Sri Gopinath Nayak vs The Section Officer, The Executive Engineer (Ele.), Karnataka Electricity Board and The Karnataka Electricity Board

V. Jagannathan, J.—This second appeal is disposed of finally after hearing learned Counsel for the parties.

The appellant was the plaintiff in the trial court and suit was filed by the appellant for declaration and permanent injunction against the defendant Karnataka Electricity Board and his prayer in the suit was for declaration that he has right to continue the classification as LT.5 and is liable to pay Rs. 1.30 per unit except the enhanced rate by the Government and also for the relief of permanent injunction restraining the defendants from collecting the enhanced amount or changing the classification and increasing the rate and to restrain the defendants from disconnecting the electricity supply to the plaintiffs industry bearing R.R. No. P.1300.

The suit was filed by the plaintiff by contending that being the consumer of the defendants in connection with RR No. P.1300, the plaintiff had installation for running Ice Cream and Ice Candy manufacturing industry. After the defendants gave them the classification as LT.5, but however as per the demand notice issued by the 1st defendant on 13.4.91, the amount was mentioned as Rs. 39,898.60 to be paid by the plaintiff and the grievance of the plaintiff therefore was that there was no basis for changing the classification from LT.5 to LT.3.

On the other hand, the defendants took up the contention that there was a wrong calculation of the electricity consumption charges and instead of classifying as LT.3, it was wrongly mentioned as LT.5 and therefore the suit of the plaintiff was not maintainable having regard to the appeal provisions provided as per the Regulation No. 30-08(d) and Regulations 46.01 of Karnataka Electricity Supply Regulations.

The above plaint averments and the defence taken by the respondents led the trial court to frame necessary issues and the suit of the plaintiff was dismissed upon consideration of evidence.

The lower appellate court went one step further and held that the suit of the plaintiff itself was not maintainable in view of the appeal provision available to the plaintiff and in this regard lower appellate court also relied on several judgments of the Apex Court and this Court.

Following the dismissal of the appeal by the lower appellate court, the plaintiff has preferred this second appeal.

I have heard learned Counsel for the parties and perused the reasoning of the lower appellate court.

The submission made by the appellant''s counsel was that there was no justification in changing the classification from LT.5 to LT.3 and therefore the amount demanded is exorbitant and secondly if the appellant has to take any course to the appeal provisions, then the appellant will have to deposit certain amount and further the appellant also is not likely to get fair treatment from the defendants. As such, the trial court could not have dismissed the suit of the plaintiff.

On the other hand, learned Counsel for the respondents contended that there are number of rulings of the Apex Court and this Court holding that where appeal provisions are available, the remedy is to follow the appeal provisions and not to rush to the civil court for remedy. Referring to Section 9 of CPC as well as judgments of the Apex Court in this regard learned Counsel sought for dismissal of the appeal.

Having heard both sides as above, as far as the decisions cited by the learned Counsel for the respondents are concerned, in the decision of tine Apex Court in the case of Mafatlal Industries Ltd. and Others Vs. Union of India (UOI) and Others, the Apex Court held that where a complete mechanism for redressal is provided by the statute concerned, there is bar to civil court''s jurisdiction by implication and as such, claim for refund of tax or duty wrongly paid could not have been allowed.

Apart from the aforesaid decision, the Apex Court in the case of Punjab State Electricity Board and Anr. v. Ashwani Kumar 1997(3) Supreme 615 has held thus:

Held 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 to time.

In the light of the aforesaid position in law as has been laid down by the Apex Court and this Court also in the case of B. Narayana Swamy v. Asst. Executive Engineer, K.E.B. ILR 1999 KAR 1665 having held that the suit of the plaintiff challenging the back billing is not maintainable, in the instant case also in view of the nature of relief sought by the appellant, the suit itself was not maintainable at the first instance though the trial court took great pains to ultimately dismiss the suit after considering the evidence. However, the lower appellate court was right in holding that the suit was not maintainable and remedy lies under the appeal provisions provided.

I therefore see no substantial question of law being involved in this appeal. The appeal is dismissed. Ii is made clear that the dismissal of the appeal shall not prevent the appellant going to the electricity board and filing the appeal and the respondent KEB however shall not disconnect the electricity till the matter is disposed of by the respondent authority.