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2001 DIGILAW 823 (PNJ)

Punjab State Electricity Board v. Joginder Singh

2001-08-08

R.L.ANAND

body2001
JUDGMENT R.L. Anand, J. - Punjab State Electricity Board, Patiala (hereinafter called the Board) has filed the present regular second appeal and it has been directed against the judgment and decree dated 1.3.2000 passed by Addl. District Judge, Patiala, who affirmed the judgment and decree dated 29.3.1996 passed by Civil Judge (Sr. Division), Patiala, who decreed the suit by holding that the plaintiff is not liable to pay the disputed amount demanded by the defendant/appellants and defendants were also restrained from disconnecting the electricity supply to the premises of the plaintiff due to the non-payment of that amount. 2. Some facts can be stated in the following manner :- Joginder Singh plaintiff, proprietor of Hotel Green Bar and Restaurant, is carrying on the business at Patiala. He obtained electric connections No. MR10/0298, MR10/0246 and 31/15. On 11.6.1991 Flying Squad of the Board visited the premises of the plaintiff for checking, Flying squad thoroughly checked the meters and other fittings which were found intact including the seals of the meters. It was pleaded that the load being used by the plaintiff was within sanctioned load. However, the Flying Squad calculated the load to be beyond sanctioned limit. Their calculation was incorrect. The plaintiff had been clarifying the entire position but the Flying Squad with a mala fide intention to harass the plaintiff did not agree with the plaintiff. The intention of the Flying Squad was to harm the plaintiff due to the fact that there had been earlier litigation between the plaintiff and the Board. A contempt petition was also pending against one P.P. Bithal, the then SDO West, which was filed by the plaintiff. In these circumstances, the plaintiff had the apprehension that the members of the Flying Squad have submitted a false report and the Board has imposed penalty against him. The Board had threatened that it would disconnect the electric connections of the plaintiff which action is against the law. With these broad allegations the plaintiff filed the suit for permanent injunction. Notice of the suit was given to the defendants. They filed the written statement and denied the allegations. According to the defendant Board, it was correct that the plaintiff was a consumer and three electric connections had been sanctioned in his favour. It is also admitted that at the time of checking i.e. on 11.8.1991 the seals of the meters were intact. They filed the written statement and denied the allegations. According to the defendant Board, it was correct that the plaintiff was a consumer and three electric connections had been sanctioned in his favour. It is also admitted that at the time of checking i.e. on 11.8.1991 the seals of the meters were intact. However, it was submitted by the defendants that the plaintiff was using unauthorised load. The meter of electric connection No. MR-10/0246 was found to be sticky. The details of the checking of the meters had been stated as follows :- Sr. No. A/c. No. Category Detected load Sanctioned load Unauthorised load 1. MR 10/246 NRD 35.780 26.000 9.780 2. 31/15 S.P. 29.163 02.984 26.179 3. MR 10/298 NRS. 7.560 10.240, - It was pleaded that the plaintiff is liable to pay surcharge @ Rs. 100/- per K.W. The amount comes to Rs. 35,959/-. Account No. MR-10/0246 of the plaintiff was over-hauled due to the reason that the meter of this account was sticky. Due to this count the plaintiff was liable to pay additional amount of Rs. 11,300/-. In this manner, the plaintiff is liable to pay a sum of Rs. 47,259/-. It was also the defence of the defendants that the suit of the plaintiff is premature. Moreover, it has not been filed by a competent person. No cause of action has arisen to the plaintiff. 3. Plaintiff filed replication to the written statement of the defendants in which he retirated the averments of the plaint by denying those of the written statement. 4. The learned trial Court framed the following issues from the pleadings of the parties :- "1. Whether the plaintiff is entitled to injunction so as to restrain the defendants from disconnecting the disputed electricity connections on the grounds mentioned in the application ? OPP 2. Whether the action of the defendants in imposing penalty and recovering the other charges regarding the disputed electricity connections is illegal, void and not binding on the plaintiff ? OPP 3. Whether the suit is premature ? OPD 4. Whether the plaintiff has no cause of action to file the present suit ? OPD 5. Whether the suit is mala fide ? OPD 6. Whether the suit is not competent ? OPD 7. Whether the civil court has no jurisdiction to entertain and try the present suit ? OPD 8. Relief." 5. OPD 4. Whether the plaintiff has no cause of action to file the present suit ? OPD 5. Whether the suit is mala fide ? OPD 6. Whether the suit is not competent ? OPD 7. Whether the civil court has no jurisdiction to entertain and try the present suit ? OPD 8. Relief." 