Pardeep Singh vs P.S.E.B. and Others

R.L. Anand, J.—Pardeep Singh son of Lachman Singh, the unsuccessful plaintiff has filed the present appeal and it has been directed against the judgment and decree dated 26.8.1999 passed by the Court of the learned Distt. Judge, Faridkot, who dismissed the appeal of the plaintiff-appellant with a clear observation that the plaintiff will be at liberty to avail the alternative remedy as provided in Commercial Circular No.26 of 1989 within a period of three months from today and raise factual or legal objections before the Dispute settlement Committee, who will dispose of the same after affording proper opportunity to the parties. It was further observed by the first appellate Court that the plaintiff will not have to pay the impugned clubbed bill during the pendency of the said dispute before the Dispute Settlement Committee and that the Punjab State Electricity Board (hereinafter referred to as ''the Board'') would recover the consumption charges on the basis of separate reading for the period in dispute as per the reading of the connections in question.

The brief facts of the case can be noticed in the following manner: -

Pardeep Singh filed a suit for declaration against the Board and its Assistant Engineer, that the claim of Rs. 92,466/- made in bill regarding electric connections M2-77 and M2-78, made payable upto 16.8.1993 is illegal, ultra vires, against the law and rules and void. The plaintiff-appellant prayed for permanent injunction restraining the Board from disconnecting the electric supply on account of the non-payment of the same and mandatory injunction was also prayed by the plaintiff seeking the directions against the Board to claim charges of the two connections separately on the basis of tariff of medium supply instead of large supply as claimed in the impugned bill.

The case set up by the plaintiff before the trial Court was that he is running a cold storage and ice factory with electricity supplied by the defendants with electric connection No. M2-78. the sanctioned load and the connection load is less than 100 KW and this connection is medium supply connection. The plaintiff had been regularly receiving bill every month in respect of the consumption made by him on this connection at the tariff applicable to the medium supply and has been regularly making payment of the same. During the last two months, the defendants sent bill every month for the said connection No. M2-78 of the plaintiff including therein the consumption of another connection No.M2-77 in the name of Mangal Singh, who is running his small business in a separate premises which are locked by him and the claim made is at the rates applicable to large supply. There is vast difference in the rates inasmuch as the rate of large supply are approximately 26% more than those of medium supply. The business of the plaintiff is quite different from that of above said Mangal Singh and the two businesses are being run in separate and premises having no concern with each other. The bill sent by the defendants is incorrect and the plaintiff is not liable to make the payment.

Notice of the suit was given to the defendants who filed the written statement and took a preliminary objection that the suit is not maintainable, that the suit has not been presented properly as the Board can be sued only through its Secretary; that the plaintiff is estopped to file the present suit by act and conduct; that the plaintiff has no locus standi to file the present suit; that the suit of the plaintiff is barred by the principles of res judicata.

On merits, it was the stand of the Board that the plaintiff is also using the electric connection No.M2-77 for running the same cold store and ice factory. The sanctioned load of the plaintiff is 98.952 KW and not 98.750 KW as stated by the plaintiff. The Plaintiff obtained electric connection No. M2-78 with sanctioned load of 98.952 KW for running cold store and ice factory and the other consumer Mangal Singh, who is real brother of the plaintiff also obtained an electric connection No.M2-77 with sanctioned load of 3.788 KW for running the ice factory and cold store. In fact, there is only one ice factory and cold store being run by both connections as checked by XEN, Enforcement, on 27.i5.1993, out of which only 5,250 KW including light load of the entire cold store/ice factory is being used on account No.M2-77 for a work shop which is used for the repair of the plant and machinery of the cold store and ice factory of the plaintiff. The plaintiff has got another connection in the name of Mangal Singh. i.e. No.M2-77 to run the same ice factory and cold store instead of getting his load extended in order to remain in the M.S. category which otherwise would have fallen under the large supply category which has a higher tariff than medium supply category. Thus, the consumer is cheating the Board by paying lower tariff of M.S. Category. The plaintiff and Mangal Singh having connections No.M2-78 and M2-77, respectively are real brothers and both the connections are running in the same premises for the same units, i.e. ice factory and cold store, which are against the terms and conditions of the defendants.

