Judgment:
J.N. Sarma, J.
1. This First Appeal has been
filed against the judgment and decree dated 9-8-
96 passed by the learned Asstt. District Judge No.
2, Cachar at Silchar decreeing the suit by which,
the penal bills as mentioned in para I7(a) of the
plaint was declared to be illegal and void. It was
further decreed that the defendants are not entitled,
to realise any amount in such bills. The suit was
also decreed for permanent injunction. The
plaintiff Tea Co. brought a suit against the ASE3
and others and their case was that the amount of
penal charge of Rs. 1,12,748.79 P. demanded by
the penal bills dated 21-8-94 is illegal and that
further claimed that there was consumption of
electricity of 231.4 KWs in place of sanction
limit of 250 KW is illegal. It was further stated
that this penal bill was prepared on me basis of
inventory prepared by the officers of defendant
during their visit on 8-11-83. The said inventory
illegally included the stand-by motors and as
such the suit was filed. A written statement was
filed and in paras 11, 13, 14 and 17 it is stated as
follows:
'11. The statements made in para 4 of the plaint is rather distorted and misrepresented. The plaintiff never applied to the defendants for setting up of such standby motors and machineries, which as per the rules and agreed terms of the Board and the plaintiff, requires prior approval. The plaintiff never applied to the defendants for any new installation as has been admitted by the plaintiff in the said para, as all installations need prior approval.
13. The statement made in para 6 is not altogether correct and true. The motor testing Inspector visited the factory of the plaintiff on 8-11-83 and found some motors and machineries were newly installed by the plaintiff without any approval of the defendants and moreover all the newly installed motor and machineries alleged to be standby were connected to the electrical system (for receiving energy). The M.T.I, prepared an inventory of all the machineries and motors, in presence of the person who was at that
time incharge of the faclory and he had also put his signature on the inventory and on the basis of the inventory so prepared, the penal bill and the notice, as has been mentioned by the plaintiff in the said pani was served upon the plaintiff as the plaintiff had violated the provisions as set forth in the General Clauses of supply. The plaintiff had no authority to connect the installed machineries and motors with the electricity supply line. All the installations within the factory campus of the plaintiff belongs to the defendant Board.
14. The averments made in paras 7, 8 and 9 of the plaint arc not true and correct. From a 250K W Transformer. 231.4 KW energy can easily be consumed and the plaintiff has done so. The M.T.I, who visited and made the inventory had nil authority to inspect, as the entire installations of the electrical line and etc. belonged to the Board and the plaintiff had no authority to challenge such inspection.
17. The notice and the penal bill were served upon the plaintiff by the defendants as per provisions contained in the 'General Conditions of Supply and Schedule of Tariff which guides the defendants. The plaintiff entered into the contract as per provisions of the said rules and had agreed to abide by the same. And as such, the plaintiff is to either pay the penalty or to face disconnection.'
2. On these pleadings, 5 issues were framed. Issues No. 3, 4 and 5 are relevant for the purpose of disposal of this suit. They are quoted as follows ;
' 1. .....
2.....
3. Whether penal bill submitted by defendant are illegal and void as alleged in the plaint,?
4. Is there any ground for granting injunction?
5. Is the plaintiff entitled to relief sought in the suit?
Following witnesses were examined :
PW 1 Durga Datta Tiwari the Manager of the
garden.
DW 1 Benimadhab Das Choudhary, the
Executive Engineer of ASEB.
3. A large number of documents were examined. With regard to issue No. 3. the learned Judge came to the finding that the defendants prepared the penal bill without any basis us well as any legal sanction and that too in violation of principle of natural justice. It was further held
that no amount is due to be realised by the
defendant from the plaintiff on account of
consumption of electricity and having arrived at
the finding the suit was decreed as indicated
above. Hence, this first appeal. '
4. I have heard Mr. N.N. Saikia, learned counsel for the appellant and Mr. N.M. Lahiri, learned counsel for respondents.
5. Mr. Lahiri. learned counsel at the beginning places before me a decision of this Court passed in F.A. No. 13/87 and he submits that this matter is squarely covered by that decision. That appeal was dismissed on two grounds -- (i) that the inventory was prepared in the absence of the Manager as contended and it was further found that there is no substance to show that the standby motors were found connected with the supply line. It was further found that the garden authority did not use electric energy beyond the sanctioned load. Having arrived at this finding of fact, the appeal was dismissed. That decision was arrived at on the basis of factual position and that cannot be binding on me for the decision of the present case inasmuch as in order to decide the fate of this appeal, we must find out what is the factual position of the present case.
6. Mr. N.N. Saikia, learned counsel in support of his contention relies on the judgment dated 12-2-1996 passed by this Court in CR 2321/92 . (M/s George Williamson (Assam) Ltd. v. ASEB) wherein the single Judge of this Court pointed out as follows ;
'If a person is found guilty of malpractices, the authority can levy the compensation and the question of giving opportunity of being heard does not arise inasmuch as giving personal hearing before taking any decision may not be always the necessity and it depends and vary from facts to facts.'
7. In order to decide the rival contention of the parlies let us have a look at the evidence of PW 1 and DW I as well as documents. In cross-examination PW 1 deposed as follows:
'Ext. 'Ka' is a list of machinery installed in our garden in 1978. Through Exr. 'Kha' we submitted another list to ASEB. In '1984 we applied for 50 KW we agreed to abide by the terms and conditions of the agreement made with ASEB. Ext. 'ga' is such an agreement. We had not informed ASEB that we had standby machinery. Our main machinery and standby machinery are on separate panel Boards. We
used to run our standby machinery with ASEB electricity in case of break-down of our main machinery ............... (omitted in the original-Translation) whether or not we have permission from ASEB to run a generator. Most probably in June or July, 1984 we applied for an extension. It is not a fact that the we consumed moreihan our sanctioned load and violated ASEB's general conditions.'
