first instalment will be paid within fifteen days from the date of receipt of the Assessment Order by the consumer (vide Appendix V). The first instalment will be paid within fifteen days from the date of receipt of the Assessment Order by the consumer (vide Appendix V). Failure to pay any of the instalments within due date will result in disconnection of supply to the service connection of the consumer without any further notice. 13.10. The requirement under clause 6.02 is that the assessing officer should be convinced that there had been a violation. The Officer should get convinced, after conducting the detailed enquiry and after examining the materials available. These are the sine-qua-non before the Electricity Board decides to issue notice calling upon the consumer to show cause, why compensation charges should not be collected, for having committed the violation. 13.11. Clause 8.00 provides for Theft of energy and extra levy. 13.12. Under Clause 8.01 any consumer who dishonestly abstracts or uses energy shall be deemed to have committed theft and the existence of artificial means of such abstractions shall be the prima facie evidence of such dishonest abstraction..... 13.13. Clause 8.02 provides for extra levy for theft of energy by tampering of meters / meter seals. 13.14. For theft of energy also, the Officer authorised is expected to issue a show cause notice granting seven days time as to why extra levy should not be made for having committed theft of energy. If there is failure to send the explanation or the explanation is not satisfactory, the extra levy will be assessed following the procedure. 14. The provisions quoted above go to show that the charges for supply of electricity is not a payment as assessed by the consumer. It is a payment as assessed by the supplier himself and once the demand made by the supplier is complied with by the consumer, then it is for the Electricity Board to show how the consumer is liable to pay compensation charges. 14.1. The compensation charges can be claimed either under clause 2.01 for violation or under 8.01 for theft of energy. 15. Now it is for the Court to consider whether the compensation charges levied by the Tamil Nadu Electricity Board is in accordance with the provisions / clauses made under the terms and conditions of the Electricity (Supply) Act. 16. The demand, in this case, has been made for the period from May 1989 to May 1991. 15. Now it is for the Court to consider whether the compensation charges levied by the Tamil Nadu Electricity Board is in accordance with the provisions / clauses made under the terms and conditions of the Electricity (Supply) Act. 16. The demand, in this case, has been made for the period from May 1989 to May 1991. Documents under Ex.A-12 (equivalent to Ex.B-8) disclose that the Anti Power Theft Squad, after visiting the plaintiff's premises, has reported that there had been low consumption of electricity recorded, prior to the period 18.05.1991. The units of electricity consumed per kilogram of yarn produced, had been found varying from 0.31 to 1.78, compared to other similar Mills, in which, the ratio of unit / kilogram of yarn produced, was found to be around 2.75. This is the fundamental and basic factor which made the Electricity Board to make further demand for a sum of Rs.13,99,454/-. 17. When show cause notice was issued, the plaintiff has supplied the following two reasons for this variation. "(i) Since the Mills had only old machines with old drafting system and were forced to run with lower speeds with high variety of cotton for mixing low count pattern and also due to partial running of blow room equipments and (ii) The consumption of pre spinning ring frames, the ring spinning lighting may consume a total of 1.20 to 1.30 units/Kg of yarn for 40's count at 8000rpm as enumerated in their letter." 18. After extracting the reply given by the plaintiff, the Superintending Engineer has given an observation that the machines were later modified in June 1991 and 40's yarn were produced and that there had been slight increase in the production and raise in the consumption pattern also. 18.1. The plaintiff has also given an explanation that the plaintiff-Mill has been using two generator sets during power interruptions for which the total units generated as furnished by the plaintiff were 1,36,216 units. 19. It is for the Electricity Board to say whether these explanations were correct or not, sustainable or not, justifiable or not and acceptable or not. 20. The important observations made in the report of Inspector General of Police / Vigilance is worth considering:- (i) The ratio of unit per Kg. 19. It is for the Electricity Board to say whether these explanations were correct or not, sustainable or not, justifiable or not and acceptable or not. 20. The important observations made in the report of Inspector General of Police / Vigilance is worth considering:- (i) The ratio of unit per Kg. of yarn produced in other similar spinning mills were compared and it is around 175 KVA and there is no appreciable difference in the MD over the reviewing years. (ii) There was no addition of load during this period. There was no power cut to this industry. Therefore, there is no need for them to use DG set. (iii) There was no malpractice