RSA 102/2011 BEFORE HON BLE MR. JUSTICE AMITAVA ROY JUDGMENT AND ORDER(ORAL) The present appeal is directed against the judgment and order dated 28.2 .2011 passed by the learned Additional District Judge, Kamrup, Guwhati in Title Appeal No.4/2006 affirming the judgment and decree dated 23.12.2005 rendered by the learned Civil Judge (Senior Division) No.3 , Kamrup, Guwahati in Title Suit No.174/2003 dismissing the suit instituted by the present appellant. 2. I have heard Mr OP Bhati, learned counsel for the appellant and Mr D.N ath, learned Standing counsel for the Assam State Electricity Board( for short , hereafter referred to as the ’Board’) representing the respondents. 3. The appellant-plaintiff instituted the aforementioned suit praying f or a decree inter alia for a declaration that he is not liable to make payment of the bill of Rs.45,671/- demanded by the respondent Board by way of electrici ty charges being time barred and also that the disconnection notice dated 26.3. 98 is illegal and void ab initio. According to the appellant-plaintiff , he was a tenant under one Sri Mishrilal Bakliwal and in view of his differences with the landlord, the latter was instrumental in getting electricity to the tenan ted premises disconnected by the Board on 17.7.1981. The supply was restored in terms of the order dated 18.7.1981 passed in Case No.816m of 1981 by the Execu tive Magistrate, Kamrup, Guwahati on furnishing an indemnity bond by him to the Board thereby undertaking to make payment of all monthly bills to be issued by it for the consumption of energy as per reading of the meter to be installed i n the premises. As a consequence, a new connection was provided to the appell ant-plaintiff and the supply of electricity was resumed. 4. The respondent Board accordingly raised bills from the date of the connection till March,1986 which were duly paid by the appellant-plaintiff. It was thereafter that the Board sent bills for the period 24.7.81 to 10.9.86 @ 5 /- per day for 63 months amounting to Rs.9,604.99. Though the appellant-plaintif f by his letter dated 9.5.87 addressed to the Board sought correction of the bills, it was not done and instead the impugned bill dated 2.7.86 was issued fo r Rs.45,671/- for the period 29.7.81 to 30.3.87. The appellant-plaintiff did n ot pay the bill as he perceived the same to be lacking in authority and not bas ed on the meter reading. As a fall out thereof, the respondent Board issued noti ce dated 23.6.1998 under section 24(1) of the Indian Electricity Act, 1970 ( for short, hereafter refereed to as the ’Act’) notifying proposed disconnection of the supply if the amount of the bill was not paid within 7 days from the service thereof. Situated thus, the appellant-plaintiff instituted the suit contending inter alia that the notice dated 23.6.98 was barred under Articles 14 and 15 of the Limitation Act, 1963 read with section 60-A of the Indian Electricity (Supp ly) Act, 1948. According to him, the demand of Rs.45,671/- being barred by time, such a notice was clearly non est in law. 5. The respondent Board in its written statement while questioning the ma intainability of the suit on the ground of non exhaustion of the alternative rem edy available under the terms and conditions of supply,1988 pleaded that, electr icity was supplied to the appellant-plaintiff on a purely temporary basis as pe r the order of the learned Executive Magistrate, Kamrup, Guwahati and fixed char ge was levied and as such there was no illegality in the impugned bill dated 2.7 .86. While asserting that all consumers under it are required to enter into an a greement before commencement of supply of electricity as per terms and conditio ns of supply framed under section 49 of the Electricity (Supply) Act, 1948 ( fo r short, hereafter referred to as the ’Act’), the Board contended that if any d ispute is raised with regard to the accuracy of bill, in terms of clause 18 of the terms and conditions of supply, he has to pay the amount charged under prot est and comply with the procedure in connection therewith as laid down. Referri ng to the order dated 1.12.99 passed by the learned Civil Judge (Junior Division ) No.1, Guwahati in Misc (J) case NO.186m/1991 arising out of Title Suit No.183/ 98 also filed by the appellant-plaintiff challenging the same disconnection noti ce dated 23.6.1998 , the respondent Board pleaded res judicata. According to it, electricity was supplied to the appellant-plaintiff on a purely temporary basis in deference to the order of the learned Executive Magistrate, Guwahati as per the existing terms and conditions of supply and that therefore, he was a commercial consumer and not category-2- commercial consumer. It also endorsed th e notice of disconnection for the admitted failure of the appellant-plaintiff t o pay the amount of the bill lying outstanding against him. The Board underlined that having regard to the nature of the dispute raised in the suit, the appel lant-plaintiff ought to have preferred an appeal before the Assistant Chief En gineer (Commercial), ASEB as contemplated under the terms and conditions of su pply and that he not having done so, the suit was not maintainable in law. On th e pleadings of the parties, the following issues were framed by the learned tri al court- 1) Whether the suit is properly valued and proper court fees has been paid thereon ? 2) Whether the suit is barred by res-judicata ? 3) Whether the notice of disconnection dated 23.6.98 is illegal and void ab initio ? 4) Whether the plaintiff is liable to pay the bill amount of Rs.45,679/- ? 5) Whether the plaintiff is entitled to any relief as prayed for ? 