Calcutta High Court (Appellete Side)
Cesc Limited & Ors vs Prem Chand Jaiswal on 17 June, 2020
Author: Hiranmay Bhattacharyya
Bench: Hiranmay Bhattacharyya
1
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
Before:
The Hon'ble Justice Hiranmay Bhattacharyya
C.O. 2991 of 2011
CESC Limited & Ors.
Vs
Prem Chand Jaiswal
For the petitioners : Mr. Subir Sanyal,
Mr. Ram Chandra Guchhait
.......advocates
For the opposite party : Mr. Gopal Chandra Ghosh..... advocate
Heard on : 28.02.2020
Judgment on : 17.06.2020
Hiranmay Bhattacharyya, J.:
The instant application under Article 227 of the Constitution of India is directed against an order dated July 12, 2011 passed by the Civil Judge, Junior Division, Third Additional Court, Alipore in Title Suit No. 306/405 of 1997 whereby the application under Order 7 Rule 11 of the Code of Civil Procedure filed by the petitioner herein was rejected.
The opposite party herein filed a suit for mandatory and permanent injunction alleging that the men, agent and employees of CESC Ltd. disconnected the supply of electricity abruptly 2 without serving any notice of disconnection of the meters upon the opposite party herein.
Subsequently, the plaint was amended incorporating the fact that the meters were disconnected by the CESC Ltd. alleging that there were tampering in the metering arrangement. By amending the plaint the opposite party also incorporated the prayers for declaration that the disconnection without previous notice is bad in law and for a further declaration that the demand raised by the petitioner is unsustainable and mandatory injunction for restoration and reconnection of the meters which were disconnected.
The petitioner filed an application under Order 7 Rule 11 of the Code of Civil Procedure (for short "the Code") praying for rejection of the plaint on the ground that the suit is barred under Section 145 of the Electricity Act 2003, (for short "the Act of 2003").
The opposite party herein contested the said application by filing a written objection contending that the bar of jurisdiction of the Civil Court as laid down under Section 145 of the Act of 2003 does not apply in case of pending suits as the said Act do not operate retrospectively.
The Learned Trial Judge by the order impugned rejected the application under Order 7 Rule 11 of the code upon holding that the Act of 2003 does not give any retrospective effect. It was further held that since the instant suit was filed in the year 1997 i.e. prior to the coming into force of the Act of 2003, the 3 jurisdiction of the Civil Court cannot be taken away by the Act of 2003.
Being aggrieved against the order dated July 12, 2011, the petitioners have preferred the instant application.
Mr. Sanyal, the learned advocate for the petitioners submitted that in view of the provisions laid down in Section 185 (2) of the Act of 2003 the disconnection of the meters of the opposite party by the petitioner herein on the ground of tampering in the metering arrangement should be deemed to be an action taken under the provisions of the Act of 2003. He submitted that such dispute is required to be decided under Section 126 and 127 of the Act of 2003. He further submitted that Section 145 of the Act of 2003 lays down that no Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Assessing Officer referred to in Section 126 or an appellate authority referred to in Section 127 is empowered by or under that Act to determine.
Mr. Sanyal placed reliance upon an unreported decision of a Division Bench of this Court passed in FAT No. 3038 of 2006 subsequently renumbered as FMAT No. 2725 of 2007 with CAN 7666 of 2006 (Smt. Madhabi Mukherjee versus CESC Ltd.) in support of his submission that Civil Courts do not have jurisdiction to decide a dispute on the alleged ground of pilferage even if a suit is instituted prior to the coming into force of the Act of 2003.
Mr. Sanyal further argued that the actions taken by the electricity authorities under the old Act have been saved by virtue 4 of the provisions laid down in Section 185(2)(a) of the Act of 2003. In support of such submission he referred to a decision in the case of the Executive Engineer (Distribution), Tamilnadu Electricity Board, Thiruchendur & Others versus S.J. Gayas & Ors reported at AIR 2008 Madras 148.
Mr. Ghosh, the learned advocate for the opposite party, submitted that the disconnection as well as filing of the suit was long prior to the coming into force of the Act of 2003. He submitted that the Act of 2003 is prospective in nature and no retrospective effect of such Act was given by the legislature. Thus, neither the Assessing Officer referred to in Section 126 nor the Appellate Authority referred to Section 127 of the Act of 2003 shall have jurisdiction to assess the electricity charges payable by the opposite party herein on the ground of unauthorised use of electricity. He submitted that when the Civil Court's jurisdiction to decide the disputes involved in the instant suit was not barred under the provisions of the Electricity Act 1910 the instant suit shall continue even after the coming into force of the Act of 2003. He further submitted that since the Electricity Act 2003 also does not expressly intend abatement of pending suits, the provisions of Section 6 of the General Clauses Act shall apply in the instant case as there is no contrary intention thereto in the Act of 2003 and as such there is no bar in proceeding with the instant suit. He also contended that the Act of 2003 also do not provide for transfer of the proceedings pending before the Civil Court as on the date of coming into force of the Act of 2003 to any other forum.
