Deputy Engineer Madhya Gujarat Vij Co Ltd & 1 ­ Defendants

1.0 Present Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellant herein­ original plaintiff to quash and set aside the impugned judgment and decree passed by the learned Civil Judge (J.D.), Khambhat dated 30.11.2005 passed in Civil Suit No. 169 of 2001, by which, learned trial Court has dismissed the said suit preferred by the appellant herein­original plaintiff. The appellant herein­original plaintiff has also challenged the judgment and order passed by the Presiding Officer, 3rd Fast Track Court, Anand dated 25.9.2006 passed in Regular Civil Appeal No.523 of 2006 (old Regular Civil Appeal No.383 of 2005), by which, the learned Appellate Court has dismissed the said appeal preferred by the appellant herein confirming the judgment and decree passed by the learned trial Court dismissing the suit.

2.0 That the appellant herein­original plaintiff instituted Regular Civil Suit No.169 of 2001 in the Court of learned Civil Judge (J.D.), Khambhat against the respondent herein­original defendant­Electricity Company for mandatory order directing the defendant to reconnect the electricity supply / connection and also for damages due to disconnection of the electricity supply. It was the case on behalf of the appellant ­original plaintiff that though in the month of January­February 2000 factory of the plaintiff was closed due to fire and still defendant raised the bill towards electricity supply for the said period also and despite the fact that subsequently entire amount towards electricity supply was paid in different installments the electricity supply was not reconnected and despite that they raised the bill of Rs. 59,370.62 towards reconnection charge and before that electricity supply was permanently disconnected on 5.7.2000. It was the case on behalf of the plaintiff that therefore, the electricity connection was disconnected illegally and illegal bill for reconnection has been raised and therefore, it was prayed for mandatory injunction / order directing the defendant to reconnect the electricity supply and also prayed to award damages for illegal disconnection.

2.1. The suit was resisted by the defendant by filing written statement at Exh. 13. It was submitted that suit is barred by res­ judicata as earlier suit was filed which came to be withdrawn. It was also submitted that due to non payment of electricity bill after following due procedure as required, the electricity supply was permanently disconnected and thereafter the plaintiff again applied for fresh connection for which the estimate was given to the plaintiff. Therefore, it was submitted that the electricity connection was permanently disconnected after following due procedure as required and even thereafter the electricity bill for reconnection was raised legally and as per the circular / policy of the electricity board. Therefore, it was requested to dismiss the suit.

2.2. That the learned trial Court framed the issue at Exh.31. That on behalf of the plaintiff Ravajibhai Jethabhai Patel was examined at Exh.47. Number of documentary evidences were also produced on behalf of the plaintiff. On behalf of the plaintiff one Pareshbhai Jayrambhai Sharma and Ranchodbhai Vadilal Bhrahambhatt has examined at Exhs. 88 and 96. On behalf of defendant number of documentary evidences were produced at Exhs.48 to 58, 73, 80, 86, 87, 90 and 97. That after considering the submission made on behalf of the respective parties as well as on appreciation of evidence the learned trial Court held that the plaintiff has failed to prove that defendant no.1 has permanently disconnected the electricity connection on 5.7.2000 illegally. The learned trial Court also held that plaintiff has failed to prove that defendant no.1 has raised the bill/ estimate of Rs. 59,370.62 for reconnection illegally. Consequently the learned trial Court dismissed the suit by impugned judgment and decree dated 30.11.2005.

2.3. Feeling aggrieved and dissatisfied with the impugned judgment and decree passed by the learned trial Court dated 30.11.2005 in Regular Civil Suit No.169 of 2001 in dismissing the suit, the appellant herein­original plaintiff preferred Regular Civil Appeal No. 523 of 2006 which was subsequently renumbered as Regular Civil Appeal No.383 of 2005 and learned Additional District Judge and Presiding Officer, Fast Track Court No.3, Anand by judgment and order dated 25.9.2006 has dismissed the said appeal confirming the judgment and decree passed by the learned trial Court dismissing the suit.

