K.Somasundaram vs The Superintending Engineer
2021 Latest Caselaw 23878 Mad

                                                                           WP No.30564 of 2014

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED : 06-12-2021

                                                       CORAM

                              THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM

                                              WP No.30564 of 2014
                                                     And
                                             MP Nos.1 and 2 of 2014
                                                     And
                                             WMP No.6757 of 2016

                     K.Somasundaram                                 ..     Petitioner

                                                        vs.


                     1.The Superintending Engineer,
                       Tamil Nadu Electricity Board,
                       CEDC/West Thirumangalam,
                       Anna Nagar,
                       Chennai – 600 040.

                     2.The Assistant Executive Engineer/O&M,
                       Anna Nagar,
                       Tamil Nadu Electricity Board,
                       CEDC/West,
                       Chennai.

                     3.The Assistant Engineer,
                       O&M/Shanthi Colony,
                       TANGEDGO,
                       TNEB/Anna Nagar,
                       Chennai – 40.                           ..        Respondents

                     1/8


https://www.mhc.tn.gov.in/judis
                                                                               WP No.30564 of 2014



                                  Writ Petition is filed under Article 226 of the Constitution of
                     India, praying for the issuance of a Writ of Certiorari, calling for the records
                     of the third respondent in his proceedings in his letter Lr.No.EEAAO/AS/A
                     /A/Audit Shortfall/D.No.19 dated 21.04.2014 and quash the same as illegal.


                                  For Petitioner        : Mr.K.Sasindran for
                                                          M/s.Achari and Antoni Associates.

                                  For Respondent        : Mr.L.Jaivenkatesh,
                                                          Standing Counsel for TANGEDCO.


                                                       ORDER

The order impugned dated 21.04.2014, is the demand issued

based on the audit short fall assessment. The Electricity Meter in the

premises of the petitioner was found to be defective and the petitioner states

that he provided information to the Board for change of Electricity Meter

and after replacing the defective Electricity Meter, an assessment was made

by the Competent Authorities.

2. The assessment made regarding the consumption of

electricity and the charges to be paid are questioned by the petitioner on the

https://www.mhc.tn.gov.in/judis WP No.30564 of 2014

ground that the impugned order has been issued beyond the period of two

years and therefore, in violation of Section 56(2) of the Electricity Act.

3. The learned counsel for the petitioner reiterated that the

impugned order was passed after the lapse of many years and without

considering the power conferred on the Authorities to issue such demand

notices beyond the period of limitation. Even on merits, the petitioner

contends that he is not responsible for the defective meter and therefore, the

demand notice is to be set aside.

4. The learned counsel appearing on behalf of the respondent-

TANGEDCO relied on the recent judgment of the Hon'ble Supreme Court

of India in the case of M/s.Prem Cottex vs.

Uttar Haryana Bijli Vitran Nigam Ltd., and Others [2021 SCC OnLine

SC 870], wherein the Hon'ble Supreme Court has considered Section 56(2)

of the Electricity Act. Accordingly, what is the meaning to be ascribed to

the term 'First Due' in Section 56(2) of the Act, was also considered by the

Apex Court. In this regard, the Court held that though the liability to pay

https://www.mhc.tn.gov.in/judis WP No.30564 of 2014

arises on the consumption of electricity, the obligation to pay would arise

only when the Bill is raised by the Licensee and that, therefore, electricity

charges would become 'First Due' only after the Bill is issued, even though

the liability would have arisen on consumption. On the third issue,

regarding whether recourse to disconnection may be taken by the Licensee

after the lapse of two years in the case of a mistake, the Apex Court held

in Assistant Engineer (D1), Ajmer Vidyut Vitran Nigam

limited vs. Rahamatullah Khan alias Rahamjulla [(2020) 4 SCC 650],

that “the period of limitation of two years would commence from the date

on which the electricity charges became first due under Section 56(2)”.

5. In this context, it is relevant to consider that certain

limitations prescribed under the Statute are 'directory' and cannot be

construed as 'mandatory'. These limitations are prescribed for the purpose

that State claims cannot be raised. However, the Bill issued, the cause

aroused or the information provided regarding the defective meter, are the

mitigating factors to be adjudicated before the Authorities or before the

Appellate Forum based on the documents and evidences.

https://www.mhc.tn.gov.in/judis WP No.30564 of 2014

6. The Court cannot form an opinion merely based on the

consumption date as well as the billing date. If such dates are considered for

the purpose of considering the issues, then there is a possibility of omission

or error. In some occasions, the defective meters are unnoticed for several

years. In some cases, theft of energy is being committed by the consumers

or sometimes on other circumstances. Those factors are relevant for he

purpose of forming an opinion by Competent Authorities. If at all any errors

committed by the Authorities, the aggrieved person must approach the

Consumer Grievance Redressal Forum constituted under Regulation 18 of

the Tamil Nadu Electricity Supply Code. Contrarily, the High Court cannot

adjudicate such an elaborate adjudication in the writ proceedings under

Article 226 of the Constitution of India.

7. In the present case, the petitioner is raising a ground of

limitation. However, the ground of limitation is also to be adjudicated with

reference to the facts and circumstances. As pointed out by the Hon'ble

Supreme Court in the case of M/s.Prem Cottex vs.

https://www.mhc.tn.gov.in/judis WP No.30564 of 2014

Uttar Haryana Bijli Vitran Nigam Ltd., and Others, referred to supra,

the period of limitation of two years would commence from the date on

which the electricity charges became 'First Due' under Section 56(2) of the

Electricity Act. Such factum is to be adjudicated with reference to the

documents and evidences made available. Thus, the petitioner is at liberty to

approach the Consumer Grievance Redressal Forum for the purpose of

redressing his grievances. In the event filing any such application the period

during which the writ petition was pending before the High Court is to be

taken into consideration for the purpose of condoning the delay, if any

application to condone the delay is filed and the issues are to be adjudicated

on merits and in accordance with law as expeditious as possible.

8. With the abovesaid liberty, the writ petition stands disposed

of. However, there shall be no order as to costs. Consequently, connected

miscellaneous petition is closed.

06-12-2021 Index : Yes/No.

Internet : Yes/No.

Speaking Order/Non-Speaking Order.

Svn

https://www.mhc.tn.gov.in/judis WP No.30564 of 2014

To

1.The Superintending Engineer, Tamil Nadu Electricity Board, CEDC/West Thirumangalam, Anna Nagar, Chennai – 600 040.

2.The Assistant Executive Engineer/O&M, Anna Nagar, Tamil Nadu Electricity Board, CEDC/West, Chennai.

3.The Assistant Engineer, O&M/Shanthi Colony, TANGEDGO, TNEB/Anna Nagar, Chennai – 40.

https://www.mhc.tn.gov.in/judis WP No.30564 of 2014

S.M.SUBRAMANIAM, J.

Svn

WP 30564 of 2014

06-12-2021

https://www.mhc.tn.gov.in/judis