Municipal Committee,
Hoshiarpur Vs Punjab State Electricity Board & Ors.
JUDGMENT
Dr. B.S. CHAUHAN, J.
1.
This
appeal has been preferred against the judgment and decree dated 12.1.2001
passed in Regular Second Appeal No.1618 of 1998by the High Court of Punjab
& Haryana at Chandigarh, reversing the judgment and decree of the trial
Court, as well as of the First Appellate Court. Facts:
2.
Facts
and circumstances giving rise to this appeal are that the Municipal Committee,
Hoshiarpur (hereinafter called the `appellant')had taken an electricity
connection on 15.6.1992, for running a tube well, from the Punjab State
Electricity Board (hereinafter called the `Board'), for supplying water for
daily use to the public of the locality at large. The average bill for the
consumption of electricity of the said connection used to be around Rs.5,000/-
per month and the said amount was paid regularly by the appellant. A bill
dated11.3.1994 to the tune of Rs.82,300/- was served upon the appellant by the
Board. As the bill was very high, the appellant instead of making the payment,
filed suit No. 304 of 1994 before the Civil Court challenging the said bill.
The Board contested the Suit by filing a written statement contending that the
connection had not been made properly and on checking, one of the Current Trap Patents
(hereinafter called `CT') was found to be reversed, thereby nullifying the
action of second CT, as a result of which only one CT was contributing to there
cording of the energy actually consumed. The meter was showing only 1/3rd of
the actual consumption of the energy, and once the proper connection was made,
the reading of the meter jumped three times. In view thereof, the account of
the said meter was overhauled from the date of its installation and the fresh
bill was rightly issued. The appellant filed a replication contending that no
opportunity of hearing was given to it before revising the bill nor was the
checking/inspection done in the presence of any responsible officer of the
appellant. No notice was ever given by the Board to the appellant for
inspection. Moreover, the appellant was not in a position to passon the
liability to its consumers.
3.
After
considering the facts and circumstances of the case and appreciating the
evidence on record, the trial Court vide its judgment and decree dated
22.5.1995, decreed the suit. The trial Court came to the conclusion that
appellant had not made any attempt to tamper with the meter nor committed theft
of energy. The defect was due to the negligence of the Board, and the appellant
could not be burdened for the same. The trial court declared the said revised
bill as null and void. Being aggrieved, the respondent-Board preferred an appeal
before the District Judge and the same was dismissed vide judgment and decree
dated 30.9.1997, holding that there was no justification for the
respondent-Board to issue a supplementary bill arbitrarily.
4.
Being
aggrieved, the respondent-Board preferred Second AppealNo.1618 of 1998 before
the High Court which has been allowed vide impugned judgment and decree dated
12.1.2001, observing that after correcting the wrong connection, the reading of
the meter jumped three times and therefore, from the very beginning only 1/3rd
of the electric energy actually consumed stood recorded by the meter. Therefore,
such a recovery was justified and there could be no equity in favour of the
appellant to withhold the payment. Hence, this appeal. Rival Contentions:
5.
Shri
K.K. Mohan, learned counsel appearing for the appellant, submitted that the
High Court committed a grave error in deciding the Second Appeal without
meeting the mandatory requirement of Section100 of the Code of Civil Procedure,
1908 (hereinafter called `CPC')as no substantial question of law had been
framed by the High Court. The bill was revised without giving any show cause
notice or opportunity of hearing to the appellant. The High Court recorded a
perverse finding that after the correct/proper connection was made, the meter
reading jumped to three times the previous readings. The High Court failed to
note that for certain months subsequent to the correction of connection, the
reading shown by meter was less than what had been shown prior to the
correction, i.e., November 1993.The appeal deserves to be allowed.
6.
On
the contrary, Shri Satinder S. Gulati, learned counsel appearing for the
respondent-Board, has vehemently opposed the appeal contending that it was not
that the appellant had made any attempt to commit theft of energy or tampered
with the meter. It was merely a fault/negligence on the part of the
respondent-Board that the proper connection of the meter had not been made and after
connecting the meter properly the meter readings had shown 3 times the
consumption of electricity shown earlier. Thus, it was a case of recovery of
the amount that was due in accordance with law and as per the actual total
consumption of energy. The High Court was justified in re-appreciating the
facts without formulating a substantial question of law in view of the
provisions of Section 103 CPC. More so, the appellant has not shown what
prejudice has been caused to it, if the High Court did not frame a substantial
question of law and no opportunity of hearing was given to it by the Board
before revising the bill. Thus, no interference is called for and the appeal is
liable to be dismissed.
