JUDGMENT :

Dr. G. Jayachandran, J.

(The case has been heard through video conference)

1. Against the reversal judgment, the present Second Appeal is filed by the Electricity board, who are the defendants in the suit filed by the consumer.

2. The short facts of the case is that the respondent herein obtained service connection for his Mini Flour Mill with 5 H.P. motor. Based on the certificate issued by the District Industries center (DIC), Vellore, concession tariff was fixed for the respondent flour mill under tariff III(a) provided for mini/small industries. Subsequently the Government of Tamil Nadu has passed G.O.Ms. 29 Energy (A2) dated 31.01.1995 which is marked as Ex. B-2, reclassifying the tariff for mini flour mill from tariff III(a) to III(b) resulting the concession so far provided for mini flour mill with less than 10 H.P. was withdrawn. Despite the Government Order, the respondent flour mill was continue to enjoy electricity at the concessional charge under tariff III(a) till the audit section of the Electricity Department found non implementation of G.O. Thereafter, the 3rd appellant herein has issued a demand notice dated 28.04.1999 (Ex. A-2) which is the subject matter of the suit.

3. Aggrieved by the notice, without affording opportunity demanding a sum of Rs. 9,928/- arrears incurred due to change of tariff, the suit has been filed seeking declaration that the impugned notice dated 28.04.1994 (Ex. A2) converted tariff from III(a) to III(b) as illegal, void and inoperative and allow the plaintiff to enjoy the tariff under III(a) of the suit mentioned service connection and consequential injunction restraining the defendants and his men and agent for enforcing the impugned notice.

4. The lower appellate Court after considering the exhibits and the oral evidence has held that there is no error or illegality on the part of the Electricity board converted the tariff for the plaintiff industries from III(a) to III(b).

5. For the said purpose, the trial Court has relied upon the judgment of this Court reported in [2007 (6) M.L.J. 42 (MAD)] Tamil Nadu Electricity Board by its Junior Engineer, O & M, Melpatti Section, Gudiyatham Taluk Vs. Mohideen Sahib and another.

6. On appeal filed by the plaintiff, the appellate Court reversed the finding of the trial Court and has allowed the suit on the ground that there is a violation of natural justice principle in issuing the demand notice Ex. A-2 without affording opportunity to show cause why the plaintiff has to pay the difference of Rs. 9,928/- due to change of tariff. The lower appellate Court has observed that the defendant has not produced evidence regarding change of tariff from III(a) to III(b). The defendants are liable to issue show cause notice to the plaintiff before issuing the demand notice. Non issuance of show cause notice is in violation of natural justice. Having held so, the lower appellate Court has set aside the decree and judgment of the trial Court and allow the suit in toto.

7. On hearing the learned counsels, the following substantial questions of law are framed:

"a. Whether the Lower Appellate Court erred in not following the Hon'ble High Court judgment dated 29.08.2007 made in S.A. No. 1271 of 2006 and dismissed the first appeal?

b. Whether non-issuance of notice regarding change of tariff is not a violation of natural justice as laid down in the judgment of our Hon'ble High Court dated 29.08.2007 made in S.A. No. 1271 of 2006?

c. Whether the suit not maintainable and is liable to be dismissed without exhausting the appeal remedy provided under the Rules and Regulations of Appellants/TNEB?

d. Whether the first appellate Court erred in not considering the case of the appellants/TNEB about the exercise of powers of the Government under Section 4 of the Tamil Nadu Revision of Tariff on Supply of Electrical Energy Act 1978, various statutory orders of Government published in the Tamil Nadu Government Gazette?"

8. The learned counsel appearing for the Electricity Boa