Gauhati High Court
Assam State Electricity Board And Ors. vs North Western Cachar Tea Co. Ltd. on 4 April, 2000
Equivalent citations: AIR2000GAU176, AIR 2000 GAUHATI 176, (2000) 3 GAU LR 481, (2001) 1 CIVILCOURTC 315, (2001) 3 RECCIVR 83, (2001) 3 CIVLJ 103, (2001) 2 ICC 126
JUDGMENT J.N. Sarma, J.
1. This appeal has been filed against the order dt. 6-7-94 passed by the Learned Asstt. District Judge No. 1 at Silchar in Mise. (J) Case No. 50/94 arising out of a T. S. No. 61/94.
2. The plaintiff is a company and it has a tea Garden at Cachar in the name and style of M/s. Silcoorie Tea Estate. The Tea Company enjoyed the electricity from the ASEB. The suit was filed on 23-6-94 for the declaration that the Bills which were raised by the ASEB as mentioned in prayer No. A to E of the plaint and for a further declaration that the disconnection notice dt. 6-6-94 issued by the ASEB is arbitrary, illegal and mala fide. There was also a prayer for mandatory and temporary injunction. That prayer is quoted below :
"For mandatory injunction directing the defendants, their officers, servants to reconnect/restore immediately the electricity supply at Silcoorie T. E. inclusive of the factory of Silcooria T. E. and for permanent and temporary injunction restraining the defendants, his officers and servants from further disconnecting the electricity supply at Silcoorie T. E. inclusive the Factory of the T. E. on the ground of non-payment of 10% Capacitor charge raised in Bill No. 2 dt. 26-7-93/30-7-93, Bill No. 17 fit. 10-1-94 and surcharges charged thereon and/or any subsequent surcharges charged in connection with 10% capacitor charge in Bill No. 2 dt. 26-7-93/30-7-93 and Bill No. 17 dt. 10-1-94 and/or compensation Bill No. 1 dt. 1-6-94 and/or any other pretext and/or for non-compliance of notice No. 454 dt. 6-6-94 and Letter No. SE/CEC/T-51/94/1594-98 dt. 6-6-94."
3. Along with the plaint an application was filed for mandatory and temporary injunction in terms of the prayer made in the suit and that was registered as Misc. Case No. 50/94. The learned Judge without issuing notice to the other side and without giving opportunity of hearing to the other side on the same day itself on 24-6-94 issued a mandatory injunction. The penultimate portion of the order granting of mandatory injunction and temporary injunction reads as follows :
"Hence, O. Ps. are directed to restore electric connection electricity at the Silcoorie T. E. including factory of the tea till forthwith.
From the above facts and circumstances I find that issue of prior notice as required under Order 39, Rule 3 of the C. P. C. may be dispensed with as service of prior notice shall defeat the purpose of injunction by delay. Hence prior notice is dispensed with. The plaintiff-petitioner has further prayed for issue of temporary injunction to restrain the defendant O. Ps. from raising and realising the capacitor bill, 10% capacitor charge, surcharge and compensation bill disposal of this suit. He has further prayed for directing the defendants to submit bill against energy consumption only till disposal of the suit. The prayer appears to be just and reasonable in the instant case.
For these reasons, the defendants--O.Ps. are also restrained temporarily not to raise or realise capacitor bill, 10% capacitor charge, surcharge and compensation bill till disposal of this suit and O.Ps. are directed to receive the monthly energy bill only.
In a case of temporary Injunction the Court would not go into the merit of the case and injunction may be issued on satisfaction and as justice demands as a measure of equitable relief. On application of my reasonable and judicious mind I have passed the above orders for issue of mandatory and temporary injunction. However, liberty is hereby granted to the defendant O.Ps. to file their written objection and show cause and for filing petition before this Court for alternation amendment/variation of the aforesaid mandatory injunction if they are so advised on or before the date fixed hereafter."
4. The ASEB thereafter appeared in the case and filed an application under Order 39, Rule 4 read with Section 151 of the C.P.C. for setting aside the order of ex parte order of mandatory injunction and temporary injunction dt. 24-6-94. The case of the ASEB for variance/modification and/or setting aside the order of injunction can be gathered from their objection which is as follows :
"(a) That the plaintiff-petitioner had sanctioned load of 200 K.W. The O. P. defendant Nos. 3, 4, 5 and A.E.E./MTI made a surprise visit in usual course of their duties to Silcoorie T. E. of the plaintiff-petitioner on 26-5-94 and in presence of the Manager of the Garden made enquiry in the garden factory and found that the plaintiff-petitioner has been committing theft of electric energy by concealing unauthorised load of 103 KW in the ASEB circuit. The inspection report was prepared then and there and the Manager of Silcoorie T. E. of the plaintiff petitioner signed the inspection report admitting corrections of the inspection report dated 26-5-94. The MTI sub-division of the A.S.E.B. also prepared inspection report on 26-4-94 and the same was also signed by the Manager of the plaintiff-petitioner along with said four officers of the ASEB on 26-5-94 and the manager of the plaintiff-petitioner, admitted that he would take immediate action on unauthorised load but the Manager of the plaintiff-petitioner failed to take any action as recommended. Thus violated Clause 21(11) of the terms and conditions of Supply, 1988. Accordingly, as per Rule compensation bill on the basis of inspection report dated 26-5-94 amounting to Rs. 1,55,736.00 was served to the Manager, Silcoorie T. E. of the plaintiff-
petitioner with a forwarding letter asking the manager to rectify the defects and also stop theft of energy and to submit fresh test report, otherwise necessary action as per Board's Rule will be taken. The manager first refused to accept the registered letter but later on came to office of the O.P. No. 5 and the accepted said letter and bill was handed over to him. But he neither paid the bill for rectifying the defects in compliance with earlier Notice dated 6-6-94. Wherein it was stated that he could prefer appeal before the Executive Engineer. ASEB, Silchar Electrical Division and also to rectify defects but the Manager Silcoorie T. E. failed to rectify the defects nor paid penalty bill nor preferred any appeal. As a result being compelled the service connection of plaintiff petitioner was disconnected on 21-6-94 to save the Electric installation and life and property of the people as well as to prevent further theft of electricity by the plaintiff petitioner at the peril of the electric installation of the O.P. defendants. So the said disconnection has got no relation for nonpayment of 10% capacitor charges and surcharges as alleged in the injunction petition.