7.
We
have considered the rival submissions made by the learned counsel for the
parties and perused the record. LEGAL ISSUES: Second Appeal: Sections 100 &
103 C.P.C.:
8.
These
provisions provide for the conditions precedent for entertaining a Second
Appeal and the specific manner of its disposal. Section 100 CPC reads as
follows:"100. Second Appeal.-(1) Save as otherwise expressly provided in
the body of this Code or by any other law for the time being in force, an
appeal shall lie to the High Court from every decree passed in appeal by any
Court subordinate to the High Court, if the High Court is satisfied that the
case involves a substantial question of law.(2) ............................................(3)
In an appeal under this section, the memorandum of appeal shall precisely
state the substantial question of law involved in the appeal.(4) Where the
High Court is satisfied that a substantial question of law is involved in any
case, it shall formulate that question. (5)The appeal shall be heard on the question
so formulated and the respondent shall, at the hearing of the appeal, be
allowed to argue that the case does not involve such question. ............................................................"
Section 103 CPC reads as under:"103. Power of High Court to determine
issue of fact.--In any second appeal, the High Court may, if the evidence on
the record is sufficient, determine any issue necessary for the disposal of the
appeal,-- (a) which has not been determined by the lower appellate court or
both by the court of first instance and the lower appellate court, or (b) which
has been wrongly determined by such court or courts by reason of a decision on
such question of law as is referred to in Section 100."
9.
In
Kondiba Dagadu Kadam v. Savitribai Sopan Gujar & Ors., AIR 1999 SC 2213,
this Court held as under:-"It has to be kept in mind that the right of
appeal is neither a natural nor an inherent right attached to the litigation.
Being a substantive statutory right it has to be regulated in accordance with
law in force at the relevant time. The conditions mentioned in the section must
be strictly fulfilled before an appeal can be maintained and no Court has the
power to add to or enlarge those grounds. The appeal cannot be decided on merit
on merely equitable grounds." 7
10.
Further,
there can be no quarrel that the right of appeal/revision cannot be absolute
and the legislature can impose conditions for maintaining the same. In Vijay
Prakash D. Mehta & Jawahar D.Mehta v. Collector of Customs (Preventive),
Bombay, AIR 1988SC 2010, this Court held as under:-"Right to appeal is
neither an absolute right nor an ingredient of natural justice, the principles
of which must be followed in all judicial or quasi- judicial adjudications. The
right to appeal is a statutory right and it can be circumscribed by the conditions
in the grant ..............The purpose of the Section is to act in terrorism to
make the people comply with the provisions of law."
11.
A
similar view has been reiterated by this Court in Anant MillsCo. Ltd. v. State
of Gujarat, AIR 1975 SC 1234; and Shyam Kishore & Ors. v. Municipal
Corporation of Delhi & Anr., AIR1992 SC 2279. A Constitution Bench of this
court in Nandlal & Anr.v. State of Haryana, AIR 1980 SC 2097, held that the
"right of appeal is a creature of statute and there is no reason why the
legislature, while granting the right, cannot impose conditions for the
exercise of such right so long as the conditions are not so onerous as to amount
to unreasonable restrictions rendering the right almost illusory".
12.
In
Gujarat Agro Industries Co. Ltd. v. Municipal Corporation of the City of Ahmadabad
& Ors., (1999) 4 SCC 468,this Court held that the right of appeal though
statutory, can be conditional/qualified and such a law cannot be held to be
violative of Article 14 of the Constitution. An appeal cannot be filed unless so
provided for under the statute and when a law authorises filing of an appeal,
it can impose conditions as well.
13.
