THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY CIVIL REVISION PETITION NO.6098 OF 2006 29TH DECEMBER, 2009 BETWEEN: RAMACHANDRAPURAM EDUCATIONAL SOCIETY AND ANOTHER .. PETITIONER AND ANDHRA PRADESH EASTERN POWER DISTRIBUTION CORP. LTD AND OTHERS.. RESPONDENTS THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY CIVIL REVISION PETITION NO.6098 OF 2006 O R D E R: 1. This Civil Revision Petition is directed against the order dated 15- 11-2006 passed in C.M.A.No.41 of 2003 on the file of Senior Civil Judge, Ramachandrapuram, whereby and where under the learned Senior Civil Judge allowed the appeal setting aside the order dated 22.8.2003 passed in I.A.No.1208 of 2003 in O.S.No.320 of 2003 on the file of Principal Junior Civil Judge, Ramachandrapuram. 2. Background facts of the case, in a nutshell, are: Ramachandrapuram Educational Society represented by its President and Correspondent, Sri.M.V.V.Satyanarayana Rao, and Vundavilli Satyanarayana Murthy College, Ramachandrapuram represented by its Principal R.Ganga Rao are the plaintiffs in O.S.No.320 of 2003. The 1st plaintiff is the educational society registered under the Societies Registration Act. It established 2nd plaintiff educational institution. The 1st plaintiff obtained service connection Nos.1962 and 7902 under Category VII. On 27.1.2003 AE DPE-I, Rajahmundry inspected the Service connection of 2nd plaintiff- college and found that the college is utilizing power supply issued for general purpose to other stipulated purposes i.e. non-governmental- institutions. He prepared inspection notes and sent inspection report to ADE, Ramachandrapuram for taking necessary action by issuing initial assessment notice changing from category VII to II. Subsequently, ADE/O/Ramachandrapuram issued notice on 11.3.2003 to 2nd plaintiff and provisionally estimated the energy used and directed the 2nd plaintiff to pay. The same inspecting Officer sent another inspection report dated 5.5.2003 and assessed the shortfall. Revised initial assessment notice dated 14.5.2003 came to be issued to the plaintiffs. Meanwhile, the plaintiffs filed the suit challenging the notice dated 11.3.2003. They also moved I.A.No.1208 of 2003 under Order 39 Rules 1 and 2 r/w 151 CPC seeking temporary injunction restraining the defendants and their authorities from disconnecting the service connection Nos.1962 and 7902. 3. D5 filed counter resisting the application. D5 pleaded in the counter that the plaintiffs having obtained service connections under general category are using the energy for other purposes and therefore the category of service connections has been changed from VII to II and accordingly the shortfall of the payment came to be assessed. D5 also pleaded in the counter that they have got every right to alter the classification and revise the bills if they are satisfied that the earlier classification is not correct. From 4.6.2000 onwards, the revision of tariff came to be effected by treating the educational institutions and non-governmental institutions or private trusts under category II instead of category VII. 4. On behalf of the plaintiffs, 6 documents were marked as Exs.A1 to A6 and on behalf of the defendants, 5 documents were marked as Exs.B.1 to B.5. The learned Junior Civil Judge, on considering the material brought on record and on hearing learned counsel appearing for the parties, held that the plaintiffs are entitled for temporary injunction and accordingly allowed the application filed by the plaintiffs under O.39 Rules 1 and 2 and Sec.151 CPC by an order dated 22.8.2003. The defendants assailed the said order by filing C.M.A.No.41 of 2003 on the file of Senior Civil Judge, Ramachandrapuram. The learned Senior Civil Judge, on hearing learned counsel appearing for the parties and on re-appraisal of the material brought on record, came to the conclusion that the trial Court has no jurisdiction to entertain the dispute regarding billing and accordingly allowed the appeal setting aside the order of injunction granted by the trial court by an order dated 15.11.2006. The said order is assailed in this revision. 4. Heard learned counsel appearing for the petitioners/ plaintiffs and perused the order impugned in the revision. 5. Learned counsel appearing for the petitioners/plaintiffs submits that the 2nd petitioner is an aided college with under graduate and post graduate courses and as such it is entitled to have service connections under category VII. A further submission has been made that the suit filed by the petitioners/plaintiffs is maintainable and in which case the order passed by the appellate court is liable to be set aside and consequently the order of the trial court is to be restored. 