Rajasthan High Court - Jaipur
Rajendra Prasad vs Jaipur Vidyut Vitran Nigam Ltd. on 9 February, 2007
Equivalent citations: RLW2007(4)RAJ3228
Author: R.S. Chauhan
Bench: R.S. Chauhan
JUDGMENT R.S. Chauhan, J.
1. Slapped with an unusually high electricily bill, threatened with disconnection of his electricity connection, trying to save himself and his family, literally and figuratively, from being plunged into darkness, the appellant has been running from one Court to another. The appellant has challenged the Order dated 26.4.2006 passed by the Additional District Judge (Fast Track) No. 2, Bharatpur, whereby the learned Judge has dismissed the temporary injunction application filed by the appellant under Order 39, Rule 1 and 2 of the Civil Procedure Code (henceforth to be referred to as 'the Code', for short).
2. In a nutshell the facts of the case are that the appellant has a modest home in Bharatpur. He also has an electricity connection, connection Account No. 1512/18100104. The respondent has also installed an electric Meter, bearing No. 559920 at his house. The electrical' connection is for 'domestic' purpose. The appellant had religiously paid his electric bills to the respondent. In February 2003, the meter recorded as 17695. Thus, in one month, the appellant had consumed 700 units. Hence, the respondent sent a electric bill for Rs. 2145/- to the appellant. According to the appellant this was the 'normal' bill that he had been receiving for the last few years. Therefore, the appellant paid the said bill. However, on 19.3.2003, the respondent's officer illegally removed the electric meter ostensibly on the ground that the appellant had tampered with the meter. According to them, the body seal and the terminal seal were tempered with. But, the officers assured the appellant that a new meter would be installed immediately. But, the meter was not restored. In May 2003, the appellant received an electric bill based on 'minimum charges'. He paid the same. To his great shock and dismay, suddenly in September 2003, the appellant received a notice from the respondent, notice dated 29.9.2003, demanding Rs. 22,000/- as 'settlement amount' for the misuse of energy. He also received a supplementary bill for consumption of 1,59,280 units of electricity. The appellant immediately rushed to the District Consumer Forum in order to challenge the said notice and the supplementary bill. According to him, before the notice and the supplementary bill could be issued, the meter had to be tested by an Electrical Inspector. As the Electrical Inspector had not tested the functions of the electric meter, the notice and the supplementary bill could not be issued. Vide Order dated 30.10.2003, the learned Forum staved the recovery of the amount. On 13.11.2003, the appellant submitted an application for restoration of the electricity supply, which was duly allowed. A new meter was finally installed. The appellant has been paying the electricity bill regularly since then. However, vide order dated 12.1.2006, the learned Forum has dismissed the appellant's complaint on the ground of 'jurisdiction'. Before the learned Forum, the respondent had taken the plea that as the case involved disputed questions of facts, as it required detailed evidence, the summary procedure prevalent in the Forum was unsuitable for the adjudication of the case. According to them, only the civil courts could adjudicate the case. Agreeing with the respondent's contention, the learned Forum dismissed the appellant's complaint. As soon as the complaint was dismissed, the respondent disconnected the meter. The appellant and his family were left in the dark.
3. Therefore, immediately the appellant filed a suit for declaration and for permanent injunction. Along with the suit, the appellant also filed an application for temporary injunction under Order 39 Rule 1 & 2 of the Code. The respondent filed its written statement and contended that at the time of checking of the meter the body seal and the terminal were found to be tempered and VCR was made on 19.3.2003. They also contended that no injunction could be issued against them as the demand made against the appellant is of Rs. 22,000/- towards the left of electricity and 1,59,280 units towards the supplementary bills on the basis of reading of meter. They also claimed that a civil suit is not maintainable. After hearing both the parties, vide order dated 26.4.2006, the learned Judge dismissed the appellant's application for temporary injunction. Hence, this appeal before this Court.
