Punjab State Electricity Board, Patiala vs Oswal Alloys Ltd.

Sat Pal, J.—This appeal has been directed against the judgment dated 2.5.1996 passed by Additional District Judge, Ludhiana. By this judgment, the learned Additional District Judge has set aside the judgment dated 24.4.1995 passed by the learned trial Court and has decreed the suit of the respondent plaintiff. Notice of motion in this appeal was issued to the respondents.

Briefly stated the facts of the case are that the respondentplaintiff company is a regular consumer of Punjab State Electricity Board (hereinafter referred to as ''PSEB'') in relation to electric connection No. LS 49. Initially the sanctioned load in favour of the plaintiff was 1260 KVA. The plaintiff company submitted an application for additional load in May 1986 and a provisional demand notice dated 30.11.1987 was issued by the PSEB on the basis of which a sum of Rs. 887354/ was deposited by the plaintiff company. This amount was deposited with the clear understanding that it shall be adjusted towards the actual costs of additional load of 1699909 KW and a true and correct account of this amount would be furnished by PSEB to the plaintiff. Thereafter PSEB raised an additional demand of Rs. 265940/ towards the costs of additional load. The said additional demand of Rs. 265940/ was challenged by the plaintiff company in the suit filed before the Court of Sub Judge Ist Class, Ludhiana. The learned trial Court vide judgment dated 24.4.1995 dismissed the suit of the plaintiff company. The said judgment passed by the learned trial Court was challenged by the plaintiff company in the Court of Additional District Judge, Ludhiana, who vide his judgment dated 2.5.1996 set aside the judgment of the trial Court and decreed the suit of the plaintiff. The aforesaid judgment dated 2.5.1996 has been challenged by PSEB in the present appeal.

Mr. Wasu, the learned Counsel appearing on behalf of appellant PSEB submitted that the plaintiff company did not avail the remedy provided in the circular No. 26/1989 dated 7.8.1989 and as such the Civil Court was not justified in entertaining the suit filed by the plaintiff company. In support of his submission, the learned Counsel placed reliance on a recent judgment of the Supreme Court in Punjab State Electricity Board and another v. Ashwani Kumar, 1997(3) RCR(Civil) 147 : JT 1997(5) SC 182.

Mr. Puri, the learned Counsel appearing on behalf of the respondent plaintiff company submitted that mere fact that special statute provides for certain remedies, itself does not exclude the jurisdiction of the Civil Court. He submitted that in the present case the orders for the additional demand passed by the officer concerned were not in accordance with the provisions of the Indian Electricity Act, 1910 (hereinafter referred to as ''the Act'') and since these orders were passed in excess of the jurisdiction, the same were rightly challenged by the respondent company in the civil Court. In support of his submissions, the learned Counsel placed reliance on the following judgments of the Supreme Court :

Firm of Illuri Subbayya Chetty and Sons v. State of Andhra Pradesh, AIR 1964 SC 322.

Dr. Rajendra Prakash Sharma v. Gyan Chandra and others, AIR 1980 SC 1206.

Sarswati and others v. Lachanna (dead) through L.R.s.'' 1994(1) Civil Court Cases 611.

M.P. Electricity Board, Jabalplur v. M/s. Vijaya Timber Co., 1997(2) RCR (Civil) 44.

Sankalchan Jayachandbhai Patel v. Vithalbhai Jaya Chand Bhai Patel, 1997(1) Apex Court Journal 105 : 1997(1) RCR(Civil) 505 (SC)..

The learned Counsel further submitted that amount of additional demand claimed by the appellant Board has been held to be illegal by the learned lower appellate Court as the appellant Board did not produce the original documents to prove that this additional amount was actually spent by the Board and it was payable by the respondent company. He, therefore, contended that the appeal being without merit be dismissed.

