Andhra HC (Pre-Telangana)
S. Suvarnamma vs Andhra Pradesh State Electricity Board ... on 25 August, 2005
Equivalent citations: 2005(6)ALT780
JUDGMENT P.S. Narayana, J.
1. This second appeal is preferred by the unsuccessful plaintiff in both the Courts below against the Judgment and Decree dated 22-3-2004 made in A.S.No. 57 of 2002, on the file of the II Additional District Judge, Kadapa, confirming the Judgment and Decree dated 11-6-2002 made in O.S.33 of 1997 on the file of the Senior Civil Judge, Proddatur.
2. The appellant herein is the plaintiff and the respondents herein are the defendants in O.S.No. 33 of 1997.
3. For the purpose of convenience the parties are referred to as arrayed in the suit.
4. The defendants are the officials of APSEB. The appellant-plaintiff filed the above suit for declaration that the notice dated 9-2-1996 issued by the defendants to pay the arrears of Rs. 12,420/- as illegal and void and for damages with interest thereon and also for a mandatory injunction for restitution of service connection in S.C.No. 12254.
5. The brief averments in the plaint are as hereunder:
The plaintiff is the proprietary concern running 'Ganesh Plastic Industry at Dorasanipalli road Proddatur from October, 1988. The defendants suddenly without any advance notice disconnected the service connection on 22-5-1995. The plaintiff represented the matter before 4th and 6th defendants. But they have not considered and the plaintiff got issued a notice to the defendants. The defendants received the said notice. The 3rd defendant gave a reply without assigning any reason for the alleged disconnection, asking to pay amount of Rs. 12,420/-. Then once again plaintiff sent a notice marking copies to 4th and 5th defendants, but they have not restored the connection. Due to disconnection of service to the industry, the plaintiff suffered loss and plaintiff got issued a legal notice and defendant gave a reply with false pleas. The plaintiff suffered in total Rs. 90,400/- due to disconnection of service.
6. On the other hand, the 4th defendant filed a written statement, which is adopted by the defendants 3 to 6. They pleaded that the plaintiff has no locus standi to file the suit, and the said Ganesh Plastic industry is a partnership business. So the suit is not maintainable. The plaintiff has to prove that Ganesh Plastic Industry is a Registered Firm and partners authorized her to institute a suit. As per their record one S. Nagabhushana Rao, who is the husband of the plaintiff got suit service connection No. 12254 and 17841. In the written statement it is admitted that they disconnected the service connection on 2-2-1995 for non-payment of C.C. Charges and outstanding kept energy arrears of Rs. 2,12,196.25 ps. in respect of service connection 17841 of West Proddatur, they disconnected in pursuance of provision under Section (sic. condition) 42(3) of Andhra Pradesh State Electricity Board terms and conditions supplied to her. The same was known to the husband of the plaintiff. To circumvent, the husband of the plaintiff -Nagabhushana Rao created and got filed the suit through his wife as Proprietar of Ganesh Plastic Industry. They also pleaded that they gave suitable reply to the notice sent by her even to the notices. They further pleaded that Vigilance Anti-Power Theft Squad, Kadapa in their letter dated 20-2-1995, informed to disconnect the service connection of Ganesh Plastic Industry, because Sri Nagabhushana Rao committed theft of energy in respect of Krishna Plastic Industry, and they are empowered under the provisions of Andhra Pradesh State Electricity Board and the plaintiff did not sustain any loss. They mentioned the term under Section (sic. condition) 42.3(d) as "Any other sums payable to the Board under the contract of supply or the tariff and terms and conditions of supply notified by the Board under Section 49 of Electricity (Supply) Act, the Board may, without prejudice to its other rights, cause to be disconnected all or any of the other services of the consumer though such services be destruct (sic. distinct) and are governed by separate agreements and though no default occurred in respect thereof" and prayed to dismiss the suit.
7. On the strength of the pleadings before the original Court, the following issues were settled.
(1) Whether the plaintiff is entitled for mandatory injunction?
(2) Whether the plaintiff is entitled to recover the suit amount from the defendants?
(3) To what relief?
8. To substantiate the case of the plaintiff before the original Court, the plaintiff herself was examined as P.W.1 and documents Ex. A-1 to A-12 were marked. On behalf of the defendants, D.W.1 was examined and documents Ex.B-1 to B-5 were marked. Having heard both sides and on a perusal of the entire material available on record, the learned Senior Civil Judge, Proddatur dismissed the suit with costs. Being aggrieved of the same, the unsuccessful plaintiff carried the matter by way of appeal in A.S.No. 57 of 2002 before the II Additional District Judge, Kadapa.
