60 0 IN THE FUGH COURT OF PUNJAB 8 HARYANA AT CHANDIGARH Civil Revision No 8271 of2010 Date ofdecision2 March Ol2011 DakshinHaryanaBijliVitran NigamLimitedandanother Petitioners Vs m S1E Barwala C 0 Coram HonbIe Mre Justice AN Jindal 0 I Present Mr Vikas Suri Advocatefor the C5 Mr Anil Rathee Advocate for the C AeNeJindal J Z The prime essentially to be in this case 2 are whether the suit flled bythe SD0 Barwala r through its Divisional Engineer was competentand whether civil court has I gotthe to try thesuit and if it is not so then whether the COUM couldhold ifthe plaintiffhas gota primafaciecase for grant Z The trial court vide its order dated 14 l O0 10 allowed the QO and grantedtemporary 111 the fonn W2 directing the defendants0lereinreferred as the to restorethe electricconnection within 24 hours from the date of order and theappealpreferred bythe was dismissedon 231 12010 The facts in the ofthe case are that the fIled a suit for declarationpleadingtherein that he had got installed three phasecommercialelectric connectionbearing Nol 211930installedat the poleoutside Barwala District Hisar The said meter worked properlytill 1582010 and on 1682010 one phase of the meter stopped however two phaseswere 111 operatlOOe 1 the plaintiftl lodgeda complaintwith the defendantoetitioner Nol in writingas well as Thereafter 111 compliance with the direction of the defendant No1 the plaintiff a sum of Rs1601 vide receiptN0285 dated 178 2 010 as checking fee The concerned line man visited the site but failed to find out anydefectin the meter Then againon 258 2 010 and 6 2 010the site Rawat Seema 2013.01.16 13: 59 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 61 1 0 Civil Revision Noe 8271 of2010 8 968 wasinspected but no defect was found On 1392010 vigilance team visited the spotand on checking of the electricmeter affixed on thepoleoutsidethe it was foundthat the plaintif was stealing the as he was showing direct supply However none of the of the 1 or his staffwasfound It was fiirtheraverredthat thedefendants a8er the connectionremovedthe same The O then contactedthe SD0 Electricity at Barwala who informedhim about C the removal of the meter by the vigilancestaff The after I 40 getting the copy of the checking reportdated 132010 from the defendant No1 met them and them to restore the connection but he could not succeed Alongwith the suit an for ad4nterim Z lrllunctioll 111the form was filed directingthe defendantsto 2 restorethe connectionduring the ofthe suit 1 On notice the defendantsappeared and tlled replywhereinlt was averred that on checkingby the vigilance staff on 1382010 the Z Nigamwas foundindulging in theft of the directly om the fuse board T B bypassingthe meter as incoming cable was CO connected to meter butoutgoing cable of the meter was foundidle and load W2 was runningthroughanother cable which directlyconnected to fuse was Z l3 board of T ce B Findingthe case of clearcut the of the meter Om andwires were removedfrom the site The checking reportwas prepared in thepresenceof Zile SinghLamberdarwho is a of the report The defendantsalso preparedvideograph and of the Thereafterthe upplywas disconnected Notices dated 2292010 were issued to the plaintifffor the offenceunder Section 152 of the Electricity Act whereas the defendantboard referredthe matterto the Police StationBarwalavide memo N03027 dated2292010 for of the case againstthe as theyhad failed to depositthe assessedamount Since the was found stealingelectricity therefore the connectionwas not restored After scrutinizingthe record the trial court acceptedthe application andthe appealf1 bythe boardwas alsodismissed Rawat Seema 2013.01.16 13: 59 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 62 0 Civil Revision Noe 8271 of2010 4 484 The first contentionraised by the learned counsel for the is that both the courts below fell in error while grantinginjunction in favourof the petitionerAs a matter of fact on apparentexaminationof the plaintthe same havingbeen filed by the Sub Divisional Engineer Barwalain his capacity was not maintainabletherefore 1 the suit having not been flled bya competent person theplaintiffcannot be 0 said to have prima facie case for grantofinjunction in his favour 0 Havingseen theframeof the suit it transpires that the suit has 0 beenflled bythe SubDivisional Engineer Barwala without any I C5 from the andit has not beenfiled in the name of the 1e GMTD BSNL Hisar There lS no dispute with the fact that BS111L is a bythe CentralGovernment Z to the connectlonSe OrderXXIX Rule 1 governssuch suitsand provides for a specificframein whichthe suit is to befiled Order XXIX Rule 1 CPC readsas under 1 I Z Ie Subscription and veriflcationofpleading In suits by or against a corporationany pleadingmay be signedand m verifled on behalfofthe corporation bythesecretaryor byany 17 director or otherprincipalofcer of the corporationwho lS Z ableto depose to thefacts ofthecase 11 tl No challengecould be made to the fact that the could be sued in its own name and plaintwas to be signedby a competent offlcer as authorisedby the in that behalf much less by the or by any Director or other principal officer of the Cotporation No individual could file the suit on behalf of the Thus the 1 present suit havingbeen filed bythe Sub DivisionalEngineerin his own name cannot be said to have been