The Superintending Engineer, Periyar Electricity Distribution Circle, Erode and Others vs Pavathal (deceased) and Others

A. Ramamurthi, J.—The unsuccessful defendants in both the courts below are the appellants.

The case in brief is as follows:-

The plaintiffs filed a suit for permanent injunction restraining the defendants and their men from enforcing the notice No. 580 of 1985 dated

25.3.1985 and disconnect the service connection No.56, Karukkampalayam, Lakkapuram Pudur Village, Erode Taluk. Plaintiffs 2 and 3 are

carrying on business under the name and style of Palani Andavar Oil Mills at Karukkampalayam, Lakkapuram Pudur Village, Erode Taluk.

Originally the said mills belonged to the first plaintiff. In the family partition dated 30.12.1983, plaintiffs 2 and 3 have been allotted under ""C''

schedule along with the service connection. Ever since the date, plaintiffs 2 and 3. are the owners of the properties and the oil mill is provided with

service connection No.56. They are consuming energy and paying the electricity charges to the first defendant. The second defendant on

20.3.1985 filed a complaint against plaintiffs I to 3 before the Modakkurichi Police in Crime No.37 of 1985 for alleged offence u/s 379, IPC read

with Section 33 of Indian Electricity Act. It is stated that the second defendant and others inspected the place of business on 20.3.1985 and found

the seals of the meter in the place of business of the plaintiff are not genuine. The plaintiffs and their men have no occasion to meddle with the meter

or its seals. They have not committed any offence. The inspection is illegal and no action can be taken on the basis of the inspection. The second

defendant having referred the matter to the police, it is premature for the defendants to arrive at any conclusion. The 2nd defendant on 26.3.1985

served a show cause notice to the first plaintiff threatening to disconnect the service connection. The first plaintiff also sent a reply. The defendants

are acting arbitrarily without looking into the facts and they threatened to disconnect the service connection and hence the suit.

The first defendant filed a written statement adopted by defendants 2 and 3. On a report from the Junior Engineer, Operation and Maintenance,

Lakkapuram that the meter connected to service connection No.56 of Karukkampalayam distribution was burnt and the second defendant along

with the Assistant Engineer, Meter Relay Test, Erode and the Assistant Divisional Engineer, Anti Power Theft Squad, Erode proceeded to

Karukkampalayam and inspected the service after notice to one T.Sadasivam, an Accountant in the Mill belonging to the plaintiffs. The inspection

was done in the presence of said Sadasivam. None of the plaintiffs was available in the spot. During inspection, it was discovered that the original

seals affixed to the meter were missing and in that place, counterfeit seals had been affixed. Apart from that having regard to the connected load of

56 Horse Power plus 360 watts for lighting, the recorded consumption of 73,626 units for the year previous to the date of inspection was very

much less than what it should have been having regard to the number of working days, the number of working hours in each working day, and the

nature of the work done. The consumption should have been 1,39,857 on the basis of a formula provided therefore under the terms and conditions

of supply. The difference between the recorded consumption and the computed consumption taken in conjunction with the removal of the original

seals and replacement of the original seals by counterfeit seals lead to the only possible conclusion that there should have been a theft of energy.

Criminal complaint was also lodged at the Modakkurichi Police Station against the plaintiffs who are the owners of the service. The investigating

officer disconnected and removed the meter as a material object. The defendants thereafter connected a healthy meter to the service and issued a

notice on 25.3.1985 to show cause why the service should not be disconnected. The show cause notice was sent and enquiry was also held and

the second plaintiff attended the enquiry and answered questions denying the charge of theft and accepted the shortfall in consumption. As they

were not satisfactory, orders were passed after giving another show cause notice for disconnection. But even before the enquiry on 28.3.1985 the

plaintiffs filed a suit and obtained an order of interim injunction. The police investigation has nothing to do with the defendants taking action under

the terms and conditions of the supply. One is not dependant upon the other. The plaintiffs have come to court without exhausting the remedy and

therefore the suit is premature and liable to be dismissed.

The trial court framed 2 issues and on behalf of the plaintiffs, P.Ws.l to 3 were examined and Exs.A-1 to A-6 were marked and on the side of

the defendants, D.Ws.1 and 2 were examined and Exs.B-1 to B-3 were marked. The trial court decreed the suit and aggrieved against this the

defendants preferred A.S.No.21 of 1988 on the file of Sub Court, Erode and the learned Judge after hearing the parties, dismissed the appeal and

aggrieved against this, the defendants have come forward with the present second appeal.

At the time of admission of the second appeal, this Court framed the following substantial question of law:

whether the suit filed by the respondents is maintainable ?

Heard the learned counsel of both sides.

