http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

PETITIONER: PUNJAB STATE ELECTRICITY BOARD & ANR.

       Vs.

RESPONDENT: ASHWANI KUMAR

DATE OF JUDGMENT:       14/03/1997

BENCH: K. RAMASWAMY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.  We have  heard learned  counsel on both sides.      The appeal by special leave arises from the judgment of the Punjab & Haryana High Court, made on December 9, 1992 in R.S.A. No.  1865 of  1991.  the  Appellant-Board  had  given connection of  supply of electrical energy to the respondent on January  16, 1983. Since the meter installed suspected to have been  tempered with  was removed  on May 6, 1984. On an application  made   by  the  respondent,  a  new  meter  was installed on  May 9, 1984. On March 18, 1985 Bill No. 44 for Rs. 1,90,498.79  for the period December 1983 to January 16, 1985 for  permanent injunction, restraining the Board or its Officers from  collecting and recovering the amount from the respondent. The  Sub-Judge on September 16, 1987 granted the decree. On  appeal, it  was confirmed  and the second appeal has been  dismissed. Thus,  this  appeal  by  special  leave petition.      On July  19, 1996  when the matter came up for hearing, this Court  passed  and  order  observing  that  Section  4, Instruction 115(1)(b)  of the  sales mannual which is placed on record,  indicates the  procedure to be followed when the meter  was  found  to  be  accurate,  but  the  reading  was inaccurate.  Instruction   relating  the   procedure  to  be followed for  resolving the dispute was not made part of the record and,  therefore, time was granted to the appellant to produce the  necessary record in that behalf. In furtherance thereof, the record has been placed on record.      Now, it is  clear that the Electricity Board itself has issued Circulars  from time to time in that behalf. Circular No. 111/80,  dated December  20, 1980, was issued in partial modification of earlier Circulars No. 151/79 dated 21.2.1979 and No.  4723/cadre dated  24.7.1980. Therein it states that the  Flaying   Squads/Enforcement  Staff   shall  henceforth prepare  their   report  in   respect  of  checking  of  the defaulting premises  of the  delinquent consumers  and serve the requisite  notice to  the consumer at site itself with a copy to  S.D.O./D.S. Concerned. Thereafter, the Flying Squad shall not  revise their  findings or  the quantum of penalty already intimated.  Cases of  default of  payment  upto  Rs.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

5,000/- are  reviewable by  the Superintending Engineer/D.S. and the  cases of  default beyond Rs. 5,000/- are reviewable by C.E.  or D.S.  Concerned. Subsequently, instructions were issued under  Order No.  427 dated November 26, 1981 stating that the  negotiations with  the consumers  or withdrawal of cases from the court or the arbitration proceeding or faulty meter cases  may be taken by the Committee consisting of (1) Chief Engineer  (D.S. concerned); (2) Chief Accounts Officer of Chief  Auditor as  may be decided by the Member, Finance; (3) Legal  Advisor;  (4)  Director,  Commercial.  The  above committee shall  exercise the power upto Rs. 5,000/- in each and decide  all the  cases including  those pending  in  the court, except enforcement of the waiving.      Subsequently, further  Circular No.  111 of  1984 dated December 5,  1984 was  issued reiterating  the power  of the Flying Squads  earlier circulars regarding in para 2(i)  and para 2(ii)  . The  Flying Sqads/Enforcement  Staff shall not revise there findings or the Quantum of Compensation already intimated. Under  Clause (iii) it provides for the following authorities to  review the compensation amount one intimated to the consumer: a) Case upto Rs. 10,000/-                       S.E./D.S b) Case beyond Rs.10,000/- & upto Rs. 5 lacs.  - C.E./D.S. c) Cases beyond Rs. 5  lacs (the cases shall   - Member (T)    be put up by C.E./Commercial through    Director/Enforcement). Clause  (v)  postulates  that  where  the  consumer  himself accepts the  findings of  the Flying  Squads and  makes  the payment of  compensation amount,  such cases shall not later on be subject matter or review by the D.S. officers.      Clause (vi) provides that notwithstanding the fact that the D.S.  Officers agree  or disagree  with the  findings of Flying Squads,  but if  the consumer  protests  against  the charges, the  review, appeal  of such  a consumer  shall  be registered by  S.D.O./D.S. concerned  and forwarded  to  the reviewing authority  thought   proper  channel.  The  proper channels have  been noted in the subsequent sub-paragraph of paragraph (vi). Para (vii) indicates that every effort shall be made by the reviewing authority to ensure that the review appeal  is   decided  within   the  stipulated   period   of disconnection; where is  not possible to do so, the consumer shall be  asked by  the reviewing  authority to  deposit  at least 75%  of the  amount of  compensation under  protest so that  supply   could  be   restored,  after  the  expiry  of stipulated period  of disconnection.  where a  consumer does not come forward to deposit the amount so  worked out in the manner as stipulated above, the supply shall not be restored till finalisation of the review/appeal.      The position  was subsequently  reviewed under Circular NO. 26  of  1989  dated  August  7,  1989.  Therein,  it  is postulated  that  the  Committee  shall  be  headed  by  the concerned  Superintending   Engineer/D.S.  and   shall  have following members:- 1. S.E./D.S.    Chairman of the Committee 2. XEN/DS  concerned         Member Convenor 3. XEN/Enforcement               Member (for cases involving                               checking    by     Enforcement                               staff). 4. A.O.O./Field               Memeber 5. Representative of Industry  Member      It is  further provided  that the  Committee shall have powers to  review and  decide all cases for recovery waiving off the irrecoverable amount upto Rs. 30,000/- in each case. This Committee shall decide all disputed cases including the cases arising  out of  enforcement checking.  This Committee