6. Indisputably, the petitioners/plaintiffs have S.C.Nos.1967 and 7902. They secured the service connections under category VII. The Inspecting Officer, AE/DPE, inspected the premises of the 2nd plaintiff and prepared the inspection report on 27.1.2003. Ex.B.2 is the inspection report. As per Ex.B.2 inspection report, the 2nd petitioner/college is utilizing the energy for the purposes other than authorized one. Hence, shortfall is assessed and a demand has been made on the petitioners/plaintiffs to make good the shortfall. It appears the plaintiffs invoked the jurisdiction of the appellate authority under the provisions of Electricity Act, 2003 and filed an appeal. Pending the appeal, they invoked the jurisdiction of civil court by filing a suit and sought for temporary injunction. As per Sec.145 of Electricity Act, 2003, civil court is barred to entertain a suit or proceeding in respect of any matter which an Assessing Officer referred to under Sec.126. For better appreciation Sections 126, 127 and 145 of the Electricity Act, 2003 are extracted as under: “ 126 Assessment: (1) If on an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found connected or used, or after inspection of records maintained by any person, the assessing officer comes to the conclusion that such person is indulging in unauthorized use of electricity, he shall provisionally assess to the best of his judgment the electricity charges payable by such person or by any other person benefited by such use. (2) The order of provisional assessment shall be served upon the person in occupation or possession or in charge of the place or premises in such manner as may be prescribed. 1 In section 126 of the principal Act, for sub-section (3) substituted, by Electricity (Amendment) Act, 2007. Previous sub-section is as follows:- (3) The person, on whom a notice has been served under sub-section (2), shall be entitled to file objections, if any, against the provisional assessment before the assessing officer, who may, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment of the electricity charges payable by such person.(3) The person, on whom an order has been served under sub-section (2), shall be entitled to file objections, if any, against the provisional assessment before the Assessing Officer, who shall, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment within thirty days from the date of service of such order of provisional assessment, of the electricity charges payable by such person."; (4)Any person served with the order of provisional assessment may, accept such assessment and deposit the assessed amount with the licensee within seven days of service of such provisional assessment order upon him: 2 In section 126, in sub-section (4), the proviso shall be omitted by Electricity (Amendment) Act, 2007 Omitted proviso is following:- Provided that in case the case deposits the assessed amount, he shall not be subjected to any further liability or any action by any authority whatsoever.[***](Proviso) 3 In section 126 of the principal Act, for sub-section (5), substituted, by Electricity (Amendment) Act, 2007 Previous sub-section is as follows:- (5) If the assessing officer reaches to the conclusion that unauthorized use of electricity has taken place, it shall be presumed that such unauthorized use of electricity was continuing for a period of three months immediately preceding the date of inspection in case of domestic and agricultural services and for a period of six months immediately preceding the date of inspection for all other categories of services, unless the onus is rebutted by the person, occupier or possessor of such premises or place.(5) If the Assessing Officer reaches to the conclusion that unauthorized use of electricity has taken place, the assessment shall be made for the entire period during which such unauthorized use of electricity has taken place and if, however, the period during which such unauthorized use of electricity has taken place cannot be ascertained, such period shall be limited to a period of twelve months immediately preceding the date of inspection."; (6) The assessment under this section shall be made at a rate equal to 4 In section 126 of the principal Act, in sub-section (6), for the words "one-and-half times", the word "twice" shall be substituted by Electricity (Amendment) Act, 2007[twice] the tariff applicable for the relevant category of services specified in sub-section (5). Explanation: For the purposes of this section,- (a) "assessing officer" means an officer of a State Government or Board or licensee, as the case may be, designated as such by the State Government; (b) "unauthorized use of electricity" means the usage of electricity- (i) by any artificial means; or (ii) by a means not authorized by the concerned person or authority or licensee; or (iii) Through a tampered meter; or 5 In section 126, in the Explanation occurring at the end, in clause (b), for sub-clause (iv), sub-clauses (iv) and (v) shall be substituted, by Electricity (Amendment) Act, 2007 Previous sub-clause (iv) is as follows:- (iv) for the purpose other than for which the usage of electricity was authorized.(iv) for the purpose other than for which the usage of electricity was authorized; or 6 In section 126, in the Explanation occurring at the end, in clause (b), for sub-clause (iv), sub-clauses (iv) and (v) shall be substituted, by Electricity (Amendment) Act, 2007 Previous sub-clause (iv) is as follows:- (iv) for the purpose other than for which the usage of electricity was authorized.(v) for the premises or areas other than those for which the supply of electricity was authorized." 