or abnormalities observed at the time of inspection of APTS / Coimbatore. (iv) The consumer might have meddled with the metering arrangements so as to make the meter to record lesser units. The mode of meddling may not be removal of PT fuse units that are under sealing but shorting of incoming and outgoing terminals of metering set, thereby eliminating the registering of tri-vector meter for certain duration using insulated sticks as done by Hot line crew. But there is no other evidence except the consumption per Kg of yarn produced, now available to establish any prima facie case. This part of the observation that except the consumption per Kg. of yarn produced there is no other parameter available to justify the claim of the Electricity Board for extra charges need a special mention, because this aspect is not proved at all. 21. Pointing out all the above factors, which required pondering over, the Inspector General of Police has directed the Superintending Engineer to investigate the matter and to send a report. On the basis of the report sent by the Superintending Engineer under Ex.A-12 to the Chief Engineer, the Chief Engineer, in turn, has directed the Superintending Engineer, under Ex.B-9 to revise the bill. Accordingly, the Superintending Engineer has revised the bill under Ex.A-8, which is under challenge. 22. Under Ex.B-9, which is the order passed by the Chief Engineer (Distribution) it is simply stated that the reasons stated by the consumer i.e., the plaintiff, for low consumption compared to the production during 4/85 to 5/91 is not convincing. It is not a speaking order. 22. Under Ex.B-9, which is the order passed by the Chief Engineer (Distribution) it is simply stated that the reasons stated by the consumer i.e., the plaintiff, for low consumption compared to the production during 4/85 to 5/91 is not convincing. It is not a speaking order. In what way it is not convincing is not explained, i.e., what is the explanation by the plaintiff, whether that explanation stands to reason or not, whether the explanation is supported by materials or not, are not discussed. However, the Superintending Engineer has been requested to revise the bills. 23. Under Ex.A-8 the Superintending Engineer has chosen to merely inform the plaintiff that a sum of Rs.13,99,454/- is due by way of revision of electricity bills for the period from 5/89 to 5/91 due to malpractice alleged and detected by APTs on 04.02.1993. 23.1. A perusal of the aforesaid orders clearly confirm that there was no enquiry conducted with reference to suspected reasons for recording of low consumption. The basis of suspicion for the Electricity Board was that there was low consumption of power with reference to consumption pattern of the plaintiff-Mill vis-a-vis, the consumption pattern of other mills. This suspicion is sought to be clarified by the plaintiff by providing explanation. The Electricity Board ought to have conducted enquiry with reference to the base materials, based on which the suspicion arose for the Electricity Board and also as to those part of the explanations, which were found not convincing. There is absolutely no material to justify the conclusion arrived at by the Electricity Board. The impugned order under Ex.A-8 did not even specify the reasons clearly. The impugned order states that the revision of electricity bills was due to malpractice alleged and detected by the APTs on 04.02.1993. It is relevant to point out that neither malpractice was alleged on 04.02.1993 nor it was detected on 04.02.1993. The Anti Power Theft Squad has chosen to visit the premises on 04.02.1993 in pursuance of an anonymous complaint received. On such visit, the Anti Power Theft Squad has raised some suspicion regarding possible reasons for recording of low consumption. It is for the Electricity Board to come out with a clear case as to whether there was low recording of electricity consumption, if so, how that could have happened and also that such low recording occurred due to malpractice adopted by the plaintiff. 23.2. It is for the Electricity Board to come out with a clear case as to whether there was low recording of electricity consumption, if so, how that could have happened and also that such low recording occurred due to malpractice adopted by the plaintiff. 23.2. According to the Electricity Board, the suspicion was based upon the yarn production pattern vis-a-vis the consumption of electricity in terms of units per Kg. in comparison with other mills. The Electricity Board ought to have collected yarn production pattern and the consumption of electricity of other mills, based on which, accusing fingers have been shown against the plaintiff's mill and should have conducted enquiry based on those materials. The Electricity Board had not done so. Therefore, the impugned order passed under Ex.A-8 is liable to be set-aside. It has been rightly held to be so by the Courts below. The assessment under Ex.A-8 is based on assumptions and speculations and not based on scientific reasoning. 