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Case Update: Disconnection of Electricity Supply due to Meter Tampering – Not an absolute right for TNB

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UTILITIES LAW
Tenaga Nasional Berhad – Electricity – Meter Tampering – Notice of Disconnection – Remedied – Appeal – Amendment – Electrical Supply Act 1990, Sections 37(1), (3) and (14) & 38 (1)

Tenaga Nasional Berhad v Chew Thai Kay and Anor
Civil Appeal No. A-02(i)-28-07/2020(A) | Federal Court
- see the grounds of judgment here

Facts Tenaga Nasional Berhad (TNB) (“Appellant”) is a limited company incorporated under the Companies Act 1965 and is the sole licensee for the delivery and distribution of electricity under the Electrical Supply Act 1990 (“ESA”) in Peninsular Malaysia. The 1st Respondent is the registered user of electricity supply at a premise in Perak (“premises”). The 2nd Respondent is a commercial enterprise who purchased the premises from the 1st Respondent. The 1st Respondent remained the registered consumer with TNB. TNB carried out an inspection on its meter installation at the premises and discovered that there had been a tampering of the meter, which meant that it did not correctly record the actual utilisation of electricity by the 2nd Respondent. The meter was then rectified by TNB. After replacing the impugned meter, TNB issued a Notice of Disconnection intending to disconnect the electricity and informed the Energy Commission of its findings at the premises that an offence has been committed under sections 37(1), (3) or (14) of the ESA[1]. The Respondents commenced an action in the High Court and applied for an injunction, which was later granted, to restrain TNB from disconnecting the supply of electricity at the premises. An appeal was made to the Court of Appeal but it was dismissed, Hence, this appeal.

Issue Whether the statutory power to discontinue electricity supply can be invoked by TNB in the absence of a continuing offence under section 37 of the ESA or when the said offence is no longer extant.

Held In dismissing the appeal, YA Azahar Bin Mohamed, held that TNB has no lawful power to disconnect a consumer electricity supply pursuant to the amended section 38(1) of the ESA[2] once the impugned meter has been rectified and replaced, and the offence under section 37 is no longer subsisting and cease to exist at the material time when the Notice of Disconnection is issued to the customer. It was held that the word “found” in section 38(1) of the ESA is very clear to indicate that the requirement of finding of meter tempering is the singular factor to trigger powers of disconnection. This is the basic condition that must be fulfilled to invoke the power of disconnection. The amended section 38(1) is also an enhancement on the protection to the consumers and is more onerous and stringent for TNB to disconnect electricity supply. The facts of the present cases shows that the alleged offence under section 37(1) is a past offence. After the rectification and replacement of the meter, there was no issue of any offence being committed since the supply of electricity on the premises was properly and accurately recorded. As such, the language of section 38(1) does not allow for future disconnection of electricity in circumstances where the offence under section 37(1) was in the past and is no longer being continued. The Federal Court concluded that the amendment to s.38 (1) of the ESA had not altered the position of law in Malaysia in respect to the scope of TNB’s power to disconnect electrical supply.

Zul Rafique & Partners
{14 January 2022}
[1] ss. 37(1), (3) or (14) deals with the act of tampering with or adjusting any installation, dishonestly abstracts, uses or consumes electricity and damages any meter or other instrument used on or in connection with any licensed installation, for recording the output or consumption of electricity
[2] s. 38 (1) of the ESA empowers the licensee, in this case TNB, to disconnect supply of electricity on grounds that an offence has been committed under ss. 37(1), (3) or (14).

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