5. Vide judgment and decree dated 29.3.1996 the Civil Judge (Sr. Division), Patiala decreed the suit for the following reasons as given in paras No. 7 to 12 of the judgment of the trial Court : "7. It is argued by ld. counsel for the plaintiff that plaintiff was not using any excess load at the time of checking by the Flying Squad on 11.6.1991. Report submitted by the Flying Squad has been given with biased mind. At an earlier occasion also Flying Squad had submitted a similar report. The report was challenged before the Chief Electrical Inspector and C.E.I. vide his report Ex. P1 dated 4.9.1990 had come to a conclusion that PSEB had failed to prove that there was nay excess connected load. Hence the demand raised by the PSEB was truck down. It is argued that plaintiff had also filed a contempt petition against officer of the PSEB for violating the Court orders and PSEB authorities were also biased due to this reason. It is also argued that even in the instant case, report has been given with biased mind. PSEB has failed to prove that the plaintiff was using excess connected load at the time of checking. To prove this defendants have examined Dharminder Kumar, DW1. His statement is not corroborated by any other witness. When he was cross-examined he has failed to face the cross-examination. Connected load of one meter is 2.984 K.W. Connection No. 31/15. Against this connection it is alleged that plaintiff was using connected load of 29.163 K.W. When Executive Engineer was questioned about it how the meter of small capacity can withstand the load of at least 14 times of the sanctioned load : Executive Engineer was not in a position to give convincing answers. He stated that he did not check the service line. He admitted that in case the service line and meter is of inadequate capacity the service lines are likely to burn; meter is also likely to burn. He stated that he did not check the service line. He admitted that in case the service line and meter is of inadequate capacity the service lines are likely to burn; meter is also likely to burn. It is argued that in case load upto 14 times was put on the meter, the meter would have certainly burnt down. In the instant case seals of the meter were intact. At least in this case forward movement of the disk was also correct. It is also argued that forward movement of the meter is alleged to be sticky, in case of the meter installed in connection No. MR/10-246. In case plaintiff intends to use any excess land, he was likely to put excess load on that meter which was sticky and was not recording accurate consumption as per the allegations of Flying Squad. He was unlikely to put excess load on the meter which was of small capacity which was likely to burn down in case of so much excess load. It is contended that this single factor that meter was already and was not sticky was recording correct consumption, is sufficient to show that it was not put on as high load as of 29.163 KW as against the sanctioned load of 2.984. It is, therefore, argued that when Executive Engineer was asked these questions he volunteered that at that time he was not aware of sanctioned load of these three meters, hence he failed to observe these factors regarding the adequate capacity of the cable and adequate capacity of service line and capacity of the meters. It is argued that an official who is not aware of the sanctioned load how he can say that there was excess connected load at the time of checking. This statement of Executive Engineer is also incorrect. Site report is Ex. D2. It is alleged to have been prepared at the spot. In this document sanctioned load of the meter is mentioned, it is argued that either the statement of the Executive Engineer is incorrect or this document was not prepared on the spot. Both the situations are sufficient to shatter the case of the defendant PSEB. Ld. counsel for the defendant has failed to meet these contention. 8. Ld. In this document sanctioned load of the meter is mentioned, it is argued that either the statement of the Executive Engineer is incorrect or this document was not prepared on the spot. Both the situations are sufficient to shatter the case of the defendant PSEB. Ld. counsel for the defendant has failed to meet these contention. 8. Ld. counsel for the plaintiff has also argued that when the inaccuracy of the meter is involved, PSEB is not competent to demand any amount from the consumer, unless the matter is referred to Chief Electrical Inspector. In support of this contention ld. counsel for the plaintiff has made a reference to a ruling of Honble Supreme Court report as MPEB v. Smt. Basantibai, AIR 1988 Supreme Court 71, wherein the following principle of law was laid down :- "Scope - dispute whether the meter in question is correct one or faulty - Is to be decided by Electrical Inspector. Pending dispute electricity board can not issue supplementary bill or threaten disconnection of supply of electricity." 9. A reference is also made to a ruling of Punjab and Haryana High Court, reported as PSEB v. Ashwani Kumar, AIR 1993 P&H 197 : , wherein the following principle of law was laid down :- "Natural justice - Supply of electricity - Demand of substantial amount by electricity board on ground of wrong metering - No opportunity given to consumer - Principles of natural justice violated." 