A.R.V. Jegadeesan vs The Assistant Engineer, The Executive Engineer and The Superintending Engineer, Tamil Nadu Electricity Board

P.R. Shivakumar, J.—The Plaintiff in O.S. No. 18 of 2007, on the file of the court of District Munsif, Sattur is the Appellant in the present

second appeal. The Defendants therein are the Respondents in the present second appeal. The Respondents herein are the Officers of the Tamil

Nadu Electricity Board. On inspection, the Inspecting authority of the Tamil Nadu Electricity Board found that the electricity connection given to

the Appellant/Plaintiff for agricultural purpose was used for another purpose, namely commercial purpose and hence, submitted a report on

21.06.2003, a xerox copy of which has been marked as Ex.A1. When a copy of the said report was supplied to the Appellant/Plaintiff, the

Appellant/Plaintiff submitted a written objection, dated 11.10.2003, a copy of which has been marked as Ex.A2. After considering the objections

and affording an opportunity, the second Respondent herein/second Defendant passed an order on 24.02.2004, directing the Appellant/Plaintiff to

pay a sum of Rs. 2,500/- towards damages and also directing modification of the tariff from one for agricultural purpose to one for commercial

purpose. As against the said order of the second Respondent/second Defendant, the Appellant/Plaintiff herein filed an appeal u/s 127 of the

Electricity Act to the third Respondent/third Defendant. A copy of the appeal petition has been marked as Ex.A2. After enquiry, the third

Respondent/third Defendant passed an order confirming the order passed by the second Respondent/second Defendant. There after, the Appellant

seems to have preferred a further appeal to the Chief Engineer, Tamil Nadu, Electricity Board, Tirunelveli and at the same time filed the above suit

O.S. No. 18 of 2007, on the file of the District Munsif, Sattur suit for: a declaration that the proceedings of the third Respondent bearing

proceeding No. 2/2004-2005 is null and void; for a consequential relief of permanent injunction restraining the Respondents/Defendants, their men

and agents from in any way disconnecting the service connection of the Appellant/Plaintiff bearing S.C. No. 313 and for costs.

The suit was resisted by the Respondents/Defendants denying the factual allegations made by the Appellant/Plaintiff regarding the user of

electricity and also contending that such a suit in a civil court was barred by the provisions of the Electricity Act.

The learned trial judge, after trial, held that the suit was not maintainable as it was barred u/s 145 of the Electricity Act. As against the said

decree of the trial court dated 07.03.2008, the Appellant herein/Plaintiff preferred an appeal on the file of the learned Sub-ordinate Judge, Sivakasi

as A.S. No. 27 of 2008. The learned first appellate Judge, namely the Sub-ordinate Judge, Sivakasi, concurred with the view taken by the trial

judge and accordingly dismissed the appeal confirming the decree passed by the trial court under which the suit of the Appellant/Plaintiff stood

dismissed. After having failed in both the courts below, the Appellant/Plaintiff has knocked at the doors of this Court with the present second

appeal.

The submissions made by Mr. S. Subbiah, learned Counsel for the Appellant were heard. The memorandum of second appeal, copies of

judgments of the courts below and other documents produced in the form of typed-set of papers were not perused.

The short point and the alleged substantial question of law that arises for consideration in the second appeal is:

Whether a suit in a civil court against the order passed by the Assessing Officer u/s 126 of the Electricity Act or an order passed by the appellate

authority u/s 127 of the Electricity Act is not barred by the provisions of the Electricity Act, especially by Section 145 of the Electricity Act?.

The learned Counsel for the Appellant would contend that though Section 145 of the Electricity Act provides a bar for entertaining a suit against

the order of the Assessing Officer or the appellate authority, the said bar is confined to the relief of injunction alone and that when the order of such

authority is challenged to be null and void, it should be construed that the bar provided therein shall not be applicable to such a suit. It is also the

contention of the learned Counsel for the Appellant that the bar provided u/s 145 of the Electricity Act is to be interpreted to mean that the Civil

Court''s jurisdiction to entertain a suit against the orders of the Assessing Officer or the appellate authority is barred when it is filed without

exhausting the statutory remedy of appeal provided under the Act and that since the present suit has been filed after exhausting the remedy of

appeal available u/s 127 of the Electricity Act, the bar provided u/s 145 is not attracted to the suit of the Appellant/Plaintiff. This Court is not in a

position to countenance the above said argument advanced by the learned Counsel for the Appellant. For better appreciation, the entire text of

Section 145 of the Electricity Act, 2003 is reproduced hereunder:

Civil Court not to have jurisdiction.--No Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which

as assessing officer referred to in Section 126 or an appellate authority referred to in Section 127 or the adjudicating officer appointed under this

Act is empowered by or under this Act to determine and no injunction shall be granted by any court or the authority in respect of any action taken

or to be taken in pursuance of any power conferred by or under this Act.

