cra181.05 -1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO. 181 OF 2005 Maharashtra Sate Electricity Board, Now, Maharashtra State Electricity Distribution Company Limited having its office at New Administrative Building, Station Road, Ahmednagar Through the Executive Engineer (UCR) ...Petitioner Versus Surjitsingh s/o Bhagatsingh Gambhir, Age 42 years, Occ. Business, R/o. Gurunanak Dbaha, at Nandgaon Tq. and District Ahmednagar ...Respondents ..... Mr. Satish M. Godsay, advocate for the petitioner Mr. V.S. Dhage, advocate for the respondent ..... CORAM: R.M. BORDE, J. DATED: 28TH MARCH, 2011 JUDGMENT:- 1 Heard learned counsel for respective parties. 2 The petitioner, original defendant, is challenging the order cra181.05 -2- passed by IInd Joint C.J.S.D. Ahmednagar dated 26.10.2005 in Regular Civil Suit No. 520 of 2004, thereby overruling the preliminary objection raised by the petitioner/original defendant in respect of jurisdiction of civil court to try and entertain the suit. 3 The respondent (hereinafter referred to as “the plaintiff”) instituted R.C.S. No. 520 of 2004, which is later on converted to Special Civil Suit No. 65 of 2005. It is stated in the plaint that the plaintiff is running a Dhaba in the name and style as “Gurunanak Dhaba” at village Nandgaon, Tq. and District Ahmednagar. The plaintiff has secured electricity supply from defendant M.S.E.B. It is stated in the plaint that the electricity supply extended by defendant is restricted to 1 KV load with three phase electricity connection. It is further stated in the plaint that on 25.6.2004, a flying squad paid visit to Dhaba run by the plaintiff and found that connected load was 13 KV which is far more than the sanctioned load. The electricity meter provided was also operating at only 1/3rd of the speed. The flying squad thereafter conducted the panchnama and recorded all the facts. The inspection by flying squad was followed by provisional bill for an amount of Rs.2,62,210/-. The plaintiff contends that as the complaint was lodged with A.C.B. Ahmednagar against official of the defendant, by way of counter blast, the bill demanding excess amount was issued by the defendant. The plaintiff as such seeks declaration that demand cra181.05 -3- of bill dated 16.7.2004 for an amount of Rs.2,26,900/-, as well as for an amount of Rs.2,62,210/- dated 11.10.2004 and bill in respect of civil liability for amount of Rs.2,22,585/- be declared as not binding on the plaintiff. 4 The defendant appeared and resisted the suit by filing written statement. An preliminary objection was raised by the defendants contending that in view of provisions of Section 145 of Electricity Act, 2003, the civil court does not have jurisdiction to deal with the issue. The trial court framed preliminary issue to that effect and called upon the parties to address the court. After considering points raised by the parties, the trial court came to the conclusion that civil court does have jurisdiction to entertain the dispute and accordingly recorded finding in favour of the plaintiff. The order passed by the trial court dated 26.10.2005 is subjected to challenge in this Civil Revision Application by the defendant. 5 I have heard arguments advanced by respective counsel appearing for the parties. Shri Godsay, learned counsel appearing for the petitioner original defendant has contended that the trial court has not properly appreciated the provisions of Sections 126 and 127 of Electricity Act 2003 and has drawn erroneous conclusion in respect of vesting of jurisdiction in the civil Court. It is the contention of the cra181.05 -4- petitioner that the disputed bill issued to the plaintiff is in accordance with the provisions of Section 126 of Electricity Act and as such remedy of appeal, as provided under Section 127 is available to the plaintiff. It is also contended that bar contained to Section 125 of the Act equally applies to declaratory relief as claimed by the plaintiff in the instant matter. 6 Counsel appearing for the respondent has supported the order passed by the Trial Court and contended that issuance of bill by the defendant itself is an action by way of counter blast to the complaint lodged by the plaintiff with Anti Corruption Bureau. 