10. On the other hand ld. counsel for the defendants has made a reference to a ruling report as Aditya Rotor Spin Kanpur v. U.P. State Electricity Board, Lucknow, AIR 1991 Allahabad 196 and argued that PSEB, defendants are well within the rights to disconnect the electricity supply in case where consumer is found committing theft of electricity energy. From the bare fact that theft of energy was involved in that case, that case is not applicable to the facts of the present case. Even otherwise, this is not case of disconnection of electricity energy by the PSEB defendant, rather it is a case of demand of amount which plaintiff says that he is not liable to pay. Therefore, this ruling is of no help to the defendants. 11. Ld. counsel for the defendants has also argued that mere suit for injunction is not maintainable. Plaintiff must seek declaration alongwith permanent injunction. In support of this contention ld. Therefore, this ruling is of no help to the defendants. 11. Ld. counsel for the defendants has also argued that mere suit for injunction is not maintainable. Plaintiff must seek declaration alongwith permanent injunction. In support of this contention ld. counsel for the defendants has made a reference to a ruling reported as I.N. Mahabaleswara Madyasta v. Karnataka Electricity Board, Bangalore and another, AIR 1994 Karnataka 74. To meet this contention ld. counsel for the plaintiff has placed reliance upon a ruling reported as M.C. Mehta v. UOI, AIR 1988 Supreme Court 1115 and has argued that in that case suit for injunction was filed, Honble Supreme Court has granted relief. Hence suit for simple injunction is maintainable. Relying upon the above said authorities I am of the view that relief sought by the plaintiff cannot be declined to him on this technical ground. 12. From my above discussion issue No. 2 is decided in favour of the plaintiff and it is held that demand raised by the defendant is not in accordance with law. Hence the defendants are not entitled to demand any amount from the plaintiff. 6. Not satisfied with the judgment and decree of the trial Court, the defendant Board filed first appeal in the Court of Addl. District Judge, Patiala which dismissed the appeal for the reasons given in para No. 11 of the judgment. Paras No. 11, 12 and 13 of the judgment of first Appellate Court as reproduced as under :- "11. I have considered the submissions made on behalf of both the parties. It is basic principle of law that nobody can be condemned unheard. It is admitted case of the parties that when premises of the plaintiff were checked, the seals of the meters were found intact. One of the meters bearing No. MR10/0246 was also found to be sticky. A sum of Rs. 35,959/- was demanded from the plaintiff on account of his having allegedly using the load beyond the sanctioned load and further a sum of Rs. 11,300/- was demanded on account of one of its meters having been found to be sticky. The said demand fastened an additional liability on the plaintiff. In such a situation before any action detrimental to the interest of the consumer is taken by the Board it was obligatory upon the Board to issue the notice. 11,300/- was demanded on account of one of its meters having been found to be sticky. The said demand fastened an additional liability on the plaintiff. In such a situation before any action detrimental to the interest of the consumer is taken by the Board it was obligatory upon the Board to issue the notice. So far as, the power of the Board to impose a revised tariff or to claim charges on the basis of checking report is concerned, it is not being disputed but before exercising this power, rights of the consumer have to be safeguarded, which has not been done in the present case. This act on the part of the Board is without jurisdiction, the Civil Court will always have the jurisdiction to entertain such a suit. It is well settled that any order which has civil consequence has to be passed in accordance with the principles of natural justice. It envisages the principles of audi-alterm-partem i.e. call question and decide. The order has to be passed after giving reasonable opportunity to the person who is likely to be effected thereby. It is the only guarantee against any arbitrary action. Such a view has been taken by the Honble High Court of Punjab and Haryana in R.S.A. No. 2200/1999 decided by His Lordship Justice R.L. Anand on 7.2.2000. So far as the judgment in PSEB v. Aswani Kumar, 1997 Apex Court Journal 316 is concerned, same is not applicable to the facts in hand. In this case, plaintiff is giving challenge to the demand made on the basis of a checking report, wherein one of the meters was found to be sticky and plaintiff was found to be using the load beyond sanctioned without anything on record to this effect and in these circumstances, such a notice without hearing him cannot be acted upon. Even otherwise also, one of the meters installed at the premises of the plaintiff was found to be sticky. The meter was not referred to the Electricity Inspector before raising the impugned demand. It is well settled that whether the dispute relates to the question as to whether the meter is correct one or it is faulty not recording the actual energy consumed, dispute squarely falls within the provisions of the