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1997 DIGILAW 260 (RAJ)

Rajasthan State Electricity Board v. Dalip Singh

1997-02-14

BHAGABATI PRASAD BANERJEE, M.G.MUKHERJI

body1997
Honble MUKHERJI, C.J.–This appeal as filed by the Rajasthan State Electricity Board, its Superintending Engineer, its Executive Engineer and its Assistant Engineer, the last three being posted at Jodhpur, is directed against a judgment and order dated January 7, 1986 passed by a learned Single Judge in S.B. Civil Writ Petition No. 506/76 whereby the learned Single Judge allowed the writ application of the writ petitioner. (2). The writ petition was filed by the respondent against the Rajasthan State Electricity Board and its concerned officers wherein the writ petitioner prayed that he being the brother of late ruler Maharaja Hanwant Singh was entitled to the facilities of free supply of electricity and water under the coverage of a letter of Government of India bearing No. E-4/P/49 dated March 2, 1949. The said facility was cancelled by the Government of Rajasthan by its letter No. F.22(36)GAD( )67 dated September 8, 1967 with effect from April 1, 1967 which fact was confirmed by judgment of S.B. Civil Writ Petition No. 259/68 - Maharaja Gaj Singh vs. State of Rajasthan decided on March 31, 1972 by this High Court. The writ petition as filed by Maharaja Gaj Singh praying for the said facilities as part and parcel of the property right not being accepted, it was made clear in the said judgment that the exemption beyond April 1, 1967 was not acceptable. It was contended by the writ petitioner that the applicant was exemptee till March 31, 1967. The writ petitioner began paying the electricity charges with effect from April 1, 1967 regularly and no current dues were outstanding. The Assistant Engineer City III served a notice No. AEN/CSD.III/Rev/76/D, 2144 dated March 4, 1976 on the writ petitioner which was served on him on March 5, 1976 calling upon him to deposit the alleged outstanding dues of electricity consumption upto 1962 amounting to Rs. 38,443=38 and thereafter upto January 1976 a sum of Rs. 6,857=23 within 15 days failing which the res- pondent was threatened for disconnection of electricity supply. This notice was treated by the appellants as a notice under Section 24 of the Indian Electricity Act, 1910. The said notice further provided that action would be taken to recover the outstanding dues under Rajasthan Government Electrical Undertaking (Dues Recovery) Act, 1960 as arrears of land revenue. This notice was treated by the appellants as a notice under Section 24 of the Indian Electricity Act, 1910. The said notice further provided that action would be taken to recover the outstanding dues under Rajasthan Government Electrical Undertaking (Dues Recovery) Act, 1960 as arrears of land revenue. It was contended further that the Rajasthan State Electricity Board was first constituted in 1957 under a Central Act, namely, Electricity (Supply) Act, 1948. (3). All the dues for the period prior to the constitution of the Board vested in the Board vide Section 60(1) of the Central Act No. 54 of 1948 and the provisions of Indian Electricity Act, 1910 (Central Act No. 9 of 1910) became applicable to the Electricity Board. As the Board is a body corporate as provided in Section 12 of the Electricity (Supply) Act, 1948, the Article applicable for the recovery of debts of the Board is a residuary Article 120 of the old Limitation Act of 1908 which applied to the recovery of electricity dues providing a period of six years from the date when the right to sue accrued instead of Article 149 providing a period of 30 years for the government dues. With the enactment of the Indian Limitation Act, 1963 which came into force on 1.1.1964 the period of limitation under the residuary Article 113 was reduced to three years from the date when the right to sue accrued. The respondent State Electricity Board did not file any suit against the writ petitioner within the period of limitation provided under Article 120 of the Limitation Act, 1908 within six years after the constitution of the Board in 1957 as the electricity dues were not chargeable to him since he was an exemptee and was allowed the facility of free electricity upto 1.4.1967 under clause 9 of the collateral agreement forming part of the covenant entered into by the Central Government with the Ruler of Jodhpur. It was contended by the writ petitioner that the alleged electricity ener- gy charges which were otherwise also not admitted to be due were clearly hit by the law of limitation and hence the Rajasthan State Electricity Board adopted the device to serve a notice under Section 24 of the Indian Electricity Act, 1910 for recovery of the alleged purported dues which were otherwise not legally recoverable directly by any process of law under a threat of disconnection of the supply under Section 24 of the Indian Electricity Act. The notice only provided that legal action was to be taken to recover the outstanding dues under the Rajasthan Government Undertaking (Dues Recovery) Act, 1960. The Electricity Board thereafter