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2024 DIGILAW 88 (ALL)

Ganga Sagar Yadav v. Dulari

2024-01-09

ALOK MATHUR

body2024
JUDGMENT : 1. Heard Sri Rajesh Chandra Mishra, learned counsel for the petitioners. No one appears for the respondents. 2. Learned counsel for the petitioners at the very outset has prayed that he may be permitted to make amendment in the memo of writ petition for treating it to be writ petition under Article 227 rather than petition under Article 226 of the Constitution of India. 3. Learned counsel for the petitioner is permitted to make necessary incorporation in the memo of writ petition during course of the day. 4. By means of present writ petition the petitioners have challenged the order dated 09.02.2012, passed by the Additional Civil Judge (Junior Division), Raebareilly whereby he has decided the issue with regard to jurisdiction in favour of the plaintiff and against the petitioners. The petitioners subsequently assailed the order dated 09.02.2012 before the District Judge, Raebareilly by filing revision being Civil Revision No. 35 of 2012, which was also rejected and order of trial Court in this regard has been affirmed. 5. It has been submitted by learned counsel for the petitioners that respondent no. 1 had filed a suit for permanent injunction seeking prayer for restraining the defendants/petitioners and respondent nos. 2 to 4 not to erect electricity poles and electricity line over plot no. 632, situated at Village - Purey Alpi Majre, Chilaula Bhangaria, Post -Kalyanpur Raili, Pargana, Tehsil & District -Raibereilly. The said suit was subsequently amended and plaintiff had further prayed for mandatory injunction against defendants. 6. The petitioners had appeared in the suit proceedings and filed their objections and submitted that the Civil Court did not had jurisdiction to interfere in the suit and same would be liable to be dismissed as not maintainable. The Additional Civil Judge (Junior Division) has framed four issues and issue no. 4 pertains to jurisdiction of the civil Court to entertain and decide the issue raised by the plaintiff. 7. The Additional Civil Judge (Junior Division) has framed four issues and issue no. 4 pertains to jurisdiction of the civil Court to entertain and decide the issue raised by the plaintiff. 7. The trial Court while rejecting the objections filed by the petitioners recorded that Section 145 of the Electricity Act, 2003 is not applicable in the facts of the present case and provisions which bar maintainability of the suit, restricts only to matters which an assessing officer referred to in Section 126 or the appellate Court referred to in Section 127 or the adjudicating officer appointed under this Act is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act. 8. The trial Court was of the view that the dispute in the present case is not relatable to any assessment proceedings and permanent injunction has been sought against defendants for erecting electric poles and electricity line over the said land. For the sake of convenience Section 145 of the Electricity Act, 2003 is re-produced herein below :- "145. Civil court not to have jurisdiction.-No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which an assessing officer referred to in Section 126 or the appellate Court referred to in Section 127 or the adjudicating officer appointed under this Act is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act." 9. From the perusal of aforesaid provision it is clear that the civil Court can entertain the matters with regard to assessment which fall under Chapter XII -Investigation and Enforcement. The said Chapter deals with the matters pertaining to assessment of electricity consumed and under Section 127 provides for appeal before the appellate authority and further in relation to investigation of certain matters. 10. Undisputedly, where ever there is statutory prescription excluding powers of the civil Court then such a provision has to be interpreted strictly. The said Chapter deals with the matters pertaining to assessment of electricity consumed and under Section 127 provides for appeal before the appellate authority and further in relation to investigation of certain matters. 10. Undisputedly, where ever there is statutory prescription excluding powers of the civil Court then such a provision has to be interpreted strictly. Section 145 of the Electricity Act, 2003 excludes jurisdiction of the civil Courts as specifically stated that the civil Courts shall not have jurisdiction in the matter where orders have been passed by the assessing officer referred in Section 126 of the Electricity Act, 2003 or appellate authority as mentioned in Section 127 or adjudicating officer appointed under Section 6 of the Electricity Act, 2003. There is no exclusion of jurisdiction of the civil Courts in relation to other matters. 11. The controversy raised in the present case is with regard to permanent injunction sought by the plaintiff with regard to erection of electric poles and electric line over the plot owned by the plaintiff. Such a dispute is clearly not barred by Section 145 of the Electricity Act, 2003 and consequently, the trial Court did not commit any error while interpreting provisions of Section 145 of the Act, 2003 and holding that the suit in this regard was maintainable and not barred under Section 145 of the Act, 2003. At this stage it would be useful to consider judgments of Hon'ble Supreme Court in this regard. 