With the above broad allegations the defendant prayed for the dismissal of the suit.

From the pleadings of the parties, the following issues were framed by the trial Court:-

"1. Whether the plaintiff is entitled for declaration as prayed? OPP

Whether the suit is not maintainable? OPD

Whether the plaintiff is estopped to file the suit by his own act and conduct? OPD

Whether the plaintiff has no locus standi to file the suit ? OPD

Whether the suit is barred by principle of resjudicata? OPD

Whether the plaintiff is entitled for injunction as prayed for? OPD

Relief."

The parties led oral and documentary evidence in support of their case and for the reasons given in paras 13 and 14, the suit of the plaintiff was decreed by the trial Court vide judgment and decree dated 3.1.1997 and declaration was given to the plaintiff that the claim of Rs. 92,466/- made in the bill was illegal, ultra vires and against the law and rules. The reasons given in paras 13 and 14, read as under:-

"13. From the evidence adduced by both the parties, it stands established that Pardeep Singh and Mangal Singh are heaving independent connection with which others have no right or concern. While appearing into the witness box plaintiff has categorically stated that he has been paying the bills regularly of his connection but now the defendants board had issued bill Ex.Pl including the consumption of electric connection of Mangal Singh No.M2-77 which is illegal. Connection No.M2-77 stands in the name of Mangal Singh and he has never used the connection No.M2-77 nor Mangal Singh has used the electric connection of the plaintiff. He has been cross-examined by the Ld. counsel for the defendants but nothing favourable to the defendants could be extracted. Tirath Singh while appearing into the witness box as DW1 has admitted in his cross-examination that electric connection No.M2-77 and other electric connection No.M2-78 are installed in separate premises. There is sundry wall constructed between the two. Electric connection No.M2-77 is in the name of Mangal Singh and the electric connection No.M2-78 is in the name of Pardeep Singh. Harbhagwan Dass while appearing into the witness box, who has prepared the detail bill, has also admitted in the cross-examination that connection No.M2-77 stands in the name of Mangal Singh and connection No.M2-78 stands in the name of Pardeep Singh. He has also not visited the site in dispute. The bare fact that the defendants board had sanctioned separate electric connection in the same premises to different persons would prove that those were meant to energize the different machinery/plants. Sub-para (iii) of Instruction No.268 of the Sales Manual of the Board regarding clubbing of different electric connections provided as under:-

"In cases where more than one inds. connection is running in the same premises in different names and work is carried out by one concern proprietor such consumers should be requested to get the loads clubbed after getting it changed in one name. In case, they did not agree, such connection shall not qualify for grant of extension, split or transfer of existing load."

In view of this instruction, the defendants board cannot club the respective electric connections of the plaintiff but can decline the grant of extension, split or transfer of existing load as per this instruction. The plaintiff is admittedly making payment of the electric consumption charges according to medium supply leviable as per load sanctioned. The defendants are entitled to claim charges of the electricity connection No.M2-78 separate on the basis of tariff applicable to the said connection. These issues are decided in favour of the plaintiff and against the defendants.

Issue No. 2 to 5

These issues have not been pressed by the Ld. counsel for the defendants during the course of arguments. Thus, these, issues are decided against the defendants and in favour of the plaintiff."

Aggrieved by the judgment and decree of the trial Court, the Board filed an appeal before the Court of the District Judge. During the pendency of the appeal, the Board made an application for the amendment of the written statement Under Order 6 Rule I7, CPC and vide orders dated 17.2.1999, the application was allowed and the Board was allowed to amend the written statement by adding a preliminary objection that the Board had provided a remedy to the plaintiff by way of Disputes Settlement Committee. Provision for appeal by way of review is also available and, in these circumstances, the civil suit was not legally maintainable until the consumer exhausts the remedy already provided under the instructions as held by the Hon''ble Apex Court in Civil Appeal No.2507 of 1997 SLP (D) No.5379 of 1998. On this plea of the defendants, an additional issue was framed by the appellate Court, which reads as under :-

"What is the effect of providing departmental remedy to the maintainability of the suit? OPD.