4. Mr. Virendra Lodha, the learned Counsel for the respondent, has raised a preliminary objection with regard to the maintainability of the civil suit. According to him, the appellant has an alternative remedy available to him under the General Relating to the Supply of Electrical Energy (henceforth to be referred to as 'the General Supply condition', for short). The Rajasthan State Electricity Board (henceforth to be referred to as 'the RSEB', for short) has 'enforced' these conditions. According to Condition No. 31.1, a Consumer's Due Settlement Committee (henceforth to be referred to as 'the Settlement Committee, for short) has been constituted under the General Supply Conditions. While dealing with the scope and ambit of the Settlement Committee, the Hon'ble Supreme Court in the case of Punjab Electricity State Board v. Ashwani Kumar , has held that civil suits are not maintainable as under the General Supply Conditions 'the consumer' is required to approach the Settlement Committee for the redressal of his complaint with regard to electric bills and for other complaints. Hence, the appellant's civil suit is not maintainable. Therefore, the appellant is not entitled for grant of temporary injunction.
5. Mr. Bipin Gupta, the learned Counsel for the appellant, has argued that each State has its own Electricity Board or Companies for supply of electricity. Each State Electricity board has promulgated its own General Supply Conditions. Thus, the General Supply Conditions may differ from one state to another. Before the ratio decidendi of the Ashwani Kumar's case can be applied, one would have to see if Punjab's Conditions of Supply of Sale of Electric Energy of Consumers are pari materia with the General Supply Conditions prevalent in Rajasthan. According to the learned Counsel there is a vast difference between the two General Supply Conditions prevalent in Punjab and Rajasthan. Therefore, the ratio of Ashwani Kumar's case cannot be applied in the instant case.
6. In order to resolve this controversy, this Court directed Mr. Lodha to produce the General Supply Conditions applicable in Punjab. Condition No. 49 of the General Supply Conditions of Punjab deals with disputes as under:
In the event of any difference or dispute arising between the Board and the consumer in respect of any matter connected with the supply which cannot be determined by these conditions or by the terms of agreement between the board and the consumer, and in the event of any difference or dispute arising as to the interpretation of these conditions or of the terms of agreement between Board and the consumer, the matter shall be determined by reference to the 'Consumer Dispute Settlement and Reconciliation Committees' constituted at various levels of the Board. And in the event of any difference or dispute arising the cannot be determined as aforesaid, the provisions of the Arbitration Act, 1996 as amended from time to time shall apply.
However, Condition No. 31 of the Rajasthan General Supply Conditions reads as under:
In the event of any difference or dispute arising between the Board and Consumer in respect of any matter connected with the supply which cannot be determined by these conditions or by the terms, of any agreement between the Board and the Consumer, and in the event of any difference or dispute arising as to the interpretation of these conditions or of the terms of any agreement between the Board and the Consumer, the matter shall be determined in accordance with the provisions of the Act. However, in cases of revenue matters, the consumer any approach the Consumers' dues Settlement Committee at the initial stage for seeking relief to reduce burden of litigation without affecting his right of making reference to the competent Court in the event no settlement is arrived at. Its scope, constitution and financial powers are indicated below.
7. At the first blush, the language of both Condition No. 49 of the Punjab General Supply Condition and of Condition 30 of the Rajasthan General Supply Condition appears to be identical. However, as the emphasis indicates above, there is a vast difference between the two General Supply Conditions. While the Punjab General Supply Conditions uses the word 'shall', the Rajasthan one uses the word 'may'. Thus, while the former is a mandatory condition, the latter is a directory one. The former compels the consumer to approach the Settlement Committee. It further states that 'in the event of any difference or dispute arising that cannot be determined as aforesaid, the provisions of the Arbitration Act, 1996 as amended from time to time shall apply". Hence, it totally ousts the jurisdiction of the civil Court. It has created an alternate dispute resolution forum either in the shape of the Settlement Committee, or in the shape of arbitration proceeding. Thus, the consumer is not permitted to approach he civil Court for adjudication of his dispute with the Board. It is in these circumstances that the Hon'ble Supreme Court in the case of Ashwani Kumar (supra) had observed "the statutory circulars adumbrated above do indicate that a fundamental fairness of the procedure has been prescribed in the rules and is being followed. By necessary implication the cognizance of the civil cause has been excluded. As a consequence, the Civil Court shall not be justified in entertaining this suit....