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

shall act  on the  basis of  general fairness and equity and not necessarily  by the  rigid departmental instructions. It would, thus,  be seen  that these  statutory rules issued by the Board  intended to dispose of the disputes expeditiously without undue  delay,  so  that  the  consumer  may  not  be subjected to hardship due to disconnection or non-payment of the amount  charged, as  demanded under  the rules, for long period. At  the same  time the  Board is  also  entitled  to recover the  amount expeditiously from the consumer, so that the Board  functions efficiently  and effectively  and  also supplies the  electrical energy  to the consumer without any inconvenience to  the consumer  as no-supply  of  electrical energy hampers the progress of the industry, etc.      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 given  up. Section  9 of  C.P.C. Provides that Civil nature,  subject  to  pecuniary  jurisdiction,  unless their cognizance is expressly or by necessary implication is 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,  there  the fundamental fairness  of procedure  has been  violated.  The statutory circulars  adumberated above  do indicate  that  a fundamental fairness of the procedure has been prescribed in the rules  and is being followed. By necessary implications, the cognizance  of the  civil cause  has been excluded. 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  Act  and  the  Indian  Electricity (Supply) Act  and the  instructions issued  by the  Board in that behalf from time to time as stated above.      Shri Goyal  has contended  that the  authorities do not hear the  parties, nor  give reasoned  order. Therefor,  the parties cannot,  nor given  reasoned order.  Therefore,  the parties cannot  be precluded to avail of the remedy of suit. we cannot  accept such  a broad and generalised proposition. When the  provisions 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 here the  parties,   considers  their  objections  and  pass  the reasoned order, either eccepting or negativing the claim. Of course it  is not  like a  judgment or  a civil court. It is then contended that the respondent has been subjected to pay hug 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 out  view, by necessary implication the suit  is not  maintainable. Therefore, the respondent is at liaberty  to avail  the remedy of appeal within six weeks from today  and raise  the factual objection before consider and dispose of them as indicated earlier, on merits.      It is  next contended  that the  respondents  has  been charged huge  amount. It  would be  difficult for him to pay

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

the  amount   in  lump  sum.  Therefore,  he  may  be  given permission to  pay the  amount in  instalments, We find that the request in genuine and in view of long lapse of time, we direct that the respondent would pay the amount in demand in six monthly  instalments. First  instalment shall be paid on or before April 5, 1997. In case he succeeds in appeal or in the proceedings,  the Board  shall refund  the  amount  with interest at  the rate of 12 per cent per annum from the date of deposit.      The  appeal   is  accordingly   allowed,  but   in  the circumstances, without costs.