The present second appeal has been filed against judgment and order passed by court below by which defendants' appeal has been allowed and suit filed by plaintiff-appellant has been dismissed.
Facts arising out of present second appeal are that plaintiff-appellant filed a suit for declaration against Corporation-respondent on the ground that he has installed a tube-well and pumping set for the purposes of agriculture having connection No.A-2620 with five horse power. Father of appellant is also having another connection, plaintiff has got no concerned with the said connection. According to appellant there is no dues and bills are always being paid when it has been raised by the Corporation. Up-to 31.1.1995, all bills have been paid. Motor installed in the tube-well were stolen, therefore, after that when there is necessity, he put a motor and get the water from the tube-well and if power is not being supplied then motor is operated with tractor for providing water to the field. On 25.1.1996 when appellant was crushing sugar cane, employees of the Corporation demanded certain illegal amount which was refused. A false report was lodged at the police station and a demand for realization of the electricity dues to the tune of Rs.38,960/- was raised.
Respondents after receipt of notice filed a written statement denying claim made in the plaint but admitted it to this extent that as payment was not made, therefore, an assessment was done. On 25.1.1995, a surprise visit by the employees of the Corporation was done then it was found that appellant was using a motor of extra 7.50 horse power connected with crusher and tubewell for the purposes of irrigation. On that very day inspections were conducted at about 13 places and an FIR were lodged and assessment accordingly was made on the basis of surprise inspection. Trial court after considering claim of parties frame about five issues and one of the main issues was whether defendants are entitled to realize the amount mention in the demand notice, whether the suit was barred by Section 4 of U.P. Act No.16 of 1958 and Section 330 of the Zamindari Abolition Act and whether the provisions of Section 34/38 of the Specific Relief Act has been followed. Issue Nos.1 and 2 were clubbed and a finding has been recorded that defendants have assessed the appellant regarding theft of electricity though plaintiff has said that he was having valid connection. A finding has been recorded that as regards assessment, defendants have not submitted any document that any notice was given before the assessment. Plaintiff has proved that he is having a valid connection. Defendants have failed to prove that on 22.5.1995 raid was conducted at the tube-well of the appellant. No document has been submitted by defendant that on the basis of raid, assessment of bill was prepared and then it was send to the appellant. After recording such findings trial court decreed the suit by restraining Corporation from realizing any amount.
Defendants-respondents filed an appeal and Appellate Court allowed the appeal on the ground that as plaintiff-appellant is having remedy of appeal under the Act, therefore, suit cannot be held to be maintainable and trial court has wrongly decreed the suit. Issue No.6 was framed by the Appellate Court and a finding to that effect has been recorded that defendants-respondents have brought to the notice Section 23 of the U.P. Electricity Supply Consumers Regulation 1984 which gives power to consumer that, in case, if he is dis-satisfied with assessment, can file an appeal. But admittedly, he has not approached the appellate form after the assessment. The Appellate Court has also placed reliance upon various judgments of this Court on this issue and has recorded a finding that in view of judgements, in case, such dispute has been raised by plaintiff, then aggrieved person has to approach the Appellate Forum and in view of Section 9 of Civil Procedure Code, suit cannot be treated to be maintainable. After recording such finding the court below has allowed the appeal and dismissed the suit giving liberty to appellant to file an appeal.
Hence, present second appeal has been filed.
Learned counsel for appellant has submitted that unless and until there is an assessment, no appeal will lie. The appeal under Section 23 of the U.P. Electricity Manual will lie only when there is assessment. Section 23 is being quoted below:-
"23. Assessment and Appeal- (i) The Executive Engineer shall finalise all the assessment cases after giving an opportunity to the consumer to state his point of view.
(ii) If the consumer is dis-satisfied with the assessment so made, he may within 15 days of the receipt of assessment bill, appeal to the committee as constituted below, which shall hear and decide the cases according to the valuation mentioned against each:
(1) Committee at circle level:
(iii) The appellate authority shall dispose off the appeal after considering the submission of the appellant in the memorandum of appeal, the material placed before him by the appellant and the enquiry records. It shall not be obligatory for the Appellate Authority to give a personal hearing, but if a request is made in that behalf he may grant such hearing to the appellant. The appellant may be represented at such hearing by a legal practitioner or any person duly authorised in that behalf.
(iv) The appellate authority may:
(a) confirm, reduce, enhance or annual the assessment, or
(b) set aside the assessment and order fresh disposal of the case with or without further enquiry, or (c ) conduct a further enquiry itself or call for a report from the lower authorities and dispose off the appeal in the light of such further enquiry or report , or
(d) pass such other orders as it deems fit:
Provided that no orders adverse to the consumer shall be passed without giving notice and opportunity for a written representation to the consumer:
Provided further that if the consumer fails to turn-up in spite of giving reasonable opportunity of being heard the appellate authority may proceed ex parte and decide the case on merits.
(v) The appellate authority shall give reasons for his conclusions except in cases where the appeal is allowed in toto. The order in appeal shall be final and binding on the consumer.
(vi) The period of assessment for malpractice and pilferage of electricity or dishonest abstraction of energy or other irregular use of energy shall be in accordance with the procedure laid down in Annexure-1:
Provided that the inspection of the meter made by the Meter reader or other representative of the Board for the purposes of meter reading shall not be deemed as inspection of the installation.
(vii) For the inspection of malpractice, pilferage or theft of energy, the supplier's representative shall have the right to access to the premises of the consumer at any time, it is needed. The supplier's representative, before entry into the premises shall disclose his identity and thereafter enter into the premisses and the consumer shall not detain him in performing the duty. Any obstruction caused in inspection of the premises will make liable the connection to be summarily disconnected forthwith besides such other actions as are permissible under these regulations."
