CRP/6098/2006 of Ramachanrapuram Educational Society, Vs Andhra Pradesh Eastern Power Distribution Corporation Ltd., on 29 December 2009

O R D E R:

1. This Civil Revision Petition is directed against the order dated 15-11-2006 passed in C.M.A.No.41 of 2003 on the file of Senior CivilJudge, Ramachandrapuram, whereby and where under the learnedSenior Civil Judge allowed the appeal setting aside the order dated22.8.2003 passed in I.A.No.1208 of 2003 in O.S.No.320 of 2003 on thefile of Principal Junior Civil Judge, Ramachandrapuram.

2. Background facts of the case, in a nutshell, are:

Ramachandrapuram Educational Society represented by itsPresident and Correspondent, Sri.M.V.V.Satyanarayana Rao, andVundavilli Satyanarayana Murthy College, Ramachandrapuramrepresented by its Principal R.Ganga Rao are the plaintiffs inO.S.No.320 of 2003. The 1[st] plaintiff is the educational societyregistered under the Societies Registration Act. It established 2[nd]plaintiff educational institution. The 1[st] plaintiff obtained serviceconnection Nos.1962 and 7902 under Category VII. On 27.1.2003 AEDPE-I, Rajahmundry inspected the Service connection of 2[nd] plaintiff-college and found that the college is utilizing power supply issued forgeneral purpose to other stipulated purposes i.e. non-governmental-institutions. He prepared inspection notes and sent inspection report to ADE, Ramachandrapuram for taking necessary action by issuing initialassessment notice changing from category VII to II. Subsequently,ADE/O/Ramachandrapuram issued notice on 11.3.2003 to 2[nd] plaintiffand provisionally estimated the energy used and directed the 2[nd]plaintiff to pay. The same inspecting Officer sent another inspectionreport dated 5.5.2003 and assessed the shortfall. Revised initialassessment notice dated 14.5.2003 came to be issued to the plaintiffs.Meanwhile, the plaintiffs filed the suit challenging the notice dated11.3.2003. They also moved I.A.No.1208 of 2003 under Order 39Rules 1 and 2 r/w 151 CPC seeking temporary injunction restrainingthe defendants and their authorities from disconnecting the serviceconnection Nos.1962 and 7902.

3. D5 filed counter resisting the application. D5 pleaded in thecounter that the plaintiffs having obtained service connections undergeneral category are using the energy for other purposes and thereforethe category of service connections has been changed from VII to IIand accordingly the shortfall of the payment came to be assessed. D5also pleaded in the counter that they have got every right to alter theclassification and revise the bills if they are satisfied that the earlierclassification is not correct. From 4.6.2000 onwards, the revision oftariff came to be effected by treating the educational institutions andnon-governmental institutions or private trusts under category II insteadof category VII.

4. On behalf of the plaintiffs, 6 documents were marked as Exs.A1 toA6 and on behalf of the defendants, 5 documents were marked asExs.B.1 to B.5. The learned Junior Civil Judge, on considering thematerial brought on record and on hearing learned counsel appearingfor the parties, held that the plaintiffs are entitled for temporaryinjunction and accordingly allowed the application filed by the plaintiffsunder O.39 Rules 1 and 2 and Sec.151 CPC by an order dated

22.8.2003. The defendants assailed the said order by filingC.M.A.No.41 of 2003 on the file of Senior Civil Judge,Ramachandrapuram. The learned Senior Civil Judge, on hearinglearned counsel appearing for the parties and on re-appraisal of thematerial brought on record, came to the conclusion that the trial Courthas no jurisdiction to entertain the dispute regarding billing andaccordingly allowed the appeal setting aside the order of injunctiongranted by the trial court by an order dated 15.11.2006. The said orderis assailed in this revision.

4. Heard learned counsel appearing for the petitioners/ plaintiffs andperused the order impugned in the revision.

5. Learned counsel appearing for the petitioners/plaintiffs submitsthat the 2[nd] petitioner is an aided college with under graduate and postgraduate courses and as such it is entitled to have service connectionsunder category VII. A further submission has been made that the suitfiled by the petitioners/plaintiffs is maintainable and in which case theorder passed by the appellate court is liable to be set aside andconsequently the order of the trial court is to be restored.

