The suit filed by the plaintiff was one for decree for permanent injunction alone restraining the defendants from disconnecting the electric power supply based on the letter dated 29-9-1986 issued by defendant No. 2. It is relevant to state here that the plaintiff did not seek relief of declaration that the defendants have no power to disconnect the power supply or to interfere with the enjoyment of power supply based on the said letter of defendant No. 2 or for declaration that the defendants have no power either under the Act or Regulations to effect disconnection of power supply in respect of a claim made in the said letter. In the absence of seeking relief of declaration depending on facts of a case, the plaintiff cannot seek relief of permanent injunction so as to restrain the statutory body from performing its functions and duties.
1. This appeal is by the plaintiff directed against the order dated 24-7-1989, passed by the 16th Additional City Civil Judge at Bangalore on Preliminary Issue No. 3 in O.S. No. 4716/ 86, dismissing the suit filed by the plaintiff as not maintainable.
2. The parties during the course of this judgment will be referred to by the rankings assigned to them in the trial Court.
3. The brief facts leading to this appeal are:
The plaintiff filed suit against the defendants seeking permanent injunction restraining them from disconnecting the electric power connection to R. R. ACP 563 installed in the premises No. 68, Lalbagh Road, Bangalore and restraining them from causing obstruction to the plaintiff in his peaceful possession and enjoyment of the power through the said meter.
The defendants filed the written statement resisting the claim of the plaintiff on various grounds including the ground that the suit itself as filed was not maintainable.
The trial Court in view of the pleadings of the parties framed 5 issues on 12-7-1989. Among them issue No. 3 was set down for hearing as a preliminary issue. The said issue No. 3 reads :
Whether defendants prove that the suit as brought is not maintainable?
The Court below having heard the learned counsel for the parties recorded finding on issue No. 3 in the affirmative holding that the suit was not maintainable. Consequently, the suit filed by the plaintiff was dismissed by the order dated 24-7-1989.
The plaintiff feeling aggrieved by the said order and decree passed thereto has filed this appeal.
4. Sri Shekar Shetty, learned counsel for the plaintiff-appellant urged that the plaintiff had only prayed for a judgment and decree against the defendants restraining them from disconnecting the electric power connection in RR.ACP 563 to the premises No. 68, Lalbagh Road, Bangalore-27 or from interfering with the peaceful enjoyment of the power through the said meter. The plaintiff filed the suit in view of the letter dated 29-9-1986 addressed to him by the Assistant Executive Engineer (Elecl.)-defendant No. 2. The said letter reads thus:
"With reference to the above, I write to state that the Ledger Accounts of your electric installation bearing R.R. No. ACP-563, has been audited by our Internal Audit authorities and pointed out a short claim of Rs. 2,18,057-33 p., on account of omission of application of Meter Constant applicable to the consumption recorded in the Meter fixed to your installation. As such you are hereby requested to pay the Audit Short Claim of Rs. 2,18,057-33 p. within one month from the date of receipt of this letter, failing which the power supply to your installation is liable for disconnection. This may be noted.
Detailed statement showing the calculation of Audit Short Claim containing seven sheets is herewith enclosed for your ready reference".
The learned counsel contended that the defendants have no power to disconnect power supply or to interfere with the enjoyment of the power supply based on the aforementioned letter. The defendants cannot trace their right to do so either under S. 69 of the Electricity (Supply) Act, 1948 (for short the Act 1948) or under Regulations 35 and 41(e) of the Electricity Supply Regulations (for short the Regulations). He went on to argue that under Karnataka Act No. 51/76 (the Karnataka Electricity Board (Recovery of Dues) Act, 1976) the defendants cannot recover the so called dues in the absence of any certificate issued by the prescribed authority. Even otherwise, at best, dues if any under the said Act could be recovered as land revenue, but the defendants cannot disconnect the power supply. He submitted that Regulation 35 applies to only regular monthly bills, which the plaintiff has paid regularly. The disputed claim is not included in any bill. The plaintiff has also not committed any theft of energy. The audit short claim on account of omission of application of Meter Constant applicable to the consumption recorded in the meter fixed to his installation cannot give rise to disconnection of power supply. He finally submitted assuming that there is a remedy of filing an appeal is provided under Regn. 41(e) of the Regulations that does not bar the jurisdiction of the Civil Court inasmuch as unless the Civil Court's jurisdiction is expressly or by necessary implication is barred, the Civil Court had the jurisdiction to entertain the suit. He placed reliance on few decisions in support of his submissions.
