Madras High Court

Kaushal V.Doshi vs The Chairman on 1 December, 2021

                                                                                W.P.No.25218 of 2017


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                              DATED : 01.12.2021

                                                    CORAM

                           THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY

                                              W.P.No.25218 of 2017
                                           and W.M.P.No.26758 of 2017

                  Kaushal V.Doshi                                          ... Petitioner

                                                     Versus

                  1.The Chairman,
                    TANGEDCO,
                    No.144, Anna Salai,
                    Chennai 600 002.

                  2.The Assistant Executive Engineer,
                    O & M/Vepery Section/TANGEDCO,
                    Kilpauk,
                    Chennai - 600 010.

                  3.The Assistant Executive Engineer/O & M,
                    Guindy,
                    O & M/Vepery
                    Chennai -10.                                    ... Respondents

                  PRAYER: Writ Petition filed under Article 226 of the Constitution of India,
                  for the issuance of Writ of Certiorarified Mandamus, to call for the records
                  relating to the impugned order passed by the second respondent in proceedings
                  bearing No.AEE/O&M/VEP/F.Audit ATO/D 381/2017 dated 06.06.2017 and
                  Lr.No.AEE/O&M/ VEP/F.Audit ATO/D .296/17-18 dated 26.08.2017 and

                 1/10
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                                                                                    W.P.No.25218 of 2017


                  quash the same as illegal, arbitrary and without authority of law and
                  consequently forebear the respondents from taking any coercive steps for
                  disconnection of electricity in the petitioner premises No.60, EVK Sampath
                  Road, C228, Swapnalok Apts., Vepery, Chennai-7.


                                   For Petitioner      :   Mr.Amit Kataria
                                                           for Mr.C.Vigneswaran
                                   For Respondents     :   Mr.L.Jai Venkatesh
                                                           Standing Counsel

                                                       ORDER

This Writ Petition has been filed seeking for the issuance of Writ of

Certiorarified Mandamus, to call for the records relating to the impugned order

passed by the second respondent in proceedings bearing

No.AEE/O&M/VEP/F.Audit ATO/D 381/2017 dated 06.06.2017 and

Lr.No.AEE/O&M/ VEP/F.Audit ATO/D .296/17-18 dated 26.08.2017 and

quash the same as illegal, arbitrary and without authority of law and

consequently forebear the respondents from taking any coercive steps for

disconnection of electricity in the petitioner premises No.60, EVK Sampath

Road, C228, Swapnalok Apts., Vepery, Chennai-7.

2.It is the case of the petitioner that the service connection bearing

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LT/CT-NON CT S/C. No.153/016/263, was provided by the respondents

herein for the petitioner's house located at No.60, EVK Sampath Road, C228,

Swapnalok Apts., Vepery, Chennai-7. The petitioner promptly paying the

electricity charges and there has been no default. While so, the second

respondent vide order dated 06.06.2017 and 26.08.2017, demanded a sum of

Rs.53,966/- towards audit short fall for the period from 09/2012 to 5/2013.

Aggrieved over the same, the present Writ Petition has been filed.

3.The learned counsel for the petitioner submits that the second

respondent claimed audit short fall for the years 2012 and 2013 belatedly, that

too after a lapse of 5 years, in the year 2017. The learned counsel would

further submit that, in terms of Section 56(2) of the Electricity Act, 2003, the

period of limitation prescribed for collecting the arrears was prescribed as two

years from the date when such sum becomes first due. In the present case,

since the demand was made beyond the period of limitation and therefore, the

impugned demand cannot be sustained and the same is liable to be quashed.

4.Per contra, the learned Standing Counsel appearing for the

respondents would submit that admittedly, the petitioner has not paid the

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shortfall for the period between 09/12 and 05/13 and therefore, the second

respondent has rightly issued the demand notice by furnishing all the details.

He would also submit that during audit inspection, it was found that the

petitioner was due to pay the arrears and as per audit report, the demand has

been made and without making the payment, the petitioner has approached

this Court and hence, he prayed to dismiss the Writ Petition.

