Heard the learned counsel for the petitioner and Mr. Suresh Kumar the learned for the respondent who took notice for the respondent.
2. The petitioner is the Proprietor of M/s Maruthi Flour Mill at Door Number 19-A, Thathaneri Main Road, Madurai and it has got Service Connection Number TB-360, Tagore Nagar Section, Tamukkam Distribution, Madurai. The officials of the respondent inspected the Mill on 4.4.2001 and the Assistant Executive Engineer, Tamukkam Distribution, Goripalayam sent a show cause notice dated 7.4.2001 alleging that the petitioner has committed theft of electric energy and the petitioner submitted an explanation dated 25.4.2001 and asked for personal hearing.
3. According to the petitioner, without giving an opportunity to explain the case, the Executive Engineer passed an assessment order dated 19.5.2001 assessing the loss to the Electricity Board at Rs.3,45,166/-. The petitioner preferred a Statutory Appeal before the respondent and the Statutory Appeal was not taken on file by the respondent on the ground that 40% of the amount mentioned in the assessment order has not been paid along with the appeal and unless the amount is paid the appeal will not be taken up. The Executive Engineer, Distribution Circle, Madurai North, K.Pudur in his letter addressed to the respondent that the petitioner/appellant has not paid 40% amount and therefore the appeal need not be considered. The said letter dated 9.3.2002 was also sent to the petitioner and the petitioner has sent a reply through his counsel to the Executive Engineer on 30.3.2002. Thereafter, by proceedings dated 16.12.2003 the respondent informed the petitioner directing him to pay 40% of the assessment amount in Tagore Nagar Section and after payment of that amount the appeal will be considered. Thereafter, no action has been taken by the petitioner except by sending another legal notice dated 30.12.2003. In that notice dated 30.12.2003, the petitioner has stated that he has filed a suit in O.S.No. 273 of 2003 on the file of the Sub Court, Madurai against the order of assessment and therefore the matter is subjudice. After a lapse of nearly 5 1/2 years, the petitioner sent a letter dated 13.5.2009 requesting the respondent to give an opportunity to pursue the appeal filed by him on 29.5.2001 and pass orders. The respondent by his proceedings dated 24.6.2009 has stated that the enquiry on the appeal was not taken up as the petitioner has not deposited 40% of the assessment amount and informed the petitioner that if the petitioner pays 40% of the assessment amount which comes to Rs.1,38,065/- + Rs.100/- within a period of seven days, his appeal will be entertained. This order is challenged in this writ petition.
4. Mr. Sureshkumar, the learned counsel for the respondent submitted that the petitioner is guilty of laches and on that ground this writ petition should not be entertained. He has also relied upon the Judgements in C. Jacob v. Director of Geology and Mining and another reported in (2008) 10 Supreme Court Cases 115 and in Yunus (Baboobhai) A.Hamid Padvekar v. State of Maharashtra through its Secretary and others reported in (2009) 3 Supreme Court Cases 281 in support his contention. In those two cases, it has been held that writ cannot be entertained when the petitioner is guilty of delay and laches.
5. According to me, the question of laches or delay may not be applicable to the facts of the case. As per the impugned order, the respondent has agreed to take up the appeal on file provided the petitioner pays 40% of the assessment amount plus Rs.100/- towards expenses within a period of 7 days from the date of receipt of this letter. Therefore, the respondent is willing to take the appeal on file provided the conditions are satisfied.
6. At this point, Mr.J. Bharathan the learned counsel for the petitioner submitted that there is no provision under the Terms and Conditions of Supply of Electricity of Tamil Nadu Electricity Board which enable the authority to insist on the payment of 40% for entertaining the appeal.
7. Mr. Suresh Kumar, the learned counsel for the respondent was able to point out that under Clause 37 para 12.2 of Schedule Part-I Violations and theft of energy of the Terms and Conditions of Supply of Electricity of Tamil Nadu Electricity Board, the appellate authority can order the consumer to pay not less than a minimum number of instalments as stated therein for considering the appeal. According to me, it is not a condition precedent for filing the appeal or entertaining the appeal. It is further made clear that by Clause 37 para6.03 which enables the consumer to file an appeal within sixty days and nothing has been stated in that clause while preferring the appeal, the consumer must deposit 40% of the assessment amount. The same is stated in Clause 37 para 8.04 and para 11.01. Clause 37 para 12.00 deals with the disposal of appeal. Even under Clause 37 para 12.01 nothing has been stated about the deposit of the amount before entertaining the appeal and under Clause 37 para 12.02 the consumer can also request the Appellate Authority in writing to stay disconnection of the service and in that context it has been stated that before considering the appeal the appellate authority can order the consumer to pay not less than a minimum number of instalments as stated therein. Therefore the combined reading of various Clauses stated above, in my opinion, the appellate authority cannot insist the deposit of 40% of the assessment amount as a condition precedent for filing the appeal. Therefore, the order of the appellate authority in demanding 40% as a condition precedent for entertaining the appeal is not legal and hence I set aside that order and the respondent is directed to entertain the appeal and pass orders in accordance with law. Hence, this writ petition is allowed. No costs.
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To The Superintending Engineer, Tamil Nadu Electricity Board, Madurai Electricity Distribution Circle, Race Course Road, K.Pudur, Madurai- 625 007.