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2011 DIGILAW 951 (CAL)

C. E. S. C. Limited. v. Ujjala Mondal

2011-07-19

PRASENJIT MANDAL

body2011
JUDGMENT Prasenjit Mandal, J. 1. CHALLENGE is to the order dated September 10, 2009 passed by the learned Additional District Judge, 10th Court, 24 Parganas (South) in Misc. Appeal No.11 of 2008 arising out of the order dated December 17, 2007 passed by the learned Civil Judge (Junior Division), 5th Court, Alipore in Title Suit No.291 of 1990. 2. THE plaintiff / opposite party herein instituted a suit being Title Suit No.291 of 1990 praying for declaration of title, permanent injunction and other reliefs. THE petitioner is contesting the said suit. While disposing an application under Section 151 of the C.P.C., the learned Trial Judge directed the petitioner to restore electricity connection in the said premises with the meter within 30 days from the date of order and on restoration, the plaintiff was directed to pay the bills as per meter calculated by the defendant-company, if any. Being aggrieved by that order, the petitioner filed a misc. appeal being Misc. Appeal No.11 of 2008 and the said misc. appeal was dismissed on contest and the order of the learned Trial Judge dated December 17, 2007 was confirmed. Being aggrieved, this application has been preferred. Now, the point for consideration is whether the impugned order should be sustained. Upon hearing the learned counsel for the parties and on going through the materials on record, I am of the view that the learned Lower Appellate Court was not justified in dismissing the misc. appeal. In the instant case, the suit was filed in the year of 1990. Thereafter, the Electricity Act, 2003 has been passed. The disconnection of the electricity line of the premises in suit had been done as per provisions of the Electricity Act, 2003. The petitioner has contended that the disconnection had been done because of pilferage of electricity. The petitioner has specifically stated that the premises in suit was inspected on November 26, 2007 at 14:35 hrs. by the officers of the petitioner along with local police contingent and found the pilferage of the electricity. It was also found that the opposite parties had tampered with the seals fixed on the meter body so as to gain unauthorised access to the internal mechanism for the purpose of reducing the actual meter reading. Thus, the opposite party had caused loss of revenue to the petitioner. It was also found that the opposite parties had tampered with the seals fixed on the meter body so as to gain unauthorised access to the internal mechanism for the purpose of reducing the actual meter reading. Thus, the opposite party had caused loss of revenue to the petitioner. The consumption of electricity by the opposite party was, therefore, illegal and accordingly, an assessment was made to the tune of Rs.1,44,540/- per year. The disconnection was made accordingly as per Section 135(1A) of the Electricity Act, 2003 and other notifications made thereunder. The amount was not paid. Then a F.I.R. was lodged with the Watgunge Police Station. 3. WHEN provisional assessment was made, the opposite party had the opportunity to make a representation within 10 days from the date of provisional assessment under Section 126 of the said Electricity Act, 2003. Even the provision of appeal is there under Section 127 of the said 2003 Act against the final order of assessment under Section 126. 4. THEREFORE, when the Electricity Act, 2003 has come into force the applicant got a fresh cause of action on the detection of pilferage of electricity and so, the petitioner is within its jurisdiction to disconnect the electricity. My observation gets support from the decision of C.E.S.C. Limited v. Jain Poly Plastics reported in 2002(1) CHN 144 filed by the learned Advocate for the petitioner. Mr. Subir Sannyal appearing on behalf of the petitioner has also referred to the decision of P. Maharajan alias Nadarajan v. Chakalayil Kunju Sarojini reported in AIR 1988 Orissa 175 which lays down that the Court has no power to pass orders with respect to individual property of the wife. He has also referred to the decision of K. Rama Rao v. Ch. Venkateswar Rao and anr. reported in AIR 1990 Andhra Pradesh 269 and the decision of M/s. Arpee Properties Pvt. Ltd. v. United Bank of India and ors. reported in AIR 1987 Calcutta 60. These three decisions relate to jurisdiction matter. 5. MR. He has also referred to the decision of K. Rama Rao v. Ch. Venkateswar Rao and anr. reported in AIR 1990 Andhra Pradesh 269 and the decision of M/s. Arpee Properties Pvt. Ltd. v. United Bank of India and ors. reported in AIR 1987 Calcutta 60. These three decisions relate to jurisdiction matter. 5. MR. Probal Kumar Mukherjee, learned advocate appearing on behalf of the opposite party has referred to the decision of Prime Retail India Pvt. Ltd. v. Y.D. Properties and Investment Pvt. Ltd. reported in 2009(2) CHN 587 particularly the paragraph nos.31, 32 and 33 and thus, he submits that since the disconnection was effected in violation of the order of injunction, the opposite party is entitled to get restoration of such supply of electricity. Such restoration will be passed subject to the ultimate decision to be taken by the learned Trial Judge. 6. SO, I hold that the petitioner has taken steps according to the provisions of the Electricity Act, 2003. The said decision will not be applicable in the instant case. In the instant case, I have observed that the petitioner got fresh cause of action to deal with the situation and in appropriate situation the concerned authority can pass orders under Sections 126 and 127 of the Electricity Act, 2003. The civil court has no jurisdiction to entertain such matters under Section 145 of the Electricity Act. SO, the appropriate authority is to take an appropriate step according to the situation. In that view of the matter, I am of the firm opinion that the petitioner has got a new cause of action to disconnect the electricity in view of the provisions of Electricity Act, 2003. The impugned order, therefore, cannot be sustained. The revisional application is, therefore, allowed. The impugned order is hereby set aside. Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.