adopted the device to take proceedings under Section 34 of the Act of 1960 which provides a summary procedure to recover electricity dues under Sections 4 and 6 as arrears of land revenue without giving a show cause notice or without granting an opportunity to the writ petitioner so as to deny the liability and without affording him any right of appeal or revision as is provided in Rajasthan Public Demand Recovery Act, 1952 for the recovery of government dues. By this device the Rajasthan State Electricity Board could obtain an order of attachment and sale of writ petitioners properties under this Act which did not provide any scope for objection and the prescribed authority might otherwise be precluded from entertaining any objection and seek to proceed immediately to effect recovery of the alleged time barred dues by a coercive method of attachment and sale of the writ petitioners properties. It was further more contended that under Section 9 of the Rajasthan Government Electrical Undertaking (Dues Recovery) Act, 1960, the said electricity charges were clearly time barred, inasmuch as, the said provision fixed six years limitation period as regards recovery of the electricity dues accruing before the date of the constitution of the Rajasthan State Electricity Board and the dues mentioned in the notice were of a period beyond six years. Further more, the Rajasthan State Electricity Board was precluded from recovering the dues, inasmuch as, it did not avail of the further opportunity to recover the alleged dues by filing an appropriate suit within the extended period as provided by Section 60A of the Central Amendment Act No. 30 of 1966 in Electricity (Supply) Act, 1948 and that period having expired the dues were not recoverable by any proceedings whatsoever. Various other contentions were raised in the writ application and the ultimate prayer was that there should be a writ in the nature of prohibition by any of restraining the Rajasthan State Electricity Board from disconnecting the writ petitioners electricity supply and to restrain the recovery of the alleged dues mention- ed in Annexure 1 in the writ application as arrears of land revenue under Rajasthan Government Electrical Undertaking (Dues Recovery) Act, 1960 and that by issuing a writ of mandamus or certiorari the notice under Section 24(1) dated 4.3.1976 under the provisions of Rajasthan Government Electrical Undertaking (Dues Recovery) Act, 1960 be quashed. There was a further challenge to Rajasthan Government Electrical Undertakings (Dues Recovery) Act, 1960 on a contention being raised that the said provisions were ultra vires the provisions of the Constitution of India. (4). The Rajasthan State Electricity Board raised a preliminary objection as regards maintainability of the writ application contending inter alia that in view of the provisions of Article 363 of the Constitution the writ petitioner is not entitled to any relief. That apart, the writ petitioner had remedy of filing a regular suit to dispute his liability and the extra ordinary jurisdiction of the Court should not have been availed of by him, who was duty bound to pay for the charges of electricity consumed by him. The question as to whether the demand was time barred or not was a disputed question of fact which the court should not decide within the frame work of a constitutional writ. (5). The learned Single Judge held that the main question which arose for consideration was as to whether the writ petitioner could be proceeded against for the recovery of the alleged outstanding amounts under the provisions of the Dues Recovery Act, 1960 and this question was based primarily on the premise as to whe- ther the alleged outstanding amounts were recoverable and were within time and not otherwise barred by law of limitation. So far as the objection based on Article 363 is concerned, the learned Single Judge observed that it was suffice to say that it was open to the writ petitioner to set up an alternative case and he was entitled to say that even under the ordinary law, no action for recovery of a time barred claim could be taken under the provisions of the Dues Recovery Act, 1960. The learned Single Judge thought that in this context the application of Article 363 did not arise and the Court was only called upon to examine the question as to whether legally any action could be taken against the writ petitioner to recover the outstan- ding dues under the Dues Recovery Act. So far as discontinuance of supply of electricity in respect of those meters for which stay order has not been passed the learned Single Judge observed that it was open to the Board to discontinue the supply and hence the question of restraining the Board from discontinuing the supply of electricity in respect of those meters did not arise. The only question to which the attention of the learned Single Judge was drawn was as to whether the alleged outstanding amounts could be recovered from the writ petitioner under the provisions of Dues Recovery Act, 1960 for which there has already been a threat given by the Rajasthan State Electricity Board in this behalf