TAMIL NADU ELECTRICITY BOARD Vs. R. NARENDRA KUMAR

JUDGEMENT

(1.) THE defendants in O.S. No. 5104 of 2001 are the appellants in this second appeal. The said suit in O.S. No. 5104 of 2001 was filed by the respondent herein praying for a declaration to declare that the show cause notice dated 31.03.2001 issued by the second defendant/second appellant herein and the assessment order dated 28.04.2001 issued by the first defendant/first respondent herein are null and void and not binding on the plaintiff/respondent herein and for a consequential mandatory injunction directing the defendants/appellants to re -install the meter and restore supply of electricity to the plaintiff's SC No. 67 -23 -109 at K -11, Industrial Estate, Vyasarpadi, Chennai - 600 039. Subsequently, the plaint was amended on 14.12.2004 challenging the order dated 09.09.2013 passed by the third respondent, confirming the order dated 28.04.2001 of the first defendant.

(2.) IT is the case of the plaintiff/respondent herein that he has taken the suit property on lease on 15.10.2000 together with electricity amenity. According to the plaintiff/respondent, after getting the certificate from the commercial tax and sales tax authorities on 14.12.2000, he commenced the production of P.V.C. pipes in the suit property. While so, during the course of business of the plaintiff/respondent, on 09.03.2001 officers of the electricity board inspected the service connection provided to the property and alleged that there was tampering of the wiring and theft of electricity energy has been committed. On the same day, the officials of the Electricity Board disconnected the electricity service connection. The second defendant/second appellant herein issued the show cause notice dated 31.03.2001 calling upon the plaintiff/respondent herein to show cause as to why he should not be held liable for theft of electricity energy as per the terms and conditions of supply of electricity energy. The Plaintiff/respondent was further called upon to show cause as to why a compensation should not be levied to the tune of Rs. 31,48,531/ -. In and by the said notice dated 31.03.2001, the plaintiff was also called upon to appear for an enquiry on 10.04.2001. The plaintiff/respondent submitted his explanation on 10.04.2001 but did not attended the enquiry. However, the landlord of the premises attended the enquiry and requested the first defendant/first respondent herein to drop all the charges. It was explained to the first defendant that the plaintiff entered into a lease agreement only on 15.10.2000, the machineries were installed thereafter and the production commenced only during December 2000. The plaintiff/respondent filed the suit challenging the show cause notice dated 31.03.2001 issued by the second defendant. Subsequent to the filing of the suit, the first defendant passed an order of assessment dated 28.04.2001 assessing the loss caused to the department at Rs. 31,48,531/ -. According to the plaintiff/respondent, the assessment was made erroneously on the basis that the plaintiff's workshop functioned for 300 working days in a year and 24 hours a day continuously without any break. Therefore, challenging the assessment order dated 28.04.2001, the plaintiff/respondent preferred a statutory appeal before the third respondent herein. Pending the statutory appeal, as the respondents attempted to disconnect the electricity service connection, the plaintiff filed the suit only challenging the assessment notice and for consequential injunction from disconnecting the electricity service connection. In the suit, interim order was granted to pay the assessment amount in two instalments and not to disconnect the electricity service connection. A direction was also issued to dispose of the appeal in a time bound manner. The appeal was taken up and ultimately it was rejected by the third respondent on 09.09.2013 and the order of rejection was also subjected to challenge by the plaintiff/respondent by amending the plaint suitably.

(3.) BEFORE the trial court, the plaintiff examined himself as PW1, another witness T. Kandasamy as PW2 and marked Exs. P1 to P18. On behalf of the defendants, one G. Thiagarajan examined himself as DW1 but no documents were marked. The trial court, on appreciation of the oral and documentary evidence made available, dismissed the suit. Aggrieved by the same, the plaintiff preferred A.S. No. 674 of 2006 before the lower appellate Court. The lower appellate Court pointed out that the Field Workman who actually attended the work on 27.02.2001, prior to inspection by the anti theft squad, had stated that there was no default or tampering of meter etc., Therefore, it was pointed out that as it is proved that there could not have been any theft of loss of energy by illegal tampering before 27.02.2001 and if at all any theft or loss of energy by illegal tampering it should have been between 27.02.2001 and 09.03.2001 on which date, the anti theft squad inspected the premises. Therefore, the lower appellate Court pointed out that the loss of energy has to be assessed only between the period from 27.02.2001 to 09.03.2001 for 11 days. Consequently, the lower appellate Court itself arrived at the loss to the tune of Rs. 1,15,446/ - for 11 days. Aggrieved by the same, the present second appeal is filed by the department.