The demand for payment of electricity charges must be in accordance with the terms and conditions of supply, supported by legal evidence, and not solely based on audit objections and presumption.

1. What is challenged herein is the judgment of the learned Subordinate Judge, Srivilliputhur, made in A.S. No. 85/90 wherein the judgment of the trial Court granting a decree in favour of the appellant/plaintiff was reversed.

2. The following facts are noticed in the pleadings of the parties:

The plaintiff filed the suit for declaration that the notice of the Electricity Board was illegal and for consequential permanent injunction alleging that he was running a theatre in the suit property; that the Electricity Board had given electricity service connection to his theatre under No. SC 205; that a meter was fixed in that regard; that he has got a generator also; that whenever there was power cut, the generator will be used by him; that the meter was found defective during February 1983; that the same was removed; that from February 1983 to 5.8.1983, the charges were collected from him by adopting average unit system namely 626 units per month; that during the said period there were frequent power cut; that the Electricity Board was insisting the payment of Rs. 315.70 for January 1983 and Rs. 194.20 for the period from December 1981 to August 1982 on the ground that there was short assessment; that he paid all the charges without fail; that there was no due from his side; that the official of the Electricity Board was directed to include Rs. 7,605.90 towards charges for the period from June 1982 to June 1983, while taking the reading for August 1985 in respect of the plaintiffs theatre; that he sent objections to the department; but, the Electricity Board had sent a notice calling upon him to pay the said amount and directing that in case of non-payment, his service connection will be disconnected; and that the demand by the Electricity Board was illegal.

3. The defendants while admitting all the above factual position, alleged in the written statement that at the time of the audit on 5.7.1985, it was found that the meter has been struck up in January 1983, and average consumption of 620 units had been billed from 20.12.82 to 4.8.83, and a new meter was fixed on 5.3.85; that on review of the records, it was seen that the consumption recorded from 10.6.82 onwards were comparatively very low, and hence, it was presumed that the meter might have been defective from June 1982 onwards, and billing of average of 3 months consumption recorded from 10/82 to 12/82 in the reference was not correct; that the consumption recorded from January 1981 to February 1984 were worked out, and thus, there was a sum of Rs. 7,605.90 deducting the earlier payment made by him; that a notice was served on him; that the Electricity Board was entitled to get the amount, and therefore, the suit was to be dismissed.

4. The trial Court framed the necessary issues, tried the suit and dismissed the same. The aggrieved plaintiff took it on appeal, wherein the judgment of the trial Court was reversed by the first appellate Court. Hence, this second appeal at the instance of the plaintiff

5. At the time of admission, the following substantial questions of law were formulated by this Court:

(1) Whether the Electricity Department can make a levy for consumption of electricity on the reasonings not contained as embodied under the terms and conditions of supply?

(2) Can the Electricity Board against the specific provision relating to the compensation of electricity charges in the case of defective meters, adopt different procedure simply on the basis of audit objection?

(3) Is onus of proof upon the Electricity Board the proof that the meter was defective even earlier?

(4) Is the audit objection without a notice to the consumer will be binding upon the consumer?

6. After hearing the rival submissions, this Court has to necessarily set aside the judgment of the first appellate Court and restore that of the trial Court.

7. It is not in dispute that the appellant/plaintiff was enjoying the consumption of electric energy by having a service connection No. S.C.