Thus,
it is evident from the above that the right to appeal is a creation of Statute
and it cannot be created by acquiescence of the parties or by the order of the
Court. Jurisdiction cannot be conferred by mere acceptance, acquiescence,
consent or by any other means as it can be conferred only by the legislature
and conferring a Court or Authority with jurisdiction, is a legislative
function. Thus, being substantive statutory right, it has to be regulated in
accordance with the law in force, ensuring full compliance of the conditions mentioned
in the provision that creates it. Therefore, the Court has no power to enlarge
the scope of those grounds mentioned in the statutory provisions. A second
appeal cannot be decided merely on equitable grounds as it lies only on a
substantial question of law, which is something distinct from a substantial
question of fact. The Court cannot entertain a second appeal unless a
substantial question of law is involved, as the second appeal does not lie on
the ground of erroneous findings of fact based on an appreciation of the relevant
evidence. The existence of a substantial question of law is a condition
precedent for entertaining the second appeal, on failure to do so, the judgment
cannot be maintained. The existence of a substantial question of law is a
sine-qua-non for the exercise of jurisdiction under the provisions of Section
100 C.P.C. It is the obligation on the Court to further the clear intent of the
Legislature and not to frustrate it byignoring the same. (Vide: Santosh Hazari
v. Purshottam Tiwari(dead) by Lrs., AIR 2001 SC 965; Sarjas Rai & Ors. v.
BakshiInderjeet Singh, (2005) 1 SCC 598; Manicka Poosali (Deceased byL.Rs.)
& Ors. v. Anjalai Ammal & Anr., AIR 2005 SC 1777; Mst.Sugani v.
Rameshwar Das & Anr., AIR 2006 SC 2172; HeroVinoth (Minor) v. Seshammal, AIR
2006 SC 2234; P.Chandrasekharan & Ors. v. S. Kanakarajan & Ors.,
(2007) 5 SCC669; Kashmir Singh v. Harnam Singh & Anr., AIR 2008 SC 1749;V.
Ramaswamy v. Ramachandran & Anr., (2009) 14 SCC 216; and 10 Bhag Singh v.
Jaskirat Singh & Ors., (2010) 2 SCC 250).
14.
In
Mahindra & Mahindra Ltd. v. Union of India & Anr.,AIR 1979 SC 798, this
Court observed: "..... It is not every question of law that could be permitted
to be raised in the second appeal. The parameters within which a new legal plea
could be permitted to be raised, are specifically stated in Sub-section (5) of
Section 100. Under the proviso, the Court should be `satisfied' that the case involves
a substantial question of law and not a mere question of law. The reason for permitting
the substantial question of law to be raised, should be recorded by the Court.
It is implicit there from that on compliance of the above, the opposite party
should be afforded a fair or proper opportunity to meet the same. It is not any
legal plea that would be alleged at a stage of second appeal. It should be a
substantial question of law. The reasons for permitting the plea to be raised should
also be recorded."
15.
In
Madamanchi Ramappa & Anr. v. Muthaluru Bojjappa,AIR 1963 SC 1633, this
Court observed: ".........Therefore, whenever this Court is satisfied
that in dealing with a second appeal, the High Court has, either unwittingly
and in a casual manner, or deliberately as in this case, contravened the limits
prescribed by Section 100, it becomes the duty of this Court to intervene and give
effect to the said provisions. It may be that in some cases, the High Court
dealing with the second appeal is inclined to take the view that 11 what it
regards to be justice or equity of the case has not been served by the findings
of fact recorded by courts of fact; but on such occasions it is necessary to
remember that what is administered in courts is justice according to law and
considerations of fair play and equity however important they may be, must yield
to clear and express provisions of the law. If in reaching its decisions in
second appeals, the High Court contravenes the express provisions of Section
100, it would inevitably introduce in such decisions an element of
disconcerting unpredictability which is usually associated with gambling; and
that is a reproach which judicial process must constantly and scrupulously Endeavour
to avoid."
16.
In
Jai Singh v. Shakuntala, AIR 2002 SC 1428, this Court held as
under:"....it is only in very exceptional cases and on extreme perversity
that the authority to examine the same in extenso stands permissible - it is a rarity
rather than a regularity and thus it can be safely concluded that while there
is no prohibition as such, but the power to scrutiny can only be had in very
exceptional circumstances and upon proper circumspection."
17.
While
dealing with the issue, this Court in Leela Soni & Ors.v. Rajesh Goyal
& Ors., (2001) 7 SCC 494, observed as under:"20. There can be no doubt
that the jurisdiction of the High Court under Section 100 of the Code of Civil
Procedure (CPC) is confined to the framing of substantial questions of law
involved in the 12 second appeal and to decide the same. Section 101 CPC
provides that no second appeal shall lie except on the grounds mentioned in
Section 100 CPC. Thus it is clear that no second appeal can be entertained by
the High Court on questions of fact, much less can it interfere in the findings
of fact recorded by the lower appellate court. This is so, not only when it is
possible for the High Court to take a different view of the matter but also
when the High Court finds that conclusions on questions of fact recorded by the
first appellate court are erroneous. 21. It will be apt to refer to Section 103
CPC which enables the High Court to determine the issues of fact: xx xx xx22.