It clearly refers to the matters regarding which power is given to the Assessing Officer u/s 126 and to the appellate authority u/s 127 as the

matters that are excluded from the scrutiny of the civil court in a suit. Not only referring to the two provisions viz., Section 126 and 127 under

which powers are given to the assessing officer and the appellate authority for the exclusion of such matters from the jurisdiction of the civil court,

Section 145 of the Electricity Act also brings the matters within the bar provided therein. Matters regarding which the adjudicating officer

appointed under the Act is empowered to determine. We are not concerned with the other clause, relating to the matters in which an Adjudicating

Officer appointed under the Act or empowered or under the Act to determine for the simple reason, the case on hand clearly falls under the

definition of ""matters regarding which Assessing Officer u/s 126 and the appellate authority u/s 127 are given power to determine.

Section 126 of the Act reads as follows:

Assessment- (1) If on an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found

connected or used, or after inspection of records maintained by any person, the assessing officer comes to the conclusion that such person is

indulging in unauthorised use of electricity, he shall provisionally assess to the best of his judgment the electricity charges payable by such person or

by any other person benefitted by such use.

(2) The order of provisional assessment shall be served upon the person in occupation or possession or in charge of the place or premises in such

manner as may be prescribed

(3) The person, on whom an order has been served under Sub-section(2), shall be entitled to file objections, if any, against the provisional

assessment before the assessing officer, who shall, after affording a reasonable opportunity of hearing to such person, pass a final order of

assessment with in thirty days from the date of service of such order of provisional assessment, of the electricity charges pay able by such person.)

(4) Any person served with the order of provisional assessment may, accept such assessment and deposit the assessed amount with the licensee

within seven days of service of such provisional assessment order up on him.

(5) If the assessing officer reaches to the conclusion that unauthorised use of electricity has taken place, the assessment shall be made for the entire

period during which such unauthorised use of electricity has taken place and if, however, the period during which such unauthorised use of

electricity has taken place cannot be ascertained, such period shall be limited to a period of twelve months immediately preceding the date of

inspection.)

(6)The assessment under this section shall be mad eat a rate equal to (twice) the tariff applicable for the relevant category of services specified in

sub section(5).

Explanation.--For the purpose soft his section,-

(a) ""assessing officer"" means an officer of a state Government or Board or licensee, as the case may be, designated as such by the State

Government;

(b) ""Unauthorised use of electricity"" means the usage of electricity-

(i) by any artificial means; or

(ii) by a means not authorised by the concerned person or authority or licensee; or

(iii) through a tampered meter; or

(iv) for the purpose other than for which the usage of electricity was authorised; or

(v) For the premises or areas other than those for which the supply of electricity authorised;)

As against the order of assessment made u/s 126, an appeal is provided u/s 127 of the Act. Section 127 reads as follows:

Appeal to appellate authority.--(1) Any person aggrieved by the final order made u/s 126 may, within thirty days of the said order, prefer an

appeal in such form, verified in such manner and be accompanied by such fee as may be specified by the State Commission, to an appellate

authority as may be prescribed.

(2) No appeal against an order of assessment under Sub-section(1) shall be entertained unless an amount equal to half of the assessed amount is

deposited in cash or by way of bank draft with the licensee and documentary evidence of such deposit has been enclosed along with the appeal.

(3) The appellate authority referred to in Sub-section(1) shall dispose of the appeal after hearing the parties and pass appropriate order and send

copy of the order to the assessing officer and the Appellant.

(4) The order of the appellate authority referred to in sub section(1)passed under Sub-section(3)shall be final.

(5) No appeal shall lie to the appellate authority referred to in Sub-section(1)against the final order made with the consent of the parties.

(6) When a person defaults in making payment of assessed amount, he, in addition to the assessed amount, shall be liable to pay, on the expiry of

thirty days from the date of order of assessment, an amount of interest at the rate of sixteen per cent per annum compounded every six months.