5Thus, according to Mr. Ghosh, the jurisdiction of the Civil Court to proceed with the suit pending as on the date of coming into force of the Act of 2003 cannot be said to be barred in view of Section 145 of the said Act.
Mr. Ghosh referred to a judgment of the Supreme Court of India in the case of Nahar Industrial Enterprises Limited v. Hong Kong and Shanghai Banking Corporation reported at (2009) 8 SCC 646 in support of his submission that the jurisdiction of a Civil Court is plenary in nature and that it will have jurisdiction to determine all disputes of civil nature unless the same is barred expressly by a statute or by necessary implication.
The issue whether a civil suit instituted prior to the coming into force of the Act of 2003 can be proceeded with after the said Act came into force has already been settled by a Division Bench of this Court in the case of Madhabi Mukherjee (supra) wherein Their Lordships held as follows:
".............................. we find that although the suit was filed prior to the coming into operation of the Electricity Act, 2003, as provided in sub-section 2 of Section 185 thereof notwithstanding the repeal of the Indian Electricity Act, 1910, the Electricity (Supply) Act, 1948 and the Electricity Regulatory Commissions Act, 1998, anything done or any action taken or purported to have been done or taken including any rule, notification, inspection, order or notice made or issued or any appointment, confirmations or declaration made or any license, permission, authorization or exemption granted or any document or instrument executed or any direction given under the repealed laws shall, in so far as it is not 6 inconsistent with the provisions of the Act of 2003 should be deemed to have been done or taken under the corresponding provision of 2003 Act.
According to section 126 of the Act of 2003 in respect of any allegation of pilferage of electricity, those are to be dealt with in accordance with the provisions incorporated therein and against the order passed under Section 126 provision is made for appeal to the appellate authority under section 127 of the Act.
Section 145 of the Act specifically excludes the jurisdiction of the Civil Court to entertain any suit or proceeding in respect of any matter which an Assessing officer referred to in section 126 or an appellate authority referred to in section 127 is empowered by the Act of 2003 to determine and no injunction should be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred under the Act of 2002.
On the basis of averment made in the plaint itself, the plaintiff having admitted that action taken by CESC authority is pursuant to the allegation of pilferage which is required to be decided under section 126 or by the appellate authority under section 127 of the Act, the Civil Court has lost jurisdiction to entertain or adjudicate such dispute and, therefore, the learned trial judge rightly rejected the plaint as the plaintiff herself has admitted in her plaint that the CESC authority have taken recourse to disconnection on the alleged ground of pilferage.
We, thus, find that appropriate remedy of the plaintiff lies under the provision of section 126 and 127 of the Act and the Civil Court has no jurisdiction to decide such dispute. "7
The Hon'ble Division Bench after taking into consideration the relevant provision of the Act of 2003 expressed the opinion that the Civil Court has lost jurisdiction to entertain and adjudicate the dispute regarding allegation of pilferage which is required to be decided by the Assessing Officer under Section 126 or by the appellate authority under Section 127 of the Act of 2003. Their Lordships were further pleased to hold that the jurisdiction of Civil Court in respect of pending suit was also barred.
The Counsel for the opposite party submitted that the instant matter may be referred to the Hon'ble the Chief Justice for constituting a larger bench to decide as to whether the Division Bench decision in the case of Madhabi Mukherjee (supra) can be said to be a valid precedent inasmuch as the same did not take into consideration the provisions of Section 6 of the General Clauses Act.
Mr. Ghosh further submitted that two substantial questions of law formulated by a Division Bench of this Court in the order dated September 25, 2019 passed in SAT No. 494 of 2016 [Sanat Kumar Ghosh versus The Station Superintendent (Station Manager), Dadpur Group Electricity Supply] at the time of admission of appeal are also important questions of law which are also to be considered by this Court to decide as to whether the jurisdiction of Civil Court in pending civil suits is barred. The following are the substantial questions of law -
8"Whether the provisions contained in Electricity Act, 2003 shall apply to a suit filed before coming in force of the said Act, when there is no provision relating to exclusion of jurisdiction of the Civil Court is incorporated in Indian Electricity Act, 1910?