The section, noted above, authorises the High Court to determine any issue
which is necessary for the disposal of the second appeal provided the evidence
on record is sufficient, in any of the following two situations: (1) when that
issue has not been determined both by the trial court as well as the lower
appellate court or by the lower appellate court; or (2) when both the trial
court as well as the appellate court or the lower appellate court have wrongly
determined any issue on a substantial question of law which can properly be the
subject-matter of second appeal under Section 100 CPC."
18.
In
Jadu Gopal Chakravarty v. Pannalal Bhowmick & Ors.,AIR 1978 SC 1329, the
question arose as to whether the compromise decree had been obtained by fraud.
This Court held that though it is question of fact, but because none of the
courts below had pointedly addressed the question of whether the compromise in
the case was obtained by perpetrating fraud on the court, the High Court was
justified in exercising its powers under Section 103 C.P.C. to go into the
question. (See also Achintya Kumar Saha v. M/s Nanee Printers & Ors., AIR
2004 SC 1591)
19.
In
Shri Bhagwan Sharma v. Smt. Bani Ghosh, AIR 1993 SC398, this Court held that in
case the High Court exercises its jurisdiction under Section 103 C.P.C., in
view of the fact that the findings of fact recorded by the courts below stood
vitiated on account of non-consideration of additional evidence of a vital
nature, the Court may itself finally decide the case in accordance with
Section103(b) C.P.C. and the Court must hear the parties fully with reference
to the entire evidence on record with relevance to the question after giving
notice to all the parties. The Court further held as under:".....The
grounds which may be available in support of a plea that the finding of fact by
the court below is vitiated in law, does not by itself lead to the further
conclusion that a contrary finding has to be finally arrived at on the disputed
issue. On a re-appraisal of the entire evidence the ultimate conclusion may go
in favour of either party and it cannot be pre-judged, as has been done in the
impugned judgment..".
20.
In
Kulwant Kaur & Ors. v. Gurdial Singh Mann (dead) by LRs. & Ors., AIR
2001 SC 1273, this Court observed as under :"Admittedly, Section 100 has
introduced a definite restriction on to the exercise of jurisdiction in a second
appeal so far as the High Court is concerned. Needless to record that the Code
of Civil Procedure (Amendment) Act, 1976 introduced such an embargo for such
definite objectives and since we are not required to further probe on that
score, we are not detailing out, but the fact remains that while it is true
that in a second appeal a finding of fact, even if erroneous, will generally
not be disturbed but where it is found that the findings stand vitiated on
wrong test and on the basis of assumptions and conjectures and resultantly
there is an element of perversity involved therein, the High Court in our view
will be within its jurisdiction to deal with the issue. This is, however, only
in the event such a fact is brought to light by the High Court explicitly and the
judgment should also be categorical as to the issue of perversity vis-`-vis the
concept of justice. Needless to say however, that perversity itself is a substantial
question worth adjudication -- what is required is a categorical finding on the
part of the High Court as to perversity. The requirements stand specified in
Section 103 and nothing short of it will bring it within the ambit of Section
100 since the issue of perversity will also come within the ambit of
substantial question of law as noticed above. The legality of finding of fact
cannot but be termed to be a question of law. We reiterate however, that there must
be a definite finding to that effect in the judgment of the High Court so as to
make it evident that Section 100 of the Code stands complied with."
(Emphasis added) 15
21.
Powers
under Section 103 C.P.C. can be exercised by the High Court only if the core
issue involved in the case is not decided by the trial court or the appellate
court and the relevant material is available on record to adjudicate upon the
said issue. (See: Haryana State Electronics Development Corporation Ltd. &
Ors. v. Seema Sharma & Ors., (2009) 7 SCC 311)
22.
