R.Barathi v. The Chairman

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 17.11.2021

CORAM

THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY W.P.No.33794 of 2017 and W.M.P.Nos.37437 to 37439 of 2017 R.Barathi ... Petitioner

Versus

1. The Chairman, Tamil Nadu Generation and Distribution Corporation Limited, No.144, Anna Salai, Chennai 600 002.

2. The Assistant Engineer, O & M, St.Thomas Mount, Chennai - 600 016.

3. The Executive Engineer/O & M, Guindy, CEDC/South, Chennai.

4. The Superintending Engineer, DFC/South-l, Chennai -600 078.

... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India, for the issuance of Writ of Certiorari, seeking to call for the records of the impugned current consumption bill issued by the first respondent for the month of 12/2017 insofar as the audit amount of Rs.1,09,778/- is concerned and quash the same as being arbitrary, illegal and without authority of law and contrary to the provisions of the Electricity Act 2003.

For Petitioner : Mr.R.Parthasarathy For Respondents : Mr.L.Jai Venkatesh Standing Counsel

O R D E R

This Writ Petition has been filed seeking for issuance of a Writ of Certiorari, to call for the records of the impugned current consumption bill issued by the 1st respondent for the month of 12/2017 insofar as the audit amount of Rs.1,09,778/- is concerned and quash the same as being arbitrary, illegal and without authority of law and contrary to the provisions of the Electricity Act 2003.

2.It is the case of the petitioner that based on the account summary slip dated 29.11.2017, the 3rd respondent demanded a sum of Rs.1,09,778/- towards arrears of C.C. Charges. The 3rd respondent has furnished the details of the arrears due and payable by the petitioner during the period between 02/10 and 8/12 for a total sum of Rs.1,09,778/-. By referring to the said details, the learned counsel for the petitioner submits that the respondents claimed arrears of C.C. Charges for the years 2010 to 2012 belatedly, that too after a lapse of 5 years, in the year 2017. The learned counsel would 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.

3.Per contra, the learned Standing Counsel appearing for the respondents would submit that admittedly, the petitioner has not paid the shortfall for the period between 02/10 and 08/12 and therefore, the 1st 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 Writ Petition.

4.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.

5.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."

6.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 does not empower the 1st respondent to recover any amount if the period of two years has elapsed no electricity supply be cut off for nonpayment 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 would be attracted. 7.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).

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 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 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. "

8.In the light of the above discussion, the impugned demand made by the 1st respondent cannot be sustained and hence, the same is liable to be set aside.

9.In view of the above, this Writ Petition is allowed and the impugned current consumption bill issued by the first respondent for the month of 12/2017, insofar as the audit amount of Rs.1,09,778/- is quashed. No costs. Consequently, connected miscellaneous petitions are closed. Sd/- Assistant Registrar //True Copy// Sub Assistant Registrar rst To:

1. The Chairman, Tamil Nadu Generation and Distribution Corporation Limited, No.144, Anna Salai, Chennai 600 002.

2. The Assistant Engineer, O & M, St.Thomas Mount, Chennai - 600 016.

3. The Executive Engineer/O & M, Guindy, CEDC/South, Chennai.

4. The Superintending Engineer, DFC/South-l, Chennai -600 078.

+1cc to Mr.R.Parthasarathy, Advocate SR. No.59277 +1cc to Mr.L.Jai Venkatesh, Advocate SR. No.59162 W.P.No.33794 of 2017 and W.M.P.Nos.37437 to 37439 of 2017 AKII (CO) PR (07/12/2021)