IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 15TH JULY 2011 / 24TH ASHADHA 1933 RSA.No. 949 of 2004() --------------------- AS.80/2001 of PRL.SUB COURT, KOZHIKODE OS.501/1998 of I PRL.M.C.KOZHIKODE .................... APPELLANT/ APPELLANT/PLAINTIFF: ---------------------------------------- TARA RAMESH, W/O. A. RAMESH, AGED 50 YEARS, M/S. MILAN ICE FACTORY, 1/438, INDUSTRIAL DEVELOPMENT PLOT, WEST HILL, CALICUT-673 005. BY ADV. SRI.C.M.ANDREWS RESPONDENT(S): RESPONDENTS/DEFENDANTS: -------------------------------------- 1. THE ASSISTANT EXECUTIVE ENGINEER WEST HILL, ELECTRICAL MAJOR SECTION KEALA STATE ELECTRICITY BOARD, KACHERI AMSOM, CALICUT-5. 2. THE CHAIRMAN, KERALA STATE ELECTRICITY BOARD VAIDHYUTHI BHAVAN, THIRUVANANTHAPURAM. ADV. SRI.P.SANTHALINGAM.SC.KSEB SRI.KODOTH SREEDHARAN, SC, KSEB THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 15/07/2011 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.949 OF 2004 --------------------------------------------- Dated 15th July, 2011 JUDGMENT Plaintiff in O.S.501/1998 on the file of Principal Munsiff Court-I, Kozhikode is the appellant. Respondents are the defendants. Appellant is running Milan Ice Factory situated in Industrial Development Plot, West Hill. Factory is having electric connection with consumer No.5347-A and 5347-B. It has three phase connection. Appellant received Ext.A1 additional bill demanding Rs.90,074/- dated 30/7/1998 based on joint inspection of Anti Power Theft Squad conducted on 17/7/1991 being 50% of consumption from August 1997 to July 1998. Appellant sent Ext.A2 letter to the Deputy chief Engineer, APTS, RSA 949/04 2 Thiruvananthapuram stating that on a thorough checking of all the previous bills and meter cards, there was no demand for consumption of units as assessed in Ext.A2. It was pointed out that consumption of energy during June 1997 and July 1997 were only 3651 and 4449 units and even during August 1997 consumption was only 9416 units. It is also contended that power meter and C.Ts. were all subsequently changed and even if reading for one year period is taken and it is assumed that the motor works for 24 hours on all days in a month the total consumption will not exceed 21000 units. In such circumstances, it was requested to reconsider the matter and cancel Ext.A1 bill. The Deputy Cheif Engineer in turn treated it as an appeal though Ext.A2 dos not show that it was an appeal and sent Ext.B1 notice directing RSA 949/04 3 him to deposit 50% of the consumption charges demanded under Ext.A1 and also directed him to forward all the attested copies of the documents in support of the representation. As Ext.A2 was not an appeal and the Deputy Chief Engineer, Anti Power Theft Squad is not Appellate Authority, apprehending that electric connection would be disconnected, appellant instituted O.S.501/1998 before Principal Munsiff Court-I, Kozhikode seeking a decree for permanent prohibitory injunction restraining the respondents from disconnecting the electric connection, without payment of the amount demanded under Ext.A1 bill. Appellant contended that even earlier there were instances demanding excessive amount which compelled the appellant to institute O.S.726/1988 and O.S.246/1995 seeking a decree RSA 949/04 4 for injunction restraining the Board from disconnecting electric connection which were granted under Exts.A6 to A9 decree and judgments. Appellant would contend that Electricity Board is not entitled to disconnect the supply as she is not liable to pay the amount demanded under Ext.A2, especially when the fault in the meter was not on account of any act of the appellant. Respondent resisted the suit contending that surprise inspection was conducted by the authorised officers of the Board on 17/7/1998 and during the inspection it was found out that power meter is not recording the actual consumption and it was on account of the breakage of lead wire of CT, the meter is recording only 2/3 of the actual consumption and M.R.T seal in the meter and the terminal cover seal are intact and in RSA 949/04 5 such circumstances, Board decided to collect 50% additional charges for the actual consumption, as what was recorded was only 2/3 of the actual consumption and appellant is bound to pay the same. It was also contended that Sub Section 6 of Section 26 of Indian Electricity Act has no application and the suit is not maintainable as the appellant has an alternative remedy and appellant did not send any reply to Ext.B2 notice. 2. Learned Munsiff on the evidence of Pws.1 and 2, DW.1, Exts.A1 to A9 and B1 to B4 dismissed the suit holding that when appellant has an alternative remedy, she is not entitled to decree for injunction sought for. Appellant challenged the judgment before Sub Court, Kozhikode in A.S.80/2001. Learned Sub Judge found that when appellant has alternative RSA 949/04 6 remedy, she is not entitled to approach the civil court without exhausting that remedy and held that if Deputy Cheif Engineer who received Ext.A2 is not the proper authority to consider Ext.A2 representation it should be sent by him to the proper authority to pass a reasoned order and allowed the appeal in part and directed the Deputy chief Engineer, who received Ext.A2, if he has jurisdiction to pass a reasoned order and if he is not the proper authority, to forward it to the proper authority and also directed that the proper authority shall issue notice to the plaintiff and pass reasoned order. Learned Sub Judge also restrained the respondents from demanding the amount covered under Ext.A1, even though there was no such prayer in the suit till the decision as directed is taken. It is challenged RSA 949/04 7 in the second appeal. 