The Executive Engineer, (Distribution), Coimbatore Electricity Distribution Circle vs K. Balasubramaniam

K.B.K. Vasuki, J.

The first defendant/Tamil Nadu Electricity Board in O.S. No. 1739 of 1996 is the appellant herein. The suit was filed by the respondent/plaintiff for declaring the disconnection of Service Connection in Nos. 190, 266 and 151 Narasimhapuram for the nonpayment of the amount, alleged to be due on account of the alleged misappropriation of energy by the second defendant/tenant as illegal and for directing the first defendant to restore the Service Connection Nos. 190, 266 and 151 of Narasimhapuram.

The circumstances under which the suit came to be filed are as follows: The plaintiff is the owner of the property having Service Connection Nos. 190 and 266 and he leased out the same to the second defendant and the second defendant, who was enjoying the supply of energy, had been duly making payment for the consumption of energy as per the bills supplied to him. While so, the first defendant/Tamil Nadu Electricity Board, during the year 1988, raised an objection as if the second defendant/tenant committed an act of theft of energy in respect of two service connections out of three service connections. TNEB also initiated criminal proceedings against the second defendant for the theft of energy. Pending criminal proceedings, the first defendant/TNEB sought to disconnect the electricity connection, which compelled the second defendant/tenant to approach the Civil Court by way of suit in O.S. No. 47 of 1988 seeking relief of permanent injunction restraining the first defendant/Tamil Nadu Electricity Board, not to disconnect the service connections.

The suit was decreed as prayed for on the ground that pending criminal proceedings, the first defendant/TNEB had no right to send any provisional assessment notice or to disconnect the electricity connection, that too, without following the procedure under law. Aggrieved against the same, TNEB preferred A.S. No. 165 of 1993 and the appeal was allowed on the sole ground that the plaintiff being the consumer, had efficacious alternative remedy available under the relevant provisions of Terms and Conditions of supply of Electricity of Tamil Nadu Electricity Board and the plaintiff cannot approach the Civil Court without exhausting the remedy and the plaintiff is not entitled to seek discretionary relief of permanent injunction. While doing so, the lower appellate Court has found that the tenant was issued an enquiry notice and he did not turn up for enquiry and was served with further notice calling upon him to pay 50% of the amount assessed, which is according to TNEB, revenue loss incurred by the Department.

While so, the criminal prosecution came to end, thereby acquitting the second defendant/tenant from the charges framed against him. Thereafter, the Department proceeded to demand the amount assessed as revenue loss to the department from the consumer i.e. from the owner of the property, in whose name, the service connections are sanctioned and the failure of the owner to pay the amount demanded led to disconnection of the electricity connection.

Aggrieved by the same, the owner of the property filed the suit in O.S. No. 1739 of 1996, for declaration and mandatory injunction and to restore the service connections. The main contention raised therein is that without holding any enquiry and without proving the act of theft of energy by the second defendant and without issuing notice to the consumer either for enquiry or before disconnection, the disconnection effected is illegal. The plaintiff has also contended that failure of non-payment of dues relating to one of the service connections will not entail disconnection of other service connection. However, the trial Court negatived the objection so raised and arrived at conclusion that the second defendant tenant committed an act of theft and misappropriated the supply of energy and caused revenue loss to the department, as such, the plaintiff/service holder is liable to pay the loss incurred and assessed by the department and accordingly dismissed the suit. Aggrieved against the same, the plaintiff preferred A.S. No. 110 of 2000.

The lower Appellate Court, after detailed discussion of the relevant factors, arrived at conclusion that the disconnection, without proving the theft of energy, that too, when the consumer had not committed any default in payment of demand as admitted by DW1 is illegal and allowed the appeal. Hence, the Second Appeal by the department.

The Second Appeal is admitted on the following Substantial Questions of Law:

"1. Whether the disconnection of service connection Nos. 190, 296 and 151 belong to the owner of the premises for the non-payment of dues in one of three service connections of the respondent is legal?

Whether the lower appellate Court is legally justified in granting the relief on the basis of acquittal granted by the Criminal Court to reject the proceedings of the appellate Court initiated as per the terms and conditions of the supply which is totally different in content and consequence?"

Heard the rival submissions made on both sides and perused the records.

Insofar as the first Substantial Question of law is concerned, the TNEB has drawn the attention of this Court to clause 19.18 of Terms and conditions of Supply of Electricity of Tamil Nadu Electricity Board, which reads as follows:

"Where any consumer having more than one service connection, defaults in payment of dues relating to any one of the service connections, the Board may cause other service connections in the name of the consumer to be disconnected till all the arrears due for all the service connections are paid, notwithstanding the fact that the service connections are covered by separate agreements."

The reading of clause 19.18 makes it very clear that defaults in payment of dues relating to any one of the service connections will lead to disconnection of other service connections till all the arrears due for all the service connections are paid.