5. On the other hand, Sri N. K. Gupta, learned counsel for the defendants, submitted that the plaint is silent in regard to the proceedings initiated by the plaintiff in writ petition earlier and the order passed thereon by this Court. He drew my attention to Sections 5, 12, 70 and 79(j) of the Act 1948. According to him Section 69 of the Act 1948 gives power to the defendants to effect disconnection of the power supply and a bill issued under Regulation 35 includes any demand, even the demand made on account of audit short claim. In support of his submissions he placed reliance on the judgment of this Court in R.S.A. 848/84, disposed of on 21-2-1985 (Syed Abdul Gaffar Meer v. The Assistant Executive Engineer, K.E.B.); ; (Banhatti Co-operative Spinning Mill Ltd. v. Karnataka Electricity Board) and ILR 1993 Karnataka 7072 (Karnataka Electricity Board v. Messrs Oriental Timber Industries).6. Having regard to the submissions made by the learned counsel for the parties, the following point arises for determination :
Whether the suit as filed by the plaintiff is maintainable?
7. The suit filed by the plaintiff was one for decree for permanent injunction alone restraining the defendants from disconnecting the electric power supply based on the letter dated 29-9-1986 issued by defendant No. 2. It is relevant to state here that the plaintiff did not seek relief of declaration that the defendants have no power to disconnect the power supply or to interfere with the enjoyment of power supply based on the said letter of defendant No. 2 or for declaration that the defendants have no power either under the Act or Regulations to effect disconnection of power supply in respect of a claim made in the said letter. In the absence of seeking relief of declaration depending on facts of a case, the plaintiff cannot seek relief of permanent injunction so as to restrain the statutory body from performing its functions and duties.
8. In R.S.A. No. 848/84 this Court in paragraphs 4 and 5 has held thus :
"Regulation 35 lays down that the bills shall be paid by the consumer within 15 days from the date of presentation and if there is any complaint with regard to the accuracy of the bills the same shall be made in writing to the local office of the Board after paying the amount under protest within the aforementioned period of 15 days. Who are the officers empowered to grant time for payment of arrears till the dispute is settled as enumerated under Regulation
35. Regulation 35 does not take away the jurisdiction of the Court in going into the question of accuracy of the bills. But it is made incumbent on the consumer to pay the bill within the said period of 15 days and lodge a complaint about the accuracy of the bill to the local office of the Board. That has not been done. The plaintiff has straightway come to Court for a decree of permanent injunction.
There cannot be a decree of injunction against the Board restraining it from performing its duty as prescribed by the various provisions including those under the Regulations. It is open to the plaintiff to lodge his complaint or to pay the bill and if according to him the bill represents excess amount to approach the Court for recovery of the excess amount".
9. The aforementioned decision was followed by this Court in the judgment dated 8-2-1991, passed in R. S. A. No. 353/80.
10. In R.F.A. No. 133/81, wherein the plaintiff had filed a suit for declaration that he was not liable to pay back billing charges, this Court has held that the liability to pay the amount demanded through notice is challenged in the suit, as such S. 5 of the Karnataka Electricity Board (Recovery of Dues) Act, 1976 is attracted and under that section if the plaintiff wants to challenge the demand notice by instituting the suit he has to deposit the amount under protest in writing with a prescribed authority within six months from the date of receipt of the demand notice. In the case on hand, as already stated the suit is one filed for mere injunction, not even declaration is sought. It is also not disputed that the plaintiff had filed W.P. No. 18315/86 challenging the validity of the said demand notice. The said writ petition was dismissed subject to the condition that the plaintiff should deposit immediately a sum of Rupees 1,09,000/- and to approach the Superintending Engineer under Regulation 35 of the Regulations, if he had any complaint. However, later on the request of the plaintiff the said writ petition was posted for being spoken to and on that day on the memo filed by the plaintiff the writ petition was dismissed as withdrawn.
11. In view of the facts stated above and keeping in view the aforementioned decisions, in my opinion, the order under appeal passed by the trial Court on Issue No. 3 holding that the suit as filed by the plaintiff was not maintainable is correct. It is one thing to say that the Civil Court has no jurisdiction to entertain the suit and it is another thing to say that the suit is maintainable in a Civil Court in respect of such demands after satisfying the mandatory requirements of law and the Regulations. In this view of the matter and in the light of the decisions aforementioned being directly on the point, the decisions cited by the learned counsel for the appellant-plaintiff do not help him on the point that the Civil Court has jurisdiction to try a suit unless its jurisdiction is expressly or by necessary implication is barred.
12. The argument of the learned counsel for the appellant-plaintiff that the defendants cannot recover the so called dues in the absence of any certificate issued by the prescribed authority under the Karnataka Electricity Board (Recovery of Dues) Act, 1976 cannot be accepted, as such a question has not arisen in this case. Further, the Court below has not said that the Civil Court has no jurisdiction. It has only recorded a finding on issue No. 3 that the suit as brought is not maintainable for the reasons recorded. I do not find any good or valid ground to disagree with the finding of the trial Court recorded on Issue No. 3.