3. Appeal is admitted formulating the following substantial questions of law. 1) Whether in view of the pleadings of the parties available in the case namely, that there is no defect at all in the meter so as to have the issue referred to the authority mentioned under Section 26(6) of the Indian Electricity Act, 1910 was it proper and correct for the court below to direct the respondents to pass orders under Section 26(6) of the Indian Electricity Act ? 2) Whether the finding recorded in support of fault in the meter reading since August 1997 is correct, when Ext.A3 meter card proves otherwise ? 4. Learned counsel appearing for the appellant and learned counsel appearing for RSA 949/04 8 the respondents were heard. 5. On hearing the learned counsel, it is clear that the relevant substantial question of law was not formulated. It is formulated as follows. When the appellant has an alternate remedy, without exhausting the remedy, whether appellant is entitled to approach the civil court for a decree for injunction. 6. Argument of the learned counsel appearing for the appellant is that Sub Section 6 of Section 26 of Indian Electricity Act is not applicable and the defect in the meter if any was not on account of any act committed by the appellant and therefore, appellant is not liable to pay the additional charges demanded under Ext.A2 bill. The question whether the non recording of actual consumption in the meter RSA 949/04 9 due to defect in the wiring whether to be referred under Section 26(6) was considered by Division Bench of this court in Southern India Marine Products Co. V.K.S.E.B (1995 (2) KLT 167). After analysing Sub Section 6 of Section 26, it was held that the Sub Section has no application to a case where electrical not registering correct consumption of energy on account of effectiveness of the wiring when the allegations of the Board is that the meter is not recording the actual consumption due to the breakage of the lead wire to the meter, it is not a dispute to be settled under Section 26 (6) of the Act. Therefore, Sub Section 6 of Section 26 will not apply. In such circumstances, as the defect noted in the meter installed in the ice factory is not coming within the purview of Sub Section 6 of Section RSA 949/04 10 26, the only question is whether a suit will lie before exhausting the alternate remedy available under the Conditions of Supply of Electrical Energy. 7. Clause 48 of Regulations Relating to Conditions of Supply of Electrical Energy, 1990 reads as follows; “48. An appeal on the decisions of the Board's officer taken under the provisions of the “Conditions of Supply of Electrical energy” shall lie on the next higher authority. There shall be no further appeal unless such appellate authority refers the matter to his higher authority for decision.” Appeal on the decisions of the Board's officer, taken under the provisions of the conditions of supply of Electrical Energy, shall lie on the next higher authority. There RSA 949/04 11 shall no further appeal unless such appellate authority refers the matter to his higher authority for decision. Therefore, alternative remedy is provided under clause 48 of Regulations Relating to Conditions of Supply of Electrical Energy, 1990. 8. Honourable Supreme Court in Punjab State Electricity Board and another v. Ashwani Kumar (1997 (5) SCC 120) considered the question whether a consumer is entitled to approach the civil court for a decree for injunction, before exhausting the alternate remedy. Their Lordships held, “Section 9 of the CPC provides that the civil court shall try all suits of civil nature, subject to pecuniary jurisdiction, unless their cognizance is expressly or by necessary implication barred. RSA 949/04 12 Such suit would not be maintainable. It is true that ordinarily, the civil court has jurisdiction to go into and try the disputed questions of civil nature, where the fundamental fairness of procedure has been violated. The statutory circulars adumbrated above do indicate that a fundamental fairness of the procedure has been prescribed in the rules and is being followed. By necessary implication the cognizance of the civil cause has been excluded. As a consequence, the civil court shall not be justified in entertaining this suit and giving the declaration without directing the party to avail of the remedy provided under the Indian Electricity Act and the Indian Electricity (Supply) Act RSA 949/04 13 and the Instructions issued by the Board in that behalf from time to time as stated above.” 9. In view of the dictum it can only be found that as rightly found by the courts below, before exhausting the alternate remedy appellant is not entitled to approach the civil court for a decree for injunction. 10. First appellate court has already directed the Deputy Chief Engineer who received Ext.A2 to take a reasoned decision on the dispute, if he is the competent authority and if not forward it to the competent authority, with a direction to the proper competent authority to issue notice to the appellant and decide the dispute and pass reasoned order. Even though appellant had not sought a such a relief, first appellate court has already RSA 949/04 14 restrained the respondents from demanding the amount covered under Ext.A1 bill till such decision is taken. In such circumstances, I find no merit in the appeal. It is made clear that after exhausting the remedy if warranted, appellant is at liberty to approach the civil court. M.SASIDHARAN NAMBIAR, JUDGE. uj.