S. Rajeswaran, J.
1. The Tamil Nadu Electricity Board, the defendants in O.S. No. 950 of 2000 are the appellant before this Court.
2. O.S. No. 950 of 2000 was filed by the respondent/plaintiff for a declaration to declare that the suit impugned notice dated 21-08-2000/4.9.2000 is illegal, arbitrary and unenforceable and also for a consequential injunction restraining the Tamil Nadu Electricity Board from enforcing the suit impugned notice (or) in any manny acting upon it (or) collecting any amount (or) disconnecting the supply of electricity.
3. The case of the plaintiff in O.S. No. 950 of 2000 is that, he is carrying on Silver Pattarai at Door No. 15, Angaiyarkani 4th Street, Madurai 18. He is doing business in Stainless Steel Vessels manufacturing and polishing work in the suit building which has been provided with a supply of electricity under Service Connection No. B-18 under III-B Tariff. On 20-06-2000, while white washing the building, the Electrical Meter provided by the Electricity Board was accidently borken by the workers and the meter got struck-up. Therefore, the plaintiff informed the Assistant Executive Engineer about the condition of the meter and requested him for replacing the meter on payment of necessary charges. The Meter Readers came and verified on 24-06-2000 and subsequently, the Board demanded and collected Rs. 840/- for the new meter and Rs. 100/- for the inspection fees and in total a sum of Rs. 940/- was paid by the plaintiff on 05.07. 2000. On 10-07-2000, a Wireman and a helper came with a new meter and replaced the old and broken meter. But, in the evening, at about 04.30, they again got the old broken meter fixed, after removing the new one by stating that the Board's officials would come and install the new meter on the next day. On 11-07-2000, the Assistant Executive Engineer came and issued an Inspection Notice and obtained the signature of the plaintiff both in the Inspection Notice as well as on the Magazar. They also removed the meter with the wooden board and took the plaintiff to Sellur Police Station and handed over the meter as well as the plaintiff to the station officer. The defendants made a false case of theft of energy when the plaintiff never indulged in theft of energy. The plaintiff subsequently received a show-cause notice dated 19-07-2000 pre-concluding a case of theft of energy and demanding a sum of Rs. 2,10,174/-. The plaintiff appeared before the Executive Engineer on 03-08-2000 and explained the real facts. But, the Executive Engineer issued a notice dated 21-08-2000/04-09-2000 finalising the decision of the Assistant Executive Engineer and confirmed the work sheet for a sum of Rs. 2,10,174/-. The entire working sheet is arbitrary, illegal and void and therefore, the plaintiff filed this suit for the aforesaid reliefs.
4. The Board filed a Written Statement stating that the subject Service Connection is standing in the name of the plaintiff and it was inspected by the defendants along with the Anti Power Theft Squad on 11-07-2000 in the presence of the plaintiff. It was found that there was a theft of energy by tampering the Security Seals. Once it was confirmed that the Security Seal was tampered, necessary police complaint was lodged and a case was registered in Crime No. 665 of 2000. An opportunity was given to the plaintiff and thereafter, it was confirmed that the plaintiff tampered with the security seal and dishonestly abstracted, consumed and used energy with an intent to defraud the Board and thereby incurred loss of revenue to the Board. It was pointed out by the Board that a show-cause notice was issued and thereafter, a personal enquiry was also held. During the enquiry, no evidence was produced by the plaintiff in his favour and therefore, an Assessment Notice was issued by the Executive Engineer directing him to pay a sum of Rs. 2,10,174/- as loss of revenue to the Board with a working sheet. The contention of the Board is that the Working Sheet for the calculation of loss of revenue was prepared as per TNEB's terms and conditions of supply of Electricity Act. Hence, they prayed for the dismissal of the suit.
5. In the light of the above pleadings the trial Court framed the following issues namely:
1) Whether the plaintiff is enttiled to the relief of declaration?
2) Whether the plaintiff is entitled to the relief of a permanent injunction? and
3) To what other reliefs?