12. Hon'ble Apex Court in the case of Dwarka Prasad Agarwal Vs. Ramesh Chander Agarwal, (2003) 6 SCC 220 , in para 22 of the judgment has discussed the issue regarding civil Court's jurisdiction as follows :- "In a catena of judgments, the Hon'ble Supreme Court as well as various High Courts have held that exclusion of civil court's jurisdiction cannot be readily inferred. Such exclusion must either be explicitly expressed or clearly implied. Even if the jurisdiction is so excluded, the civil courts have jurisdiction to examine the cases where the provisions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the principles of judicial procedure. Such exclusion must either be explicitly expressed or clearly implied. Even if the jurisdiction is so excluded, the civil courts have jurisdiction to examine the cases where the provisions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the principles of judicial procedure. [Dewaji v. Ganpatlal, AIR 1969 SC 560 ;Sree Kandregula Srinivasa Jagannath Rao Pantulu Bahadur Garu v. State of A.P., (1969) 3 SCC 71 .] Similarly the civil court can always entertain and decide the suit where fraud has been practised upon the court and this point has been settled by the Hon'ble Supreme Court in its celebrated judgment delivered in S.P. Chengalvaraya Naidu v. Jagannath [ (1994) 1 SCC 1 .] wherein it has been observed by Their Lordships thus: 1. "Fraud avoids all judicial acts, ecclesiastical or temporal" observed Chief Justice Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree—by the first court or by the highest court—has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings. [(1994) 1 SCC]" 13. The Constitution Bench of the Apex Court in the case of Ram Swarup Vs. Shikar Chand, AIR 1966 SC 893 , while dealing with the issue of jurisdiction of Civil Courts has formulated the following two tests :- "The two tests, which are often considered relevant in dealing with the question about the exclusion of civil courts' jurisdiction are (a) whether the special statute which excludes such jurisdiction has used clear and unambiguous words indicating that intention; and (b) does that statute provide for an adequate and satisfactory alternative remedy to a party that may be aggrieved by the relevant order under its material provisions. Applying these tests the inference is inescapable that the jurisdiction of the civil courts is intended to be excluded." 14. Hon'ble Apex Court in the case of Dhruv Green Field Ltd. Vs. Hukum Singh & Others, 2002 (6) SCC 416 , has outlined the principles for deciding the issue of jurisdiction of Civil Court's, in the following manner :- "10. Applying these tests the inference is inescapable that the jurisdiction of the civil courts is intended to be excluded." 14. Hon'ble Apex Court in the case of Dhruv Green Field Ltd. Vs. Hukum Singh & Others, 2002 (6) SCC 416 , has outlined the principles for deciding the issue of jurisdiction of Civil Court's, in the following manner :- "10. In the light of the above discussion, the following principles may be restated: (1) If there is express provision in any special Act barring the jurisdiction of a civil court to deal with matters specified thereunder the jurisdiction of an ordinary civil court shall stand excluded. (2) If there is no express provision in the Act but an examination of the provisions contained therein leads to a conclusion in regard to exclusion of jurisdiction of a civil court, the court would then inquire whether any adequate and efficacious alternative remedy is provided under the Act; if the answer is in the affirmative, it can safely be concluded that the jurisdiction of the civil court is barred. If, however, no such adequate and effective alternative remedy is provided then exclusion of the jurisdiction of the civil court cannot be inferred. (3) Even in cases where the jurisdiction of a civil court is barred expressly or impliedly, the court would nonetheless retain its jurisdiction to entertain and adjudicate the suit provided the order complained of is a nullity." 15. This Court has also perused the record as well as arguments of the petitioners and has also gone through the statutory provisions and judgments of the Apex Court and is of the considered view that there is no infirmity in both the impugned orders and the suit would not barred by the provisions of Section 145 of the Act, 2003. 16. The District Judge while rejecting the revision has also duly considered the arguments raised by the petitioners and had also affirmed the findings recorded by the trial Court. 17. In view of discussion made above as well as in the light of aforesaid case law, this Court is of the considered view that no interference in the matter by this Court under Article 227 of the Constitution of India is called for. 18. 17. In view of discussion made above as well as in the light of aforesaid case law, this Court is of the considered view that no interference in the matter by this Court under Article 227 of the Constitution of India is called for. 18. From the perusal of Section 145 of the Electricity Act, 2003 it is clear that controversy as raised by the petitioner is with regard to the dispute pertaining to erection of electric poles in the private lands, hence the said nature of case has not been provided for in Section 145 of the Act, 2003, and consequently, the jurisdiction of civil Courts has not been ousted. The matters which have been excluded have been clearly stated in Section 145 of the Act, 2003 and the dispute in the present case is not covered. 19. The writ petition devoid of merits is dismissed.