S.M. Amarchand Sowcar (died) and others vs Tamil Nadu Electricity Board and others

This second appeal is directed as against the Judgment and decree of the learned Subordinate Judge of Kancheepuram on 27.2.1986 in

A.S.No.1 of 1984, confirming the Judgment and decree passed by the learned District Munsif at Kancheepuram on 5.5.1983 in O.S.No.807 of

1981.

The plaintiff in the suit is the appellant in the present second appeal.

The suit is filed for declaration that the demand made by the defendants for Rs.2,500.95 in their letters dated 23.7.81 and 15.8.81 are illegal

and ultravires and for a consequential injunction restraining the defendants from disconnecting the plaintiff''s service connection, No.249. According

to the plaintiff he is the owner of the premises No.254-A, Raja Street, Wallajabad and he purchased it from one Deivasigamani Achari by a

registered sale deed dated 24.6.1967 and ever since then he is in possession and enjoyment of the property as the owner. The vendor was having

an electric service connection in S.C.696, in the said house for his machine and after he sold the house, he vacated the house and also removed the

machinery. Thereafter the plaintiff is in possession and enjoyment of the house and paying the charges. There is no machinery in house No.254-A,

after 24.6.67. The plaintiff is living in his residential house No.46, Raja Street, Wallajabad and this house has a separate electric service connection

in S.C.No.249 and he is paying the usual consumption charges. Whileso, the plaintiff was surprised to receive a letter dated 23.7.81 from the

second defendant claiming a sum of Rs.2,500.95 due by the plaintiff''s vendor for the period of January 1970 to June 1976 and stating that the said

sum has to be paid in instalments. The plaintiff received the bill dated 15.8.81 claiming the first instalment of Rs.400.95 along with other

consumption charges and threatening to disconnect the service of the plaintiff for non payment of the said bill amount. According to the plaintiff the

entire demand was illegal and baseless. He also pleaded that the claim from January 1971 was barred by limitation. He also further contended that

the service connection No.249 cannot be disconnected for non payment of charges in Service connection No.696 and under the guise of demand,

service connection No.249 cannot be disconnected. Hence this suit.

While opposing the said pleadings, the Tamil Nadu Electricity Board contended that it was true that a notice was issued to the plaintiff

demanding a sum of Rs.2,500.25. But the claim of the plaintiff that the Boards claim was barred by limitation was not correct. According to the

defendants, the original owner was having two service connections and due to non payment of charges in S.C.No.696 it was disconnected by the

Board. The consumer was liable to pay annual minimum charges though the service connection was disconnected, till the consumer expresses his

unwillingness or willingness to discontinue the supply of energy. There was no request from the service holder upto 1974-75. The agreement

period was over and till that time also the defendants are entitled to claim annual minimum charges. Therefore the said sum as included in the bill in

question, which was also standing in the name of Deivasigamani Achari was maintainable. On 25.7.81 itself the defendants had sent a letter to the

service holder and a copy of the same to the plaintiff and the failure to respond to the said notice would entitle the defendants to disconnect the

power supply. Since there is another life service, the claim of bar of limitation cannot be maintained. It is also further pleaded that the suit was

barred under the provisions of Indian Electricity Act and the Civil Court had no jurisdiction to entertain the suit.

On a consideration of said pleadings, oral and documentary evidence, the trial court held that the demand by the Electricity Board was

sustainable and with the result the suit was dismissed. On appeal also the learned appellate Judge agreeing with the findings of the trial court

dismissed the appeal. Hence the present second appeal.

The learned counsel for the appellants seeks to question the Judgments of the courts below on the ground that (1) The courts below erred in

ignoring the law of limitation and the claim which was made beyond three years was not maintainable and that (2) dues in respect of one service

connection cannot be claimed in respect of another service connection.

Mr.V. Rengabashyam, the learned counsel for the Electricity Board, has sought to sustain the Judgments of the courts below and had contended

that Section 24 of the Indian Electricity Act, 1910 (hereinafter called as the Act) entitles the Board to cause disconnection of the service for non

payment of the dues and there was no bar of limitation for doing so. Hence the appellant was not entitled to the prayer for injunction. As regards

the claim of dues in respect of disconnection of service for non-payment of dues of another service connection, the learned counsel for the

Electricity Board would refer to Clause 40 (b) of the Terms and Conditions of supply. He would also rely on a few decisions in support of his

submissions, which are hereinafter referred to.

On a perusal of the Judgment of the trial Court, it is seen that the court has mixed up two separate issues as mentioned above resulting in a

confused approach. Reference is made to Section 24(1), as if the said provision entitles the Board to disconnect one service connection for default

committed in respect of another service connection. Apparently there is a wrong mix up of the said provision with the terms of agreement. This

erroneous approach had been mechanically confirmed by the appellate court also. Therefore it is necessary to consider the relevant provisions in

the light of the facts of the present case.

The facts relating to this appeal has already been referred to above in the narration of the pleadings and to the extent of the actual issues arising

for consideration in this second appeal, there is no dispute between the parties. Due to non payment of dues in service connection No.696,

demand was raised in Service connection No.249, which was also sought to be disconnected. There is also no dispute over the fact that dues in

question was beyond the period of limitation.

On the issue as to whether demand can be raised in respect of another service connection. Clause 40(b) of the terms and conditions of supply

is very clear.

40(b) ""Disconnection of service for non-payment of dues in respect of another service - Where any consumer, having more than one connection

defaults in payment of dues relating to one of the connections and unconnected minimum charges due in respect of any intended new connection,

the Board may cause the other connections in the name of the consumer to be disconnected till all the arrears due on all services and arrears of

unconnected minimum charges in respect of the new intended connection are paid notwithstanding the fact that the services are separate and are

covered by separate agreements and notwithstanding that one or other of the services is under disconnection for non-payment of charges or other

reasons.

