Punjab State Electricity Board & ANR Vs. Ashwani Kumar [1997] INSC
291 (14 March 1997)
K.
RAMASWAMY, G.B. PATTANAIK
ACT:
HEADNOTE:
O R D
E R Leave granted. We have heard learned counsel on both sides.
The
appeal by special leave arises from the judgment of the Punjab & Haryana
High Court, made on December
9, 1992 in R.S.A. No.
1865 of 1991. the Appellant-Board had given connection of supply of electrical
energy to the respondent on January 16, 1983.
Since the meter installed suspected to have been tempered with was removed on May 6, 1984. On an application made by the respondent, a new
meter was installed on May
9, 1984. On March 18,
1985 Bill No. 44 for Rs. 1,90,498.79 for the period December 1983 to January
16, 1985 for permanent injunction, restraining the Board or its Officers from
collecting and recovering the amount from the respondent. The Sub-Judge on September 16, 1987 granted the decree. On appeal, it
was confirmed and the second appeal has been dismissed. Thus, this appeal by
special leave petition.
On
July 19, 1996 when the matter came up for hearing, this Court passed and order
observing that Section 4, Instruction 115(1)(b) of the sales mannual which is
placed on record, indicates the procedure to be followed when the meter was
found to be accurate, but the reading was inaccurate. Instruction relating the
procedure to be followed for resolving the dispute was not made part of the
record and, therefore, time was granted to the appellant to produce the necessary
record in that behalf. In furtherance thereof, the record has been placed on
record.
Now,
it is clear that the Electricity Board itself has issued Circulars from time to
time in that behalf. Circular No. 111/80, dated December 20, 1980, was issued in partial modification of earlier Circulars
No. 151/79 dated 21.2.1979 and No. 4723/cadre dated 24.7.1980. Therein it
states that the Flaying Squads/Enforcement Staff shall henceforth prepare their
report in respect of checking of the defaulting premises of the delinquent
consumers and serve the requisite notice to the consumer at site itself with a
copy to S.D.O./D.S. Concerned. Thereafter, the Flying Squad shall not revise
their findings or the quantum of penalty already intimated. Cases of default of
payment upto Rs. 5,000/- are reviewable by the Superintending Engineer/D.S. and
the cases of default beyond Rs. 5,000/- are reviewable by C.E. or D.S.
Concerned. Subsequently, instructions were issued under Order No. 427 dated
November 26, 1981 stating that the negotiations with the consumers or withdrawal
of cases from the court or the arbitration proceeding or faulty meter cases may
be taken by the Committee consisting of (1) Chief Engineer (D.S. concerned);
(2) Chief Accounts Officer of Chief Auditor as may be decided by the Member,
Finance;
(3) Legal
Advisor; (4) Director, Commercial. The above committee shall exercise the power
upto Rs. 5,000/- in each and decide all the cases including those pending in
the court, except enforcement of the waiving.
Subsequently,
further Circular No. 111 of 1984 dated December 5, 1984 was issued reiterating
the power of the Flying Squads earlier circulars regarding in para 2(i) and para
2(ii) . The Flying Sqads/Enforcement Staff shall not revise there findings or
the Quantum of Compensation already intimated. Under Clause (iii) it provides
for the following authorities to review the compensation amount one intimated
to the consumer:
a)
Case upto Rs. 10,000/- S.E./D.S b) Case beyond Rs.10,000/- & upto Rs. 5 lacs.
- C.E./D.S.
c)
Cases beyond Rs. 5 lacs (the cases shall - Member (T) be put up by
C.E./Commercial through Director/Enforcement).
Clause
(v) postulates that where the consumer himself accepts the findings of the
Flying Squads and makes the payment of compensation amount, such cases shall
not later on be subject matter or review by the D.S. officers.
