The Assistant Executive Engineer (Electrical), Karnataka Electricity Board now known as K.P.T.C.L. and The Executive Engineer (Ele), Karnataka Electricity Board now known as K.P.T.C.L. vs Ennar Refineries Pvt. Ltd.

V. Jagannathan, J.—This second appeal is by the Karnataka Electricity Board (now the K.P.T.C.L.) and the challenge is to the judgment of the lower appellate court by which the suit of the plaintiff came to be decreed in respect of the relief of declaration and permanent injunction and thereby the judgment of the trial court, which had dismissed the suit of the plaintiff on the ground of maintainability, was thus reversed. Hence, the appellants call in question the decision of the lower appellate court.

The facts in brief are to the effect that the appellants-K.E.B. called upon the respondent-plaintiff to pay Rs. 41,397/-, which is the difference of electricity charges worked out at normal rates following the ''B'' phase L.T. wire being found cut. The plaintiff, aggrieved by the said demand made on it, moved the civil court for the relief of declaration and injunction, though initially the suit was one for the relief on injunction. The trial court dismissed the suit of the plaintiff mainly on the ground of the suit being not maintainable in view of the Regulations of the Electricity Board.

The plaintiff appealed to the lower appellate court which allowed the appeal and set aside the judgment of the trial court and also declared that, the plaintiff is not liable to pay Rs. 41,397/- and the appellants were restrained from disconnecting the electricity supply to the meter THT-14 installed in the suit premises.

I have heard the learned Counsel for the parties and perused the material on record.

Sri N. Krishnananda Gupta, learned Counsel for the appellants-K.E.B., submitted that the lower appellate court was not justified in decreeing the suit of the plaintiff when the suit itself was not maintainable, as rightly held by the trial court. The learned Counsel referred to the relevant Sections of the Electricity Act, 2003 as well as to the Karnataka Electricity Board Electricity Supply Regulations, 1988 (''Regulations, 1988 in short'') to submit that if the plaintiff is aggrieved by the demand made by the K.E.B. as per Ex.P-1, the remedy lies in preferring an appeal to the appellate authority provided under the Regulations and the civil court''s jurisdiction is ousted. Section 145 of the Electricity Act, 2003, which bars the civil court''s jurisdiction was also pressed into service.

In addition, the learned Counsel for the appellants relied on the decisions reported in Mafatlal Industries Ltd. and Others Vs. Union of India (UOI) and Others, and the unreported decisions of this court in R.S.A. No. 404/2002, W.P. No. 140/2004 and C.R.P. No. 168/2005 to submit that, in all the decisions, this court has taken the consistent view that in respect of the matters covered by the Regulations, 1988, the civil courts have no jurisdiction and by implication, the civil court''s jurisdiction is ousted. Therefore, the view taken by the trial court is just and proper. But, the lower appellate court committed serious error in not properly considering the various decisions cited before it. As such, the judgment of the lower appellate court cannot be sustained in law for the above reasons.

On the other hand, the learned Counsel Shri I.G. Gachchinamath for the respondent-plaintiff argued that the lower appellate court has committed no error because, Ex.P-1 that was issued to the plaintiff was only a notice but, it was not an assessment order and secondly, the said document Ex.P-1 was not issued by an Authorized officer and, as such, no appeal can be preferred by the plaintiff against the demand made as per Ex.P-L In addition, no mahazar was conducted in regard to the allegations as regards ''B'' phase wire being found cut The learned Counsel also referred to the observations of the lower appellate court to the effect that the plaintiff has filed electricity bill as per Ex.P-9 and, therefore, when no assessment order has been issued, the question of the civil court''s jurisdiction being barred does not arise because, the plaintiff cannot appeal against the demand made as per Ex.P-1. As such, the relief sought for before the civil court was well within its jurisdiction and rightly the lower appellate court has decreed the suit of the plaintiff. It is then submitted that ail the decisions referred to by the learned Counsel for the appellants are inapplicable to the case on hand.