Before
powers under Section 103 C.P.C. can be exercised by the High Court in a second
appeal, the following conditions must be fulfilled: (i) Determination of an
issue must be necessary for the disposal of appeal; (ii) The evidence on
record must be sufficient to decide such issue; and (iii) (a) Such issue
should not have been determined either by the trial court, or by the appellate
court or by both; or (b) such issue should have been wrongly determined
either by trial court, or by the appellate court, or by both by reason of a
decision on substantial question of law. If the above conditions are not
fulfilled, the High Court cannot exercise its powers under Section 103 CPC. 16 Thus,
it is evident that Section 103 C.P.C. is not an exception to Section 100 C.P.C.
nor is it meant to supplant it, rather it is to serve the same purpose. Even
while pressing Section 103 C.P.C. in service, the High Court has to record a
finding that it had to exercise such power, because it found that finding(s) of
fact recorded by the court(s)below stood vitiated because of perversity. More
so, such power can be exercised only in exceptional circumstances and with
circumspection, where the core question involved in the case has not been
decided by the court(s) below.
23.
There
is no prohibition on entertaining a second appeal even on question of fact
provided the Court is satisfied that the findings of fact recorded by the
courts below stood vitiated by non-consideration of relevant evidence or by
showing an erroneous approach to the matter i.e. that the findings of fact are
found to be perverse. But the High Court cannot interfere with the concurrent
findings of fact in a routine and casual manner by substituting its subjective
satisfaction in place of that of the lower courts. (Vide: Jagdish Singh v.
Natthu Singh, AIR 1992 SC 1604; Karnataka Board of Wakf v. Anjuman-E-Ismail
Madris-Un-Niswan, AIR 1999 SC 3067; and Dinesh Kumar v. Yusuf Ali, AIR 2010 SC
2679).
24.
If
a finding of fact is arrived at by ignoring or excluding relevant material or
by taking into consideration irrelevant material or if the finding so
outrageously defies logic as to suffer from the vice of irrationality incurring
the blame of being perverse, then the finding is rendered infirm in the eyes of
law. If the findings of the Court are based on no evidence or evidence which is
thoroughly unreliable or evidence that suffers from the vice of procedural
irregularity or the findings are such that no reasonable person would have
arrived at those findings, then the findings may be said to be perverse.
Further if the findings are either ipse dixit of the Court or based on conjecture
and surmises, the judgment suffers from the additional infirmity of on-application
of mind and thus, stands vitiated. (Vide: BharathaMatha & Anr. v. R. Vijaya
Renganathan & Ors., AIR 2010 SC2685)
25.
In
view of above, the law on the issue can be summarised to the effect that a
second appeal lies only on a substantial question of law and it is necessary to
formulate a substantial question of law before the second appeal is decided.
The issue of perversity itself is a substantial question of law and, therefore,
Section 103 C.P.C. can be held to be supplementary to Section 100 C.P.C., and
does not supplant it altogether. Reading it otherwise, would render the
provisions of Section 100 C.P.C. redundant. It is only an issue that involves a
substantial question of law, that can be adjudicated upon by the High Court
itself instead of remanding the case to the court below, provided there is sufficient
evidence on record to adjudicate upon the said issue and other conditions
mentioned therein stand fulfilled. Thus, the object of the Section is to avoid
remand and adjudicate the issue if the finding(s) of fact recorded by the court(s)
below are found to be perverse. The court is under an obligation to give notice
to all the parties concerned for adjudication of the said issue and decide the
same after giving them full opportunity of hearing. Natural Justice:
26.
The
principles of natural justice cannot be applied in a vacuum without reference
to the relevant facts and circumstances of the case. Thus, they cannot be put
in a strait-jacket formula. "Natural justice is not an unruly horse, no
lurking landmine, nor a judicial cure-all. If fairness is shown by the
decision-maker to the man proceeded against, the form, features and the
fundamentals of such essential procedural propriety being conditioned by the
facts and circumstances of each situation, no breach of natural justice can be
complained of."The two rules of natural justice, namely, nemo judex in
causa sua, andaudi alteram partem now have a definite meaning and connotation in-law
and their contents and implications are well understood and firmly established;
they are nonetheless non-statutory. The court has to determine whether the
observance of the principles of natural justice was necessary for a just
decision in the facts of the particular case.(Vide: The Chairman, Board of
Mining Examination and Chief Inspector of Mines & Anr. v. Ramjee, AIR 1977
SC 965; Union of India & Anr. v. Tulsiram Patel, AIR 1985 SC 1416; and Managing
Director, ECIL, Hyderabad v. B. Karunakar, AIR 1994 SC 1074).
27.