Both the parties were given an opportunity to lead their evidence but they did not produce any evidence hopefully for the reason that the issue was in the shape of a legal issue. The first appellate Court decided the additional issue in favour of the Board and dismissed the suit of the plaintiff for the reasons given in paras 11 and 12 of the judgment, which read as under:-

Relying upon the ratio of the judgment of the Hon''ble Supreme Court in case P.S.E.B. v. Ashwani Kumar, 1997(3) R.C.R. (Civil) 197 which was followed by Hon''ble Punjab and Haryana High Court in case of Punjab State Electricity Board Vs. Jeewan Kumar and Another, and P.S.E.B. v. Oswal Alloys, 1998(3) R.C.R. 683 learned counsel for the appellants has argued that the Civil Court did not have jurisdiction to adjudicate the dispute regarding the clubbing of connection No.M2-77 and M2-78 in the name of respondent-plaintiff and his brother Mangal Singh respectively. He further argued that even as a matter of fact it stands proved that both the parties are brothers having inherited the cold store and ice factory, which are being run in the same premises by taking separate meters, the plaintiff had adopted device to avoid the large supply tariff and sought to pay medium supply tariff. He also argued that instruction No.268 of the Manual stands superseded by another commercial circular No.30 of 1994 dated 12.7.1994 wherein it is made clear that in context to S.M.I.-136 it was stipulated that while categorising industrial consumers and levy of tariff schedule total industrial and general load is to be taken into . consideration. In para No.3 of the said circular instructions had been issued that when two connections are given In one industrial premises, the same would be clubbed. For that my attention has been drawn to commercial circular No.45/94 dated 17.8.1994, wherein clubbing of small power connections into MS/LS category of various charges.

On the other hand, learned counsel for the respondent has argued that clubbing has not been done in accordance with the instruction No.268 of the Sales Manual and that no notice was issued by the Board to the consumer requiring him to get the load clubbed after getting it changed into one name.

Now the only question, which has to be decided by this Court is as to whether the clubbing, of connections No.M2-78 and M2-77 installed in the names of two different persons are being used in the same premises for the same purposes and, if so whether the clubbing of these connections for the purpose of L.S. tariff instead of M.S. tariff in context to various circulars is permissible or not. A similar question came up before our own Hon''ble High Court to P.S.E.B. v. Jiwan Kumar (supra), wherein it was held as under:-

"In the matter of clubbing, a consumer has got an alternative remedy to approach the Dispute Settlement Committee as provided in circular No.26 of 1989 and in view of the availability of the alternative remedy, the Civil Court did not have jurisdiction as per the provisions of Section 9 of the CPC." Similar, observation was made by our own Hon''ble High Court in 1997(5) S.C.C. 182, P.S.E.B. v. Ashwani Kumar, wherein it was held that "the suit filed by the plaintiff against the clubbing of bills was not maintainable. However, the plaintiff were relegated to the remedy provided by circular No.26 of 1989 to raise the factual objections before the Dispute Settlement Committee leaving it open to the committee to consider and dispose of all the objections raised by the plaintiffs after affording proper opportunity to the parties.

Without expressing any opinion on the factual aspect whether different electric connection allotted to different persons meant to energize different machinery, plants or not, the parties are relegated to the alternative remedy by approaching the Dispute Settlement Committee as per circular No.26 of 1989. It would be open to the respondent-plaintiff to establish before the above Committee that the report of the Executive Engineer Enforcement is factually wrong or that clubbing of electric connection No.M2-77 and M2-78 is illegal or contrary to circular of the Board.

This time, the plaintiff was aggrieved by the judgment and decree of the first appellate Court dated 26.8.1999 and has filed the present appeal.

I have heard Mr. T.N. Gupta, counsel for the appellant and with his assistance have gone through the record of this case and would like to dispose of this appeal in limine.

