PUNJAB STATE ELECTRICITY BOARD AND ANR.

A v.

ASHWANI KUMAR

MARCH 14, 1997

[K. RAMASWAMY AND G.B. PATTANAIK, JJ.] B

Electricity Act, 1910/Electricity (Supply) Act, 1948 :

Arrears of electricity charges-Recovery of-<:onsumer filing civil suit for permanent injunction restraining the Board from recovering the C amount-Suit decreed-Decree confirmed by High Court in second appeal-Held the civil court shall not be justified in entertaining the suit and giving the declaration without directing the party to avail of the remedy provided under the Indian Electricity Act the Indian Electricity (Supply) Act and in accordance with the instrnctions issued by the Board in that behalf from time to time-If the consumer is not satisfied with the order passed by D the Board/Appellate Authority, he can avail of the remedy available under Article 226 of the Constituti01t-By necessary implication the suit is not maintainable-The consumer is at liberty to file appeaHlowever, he would pay the amount in demand in six monthly instalments-If he succeeds, Board shall refund the amount with interest.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2507 of 1997.

From the Judgment and Order dated 9.12.92 of the Punjab and Haryana High Court in R.S.A. No. 1865 of 1991.

R.S. Sodhi for the Appellants.

Ms. Arnita Gupta for the Respondent.

The following Order of the Court was delivered :

Leave granted. We have heard learned counsel on both sides.

The appeal by special leave arises from the judgment of the Punjab and Haryana High Court, made on December 9, 1992 in R.S.A. No. 1865

of 1991. The appellant-Board had given connection of supply of electrical H

energy to the respondent on January 16, 1983. Since the meter installed was suspected to have been tampered with it was removed on May 6, 1984.

On an application made by the respondent, a new meter was installed on may, 9, 1984. On March 18, 1985 Bill No. 44 for Rs. 1,90,498.79 for the period December 1983 to January 16, 1985 was sent to the respondent.

Feding aggrieved, the respondent filed the Civil Snit No. 85 of 1985 on March 25, 1985 for permanent injunction, restraining the Board or its Officers from collecting and recovering the amount from the respondent.

The Sub-Judge on September 16, 1987 granted the decree. On appeal, it was confirmed and the second appeal has been dismissed. Thus, this appeal by special leave petition.

On July 19, 1996 when the matter came up for hearing, this Court passed an order observing that Section 4, Instruction 115 (1) ('?) of th.e sales manual which is placed on record, indicates the procedure to be followed when the meter was found to be accurate, but the reading was D inaccurate. Instruction relating the procedure to be followed for resolving the dispute was not made part of the record and, therefore, time was granted to the appellant to produce the necessary record in that behalf. In fortherance thereof, the record has been placed on record.

E Now, it is clear that the Electricity Board itself has issued Circulars

from time to time in that behalf. Circular No. 111/80, dated December 20, 1980, was issued in partial modification of the earlier Circulars No. 151179 <lated 21.2.1979 and No. 4723/cadre dated 24.7 .1980. Therein it states that the Flying Squads/Enforcement Staff shall henceforth prepare their report in respect of checking of the defaulting premises of the delinquent consumers and serve the requisite notice to the consumer at site itself with a copy to S.D.O./D.S. concerned. Thereafter, the Flying Squad shall not revise their findings or the quantum of penalty already intimated. Cases of default of payment upto Rs. 5,000/- arc reviewabk by the Superintending Engineer/D .S. and the cases of default beyond Rs. 5,000/- arc revicwable G by C.E. or D.S. concerned. Subsequently, instructions were issued under

Order No. 427 <lated November 26, 1981 stating that the negotiations with the consumers or withdrawal of cases from the court or the arbitration proceedings or faulty meter cases may be taken by the Committee consisting of (1) Chief Engineer (D.S. concerned); (2) Chief Accounts Officer or H Chief Auditor as may be decided by the Member, finance; (3) Legal

PB. STATE ELECTRICITY BD. v. ASHWANI KR. 1145

Advisor; ( 4)Director, Commercial. The above committee shall exercise the A power upto Rs. 5;0001in each case and decide all the cases including those pending in the court, except enforcement of the waiving.

Subsequently, further Circular No. 111 of 1984 dated December 5, 1984 was issued reiterating the powers of the Flying Squads given in earlier. B circulars in para 2(i) and para 2(ii). The Flying Squads/Enforcement staff shall not revise their findings or the quantum of compensation already intimated. Under Clause (iii) it provides for the following authorities to review the compensation amount once intimated to the consumer:

- (a) Cases upto Rs. l0,000 --

S.E./D.S.

(b) Cases beyond Rs. l0,000 & upto Rs. 5 --

C.E./D.S. lacs.

(c) Cases beyond Rs. 5 lacs (the cases shall -- Member (T) be put up by C.E./Commercial through Director /Enforcement).