1) Whether both the Courts below were justified in dismissing the suit relying on Section 145 of the Electricity Act, 2003, when the cause of action arose prior to coming in force of the said Act and the proceeding was pending as on the date of its promulgation? "
Mr. Ghosh relied on the judgments in the case of Gyan Singh and Others versus Guljar Singh and Others reported at (1988) 1 CLJ 389, Malati Santra and Others versus Nanda Dulal Banik and Others reported at AIR 1994 (CAL) 229, Murari Kumar Saraf versus Sri Jagannath Shaw reported at AIR 1994 (Cal) 205 and Basil Jarret versus Jagabanndhu Mondal and Others reported at 2004 (2) CLJ (CAL) 64 in support of his submission that a Single Bench can refer a matter to the Hon'ble the Chief Justice for constitution of a Larger Bench for reconsideration of an issue decided by a Division Bench.
In reply, Mr. Sanyal relied upon a judgment of the Special Bench of this Court in the case of Ahmmad Hussain Sekh versus State of West Bengal and Others reported at 2002(1) CLJ 115 and submitted that a Division Bench decision is binding on a judge sitting singly and a single judge cannot refer a case to the Hon'ble the Chief Justice for constitution of a Larger Bench if 9 there would be an occasion to differ from the Division Bench judgment.
Let me now decide as to whether a Single Judge can refer a matter to the Hon'ble the Chief Justice for constitution of a larger bench for reconsideration of a decision rendered by the Division Bench.
In Gyan Singh (supra), a Single Judge held that an order of interim injunction granted by the Lower Appellate Court during the pendency of the Miscellaneous Appeal filed before it is an appealable order and a revisional application is not maintainable.
Another Single Judge in Murari Kumar Saraf (supra) held that an order of injunction passed by the lower appellate court in a Miscellaneous Appeal is an order which is covered under the prohibition of Section 104(2) of the Code and against such an order further appeal does not lie. The Hon'ble Judge further held that a revisional application challenging such an order passed by the Lower Appellate Court is maintainable. His Lordship was further pleased to hold that the judgment in Gyan Singh (supra) is a judgment per incuriam.
In Malati Santra (supra), it was held that a revisional application challenging an interim order refusing the prayer for injunction by the Lower Appellate Court during the pendency of the Miscellaneous Appeal filed before it is incompetent as the impugned order is an appealable one.
In the case of Basil Jarret (supra), a preliminary objection was raised before a Single Judge as to the maintainability of the revisional application from an order of injunction passed by a 10 Lower Appellate Court under Order 39 Rule 1 &2 of the Code during the pendency of the Miscellaneous Appeal. His Lordship while deciding the preliminary objection found that two conflicting opinions were expressed by two Hon'ble Single Judges. The Hon'ble Single Judge noted the divergence and opined that the matter should be placed before the Hon'ble the Chief Justice for referring the matter before a Larger Bench. The Hon'ble the Chief Justice assigned the civil revisional application to the Division Bench.
In Basil Jarret (supra), a Single Judge found two confliction opinions expressed by two Hon'ble Single judges. In such a case, the Judge sitting singly was justified in referring the matter to the Hon'ble the Chief Justice for placing the matter before a Larger Bench. The question whether a Single Judge can differ with a decision rendered by a Division Bench was not the matter in issue in Basil Jarret (supra) and as such the aforesaid judgments cited by Mr. Ghosh have no manner of application to the facts of the instant case.
In Ahamed Hossain SK (supra), the Hon'ble Single Judge was unable to accept the decisions-one rendered by a Division Bench and the other by a Single Judge and referred the matter to the Hon'ble Chief Justice for constitution of a Larger Bench for reconsideration of the matter indicated in the order. The Hon'ble Acting Chief justice referred the matter to the Special Bench. The Hon'ble Special Bench held that a Single Judge cannot differ from a decision of a Larger Bench except when that decision or a judgment relied upon in that decision is specifically overruled by 11 a Full Bench or the Supreme Court. The Hon'ble Special Bench in paragraphs 34, 35 and 44 of the said judgment held thus-
"34. The principles that emerge from the decisions, cited supra, are that the decisions of the Supreme Court are binding on all the Courts, Article 141 of the Constitution embodies the rule of precedent. A Special Bench/Full Bench judgment of that High Court is binding on the question of law decided by it and despite the same if any Division Bench holds to the contrary then a Division Bench has the authority to differ with the Division Bench which has taken a view contrary to the Special Bench judgment. A Single Judge of a High Court is bound by the judgment of another Single Judge and a fortiori judgments of Benches consisting of more judges than one. So also, a Division Bench of two Judges of a High Court is bound by judgments of another Division Bench of two Judges and Full Bench. A Single Judge or Benches of High Courts cannot differ from the earlier judgments of co-ordinate jurisdiction merely because they hold a different view. When a Division Bench of two Judges differs from the judgment of another Division Bench of two Judges, it has to refer the case to a Full Bench. A Single Judge cannot differ from a decision of a Larger Bench except when that decision or a judgment relied upon in that decision is specifically overruled by a Full Bench or the Supreme Court. However, if the decision of the Larger Bench is inconsistent with the law laid down by a full Bench or the Supreme Court, the proper course to the Single Judge would be to refer the matter to the Division Bench.12
35. In my considered view, therefore, it is only within the narrowest field that a judgment of a Larger Bench can be referred for reconsideration.