Act and it is the Electrical Inspector who alone is empowered to decide these disputes. It is well settled that whether the dispute relates to the question as to whether the meter is correct one or it is faulty not recording the actual energy consumed, dispute squarely falls within the provisions of the Act and it is the Electrical Inspector who alone is empowered to decide these disputes. If the Electrical Inspector gave finding that the meter is faulty and due to some defect it has not recorded the actual consumption of electrical energy, then Inspector will estimate the amount of energy consumed and will fix the amount to be paid in respect of such energy consumed within a period not exceeding 6 months. For such a view, I am fortified by the observations made by the Honble Apex Court in MPEB v. Smt. Basanti Bai, 1988 (SC 71). It has also been held by the Honble Apex Court in another case Belwal Spinning Mills Ltd. v. U.P. State Electricity Board, 1997(2) CCC 616 (SC) that Electrical Inspector is the only statutory authority to decide the dispute in case of defective meter as provided under section 26 of the Electricity Act. 12. Resultantly, this Court is of the opinion, that the demand raised by the defendant-Electricity Board for recovery of Rs. 47,259/- is illegal, null and void and suit of the plaintiff was rightly decreed. The judgment in Jiwan Kumars case (supra) relied upon by the ld. counsel for the appellant is not applicable to the facts in hand. Moreover, this judgment has been recalled vide RA No. 30-C of 1998 in R.S.A. No. 3283 of 1997 decided on 2.1.1999 by Division Bench of Honble High Court of Punjab and Haryana. 13. Resultantly, appeal fails and is dismissed with clear observations that it will always be open to the Board to effect recovery by giving show-cause notice to the consumer. No costs." 7. Again, not satisfied with the judgments and decrees of the Courts below, the present appeal by the Board. 8. I have heard Mr. Deepak Sibal, Advocate on behalf of the appellant, Mr. Arun Jain, Advocate on behalf of the respondent and with their assistance have gone through the records of this case. 9. The learned counsel for the appellant vehemently submitted that the jurisdiction of the Civil Court was barred and the plaintiff ought to have approached the Disputes Redressal Committee for the redressal of this grievance. Arun Jain, Advocate on behalf of the respondent and with their assistance have gone through the records of this case. 9. The learned counsel for the appellant vehemently submitted that the jurisdiction of the Civil Court was barred and the plaintiff ought to have approached the Disputes Redressal Committee for the redressal of this grievance. In support of his contention he relied upon Punjab State Electricity Board and another v. Ashwani Kumar, 1997(5) SCC 120, where it was observed that ordinary civil court has jurisdiction to go into disputed questions of civil nature where fundamental fairness of procedure is violated. But where fundamental fairness of procedure followed, cognizance of civil cause is excluded by necessary implication. Now it is to be seen whether before issuing the demand challenged under the suit, the fundamental fairness of procedure was followed by the Board or not. Section 9 of the Code of Civil Procedure lays down that the Courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Thus, it is to be seen whether the procedure of fairness was adopted by the Board before issuing the demand or that the demand was an act of malice and arbitrary. In order to determine this aspect I will have again refer to the actual facts which are that plaintiff is a consumer and three electric connection were sanctioned to him i.e. MR/10-0298, MR/10-0246 and 31/15. It is the admitted case of the parties that Flying Squad of the Board visited the premises of the plaintiff on 11.6.1991. It is also not disputed by the learned counsel appearing on behalf of the Board that the seals and wires of the meters installed at the business premises of the plaintiff had not been tampered with. One meter was found sticky. It is the grouse of the defendant-Board that against the sanctioned load the plaintiff was having unauthorised load of 9.780 K.W. through meter No. MR/10-246 and 26.179 K.W. through meter No. 31/15. Is it is so and how the officials of the Board came to this conclusion will be a material point for determination in this case. 10. It is the grouse of the defendant-Board that against the sanctioned load the plaintiff was having unauthorised load of 9.780 K.W. through meter No. MR/10-246 and 26.179 K.W. through meter No. 31/15. Is it is so and how the officials of the Board came to this conclusion will be a material point for determination in this case. 10. Though the civil Court has not to sit as a Court of expert but if the civil Court comes to the conclusion that the demand raised by the Board is totally unauthorised, arbitrary and not based on facts, certainly it furnishes a cause of action to the plaintiff which can be adjudicated by the Civil Court. After going through the evidence led by the Board this Court has no hesitation to come to this conclusion that the demand raised by the defendant-Board was unauthorised. Dharminder Kumar, Senior