6. Before the trial Court, the plaintiff examined himself as PW.1 and Exs.A1 to A10 were marked on his side. The Board examined one Pandikumar as DW.1 and marked Exs.B1 and B2 on their side. After evaluating the evidence, the trial Court concluded that the plaintiff was not able to establish that there was no theft of energy by producing acceptable evidence. The trial Court also considered the question of maintainablity of the suit itself and found that as there was an appeal remedy provided in the impugned notice itself, the suit was premature and the civil Court has no jurisdiction to entertain the suit. Accordingly, the suit was dismissed by the trial Court.
7. Aggrieved by the judgment and decree of the trial Court, the plaintiff preferred A.S. No. 21 of 2005 and the frist appellate Court after re-evaluating the evidence, came to the conclusion that the impugned notice was issued without following the basic principles of natural justice and on that basis allowed the appeal and decreed the suit as prayed for.
8. Against the judgment of the first appellate Court, the Electricity Board has preferred this second appeal. This Court, on 28-04-2008, ordered notice returnable by 27-07-2008 without admitting the appeal on any substantial qustions of law. The respondent/plaintiff entered appearance through his counsel.
9. Heard the learned Counsel for the appellant/Electricity Board and the learned Counsel for the respondnet/plaintiff. I have also perused the entire records and the judgments relied on by both the learned counsel.
10. After going through the entire records and the arguments of both the learned Counsel, this Court is of the view that the following substantial question of law arises for consideration in the second appeal:
Whether the civil Court is having jurisdiction to entertain the suit for declaration that the assessment is null and void when there is a specific remedy available under the Terms and Conditions of supply?
11. After framing the above substantial question of law, both the Counsel submitted their arguments on this question. The learned Counsel for the appellant/Electricity Board vehemently contends that in the Impugned notice (Ex.A8 and Ex.A9 which is the Assessment Order and the Working Sheet respectively) itself, it was clearly stated that if the plaintiff wanted to prefer an appeal against the order of assessment, he may prefer an appeal to the Appellate Authority, namely, the Superintending Engineer, Madurai, wtihin 60 days from the date of receipt of the notice. Further, the assessment order itself was issued as per Clasue 8.08 of the Schedule Part-I of the term and conditions of Supply of Electricity.
12. In such circumstances, the learned Counsel for the Board contends that the civil suit challenging the assessment order itself, without preferring an appeal, is not maintainable and the jurisdiction of the Civil Court is implidely ousted as per Section 9 of CPC. Therefore, according to him the first appellate Court has wrongly allowed the appeal when the suit itself is not maintainable. In support of his submissions, the learned Counsel for the appellant relied on the following judgments:
a) 2008 (3) CTC 395 (Superintending Engineer, Virudhunagar Electricity Distribution Circle, Tamil Nadu Electricity Board, Virudhunagar v. Murali Raja)
b) : (2007)6MLJ471 (M. Prem Selvi v. Executive Engineer, (Distribution) Electricity Distribution Circle/South, Tatabad, Coimbatore and Anr.)
c) 2008 (5) CTC 307 (1. Assistant Engineer, Acquisition, Tamil Nadu Electricity Board, Rural,Court Raod, Tanjore Town, and two Ors. v. S. Baskaran)
d) 2008 (6) MLJ 787 (Asst. Engineer (O & M), TNEB, Vellore and Ors. v. Abdul Lathif Mahagir and Ors.)
e) : (2006)1MLJ480 (P. Maragathamani v. General Manager (in-charge) Bharat Heavy Electricals Limited, Trichy Complex, Tiruchirapalli-14 and Ors.)
13. Per contra, the learned Counsel for the respondent/plaintiff submits that the Civil Court's jurisdiction is not ousted as the appeal remedy is not an effective alternative remedy. Further, he adds that it is also not a statutory remedy. The learned Counsel further urged that one cannot easily imply that the civil Court's jurisdiction is ousted as per Section 9 of CPC, when every suit can be filed before the civil Court having jurisdiction unless it is specifically barred. That apart, in the case on hand, the learned Counsel contends that no principles of natural justice were followed by the Electricity Board and therefore, even if the appeal remedy is not availed, still the plaintiff can very well maintain the suit.