3.0 Learned advocate for the appellant has vehemently submitted that both the Courts below have materially erred in dismissing the suit. It is submitted that both the Courts below have not properly appreciated the fact that as such the electricity connection was disconnected illegally and despite the fact that in January­February 2000 there was a fire in the factory, due to which factory was closed still the bill for the said period was raised and even thereafter also plaintiff has paid arrears of electricity dues by different installments total amount of Rs.65082/­ which was in response to notice dated 22.3.2000. It is submitted that despite the above, the defendant permanently disconnected the aforesaid supply illegally on 5.7.2000 and illegal bill was raised for reconnection. It is submitted that the learned Appellate Court has materially erred in misinterpreting the provisions of Section 24 of Indian Electricity Act. It is submitted that learned Appellate Court has not properly appreciated the fact that even the respondent board has all powers to give installments to the appellant for making payment of alleged due and as such sum of Rs.65,000/­ was already paid and therefore, the respondent board was duty bound to reconnect the electricity connection. Therefore, it is requested to allow the present Second Appeal.

4.0 Present Second Appeal is opposed by Shri Joshi, learned advocate for the respondent by submitting that as such there are concurrent finding of facts given by both the Courts below in holding that the disconnection of the electricity supply was legal after following due procedure i.e. after giving notice and even thereafter also the plaintiff instituted suit against disconnection, which came to be withdrawn and therefore, both the Courts below have not committed any error and / or illegality in dismissing the suit confirmed by the learned Appellate Court. Therefore, it is requested to dismiss the present Second Appeal.

5.0 Heard the learned advocates for the respective parties at length. At the outset, it is required to be noted that by filing suit the plaintiff prayed for mandatory injunction / order directing the defendant electricity board to reconnect the electricity supply and also for damages. However, it is required to be noted that before electricity supply was disconnected, the plaintiff was served with the demand notice dated 27.3.2000, in which, it was specifically mentioned that if the said bill is not paid the aforesaid electricity connection will be disconnected permanently. It appears that the entire bill amount was not paid by the plaintiff within the stipulated time mentioned in the demand notice dated 27.3.2000. It is true that the plaintiff had paid Rs.65082/­ towards aforesaid demand notice however the same has been paid by installments and even after the electricity connection was disconnected permanently. It appears that out of Rs.65082, Rs. 35082 had been paid subsequently i.e. subsequent to the electricity supply disconnected permanently. Considering the aforesaid facts and circumstances of the case, it cannot be said that the learned trial Court has committed any error and/ or illegality in holding that disconnection was after following due procedure and after giving notice and consequently learned trial Court has not committed any error and / or illegality in dismissing the suit. It is required to be noted that thereafter the plaintiff submitted the application for reconnection i.e. fresh connection for which the estimate was given to the plaintiff, which the plaintiff had not paid and therefore, electricity connection was not reconnected / fresh connection was not given. Under the circumstances, the learned trial Court has rightly dismissed suit.

6.0 It is also required to be noted at this stage that even against the disconnection earlier appellant instituted Regular Civil Suit No.452 of 2000, which came to be withdrawn. Be that as it may, considering the fact that amount of Rs.49518/­ which was for fresh connection which has paid by the plaintiff the learned trial Court has rightly dismissed the suit, which is rightly confirmed by the learned Appellate Court.

7.0 It is required to be noted that while admitting present Second Appeal the learned Single Judge has framed the following substantial question of law.

“Whether the procedure contained in the commercial Circular No.345 (Exh.86) issued under Section 24(1) of the Indian Electricity Act, 1910 is mandatory or directory, whether any breach of the said procedure would vitiate the action of discontinuance of the electricity supply by the license.”

8.0 Considering Circular at Exh.86, it cannot be said to be directory, it is a contract entered into between the consumer and Board and providing conditions of supply and it provides for recovery of minimum charges from the consumer whose electricity has been disconnected. Considering the aforesaid circular dated 28.10.1974 (Exh.86) which has been adhered to and has been followed, no illegality has been committed by the learned trial Court in dismissing the suit confirmed by the learned Appellate Court, which calls for the interference of this Court in exercise of powers under Section 100 of the Code of Civil Procedure.

9.0 In view of the above and for the reasons stated above, present Second Appeal fail and same deserves to be dismissed and is accordingly dismissed. No costs.

“kaushik”

sd/­ ( M. R. Shah, J. )