5.Heard the learned counsel for the petitioner as well as the learned

Standing Counsel appearing for the respondents and perused the materials

available on records.

6.It is relevant to extract Section 56(2) of the Electricity Act, 2003,

which reads as under:

“56 (2) Notwithstanding anything contained in any other law for the time being in force, no sum due from any consumer, under this section shall be recoverable after the period of two years from the date when such sum became first due unless such sum has been shown continuously as recoverable as arrear of charges for electricity supplied and the licensee shall not cut off the supply of the electricity.”

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7.A perusal of the above, it is clear that no sum due from any consumer,

under this section shall be recoverable after the period of two years from the

date when such sum became first due unless such sum has been shown

continuously as recoverable as arrear of charges for electricity supplied.

Therefore, the provision of Section 56 of the Electricity Act, 2003, (hereinafter

referred to as 'the Act'), does not empower the second respondent to recover

any amount, if the period of two years has elapsed no electricity supply be cut

off for non-payment of those dues. In other words, what is sought to be

contended is that if the demand or part of the demand is time barred the

provisions of Section 56 of the Act would be attracted.

8.In the present case, admittedly, the impugned demand has been made

after the prescribed period of two years. Therefore, it is clearly barred by

limitation by virtue of Section 56(2) of the Act. Further, it is not the case of the

respondents that such sum has been shown continuously as recoverable as

arrear of charges for electricity supplied in the books of account. In this

regard, it is also worthwhile to refer a decision of the Hon'ble Supreme Court

in C.A.No.1672 of 2020 dated 18.02.2020, wherein, it was made it clear that

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no claim can be made beyond the period of two years. The relevant portion of

the judgment is extracted hereunder:

"9. Applying the aforesaid ratio to the facts of the present case, the licensee company raised an additional demand on 18.03.2014 for the period July, 2009 to September, 2011.

The licensee company discovered the mistake of billing under the wrong Tariff Code on 18.03.2014. The limitation period of two years under Section 56(2) had by then already expired.

Section 56(2) did not preclude the licensee company from raising an additional or supplementary demand after the expiry of the limitation period under Section 56(2) in the case of a mistake or bona fide error. It did not however, empower the licensee company to take recourse to the coercive measure of disconnection of electricity supply, for recovery of the additional demand.

As per Section 17(1)(c) of the Limitation Act, 1963, in case of a mistake, the limitation period begins to run from the date when the mistake is discovered for the first time.

In Mahabir Kishore and Ors. v. State of Madhya Pradesh,5 this Court held that :–

Section 17(1)(c) of the Limitation Act, 1963, provides that in the case of a suit for relief on the ground of mistake, the period of limitation does not begin to run until the plaintiff had discovered the mistake or could with reasonable diligence, have discovered it. In a case where payment has been made under a mistake of law as contrasted with a mistake of fact, generally the mistake

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become known to the party only when a court makes a declaration as to the invalidity of the law. Though a party could, with reasonable diligence, discover a mistake of fact even before a court makes a pronouncement, it is seldom that a person can, even with reasonable diligence, discover a mistake of law before a judgment adjudging the validity of the law.” (emphasis supplied)

In the present case, the period of limitation would commence from the date of discovery of the mistake i.e. 18.03.2014. The licensee company may take recourse to any remedy available in law for recovery of the additional demand, but is barred from taking recourse to disconnection of supply of electricity under sub-section (2) of Section 56 of the Act. "

9.In the light of the above discussion, the impugned demand made by

the second respondent cannot be sustained and hence, the same is liable to be

set aside.

10.In view of the above, this Writ Petition is allowed and the impugned

order dated 06.06.2017 and 26.08.2017, issued by the second respondent,

insofar as the audit amount of Rs.53,966/- is quashed.

11.Further, the learned counsel for the petitioner submitted that the

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petitioner has already paid a sum of Rs.25,000/- towards the demand made by

the second respondent. If any such amount was paid by the petitioner, the

respondents shall adjust the said deposit made by the petitioner in the future

electricity charges. No costs. Consequently, connected miscellaneous petition