14. In support of his submissions, the learned Counsel for the respondent/plaintiff relies on the following decisions:
a) AIR 1996 MAD 364 (Annamalai Cotton Mills (P) Ltd. v. The Chairman, Tamil Nadu Electricity Board, Anna Salai, Madras-2 and Ors.)
b) 1997 TLNJ 25 (S. Seetha v. The Assistant Executive Engineer, Tamil Nadu Electricity Board, 5th Street, Bharathi Nagar, Vyasarpadi, Madras-39)
c) : AIR1997SC2364 (M.P. Electricity Board, Jabalpur v. Vijaya Timber Co.)
d) : [1993]3SCR522 (Shiv Kumar Chadha v. Municipal Corporation of Delhi and Ors.)
e) (Ranbaxy Laboratories v. Punjab & State Electricity Board, Patiala and Anr.)
15. I have considered the rival submissions carefully with regard to facts and citations.
16. First of all, it is not at all in dispute that what was challenged by the plaintiff before the trial Court is the Impugned Assessment Notice (EX.A8 and Ex.A9), wherein he was asked to pay a sum of Rs. 2,10,174/-. It is also not in dispute that in the very same assessment notice it was clearly stated that an appeal would lie to the appellate authority, namely, the Superintending Engineer against the order of assessment. Therefore, I am of the considered view that the plaintiff ought to have availed the appeal remedy before filing a suit challenging the order of assessment. When a remedy is given in the impugned notice itself, as rightly pointed out by the learned Counsel for the Board, the civil Court jurisdiction is impliedly ousted until the appeal remedy is exhausted.
17. Now, let me consider the decisions relied on by both the learned Counsel to cull out the legal principles enunciated thereon.
a) In 2008(6) MLJ 787 (cited supra), a suit was filed challenging the demand notice issued by the Electricity Board. This Court, after goging through the entire materials in that case, found that the plaintiff should have preferred the appeal as provided in the notice and without exhausting the remedy available under the Electricty Act, the plaintiff rushed to the civil Court. The learned Judge in that case relied on the decision of the Honourable Supreme Court reported in : [1997]2SCR1143 (Punjab State Electricity Board v. Aswanikumar)
b) In 2008 (5) CTC 307 (cited supra) the Electricity Board inspected the electricity connection of the plaintiff and came to the conclusion that there was theft of electricity. A show cause notice was issued calling for explanation as to why charges could not be collected from him for the alleged theft of energy and the plaintiff sent a reply to that notice. Thereafter, the impugned order was passed and that was challenged by the plaintiff by filing the suit. Before this Court, the question of maintainability and the jurisdiction of the civil Court to entertain the suit was raised. This Court, after going through the entire materials, held that when the plaintiff has a remedy, the civil suit is not maintainable and the same is liable to be dismissed. In this case also, this Court followed the judgement of Apex Court reported in : [1997]2SCR1143 (cited supra)
c) In : (2007)6MLJ471 (cited supra) the Board issued a notice to the plaintiff alleging that 65 HP energy from the supply given by the Board had been connected to the Generator and thereby using a total energy of 109 HP. To this notice, reply was given by the plaintiff. Thereafter, the plaintiff challenged the notice itself as null and void. In this case also, the maintainability of the suit as well as the jurisdiction of the civil Court was raised before this Court and this Court observed as under:
Para 21: On analysing the rival contentions made on behalf of the appellant as well as the respondents and on a perusal of the records available before this Court, it is seen that the main point for consideration arising in the present second appeal is as to whether the suit filed by the plaintiff/appellant is maintainable, in view of the availability of an alternative remedy provided under the temrs and conditions relating to the supply of electricity prescribed by The Electricity (Supply) Act, 1948, and in accordance with the other provisons of law available to the plaintiff. It was held by this Court in Tamil Nadu Electricity Board represented by Executive Engineer (Operation and Maintenance) Panruti and Ors. v. Chakkaravarthy (2005) 2 MLJ 426, that the suit filed challenging the order passed by the authority of the defendants Department cannot be challenged, in view of the specific provisions of the appeal provided under the relevant law applicable to the case.
d) In 2008 (3) CTC 395 (cited supra) this Court came to the very same conclusion that civil suit cannot be entertained if remedy contemplated under the Electricity Act is not exhausted. In this case also, this Court relied on the decision of the Honourable Supreme Court reported in : [1997]2SCR1143 (cited supra).