9. The learned Additional District Judge settled the following points for consideration;
(1) Whether plaintiff has locus stendi to file a suit?
(2) Whether defendants are justified in disconnecting the service connection to Ganesh Plastic Industry Service connection No. 122554?
10. Having heard both sides and on a perusal of the material on record, the appellate Court answered the points commencing from paragraph Nos. 14 to 23 and ultimately dismissed the appeal with costs. Aggrieved by the same, the present second appeal had been filed by the unsuccessful plaintiff in both the Courts below.
11. Heard Sri L.J. Veera Reddy, learned Counsel appearing for the appellant-plaintiff.
12. Learned Counsel for the appellant-plaintiff had pointed out to the substantial questions of law, which had been raised in the second appeal in grounds 6-A and B and would contend that the disposal of the suit and the appeal on the ground of locus standi alone cannot be sustained. The learned Counsel would also contend that inasmuch as the original Court had not properly framed the issues and the appellate Court had also repeated the same illegality, the Judgments and decrees of both the Courts below are liable to be interfered with in the present second appeal.
13. Perused the material available on record.
14. At the out set it may be appropriate to have a glance at the substantial questions of law framed in the present second appeal.
6. (A) Whether both the Courts below are justified in not framing relevant issues in the case in consonance with provisions contained in Order XIV Rules 1 and 2 of C.P.C. when there is absence of exceptions contained in Order XIV Rule 2(a) and (b) of C.P.C.?
(B)Whether both the Courts below are justified in pronouncing the judgment only on the issue of locus standi of the plaintiff without framing any relevant issues and deciding the same in terms of Order XIV Rule 2(1) of C.P.C.
15. On a perusal of the findings recorded by both the Courts below it is clear that both the Courts had appreciated the evidence available on record and recorded concurrent findings and ultimately negatived the relief prayed for by the plaintiff.
16. It is no doubt true that the question of locus standi also had been dealt with by the original Court and points for consideration on the findings in relation thereto had been formulated by the appellate Court. This aspect had been argued in elaboration before this Court so as to substantiate the substantial questions of law raised in the present second appeal.
17. Order 14 Rule 2 of C.P.C. reads as hereunder:
2. (1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of Sub-rule (2), pronounce judgment on all issues.
(2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to-
(a) the jurisdiction of the Court, or
(b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.
18. Order 41 Rule 31 of CPC reads as hereunder:
The Judgment of the Appellate Court shall be in writing and shall state-
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled; and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein.
19. In the light of the careful reading of Order XIV Rule 2 CPC and Order XLI Rule 31 CPC and the issues and points for consideration framed by both the Courts below, this Court is well satisfied that both the Courts had not committed any illegality in this regard.
20. In the case of Usha Sales Ltd. v. Malcolm Gomes and Ors., .
at paragraph Nos. 11 and 12 it was observed as under:
"From the above it is easily seen that there is an obligation cast upon the Court that even though a case may be disposed of on a preliminary issue the Courts shall subject to the provision of Sub-rule (2) pronounce judgment on all issues. In other words, the obligation to decide a question of law as a preliminary issue if that decision disposes of the case or part of the case is no longer there. Similarly, the discretion to decide any other issue as a preliminary issue has been taken away totally from the Court. On the other hand, a duty is cast upon the Court that it must proceed to hear all the issues and pronounce judgment on the same.
There is, however, a small exception carved out to the above provision. The Court may try an issue relating to the jurisdiction of the Court or to the legal bar to the suit as a preliminary issue but this is more in the nature of a discretion rather than a duty and the Court is not bound to try any issue despite the provision contained in Sub-rule (2) of Rule 2 of Order 14 of the Code. The words "it may try" are clearly indicative of the fact that discretion is given to the Court and no duty is cast upon the Court to decide any issue as a preliminary issue.
21. In the case of Sunni Central Waqf Board and Ors. v. Gopal Singh Vishrad and Ors., (F.B.). the Full Bench speaking through S.S. Mathur J. held at paragraph Nos. 10 and 11 as follows:
Order 14 Rule 2 of the Code of Civil Procedure as it stood prior to the amendment made in the year 1976 read as follows:-
"Rule 2. Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined."
