Punjab State Electricity Board vs Vinod Kumar

V.K. Jhanji, J.—This is defendant''s second appeal directed against the judgment and decree of the courts below whereby suit filed by the plaintiff for mandatory injunction has been decreed against the defendant, Punjab State Electricity Board (in short the Board).

Plaintiff filed suit for a decree for mandatory injunction directing the Board to restore electricity connection bearing A/c. No. LD-4/298. Plaintiff alleged that on 16.5.1990, in his absence the Flying Squad of the Board visited his factory premises and disconnected the electricity connection and also removed the energy meter installed therein, without any reason and when he (plaintiff) reached the factory premises and objected to this action of the Flying Squad, the Assistant Engineer (Electricity) did not listen to him and obtained his signatures on certain blank papers. Plaintiff further alleged that he approached the S.D.O. who too did not listen to him and rather issued memo dated 17.5.1990 directed him to make payment of Rs. 30,819/- on account of theft of energy. Further, according to the plaintiff, he took the matter to the Dispute Settlement Committee and deposited 40 per cent of the disputed amount at the asking of Dispute Settlement Committee, but Committee also did not look into the matter and decided his case arbitrarily. Plaintiff alleged that S.D.O. issued supplementary bill dated 21.5.1990. According to the plaintiff, the demand of the Board for recovering Rs. 31,696/- raised through Memo No. 2174, dated 23.10.1990, is illegal. Upon notice, the Board denied the allegations of the plaintiff and maintained that electric connection of the plaintiff was checked by the Flying Squad and all the four M & T seals were found to have tampered with. The counter of the meter was also found to have been replaced and the meter was recording 10% consumption only. Defendant-Board also averred that plaintiff was found committing theft of electric energy and therefore, his electric connection was disconnected. It was further the case of defendant that plaintiff took the matter to the dispute Settlement Committee and the Committee after consideration of the entire matter, rejected his claim. Trial Court decreed the suit by saying that the demand could not have been raised against the plaintiff without referring the matter to the Chief Electrical Inspector. It also held that recovery could have been made from the plaintiff only on being found by Chief Electrical Inspector that an amount is recoverable from the plaintiff. In appeal, first appellate Court affirmed the judgment and decree of the trial Court. Hence, this second appeal by the Board.

Learned counsel for the appellant- Board has contended that Courts below are not right in saying that the dispute in the present case is in regard to the meter in question being correct one or faulty. According to the counsel, it has been found by the Flying Squad that counter of the meter had been replaced and the same was recording only 10 per cent of the consumption against the prescribed number of revolution. Counsel contended that being a case of theft of energy, supply of electricity to the respondent-consumer was disconnected. As against this, it has been contended by counsel for respondent that on the facts brought on record, Court below have rightly formed an opinion that the matter in issue falls within the ambit of Chief Electrical Inspector as provided u/s 26(6) of the Indian Electricity Act (hereinafter referred to as 1910 Act) and so, no interference is called for in second appeal.

After hearing the learned counsel for the parties and going through the record, I am of the view that the appeal deserves to be allowed. On the facts proved on record, it stands established that dispute in the present case is not whether meter in question was correct one or faulty, but had been in regard to tampering with meter and commission of fraud. Exhibit D-l is the report of Flying Squad. The relevant part of the said report reads as under :-

"All the four No. M & T seals provided to the meter with impression S2/Mt-37, S2/Mt-128, S2/Mt-69 and OEB/MT-35 found tampered. The meter cover has been opened and counter of the meter found replaced as it was found recording only 10% consumption against prescribed number of revolutions. The constant of the meter is 100 rev/Kwh but it was found recording 1 unit against 1000 rev. The existence of tampered seals and replaced counter amounts to existence of artificial means. The existence of artificial means constitute a case of theft of energy under Clause 33 read with Section 39 of Indian Electricity Board, 1910. Being theft case the meter of the consumer in as found condition was removed and sealed in a card board box with 6 Nos. paper seals jointly signed by consumer and JE-1 of City East S/Divn. and under signed.

Sd/- Vinod Kumar Sd/- JE-1 Sd/-AEE Sign of City East Flying Squad Consumer S/Divn. Khanna, Dated: 16.5.1990. Section 26(6) of the 1910 Act provides for reference to the Electrical Inspector for decision where any difference or dispute arises as to whether any meter installed at the premises of the consumer is or is not correct. Sub-section (6) does not take within its ambit a case where the charge is that the meter has been tampered with and seal broken. Their Lordships of the Supreme Court in Madhya Pradesh Electricity Board and Others Vs. Smt. Basantibai, , have opined that it is only the dispute as to whether meter is/is not correct or it is inherently defective or faulty not recording correctly the electricity consumed, can be decided by the Electrical Inspector, but he has no jurisdiction to decide cases of fraud. The present case being a case of tampering with the meter, Courts below are not right in saying that the matter ought to have been referred to the Chief Electrical Inspector. Infact, in the instant case, plaintiff in terms of the instructions issued from time to time by the Board, took the matter to the Zonal Level Dispute Settlement Committee and the Committee after thoroughly going through the matter, vide minutes recorded on 25,9.1990, dismissed the objection of the plaintiff. A reading of the said minutes shows that during deliberations, plaintiff confessed the charge of replacement of counter of the power meter by the Meter Inspector. On the admission of the plaintiff, Committee issued necessary directions for taking necessary action against the Board officials who were alleged to have been involved in the replacement of power meter. In the suit, no challenge was made to the merits of the decision rendered by the Committee. The only averment in regard to decision taken by the Committee was that decision is arbitrarily, without stating as to how and in which manner the decision was arbitrary or illegal. The Courts below completely misdirected their jurisdiction in upsetting the decision of the Zonal Level Dispute Settlement Committee, as being a Court of appeal. In Punjab State Electricity Board and Another Vs. Ashwani Kumar, , their Lordships of the Supreme Court on reference to circular issued by the board from time to time, have held that by necessary implications, the cognizance of the civil cause has been excluded. Their Lordships also held that 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 (Supply) Act and the instructions issued by the : Board in that behalf from time to time. As already noticed, plaintiff had taken the matter to the Zonal Level Dispute Settlement Committee and having failed there, the Courts below ought not to have entertained the claim of the plaintiff, particularly when Civil Court in these matters has a limited jurisdiction and cannot consider the case on merits as if it was a Court of appeal.

In fairness to the Counsel for plaintiff, judgment in M.P. Electricity Board, Jabalpur Vs. M/s. Vijaya Timber Co., , cited by him, has no application to the facts of the present case. In the said case, jurisdiction of the Civil Court was held to be not barred because action taken therein by the Board was not considered to have been taken as one under the provisions of the Indian Electricity Act. However, in the present case, the action taken by the Board being strictly in accordance with the provisions of the 1910 Act, the Courts below have erred in law in interfering with the same.

Resultantly, appeal is allowed, judgment and decree of the Courts below is set aside and as a consequence thereof, suit of plaintiff shall stand dismissed. No costs.