Soney Lal vs U.P. Electricity Board and Another

Poonam Srivastava, J.—Heard learned Counsel for the plaintiff/appellant and Sri S.C. Pandey, counsel for the defendant/respondents.

The plaintiff/appellant instituted a Suit No. 564 of 1992 for mandatory injunction against Power Corporation to restore electricity connection, which was disconnected illegally despite the fact that all the dues and electricity bills were duly paid. A demand notice was served on the plaintiff for an amount of Rs. 19,115 towards minimum bill charges, which was challenged in civil suit. The trial court dismissed the suit on 23.9.2002. Against which Civil Appeal No. 17/47 of 2002 was preferred, and the same was also dismissed on 3.1.2008. Both the judgment and orders are challenged in the instant second appeal.

Counsel for the appellant has placed extract of ledger book and submitted that the alleged electricity dues from August to December, 1986 was paid on 9.1.1987 and thus findings of the courts below are perverse on the face of it.

Counsel for the defendant/respondents has categorically argued that civil suit against the demand notice is barred u/s 4 of U.P. Government Electrical Undertaking (Dues Recovery) Act, 1958 and Regulation 8 of Electricity Supply Consumer Regulations of 1984. The courts below have concluded that notice for recovery of dues once issued to the consumer, it cannot be challenged in a civil suit and the suit was not maintainable. The dues recoverable as arrears of land revenue cannot be challenged in a civil suit. The jurisdiction of civil court is completely barred u/s 145 of Electricity Act. 2003. Section 145 of the said Act is quoted below:

Civil court not to have Jurisdiction.-No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which an assessing officer referred to in Section 126 or an appellate authority referred to in Section 127 or the adjudicating officer appointed under this Act is empowered by or under this Act to determine and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.

Counsel for the appellant has argued that the Electricity Act. 2003 is not applicable to the appellant as it is subsequent Act and therefore, question of maintainability of the suit does not arise. This was never challenged before the courts below. Besides, findings recorded by the two Courts are absolutely perverse and liable to be set aside.

Counsel for the respondents has placed Section 5 of U.P. Electrical Undertaking (Dues Recovery) Act, 1958, which provides that if the dues for which notice of demand has been served are not deposited with the prescribed authority within 30 days from the date of service, or such extended period as the prescribed authority may allow, the same together with cost of recovery as may be prescribed shall be recoverable as arrears of land revenue notwithstanding contained in any other law, instrument or agreement.

The two courts below have also recorded findings that there was a demand notice for an amount of Rs. 19,115 towards minimum charges, which the appellant was liable to pay since the electricity connection was not disconnected, only power supply was stopped for non-payment of the dues but connection continued in the name of the appellant.

Submission of the counsel for the appellant assuming to be correct that there was no dues even then no objection was filed and recovery notice was not challenged under Regulation, 1984. Issue Nos. 4 and 5 were specifically on the question of maintainability of the suit. The two issues were whether the suit is barred u/s 4 of Recovery Act, 1958 and Clause 8 of Electricity Supply (Consumer) Regulation, 1984? Both issues were decided against the appellant. In the case of Punjab State Electricity Board and Anr. v. Ashwani Kumar 1997 SAR 363 (SC) : 1998 (1) AWC 26 (SC)(NOC), the Apex Court ruled that Section 9, C.P.C. though provides that civil court has jurisdiction to try all suits of civil nature, subject to pecuniary jurisdiction, unless cognizance of such suit is expressly or by necessary implication barred. It was also held that the Indian Electricity Act has provided alternative remedy to hear complaint of the consumer, therefore, no civil suit for injunction is maintainable, the demand by the Electricity Department was recoverable as arrears of land revenue and, therefore, the recovery could not be challenged in a civil suit, the Court could not injunct the Power Corporation from realizing its dues.

Counsel for the appellant has tried to emphasize substantial questions of law, which are in fact factual in nature and question of validity of the demand notice and its consequent recovery.

Counsel for the appellant has tried to argue that the Electricity Act, 2003 is not applicable and question of maintainability of the suit was never raised before the courts below. Besides, findings recorded by the two Courts are absolutely perverse and liable to be set aside in the instant appeal as there was nothing due. Perusal of the provision of Electricity Act, 1958, Section 5 of the said Act entitles the Power Corporation to serve demand notice for the consumption of electricity supply of the consumer, who is required to deposit the dues within 30 days of service of notice. If dues are not paid, the Power Corporation has a right to disconnect the supply. However, if the electricity connection continues, the consumer is liable to deposit minimum charges. There is no illegality whatsoever least to say any substantial question of law arises worth consideration in the instant second appeal. Besides, I am satisfied that civil suit is not maintainable and Jurisdiction of civil court is completely barred.

The Apex Court depreciated the liberal construction and generous application of provisions of Section 100, C.P.C. Hon''ble Supreme Court was of the view that only because there is another view possible on appreciation of evidence that cannot be sufficient for interference u/s 100, C.P.C. For ready reference, extract of paragraph No. 7 of the case of Veerayee Ammal Vs. Seeni Ammal, is quoted below:

...We have noticed with distress that despite amendment, the provisions of Section 100 of the CPC have been liberally construed and generously applied by some Judges of the High Courts with the result that objective intended to be achieved by the amendment of Section 100 appears to have been frustrated. Even before the amendment of Section 100 of the Code of Civil Procedure, the concurrent finding of facts could not be disturbed in the second appeal. This Court in Paras Nath Thakur v. Mohani Dasi AIR 1205 3, held:

It is well-settled by a long series of decisions of the Judicial Committee of the Privy Council and of this Court, that a High Court, on second appeal, cannot go into questions of fact, however, erroneous the findings of fact recorded by the courts of fact may be. It is not necessary to cite those decisions. Indeed, the learned Counsel for the plaintiff-respondents did not and could not contend that the High Court was competent to go behind the findings of fact concurrently recorded by the two courts of fact.

Similar view has been expressed in a number of other decisions by the Apex Court in the cases of Thiagarajan and Others Vs. Sri Venugopalaswamy B. Koil and Others, ; Rajeshwari Vs. Puran Indoria, ; Gurdev Kaur and Ors. v. Kaki and Ors. 2006 ACJ 1481 (SC) : 2006 (3) AWC 2373 (SC) and Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar and Others,

The Apex Court in the recent case of Santosh Hazari Vs. Purushottam Tiwai (Dead) by Lrs., ruled that a point of law which admits of no two opinions may be proposition of law but cannot be a substantial question of law. To be ''substantial'' a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. It will, therefore, depend on the facts and circumstances of the each case whether a question of law is substantial one and involved in the case or not? The same view has been expressed by the Apex Court in the case of Govindaraju Vs. Mariamman,

In view of the aforesaid decisions and after going through the entire record, I do not find any substantial question of law worth consideration in the instant appeal. I am satisfied that the civil court has no jurisdiction and the findings recorded by the two-Courts do not call for any interference.

The instant second appeal lacks'' merit and is, accordingly, dismissed with costs.