Madras High Court
A.R.V.Jegadeesan vs The Assistant Engineer on 27 January, 2011
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 27/01/2011 CORAM THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR S.A(MD)NO.26 of 2011 and M.P(MD)No.1 of 2011 A.R.V.Jegadeesan ...Appellants vs 1. The Assistant Engineer, Tamil Nadu Electricity Board, Sulakkarai, Virudhunagar, Virudhunagar District. 2. The Executive Engineer, Tamil Nadu Electricity Board, Sulakkarai, Virudhunagar, Virudhunagar District. 3. The Superintending Engineer, Tamil Nadu Electricity Board, Virudhunagar District, Virudhunagar. ...Respondents. PRAYER Second Appeal filed under Section 100 of Civil Procedure Code, praying this Court to set aside the judgment and decree made in A.S.No.27 of 2008,dated 20.07.2009, on the file of the Subordinate Judge, Sivakasi, reversing the judgment and decree made in O.S.No.18 of 2007, dated 07.03.2008, on the file of the District Munsif, Sattur. !For Appellant ... M/s.S.Subbiah ^For Respondents... M/s.M.Suresh Kumar :JUDGMENT
The plaintiff in O.S.No.18 of 2007, on the file of the court of District Munsif, Sattur is the appellant in the present second appeal. The defendants therein are the respondents in the present second appeal. The respondents herein are the Officers of the Tamil Nadu Electricity Board. On inspection, the Inspecting authority of the Tamil Nadu Electricity Board found that the electricity connection given to the appellant/plaintiff for agricultural purpose was used for another purpose, namely commercial purpose and hence, submitted a report on 21.06.2003, a xerox copy of which has been marked as Ex.A1. When a copy of the said report was supplied to the appellant/plaintiff, the appellant/plaintiff submitted a written objection, dated 11.10.2003, a copy of which has been marked as Ex.A2. After considering the objections and affording an opportunity, the second respondent herein/second defendant passed an order on 24.02.2004, directing the appellant/plaintiff to pay a sum of Rs.2,500/- towards damages and also directing modification of the tariff from one for agricultural purpose to one for commercial purpose. As against the said order of the second respondent/second defendant, the appellant/plaintiff herein filed an appeal under Section 127 of the Electricity Act to the third respondent/third defendant. A copy of the appeal petition has been marked as Ex.A2. After enquiry, the third respondent/third defendant passed an order confirming the order passed by the second respondent/second defendant. Therafter, the appellant seems to have preferred a further appeal to the Chief Engineer, Tamil Nadu,Electricity Board, Tirunelveli and at the same time filed the above suit O.S.No.18 of 2007, on the file of the District Munsif, Sattur suit for: a declaration that the proceedings of the third respondent bearing proceeding No.2/2004-2005 is null and void; for a consequential relief of permanent injunction restraining the respondents/defendants, their men and agents from in any way disconnecting the service connection of the appellant/plaintiff bearing S.C.No.313 and for costs.
2. The suit was resisted by the respondents/defendants denying the factual allegations made by the appellant/plaintiff regarding the user of electricity and also contending that such a suit in a civil court was barred by the provisions of the Electricity Act.
3. The learned trial judge, after trial, held that the suit was not maintainable as it was barred under Section 145 of the Electricity Act. As against the said decree of the trial court dated 07.03.2008, the appellant herein/plaintiff preferred an appeal on the file of the learned Sub-ordinate Judge, Sivakasi as A.S.No.27 of 2008. The learned first appellate Judge, namely the Sub-ordinate Judge, Sivakasi, concurred with the view taken by the trial judge and accordingly dismissed the appeal confirming the decree passed by the trial court under which the suit of the appellant/plaintiff stood dismissed. After having failed in both the courts below, the appellant/plaintiff has knocked at the doors of this Court with the present second appeal.
4. The submissions made by Mr.S.Subbiah, learned counsel for the appellant were heard. The memorandum of second appeal, copies of judgments of the courts below and other documents produced in the form of typed-set of papers were not perused.
5. The short point and the alleged substantial question of law that arises for consideration in the second appeal is:
"Whether a suit in a civil court against the order passed by the Assessing Officer under Section 126 of the Electricity Act or an order passed by the appellate authority under Section 127 of the Electricity Act is not barred by the provisions of the Electricity Act, especially by Section 145 of the Electricity Act?".