13. In the result, for the reasons stated, this appeal deserves to be dismissed. Accordingly, it is dismissed.
14. Appeal dismissed.
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Karnataka High Court
I.N. Mahabaleswara Madyasta vs Karnataka Electricity Board, ... on 6 October, 1993
Equivalent citations: AIR 1994 Kant 74, ILR 1993 KAR 3398, 1994 (1) KarLJ 214
Bench: S Patil
JUDGMENT1. This appeal is by the plaintiff directed against the order dated 24-7-1989, passed by the 16th Additional City Civil Judge at Bangalore on Preliminary Issue No. 3 in O.S. No. 4716/ 86, dismissing the suit filed by the plaintiff as not maintainable.
2. The parties during the course of this judgment will be referred to by the rankings assigned to them in the trial Court.
3. The brief facts leading to this appeal are:
The plaintiff filed suit against the defendants seeking permanent injunction restraining them from disconnecting the electric power connection to R. R. ACP 563 installed in the premises No. 68, Lalbagh Road, Bangalore and restraining them from causing obstruction to the plaintiff in his peaceful possession and enjoyment of the power through the said meter.
The defendants filed the written statement resisting the claim of the plaintiff on various grounds including the ground that the suit itself as filed was not maintainable.
The trial Court in view of the pleadings of the parties framed 5 issues on 12-7-1989. Among them issue No. 3 was set down for hearing as a preliminary issue. The said issue No. 3 reads :
Whether defendants prove that the suit as brought is not maintainable?
The Court below having heard the learned counsel for the parties recorded finding on issue No. 3 in the affirmative holding that the suit was not maintainable. Consequently, the suit filed by the plaintiff was dismissed by the order dated 24-7-1989.
The plaintiff feeling aggrieved by the said order and decree passed thereto has filed this appeal.
4. Sri Shekar Shetty, learned counsel for the plaintiff-appellant urged that the plaintiff had only prayed for a judgment and decree against the defendants restraining them from disconnecting the electric power connection in RR.ACP 563 to the premises No. 68, Lalbagh Road, Bangalore-27 or from interfering with the peaceful enjoyment of the power through the said meter. The plaintiff filed the suit in view of the letter dated 29-9-1986 addressed to him by the Assistant Executive Engineer (Elecl.)-defendant No. 2. The said letter reads thus:
"With reference to the above, I write to state that the Ledger Accounts of your electric installation bearing R.R. No. ACP-563, has been audited by our Internal Audit authorities and pointed out a short claim of Rs. 2,18,057-33 p., on account of omission of application of Meter Constant applicable to the consumption recorded in the Meter fixed to your installation. As such you are hereby requested to pay the Audit Short Claim of Rs. 2,18,057-33 p. within one month from the date of receipt of this letter, failing which the power supply to your installation is liable for disconnection. This may be noted.
Detailed statement showing the calculation of Audit Short Claim containing seven sheets is herewith enclosed for your ready reference".
The learned counsel contended that the defendants have no power to disconnect power supply or to interfere with the enjoyment of the power supply based on the aforementioned letter. The defendants cannot trace their right to do so either under S. 69 of the Electricity (Supply) Act, 1948 (for short the Act 1948) or under Regulations 35 and 41(e) of the Electricity Supply Regulations (for short the Regulations). He went on to argue that under Karnataka Act No. 51/76 (the Karnataka Electricity Board (Recovery of Dues) Act, 1976) the defendants cannot recover the so called dues in the absence of any certificate issued by the prescribed authority. Even otherwise, at best, dues if any under the said Act could be recovered as land revenue, but the defendants cannot disconnect the power supply. He submitted that Regulation 35 applies to only regular monthly bills, which the plaintiff has paid regularly. The disputed claim is not included in any bill. The plaintiff has also not committed any theft of energy. The audit short claim on account of omission of application of Meter Constant applicable to the consumption recorded in the meter fixed to his installation cannot give rise to disconnection of power supply. He finally submitted assuming that there is a remedy of filing an appeal is provided under Regn. 41(e) of the Regulations that does not bar the jurisdiction of the Civil Court inasmuch as unless the Civil Court's jurisdiction is expressly or by necessary implication is barred, the Civil Court had the jurisdiction to entertain the suit. He placed reliance on few decisions in support of his submissions.