The parties are bound by the terms of agreement and therefore the plaintiff cannot be heard to contend otherwise.

The issue pertaining to limitation assumes importance, having regard to the plaint claims. The action of the Board, which is called in question is

their attempt to disconnect the supply for the arrears. It is the consumer, who has come to the court seeking for a declaration that the demand of

the Board was illegal and this is not a suit at the instance of the Board for recovery of its dues. In this context of Section 24 of the Act assumes

significance. The Section itself signifies only discontinuance of the supply to the consumer, who is at default. There is no time limit or restrictions on

the board to disconnect the supply. In fact the provision envisages that the supply can be cut off immediately after the default and without seeking

to recover the dues by filing a suit. This right to disconnect is absolutely independent of the Board''s right to recover the dues. Section 24(1) of

Indian Electricity Act, 1910 is as follows:-

Discontinuance of supply to consumer neglecting to pay charge - (1) Where any person neglects to pay any charge for energy or any sum,

other than a charge for energy, due from him to a licensee in respect of the supply of energy to him, the licensee may, after giving not less than

seven clear days'' notice in writing to such person and without prejudice to his right to recover such charge or other sum by suit, cut off the supply

and for that purpose cut or disconnect any electric supply line or other works, being the property of the licensee, through which energy may be

supplied, and may discontinue the supply until such charge or other sum, together with any expenses incurred by him in cutting off and re-

connecting the supply, are paid, but no longer.

The fact that the right to disconnect is independent of recovery of the dues is made clear by the expression ""without prejudice"" to his right to

recover such charge or other sum by suit. It is up to the Board to file a suit or not and if the board seeks to file a suit., it should be filed within the

period of limitation. But the said right to file a suit for recovery may or may not be exercised by the Board but the right to disconnect the supply is

always available and is not circumscribed by any limitation nor is it dependent on the existence of the Board''s right to recover the dues by filing a

suit. Therefore the limitation, which is applicable to the Board for filing a suit is irrelevant and hence the objection taken by the consumer cannot be

sustained. This is very obvious on a plain reading of Section 24. Reference to the following rulings will also be useful in this context.

In M/s. Swastic Industries Vs. Maharshtra State Electricity Board, , the Supreme Court held that the power of the licensee to discontinue

supply of electricity in case of non payment was available and was independent of the power of the Board to file a suit for recovery of the dues.

Raju, J. (as he then was) in his Judgment reported in Asmath Begum Vs. The Superintending Engineer, Tamil Nadu Electricity Board and

Others, held that the law of limitation was applicable to and can only govern actions instituted before the competent Civil Court or the statutory

authority by the Electricity Board and the power of disconnection is available u/s 24 of the Act and is not lost by any period of limitation stipulated

in the Limitation Act, 1963.

Therefore, it is clear that the plaintiff will not be entitled to the prayer of injunction to restrain the defendant from disconnecting the service

connection.

In the context of the relief of injunction, the learned counsel for the Electricity Board also refers to the decision of the Supreme Court reported

in Punjab State Electricity Board and Another Vs. Ashwani Kumar, . In that Judgment, the Supreme Court held that the suit filed by the plaintiff

seeking for permanent injunction restraining the Board from collecting or recovering the amount demanded without availing the alternative remedy

provided under the Electricity Act, cannot be entertained by the Civil Court.

This leaves us to consider the issue as to whether the plaintiff is entitled to a relief of declaration in the absence of a consequential relief for

injunction. I am inclined to hold that in the present case, the plaintiff will not be entitled to the relief for at least two reasons.

Firstly, it is true that u/s 34 of the Specific Relief Act a prayer for declaration can be granted without any further relief. But on a reading of the

said provision, it will be clear that such a discretion to grant the limited prayer, is restricted to cases where any person claims to be entitled to any

legal character or to any right as to any property. The present suit is not a suit where any prayer is made for a declaration to any legal character or

to any right as to any property. The prayer to declare the demand as illegal, cannot be brought within the scope of Section 34 of Specific Relief

Act.

Secondly, it is also to be remembered that the relief of declaration is to be granted only at the discretion of the court, on being satisfied with the

necessity to grant such a relief. Having regard to the fact that in the present case, the relief of declaration would only be futile, known discretion can

be exercised in favour of grant of such a decree. It will be a decree which will not have the effect of granting any right in favour of any of the parties

or divesting the rights of opposite party in any manner. The Board will be still entitled to enforce payment of the dues as a result of threat of

disconnection and no court can grant a futile decree or order. The courts cannot grant a declaration when it is of no utility and can be ignored by

the party against whom the declaration is issued. The principle of ""brutum fulmen"" is applicable to the present case, which is defined in Blacks

Dictionary as follows:-

An empty noise; an empty threat, a Judgment void upon its face which is in legal effect no judgment at all, and by which no rights are divested, and

very much none can be obtained, and neither binds nor bars any one.

The said principle has been invoked in several rulings of our courts and to cite only a few, in the following cases, the said principle has been

recognised.

(1)pranlachhi Kuer v. Jageshar Sahi and others, 106 I.C 423; (2) Lakshmi Chand Vs. Lila Dhar, ; and (3) Raghunath and Others Vs. The

Municipal Board and Others, .

Therefore the plaintiff has not made out a case for this court to grant the discretionary relief of bare declaration and therefore in the said context

also he has to fail.

In the result there are no merits in the above second appeal and the same is dismissed. No Costs.