18. From the above, it is very clear that this Court has consistently taken the stand that when a show cause notice and final orders are passed by the Elctricity Board authorities, the remedies provided under those notices and orders are to be exhausted before rushing to the Courts. If such remedies, provided in the impugned orders and notices are not availed, the civil suit is not maintainable as the jurisdiction of the Court is impliedly ousted as per Section 9 of CPC.
19. Therefore, I am bound to follow the above judgments and I find that this case is also similar to those cases decided by this Court in the above said judgments and accordingly, the plaintiff's suit in the present case is also not maintainable.
20. Now, let me consider the judgments relied on by the learned Counsel for the respondent/plaintiff.
1. In (cited supra) a Full Bench of the Punjab & Haryana High Court held as under:
Para 19: Civil right of an aggrieved person is required to be established before the Civil Court. Indian Electricity Act, 1910 and Electricity (Supply) Act, 1948 has not created any alternative remedy under the Act. The remedy of alternative dispute mechanism under the regulations framed is not a statutory remedy. By virtue of such regulations, the jurisdiction of the Civil Court under Section 9 of the Code of Civil Procedure cannot be barred as the jurisdiction can be barred only by creating statutorily adequate and efficacious alternative remedy. The alternative dispute mechanism is manned by the officers of the Board. Such officers are in whole time employment of the Board. The appeal and revision are also entertained and adjudicated upon by the Zonal Level Dispute Settlement Committee and Board Level Settlement Committee consisting of the officers of the Board alone. Such mechanism is neither adequate nor efficacious remedy which can adjudicate upon civil rights of the parties in the manner contemplated before the Civil Courts.
Para 28: In view of the precedents discussed above, the following principles can be enumerated to determine whether the jurisdiction of the Civil Court can be said to be impliedly barred:-
(1) Ubi jus ibi remedium i.e. where there is a right there is a remedy. The jurisdiction of the Civil Court cannot be said to impliedly barred in respect of pre-existing common law right i.e. where the dispute has the characteristics of affecting one's right which is not only of civil but of civil nature as well. An exclusion of jurisdiction of the Civil Court is not readily to be inferred unless the conditions set down apply.
(2) Where a right or liability in respect whereof grievance has been made had been created under an enactment and it did not relate to pre-existing common law, the jurisdiction of the civil Court can be said to be barred if on inquiry the Court finds that adequate and efficacious alternative remedy is provided under the Act creating right and the liability under that Special Act.
(3) When a statute gives finality to the orders passed by the Special Tribunal so constituted, the jurisdiction of the civil Court can be said to be barred if there is identical remedy to do what the civil Court would do normally in a suit. However, such provision does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure.
(4) Even in those cases where the jurisdiction of a civil Court can be said to be impliedly barred, the civil Court will nonethe-less retain its jurisdiction and adjudicate the suit provided the order complained of is a nullity..
The above said judgment was very much relied on by the learned Counsel for the respondent/plaintiff to contend that the suit filed by the plaintiff is very much maintainable. But, I am not able to accept the same as this Court is taking a consistent stand in a matter of this nature, that too, after placing its reliance on the decision of the Honourable Supreme Court. Therefore, I am not inclined to accept the submissions of the learned Counsel for the respondent/plaintiff in this regard.
2) In 2006 (1) CTC 497 (cited supra), a Full Bench of this Court held that judicial discipline requires that clean pronouncements by Supreme Court about what law on a matter is, must be treated as binding on all the Courts in India. Where Supreme Court lays down a law in a particular case, it is not open to the High Court to consider (or) rely on any supposedly conflicting decision.
