The Appellant/Respondent/Plaintiff has filed this Second Appeal as against the Judgment and Decree dated 31.03.1997 made in A.S.No.56 of 1996 on the file of Learned Principal District Judge, Villupuram.
2. The First Appellate Court Viz., the Learned Principal District Judge, Villupuram, while passing the Judgment in A.S.No.56 of 1996 dated 31.03.1997 has among other things observed that "Respondents/Defendants have proved that the Appellant/Plaintiff has utilised the free supply of Electricity besides his lands to third parties lands and also conducted business by burning Charcoal, contrary to rules and therefore the Respondents/Defendants' claim of Rs.4,000/- as compensation as per Ex.A1 sent to Appellant/Plaintiff is legally proper and valid and resultantly has come to the conclusion that the Appellant/Plaintiff is not entitled to claim any relief" and dismissed the appeal without costs, thereby confirming the Judgment delivered by the trial Court in O.S.No.645 of 1992 dated 29.03.1996.
3. Before the trial Court, 1 to 6 issues have been framed for trial. Before the trial Court, on the side of the Appellant/Plaintiff witnesses P.W.1 and 2 have been examined and Ex.A1 has been marked. On the side of the Respondents/Defendants D.W.1 has been examined and Ex.B1 to B9 have been marked.
4. The trial Court on an appreciation of oral and documentary evidence available on record, has come to a consequent conclusion that the Electricity Authorities have inspected the service connection of the Appellant/Plaintiff on 10.11.1993 and on that day, the Appellant/Plaintiff has signed in the Mahazar and also the Observation Mahazar. Ex.B1 has been prepared by the Electricity Authorities after inspecting the service connection and dismissed the suit without costs.
5. At the time of admission of the Second Appeal, the following Substantial Question of Law has framed by this Court:
"Whether the Judgments of the Courts below are supported by legal evidence?"
6. The Contentions, Discussions and Findings on the Substantial Question of Law:
According to the Learned Counsel for the Appellant/Plaintiff, both the Courts below have failed to note that there is no reliable documentary evidence on record to prove that the Appellant/Plaintiff supplied water to his brother-in-law for consideration to irrigate his lands and as a matter of fact both the Courts have failed to note that there is no provision in the Electricity Act or Rules to impose damages.
7. Advancing his arguments, the Learned Counsel for the Appellant/Plaintiff submits that the First Appellate Court has gone wrong in confirming the Judgment and Decree by the trial Court which is per-se against law.
8. The main contention of the Learned Counsel for the Appellant/Plaintiff is that both the Courts ought to have decreed the suit as prayed for by the Appellant/Plaintiff, and indeed both the Courts have not taken note of the factual aspects of the matter in real perspective which has resulted in miscarriage of justice.
9. In response, the Learned Counsel for the Respondents/ Defendants contends that the Courts below have analysed the oral and documentary evidence on record in a right perspective and have come to the just and fair conclusion that the Appellant/Plaintiff is not entitled to seek the relief of permanent injunction and accordingly dismissed the suit which at this stage of Second Appeal need not be interfered with by this Court.
10. It is useful to refer to the averments made in the plaint by the Appellant/Plaintiff, for the purpose of better appreciation of the facts in issue.
11. In the Plaint, the Appellant/Plaintiff has among other things mentioned that he is the owner of service connection No.61 in Thenpair Village, Villupuram Taluk, and earlier he has obtained an additional load in 2= H.P totalling in all 7= H.P and since the well has no copious supply of water even his own lands or lying fallow and his son has instigated the 2nd Defendant to book him on false charges and further he has not irrigated to anybody's lands and more so, the service connection 61 could not irrigate his own lands and so, the first charge levelled against the Appellant/Plaintiff is baseless.
12. In regard to the second charge Viz., that the Appellant/Plaintiff has used the service connection 61 Electric Motor to manufacture coal is a baseless one and the Appellant/Plaintiff has about 7 acres of land and except agriculture he has no other avocation and that the Appellant/Plaintiff has utilised service connection etc., and it is false to state that the 2nd Respondent/2nd Defendant has inspected the land and as a matter of fact he has not contravened the rules and regulations of the board and he has not committed any error.