8. However, such is not the case under the Rajasthan General Supply Conditions. Firstly, the use of the word 'may'-gives an option to the consumer to approach or not to approach the Settlement Committee. Secondly, the consumer may approach the Settlement Committee "at the initial stage". Thirdly, submission to the Settlement Committee does not disentitle the consumer from making a reference to "the competent Court in the event no settlement is arrived at". Therefore, the Rajasthan General Supply Condition does not oust the jurisdiction of the civil court in toto. It merely provides the consumer with an option to either go to the Settlement Committee 'at the initial stage' or to approach the civil court for the adjudication of his dispute. The discretion is entirely his.
9. Since there is, indeed, a vast difference between the Punjab and the Rajasthan General Supply Conditions, the ratio of Ashwani Kumar's case (supra) is inapplicable to the present case. In the case of Punjab National Bank v. R.L. Vaid and Ors. , the Hon'ble Supreme Court held that "thee is always peril in treating the words of a judgment as though they are words in a legislative enactment and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a different between conclusions in two cases. Disposal of cases by merely placing reliance on a decision is not proper. Precedent should be followed only so far as it marks the path of justice, but you must cut out the dead wood and trim off the side branches else you will find yourself lost in thickets and branches, said Lord Denning, while speaking in thefnatter of applying precedents." Similarly, in the case of Kalyan Chandra Sarka v. Rajesh Ranjan , the Apex Court observed that "a court would have to bear in mind that every judgment must be read as applicable of the particular facts proved or assumed to be true, since the generality of expressions which may be found therein are not intended to be expositions of the whole of the law, but are governed and qualified by the particular facts of the case in which such expressions are to be found. A case is only an authority for what it actually decides, and not what logically flows from it." In the case of Mangalore Chemicals & Fertilisers Ltd. v. Karnataka Electricity Board, Bangalore and Ors. AIR 2001 Karnataka 30, their Lordship of the Karnataka High Court had distinguished the case of Ashwani Kumar (supra) on the ground that the Apex Court in the case Ashwani Kumar was dealing with the circulars issued by the Punjab State Electricity Board in the matter of resolving disputes between the Board and the consumer. Therefore, the Apex Court had not established a legal principle to be applied carte blanche. Since the facts of Ashvvani Kumar's case (supra) are different from the facts of the present case, the former is inapplicable to the present case. Therefore, the preliminary objection raised by the counsel for the respondent on the basis of Ashvvani Kumar's case is without merit.
10. The appellant certain has a right to approach the civil court for resolving the dispute with the Board. Admittedly, but for the notice and the supplementary demand, the appellant has been paying his electricity bills regularly to the Board. The appellant has paid the said bills till the meter was disconnected after the dismissal of the complaint by the learned Forum. Moreover, the bills prior to March 2003 clearly show that the normal range of consumption was around 700 units. Similar is the situation during the 2004 period. During 2005, if course, the consumption has increased to 1522 units. But, the units claimed to be consumed in 2003 are a matter of dispute a matter of evidence. The civil Court would have to decide the issue of alleged theft/misuse of power after recording the evidence. Since the consumption of power has shown a consistent patter both during the pre and post 2003 period, the appellant has a strong prima facie case in his favour with regard to non-tempering of the meter. Moreover, a citizen has a right to live with human dignity. Today, electricity is not a luxury, but a dire necessity, Therefore, the supply of electricity is the duty of the State. Of course, the people don't have the right to misuse or to abuse the supply of electricity. But, as electricity is a basic requirement of every person, the balance of convenience is also in the favour of the appellant. In case the electricity connection is not restored, the appellant and his family members would be forced to live without an essential infrastructure facility. On the other hand, the respondent is entitled to recover the amount claimed by them, provided they can substantiate their case by cogent evidence. Till the civil Court comes to its final decision, the respondent would have to wail for their dues.
11. In the result this appeal is allowed. The respondent is directed to restore the electricity connection and to permit the appellant to use the said connection provided the appellant pays the current running electricity bills. Moreover, as the respondent have a right to recover its dues, if any, at the earliest, the trial Court is directed to expedite the case and to give its decision within a period of six months from the date of the receipt of the certified copy of this judgment. There shall be no order as to cost.