Admittedly, the decision made by the second Defendant u/s 126 of the Act was challenged before the third Respondent u/s 127 of the

Electricity Act. The appeal was also decided against the Appellant herein/Plaintiff. It is petent that not only the second Respondent and the third

Respondent have been conferred with the powers to make the determination and pass orders u/s 126 and 127 respectively, but, also the said

powers were invoked and decisions were obtained from them. The language of Section 145 is so clear and unambiguous that no civil court, in

respect of any matter which an Assessing Officer referred to u/s 126 or an appellate authority u/s 127, is empowered to determination. Therefore,

there is no need to refer to any of the precedents to arrive at the conclusion that the said section will operate as a total bar for the present suit in

question. It should also be noticed that besides seeking declaration that the impugned order is null and void, the Appellant/Plaintiff has also sought

for an injunction not to disconnect the service connection. The same is covered by the later part of Section 145. In that respect also, it should be

held that the suit in respect of the either of the reliefs shall stand barred by the provisions u/s 145 of the Electricity Act.

In this regard, the attention of this Court was drawn to the judgment of a learned Single Judge of this Court sitting on this Bench(Madurai

Bench of Madras High Court) made in The superintending Engineer, Virudhunagar Electricity Distribution Circle, Tamil Nadu Electricity Board,

Virudhunagar .vs. Murali Raja reported in 2008 (3) CTC 395. The learned Single Judge of this Court in the said case, after referring to three

earlier judgments of other single Judges of this Court and also the judgment of the Honorable Apex Court in Punjab State Electricity Board and

Another Vs. Ashwani Kumar, has given a clear finding that the suit of the present nature is not maintainable since barred by Section 145 of the

Electricity Act, 2003. The following excerpt from the judgment of the Honorable Apex Court in Punjab State Electricity Board and Another Vs.

Ashwani Kumar, was also referred to by the learned single Judge and this Court also, for better appreciation deems it fit to reproduce the same

which runs as follows:

The question then arises whether the Civil Court would be justified in entertaining the suit and issue injunction as prayed for?. It is true, as

contended by Shri Goyal, learned Senior Counsel, that the objections were raised in the written statement as to the maintainability of the suit but

the same were given up. Section 9 of the Code of CPC provides that the Civil Court shall try all suits of civil nature, subject to pecuniary

jurisdiction, unless their cognizance is expressly or by necessary implication barred. Such Suit would not be maintainable. It is true that ordinarily,

the Civil Court has jurisdiction to go into and try the disputed questions of civil nature, where the fundamental fairness of procedure has been

violated. The statutory circulars adumbrated above do indicate that a fundamental fairness of the procedure has been prescribed in the rules and is

being followed. By necessary implication, the cognizance of the civil cause has been exclused. As a consequence, the Civil Court shall not be

justified in entertaining this Suit and giving the declaration with out directing the party to avail of the remedy provided under the Indian Electricity

(Supply) Act and the Instructions issued by the Board in that behalf from time to time as stated above.

Shri Goyal has contended that the authorities do not hear the parties nor give a reasoned order. Therefore, the parties cannot be precluded to

avail of the remedy of a Suit. We can not accept such a broad and generalized proposition. When the provision for Appeal by way of review has

been provided by the statutory instructions, and the parties are directed to avail of the remedy, the authorities are enjoined to consider all the

objections, raised by the consumer and to pass, after consideration, the reasoned order in that behalf, so that the aggrieved consumer, if not

satisfied with the order passed by the Board/Appellate Authority, can avail of the remedy available under Article 226 of the Constitution.

Therefore, by necessary implication, the appropriate competent authority should hear the parties, consider their objections and pass the reasoned

order, either accepting or neatening the claim. Of course it is not like a judgment of a Civil Court. It is then contended that the Respondent has

been subjected to pay huge amount of bill in a short period; hence, it is a case for interference. We find no force in the contention. May be that due

to the advice given by the counsel, the Respondent obviously has availed of the remedy of the Suit, instead of departmental Appeal. In our view,

by necessary implication the suit is not maintainable. Therefore, the Respondent is at liberty to avail the remedy of Appeal with in six weeks from

today and raise the factual objections before the Board and the Board/Appellate Authority would consider and dispose of them, as indicated

earlier, on merits.

The said judgment of the Honorable Apex Court makes it abundantly clear that Electricity Act, especially Section 145 of Electricity Act, 2003,

bar a suit against an order passed u/s 126 or 127 of the Act by the Assessing Officer or the appellate authority. The learned Single Judge while

deciding the earlier matter has also give additional reasons for arriving at such a conclusion which I am inclined to accept it to be my view also.

There is no scope for differing from the view taken by my learned brother Judge in the earlier judgment which was brought to my notice.

For all the reasons stated above, this Court comes to the conclusion that the suit of the Appellant/Plaintiff itself is not maintainable and hence,

on that short point alone, the second appeal deserves to be dismissed.

Accordingly, the Second Appeal is dismissed Consequently, connected Miscellaneous Petition is dismissed. No costs.