In the light of the contentions put forward as above and the rulings cited, the substantial question of law that, arises for consideration is whether the finding of the lower appellate court that the suit is maintainable can be held to be sustainable in law, having regard to the relevant provisions of the Electricity Act, 2003 and Regulations, 1988.

Section 145 of the Electricity Act, 2003 provides as under:

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.

Section 126 of the Electricity Act, 2003 refers to the assessment to be made by the Assessing Officer and Section 127 gives the aggrieved person the right to appeal to the appellate authority.

Rule 2.33 of the Regulations, 1988 defines an Authorized Officer as, "Authorized Officer" shall mean all the jurisdictional Engineers of the Board and such other officers Authorized by the Board from time to time. Rule 46.01 in Chapter X of the Regulations, 1988 provides for an appeal being preferred to the appellate authority and the said Rule reads as under:

46.01. Any consumer aggrieved by claims made by the Board on grounds of prejudicial use of power or on account of faulty metering equipment or due to any supplemental claims, may file an appeal to the prescribed Appellate Authority within one month from the date of bill of claims under intimation to the Office of issue, by making payment as indicated below:

(a) Dishonest abstraction/ Consumption/use: 50% of the claims or more

(b) Other cases: 25% of the claims or more.

Thus, by reading all the above provisions, it becomes clear that where an assessment is made by an Authorized Officer and a claim is made against a consumer either on the ground of prejudicial use of power or on account of faulty meter equipment or due to any supplemental claims, the remedy lies in preferring an appeal to the appellate authority.

As far as the officer issuing Ex.P-1 to the plaintiff is concerned, a perusal of the said document Ex.P-1 reveals that the demand was made on behalf of the appellant-Board by the Assistant Executive Engineer (Electrical) and by virtue of the definition of "Authorized Officer", the person issuing the said letter Ex.P-1 comes within the expression "Authorized Officer". On a plain reading of Ex.P-1, it cannot be said that it is only a notice issued to the plaintiff but, on the other hand, it is clear from the contents therein that an assessment had been made on the basis of the difference of energy charges worked out at normal rates and in arriving at this figure of Rs. 41,397/-, various factors have been taken into account like average consumption, the consumption during the period from 1/95 to 24.2.1995, recorded consumption, difference of units to be billed, etc. In other words, the contents of Ex.P-1 does give an impression that it. is an assessment made by the Authorized Officer as to the amount to be paid by the plaintiff. Hence, the submission that Ex.P-1 is only a show cause notice cannot be accepted.

In all the decisions referred to by the learned Counsel for the appellants, it has been clearly held that in respect of the matters covered under the Electricity Act as per Section 145, the civil court shall have no jurisdiction. In the decision reported in I.L.R 2005 Karnataka 5206, it has been held that no civil court shall have jurisdiction to entertain any suit or proceeding in respect of any other matter which the Assessing Officer, u/s 126 or the Appellate Authority, u/s 127, is empowered to determine or act. The court went on to hold that Section 145 of the Act, by implication, would exclude the jurisdiction of the civil court or any other forum on adjudicating the claim or action of the petitioners.

In the light of the aforesaid decisions of this court as well as the Apex Court in the case of Mafatlal Industries Ltd. and Others Vs. Union of India (UOI) and Others, , in respect of the matter that is the subject matter of the present suit viz., Ex.P-1, the civil court''s jurisdiction is clearly barred. The view taken by the trial court is in consonance with the law laid down in the aforementioned decision. But, unfortunately, the lower appellate court did not properly consider the case of the parties and has erroneously declined to take note of the position in law as has been laid down in the aforementioned case. Hence, the substantial question of law is answered against the view taken by the lower appellate court.

In the result, I proceed to pass the following order:

The appeal is allowed and the judgment of the lower appellate court is set aside and that of the trial court stands restored.

The respondent-plaintiff is at liberty to appeal to the authorities concerned under the Regulations and the authority shall consider the appeal in accordance with law and, until such time the matter is decided by the appellate authority, supply of power shall not be cut to the premises of the plaintiff. The plaintiff shall file the appeal before the appellate authority within four months from the date of this judgment.