23.3. Initially the Electricity Board had suspicion on the following two grounds, while keeping the service connection under surveillance:- (i) The plaintiff might have meddled with the P.T. Fuse of the meter whenever they wanted, so as to make the meter to record lesser units. (ii) The meter might have had some defect which escaped the notice of the MRT while testing. (iii) Finding that no evidence were available to establish the prima facie case, the Electricity Board thought of comparing the yarn production pattern with the electricity consumption charges for the purpose of finding out whether there had been a malpractice or not. It is stated that the ratio of units per Kg. of yarn produced in other similar spinning mills were compared and it is around 175 KAV and there is no appreciable difference in the MD over the reviewing years. This ratio of units per Kg. of yarn produced in other similar spinning mills, which formed the basis for comparison, might have been furnished either to the plaintiff or atleast before the court to find out whether the base material on which the edifice of the case of the Electricity Board rest is correct or not. But this base material had not been made use of by the appellate authority also. 23.4. But this base material had not been made use of by the appellate authority also. 23.4. When the Electricity Board is disputing the correctness of the functioning of the meter, then the procedure to be followed has been provided under Section 26 (6) of the Indian Electricity Act, 1910. Electricity Board should have made an application before the Electrical Inspector and the Electrical Inspector shall estimate the energy supply with the consumer for such time not exceeding six months, and then the Electrical Inspector should come to a conclusion as to whether the meter reading should have been correct or not. In the absence of fraud, the register of the meter shall be the conclusive proof. Even to adopt this procedure, notice should be given to the consumer giving minimum of seven days notice. Such step is also not taken by the Electricity Board. The order of the appellate authority did not speak anything about the above step being taken. Under such circumstances, the order passed by the appellate authority cannot be said to be unbiased and full-fledged. Therefore, it is liable to be set-aside. The order under Ex.A-8 consequently cannot be enforced. 24. The learned counsel for the appellants took the plea of exclusion of jurisdiction of the civil court under Section 9 of the Civil Procedure Code. Learned counsel for the appellants pointed out that the ouster of jurisdiction of civil court has already been raised in the written statement in paragraphs 4 and 5, but the trial court did not frame any issue regarding the exclusion of jurisdiction of civil court. In paragraph 3 of the written statement, it has been stated about the dismissal of the suit on the ground that plaintiff has not exhausted the filing of the departmental appeal before seeking the relief. In paragraph 4 of the written statement, it is pleaded that there is no direction in the judgment in O.S.No.3521 of 1996 that after exhausting the alternative remedy of departmental appeal, plaintiff can file a fresh suit before the civil court and that therefore, the suit is hit by law of res judicata. 24.1. No doubt, there is no express mention in the judgment that the plaintiff can file a suit after exhausting the alternative remedy, but there is an implied permission that the plaintiff can file the suit after exhausting the alternative remedy. 24.1. No doubt, there is no express mention in the judgment that the plaintiff can file a suit after exhausting the alternative remedy, but there is an implied permission that the plaintiff can file the suit after exhausting the alternative remedy. Even assuming that there is no such implied permission whether the plaintiff can file the suit is the issue to be considered. 24.2. The learned counsel for the respondent relied upon the decision reported in (1997) 5 SCC 120 (Punjab State Electricity Board v. Ashwani Kumar) where-under it has been held that where the fundamental fairness of procedure is violated, civil court has jurisdiction to go into disputed question of civil nature. 24.3. As established by the evidence of the officials of the Electricity Board themselves, procedural fairness has been violated. It is relevant to quote the following decisions:- (i) (M.P. Electricity Board, Jabalpur Vs. M/s. Vijaya Timber Co.):- "9. It is well-settled that the exclusion of jurisdiction of civil court cannot be readily inferred and the normal rule is that civil courts have jurisdiction to try all suits of a civil nature except those of which cognizance by them is either expressly or impliedly excluded. A Constitution Bench of this Court in Dhulabhai v. State of M.P. 1968 3 SCR 663 had laid down several propositions in this regard. The first proposition is apposite for the facts of this case. It reads as under: (1) Where the Statute gives finality to the orders of the special tribunals, the civil court's jurisdiction must be held to be excluded, if there is adequate remedy to do what the civil courts would normally do in a suit. Such a provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure." (ii) Radha Kishan v. Ludhiyana Municipality 1963 AIR 1547, 1964 SCR (2) 273 it was held: “Under section 9 of the civil procedure code the court shall have jurisdiction to try all suits of civil nature excepting suits of which cognizance is either expressly or impliedly