1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR Second Appeal No. 46/2011 Mohammed Ismail s/o Sheikh Ibrahim Vs. The Chairman, Maharashtra State Electricity Board and others. =-=-=---=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, Office Memorandum of Coram appearances, Court's orders or directions & Registrar's orders. Court's or Judges Order =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Mr. R. S. Akbani, Advocate for the appellant. CORAM : R.M. SAVANT, J. DATED : 18/2/2011. 1] This Second Appeal takes exception to the judgment and decree dated 29th June 2010 in Regular Civil Appeal No. 691/2008 by which the decree of dismissal of the suit filed by the appellant above named came to be confirmed. 2] The appellant, above named, is the original plaintiff, who had filed the suit for declaration and injunction against the respondent no.1 herein i. e. Maharashtra State Electricity Board. The suit was filed as the plaintiff had received a notice from the defendants demanding an amount of Rs.76,342.72 which the plaintiff was called upon to pay by a particular date, failing which the plaintiff was put on notice that his electricity supply would be disconnected. As the plaintiff failed to pay the said amount of the bill, the electricity connection of the plaintiff was disconnected on 2 29.8.2000. The plaintiff, therefore, filed Regular Civil Suit No. 1927 of 2000. 3] The defendants filed their written statement and denied the case of the plaintiff. It was the case of the defendants that the plaintiff though had obtained the electricity supply for agricultural purposes was using it for commercial purposes. The electricity connection given to the plaintiff was for only 3 HP whereas the plaintiff was in fact consuming more than 10 HP. The plaintiff was using the electricity for the purposes of of horticulture, fishing and teak wood plantation for which he had installed pumps having different horse power. The defendants further averred that the Flying Squad of the defendants had inspected the site in question and it was found that the plaintiff was using additional load of 9.59 HP. The amount claimed in the sum of Rs. 76,343.72 was the amount towards additional charges for the additional load that was used by the plaintiff. 4] The Trial Court framed an issue as to whether the electricity connection was legally disconnected. The Trial Court on the basis of the evidence on record arrived at a finding that the since the plaintiff was consuming electricity in excess of that sanctioned, in his favour that is to the extent of 9.59 HP and was also using the same for commercial purposes, the demand notice issued on the plaintiff 3 could not be said to be illegal. Consequently, the disconnection on account of non-payment of the said amount also could not be said to be illegal. The Trial Court, therefore, dismissed the suit. 5] The plaintiff aggrieved by the dismissal of the suit filed Regular Civil Appeal No.691/2000. The First Appellate Court confirmed the findings of the Trial Court in the matter of misuse of electricity by the plaintiff for commercial purposes as also that the plaintiff was consuming electricity far in excess of the sanctioned limit in his favour. Both the Courts below have, therefore, concurrently recorded that the plaintiff was misusing the electricity for commercial purposes and was also consuming electricity far in excess of his entitlement. 6] Heard the learned counsel for the appellant/plaintiff. 7] Mr. Akbani, learned counsel for the appellant would contend that the Courts below have wrongly placed reliance on the Inspection Report of the Flying Squad dated 12.5.2000. The learned counsel would contend that in view of the fact that since the report has not been proved, the Courts below could not have taken the said report into consideration to arrive at a finding in respect of excess consumption of electricity against the plaintiff. The learned counsel would contend that once the said report is not taken into consideration, there was no material on record to substantiate the 4 allegations made by the defendants against the plaintiff. 8] The learned counsel for the appellant would further contend that the horticulture activities and the fishing activities which were carried out, qualify as agricultural activities and, therefore, the defendants were not entitled the charge the plaintiff at a commercial rate. 9] Taking the first submission of the learned counsel for the appellant that the Courts below have erred by recording a finding by taking into consideration the inspection report dated 12.5.2000 is concerned, it is required to be noted that both the Courts below were aware of the fact that the said report has not been proved, however, both the Courts below were of the view that there was other material on record that the plaintiff was consuming electricity in excess of the sanctioned connection. The Courts below have taken into consideration the plaintiff’s reply to the notice which reply is dated 21.7.2000 in which the plaintiff has admitted certain facts which have been recorded in the inspection report. Both the Courts blow have also taken into consideration the complaint filed by the plaintiff being Complaint no.397/2000 before the Additional District Consumer Redressal Forum in which complaint also the plaintiff has alluded to the inspection report as well as disconnection of the electricity pursuant to the notice given by the defendants on the 5 basis of the said report. 10] Insofar as the second submission of the learned counsel for the appellant, it is required to be noted that it was not the case of the plaintiff that he was not carrying out horticultural activities or fishing activities or growing of teak wood for which the electricity was consumed by him. But it is his case that the said activities would come within the purview of agricultural activities. It is further required to be noted that the plaintiff has been granted the said electricity connection for which he was being charged at a subsidised rate as the plaintiff was to grow crops in his land. The plaintiff has diverted the electricity towards horticulture, fishing and teak wood plantation for commercial gains, has thereby misused the electricity supply which is given to him at a subsidised rate. 11] In my view, therefore, even assuming that the said report dated 12.5.2000 is not relied upon, there was ample evidence on record for the Courts below, which the Courts below have taken into consideration to arrive at a finding that the plaintiff was misusing the electricity for horticulture purposes and also for fishing and teak wood, and also consuming excess electricity. 12] Lastly it is required to be noted that the plaintiff has given up the challenge in the First Appellate Court to the demand which was made on him. It is the contention of the learned counsel 6 appearing for the appellant-plaintiff that the only relief now sought is as regards the declaration and injunction against the defendants in the matter of disconnection of electric supply. In my view, in the teeth of the findings recorded by the Courts below that the plaintiff was unauthorisedly consuming 12.59 HP instead of sanctioned 3 HP, the plaintiff is not entitled to the said relief. 13] Having considered the judgments of both the Courts below and the findings recorded, no substantial question of law arises for consideration in the above Second Appeal, which is accordingly dismissed. JUDGE Ambulkar