13. The stand taken by the Appellant/Plaintiff is that there is no need for him to pay a pie much less a sum of Rs.4,000/- claimed by the Respondents/Defendants as compensation and since he has received a letter from 2nd Respondent/2nd Defendant on 24.06.1994 mentioning that the Appellant/Plaintiff should pay a sum of Rs.4,000/- in four installments in Rs.1,000/- on or before 15.07.1994 etc., he has filed the present suit praying for the relief of declaration that the assessment order dated 24.06.1994, made by the Defendant/Board is ultra vires, illegal etc., and also for the grant of permanent injunction relief.
14. In the written statement, the Respondents/Defendants have taken a specific stand that the Appellant/Plaintiff owns an extent of 0.15.0. hectares alone in Survey No.104 and he is irrigating not only the above lands but also the poromboke lands in Survey No.103/1; 0.30.0.hectares and in Survey No.68/1A; 0.20.0.hectares and also that he has laid a P.V.C pipeline to a distance of 600 feet and thereby supplies water for consideration to his brother-in-law and further he is using water for burning Charcoal.
15. The Respondents/Defendants projected a plea that the villagers of Thenper Village have lodged a complaint before the 1st Respondent/1st Defendant alleging malpractices and misuse of Electrical Energy by the Appellant/Plaintiff and on the instructions of the 1st Respondent/1st Defendant, the 2nd Respondent/2nd Defendant had inspected the service connection on 10.11.1993 along with Junior Engineer, Nemur, and found that the Appellant/Plaintiff has been supplying water to third parties by means of P.V.C. pipes laid underground to a distance of 600 feet reaching the land of third parties and also it has been found out that there have been burning marks of Charcoal.
16. According to the Learned Counsel for the Respondents/ Defendants, the Appellant/Plaintiff has admitted that he has irrigated the lands of third parties and has been supplying water to his brother-in-law and also admitted having fired Charcoal and that he has stopped the business and apart from the above, the Appellant/Plaintiff has signed the Observation Mahazar on 10.11.1993.
17. A penal assessment notice dated 24.06.1994 has been issued by the Executive Engineer, Villupuram, calling upon the Appellant to pay the compensation amount of Rs.4,000/- in four equal installments for having supplied water to third parties and for having burning of Charcoal.
18. The Learned Counsel for the Respondents/Defendants contends that the Appellant/Plaintiff has not exhausted his remedy as provided under Board Proceedings No.61 and hence the suit filed by the Appellant/Plaintiff is not maintainable.
19. It transpires from Ex.A1 Demand Notice dated 24.06.1994 that the Appellant/Plaintiff has been directed to pay a sum of Rs.4,000/- as compensation in four installments of Rs.1,000/- each, starting from 15.07.1994 and the last payment of Rs.1,000/- is made by the Appellant/Plaintiff on 15.10.1994. Ex.B6 is the Memorandum dated 07.01.1984 issued by the 2nd Defendant/2nd Respondent addressed to the Appellant/Plaintiff in and by which it is mentioned that the Appellant/Plaintiff from his service connection has irrigated the the land of others and also he has burned Charcoal by utilising his service connection. Ex.B1 is the Observation Mahazar dated 10.11.1993 prepared by the Junior Engineer, Nemur, and Assistant Engineer, Kanjanur, and in the said Observation Mahazar the Appellant/Plaintiff has signed in Tamil in the presence of two witnesses seeing thereto. A careful scrutiny of Ex.B1 Observation Mahazar clearly points out that the Appellant/Plaintiff's service connection No.61 has been inspected on 10.11.1993 by the officials mentioned supra and during the inspection, it has been found out that the Appellant/Plaintiff has laid a P.V.C. Pipe at a distance of 600 feet and through the said P.V.C. pipes he has taken water for the purpose of irrigation. In Ex.B1 Observation Mahazar, the Appellant/Plaintiff has also mentioned that through the P.V.C., the Appellant/Plaintiff has irrigated the land belonging to his brother-in-law and further when there is no water in the lake he used to irrigate the said lands through aforesaid water taken through P.V.C. pipes.