Clause
(vi) provides that notwithstanding the fact that the D.S. Officers agree or
disagree with the findings of Flying Squads, but if the consumer protests
against the charges, the review, appeal of such a consumer shall be registered
by S.D.O./D.S. concerned and forwarded to the reviewing authority thought
proper channel. The proper channels have been noted in the subsequent
sub-paragraph of paragraph (vi). Para (vii) indicates that every effort shall
be made by the reviewing authority to ensure that the review appeal is decided
within the stipulated period of disconnection; where is not possible to do so,
the consumer shall be asked by the reviewing authority to deposit at least 75%
of the amount of compensation under protest so that supply could be restored,
after the expiry of stipulated period of disconnection. where a consumer does
not come forward to deposit the amount so worked out in the manner as
stipulated above, the supply shall not be restored till finalisation of the
review/appeal.
The
position was subsequently reviewed under Circular NO. 26 of 1989 dated August 7, 1989. Therein, it is postulated that the
Committee shall be headed by the concerned Superintending Engineer/D.S. and
shall have following members:-
1. S.E./D.S.
Chairman of the Committee
2.
XEN/DS concerned Member Convenor
3.
XEN/Enforcement Member (for cases involving checking by Enforcement staff).
4.
A.O.O./Field Memeber
5.
Representative of Industry Member It is further provided that 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. It
would, thus, be seen that these statutory rules issued by the Board intended to
dispose of the disputes expeditiously without undue delay, so that the consumer
may not be subjected to hardship due to disconnection or non-payment of the
amount charged, as demanded under the rules, for long period. At the same time
the Board is also entitled to recover the amount expeditiously from the consumer,
so that the Board functions efficiently and effectively and also supplies the
electrical energy to the consumer without any inconvenience to the consumer as
no-supply of electrical energy hampers the progress of the industry, etc.
The
question then arises: whether the Civil Court would be justified in entertaining the suit and issue
injunction as prayed for? It is true, as contended by Shri Goyal, learned
Senior Counsel, that the objections were raised in the written statement as to
the maintainability of the suit but the same given up. Section 9 of C.P.C.
Provides that Civil nature, subject to pecuniary jurisdiction, unless their
cognizance is expressly or by necessary implication is barred. 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, there the fundamental fairness of
procedure has been violated. The statutory circulars adumberated 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 as stated above.
Shri Goyal
has contended that the authorities do not hear the parties, nor give reasoned
order. Therefor, the parties cannot, nor given reasoned order. Therefore, the
parties cannot be precluded to avail of the remedy of suit.
we
cannot accept such a broad and generalised proposition.
When
the provisions for appeal by way of review has been provided by the statutory
instructions, and the parties are directed to avail of the remedy, the
authorities are enjoined to consider all the objections raised by the consumer
and to pass, after consideration, the reasoned order in that behalf, so that
the aggrieved consumer, if not satisfied with the order passed by the
Board/appellate authority, can avail of the remedy available under Article 226
of the Constitution. Therefore, by necessary implication, the appropriate
competent authority should here the parties, considers their objections and
pass the reasoned order, either eccepting or negativing the claim. Of course it
is not like a judgment or a civil court. It is then contended that the
respondent has been subjected to pay hug amount of bill in a short period;
hence, it is a case for interference. We find no force in the contention. May
be that due to the advice given by the counsel, the respondent obviously has
availed of the remedy of the suit, instead of departmental appeal. In out view,
by necessary implication the suit is not maintainable. Therefore, the
respondent is at liaberty to avail the remedy of appeal within six weeks from
today and raise the factual objection before consider and dispose of them as
indicated earlier, on merits.
It is
next contended that the respondents has been charged huge amount. It would be
difficult for him to pay the amount in lump sum. Therefore, he may be given
permission to pay the amount in instalments, We find that the request in
genuine and in view of long lapse of time, we direct that the respondent would
pay the amount in demand in six monthly instalments. First instalment shall be
paid on or before April
5, 1997. In case he
succeeds in appeal or in the proceedings, the Board shall refund the amount
with interest at the rate of 12 per cent per annum from the date of deposit.
The
appeal is accordingly allowed, but in the circumstances, without costs.
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