6) What other relief/reliefs the parties are entitled ? The appellant-plaintiff adduced evidence on affidavit and was cross-examined on behalf of the respondent Board. It however, did not adduce any evidence. The le arned trial court on a consideration of the pleadings and the evidence on record dismissed the suit. 6. The judgment and order passed by it discloses that on receipt of the impugned bill dated 2.7.86, Ext.3, the appellant-plaintiff had addressed a let ter to the jurisdictional Assistant Executive Engineer, Ext.8 demanding a corr ect bill and installation of a new meter in his premises. The learned trial c ourt noticed that the respondent Board at the relevant time had been supplying electricity to the appellant-plaintiff’s premises on purely temporary basis as per the order of the learned Executive Magistrate, Guwahati and thus fixed char ge was being realized as per the terms and conditions of supply in force. It he ld that under the terms and conditions of supply any dispute with regard to the correctness of the meter reading was to be decided by the Senior Electrical Inspector. It also took note of the admission on the part of the appellant-plai ntiff that he did not exhaust the remedy of appeal available to him under the te rms and conditions of supply. That he did not pay the amount of the bill was als o recorded. It held that for the omission on the part of the appellant-plaintif f to exhaust the remedy available under the terms and conditions of supply, th e suit was not maintainable. Placing reliance on the decision of the Apex Court in Punjab State Electricity Board vs. Ashwani Kumar (19970 5 SCC 120, it also dismissed his plea of want of authority of the bills Ext.2 and Ext. 3 holding th at those were genuine. The notice of disconnection was also upheld. In coming to this conclusion, the learned trial court inter alia recorded that the appel lant- plaintiff had not stated that the bills were not prepared on the basis of the meter reading. Consequently, the suit was dismissed. The learned lower app ellate court endorsed this determination. 7. Mr Bhati has argued that having regard to the date of the impugne d bill, the notice of disconnection apparently is barred by time under Articles 14 and 15 of the Limitation Act, 1963. According to him, the appellant-plaintiff was liable to pay the charges for the electricity consumption raised on the b asis of the meter reading and as the demand raised by the impugned bill is not so, it is patently illegal and arbitrary. The learned counsel argued that havin g regard to the nature of the dispute, no remedy under the terms and conditions of supply was contemplated and therefore, the dismissal of the suit for not fili ng an appeal thereunder is apparently flawed. 8. Mr Nath in reply has argued that the temporary connection to the appel lant plaintiff’s premises being on the order of a court for which the energy cha rgers were realizable on fixed rate, the challenge to the bill and disconnection notice is untenable and rightly rejected by the learned courts below. 9. That the supply of electricity was restored to the premises of the appellant-plaintiff temporarily on the strength of the order dated 18.7.81 of th e learned Executive Magistrate, Guwahati is a matter of record and rightly not d enied by the appellant-plaintiff. It is his pleaded case that such supply was co nditional on furnishing of an indemnity bond by him to the Board undertaking t o make payment of every monthly bill in respect of the charges for consumption o f electricity. Though, according to him, the charges were realizable on the basi s of the meter reading installed in his premises, according to the Board, fixed charge was levied , the connection being on a purely temporary basis in deferenc e to the order of the learned Executive Magistrate, Guwahati and sanctioned by the terms and conditions of supply. The Board is categorical as well to conten d that , in view of the nature of the connection, the appellant- plaintiff was included within the definition of temporary commercial consumer and not category -2 -commercial consumer. The finding of the learned trial court that the appellant-plaintiff had not st ated that the bills were prepared on the basis of meter reading has remained unc ontroverted. Admittedly, the appellant-plaintiff had not paid the amount of the bill demanded by the impugned notice Ext.3. Noticeably, he has not disowned h is liability to pay the charges for the electricity supply consumed by him and disputed only the amount of the bill asserting that the same is not based on me ter reading. As per clause 18 of the terms and conditions of supply, any compla int with regard to the accuracy of bill has to be made in writing to the Board a nd the amount of such bill is to be paid under protest within the period prescr ibed. The officers of the Board authorized under the terms and conditions of supply to examine various kinds of complaints thereunder, have also been provide d in Appendix-A thereto. The appellant-plaintiff in view of the nature of the di spute raised by him, certainly had a remedy under the terms and conditions of su pply which he admittedly did not avail. The plea of Mr Bhati that as the contro versy does not relate to any act of malpractice, no appeal is conceivable under the terms and conditions of supply, lacks persuasion. 10. As the appellant -plaintiff in terms of the order of the learned Ex ecutive Magistrate, Guwahati was liable to pay the electricity charges as demand ed by the Board subject to the terms and conditions of supply framed by it, the demand made by the impugned notice dated 23.6.98 cannot be held to be barred by time on the expiry of three years, he being in continuous default on day to day basis in making payment thereof or taking steps under the terms and conditio ns of supply. The impugned notice dated 23.8.98 for disconnection of the elect ric supply which is evidently under clause 23 of the terms and conditions of sup ply, for the analogy of reasons, cannot also be adjudged to be non est being ba rred by time. The terms and conditions of supply having been framed in exercise of powers under section 49 of the Electricity (Supply) Act, 1948, the decision o f the Apex Court in the Punjab State Electricity Board vs. Ashwini Kumar(Supra) in the opinion of this Court has application in the facts and circumstances of the case. 11. On a totality of the considerations as hereinabove, the concurrent find ings of the learned courts below do not warrant interference in the instant app eal. Apart from the fact that the appellant- plaintiff had instituted the suit without exhausting his remedies under the terms and conditions of supply, his ca se on merit as well is not sustainable in law and on facts. The appeal therefor e lacks in merit and is dismissed. No costs.