Punjab State Electricity Board vs Jeewan Kumar and Another

Satpal, J.—By this judgment, I am disposing of ten appeals bearing Nos. RSA 3283 of 1997 to 3292 of 1997 as the points of fact and law are similar in all these appeals. It may be relevant to note here that vide order dated 7-5-1998, it was made clear that all these appeals will be finally disposed of,

Briefly stated the facts of the case are that one Executive Engineer/Flying Squad had checked the premises of the plaintiff in all these cases and it was found that two connections bearing No. MS-1/45 and MS-1/47 were installed in the same premises though each of the two meters were in the name of separate persons who happen to be real brothers. The appellant-department took the view that since both the meters have been in stalled at the same premises, both the meters were required to be clubbed together. After the check ing by the Executive Engineer/Flying Squad, the SDO (Billing) of the appellant-department sent the supplementary bills for recovery of the amount on thebasis that both the meters should be clubbed together. These supplementary bills were chal lenged by the respondent-plaintiffs in the ten suits filed before the learned trial Court which have given rise to these appeals. The learned trial Court vide judgment dated 4-10-1996 decreed the suits of the plaintiffs-respondents and held that the appellant-department was not entitled to re cover the amount of the supplementary bills. It may, however, be relevant to point out that in the written statement filed by the appellant-Board before the learned trial Court, a plea was taken that the suits filed by the plaintiffs were not maintainable.

Aggrieved by the judgment dated 4-10-1996 passed by the learned trial Court, the appellant-Board filed appeals in all these cases and the learned lower appellate Court vide judgments dated 12-6-1997 dismissed all the appeals filed by the appellant-Board. The aforesaid judgments passed by the learned lower appellate Court have been challenged in all these appeals.

Mr. GRP Singh, the learned counsel appearing on behalf of the appellant-Board submits that the suits filed by the respondent-plaintiffs were not maintainable as remedy to challenge the amount of supplementary bills before Dispute Settlement Committee at the circle level had been provided in Commercial Circular No. 26/89. The learned counsel submits that since the remedy has been provided in the circular issued by the appellant-Board, the suits filed by the respondents-plaintiffs were liable to be dismissed on this short ground. In support of his submission, the learned counsel has placed reliance on a recent judgment of the Supreme Court in Punjab State Electricity Board v. Ashwani Kumar 1997 (5) JT (SC) 182.

Mr. Mittal, the learned senior counsel appearing on behalf of the respondents, however, submits that the judgment in the case of Ashwani Kumar (1997 (5) JT (SC) 182) (supra), is not applicable to the facts of the present case. He submits that the aforesaid judgment pertains to the cases of theft or the cases where the enforcement checking staff has found the alleged theft of the electricity by the consumer. The learned counsel further submits that though as per the case of the appellant-Board, premises of the respondents-plaintiffs were checked by the Executive Engineer/Flying Squad but no enquiry was made at the spot whereas in the case of Ashwani Kumar (1997 (5) JT (SC) 182) (supra) the enquiry was made at the spot. The learned counsel further submitted that the present case is not a case pertaining to the dispute of tampering with of the meters and as such the judgment of the Supreme Court in the aforesaid case is not applicable.

6-8. After hearing the learned counsel of the parties and having perused the records of the case and also the judgment in the case of Ashwani Kumar (1997(5) JT (SC) 182) (supra) I am of the opinion that the point raised by the learned counsel for the appellant in the present case is squarely covered by the judgment of the Supreme Court in the case of Ashwani Kumar (1997 (5) JT (SC) 182) (supra). In this connection it will be relevant to re-produce the Commercial Circular No. 26 of 1989 which reads as under :--

"Subject : Settlement of consumer dispute cases -- Constitution of Circle Level Committee. Kindly refer to CC III/84, dated 5-12-1984, 48/85 dated 19-6-1985 and 81/86, dated 12-9-1986.

As per existing instructions, powers to review the cases arising out of checking of consumers premises by officers in the distribution charges and enforcement wing and theft cases up to Rs. 10,000/- in each case are vested in the concerned SE/DS. However, for the cases checked by Enforcement Officers, comments of Director/Enforcement are required to be taken for deciding such cases.

It has been decided to constitute Dispute Settlement Committees at the circle level analogous to Zonal Level Committees in order to rationalise the work load of Zonal Level Committees and to ensure expeditious settlement of the pending disputes. These Committees shall be headed by the concerned SE/DS and shall have the following members :

SE/DS Chairman of the committee. 2. XEN/DS concerned Member Convenor 3. XEN/Enforcement Member (For cases involving checking by Enforcing Staff). 4. A.O./Field Member 5. Representative of Industry Member

The Committee shall have powers to review and decide all cases for recovery, waiving off the irrecoverable amount up to Rs. 30,000/- in each case. This Committee shall decide all disputed cases 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 departmental instruction. However, powers for settlement of Court cases outside the Court shall remain with the Zonal Level Committee and the powers to waive off late payment surcharge cases shall remain with the various Field Officers as per SMI-181."

By this circular certain earlier circulars issued by the department have been amended but this circular clearly stipulates the decision of the appellant-Board to constitute Dispute Settlement Committee at the circle level analogous to Zonal Level Committee in order to rationalise the work load of Zonal Level Committees and to ensure expeditious settlement of the pending disputes. It has been stated in this circular that the aforesaid committee shall have powers to review and decide all cases for recovery, waiving off the irrecoverable amount upto 30,000/- in each case. It has also been mentioned in this circular that for the cases checked by the Enforcement Officers, comments of Director/Enforcement would be called for before deciding such cases. As per the case of the appellant, Executive Engineer/Flying Squad hadchecked the connections at the premises of the plaintiffs and during the checking it was found that two meters bearing No. MS-1745 and IMS-1747 were installed in the same premises. Whether these two meters can be clubbed or not is a matter which cannot be gone into in the present proceedings but will be the subject-matter which will be decided by the Dispute Settlement Committee after the dispute between the plaintiffs and the appellant-Board is referred to them.

It may also be relevant to note here that the abovementioned Circular No. 26/89, dated 7-8-1989 itself has been referred to in paras 8 and 9 of the judgment of the Apex Court in the case of Ashwani Kumar (1997 (5) JT (SC) 182) (supra). In para 9 of the said judgment it had been stated that this Committee shall decided all disputed cases including the cases arising out of enforcement checking. The word all the cases itself is so clear that all disputes can be referred to the Dispute Settlement Committee/Zonal Level Committees.

In view of the above discussion all the appeals are allowed and the judgment dated 4-10-1996 passed by the learned trial Court and judgment dated 12-6-1997 passed by the learned lower appellate Court are set aside. Consequently, the suits filed by the respondents-plaintiffs stand dismissed. It is, however, made clear that the respondents-plaintiffs are at liberty to avail the remedy of the appeal provided in Circular No. 26/1989 within six weeks from today and raise the factual objections before the Appellate Authority/Dispute Settlement Committee, and the Board/ Appellate Authority/ Dispute Settlement Committee/Zonal Level Committee would consider and dispose of all the objections raised by the respondents-plaintiffs after affording proper opportunity to them after the appeals are received by the Appellate Authority/Committee. The authority shall dispose of the appeals expeditiously preferably within three months from the date of receipt of the appeals.