flled bya competentperson on behalf of the Now comingto the other whether the civil court has gotthe to try the suitT Leamed counsel for the petitioner has contendedthat in the lightof Section 126 127 and 145 ofthe ElectricityAct 2003 herein referred as the Act civil court has no Rawat Seema 2013.01.16 13: 59 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 63 0 Civil Revision No 8271 of2010 4 8tr to try the case thereforeit cannot grant injunctionin such matters To thecontraryleamedcounsel for the has raisedthe pointthat Slnce he has the checking reportitseif thereforethe ofthe civil court is not barred Havingprobed the issue m depthI need to reproduce Sections 126 127and 145 ofthe Electricity Act 2003 which readas under 1 0 0 126 Assessment ll Ifonan inspectionofanyplace or I C5 premlses or afterinspection gadgets machines devicesfoundconnected or used or afterinspectionfthe records maintainedbyanyperson theassessing olcer comes Z to theconclusionthatsuch person is indulging in unalithorised use he shall provisionally assess to the bestofhis r the charges payablebysuch person or by anyotherperson bysuch use Z 29 The order of assessmentshall be served upontheperson in occupationor possessionor in chargeof 00 theplaceor premisesin such manner as may beprescribed em3 The person on whom a notice has been served under sub section shall be entitledto file if any Qe against theprovisional assessment beforethe assessng ocer who shall afterafrdinga reasonable ofhearing to such person pass a flnal order of assessment of the electricitycharges payablebysuchperson 1 49 Any person served with the order of assessment may accept such assessment and depositthe assessedamount with the licenseewithin seven daysofservlce ofsuchprovisional assessment order upon him 59 If the assessingoicer reaches to the conclusionthat unauthoriseduse of electricity hastakenplacethe assessment shall be made for the entire periodduringwhich such unauthorised use of electricityhas taken place and i however the periodduringwhich such unauthorised use of Rawat Seema 2013.01.16 13: 59 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 64 0 Civil Revision Noe 8271 of2010 5 44 electricityhas takenplacecannot be ascertainedsuchperiod shall be limited to a periodof hvelve months preceding thedate 69 The assessmentunder this section shall be made at a rate equalto twlce the tariffapplicablefor the rellant category ofsenlices specilled in sulnsection e For thepurposesofthissection a 0 a rl Ofcer 31 0f17cerof the State means an 0 Governmentor Board or licensee as the case may be I C5 as suchbythe StateGovernment bl Unauthorised of Il the usage of use means C electricity e Z 01 byany artiflcial means or io bya means not authorised by the concerned person or authority oP licensee or I iio through a meter or L2 Z ivl for the purpose other than for which the usageof was authorised m vl for thepremises or areas other than thosefor which the wao supplyofelectricity was authorised 127 Appeal or appellateauthority 6l9 Any person Qm aggrievedby the nal order made under Section 126 may within thirtydaysof the said order preferan appeal in such form verif7edin such manner and be accompaniedbvsuch fee as mav be specitledbv the State Commission to an appellate authority as may beprescribed 1 2I No appealagainstan order of assessmentunder sul section l9 shall be entertainedunlessan amount equalto one third of the assessedamount is deposited in cash or byway of bank drft with the licenseeand evidenceofsuch deposithas been enclosedalongwith theappeal 63I The referred to in subsection shall disposeof the appealafterhearingthepartiesand pass order and send copy of the order to the assessing Rawat Seema 2013.01.16 13: 59 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 65 0 Civil Revision Noe8271 of2010 e6 888 offlcerand the The order ofthe authorityreferred to in sube section61passed under sulsection 31shall beflnal 59 No appealshall lie to the authorityreferred to in subsection againstthejlnalordermade withtheconsent m oftheparties When a person defaults in malcing paymentofassessed 0 amounthe in additionto the assessedamount shall beliable 0 to pay on theexpiryof thirtydays the dateof order of I 45 assessment an amount ofinterestat the rate ofsixteen percent per annum everysix months 145 Civil Court not to have jurisdiction ivil court Z shall havejurisdictionto entertain any suit or ln ofany matter which as assessingofcer referred tO lY7 Section 126 or an authorityreferred to in Section I 127 or the 0H7cer under thisAct lS t0 Z byor under thisAct to determineand no iniunction shall be grantedbv anv court or other authoritvin respect of tiO anvaction taken or to be taken in pursuance of anv power m conferredbvor underthisAct 11 Z 1 Ll On conjointreading of the aforesaidsections it could be made outthat the act provided a hierarchyfor dealingwith the matters withregardto theft of electricity or penalty or assessment madeby the Officer in connectlOll with the the of Section 126 indicatesthat on bythe Assessing Offlcer if it is found that there is unauthoriseduse of the the officer shall make assessment andthereaftera notice would be served upon the consumerand afterhearingthe consumer about the objections if any made byhim pass a flnal order of assessment of charges payable by suchperson and it was the