20. It is relevant to make a significant mention that in Ex.B1 Observation Mahazar, it is stated that near the pumpset there are marks pointing out to the factum of burning of Charcoal. Ex.B3 is the Complaint of one C.Mathialagan of Thenper Village dated 03.01.1883 (it ought to be 03.01.1983 instead of 03.01.1883 according to the Learned Counsel for the Respondents, it is inadvertently typed). In the said Ex.B3 Complaint, it is clearly among other things made mention of that the Appellant/Plaintiff is using the free electricity supply illegally and selling the Electricity for price and that the Appellant/Plaintiff is irrigating the land measuring an extent of 30 acres.
21. Ex.B4 is the Complaint of Thenper villagers (signed by nearly 66 persons) addressed to the District Collector, Villupuram, in and by which, the villagers have complained that the Appellant/Plaintiff has fixed 7= H.P. Motor instead of 3 H.P Motor and he is irrigating his lands by having three-way connection and further the Appellant/Plaintiff is doing business by utilising the free electricity supply given by the Government and they have prayed for taking action against the Appellant/Plaintiff.
22. P.W.1 (Appellant/Plaintiff) in his evidence has deposed that his service connection is S.C.No.61 and earlier he had 5 Horse Power and presently having 7.5 Horse Power and on 10.11.1993, it is not correct to state that the 2nd Respondent/2nd Defendant has come for inspecting the service connection and it has been found out that he has been letting out the water for burning of Charcoal etc., and he has not signed and that the signature might have been obtained when he has visited the office of the Respondent and further he does not know to read and write.
23. P.W.1 in his cross-examination has categorically stated that he does not remember at what point of time he has signed in Ex.B1 document and it is incorrect to state that his signature has been obtained at the time of inspection of the service connection on 10.11.1993.
24. The evidence of P.W.2 is to the effect that he knows the Appellant/Plaintiff who has Motor and Electricity Service and through the 7.5 H.P Motor, water can be drawn for nearly three hours and the Appellant/Plaintiff has 1 acre of land near the Motor and the Appellant/Plaintiff is not letting out the water to others lands and it is incorrect to state that the Appellant/Plaintiff has letting out the water for the purpose of burning of Charcoal.
25. It is the evidence of D.W.1 (Assistant Electricity Engineer, Nemur) that the Appellant/Plaintiff has a service connection in S.C.No.61 at Thenper Village and he has inspected on 10.11.1993 along with Assistant Executive Engineer, kanjanur, the service connection of the Appellant/Plaintiff and the has found out that a pipe has been laid at a depth of 600 feet and the said pipe has ended in a place not belonging to the Appellant/Plaintiff.
26. It is the further evidence of D.W.1 that Ex.B3 is the Complaint sent by the Appellant/Plaintiff's son Mathialagan and also the villagers have made a complaint dated 12.10.1993 Viz., Ex.B4 and the Appellant/Plaintiff's son complaint has come after Ex.B4 and on 17.12.1993, the villagers have given a complaint and they have seen on 10.11.1993 that the Appellant/Plaintiff has been irrigating the others lands through the water drawn by him from his service connection and Observation Mahazar has been prepared in the presence of Appellant/Plaintiff and in Ex.B1 he has obtained the signatures of two villagers.
27. As far as the present case is concerned, the evidence of D.W.1 (TNEB Electricity Engineer) that the Appellant/Plaintiff has signed in Ex.B1 Observation Mahazar and that he along with another Assistant Executive Engineer, Kanjanur, have inspected the service connection No.61 of the Appellant/Plaintiff and has found out that the Appellant/Plaintiff is taking water to others lands from his service connection unauthorisedly and therefore he has been directed to pay a sum of Rs.4,000/- by way of compensation. It is brought to the notice of this Court that the Appellant/Plaintiff has paid Rs.2,000/- has informed by this Court in C.M.P.No.7290 of 1997 dated 20.05.1997 and further the Appellant/Plaintiff has been directed to pay the balance sum of Rs.2,000/- within one week from the day of the said notice. Though the Appellant/Plaintiff has denied the signature in Ex.B1 Observation Mahazar the recitals of Ex.B1 the said document expressly point out that he has taken water from his service connection Motor to others lands, to which he is not authorised.