There
may be cases where on admitted and undisputed facts, only one conclusion is
possible. In such an eventuality, the application of the principles of natural
justice would be a futile exercise and anempty formality. (Vide: State of U.P.
v. Om Prakash Gupta, AIR 1970 SC 679; S.L. Kapoor v. Jagmohan & Ors., AIR
1981 SC 136;and U.P. Junior Doctors' Action Committee v. Dr. B. Sheetal Nandwani
& Ors., AIR 1991 SC 909).
28.
However,
there may be cases where the non-observance of natural justice is itself
prejudice to a person and proof of prejudice is not required at all. In A.R.
Antulay v. R.S. Nayak & Anr., (1988) 2SCC 602, this Court held as
under:"....No prejudice need be proved for enforcing the fundamental
rights. Violation of a fundamental right itself renders the impugned action
void. So also the violation of the principles of natural justice renders the
act a nullity."
29.
29.
Similarly, in S.L. Kapoor (supra), this Court held:"The non-observance of
natural justice is itself prejudice to any man and proof of prejudice independently
of proof of denial of natural justice is unnecessary. It all comes from a
person who has denied justice that the person who has been denied justice is
not prejudiced."
30.
In
view of the above, in case there is a non-compliance of a statutory requirement
of law or the principles of natural justice have been violated under some circumstances,
non-compliance of the aforesaid may itself be prejudicial to a party and in
such an 21 eventuality, it is not required that a party has to satisfy the
court that his cause has been prejudiced for non-compliance of the statutory
requirement or principles of natural justice. Present Case:
31.
The
High Court was much impressed by the chart submitted by the respondent-Board
after correcting the connection, which reads asunder: Month Unit | Month Unit
| 8/92 3124| 7/93 2231 9/92 1841| 8/93 2486 10/92 1812 | 9/93 2063
11/92 1270| 10/93 7418 12/92 2032| C.T. Connection corrected 1/93 1264|
11/93 6171 2/93 1368| 12/93 4656 3/93 1644| 1/94 3012 4/93 1647| 2/94
3359 5/93 1911| 3/94 842 6/93 2152| 4/94 567 ------------------------------------------------------------------
On perusing the same, the High Court reached the conclusion that prior to
correct the connection, the meter was recording only 1/3rdof the total energy
consumed, which seems to be factually incorrect. 22
32.
Shri
Gulati, learned counsel for the Board, could not answer our query that in case
the report/chart prepared by the Board is taken to be correct, under what
circumstances the meter reading in the months of March and April 1994 had been
1/5th of the total consumption of energy shown in August 1992 and 1/3rd of
September-October 1992 and 1/4th of December 1992. In fact, the reading for the
month of April 1994 had been 1/13th of the reading shown in the month of
October 1993. Meter reading for the month of October1993, just prior to
correction had been the highest i.e. 7418 units, and after correction, readings
should have been higher than the said figure.
33.
The
trial court while dealing with the issue after considering the facts and
appreciating the evidence on record came to the following conclusions : ".........In
case connection to one of the CT was found to be reversed then defendants were required
to install a check meter. With the installation of check meter, Board can opine
that the disputed meter is recording 1/3rd and only one CT was contributing for
recording of energy. According to the Assistant XEN., disk of the meter was
consuming 42 seconds. From the very beginning that is from the installation of
the meter account of the disputed meter was overhauled. Counsel for the Board
failed to site any authority that if there is wrong connection by the Board
then account is to be overhauled from the date of the 23 installation of the
meter, secondly, no provision of the Electricity Sales Manual cited from which
it could be ascertained that if the disk of the meter consumes 42 seconds for
one revolution then it is to be presumed that the connection to the CT are wrong.
If one only CT was contributing for recording of energy then best way for the
board was to install a check meter. After comparing the recording of energy by
both the meters, the Board can only opine that the meter installed is not correct
one and is not correctly recording the energy. So simply by saying that the
disk of the meter consuming 42 seconds for one revolution, connection to the CT
is not correct. Connection were corrected on the day of checking i.e. on 5.10.93
but chart produced by the Board shows that in the month of 3/94 units consumed
were only 842 and in the month 9/92 units consumed were 1841. So, chart shows
that after correcting the connection energy consumed is not regular. The only
conclusion which should be drawn is that account of the meter was wrongly over
hauled from the date of the installation of the meter." (Emphasis added)
34.
The
first appellate court concurred with the aforesaid findings of the fact.