Under the above provision once the Court came to the conclusion that the case or any part thereof could be disposed of on the issues of law only it was obliged to try those issues first and the other issues could be taken up only thereafter, if necessity survived. The Court had no discretion in the matter. This flows from the use of the word "it shall try those issues first". Material change has been brought about in legal position by amended Order 14 Rule 2 which reads as follows:-
"Rule 2(1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall subject to the provisions of Sub-rule (2), pronounce judgment on all issues.
(2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to-
(a) the jurisdiction of the Court, or
(b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue."
(Emphasis supplied).
This amendment has been made by Act 104 of 1976 which came into effect on 1-2-1977.
The word "shall" used in old Order 14, Rule 2 has been replaced in the present Rule by the word "may". Thus now it is discretionary for the Court to decide the issue of law as a preliminary issue or to decide it along with the other issues. It is no longer obligatory for the Court to decide an issue of law as a preliminary issue.
22. Apart from this aspect of the matter, the liability of the consumer in the context of condition 42.3 of the terms and conditions of the supply had been dealt with in elaboration and concurrent findings had been recorded in this regard.
23. A Division Bench of this Court in Nagarjuna Rice & Flour Mill v. Andhra Pradesh State Electricity Board, Hyderabad and Anr., 1997 (2) An.W.R. 735 : 1996 (4) ALD 483 (D.B.). held at paragraph Nos. 5, 7 to 9 as follows:
"The learned Counsel for the petitioner has not advanced any arguments on the question whether the petitioner was liable to pay minimum charges after disconnection was effected even though a objection to that effect was taken in the affidavit in support of the writ petition; and rightly so, in view of the Judgment of the Supreme Court in Bihar State Electricity Board, Patna v. Green Rubber Industries (1) , wherein the Supreme Court held that the State Electricity Boards have the power to charge minimum charges even after disconnection of the service. The Supreme Court has held in that case that the rule of charging minimum guaranteed charges has been in vogue since long and that the agreement in that case wad not determined with the disconnection of supply and that the liability to pay the minimum guaranteed charges would continue till the determination of the contract and that therefore, the Board in that case was entitled to raise the bills and demand payment of minimum charges by the consumer and recover the same in accordance with law. In the present case also, the conditions clearly impose a liability on the consumer for payment of minimum charges so long as the agreement is subsisting. Condition 33 of the Conditions provides that minimum charges are required to be paid by the consumers and that they shall be paid by the consumer as specified in the tariffs for different categories of consumers, and that this obligation shall be absolute, and that the minimum charges will have to be paid by the consumer even if no electricity was actually consumed for any reason whatsoever and also if the charges for electricity consumed were less than the minimum charges, and that the minimum charges will be payable even if electricity was not consumed because supply has been disconnected by the Board because of non-payment of electricity charges, pilferage, other malpractices or for any other valid reason.
However, the main contention very strenuously advanced by the learned Counsel for the petitioner is that the petitioner was not served any bills for any of the months in respect of which the respondents claimed that amounts were due and payable by him towards consumption charges or minimum charges. It is his further contention that the Board was bound to send the bills and it was not for the petitioner to approach the Board for the purpose of ascertaining the amounts due and payable by him and then pay the same. According to the learned Counsel, if no bills were sent by the board, there was no duty on the petitioner to pay any amounts to the Board in respect of his service connection. The learned Counsel relies on Condition 32.1 which states that:
"The Board shall as far as possible, within 15 days after the expiration of each calendar month, cause to be delivered to every consumer, a bill of charges stating the amounts payable by the consumer towards charges for energy supplied and any other sum in connection with supply of energy by the Board."
The learned Counsel submits that this duty cast on the Board is absolute and that as this duty was not performed by the Board, the Board cannot find fault with the consumer in not paying the bills. On this basis, the learned Counsel very vehemently contents that the impugned notice is bad because no bills were issued at all to the petitioner after the disconnection was effected. He submits that in respect of monthly bills only a consolidated amount was mentioned in the impugned notice, and according to him that was not sufficient. On behalf of the learned standing counsel for the Andhra Pradesh State Electricity Board appearing for the respondents, Mr. Pramod relies on Condition 32.6 which was in force at the relevant time; and it is as follows:
"Bill will normally be sent by post or by hand delivery, but the Board takes no responsibility for loss in transit. The consumers shall notify the local office of the Board, if no bill is received. Non-receipt of the bills however, shall not entitle the consumer to delay payment of the bills beyond the due date.