6. The learned counsel for the appellant would contend that though Section 145 of the Electricity Act provides a bar for entertaining a suit against the order of the Assessing Officer or the appellate authority, the said bar is confined to the relief of injunction alone and that when the order of such authority is challenged to be null and void, it should be construed that the bar provided therein shall not be applicable to such a suit. It is also the contention of the learned counsel for the appellant that the bar provided under Section 145 of the Electricity Act is to be interpreted to mean that the Civil Court's jurisdiction to entertain a suit against the orders of the Assessing Officer or the appellate authority is barred when it is filed without exhausting the statutory remedy of appeal provided under the Act and that since the present suit has been filed after exhausting the remedy of appeal available under Section 127 of the Electricity Act, the bar provided under Section 145 is not attracted to the suit of the appellant/plaintiff. This Court is not in a position to countenance the above said argument advanced by the learned counsel for the appellant. For better appreciation, the entire text of Section 145 of the Electricity Act, 2003 is reproduced hereunder:
"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 as assessing officer referred to in Section 126 or an appellate authority 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."
7. It clearly refers to the matters regarding which power is given to the Assessing Officer under Section 126 and to the appellate authority under Section 127 as the matters that are excluded from the scrutiny of the civil court in a suit. Not only referring to the two provisions viz., Section 126 and 127 under which powers are given to the assessing officer and the appellate authority for the exclusion of such matters from the jurisdiction of the civil court, Section 145 of the Electricity Act also brings the matters within the bar provided therein. Matters regarding which the adjudicating officer appointed under the Act is empowered to determine. We are not concerned with the other clause, relating to the matters in which an Adjudicating Officer appointed under the Act or empowered or under the Act to determine for the simple reason, the case on hand clearly falls under the definition of "matters regarding which Assessing Officer under Section 126 and the appellate authority under Section 127 are given power to determine."
Section 126 of the Act reads as follows:
"126. Assessment.--(1) If on an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found connected or used, or after inspection of records maintained by any person, the assessing officer comes to the conclusion that such person is indulging in unauthorised use of electricity, he shall provisionally assess to the best of his judgment the electricity charges payable by such person or by any other person benefitted by such use.
(2) The order of provisional assessment shall be served upon the person in occupation or possession or in charge of the place or premises in such manner as may be prescribed ((3) The person, on whom an order has been served under sub-section(2), shall be entitled to file objections, if any, against the provisional assessment before the assessing officer, who shall, after afforing a reasonable opportunity of hearing to such person, pass a final order of assessment within thirty days from the date of service of such order of provisional assessment, of the electricity charges payable by such person.) (4) Any person served with the order of provisional assessment may, accept such assessment and deposit the assessed amount with the licensee within seven days of service of such provisional assessment order upon him.
((5) If the assessing officer reaches to the conclusion that unauthorised use of electricity has taken place, the assessment shall be made for the entire period during which such unauthorised use of electricity has taken place and if, however, the period during which such unauthorised use of electricity has taken place cannot be ascertained, such period shall be limited to a period of twelve months immediately preceding the date of inspection.) (6) The assessment under this section shall be made at a rate equal to (twice) the tariff applicable for the relevant category of services specified in subsection (5).
Explanation.-- For the purposes of this section,--
(a)"assessing officer" means an officer of a state Government or Board or licensee, as the case may be, designated as such by the State Government;
(b)"Unauthorised use of electricity" means the usage of electricity--
(i) by any artificial means; or
(ii) by a means not authorised by the concerned person or authority or licensee; or
(iii) thorugh a tampered meter; or ((iv) for the purpose other than for which the usage of electricity was authorised; or
(v) For the premises or areas other than those for which the supply of electricity authorised;)"
8. As against the order of assessment made under Section 126, an appeal is provided under Section 127 of the Act. Section 127 reads as follows:
"127. Appeal to appellate authority.--(1) Any person aggrieved by the final order made under Section 126 may, within thirty days of the said order, prefer an appeal in such form, verified in such manner and be accompanied by such fee as may be specified by the State Commission, to an appellate authority as may be prescribed.
(2) No appeal against an order of assessment under sub-section (1) shall be entertained unless an amount equal to half of the assessed amount is deposited in cash or by way of bank draft with the licensee and documentary evidence of such deposit has been enclosed along with the appeal. (3) The appellate authority referred to in sub-section(1) shall dispose of the appeal after hearing the parties and pass appropriate order and send copy of the order to the assessing officer and the appellant.
(4) The order of the appellate authority referred to in sub-section(1) passed under sub-section(3)shall be final.
(5) No appeal shall lie to the appellate authority referred to in sub- section(1) against the final order made with the consent of the parties. (6) When a person defaults in making payment of assessed amount, he, in addition to the assessed amount,shall be liable to pay, on the expiry of thirty days from the date of order of assessment, an amount of interest at the rate of sixteen per cent per annum compounded every six months."