127 Appeal to appellate authority: (1) Any person aggrieved by a final order made under S.126 may, within thirty days of the said order, prefer an appeal in such form, verified in such manner and be accompanied by such fee as may be specified by the State Commission, to an appellate authority as may be prescribed. (2) No appeal against an order of assessment under sub-section (1) shall be entertained unless an amount equal to 1 In section 127 of the principal Act, in sub- section (2), for the words "one-third of the assessed amount", the words "half of the assessed amount", shall be substituted by Electricity (Amendment) Act, 2007[half of the assessed amount] is deposited in cash or by way of bank draft with the licensee and documentary evidence of such deposit has been enclosed along with the appeal. (3) The appellate authority referred to in sub-section (1) shall dispose of the appeal after hearing the parties and pass appropriate order and send copy of the order to the assessing officer and the appellant. (4) The order of the appellate authority referred to in sub-section (1) passed under sub- section (3) shall be final. (5) No appeal shall lie to the appellate authority referred to in sub-section (1) against the final order made with the consent of the parties. (6) When a person defaults in making payment of assessed amount, he, in addition to the assessed amount shall be liable to pay, on the expiry of thirty days from the date of order of assessment, an amount of interest at the rate of sixteen per cent per annum compounded every six months. 145 Civil court not to have jurisdiction: Section No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which an assessing officer referred to in S.126 or an appellate authority referred to in S.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.” 7. Since the assessment has been made u/s 126 and the same has been challenged by the plaintiffs before the appellate court u/s 127, invoking the jurisdiction of the civil court for the selfsame relief cannot be sustained. The appellate court has discussed this aspect in para 15 of the judgment impugned in this revision, which reads as under: “ 15. The respondents claims that there are two different charges levied under VII and category II. As per the category VII only public charitable trusts and societies registered under societies act running educational and medical and non-profitable basis are entitled to get billing under category No.VII. Whereas the educational institutions run by individuals non-governmental institutions and private trusts are classified under category No.II. As per the terms and conditions of 35 where a consumer has been under particular category and is billed accordingly and it is subsequently, observed that the classification is not correct, the board may alter the classification and suitably revise the bills if necessary even retrospectively. Accordingly, they found in the inspection that the consumption is utilized for non-governmental purposes, accordingly issued bill basing on Ex.B.1 revised bill was issued. As per the Indian Electricity A.P. Amendment Act, 2000 i.e., Act.35/2000 under section 49-1 Special Tribunal was constituted under this act shall have jurisdiction to decide any dispute relating to correctness and otherwise of any meter. As per the section 45 of Indian Electricity Act 2003, no civil court shall have jurisdiction to entertain any suit or proceedings in respect of any matter which assessing officer referred under section 126 and appellate authority referred under section 127 or adjudicate officer appointed empowered to determine and no injunction can be granted by the court. As per the decision relied upon by the counsel for the appellant, the civil court shall not be justified in entertaining the suit and giving declaration without directing the party to avail remedy provided under electricity act. Here, the lower court did not consider these aspects. As per G.O.Ms.No.180/1 dated 18.10.2003, the court of Additional District and Sessions Judge was appointed as special court under section 153 of Electricity Act. Therefore, I feel the lower court has no jurisdiction to entertain the disputes regarding billing and grant injunction. Even as per the claim of the respondent, the bill amount is about Rs.2,50,000/- which was challenged by the petitioner respondent but the court fee is paid only Rs.2,000/- under section 24 (A) of A.P.C.F.Act instead of section 24(d). Therefore, the suit itself is not maintainable as the petitioner failed to approach concerned Tribunals under electricity act and did not approach the competent Tribunal and approached the Principal Junior Civil Judge’s Court, which has no jurisdiction and the suit is not properly valid and the lower court although granted injunction, failed to consider that minimum charges are required to be paid by the society subsequently also and reclassification can be challenged before concerned authorities and need not refuse challenge before the court.” Since the plaintiffs had invoked the jurisdiction of the appellate authority as provided u/s 126, the civil suit filed by them questioning the assessment made by the defendants is not maintainable. 8. Accordingly, this Civil Revision Petition is devoid of merits and it is hereby dismissed. 29th December, 2009. (B.Seshasayana Reddy,J) tnb THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY C.R.P.NO.6098 OF 2006 29TH DECEMBER, 2009.