In such circumstances, learned counsel for appellant states that admittedly, there was no assessment, therefore, finding recorded by court below is perverse and is liable to be set aside. Further there was no issue before the trial court regarding maintainability of the suit. Therefore, the Appellate Court was having no jurisdiction to take a view that suit filed by appellant was not maintainable. He has placed reliance upon a judgement of the Apex Court reported in A.I.R.1970 Supreme Court, 1298, The State of West Bengal vs. The Indian Iron and Steel Co. Ltd. and has placed reliance upon para 9 of the said judgement. The same is being quoted below:-
9. Mr. Chagla next assailed the cesses imposed on another ground. He contended that in view of the decision of this Court in Tata Iron and Steel Company's case it was not open to the assessing authority to value the coal supplied to the factories and workshops at the controlled rate; he should have as suggested in that decision disintegrated the ultimate profits earned and found out the profit earned by the mine. We are of the opinion that it is impermissible for us to go into that question in these proceedings. The liability to pay tax is one thing and mode of computation of the net profit is another. The mode of computation is a matter for the assessing authorities except where the computation is done in violation of any provision of law. If there was any mistake in the computation, that mistake should have been got rectified by following the procedure prescribed in the Act. If the respondent company was aggrieved by the mode of computation adopted by the assessing authority, it should have agitated that question firstly before that authority and thereafter before the appellate authority. Having not done so, the company cannot be permitted to raise that question in the present suit; otherwise the finality contemplated by Section 102 of the Act would become illusory. It is true, as observed by Lord Thankerton in Secy. of State v. Mask and Co., 67 Ind App 222 = (AIR 1940 PC 105) that it is settled law that the exclusion of jurisdiction of a civil court is not to be readily inferred but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled as observed by his Lordship that even if the jurisdiction is so excluded, the civil courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. In the present case what is contended is not that any provision in the Act had been ignored by the assessing authority but that Section 72 thereof has not been properly interpreted by that authority. If the provisions of the Act form a precise, self-contained code, as we hold them to be, the assessee cannot be permitted to challenge the levy on the ground that the levy imposed on him is excessive. It must be remembered that the levy under the Act is imposed by a special law which law also provides its own remedies for correcting the errors that may be committed by the assessing authority. Where a liability not existing previously is created by a statute which statute at the same time provides a special or particular remedy for correcting any mistake that may occur in its enforcement the aggrieved party must adopt the form of remedy given by the statute and no other. In Dhulabhai v. State of Madhya Pradesh , (1968) 3 SCR 662 = (AIR 1969 SC 78) our present Chief Justice speaking for the Court has formulated the circumstances under which the jurisdiction of the civil court can be invoked in the matter of a levy of tax. Therein this Court has laid down that where the statute gives a finality to the orders of the special tribunals, the civil courts' jurisdiction must be held to be excluded, if there is adequate remedy to do what the civil court would normally do in a suit. It is further laid down in that case that question of the correctness of the assessment apart from their constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authority are declared final or there is an express prohibition under the particular Act. We do not think that the civil courts have jurisdiction to examine the correctness of the computation of the net profits made by the authorities under the Act."
Taking shelter of aforesaid judgement, learned counsel for appellant submits that Apex Court has held that even if jurisdiction of civil court is excluded, civil courts will have jurisdiction to examine the cases were the provisions of the act has not been complied with or statutory authority has not acted in conformity with fundamental principles of judicial procedure. In the present case also, no assessment was made and a notice for realization of the amount has been given, therefore, the suit was maintainable.
I have considered the issue and perused the record. There is no dispute to this effect that at the time of surprise inspection, appellant was consuming electricity excess to the horse power sanctioned to him according to respondents. On that basis assessment was made and plaintiff-appellant was directed to deposit the said amount but admittedly a dispute has been raised without approaching the authority under the statute available to the appellant for that purpose. Trial court has not considered the issue in that light and decreed the suit but the Appellate Court has taken into consideration the fact that as in view of Section 23 of the U.P. Electricity Manual, appellant has a right to file an appeal and appellate remedy is more efficacious and the suit is barred in view of provisions of the act, therefore, allowed the appeal and dismissed the suit. It is well settled in law that question of jurisdiction can be raised at any stage and at any point of time being fact that if an authority or court is not having any jurisdiction, the order will be treated to be without jurisdiction at any stage. If under the Electricity Act, suit itself is barred then in that circumstances, if in spite of fact trial court has decreed the suit, being a question of jurisdiction, it is always open to the Appellate Court to go into that question of jurisdiction and can decide the same.
In 1997 (5) Judgement Today, 182, Punjab State Electricity Board & Another Vs. Ashwani Kumar, the Apex Court has held that Section 9 of the Civil Procedure Code provides that Civil Court shall try all suits of 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, 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 reviews, circulars, 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 court has been excluded. As a consequence, Civil Court was not justified in entertaining the suit and giving declaration without directing the party to avail 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. In paragraph 10, the Apex Court has observed as follows:-
"10. 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 Court shall try all suits of 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, where 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."
In view of facts and circumstances, in the opinion of the court, court below was justified in holding that if there is a remedy of appeal provided under the statute which is equally efficacious, in that contingency, suit itself cannot be held to be maintainable and Appellate Court has rightly set aside the judgement passed by the trial court and has directed appellant to approach appellate authority under Section 23 of the U.P. Electricity Manual.
In view of facts and circumstances of the case, there is no occasion to take a different view. Therefore, I am of opinion that judgement and order passed by Appellate Court is perfectly just and proper and strictly in accordance with law, therefore, the appeal is hereby dismissed.
No order as to costs.
24.3.2011 SKD