44. U.C. Banerjee, J.( As His Lordship then was) in General Electric Co. of India Ltd. v. The Fifth Industrial Tribunal of West Bengal, reported in 1985 (2) CHN 417, relying upon the observations in the case of Hind Tin Industries (supra), observed as under, "While it is true that while dealing with the matter in Graphite India's case (84 CWN 239) this Court's attention was not drawn to the decisions referred to earlier in this judgment, but in my view a Judge, sitting singly, is bound by the Division Bench judgment and as such I am unable to express any other opinion but to follow the opinion expressed in the case of Graphite India.
A suggestion has been made from the bar that the matter ought to be referred to a Larger Bench, but I am not in a position to accept the contention as the rules of our High Court do not permit a Judge sitting singly to refer the matter to the learned Chief Justice for constituting a Larger Bench, even if there be an occasion to have a difference of opinion. In this context reference may be made to the decision of this court in the case of Hind Tin Industries v. State, reported in 82 CWN 936." "
The Learned Counsel for the opposite party could not place any contrary view of a larger Bench of this Court or of the Supreme Court with that of Madhabi Mukherjee (supra). The Learned Counsel for the opposite party has also not been able to satisfy this Court that the guidelines and principles for reference 13 at the instance of a Single Judge as laid down in Ahamed Hossain SK (supra) has been satisfied in the instant case.
For the reasons as aforesaid I am unable to accept the contention of Mr. Ghosh that the instant civil revisional application is to be referred to the Hon'ble the Chief Justice for placing the matter for reconsideration before a Larger Bench.
In the plaint of the instant suit the opposite party alleged that the CESC Ltd. disconnected the supply of electricity on an allegation of tampering in the metering arrangement. The facts of the instant case is similar to the facts of the case in Madhabi Mukherjee (supra) wherein the Division Bench of this Court held that the Civil Court has lost jurisdiction to entertain or adjudicate the dispute when the plaintiff have admitted in the plaint that the CESC authorities have taken recourse to disconnection on the alleged ground of pilferage. Thus, in view of the decision of the Division Bench of this Court in Madhabi Mukherjee (supra) I hold that the Civil Court has no jurisdiction to decide the disputes involved in the instant suit. After going through the statements contained in the plaint of the instant suit particularly the admission that the supply was disconnected on the alleged ground of pilferage, I hold that the instant suit is barred under Section 145 of the Electricity Act, 2003 and the plaint is liable to be rejected.
In Nahar Industrial (supra), the Hon'ble Supreme Court of India while interpreting the various provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 held that the Civil Court's jurisdiction is barred only in regard to 14 applications by a bank or a financial institution for recovery of its debts. It was further held therein that the jurisdiction of Civil Courts is not barred in regard to any suit filed by a borrower or any other person against a bank for any relief.
The Hon'ble Division Bench in the case of Madhabi Mukherjee (supra) after taking into consideration the relevant provisions of the Electricity Act of 2003, on identical facts, held that the Civil Court has lost jurisdiction after the coming into operation of the Act of 2003. Though it is true that the questions relating to applicability of the provisions of Section 6 of the General Clauses Act or as to whether the provisions contained in the Electricity Act, 2003 shall apply to a suit filed before the coming into force of the said Act when there is no provisions relating to exclusion of jurisdiction of the Civil Court incorporated in the Indian Electricity Act, 1910 were not considered by the Hon'ble Division Bench in Madhabi Mukherjee (supra), yet I am unable to express any other opinion but to follow the opinion expressed in the said judgment as the Division Bench judgment is binding on a judge sitting singly.
Whether a civil suit challenging the disconnection of supply of electricity on an allegation of tampering of metering arrangement instituted prior to the coming into force of the Electricity Act, 2003 shall continue or shall abate automatically was not in issue in the decision rendered by the Madras High Court in Gayas (supra) As such the said decision has no manner of application in the matter of deciding the issue involved herein.
15The impugned order thus suffers from infirmity and the same is accordingly set aside. The application under Order 7 Rule 11 of the Code filed by the dependant/petitioner herein before the court below is allowed. Consequently, the plaint of Title Suit No. 306/405 of 1997 is rejected.
CO No. 2991 of 2011 is allowed without however any order as to costs.
Registry is directed to communicate this order to the Court below.
Urgent photostat certified copies, if applied for, be supplied to the parties upon compliance of all formalities.
(Hiranmay Bhattacharyya, J.)