(Explanation - For the purpose of this clause, local office shall mean the office from which the bill is issued)."
He also relies on condition 32.5 which provides that a consumer must present his bills at the time of payment without Which payment will not be accepted and of the consumer is unable to do so for any reason, a duplicate bill will be supplied to him within 3 days of his application in writing to that effect at the office of issue. This the learned Counsel for the petitioner counters by submitting that the question of consumer notifying the local office of the Board if no bill was received would arise only if in fact the bill was sent by post and yet was not received by the consumer. We find that this is a contention of despair and does not warrant any consideration. If the consumer did not receive the bill, he would not know whether the non-receipt was because the bill was not posted by the Board and was lost in transit or because the bill was never posted by the Board. The condition obviously requires that whenever a consumer does not receive a bill, he should notify the local office of the Board and apply for a duplicate bill so as to enable him to pay the billed amount as per Condition 32.5. This is made very clear and indubitable by Condition 32.6 itself which states in categorical terms that "non receipt of the bills however, shall not entitle the consumer to delay payment of the bills beyond the due date". It is obvious from this that a consumer can wait for a reasonable time when the bill is not received by him and thereafter should take the double of obtaining a duplicate bill for the payment of the consumption charges in respect of the energy consumed by him.
It is not the case of the petitioner that at any time he approached the Officers of the Board complaining that he was not receiving the bills. On the other hand, the petitioner himself states in his affidavit in support of the writ petition that even after the six years lease to the tenant Sivvala Satyanarayana expired, the said tenant continued to remain in unauthorized occupation of his rice and flour mill for some time he does not say upto what time-and that "during the said period, the supply of energy was disconnected in the month of November 1986". In the counter, it was stated that it was in fact disconnected on 18-11-1987 and not in November, 1986. In the counter affidavit the details of the consumption of energy for the period 11/86 to 10/87 have been given which discloses considerable consumption of energy upto 5/97. When according to the petitioner the lease in favour of the petitioner's tenant was for a period of six years from 1-4-1976, in the absence of frank disclosure by the petitioner as to when in fact the said tenant vacated the petitioner's rice and flourmill, it is difficult to assume that the said tenant continued to be in possession of the petitioner's rice and flourmill for more than 4 1/2 years after the expiry of the lease period and that the petitioner was not really aware as to when exactly the service connection was disconnected. Even otherwise, it is inexplicable why the petitioner did not approach the Board for ascertaining the dues payable in respect of his service connection. In the absence of any complaint to the Board about his not receiving the bills, it is not possible for us to accept the base statement of the petitioner that he was not receiving any bills for the amounts payable by him in respect of his service connection from 11/86 for nearly 11/2 years. We may also state that the petitioner suppressed the fact that he addressed letter dated 26-4-1988 to the Assistant Accounts Officer, A.P.S.E.B., at Bhimavaram. The original of the letter is produced before us by the respondents. In the said letter, it is stated as follows:
"Sub: Electricity charges - dues -Regarding - H.S.C. I am the proprietor and owner of Sri Nagarjuna Rice & Flour Mill. The Ex-contractor of the mill has delivered possession to me on 7-4-1988. I want to run the mill in the interest of general public. So kindly give the information regarding various dues owe to A.P.S.E.B. so as to enable me to run the mill as expeditiously as possible".
We also find from the record letter dated 5-1-1978 addressed to the petitioner, stating as follows:
"It is to inform that the S.C.No. 1717 Bhimavaram is classified under high value services and hence the C.C. bills for 12/77 consumption bills in 1/78 onwards will be sent by post to enable to pay the C.C. charges in time. Hence it is proposed to send your bill by post hereafter and I request you to kindly arrange payment of the some on or before 3rd/4th of every month by means of cheque/D.D/cash to this office as our Bill Collector will not be collecting the said bill. The C.C. bills of High value services is due for payment before 3rd/4th every succeeding month without surcharge and before 10th/11th of every succeeding month with surcharge. If the bill remain unpaid after 12th of succeeding month the S.C. will be liable for disconnection.
The C.C. bill for 12/77 is enclosed herewith".
From this, it is obvious that the petitioner was informed the due date by which the bills for every month should be paid.