even though no action was initiated under the Dues Recovery Act. The notice Annexure 2 was a notice un- der Section 24 of the Indian Electricity Act and in that notice it was mentioned that necessary legal action would be taken to recover the outstanding dues under the Dues Recovery Act. (6). The learned Single Judge thereafter chose to examine the provisions of Dues Recovery Act, 1960 with particular reference to expression "dues" as defined in sub-section (b) of Section 2 and the expression `debtor as defined in sub-section (c) of Section 2. On a perusal of the definitions, the learned single Judge held that any sum payable to a Government electrical undertaking should be considered to be "dues" and a person by whom such sum is payable is taken be to a "debtor" and the words we have to construe in the context of dues being payable. On a perusal of the definitions, the learned single Judge held that any sum payable to a Government electrical undertaking should be considered to be "dues" and a person by whom such sum is payable is taken be to a "debtor" and the words we have to construe in the context of dues being payable. If the dues are payable by a person, then he is a "debtor" and the "dues" are such sums payable to the Government Undertaking of the nature specified in the definition of expression "dues". Under Section 3 every bill for dues payable to a Government Electrical Undertaking by a debtor shall be in a prescribed form and in this context also the words used are "dues" payable to a Government Electrical Undertaking. The lear- ned Single Judge observed that by a regular suit the alleged outstanding amounts, are not recoverable as the suit was barred by limitation. Section 9 of the Dues Recovery Act lays down that the period of limitation in respect of any suit by or on behalf of the Board for the recovery of any dues should be six years from the time from which the period of limitation would begin to run under the Indian Limitation Act or any other law for the time being in force against a like suit by a private person. Section 9 begins with a non-obstante clause and hence the provisions of Limitation Act or the provisions of any other law for the time being in force would not apply and the provisions of Section 9 would have a supervening application. The provisions of Section 9 however lay down that Article 149 of the First Schedule to the Indian Limitation Act shall apply to the suits filed by the Board in respect of the dues occurring before the date of the first constitution of the Board. Under Section 60A of the Electricity Act, 1948 as amended by Section 12 of the Act No. 30 of 1966 also, the extended period of limitation having expired, the dues are otherwise not recoverable because the period of limitation expired in the year 1969. Under Section 60A of the Electricity Act, 1948 as amended by Section 12 of the Act No. 30 of 1966 also, the extended period of limitation having expired, the dues are otherwise not recoverable because the period of limitation expired in the year 1969. As to whether such dues, the recovery of which was barred by time, are recoverable at all under the provisions of Dues Recovery Act, 1960, the learned Single Judge referred to the decision of the Supreme Court in New Delhi Municipal Committee vs. Kalu Ram and another (1) and observed that action under the Dues Recovery Act, 1960 could be taken only when any sum is "payable". If the recovery of the energy charges is already barred by law of limitation, then it could not be said that such time barred amount is in any way payable. For the recovery of the dues under the dues Recovery Act as well as the Electricity (Supply) Act, there are specific provisions for limitation. Had there been no such specific provision under these Acts, the ordinary law of limitation would have been applicable. Only those dues could be recovered which were within limitation and only such dues which were within limitation could be said to be payable and only in respect of such dues which were payable, the summary procedure for the recovery could be resorted to under the Dues Recovery Act. The provisions of Section 3 to 6 are provisions relating to expeditious recovery of the dues but those provisions could only be resorted to when the dues are otherwise recoverable and not already barred by limitation. If the dues are not recoverable and not enforceable at law being already barred by limitation, then in the view of the learned Single Judge, the provisions of Sections 3 to 6 could not be resorted to. The learned Single Judge also referred to a Division Bench decision of the Punjab High Court in Custodian General of Evacuee Property in New Delhi vs. Harnam Singh (2) where a similar question arose as regards sums due to the State Government or to the Custodian as arrears of land revenue. The learned Single Judge also referred to a Division Bench decision of the Punjab High Court in Custodian General of Evacuee Property in New Delhi vs. Harnam Singh (2) where a similar question arose as regards sums due to the State Government or to the Custodian as arrears of land revenue. It was observed