(b) That the plaintiff-petitioner filed appeal against letter No. SED/1-37/93-94/ 2101 dated 11-3-94 of the O.P. No. 4 to the O.P. No. 3 forwarded the same to the O.P. No. 2 and the same is still pending, as such disconnection has not been done for nonpayment of capacitor charges, surcharge or any other amount buf the plaintiff-petitioner has clubbed all matters togetherwith a mala fide intention to misguide the Hon'ble Court and obtained an order of mandatory injunction and temporary injunction on their favour."
5. The learned Judge by the impugned order rejected the application. Hence this appeal.
6. I have heard Sri J. Chutia. learned Advocate for the appellant and Mr. Dey, learned Advocate for the respondents. Before we go further let us first discuss the principle regarding ex parte mandatory injunction to be granted. Ex parte mandatory injunction is to be granted in the rarest of rare case where a clear case is made out and the Court is satisfied that if that mandatory injunction is not granted ex parte Justice will be the sacrificial goat. No doubt the Court has the power to grant ex parte mandatory injunction in exceptional cases but that can-
not be a normal rule. Section 39 of the Specific Relief Act provides for mandatory Injunction and that section is quoted below :
"39. Mandatory injunction.-- When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the Court is capable of enforcing, the Court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts."
6-A. Regarding mandatory injunction it can be said as follows :
(i) A mandatory injunction is a discretionary relief and delay is a factor which has to be taken into account while granting it where a case for grant of this relief is otherwise made out.
(ii) Granting an injunction basically is an equitable relief and the Court must be satisfied that the plaintiff has come to Court with clean hands. He must not be guilty of suppressing of material things and/or the Court must be always cautious to see that the wrongful state of things is not allowed to continue and/or be perpetuated by grant of injunction, otherwise injunction instead of being a step for establishing and maintaining justice will be a weapon of oppression.
7. The principle regarding granting of injunction has come up for discussion in a number of cases and I rely on the following cases :
(i) AIR 1988 Delhi 140 (Mrs. Vijay Srivastava v. Mirahul Enterprises wherein it has been held as follows :
"It cannot be said that no mandatory injunction can be granted by the Court on an Interlocutory application in any circumstances. There is no bar to the Court's granting interlocutory relief in the mandatory form though in doing so, the Court should act with greatest circumspection and such powers can be exercised only in rare and exceptional cases. Whether or not a case comes in the category of 'rare' and 'exceptional' one, is to be judged according to the facts and circumstances surrounding it. A mandatory injunction can be granted on an Interlocutory application after notice to the defendant and after hearing the parties."
I respectfully agree with the decision of the Delhi High Court, save and except, I hold that in an appropriate case even mandatory Injunction may be granted even without notice to the other side by dispensing with the notice under Order 39, Rule 3 but at the same time it must be a case where mandatory injunction if not granted will cause grave injustice.
(ii) AIR 1956 Cal 428 (Nandan Pictures Ltd. v. Art Pictures Ltd.) where the Division Bench of the Calcutta High Court has pointed out as follows at Page 430 :
(A) Injunctions are a form of equitable relief and they have to be adjusted in aid of equity and Justice to the facts of each particular case.
(B) If a mandatory injunction is granted at all on an interlocutory application, it is granted only to restore the 'status quo' and not granted to establish a new state of things, differing from the state which existed at the date when the suit was instituted. The one case in which a mandatory injunction is Issued on an Interlocutory application is where, with notice of the institution of the plaintiffs suit and the prayer made in it for an Injunction to restrain the doing of a certain act, the defendant does that act and thereby alters the factual basis upon which the plaintiff claimed his relief. An injunction Issued in such a case in order that the defendant cannot take advantage of his own act and defeat the suit by saying that the old cause of action no longer survived and a new cause of action for a new type of suit had arisen. When such is found to be the position, the Court grants a mandatory Injunction even on an interlocutory application, directing the defendant to undo what he has done with notice of the plaintiffs suit and the claim therein and thereby compels him to restore the position which existed at the date of the suit. Even such an order has been made only when the application for an 'ad interim' Injunction pending the disposal of the suit is finally disposed of and not during the pendency of the application, itself."
8. I have perused the order and after hearing the learned Advocates for the parties I find that the impugned order is absolutely an erroneous one and against all canons with regard to the grant of Injunction. As Indicated above injunction cannot be granted for perpetuating wrongful state of things but that is what will happen, If this injunction is allowed to hold the field, the defendant will go on enjoying the electricity and shall not pay the charges. It is alleged that the defendant resorted to mala fide practice and that is admitted by the Manager by signing on the inspection report and thereafter stand was taken that they are not liable to pay the charges. This is really unreasonable both in law and facts. Accordingly, this appeal is allowed and order of injunction both mandatory and temporary shall stand quashed. The ASEB may realise all the arrears from the Tea Estate and if the arrears are not paid the ASEB may disconnect the electricity of the Tea Estate. It is really a pitiable state of thing that the ASEB sitting over the appeal for the last seven years. No cost.