8. DW I deposed as follows :
'We inspected the garden in January 1984. That was a routine inspection. We submitted an inspection report, Ext. 'gha'. Ext. Gha (1) are our signatures. Ext. Gha (2) is consumer's signature. By Ext. 'unga' we asked Barjalenga T.E. to obtain an extension of their load. Ext. Unga (1) are or signature and Ext. Unga (2) is consumer's signature. Thereafter we served a notice with a penalty bill as required under law of the Board. Upon receipt of the notice they filed a case. The garden authority filed an application Ext. 'cha' for extension of their load. A garden has to install a standby generator. Forthis ASEB's permission is necessary. There is no provision under which a generator and ASEB supply .....
(unintelligible in the original translation)....
They had submitted us a report in respect of the machinery they had had. But that report did not conforms to our inspection report of the month of January. They had installed new machinery but had not sent us report. We imposed penalty for installation of machinery without our permission.'
9. Ext. 'ka' to 'cha' shows the list of electrical motors fitted in the factory and water pump. That declaration was made on 27-6-1978 by the Manager of the garden. There is another declaration made on 2-7-1980 by the Manager of the garden which is Ext. 'kha'. At page 73 of the Paper Book is the test report of the garden dated 1-10-1982 and from Ext. Cha(2) it is seen that the total connected load is 231.4 KW and this document was admitted in evidence without any objection. Ext. 'cha' is another letter dated 15-6-1984 for additional load of 50 KW. In Ext. 'cha' there is a signature of a consumer and this document was exhibited in evidence by DW 1 and that shows that the connected load is 231.4 KW which will go to show that this is beyond the load sanctioned to the garden and thereafter, a notice was issued to get the sanction of this extra load, but that was not done. So, the fact that the plaintiff consumed only 145.2 KW as contended in para 8 is absolutely incorrect. The further fact
that the inspection was done in the absence of the authorised representative of the plaintiff is also not correct inasmuch as that inspection report was signed by somebody on behalf of the plaintiff. There is an denial of the fact that for malpractice (sort of things done by the plaintiff will come into the definition of malpractice) the penal bill can be imposed and it cannot besaid that this is without authority of law.
10. The validity of the decree passed can also be looked at from another angle. The plaintiff is trying to avoid liability for an amount of Rs. 1,28,915.84 p and he has valued the injunction at Rs. 100/- only and the court-fee has been paid for declaration at Rs. 22/- and court fee of Rs. 10/- on the value of the injunction. This practice of valuing suits arbitrarily for the purpose of injunction seeking to avoid liability of a huge amount of money cannot be encouraged and as such a suit cannot be entertained by the Court. What is the basic purpose behind the suit or decree, that must be determined/found out by the court. In this particular case, the basic purpose is to avoid the liability of Rs. 1.28,915.84 p. and that liability cannot be avoided by filing a declaratory suit and paying the court-fee of Rs. 22/- only. Court-fee should have been paid on the amount of value of the suit and that not being done, the plaint should not have been entertained by the trial court. The learned Asst. District Judge No. 1 Cachar at Silchar shall realise the amount of court-fee from the plaintiff and for that purpose he shall refer the matter to the Collector for realisation of the court-fee, as I find this to be an attempt to evade the court-fee due on the plaint.
11. Section 48 of the Indian Electricity Act 1910 provides that penalties which may be imposed under different sections of that Act (by Sections 39, 39A and 40-47). In exercise of the power conferred by Section 49 of the Electricity (Supply) Act 1948, the ASEB made the revised terms and conditions of supply of electric energy and it is the terms and conditions of supply of 1981 which shall apply to the present case. In that terms and conditions of supply of 1981, malpractices have been enumerated and there Clauses 8 (ii) (b)(c) and (g) provide as follows :
'8. Malpractices :
(1) ......
(ii) ......
(a).......
(b) Exceeding the contracted/connected load
without specific permission of the Board.
(c) Addition, alteration and extension of electrical installation in the consumer's premises without permission of the Board or extension to any premises other than the one for which supply was contracted for.
(d)......
(e) ......
(f)......
(g) Theft of energy.' Clause 8(iii) (c) {;) provides us follows : '8. (111) Disconnection of supply : (a)......
(b).......
(c)......
(1) where the authorised officer is satisfied that the consumer has. dishonestly abstracted, used, consumed, wasted, pilfered or diverted energy, he may make an assessment thereon at a rate twice the normal rate of tariff applicable to such installation . The quantum of energy to be billed for. will be assessed on the basis of the highest consumption of a month as recorded during the period of three years immediately preceding the date of detection of malpractices.'
12. So, this bill in the instant case which was submitted to the plaintiff was in compliance with the provisions quoted above though it has been termed as a penal bill by the plaintiff it is by way of compensation as indicated above and the defendant had the power under the law to claim such compensation from the plaintiff when the defendant came to hold that there was malpractice and this malpractice definitely will come within the clauses quoted above.
13. This being the position, the judgment and decree passed by the learned Asstt. District Judge No. 2 Cachar at Silchar dated 9-9-1986 in TS No. 66/84 shall stand set aside and quashed and the suit of the plaintiff shall also stand dismissed with costs all throughout. It may be mentioned herein that the plaintiff resorted to malpractie and if it was detected, the plaintiff cannot rush to the Court and get the relief as sought for.