Plaintiffs 2 and 3 are the owners of Palani Andavar Oil Mill at Karukkampalayam, Lakkapuram Pudur Village, Erode Taluk. The Mill is

provided with electric service connection No.56 and they are consuming energy and paying electricity charges. On 20.3.1985, the squad of the

Electricity Board Department inspected the service connection after-notice to one Sadasivam, an Accountant in the Mill. During inspection, it was

discovered that the original seals affixed to the meter were missing and in that place, counterfeit seals had been affixed. Apart from that having

regard to the connected load of 56 Horse Power plus 360 watts for lighting, the recorded consumption of 73,626 units for the year previous to the

date of inspection was very much less than what it should have been having regard to the number of working days? the number of working hours in

each working day, and the nature of the work done. The consumption should have been 1,39,857 on the basis of a formula, provided therefore

under the terms and conditions of supply. The difference between the recorded consumption and the computed consumption taken in conjunction

with the removal of the original seals and replacement of the original seals by counterfeit seals lead to the only possible conclusion that there should

have been a theft of energy and ultimately a show cause notice was issued on 25.3.1985 why the service should not be disconnected and

immediately on 27.3.1985 the plaintiffs have come forward with the suit for permanent injunction.

The trial court decreed the suit and the same was confirmed, by the lower appellate court also. The main substantial question of law raised by

the learned counsel for the appellants is that the suit filed by the respondents/ plaintiffs is not maintainable under law. In support of their contention,

the learned counsel for the appellants relied on the decision reported in Munshi Ram and Others Vs. Municipal Committee, Chheharta, wherein it

was held as follows:

It is well-recognised that where a Revenue Statute provides for a person aggrieved by an assessment thereunder, a particular remedy to be sought

in a particular forum, in a particular way, it must be sought in that forum and in that manner, and all other forums and modes of seeking it are

excluded. Construed in the light of this principle, it is clear that Sections 84 and 86 of the Punjab Municipal Act bar, by inevitable implication, the

jurisdiction of the Civil Court where the grievance of the party relates to an assessment or the principle of assessment under this Act"".

The analogy in this decision can be made applicable to the case on hand.

Reliance is also placed upon in Punjab State Electricity Board and Another Vs. Ashwani Kumar, as follows:-

Section 9 of C.P.C. provides for Civil Court hearing all suits of civil nature, where statutory circulars and instructions provide for decision on

grievances, cognizance of Civil Courts has been excluded. In view of provisions of appeal or review, the aggrieved consumer ought to avail of

remedy available instead of invoking Article 226. By necessary implication suit is not maintainable. The respondents should approach the

authorities within six weeks. The respondent allowed to pay the electricity charges in six monthly instalments ... By necessary implications, the

cognizance of the civil cause has been excluded. As a consequence, the Civil Court shall not be justified in entertaining this suit and giving the

declaration without directing the party to avail of the remedy provided under the Indian Electricity Act and the Indian Electricity (Supply) Act and

the instructions issued by the Board in that behalf from time to time"", This decision is applicable to the case on hand.

It has been held in Kaliamoorthy v. Assistant Divisional Engineer (Operation and Maintenance), Tamil Nadu Electricity Board 2000 (I) MLJ

174 that ""in respect of inspection of the service connection prior notice not necessary and similarly plaintiff suing for injunction regarding payment

of penalty for misuse electrical energy - Alternate remedy of appeal before authorities not availed of - Suit held not maintainable"". The same view

has been reiterated by this Court in The Tamil Nadu Electricity, Thanjavur Electricity System Vs. Chandra Chakrapani, that the plaintiff, if

aggrieved, should have exhausted remedies available under the Electricity Act before resorting to civil court; so, suit not maintainable.

The aforesaid decisions clearly indicate that when the terms and conditions provide for alternate remedy for the plaintiff, he is bound to exhaust

the same before resorting to civil court u/s 9 of Civil Procedure Code. Admittedly the plaintiffs were also parties to the terms and conditions

entered into and, as such, they are bound by it. Unfortunately the trial court as well as the lower appellate court misdirected itself and found fault in

the evidence of defendants side witnesses and came to the conclusion that they have failed, to establish the inspection as well as the subsequent

counterfeit seal, etc. In my view, the entire approach made by the courts below is not proper and correct. When show cause notice was issued to

the plaintiffs, it is their duty to give reply and proceed further with the enquiry. However, the plaintiffs have resorted to civil court and stalled the

enquiry proceedings and the civil court cannot enter into the fray even before exhausting the statutory remedies available to the consumers and

provided under the Board Standing Orders as well as under the terms and conditions. There is absolutely no necessity for the Department Officials

to create a record as if inspection was made and submit a report. In fact, the copies of the report and other records were duly served on the

consumers. It is not necessary that only in the presence of the consumers, the surprise inspection has to be made by the Squad of the Electricity

Board. Both the courts below have misinterpreted a rule that while inspecting the seals, both parties should be present. Then the purpose of the

squad itself would be lost if the contention of the plaintiffs is accepted. There is ample power for the anti-theft squad to inspect the meter at any

point of time and they can inspect in the presence bf any responsible person in the premises. In the present case, the Accountant is said to have

been present at the time of the inspection; but now the plaintiffs for reasons best known have chosen to deny the status of the Accountant. If that

be so, nothing prevented the plaintiffs from producing the records to show that he was not the Accountant at the relevant point of time. Considering

the legal position stated supra coupled with the fact that both the courts below have failed to apply the correct position of law, interference is called

for.

For the reasons stated above, the second appeal is allowed and the judgment and decree of the courts below are set aside and the suit is

dismissed. The plaintiffs are directed to approach the authorities concerned and submit their representation within a period of one month from the

date of receipt of a copy of this judgment and the authorities are directed to consider the representation, if any filed, within a period of one month

thereafter. However, there will be no order as to costs.