From the letter dated 26-4-1988 addressed by the petitioner to the Board, it is clear that according to the petitioner, the Ex-Contractor of the mill delivered possession to him on 7-4-1988 and the petitioner wanted to know the various dues owed to the A.P.S.E.B. from this it follows that the petitioner himself was aware that the bills for consumption charges were not being paid by his Ex-Contractor. Even in this letter, the petitioner did not complain that he was not receiving the bills for consumption charges earlier. He did not also ask for copies of the earlier bills in the said letter dated 26-4-1988. The petitioner surprisingly complains that the amount of dues was mentioned in the impugned notice dated 29-4-1988 without furnishing the break up. If really the petitioner was interested in knowing the break up, he could have immediately approached the concerned Officers of the Board for the said break up instead of approaching this Court directly by way of the present Writ petition. On the other hand, the petitioner suppressed the fact that he had addressed letter dated 26-4-1988 to the Assistant Accounts Officer, A.P.S.E.B., Bhimavaram wherein he stated that the Ex-Contractor delivered possession of his rice ad flour mill only on 7-4-1988: that is the very month in which he addressed the said letter and also the very month in which the impugned notice was sent to the petitioner.
24. In the case of Thrimurthy Steel Industries v. A.P.S.E.B., Hyderabad and Anr., 1997(1)An.W.R. 587 : 1997 (2) ALD 609 (D.B.) at paragraph Nos. 4 and 5 it was held as follows:
"The only dispute, therefore, is as regards the demand for payment of minimum charges by the respondents even after the petitioner's Service was disconnected. The petitioner contends that in the absence of stipulation in the agreement for collection of minimum charges even after disconnection, the respondents were not entitled to demand the same, and that the demand for minimum charges under the circumstances is illegal and unfair. This stand of the petitioner is not warranted because from the copy of the agreement filed along with this writ petition we find that it contains Clause No. 11 which specifically provided for monthly minimum charges in the following manner:-
"We shall pay minimum charges every month as prescribed in tariff and terms and conditions of supply even if no electricity is consumed for any reason whatsoever and also if the charges for electricity actually consumed are less than he minimum charges. The minimum charges shall also be payable by us even if electricity is not consumed because supply has been disconnected by the Board because of non-payment of electricity charges, pilferage or other malpractices or for any other valid reason", (emphasis supplied) Thus Clause 11 reflects what was provided in Condition No. 33.2 of the Conditions of Supply, which is as follows:-
"33.2. Minimum charges shall be payable by the consumer as specified in the tariffs for different categories of consumers. This obligation shall be absolute. The minimum charges will be payable by consumer even if no electricity actually consumed, for any reason whatsoever and also if the charges for electricity consumed are less than the minimum charges. The minimum charges will be payable even if electricity is not consumed because supply has been disconnected by the Board because of non-payment of electricity charges, pilferage, other malpractices or for any other valid reason".
It is obvious from this that a consumer was liable at the relevant time to pay the minimum charges even after the Service was disconnected for non-payment of dues and that the minimum charges were liable to be paid by the consumer so long as the agreement in respect of H.T. Supply subsisted.
Termination of agreement in respect of H.T. Supply was provided under Condition No. 26.8. Condition No. 26.9 made it explicit that even if such agreement was terminated before the expiry of the initial period for which it was entered into, "the consumer shall also pay a sum equivalent to the minimum charges for the balance initial period of the agreement". Under Condition No. 26.8 "the consumer is at liberty to determine the agreement by giving one year's notice in writing expressing his intention to do so at any time after the period of four years from the date of commencement of agreement." Condition No. 26.6 also provided that "the minimum period of agreement for H.T. supply shall normally be for a period of five years" and that "the agreement shall continue to be in force till it is terminated by the consumer or the Board as provided in Sub-clause 26.8". In view of these provisions, it is clear that the petitioner was bound to pay the minimum charges so long as its H.T. agreement with the Board subsisted and had not been terminated.
25. In fact, the learned Judge placed reliance on the above decisions (3 and 4 supra) and on appreciation of the evidence available on record, findings in detail had been recorded. Hence the contention that on the simple ground of locus standi alone, the suit and appeal had been disposed of by both the Courts below cannot be accepted.
26. Hence this Court does not see any reason to interfere with the Judgments and decrees made by the Courts below.
27. Accordingly, the second appeal is dismissed at the stage of admission and the Judgments and Decrees of both the Courts below are hereby confirmed. No costs.