Gujarat High Court
Gujarat Electricity Board & vs Priyal Textiles on 3 May, 2016
Author: Mohinder Pal
Bench: Mohinder Pal
C/SA/87/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND APPEAL NO. 87 of 2015
With
CIVIL APPLICATION NO. 5310 of 2015
In SECOND APPEAL NO. 87 of 2015
With
SECOND APPEAL NO. 111 of 2015
With
CIVIL APPLICATION NO. 5665 of 2015
In SECOND APPEAL NO. 111 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE MOHINDER PAL Sd/-
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1 Whether Reporters of Local Papers may be allowedNO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy ofNO
the judgment ?
4 Whether this case involves a substantial question ofNO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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GUJARAT ELECTRICITY BOARD & 1....Appellant(s)
Versus
PRIYAL TEXTILES....Respondent(s)
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Appearance:
MR DIPAK R DAVE, ADVOCATE for the Appellant(s) No. 1 - 2
MR NA SHAIKH, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE MOHINDER PAL
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C/SA/87/2015 JUDGMENT
Date : 03/05/2016
ORAL JUDGMENT
1. Present appeals have been preferred by the appellant- Gujarat Electricity Board ("the Board" for short) against the judgment and order passed by learned 3rd Additional District Court, Bharuch in Regular Civil Appeals No.121 of 2005 and 128 of 2005 both dated 18.9.2013, as both these appeals preferred by the Board have been dismissed. The following substantial questions of law have been framed in this case:
"(a) Whether in a suit filed by consumer against supplementary electricity bill issued under Condition No.34 of the Conditions of Supply, Civil Court has jurisdiction to pass permanent injunction?
(b) Whether suit of the plaintiff for declaration and permanent injunction against supplementary electricity bill issued for electricity theft could have been entertained by Civil Court?
(c) Whether Courts below are justified in overlooking experts evidence, lab report and Condition no.4 while substituting the finding with regard to electricity theft? "
2. Brief facts of these cases are that on 06.12.1992 officers of the Board made a surprise checking of the premises of M/s.Priyal Textiles bearing Consumer No.01/2/203. During the checking, it was found that M/s.Priyal Textiles was indulging in theft of electricity. The meter installed at the premises was removed and was sent to laboratory. In the laboratory, it was found that the said consumer had Page 2 of 6 HC-NIC Page 2 of 6 Created On Thu May 05 01:22:35 IST 2016 C/SA/87/2015 JUDGMENT tampered with the meter and in this way was committing theft of electricity. On the basis of the laboratory report, a demand notice for Rs.5,60,899.91 dated 301.12.1992 was issued to the plaintiff. As the plaintiff failed to pay this amount, supply of electricity was discontinued and resultantly they have approached the trial Court by filing civil suit.
3. The original defendant, i.e. the Board, also approached the trial Court by way of Civil Suit No.209 of 1995 for recovery of electricity amount of Rs.5,60,899.91. The trial Court decided the suit preferred by the consumer in their favour by holding that the alleged theft of electricity was not proved and accordingly decreed the suit of the consumer while dismissing the suit of the Board. Aggrieved from this decision, two appeals came to be preferred before the appellate Court. The appellate Court vide impugned judgment dated 18.09.2013 decided both the appeals in favour of the consumer M/s.Priyal Textiles.
4. It will be necessary to mention here that earlier also, the appeals remained pending before this Court, however, later on they were transferred to the appellate Court because of pecuniary jurisdiction of that Court. This is how the present appeals have been put up before this Court for decision.
5. At the very outset, learned counsel for the appellant, i.e. Board, has submitted that the present was a case of theft of electric Page 3 of 6 HC-NIC Page 3 of 6 Created On Thu May 05 01:22:35 IST 2016 C/SA/87/2015 JUDGMENT energy and as alternative remedy has been provided under the Indian Electricity Act, Civil Court has no jurisdiction to entertain the suit. According to him, proper remedy for the original plaintiff was to approach the Appellate Authority and not the Civil Court.
6. On the other hand, learned counsel for the respondent has submitted that since the Board itself has chosen to approach the Civil Court for recovery of their dues, now they cannot take up the plea that Civil Court has no jurisdiction to entertain this matter. He has prayed for dismissal of the appeals preferred by the appellant Board.
7. I have considered the submissions made by both sides. Admittedly, checking of the premises of M/s.Priyal Textiles was conducted on 06.12.1992. After the checking, the meter installed at the premises of M/s.Priyal Textiles was sent to the laboratory and it has been found that the meter was tampered with and there was theft of electricity. Once there is a case of theft of electric energy, there will be no jurisdiction of the Civil Court to decide that controversy as alternative remedy is provided under the Indian Electricity Act. This controversy has been put to rest by the Supreme Court in case of Punjab State Electricity Board, Patiala v. Ashwani Kumar reported in (1997) 5 SCC 120, in which the Court has held as under:
"Electricity Act, 1910 - Electricity (Supply) Act, 1948 - Constitution of Page 4 of 6 HC-NIC Page 4 of 6 Created On Thu May 05 01:22:35 IST 2016 C/SA/87/2015 JUDGMENT India - Art.226 - Code of Civil Procedure, 1908 Sec.9. Connection of supply of electrical energy given to respondent - alleged tampering with metre - new meter was installed - respondent filed suit challenging bill raised by appellant - maintainability of suit - hearing of aggrieved consumers - jurisdiction of Civil Court - alternative remedy available - held, suit is not maintainable - respondent allowed to pay bills in six monthly installments - six weeks time granted - appeal allowed..."
8. This judgment has been further followed by various other High Courts. While dealing with the matters concerning theft of electric energy, even our own High Court in case of Vrajlal Devjibhai v. Gujarat Electricity Board in First Appeal No.2506 of 2003 decided on 24.08.2004 has followed the aforementioned judgment of the Supreme Court and held that the matter required to be adjudicated by the Appellate Committee constituted under Condition No.34 of the Indian Electricity (Supply) Act.
9. Learned counsel representing M/s.Priyal Textiles has also referred to a decision of the Apex Court in case of Municipal Corporation of Delhi v. Ajanta Iron & Steel Company (Pvt.) Ltd. reported in AIR 1990 SC 882. However, facts of this case are totally different and are not applicable in the present case, as the present case pertains to theft of electric energy.
10. In view of the law laid down by the Apex Court and thereafter followed by various High Courts, the findings recorded by the trial Court as well as the appellate Court are bound to be Page 5 of 6 HC-NIC Page 5 of 6 Created On Thu May 05 01:22:35 IST 2016 C/SA/87/2015 JUDGMENT interfered with. Accordingly, Second Appeals No.87 of 2015 and 111 of 2015 preferred by the Board stand allowed. Since appeals of the appellant Board have been allowed, the finding recorded in Special Civil Suit No.208 of 1995 and the finding recorded in Regular Civil Appeal No.128 of 2005 are reversed and set aside, while the findings recorded in Regular Civil Suit No.4 of 1993 and in the appeal preferred thereafter are also reversed.
11. In view of the foregoing discussion, the substantial questions of law framed in these cases are answered in favour of the appellant Board.
12. Since the main appeals are disposed of, the Civil Applications do not survive and as such are disposed of.
Sd/-
(MOHINDER PAL, J.) KMGThilake) Page 6 of 6 HC-NIC Page 6 of 6 Created On Thu May 05 01:22:35 IST 2016