JAYARAMACHANDRAN Vs. TAMIL NADU STATE ELECTRICITY BOARD

JUDGEMENT

(1.) This second appeal has arisen from the judgment and decree of the Additional District Judge, South Arcot rendered in A.S. No. 11 of 1990 dated 22-3-1990 confirming the judgment and decree of the learned District Munsif, Vadalur made in O.S. No. 974 of 1986 dated 16-9-1989.

(2.) The appelants herein filed a suit seeking a declaration and consequential injunction with the following averments :- The plaintiffs were the owners of the rice mill under the name and style of "Vijayalakshmi Rice Mill" at, Vadalur, Cuddalore Taluk. The service connection was standing in the name of their father, who was no more. The defendants Electricity board was supplying the power to the said rice mill under the service connection 301, Serakuppam Village. The plaintiffs have installed 20 H.P. motor in the suit service connection. The plaintiffs had received a communication on 26-3-1986 calling upon them to pay a sum of Rs. 5,606/- within seven days from the date of the receipt of the same. The plaintiffs had paid the said amount under protest. The plaintiffs reserved their right to file a suit to recover the said amount. Whileso, the plaintiffs have received a communication dated 13-11-1986 from the second defendant viz., the Assistant Additional Engineer calling upon them to regularise or remove the load of 10 H.P. on the ground that it was unauthorised. It was only a judgment of imagination and not based on any technical data. The plaintiffs capacity of the motor was only 20 H.P. and it was installed 27 years ago by the plaintiffs' father. The plaintiffs had no necessity to consume more load than the sanctioned load. The second defendant has sent a communication in reference No. Lr. No. ADF/OandM/VAL/F.DOC/SC-301/D Camp/86 dated 13-11-1986, wherein it is stated that he would disconnect the service connection if the plaintiffs did not comply with the directions given by him. The defendants had no right to do so, as the plaintiffs were not having any unauthorised load of 10 H.P. The second defendant has disconnected the service connection on 20/11/1986 at about 5.00 p.m. The attitude and the conduct of the second defendant was highly illegal and arbitrary. The plaintiffs were therefore filing the suit for declaration that the disconnection as per the order dated 13-11-1986 above referred to by the second defendant was arbitrary, illegal, null and void and unreasonable and for mandatory injunction directing the second respondent to restore the said service connection.

(3.) The said suit was contested by the defendants/Electricity Board with the following averments :- The suit filed by the plaintiffs was unjust, vexatious and deserved to be dismissed as not maintainable in law and on facts. One Rajangam was the original owner of service connection 301, Serakuppam Distribution and that the sanctioned load was 20 H.P. under the Industrial Tariff (Tariff IV). The service connection was effected from 24-10-1957 in the name of M. Rajangam. The defendants did not admit that the plaintiffs were the owners of the rice mill. The initial assessment notice was sent to Mr. M. Rajangam by registered post with acknowledgement due made on the provisional assessment notice, but the post was returened underlivered with the endorsement "deceased - returned to the sender." The defendants Board had never been made aware by anyone or by the plaintiffs or any prior to that about the death of the said M. Rajangam. This fact was not so far brought to the notice of the second defendant or the Board. Thus, the plaintiffs had no locus standi to maintain the suit as against the defendants Board as its subordinate officials, since there was no privity of contract whatsoever between the plaintiffs or the Board. On this sole ground, the suit was liable to be dismissed. On sudden inspection of the service connection 301, Serakuppam Village by the Anti Power Theft Squad, Villupuram on 19-6-1985, it was detected that the occupier of the mill was using 30 H.P. motor against the sanctioned load of 20 H.P. This amounted to a mal practice as per the terms and conditions of B.P.Ms. No. 780 dated 21-6-1977. So, on the inspection report drawn by the Anti Power Theft Squad, Villupuram, the second defendant has provisionally assessed the penal levy as payable by the consumer of the service connection 301 at Rs. 5, 574/- and sent a notice to the occupier demanding for payment of the half of penal levy of Rs. 2,787/- plus Supervision charges of Rs.50/- within 15 days of service of the said notice. The said notice was returned as "deceased - returned to sender". Accordingly the second plaintiff received the notice on 31-8-1985 representing that he was the son of the deceased Rajangam. He had readily paid the amount without any protest on 16-9-1985. The Divisional Engineer/OandM/KPD had assessed the final levy at Rs. 5,556/- plus supervision charges of Rs. 50/- vide his letter in Lr. No. DE/OandM/KPD/Adm./Doc.39/P.R. 689/86 datede 26-3-1986 within 30 days from the date of receipt of this notice. The above final assessment notice was acknowledge by one Kasinathan on 5-4-1986 and the balance amount has been paid in full on 30-9-1986 without any protest. The allegations contra to the same were denied as false. After collecting the full assessment amount, a notice was served on the party to remove or regularise the unauthorised additional load of 10 H.P. within five days or otherwise, the suit service conncetion 301 shall be disconnected. The said notice was also duly acknowledged by the said Kasinathan on 14-11-1986. Since the unauthorised additional load was neither regularised nor was removed within the time stipulated, the service conncetion was disconnected on 20-11-1986. Meanwhile, the same service conncetion was inspected by the Divisionl Engineer and the Assistant Divisional Engineer, Anti Power Theft Squad on 12-11-1986 and found that the unauthorised additional load of 10 H.P. which was detected on 19-6-1985 was still continuing. In addition to that, an unauthorised extended supply to a load of 140 watts to the adjacent residential house was also found by the above said Officer. The penal levy for the unauthorised additional load of 10 H.P. from the date of first inspection viz., 19-6-1985 till the date of disconnection i.e. 20-11-1986 was assessed at Rs. 16,184/- and the penal levy for the unauthorised load of 140 watts to the adjacent house was assessed at Rs.270/-. Thus, the consumer, having played an unfair practice over the Board and having taken advantage of the unauthorised consumption of electricial energy, was not entitled to claim for an equitable relief much less the relief of mandatory injunction as against the defendants for restoration of service connection. The action of the second defendant in making initial assessment of penal levy and the notice issued by him is legal and valid. Further the notice issued for the removal unauthorised additional load and the disconnection of the service conncetion No. 301 for non removal of unauthorised additional load of 10 H.P. is legal and valid and was in confirmity with the provisions of B.P. Ms. No. 780 dated 21-6-1977. As per the terms and conditions of supply in Clause 30 Sub-clause (3), the second defendant was the competent authority to issue an order for the removal of unauthorised additional load. The second defendant was empowered to order disconncetion of supply, in case the party failed to remove the unauthorised additional load. the plaintiffs were not entitled to get service conncetion No. 301, Serakuppam Distribution reconnected without complying the following requirements :-