choice ofthe consumer to acceptthe assessment Section 127 of the Act provides for an appealbefore the Appellate Authority who afler hearingboth thepartiesshall decidethe same and pass an order and thereafler serve a copy of the order upon the Rawat Seema 2013.01.16 13: 59 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 66 C Civil Revision Noe8271 of2010 7 4 8 3k Offlcer andthe andthe order passed by the Appellate shall be final Section145 of the Act creates a barthatthecivil court would have no jurisdictionto entertainany suit or lltl ofwhich the OfOcerreferredto in Section126 ofthe Act or an Appellate Authority referredto in Section 127 or officer m under the Act is by this Act to determine The 1 section145 of the Act furtherclarifies that no would be 0 byany COUrtor other authority in respectof anyactiontaken or to be taken 0 in pursuanceof any power conferredbyor under this Act I C5 The raised bythe leamedcounsel for the I thathe has the checkingreportmadebythe Assessing Officer thereforethe civil court has is without any merit as the Officer hadacted in pursuanceofthe powers conferredover him 2 underthe Act therefore the Civil Court primafacie had 0no to r trythesuit wherein the act of theassessing offIcerhasbeen lt I 1S alsowell settledbynow that where a hierarchy of Tribunalsor C3 Z Courtsisprovided bythe statute to resolve andredressthedisputes then in 1 Ir the lightof the altemativedisputeredressalform the civil court has no OO when and impliedly barred by the statute If the 5 as bythe to raisethe claiin is gone into thenit Z that on 1392010 vigilance team on checking ofthe meter in the presence of Zile SinghLamberdar found the to be stealing Thereafter assessment notice bearing memo No 5025 dated 2292010alongwith noticefor the offence under Section152 1 of the Act bearingmemo N05026 dated 292010 was servedupon the BSNL but the did not the petitioner to raise any Even alter disconnectionmadeby the Nigamvide memo No038 dated 229201 0 the did not set up any claim beforethe competentauthorityhowever filed the presentsuit for It would also be pertinent to mention here that the Special 1 Court as constitutedunder Section153 of the Act are not vested with the powersto deal with the matters which are purelywithin the of 1 theauthority as constitutedunder Sections126 and 127 ofthe Act Rule 11 Rawat Seema 2013.01.16 13: 59 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 67 0 Civil Revision No 8271 of 2010 e 888 of theElectricityRules 2005 alsoappearsto have been The rulebestowsthejurisdiction of the courts other than the specialcourtstill thespecial courts undersubsectiot19of Section 153 of the Act are not constituted The specialcourtswere and had been constitutedto deal with thecriminal offencesand not thecivil mauers m has beenshownon the record if theElectricity Board actedbeyond after the was made checking report 0 was and notice was issuedto the he did not raise any 0 objectionthen in the absence of raisingof such objection before the I C5 authority to hear the matter the would be thatthe I did not want to say 94r Thus while viewing the case from any angle order Z can be saidto be in clear cut violationof the of Section 126 of theAct As such thecivil courts is barred Similar r observations were madein case Uttar HaryanaBijli Vitran NigamLtde VS I Jai Jagdambey Steel Pvte Ltd and another 2007 ReCR Civio 75 wherein it was observedas under l Z m It is not in dispute that order of demand was madeunder wao Section126 29oftheAct andthe No did not choose to flle any objectionagainstthe said order Thus Qm primafacie ofthecivil court is barred Il Siinilarlyit was observed in case UeHeBel4NePanipatand others vs Vinod Kumar 20049 RCRCiviO 199 as under l l On thedaythechecking was done bythe vigilance staffofthe 1 appellantsit was foundthat the plaintiff was tlleftofelectricitybyplacinga magneton theright sideofMCB Thesaid assessment is to be dealt under Section 126 of the New Act As per Section 145 of the New Act jurisdiction oftheCivil Court in such an assessment is barred Since the issue involved ln the presentcase lS purelya legal thesame can beagitated bythe in appeal 21 lSSU Rawat Seema 2013.01.16 13: 59 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 68 11 0 Civil Revision Noe8271of2010 8 844 When once it is held that the civil court has no to trythe suit then certainly the plaintif cannotbe saidto have a pnma facie case in his favourfor grantof Since thecivil court has no to try the suit thereforeit is to grantsuch 1 relief Both the courts below havetaken wrong view of the r matter while holdingthat the civil court has the to grant 0 lnJunctloll 0 I have beeninformed bythe thatduringthe I C5 of this revisionpetitionthe connectionhas alreadybeen restoredto the I In this connectionit is observedthat if the connection lS restoredand has been madeby the party as per rules and Z instructions on paymentof the assessedamount then that would bedeemed to havebeen restored ofthe litigationotherwiseit would be C sufficeto say that the petitioners would be at libertyto undothe act which wasdone pursuantto the orderspassed bythe courts below t Z I acceptthe petitionset asidethe order anddismiss the for grantof C CO 3e March Ol 2011 AN Jindall S7 Z deepak Judge J Rawat Seema 2013.01.16 13: 59 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document