Vikrama Rai vs State of U.P. and Others

Hon''ble Sibghat Ullah Khan, J.—After the death of Learned Counsel for the Respondents, U.P. State Electricity Board and its authorities, notice was issued to them to engage another counsel. Respondents did not engage any other counsel. Accordingly, on 11.10.2011 arguments of Learned Counsel for the Appellant were heard and judgment was reserved.

This second appeal arises out of O.S. No. 899 of 1974 instituted by the Plaintiff Appellant to restrain the Defendants Respondents from realising Rs. 3043.76 as electricity dues from the Plaintiff demanded through notice dated 06.12.1973. II Additional Munsif, Gorakhpur decreed the suit on 17.09.1975 holding that the demanded amount was not due. Defendants were restrained from realising the amount from the Plaintiff. Against the said judgment and decree Defendants filed Civil Appeal No. 149 of 1976, which was allowed by II Additional District Judge, Gorakhpur on 01.11.1978 only on the ground that the suit was not maintainable in view of Section 4 of U.P. Government Electrical Undertaking (Dues) Recovery Act, 1958. According to the said section if after service of notice of demand consumer denies his liability to pay the dues, he must first deposit the said dues with the Prescribed Authority under protest and then he could institute suit for the refund of the dues.

This appeal was admitted on 16.08.1978 by the following order:

Issue notice.

The substantial question of law involved in this case is whether the suit was barred as found by the lower appellate court.

Lower appellate court has mentioned in second paragraph of its judgment that it was undisputed that electricity connection given to the Plaintiff was disconnected in December, 1970 allegedly on account of non-payment of some of the charges for consumption of the electricity.

The Plaintiff pleaded that in January, 1971 he had given an application to the Defendant for permanent disconnection of electricity to his premises and Defendant No. 3 sent the said application to Defendant No. 2 along with recommendation dated 30.07.1971 for accepting permanent disconnection. The main defence taken by the Defendants was that the Plaintiff was liable to pay Rs. 120/- per annum per B.H.P. as minimum guarantee. It was further pleaded that no application for permanent disconnection was given by the Plaintiff. It was also pleaded that in the amount demanded through the notice some amount was also due for electricity consumed before disconnection in December, 1970.

The trial court held that Defendants could not prove that any amount towards consumption was due. Before the trial court Plaintiff filed the copy of recommendation dated 30.07.1971 accepting his application for permanent disconnection. Trial court recorded finding that letter was sent for permanent disconnection by the Plaintiff in January, 1971 and that either it was received in January, 1971 or on 30/31.07.1971. In the notice minimum guarantee uptil October, 1971 had been demanded. Trial court had held that under no circumstances beyond August, 1971 minimum guarantee could be demanded. The arrears of electricity actually consumed claimed in the notice were Rs. 245.70. Trial court also held as follows:

However as the present suit is only for injunction and the court has no duty to assess the arrears due upon the Plaintiff, so my above findings are more than sufficient for the complete disposal of this suit.

After permanent disconnection Electricity Board had absolutely no authority or jurisdiction to demand minimum guarantee. When an action is utterly withoutjurisdiction, jurisdiction of the civil court is not barredeven if alternative forum of redressal is provided vide Dhulabhai and Others Vs. The State of Madhya Pradesh and Another, .

Accordingly, in my opinion if it was found that Plaintiff had given notice for permanent disconnection then demand for minimum guarantee was utterly without jurisdiction and civil court could decide the said question and U.P. Government Electrical Undertakings (Dues Recovery) Act, 1958, did not bar the jurisdiction of the civil court.

The question of law framed at the time of admission of the appeal is therefore decided in favour of Appellant and against Respondents.

However I do not agree in the least with the finding of the trial court that what was the amount due could not be decided by Court. Injunction could be issued only in respect of the amount which was found not to be payable.

As the lower appellate court has not decided the matter on merit, hence second appeal is allowed and decree passed by the lower appellate court is set aside and Civil Appeal No. 149 of 1976 is restored on the file of II Additional District Judge, Gorakhpur who shall decide as to what amount was due. Suit for injunction should be decreed only in respect of the amount which is found to be not due.

The lower appellate court shall issue notice to the Appellant before it i.e. Electricity Board (now Power Corporation). Appellant Vikram Rai is directed to file certified copy of this judgment and order before the lower appellate court on 27.02.2012 failing which this appeal shall be deemed to have been dismissed.