In the present case, the arrears as claimed by the Department/TNEB is admittedly not paid either by the plaintiff/consumer, in whose name, the service connection was sanctioned or by the tenant, who actually enjoyed the same. Hence, the plaintiff cannot be permitted to deny the liability to pay arrears in respect of one of the service connections provided that the Department is able to substantiate the factum and the quantum of arrears payable by the consumer. Here is the case, wherein, the factum and the quantum of arrears payable by the consumer is not for the energy actually consumed by the plaintiff, in whose name the service connection was obtained and the act of theft of energy was committed only by the tenant. Admittedly, the tenant was also acquitted from the charges relating to theft of energy by the Criminal Court. Further, the arrears claimed from the plaintiff is without issuing him any notice and without giving him any opportunity of personal hearing. The demand was made and disconnection of the electricity service connection was effected by the department before the conclusion of the criminal proceedings that too, without holding any enquiry. According to the appellant/TNEB, the enquiry notice was issued to the tenant-occupier and he did not appear for enquiry and he did not make payment of 50% of the amount representing provisional assessment as revenue loss to the department. Admittedly, no such notice was issued to the plaintiff/consumer either to attend any enquiry and no notice was also issued to the plaintiff regarding provisional assessment of amount payable. That being so, the entire proceedings is in violation of the principles of natural justice, as such the objection raised herein that without challenging the assessment and without exhausting the statutory remedy, the plaintiff cannot be permitted to question the disconnection, deserves no merits and acceptance.

The fact remains undisputed is that the plaintiff/consumer was not given any notice or opportunity of personal hearing for enquiry relating to theft of energy. Likewise, the consumer was not given any notice before disconnecting all the service connections. The lower appellate court has in paras 20 and 21 of its judgment, extracted the procedure as laid down under clauses 6.01, 6.02, 6.03 and 8.05 of the Terms and Conditions of Supply of Electricity of Tamil Nadu Electricity Board for collection of compensation charges and for taking other action on detection of violation, if any, by the consumer and for collection of extra levy on detection of theft of energy. The clauses above referred to contemplate show cause notice to the consumer and detailed enquiry and also provide for appeal remedy against any order passed levying either compensation charges or extra charges for theft of energy or disconnection for non payment of either compensation charges or extra charges levied. The procedure contemplates that on detection of violation or theft of energy the officer authority will issue a notice to the consumer to show cause as to why extra levy should not be levied. If the consumer fails to send his explanation within the stipulated time or if the explanation is not satisfactory, the officer authorised shall conduct a detailed enquiry by giving reasonable opportunity to the consumer to represent his case with evidence, if any and an order will be passed, assessing extra levy and the copy of the order will be duly sent to the consumer, asking him to pay the extra levy in equal monthly instalments.

As rightly found by the lower appellate court, the procedure laid down under the terms and conditions has been seriously violated in the present case. However, the Tamil Nadu Electricity Board is unable to make out any reason or ground to enable this Court disagree with the finding of the lower appellate court that the Electricity Board before passing any order holding the consumer or tenant as guilty for the act of theft of energy and before levying any extra charges for such act of theft energy so consumed, failed to issue show cause notice and failed to hold any enquiry in accordance with the procedure so laid down under law. It is but pertinent to mention at this juncture that the order of acquitting both the owner and tenant by the criminal court for the act of theft of energy assumes greater significance herein. The Electricity Board has also not followed the procedure before disconnection of the service connection as laid down under section 24 of the Electricity Act. When the relevant provisions of law under section 24 of the Electricity Act contemplates prior notice to the owner before disconnection, the same is violated by issuing notice after disconnection was made. Though the learned standing counsel for the appellant TNEB would seek to rely on the findings of the lower appellate court in AS. 165/1993 arising out of O.S. No. 417 of 1998 instituted by the tenant in this regard, the same is not binding on the owner, who is neither party to the proceedings nor is given any notice for such enquiry, as such, the principle of res judicata is not applicable to the present case.

Thus way, the discontinuance of service connection in violation of the procedure laid down under terms and conditions of the supply of Electricity Board in respect of the same is not only unlawful, but also against the principles of natural justice. The finding of the Lower Appellate Court to that effect is based on sufficient materials and supported by proper reasoning. Therefore, the appellant TNEB has not made out any ground much less any substantial question of law to upset with the well considered judgment of the lower appellate court declaring the disconnection of service connection in question as illegal and granting mandatory injunction by directing the Tamil Nadu Electricity Board to restore the service connection, which was already disconnected.

Viewing from any angle, the impugned judgment and decree of the lower appellate court calls for no interference by this court and the substantial questions of law are accordingly answered in favour of the respondent/plaintiff.

In the result, the Second Appeal is dismissed. No costs.