barred. A statute, therefore, expressly or by necessary implication can bar the jurisdiction of civil courts in respect of a particular matter. A statute, therefore, expressly or by necessary implication can bar the jurisdiction of civil courts in respect of a particular matter. The mere conferment of special jurisdiction on a tribunal in respect of the said matter does not in itself exclude the jurisdiction of civil courts. The statute may specifically provide for ousting the jurisdiction of civil courts; even if there was no such specific exclusion, if it creates liability not existing before and gives a special and particular remedy for the aggrieved party, the remedy provided by it must be followed. The same principle would apply if the statute had provided for the particular forum in which the remedy could be had. Even in such cases, the civil court’s jurisdiction is not completely ousted.” (iii) “University of Punjab Vs. Miss Wajuha Arooj (2008 SCMR 1577) the august Supreme Court held that:- “Where the action or order passed by the public officer, tribunal or authorities is within the four corners of jurisdiction, the Civil Court cannot entertain the lis. But where the order passed or act done was void, or without jurisdiction, or mala fide, or in excess of jurisdiction, or otherwise not in accordance with law, or based on fraud, the civil Courts would have jurisdiction to interfere with the same.” (iv) WHEN SERIOUS QUESTION OF FACT IS INVOLVED IN THE CONTROVERSY: In a case wherein serious question of facts are involved for the determination of which framing of issues and recording of evidence is necessary and the special tribunal has not been given such powers, then the civil court has the power to adjudicate upon the matter as the special tribunal has no power to effectively decide the fate of the matter in issue. In Muhammad Khan and others Vs. Province of Punjab and others (2007 SCR 1169) the honorable Supreme Court held: “It is well settled by now that “a purely administrative officer, who is empowered to pass an order if certain circumstances exist, has no jurisdiction to determine those circumstances and the objective existence of those circumstances is an essential condition of the validity of his order. In respect of every order passed by him, the court can make an enquiry and if it finds that all the circumstances needed for passing the order were not present, it will declare the order to be void…………” 25. In respect of every order passed by him, the court can make an enquiry and if it finds that all the circumstances needed for passing the order were not present, it will declare the order to be void…………” 25. From the decisions of the Supreme Court, the following conclusion emerges:- Notwithstanding the bar imposed by the legislature on the jurisdiction of the civil court, yet the civil court, may take cognizance of case in cases where, (a) When the order / action has been taken in mala fide and malicious manner. (b) When the order has been passed or authority has been exercised in excess of jurisdiction or without jurisdiction. (c) When serious question of fact is involved which cannot be decided without recording the evidence. 26. From the discussions with regard to the validity of impugned order, it is evident that it is a case where disputed question of fact is involved which cannot be decided without recording evidence. Moreover, the action taken by the appellant was without adopting the procedural fairness. Therefore, this Court holds that civil court has got jurisdiction. 27. Contending that principles of natural justice has been followed before passing orders and therefore, the order is valid, the learned counsel for the appellants relied upon the judgment reported in 1995 AIHC 2917 (Madras High Court) (G.F.C.Alsthan India Ltd. v. T.N.E.B., Madras), and this contention cannot be accepted because the facts are otherwise, which indicate that principles of natural justice had not been followed in letter and spirit. 28. Yet another contention of the learned counsel for the appellants is that the judgment of the Courts below suffer from errors of law in failing to notice that limitation bars only the remedy by way of suit and does not extinguish the right. The context in which such a proposition has been raised has not been explained. However, the appellants can exercise the right to disconnect provided the right to recover the compensation charges is established. When the appellants have not established the legality of the right to recover compensation charges, then the consequential right to disconnect the service connection cannot be exercised. Therefore, this question of law is answered against the appellant. 29. In the result, the second appeal is dismissed. When the appellants have not established the legality of the right to recover compensation charges, then the consequential right to disconnect the service connection cannot be exercised. Therefore, this question of law is answered against the appellant. 29. In the result, the second appeal is dismissed. The judgment and decree, dated 18.11.2003, passed by the Principal District Judge, Coimbatore, in A.S.No.78 of 2002, confirming the decreeing of the suit in O.S.No.1558 of 2000 by the III Additional Sub Judge, Coimbatore, is confirmed. No costs.