9. Admittedly, the decision made by the second defendant under Section 126 of the Act was challenged before the third respondent under Section 127 of the Electricity Act. The appeal was also decided against the appellant herein/plaintiff. It is petent that not only the second respondent and the third respondent have been conferred with the powers to make the determination and pass orders under Section 126 and 127 respectively, but, also the said powers were invoked and decisions were obtained from them. The language of Section 145 is so clear and unambiguous that no civil court, in respect of any matter which an Assessing Officer referred to under Section 126 or an appellate authority under Section 127, is empowered to determination. Therefore, there is no need to refer to any of the precedents to arrive at the conclusion that the said section will operate as a total bar for the present suit in question. It should also be noticed that besides seeking declaration that the impugned order is null and void, the appellant/plaintiff has also sought for an injunction not to disconnect the service connection. The same is covered by the later part of Section 145. In that respect also, it should be held that the suit in respect of the either of the reliefs shall stand barred by the provisions under Section 145 of the Electricity Act.
10. In this regard, the attention of this Court was drawn to the judgment of a learned Single Judge of this Court sitting on this Bench(Madurai Bench of Madras High Court) made in The superintending Engineer, Virudhunagar Electricity Distribution Circle, Tamil Nadu Electricity Board, Virudhunagar .vs. Murali Raja reported in 2008 (3) CTC 395. The learned Single Judge of this Court in the said case, after referring to three earlier judgments of other single Judges of this Court and also the judgment of the Honourable Apex Court in Punjab State Electricity Board .vs. Aswini Kumar reported in 1997 (5) SCC 120 has given a clear finding that the suit of the present nature is not maintainable since barred by Section 145 of the Electricity Act, 2003. The following excerpt from the judgement of the Honourable Apex Court in Punjab State Electricity Board .vs. Ashwani Kumar reported in 1997 (5) SCC 120 was also referred to by the learned single Judge and this Court also, for better appreciation deems it fit to reproduce the same which runs as follows:
"8. The question then arises whether the Civil Court would be justified in entertaining the suit and issue injunction as prayed for?. It is true, as contended by Shri Goyal, learned Senior Counsel, that the objections were raised in the written statement as to the maintainability of the suit but the same were given up. Section 9 of the CPC provides that the Civil Court shall try all suits of civil nature, subject to pecuniary jurisdiction, unless their cognizance is expressly or by necessary implication barred. Such Suit would not be maintainable. It is true that ordinarily, the Civil Court has jurisdiction to go into and try the disputed questions of civil nature, where the fundamental fairness of procedure has been violated. 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 exclused. As a consequence, the Civil Court shall not be justified in entertaining this Suit and giving the declaration without directing the party to avail of the remedy provided under the Indian Electricity (Supply) Act and the Instructions issued by the Board in that behalf from time to time as stated above."
9. Shri Goyal has contended that the authorities do not hear the parties nor give a reasoned order. Therefore, the parties cannot be percluded to avail of the remedy of a Suit. We cannot accept such a broad and genaralized proposition. When the provision for Appeal by way of review has been provided by the statutory instructions, and the parties are directed to avail of the remedy, the authorities are enjoined to consider all the objections, raised by the consumer and to pass, after consideration, the reasoned order in that behalf, so that the aggrieved consumer, if not satisfied with the order passed by the Board/Appellate Authority, can avail of the remedy available under Article 226 of the Constitution. Therefore, by necessary implication, the appropriate competent authority should hear the parties, consider their objections and pass the reasoned order, either accepting or negativing the claim. Of course it is not like a judgment of a Civil Court. It is then contended that the respondent has been subjected to pay huge amount of bill in a short period; hence, it is a case for interference. We find no force in the contention. May be that due to the advice given by the counsel, the respondent obviously has availed of the remedy of the Suit, instead of departmental Appeal. In our view, by necessary implication the suit is not maintainable. Therefore, the respondent is at liberty to avail the remedy of Appeal within six weeks from today and raise the factual objections before the Board and the Board/Appellate Authority would consider and dispose of them, as indicated earlier, on merits."
11. The said judgment of the Honourable Apex Court makes it abundantly clear that Electricity Act, especially Section 145 of Electricity Act, 2003, bar a suit against an order passed under Section 126 or 127 of the Act by the Assessing Officer or the appellate authority. The learned Single Judge while deciding the earlier matter has also give additional reasons for arriving at such a conclusion which I am inclined to accept it to be my view also. There is no scope for differing from the view taken by my learned brother Judge in the earlier judgment which was brought to my notice.
12. For all the reasons stated above, this Court comes to the conclusion that the suit of the appellant/plaintiff itself is not maintainable and hence, on that short point alone, the second appeal deserves to be dismissed.
13. Accordingly, the Second Appeal is dismissed.
Consequently, connected Miscellaneous Petition is dismissed. No costs.
vsn To
1. The Subordinate Judge, Sivakasi.
2. The District Munsif, Sattur.