28. At this stage, the Learned Counsel for the Respondents/Defendants submits that as per terms and conditions of Tamilnadu Board, Schedule 37, Part I 'the contravention of any provision of the terms and conditions of Supply of Electricity prescribed by the Board, Indian Electricity Act, 1910, Electricity (Supply) Act, 1948, Indian Electricity Rules, 1956, Tariff notification issued by Government of Tamilnadu from time to time etc., shall be treated as violation and the consumer indulging in any violation shall be liable for action as may be prescribed by the Board'. Continuing further, as per the said Clause 2.01 to Part I, Schedule 37, 'the compensation charges for violation shall be payable in addition to any other charges payable by the consumer in respect of the service connection at the rates notified in the Tariff notification terms and conditions of supply of electricity and restriction and control orders'.
29.Also, sub-clause 2.02 specifies the action that shall be taken by the consumer and the compensation charges that shall be paid by him in respect of violations in metered Low Tension Service Connections which are as follows:
and therefore, it is candidly clear that the Tamil Nadu Electricity Board has power to levy compensation for violation of the terms and conditions of service connection and supply of energy committed by the consumer.
30. When the Appellant/Plaintiff has put his signature in Tamil in Ex.B1 Observation Mahazar in the presence of two villagers who have been a witness to the Observation Mahazar, then, it is not open to the Appellant/Plaintiff to take a plea that his signature might have been obtained by the Respondents at a time when he has visited their office and the said contention in this regard is not accepted by this Court.
31. In view of the fact that D.W.1 has clearly spoken about the manner in which Ex.B1 Observation Mahazar has come into existence in the present case and also the other vital fact is that the Appellant/Plaintiff has laid a P.V.C. pipe to a distance of 600 feet and through the P.V.C. pipe, he has taken water to others land for the purpose of irrigation. That apart, in Ex.B1 Observation Mahazar it is clearly mentioned that there have been signs of burning of Charcoal in others lands. Suffice it for this Court that the Observation Mahazar Ex.B1 prepared by D.W.1 along with other Assistant Electrical Engineer of Kanjanur, is worthy of acceptance and in short the evidence of D.W.1 is cogent, trustworthy and the same is in a convincing manner.
32. Per contra, the evidence of P.W.1 (Appellant/Plaintiff ) that his signature might have been obtained by the Respondents when he has inspected their office has found unsatisfactory and the same is outrightly rejected. To put it precisely, the contents of Ex.B1 Observation Mahazar are against the Appellant/Plaintiff. The contents of Ex.B1 are in Tamil and the very fact that he has affixed his signature in Ex.B1 Observation Mahazar in the presence of two villagers go to prove that the Respondents/Defendants have come out with the case of violation in regard to terms and conditions of supply of electricity and proved the same and as such, the Appellant/Plaintiff is bound to pay a sum of Rs.4,000/- as demanded by the Electricity Authorities.
33. In the light of the qualitative and quantitative discussions mentioned supra and on an overall appreciation of the relevant facts and attendant circumstances of the case in a threadbare fashion,this Court, in the present case, comes to an inescapable conclusion that D.W.1 has inspected the service connection No.61 of the Appellant/Plaintiff and has found out the violation committed by the Appellant/Plaintiff and as such, he is not entitled to claim the relief of declaration to the effect that the assessment made by the Electricity Board is ultra vires and viewed in that perspective the Second Appeal fails.
34. In the result, the Second Appeal is dismissed, leaving the parties to bear their their own costs. Consequently, the Judgment and Decree of the First Appellate Court Viz., Learned Principal District Judge, Villupuram in A.S.No.56 of 1996 are confirmed by this Court for the reasons assigned in this Second Appeal.
02.08.2010 nb Index : Yes Internet : Yes To
1. Principal District Judge, Villupuram.
2.District Munsif Court, Villupuram.
M.VENUGOPAL, J.
nb Second Appeal No.684 of 1997 02.08.2010