I have given my thoughtful consideration to the submissions made by the learned Counsel of the parties and have perused the records. In the present case, the dispute is with regard to the additional demand of Rs. 265940/ raised by PSEB against the respondent company. It is an admitted fact that respondent company had submitted an application before PSEB for additional load and the appellant PSEB had directed the respondent company to deposit a sum of Rs. 887354/ on provisional basis which amount was duly deposited by the respondent company on 15.12.1987. At the time of deposit of the said amount, there was a clear understanding that this amount would be adjusted towards actual cost of additional load of 1699909 KW and appellant Board would furnish the true account of the actual cost. The case of the appellant Board is that the amount of actual cost for the additional load came to Rs. 1153294/ and after adjusting the sum of Rs. 887354/ a sum of Rs. 265940/ is payable by the respondent company whereas the case of the respondent company is that the appellant Board has failed to furnish the true and correct account of the amount incurred for the additional load. From the records I find that the appellant Board has provided machinery to nonadjudicate such disputes. In this connection reference may made to circular No. 26/1989 which reads as under :

"Subject : Settlement of consumer dispute cases Constitution of Circle Leve Committee.

Kindly refer to CC III/84 dated 5.12.84, 48/85 dtd. 19.6.85 and 81/96 dtd. 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 upto 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

XEN/DS concerned

Members Convenor

XEN/Enforcement

Member (for cases involving checking by Enforcement Staff).

A.O./Field

Member

Representative of Industry

Member.

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 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 instructions. 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 SMI181.

By this circular certain earlier circulars issued by the appellant have been amended but this circular contains the decision of the appellant Board 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. 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 Rs. 30,000/ in each case. Thus the Committee mentioned in this circular shall have powers to review and decide the dispute between the appellant and the respondent company.

It may also be relevant to note here that the above mentioned circular No. 26/89 dated 7.8.1989 itself has been referred to in the judgment of the Supreme Court in the case of Ashwani Kumar (supra). After noticing this circular, the Supreme Court observed as under :

"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 fundamental fairness of procedure has been violated. The statutory circulars adumbrated above do indicate that a fundamental fairness of the procedure has been prescribed in the rules and is being followed. By necessary implications, 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 (Supply) Act and the Instructions issued by the Board in that behalf from time as stated above."

From the facts stated herein above, it is clear that the point raised in this appeal is fully covered by the judgment of the Supreme Court in the case of Ashwani Kumar (supra). In view of the law laid down by the Supreme Court in the said case, the appeal has to be allowed and the respondentplaintiff would be relegated to avail the remedy provided in the circular issued by the PSEB.

It is true that the mere fact that a statute provides for certain remedies may not by itself necessarily exclude the jurisdiction of the Civil Court as held by the Apex Court in the case of Firm of Illuri Subbayya Chetty and Sons (supra) but once a remedy has been provided by the appellant Board and the circular providing the said remedy has been considered and approved by the Supreme Court, in the case of Ashwani Kumar (supra), this Court has to follow the judgment of the Supreme Court wherein the point raised in this appeal has been decided.

The judgment of the Supreme Court in the case of Dr. Rajendra Prakash Sharma (supra) relied upon by the learned Counsel for the respondent company is of no assistance to the respondent as in the present case there is no allegation that the authority concerned has violated any provision of the Electricity Act. On the same ground the judgment of the Supreme Court in the case of M.P. Electricity Board, Jabalpur (supra) shall not apply to the facts of the present case. The judgment of the Supreme Court in the case of Saraswati and others (supra) is also not of any assistance to the respondent company as in that case no forum had been provided for adjudication of the dispute. The case of Sankalchand Jaychandbhai Patel (supra) relates to the jurisdiction of the civil Court to entertain suit based on title and is not applicable to the facts of the present case which is fully covered by the judgment of the Supreme Court in the case of Ashwani Kumar (supra).

For the reasons recorded herein above, the appeal is allowed and the impugned judgment dated 2.5.1996 passed by the learned lower appellate Court is set aside. The respondent Company, however, shall be at liberty to avail the remedy of the appeal within six weeks from today and raise the factual objections before the Appellate Authority Board/Committee which would consider and dispose of the appeal on merits. The respondent company shall also be at liberty to approach the said Appellate Authority for interim stay of the amount of additional demand pending decision in the appeal. The parties are left to bear their own costs.