However, the High Court without framing a substantial question of law and
without making any reference to Section 103C.P.C. decided the case against the
appellant by merely placing reliance on the aforesaid chart. The two courts
below had correctly understood and appreciated the contents of the said chart
and the High Court has interfered with the concurrent findings of fact in a most
casual and cavalier manner. Such a course was totally unwarranted 24 and
uncalled for. The High Court committed a grave error in considering the
findings of fact recorded by the courts below to beperverse.
35.
Shri
Galati has placed much reliance on the conditions of supply of the electrical
connection and, particularly, on Clause 23 which reads: "Where the
accuracy of meter is not involved and it is a case of incorrect connections or
defective CTs PTs, genuine calculation mistakes etc., charges will be adjusted
in favour of Board/consumer, as the case may be, for the period the
mistake/defect continued. Additional charges will be recovered by serving a
supplementary bill cum show cause notice. The consumer may also be allowed to
pay the amount in installments."(Emphasis added)
36.
The
aforesaid Clause 23 of the conditions of supply, stipulated in the agreement of
supply of energy also, clearly provides that Board must issue a show cause
notice to the consumer before the issuance of revised bill. It is an admitted
case that no opportunity of hearing had been provided to the appellant. The
demand notice dated 7.1.1993reads as under: "In relation to abovementioned
subject, it is to inform you that your tube well’s connection Account No. MS-19
was checked by the undersigned and the line supervisor. As per report 25 working
of the meter was found to be slow and the meter was recording 1/3rd of the
consumption. This account of your's as per report the amount is to be calculated
by overhauling account from 8/92 to 9/93. A supplementary bill of total amount
of Rs.73,198.00 is being sent to you along with this letter for payment and it
is requested to make the payment of the bill within the due date of payment.
This be treated as very urgent."
37.
It
is evident from the above-said demand notice that no show cause notice had been
given to the appellant before revising the bill. The Board has examined Mr.
J.L. Mehta, Assistant Executive Engineer, as DW.1 before the trial court and
the relevant part of his cross examination reads as under:"......We did
not inform the committee prior to our visit. However, the operator of the
committee was present at that time. We did not inform the Municipal Engineer at
the time of checking, however, the operator could have called the Municipal
Engineer at that time. The detail along with the bill was served to the
plaintiff, however, the bill alone does not indicate about the calculation........."
38.
It
is, thus, evident from the aforesaid deposition of the witness produced by the
respondent-Board that no prior intimation of checking had been given to the
appellant, nor was any responsible officer present at the time of checking. A
copy of the checking 26 report/chart was not given to the appellant for filing
of objections nor was any show cause notice given along with the demand notice.
Thus, it is a clear cut case of violation of the principles of natural justice as
well as of clause 23 of the conditions of supply. Admittedly, no check meter
had ever been installed and thus, it could not be held that the meter did not
record the quantity of energy actually consumed. In view of the above, we do
not find any force in the submissions made by Shri Gulati that the appellant
must show the prejudice caused to it by not framing the substantial question of
law by the High Court and not giving it the opportunity of hearing prior to the
sending of the revised bill.
39.
If
we consider the case in the totality of the circumstances involved herein, we
are of the considered opinion that the trial court as well as the first
appellate court had considered all factual and legal issues involved in this
case. While deciding the case, the courts below had appreciated the relevant
evidence including the chart prepared and so heavily relied upon by the
respondent-Board in correct perspective. As the Board did not install a check
meter, the readings shown by the meter after correction of the connection could
not be held to be 27 correct. Subsequent to the correction, the readings
had not been regular. Thus, the revised bill could not be held to be showing the
correct quantity of energy actually consumed by the appellant. In such a
fact-situation, there was no occasion for the High Court to decide the second
appeal without framing the substantial question of law and it was not a case
which could warrant consideration under Section 103 C.P.C. Thus, the judgment
and decree impugned are liable to be set aside.40.In view of the above, the
impugned judgment and decree dated12.1.2001 passed in Regular Second Appeal
No.1618 of 1998 by the High Court of Punjab & Haryana at Chandigarh are
hereby set aside and the judgment and decree of the courts below are restored. The
appeal is allowed. In the facts of this case there shall be no order as to
costs.
...................................J.
(P. SATHASIVAM)
.....................
..............J. (Dr. B.S. CHAUHAN)
New
Delhi,
28
October 19, 2010
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