Section 9, CPC, lays down that the Courts shall, subject to the provisions herein contained, have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either or impliedly barred. It is true that the jurisdiction of the Civil Court should not be readily ousted and all allowances should be given in favour of the plaintiff by holding that all suits of civil nature are triable by the Civil Court but at the same time if the jurisdiction of the Civil Court has been ousted either expressly or by implication, then, the Civil Court should have no hesitation in dismissing the suit by relegating the plaintiff to adopt the remedy which has been made available to him.

The learned counsel for the appellant submitted that the first appellate Court has dismissed the suit of the plaintiff mainly by taking in consideration the judgments in P.S.E.B. v. Ashwani Kumar, 1997(5) S.C.C. 182 and Punjab State Electricity Board Vs. Jeewan Kumar and Another, . The counsel submitted that the ratio of the judgment reported in M.P. Electricity Board, Jabalpur Vs. M/s. Vijaya Timber Co., has not been considered by the Hon''ble Supreme Court in Ashwani Kumar''s case (supra), which was decided on 14.3.1997. The counsel also submitted that the first appellate Court did not take into consideration the provisions of Section 79(i) of the Electricity Act and also the provisions of Section 99, CPC. He submitted that the circular which has been relied upon by the first appellate Court is not applicable to the facts in hand.

Before I meet with the argument of Mr. Gupta, first of all, I should be clear on facts. Electric connections No.M2-78 and M2-77 are two connections in the same premises. The connection No.M2-78 is in the name of the plaintiff and connection No.M2-77 is in the name of Mangal Singh, who is none else but the real brother of the plaintiff. It has been seen on facts that connection No.M2-77 is also being utilised by the plaintiff. If both the connections are clubbed, the plaintiff is bound to pay the tariff of large supply whereas the plaintiff is paying the tariff at the rate of medium supply. The judgment in Vijaya Timber Co.'' case (supra) is not helpful in the present case. In this case, the facts were totally different. It dealt with a case of high tension transmission lines and it was found as a matter of fact that those transmission lines were laid without the consent of the plaintiff when the plaintiff has already constructed a portion of his saw mill and those transmission lines were likely to endanger the property of the plaintiff and there was no sanctioned scheme for the transmission lines. In this view of the matter, the Hon''ble Supreme Court was pleased to hold that the exclusion of the jurisdiction of the Civil Court could not be readily inferred on the ground of availability of the remedy and forum under a Special Act when the action in question is without complying the provisions of that Act, Here the facts are totally different. The plaintiff was relying upon circular No.268 which has already been superseded by another commercial circular No.30 of 1994 dated 2.7.94 in which it is clear that when two connections are given in one industrial premises, the same should be clubbed. It is a case of clubbing of two connections run in the same premises and further it has come in the report of the Executive Engineer that the plaintiff himself is the beneficiary of connection No.M2-77 also. In this view of the matter, the Hon''ble Supreme Court was pleased to hold that in the matter of clubbing a consumer has got an alternative remedy to approach the Disputes Settlement Committee and in view of the availability of the alternative remedy, the Civil Court has no jurisdiction as per the provisions of Section 9, CPC.

With regard to the argument of the counsel for the plaintiff with regard to Section 99, CPC, it can be said that it is also devoid of any merit. According to this section, no decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder (or non-joinder) of parties or causes of action or any error, defect or irregularity in any proceedings in the suit not affecting the merits of the case or the jurisdiction of the Court provided that nothing in this section shall apply to the non-joinder of a necessary party.

In this case, the position is totally different. An additional issue was framed by the first appellate/Court on 10.3.1999 and the first appellate Court gave a findings against the plaintiff that the suit of the plaintiff was impliedly barred u/s 9, CPC, keeping in view the Scheme of the Act and in view of the Policy of the Board, which provides an alternative remedy to a consumer which disputes the alleged inflation of the bill or clubbing, etc. This is an issue which was purely a question of law and as per the provisions of Order 14 Rule 2, CPC, such an issue could be tried and ought to have been tried at the fist instance as a preliminary issue. With the amendment of the written statement and with the framing of the additional issue, the first appellate Court was justified in giving a finding on this issue which has gone in favour of the Board and, in these circumstances, the first appellate Court did not give any findings on the other issues on which the trial Court gave the findings.