Clause (v) postulates that where the consumer himself accepts the findings of the Flying Squads and makes the payment of compenGation amount, such cases shall not later on be subject matter of review by the

D.S. officers.

Clause (vi) provides that notwithstanding the fact that the D.S.

Officers agree or disagree with the findings of Flying Squads, but if the consumer protests against the charges, the review, appeal of such a consumer shall be registered by S.D.O./D.S. concerned and forwarded to the reviewing authority through proper channel. The proper channels have been noted in the subsequent sub-paragraph of paragraph (vi). Para (vii) indicates that every effort shall be made by the reviewing authority to ensure that the review appeal is decided with in the stipulated period of disconnection; where it is not possible to do so, the consumer shall be asked by the reviewing authority to deposit at least 75% of the amount of G compensation under protest so that supply could be restored, after the expiry of stipulated period of disconnection. Where a consumer does not come forward to deposit the amount so worked out in the manner as stipulated above, the supply shall not be restored till finalisation of the review/appeal.

A The position was subsequently reviewed under Circular No. 26 of

1989 dated August 7, 1989. Therein, it is postulated that the Committee shall be headed by the concerned Superintending Engineer/D.S. and shall have the following members:-

S.E. /D.S.

Chairman of the Committee.

2. XEN/DS concerned.

Member Convenor. ---- - 3.

XEN/Enforcement.

Member (for cases involving checking by Enforcement start).

A.0.0./Ficld.

Member -

Representative of Indu:>try. Member

It is further provided that the Committee shall have powers to review and decide all cases for recovery waiving off the irrecoverable amount upto Rs. 30,000/- in. each case. This Committee shall decide all disputed cases D including the cases arising out of enforcement checking. This Committee shall act on the basis of general fairness and equity and not necessarily by the rigid department instructions. It would, thus, be seen that these statutory rules issued by the Board intended to dispose of the disputes expeditiously without undue delay, so that the consumer may not be subjected to hardship due to diconnection or non-payment of the amount E charged, as demanded under the rules, for long period. At the same time the Board is also entitled to recover the amount expeditiously from the consumer, so that the Board functions efficiently and effectively and also supplies the electrical energy to the consumer without any inconvenience to the consumer as non-supply of electrical energy hampers the progress F of the industry, etc.

The question then arises: whether the Civil Court would be justified in entertaining the suit and issue injunction as prayed for? It is true, as contended by Shri Goyal, learned Senior Counsel, that the objections were raised in the written statement as to the maintainability of the suit but the G same given up. Section 9 of C.P.C. provides that Civil Court shall try all suits of Civil nature, sjlbject to peculiar jurisdiction, unless their cognizance is expressly or hy necessary implication is barred. 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 fundamen- H tal fairness of procedure has been violated. The .statutory circulars ad um-

PB. STATE ELECTIUCITYBD. v. ASHWANI KR. 1147

berated above do indicate that a fundamental fairness of the procedure has A been prescribed in the rules and is being followed. By necessary implica- tions, 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 (Supp- B ly) Act and the Instructions issued by the Board in that behalf from time to time as stated above.

Shri Goyal has contended that the authorities do not hear the parties, nor give reasoned order. Therefore, the parties cannot be precluded to avail of the remedy of a suit. We cannot accept such a broad and generalised proposition. When the provision for appeal by way of review has been provided by the statutory instructions, and the parties are directed

to avail of the remedy, the authorities are enjoined to consider all the objections raised by the consumer and to pass, after consideration, the reasoned order in that behalf, so that the aggrieved consumer, if not D satisfied with the order passed by the Board/appellate authority, can avail of the remedy available under Article 226 of the Constitution. Therefore, by necessary implication, the appropriate competent authority should hear the parties, consider their objections and pass the reasoned order, either accepting or negativing the claim. Of course it is not like a judgment of a E civil court. It is then contended that the respondent has been subjected to pay huge amount of bill in a short period; hence, it is a rase for i11te1fere11ce.

We find no force in the contention. May be that due to the advice given by the counsel, the respondent obviously has availed of the remedy of the suit, instead of departmental appeal. In our view, by necessary implication the suit is not maintainable. Therefore, the respondent is at liberty to avail the remedy of appe<il within six weeks from today and raise the factual objections before the Board and the Board/appellate authority would consider and dispose of them, as indicated earlier, on merits.

It is next contended that the respondent has been charged huge G amount. It would be difficult for him to pay the amount in lump sum.

Therefore, he may be given permission to pay the amount in instalments.

We find that the request is genuine and in view of long lapse of time, we direct that the respondent would pay the amount in demand in six monthly instalments. First instalment shall be paid on or before April 5, 1997. In H

A case he succeeds in appeal or in the proceedings, the Board shall refund the amount with interest at the rate of 12 per cent annum from the date of deposit.

The appeal is accordingly allowed, but in the circumstances, without costs.

R.P.

Appeal allowed.