Executive Engineer while appearing in the witness-box as DW1 had to admit in his examination-in- chief itself that the forward movement of the disk of the meters on each phase was also checked and found to be in order. In cross-examination this witness had to admit that the seals of all the three meters were found to be intact. So much so, the forward movement of the disk of the meter having account No. 31/15 and MR/10-298 was also found to be in order. He further admitted that Meter Reader had never reported to them regarding sticky or forward movement of the disk in respect of connection No. MR/10-246, also, it has come in the statement of this very witness that he could not say whether "service main" was intact or not since they had not checked the same. It has also come in the statement of this witness "At the time of checking I was not aware of the sanctioned load of these three meters. I have not observed any damage to the meter and to the cable line." Further, it has come in the statement of this very witness "We have not used any instrument for detecting the load of the meters." If this is the position, how the officials of the Flying Squad came to the conclusion that the plaintiff was using excess load than the sanctioned one or that he was indulging in unauthorised load. On what basis a demand has been issued is a mystery. On what basis a demand has been issued is a mystery. The disks of the meters were correct. Seals of all the three meters were good. Even if it is assumed for the sake of argument that one meter was found sticky, then in such a situation the Board can claim the tariff on the basis of average consumption. DW1 admits as follows :- ".....It is correct that once it comes to notice that the meter is sticky then the consumption bill is issued on the basis of average consumption...... : This has not been done in the present case. In such a situation, if the demand made by the Board is based on arbitrary manner and without any substance, the civil court will certainly interfere in such a demand on the basis that it is without jurisdiction and on the ground that the procedure of fairness which is demand of the day and is backbone of our legal system has been violated. This was observed by My Lords of the Honble Supreme Court in Ashwani Kumars case (supra). Moreover, the first Appellate Court has already protected the interest of the defendant-Board by observing that they can issue a fresh demand by adopting the principles of natural justice. 11. Faced with this difficulty the learned counsel for the appellant relied upon Punjab State Electricity Board and another v. M/s. Megha Alloys Ltd., 1999(2) PLR 232 where the matter was referred to the Member Technical/Dispute Redressal Committee. This judgment is not helpful because this is based on concession as is evident from para No. 2 of the judgment. It is not held in this judgment that what are the rights of a consumer when the Board or its staff violates the basic provisions of natural justice and acts against the provisions of the Electricity Act itself. Reliance was also placed upon a judgment of this Court Pardeep Singh v. P.S.E.B. and others, 2000(2) PLR 583. The facts of this case are totally different. It was a case of tariff. In one premises two electric connections were being utilised and as per the circular of the Board both the connections were liable to be clubbed and in that eventually the consumer was bound to pay higher tariff of large supply. The facts of this case are totally different. It was a case of tariff. In one premises two electric connections were being utilised and as per the circular of the Board both the connections were liable to be clubbed and in that eventually the consumer was bound to pay higher tariff of large supply. The learned counsel for the appellant then referred Punjab State Electricity Board v. Vinod Kumar, 1998(2) PLR 315 and submitted that the jurisdiction of the Civil Court was barred by virtue of the provisions of Section 9 of the Code of Civil Procedure. This authority is not applicable to the facts in hand. In the cited case the counter of the meter had been replaced and the meter was recording only 10% consumption against the prescribed number of revolutions. It was a case of theft of energy. Here the position as per the admission of the Board is totally different. One meter was found sticky for no fault of the plaintiff for which bill of average consumption could be issued. Against two electric connections the alleged excess load was being used for which there is no basis. No electrical instrument was used to assess the load. How with naked eyes the members of the Flying Squad came to the conclusion about the excess load. I have already tried to show so from the oral evidence of the witness of the Board, who was in the rank of Senior Executive Engineer. In such a situation the demand was arbitrary without any notice to the plaintiff. He could not be condemned unheard in such a situation. The principles of natural justice had been flouted as rightly observed by the Courts below. Resultantly, I do not see any merit in the present appeal and by affirming the findings of the Courts below the same is hereby dismissed with no order as to costs. Appeal dismissed.