Can TNB exercise its statutory power to discontinue electricity supply in the absence of continuing offence under Section 37 of the Electricity Supply Act or when the said offence is no longer in existence?

TENAGA NASIONAL BERHAD v CHEW THAI KAY & ANOR [2022] 2 CLJ 333

• Tenaga Nasional Berhad (TNB) (“Appellant”) 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”) and the 2nd Respondent is a commercial enterprise who purchased the premises from the 1st Respondent.

• The 1st Respondent remained the registered consumer with TNB.

• On 7.6.2018, TNB carried out an inspection on the meter’s installations at the premises.

• Upon inspection, TNB discovered that the electricity meter’s installations had been tampered with and as such, the meter failed to accurately record the electricity utilisation.

• TNB then rectified and replaced the meter. 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 Electricity Supply Act.

• The Respondents commenced an action in the High Court and applied for an injunction to restrain TNB from disconnecting the electricity supply at the premises which was granted.

• TNB appealed to the Court Appeal against the injunction order but was dismissed, hence this appeal.

• The facts of the present cases show that the alleged offence under section 37(1) is a past offence.

• The impugned meter has been rectified and replaced (which was done by TNB), and the offence under section 37 has ceased to exist at the material time when the Notice of Disconnection was issued to the customer.

• After the rectification 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

• 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 Federal Court held that TNB has no lawful power to disconnect a consumer electricity supply pursuant to the amended section 38(1) of the ESA whereby Section 38(1) of ESA 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.