The learned counsel for the appellant, then, relied upon Ajmer Singh Vs. State of Punjab and Another, and submitted that the issue of jurisdiction could not be decided as a preliminary issue.

The argument is not acceptable. In the cited case, the question of jurisdiction depended upon the question of title, which was already disputed as subject matter of the suit. When the suit could not be disposed of one way or the other purely on a question of law, the Hon''ble Judge was pleased to hold that such an issue should not be treated as a preliminary one but in the present case, there was hardly any defect on the part of the Civil Court in not proceeding further with the suit. After entertaining the written statement, the trial Court should have trained a preliminary issue and ought to have decided the issue one way or the other in view of Ashwani Kumar''s case (supra), which has been rightly relied upon by the first appellate Court.

The learned counsel for the appellant, then, relied upon Indian Aluminium Company Vs. Kerala State Electricity Board, and submitted that u/s 79(j), once the Board had fixed certain tariff under an agreement with the consumer, it cannot enhance the tariff unilaterally in breach of the stipulation and once there is admission with regard to Section 79(j), the jurisdiction of the Civil Court is always there.

I have gone through this judgment minutely. Here, the Board was not fixing special tariffs for the plaintiff. The Board came to the conclusion that the plaintiff is having two connections in the same premises and it is defrauding the Board by showing separate connections; One in the name of his brother and one in his own name. In fact, the plaintiff is the beneficiary of both the connections and if the load of both the connections is clubbed, the plaintiff is liable to pay the tariff on the scale of large consumer. Moreover, the effect of Section 9, CPC, in such a situation was not considered by the Hon''ble Court.

The counsel also relied upon Lt. Col. Yogeshwar Raj Puri v. Yog Raj Puri and Ors., (1975)77 P.L.R. 214 and submitted that the appellant Court could not re-open the trial when the suit had been tried and judgment rendered by the trial Court.

Again, this judgment is not helpful to the counsel for the plaintiff for the simple reason that the appellate Court had allowed the amendment of the pleadings to the defendants and an additional issue was required to be framed. The only way before the first appellate Court was to either record the evidence of the parties at its own level or call for the report of the trial Court Under Order 41, Rule 25, CPC, on the additional issue. The first appellate Court rightly adopted the procedure and gave an opportunity to both the parties to lead evidence on the additional issue. The parties did not offer to lead any evidence. On that issue alone, the suit of the plaintiff could be disposed of. The findings of the first appellate Court went against the plaintiff and the suit of the plaintiff was dismissed by holding that it was implied barred, by taking note of the provisions of the Electricity Act and the various dictums laid down by the Hon''ble Supreme Court. In that circumstances, the judgment and decree of the trial Court virtually became redundant and was liable to be set aside.

In Jiwan Kumar''s case (supra), a judgment of this High Court, in similar circumstances, when the Executive Engineer/Flying Squad had checked the connections of the premises of the plaintiffs and meters were found installed in the same premises and were ordered to be clubbed, in such a situation, the suit was dismissed by holding that the Disputes Redressal Committee has the jurisdiction to settle all the disputes. The judgment in Ashwani Kumar''s case (supra) was taken note to by his lordship.

No other point was urged before me.

Resultantly, the present appeal is hereby dismissed in limine with a clear observation that the plaintiff will be at liberty to avail the remedy of the appeal provided in circular No.26 of 1989 within six weeks from today and raise the factual objections for (Before ?) the appellate authority/Disputes Settlement committee and the Board/Appellate Authority/Dispute Settlement Committee/Zonal Level Committee would consider and dispose of all the objections raised by the plaintiff after affording proper opportunity to him. The appeal, if any, shall be disposed of expeditiously, preferably within 3 months from the date of its receipt No. costs.