5. On the other hand, Sri N. K. Gupta, learned counsel for the defendants, submitted that the plaint is silent in regard to the proceedings initiated by the plaintiff in writ petition earlier and the order passed thereon by this Court. He drew my attention to Sections 5, 12, 70 and 79(j) of the Act 1948. According to him Section 69 of the Act 1948 gives power to the defendants to effect disconnection of the power supply and a bill issued under Regulation 35 includes any demand, even the demand made on account of audit short claim. In support of his submissions he placed reliance on the judgment of this Court in R.S.A. 848/84, disposed of on 21-2-1985 (Syed Abdul Gaffar Meer v. The Assistant Executive Engineer, K.E.B.); ; (Banhatti Co-operative Spinning Mill Ltd. v. Karnataka Electricity Board) and ILR 1993 Karnataka 7072 (Karnataka Electricity Board v. Messrs Oriental Timber Industries).6. Having regard to the submissions made by the learned counsel for the parties, the following point arises for determination :
Whether the suit as filed by the plaintiff is maintainable?
7. The suit filed by the plaintiff was one for decree for permanent injunction alone restraining the defendants from disconnecting the electric power supply based on the letter dated 29-9-1986 issued by defendant No. 2. It is relevant to state here that the plaintiff did not seek relief of declaration that the defendants have no power to disconnect the power supply or to interfere with the enjoyment of power supply based on the said letter of defendant No. 2 or for declaration that the defendants have no power either under the Act or Regulations to effect disconnection of power supply in respect of a claim made in the said letter. In the absence of seeking relief of declaration depending on facts of a case, the plaintiff cannot seek relief of permanent injunction so as to restrain the statutory body from performing its functions and duties.
8. In R.S.A. No. 848/84 this Court in paragraphs 4 and 5 has held thus :
"Regulation 35 lays down that the bills shall be paid by the consumer within 15 days from the date of presentation and if there is any complaint with regard to the accuracy of the bills the same shall be made in writing to the local office of the Board after paying the amount under protest within the aforementioned period of 15 days. Who are the officers empowered to grant time for payment of arrears till the dispute is settled as enumerated under Regulation
35. Regulation 35 does not take away the jurisdiction of the Court in going into the question of accuracy of the bills. But it is made incumbent on the consumer to pay the bill within the said period of 15 days and lodge a complaint about the accuracy of the bill to the local office of the Board. That has not been done. The plaintiff has straightway come to Court for a decree of permanent injunction.
There cannot be a decree of injunction against the Board restraining it from performing its duty as prescribed by the various provisions including those under the Regulations. It is open to the plaintiff to lodge his complaint or to pay the bill and if according to him the bill represents excess amount to approach the Court for recovery of the excess amount".
9. The aforementioned decision was followed by this Court in the judgment dated 8-2-1991, passed in R. S. A. No. 353/80.
10. In R.F.A. No. 133/81, wherein the plaintiff had filed a suit for declaration that he was not liable to pay back billing charges, this Court has held that the liability to pay the amount demanded through notice is challenged in the suit, as such S. 5 of the Karnataka Electricity Board (Recovery of Dues) Act, 1976 is attracted and under that section if the plaintiff wants to challenge the demand notice by instituting the suit he has to deposit the amount under protest in writing with a prescribed authority within six months from the date of receipt of the demand notice. In the case on hand, as already stated the suit is one filed for mere injunction, not even declaration is sought. It is also not disputed that the plaintiff had filed W.P. No. 18315/86 challenging the validity of the said demand notice. The said writ petition was dismissed subject to the condition that the plaintiff should deposit immediately a sum of Rupees 1,09,000/- and to approach the Superintending Engineer under Regulation 35 of the Regulations, if he had any complaint. However, later on the request of the plaintiff the said writ petition was posted for being spoken to and on that day on the memo filed by the plaintiff the writ petition was dismissed as withdrawn.
11. In view of the facts stated above and keeping in view the aforementioned decisions, in my opinion, the order under appeal passed by the trial Court on Issue No. 3 holding that the suit as filed by the plaintiff was not maintainable is correct. It is one thing to say that the Civil Court has no jurisdiction to entertain the suit and it is another thing to say that the suit is maintainable in a Civil Court in respect of such demands after satisfying the mandatory requirements of law and the Regulations. In this view of the matter and in the light of the decisions aforementioned being directly on the point, the decisions cited by the learned counsel for the appellant-plaintiff do not help him on the point that the Civil Court has jurisdiction to try a suit unless its jurisdiction is expressly or by necessary implication is barred.
12. The argument of the learned counsel for the appellant-plaintiff that the defendants cannot recover the so called dues in the absence of any certificate issued by the prescribed authority under the Karnataka Electricity Board (Recovery of Dues) Act, 1976 cannot be accepted, as such a question has not arisen in this case. Further, the Court below has not said that the Civil Court has no jurisdiction. It has only recorded a finding on issue No. 3 that the suit as brought is not maintainable for the reasons recorded. I do not find any good or valid ground to disagree with the finding of the trial Court recorded on Issue No. 3.
13. In the result, for the reasons stated, this appeal deserves to be dismissed. Accordingly, it is dismissed.
14. Appeal dismissed.
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