3. In AIR 1996 Mad 364 (cited supra)this Court observed that principles of natural justice are embodied in para 9.05 of the terms and conditions for supply of electricity framed by Tamil Nadu Electricity Board and it is upheld that these terms and conditions have statutory force. This Court also observed that the bar of alternative remedy does not apply when order impugned has been passed in violation of principles of natural justice.
This judgment was also very much relied on by the learned Counsel for the respondent/plaintiff in support of his submissions. But, this judgment was rendered in a writ petition wherein the question of ouster of jurisdiction impliedly under Section 9 CPC was not at all considered by this Court. Hence, it is not at all useful for the case of the respondent/plaintiff.
4) In 1997 TLNJ 25 (cited supra) this Court observed as under:
In the case of Southern Steelmet & Alloys Ltd. v. Karnataka Electricity Board AIR 1991 Kar 267, Karnataka High Court has held that in order to make out a case of dishonest abstraction of energy by the consumer, the decision making authority is expected to hold a proper enquiry affording reasonable opportunity to the consumer against whom grave charges were made. Unilateral decision based on surmise without being subject to the test of an explanation from the consumer would hardly satisfy the requirements of fair play and justice. As already seen, the provisional demand of Rs. 3,910/- was arrieved at without affording an opporutnity to the petitioner and it is also not established that the Board has such a power to make a provisional demand. Further, no enquiry was also done as contemplated in the notice dated 03-01-1985. The decision of the Karnataka High Court fully supports the case of the petitioner that the demand is illegal and the disconnection of electricity supply is also illegal. Delhi High Court has also taken the same view in the case of Kuldeep Singh Dhingra v. Muncipal Corporation of Delhi AIR 1992 Delhi 228, wherein the Court has held that the opportunity of hearing by issue of show-cause notice by the Board is necessary before disconnecting the electric supply. The Court held that opportunity of hearing prior to the disconnection is mandatory and there should be a proper enquiry on the representation made by the consumer. The decisions make it clear that there should be a proper enquiry to determine the amount of loss sustained by the Board. Unilateral decision could not be a sufficient compliance of the Rules and regulations of the Board. Since the respondent has not afforded any opportunity before disconnecting and dismantling the installation, the removal of the installation is not sustainable in law. Learned Counsel for the petitioner has not disputed the liability to pay a sum of Rs. 211.80 and another sum of Rs. 261/- demanded by the respondent. Hence, the writ petition is allowed directing the respondent to restore the electric connection to the petitioner within 10 days from this date. The petitioner is directed to pay the above said amount of Rs. 211.80 and Rs. 261/- along with necessary charges to the respondent Board before the electric supply is restored. Of course, nothing prevents the respondent from taking appropriate action or holding proper enquiry, if it deems fit....
A perusal of the above judgment will show that the facts are entirely different and here also, the question of implied ouster of jurisdiction under Section 9 CPC was not considered by this Court.
5. In : AIR1997SC2364 (cited supra) a suit was filed for damages against Electricity Board for laying High Power Transmission Lines through the construction of the plaintiff without his consent. In that context, the Supreme Court observed that the provisions of Electricity Act are not applicable and the civil suit is not at all barred.
6) In : [1993]3SCR522 (cited supra) the Honorable Supreme Court held that the civil Courts jurisdiction to got in to the question whether the order passed under the Delhi Municipal Corporation Act was a nullity being vitiated by jurisdictional error is not barred. This judgment is also not helpful to the case of the respondent/plaintiff as it arose under the Delhi Municipal Corporation Act, 1957 and not under the Indian Electricity Act.
21. In the light of the above, I have no hesitation in holding that the suit filed by the respondent/plaintiff in O.S. No. 950 of 2000 is impliedly barred under Section 9 CPC and therefore, the same is not at all maintainable. The substantial question of law was answered in the above terms and in favour of the appellant Board.
22. Consequently, the second appeal is ALLOWED by setting aside the judgment and decree of the lower appellate Court and confirming the judgment and decree of the trial Court. No costs.