7 Section 126 of the Electricity Act, 2003 requires officials of the energy providers to issue provisional bill based on the assessment on conducting inspection of any place or premises if in the event it is disclosed that consumer is indulging in unauthorized use of the electricity. It is the contention of the plaintiff that the bill issued by the electric energy provider is in respect of civil liability and as such provisions of section 126 of the Act is not attracted. It is the contention of the plaintiff that in the facts and circumstances of the case, it cannot be concluded that the plaintiff is indulging in unauthorized use of electricity and as such requirements of Section 126 of the Act, are not complied with. It is thus contended that if cra181.05 -5- requirements of section 126 of the Act have not been complied with the question of availing remedy by the consumer under Section 127 of the Act does not arise. In the event of any procedural lapse in issuing bill or in the event of failure to adhere to the statute, the bar of suit contained in Section 145 of the Act would not get attracted. The trial court appears to have accepted this contention raised by the plaintiff. If the facts of the instant case are scrutinized carefully, it would lead to the conclusion that the findings recorded by the trial court in respect of inapplicability of Section 126 of the Act is erroneous. 8 It is not disputed that flying squad visited the premises of the plaintiff on 25.6.2004 and after inspection of the electrical gadgets, panchnama was recorded on the same day. It was found by the flying squad that sanctioned load of consumer is 1 KV whereas connected load is 13 KV. These facts themselves disclose that there is unauthorized user of electricity. The officials of defendant issued a provisional bill on 16.7.2004. The plaintiff was expected to present his objection which he submitted on 23.7.2004, as contemplated by sub- section 3 of section 126 of the Act. The defendant thereafter proceeded to issue final bill on 30.8.2004. It was open for the plaintiff to challenge final bill issued under Section 126 within 30 days by presenting appeal before the appellate authority as contemplated by Section 127 of the Act. Section 145 of the Act mandates bar for cra181.05 -6- entertainability of suit by civil court which reads thus:- “145. Civil Court not to have jurisdiction.- No Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which an assessing officer referred to in Section 126 or an appellate authority referred to in section 127 or the adjudicating officer appointed under this Act is empowered by or under this Act to determine and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.” 9 On consideration of the facts and circumstances of the case, contentions raised by the plaintiff that bill issued to him cannot be said to be within ambit of Section 126 of the Act cannot be accepted. It was open for the plaintiff to avail of the remedy of appeal as provided under Section 127 of the Act. The findings of the appellate authority recorded under Section 127 are final and conclusive. Reason recorded by the trial court that the order passed under the Act does not attach finality to the orders, is erroneous. Moreover, the argument that the forum dealing with the appeal is incapable of passing any orders or dealing with the matter in the manner in which the civil court deals with the dispute and as such remedy of approaching the civil court for claiming declaratory relief cannot be said to have been lost is also unacceptable. Reliance placed by the trial court on the reported cra181.05 -7- judgment in the matter of Dhulabhai and others Vs. State of Madhya Pradesh and another, reported in (1968) 2 SCR 662 is misplaced for the reason that the matter appearing before the Court was in respect of interpretation of unamended Act. By virtue of new enactment i.e. Electricity Act 2003 special provision is incorporated in respect of presentation of bill, provisional as well as final and the forum is provided for raising challenge to the final bill. 10 In these circumstances, considering the provisions of Electricity Act 2003, reliance placed on Dhulabhai’s case for holding that the civil court shall have jurisdiction to entertain the dispute does not appear to be reasonable and proper. In view of the specific provisions incorporated in Electricity Act 2003 in shape of Section 126 and 127 for raising challenge to the assessment as well as in view of provisions of Section 145 of the Electricity Act, which provides for appellate remedy the suit is not entertainable. The view taken by the civil Court that it has jurisdiction to entertain challenge shall have to be overruled. 11 In the result, Civil Revision Application is allowed. The order passed by the IInd Joint Civil Judge Senior Division, Ahmednagar on 26.10.2005 in Regular Civil Suit No. 520 of 2004 is quashed and set aside and the issue framed by the trial court “Whether this court has cra181.05 -8- jurisdiction to entertain and try present suit” is answered in negative and consequently the suit presented by the plaintiff shall stands dismissed. 12 Rule is accordingly made absolute. In the facts and circumstances of this case, there shall be no order as to costs. *****