in the said case that the expression "due" was to mean that which is owed and that which custom, statute or law required to be paid and that which any one has a right to demand, claim or possess and that which can justly be required. A debt or other obligation is due when it is legally enforceable i.e. when the creditor has a right to demand payment and to enforce collection. The summary remedy provided by Section 48 of the relevant statute for recovery of the sums due to the State Government or to the Custodian must be restricted to sums legally recovera- ble i.e. sums which were admitted or proved to be due and could not be extended to sums which were allegedly claimed to be due. Accordingly, the learned Single Judge held that the dues were not recoverable under the Dues Recovery Act, 1960. The learned Single Judge did not think it necessary to decide the vires of the provisions of the Dues Recovery Act, 1960. The writ application accordingly was partly allowed and the appellant Rajasthan State Electricity Board was restrained from disconnecting the electricity in respect of some of the meters as mentioned in the judgment and it was made clear that if the writ petitioner failed to make payment of the electricity charges in respect of these meters, it will be open to the Rajasthan State Electricity Board to take such action as was permissible under law. So far as other meters were concerned, the Rajasthan State Electricity Board was restrained from proceeding to take any action for recovery under the provisions of the Rajasthan Government Electricity Undertaking (Dues Recovery) Act, 1960 and the notice Annexure 2 dated 4.3.1976 was accordingly quashed in respect of the aforesaid meters for which stay order was passed by the learned Single Judge. (7). We have given the entire controversy our anxious attention. (7). We have given the entire controversy our anxious attention. It was contended by the appellant Rajasthan State Electricity Board and its officers that the learned Single Judge has erred in law on the preliminary ground of alternative remedy and chose to decide upon what dues were legally chargeable and what were not. It was contended by the appellants that the learned Single Judge erred in law in not appreciating that the writ petitioner was duty bound to pay for his elec- tricity consumption and that he was raising a dishonest plea of limitation. Under the Government Electrical Undertaking (Dues Recovery) Act, the writ petitioner had the remedy of filing a regular suit disputing his liability and hence the extra ordinary jurisdiction of this Court could not be availed of by him who was duty bound to pay for the electricity consumption and specially an alternative remedy is clearly provided by the statute under which the recovery is being made. It was further contended that the question as to whether the same is time barred claim or not itself was a disputed question of fact which the learned Single Judge was not competent to enter into. The learned Single Judge further erred in holding that ex- pression "any sum payable" would mean any sum not barred by time. But the learned Single Judge failed to appreciate that the provisions of Limitation Act did not take away the substantive right of recovery of the State Electricity Board. The substantive right to recover was not destroyed and the legislature has used the expression "payable" in contradistinction to the words "chargeable". That distinction ought to have been borne in mind by the learned Single Judge in deciding the entire periphery of the dispute. (8). It was further contended by the appellants that the learned Single Judge has erred in law in holding that all the sums claimed by the notice and sought to be recovered by such notice have become time barred. Such question was indeed a disputed question of fact and the amounts due in 1976 were not sums which have already become time barred and that apart, all sums were recoverable and could be realized within 30 years from the date they had fallen due under Article 112 of the Limitation Act. Such question was indeed a disputed question of fact and the amounts due in 1976 were not sums which have already become time barred and that apart, all sums were recoverable and could be realized within 30 years from the date they had fallen due under Article 112 of the Limitation Act. The learned Single Judge has also not appreciated the import of Section 24 of the Electricity Act and not direction in respect of meters mentioned in the operative para of the judgment could have been issued. (9). We have examined the entire perspective. He think that the learned Single Judge has made the correct approach as regards the question of recoverability of the dues under the relevant statutes and there is no scope for interference. We make it clear that such of the dues which have accrused after April 1, 1967 are payable by the writ petitioner but those beyond that date are indeed subject to the question of limitation as decided upon by the learned Single Judge. With these observations the present appeal stands disposed of. There will be no order as to costs.