6. Indisputably, the petitioners/plaintiffs have S.C.Nos.1967 and7902. They secured the service connections under category VII. TheInspecting Officer, AE/DPE, inspected the premises of the 2[nd] plaintiffand prepared the inspection report on 27.1.2003. Ex.B.2 is theinspection report. As per Ex.B.2 inspection report, the 2[nd]petitioner/college is utilizing the energy for the purposes other thanauthorized one. Hence, shortfall is assessed and a demand has beenmade on the petitioners/plaintiffs to make good the shortfall. It appearsthe plaintiffs invoked the jurisdiction of the appellate authority underthe provisions of Electricity Act, 2003 and filed an appeal. Pending theappeal, they invoked the jurisdiction of civil court by filing a suit andsought for temporary injunction. As per Sec.145 of Electricity Act, 2003, civil court is barred to entertain a suit or proceeding in respect ofany matter which an Assessing Officer referred to under Sec.126. Forbetter appreciation Sections 126, 127 and 145 of the Electricity Act,2003 are extracted as under:

“ 126 Assessment:

(1) If on an inspection of any place or premises or after inspection of the equipments,gadgets, machines, devices found connected or used, or after inspection of recordsmaintained by any person, the assessing officer comes to the conclusion that suchperson is indulging in unauthorized use of electricity, he shall provisionally assess tothe best of his judgment the electricity charges payable by such person or by anyother person benefited by such use.

(2) The order of provisional assessment shall be served upon the person inoccupation or possession or in charge of the place or premises in such manner asmay be prescribed.

1 In section 126 of the principal Act, for sub-section (3) substituted, by Electricity(Amendment) Act, 2007. Previous sub-section is as follows:- (3) The person, onwhom a notice has been served under sub-section (2), shall be entitled to fileobjections, if any, against the provisional assessment before the assessing officer,who may, after affording a reasonable opportunity of hearing to such person, pass afinal order of assessment of the electricity charges payable by such person.(3) Theperson, on whom an order has been served under sub-section (2), shall be entitled tofile objections, if any, against the provisional assessment before the AssessingOfficer, who shall, after affording a reasonable opportunity of hearing to such person,pass a final order of assessment within thirty days from the date of service of suchorder of provisional assessment, of the electricity charges payable by such person.";

(4) Any person served with the order of provisional assessment may, accept suchassessment and deposit the assessed amount with the licensee within seven days ofservice of such provisional assessment order upon him:

2 In section 126, in sub-section (4), the proviso shall be omitted by Electricity(Amendment) Act, 2007 Omitted proviso is following:- Provided that in case the casedeposits the assessed amount, he shall not be subjected to any further liability or anyaction by any authority whatsoever.[***](Proviso)

3 In section 126 of the principal Act, for sub-section (5), substituted, by Electricity(Amendment) Act, 2007 Previous sub-section is as follows:- (5) If the assessingofficer reaches to the conclusion that unauthorized use of electricity has taken place,it shall be presumed that such unauthorized use of electricity was continuing for aperiod of three months immediately preceding the date of inspection in case ofdomestic and agricultural services and for a period of six months immediatelypreceding the date of inspection for all other categories of services, unless the onusis rebutted by the person, occupier or possessor of such premises or place.(5) If theAssessing Officer reaches to the conclusion that unauthorized use of electricity hastaken place, the assessment shall be made for the entire period during which suchunauthorized use of electricity has taken place and if, however, the period duringwhich such unauthorized use of electricity has taken place cannot be ascertained,such period shall be limited to a period of twelve months immediately preceding thedate of inspection.";

(6) The assessment under this section shall be made at a rate equal to 4 In section 126 of the principal Act, in sub-section (6), for the words "one-and-half times", theword "twice" shall be substituted by Electricity (Amendment) Act, 2007[twice] thetariff applicable for the relevant category of services specified in sub-section (5).Explanation: For the purposes of this section,- (a) "assessing officer" means an officer of a State Government or Board or licensee,as the case may be, designated as such by the State Government;(b) "unauthorized use of electricity" means the usage of electricity-(i) by any artificial means; or

(ii) by a means not authorized by the concerned person or authority or licensee; or

(iii) Through a tampered meter; or

5 In section 126, in the Explanation occurring at the end, in clause (b), for sub-clause(iv), sub-clauses (iv) and (v) shall be substituted, by Electricity (Amendment) Act,2007 Previous sub-clause (iv) is as follows:- (iv) for the purpose other than for whichthe usage of electricity was authorized.(iv) for the purpose other than for which theusage of electricity was authorized; or 6 In section 126, in the Explanation occurring at the end, in clause (b), for sub-clause(iv), sub-clauses (iv) and (v) shall be substituted, by Electricity (Amendment) Act,2007 Previous sub-clause (iv) is as follows:- (iv) for the purpose other than for whichthe usage of electricity was authorized.(v) for the premises or areas other than thosefor which the supply of electricity was authorized."

127 Appeal to appellate authority:

(1) Any person aggrieved by a final order made under S.126 may, within thirty days ofthe said order, prefer an appeal in such form, verified in such manner and beaccompanied by such fee as may be specified by the State Commission, to anappellate authority as may be prescribed.

(2) No appeal against an order of assessment under sub-section (1) shall beentertained unless an amount equal to 1 In section 127 of the principal Act, in sub-section (2), for the words "one-third of the assessed amount", the words "half of theassessed amount", shall be substituted by Electricity (Amendment) Act, 2007[half ofthe assessed amount] is deposited in cash or by way of bank draft with the licenseeand documentary evidence of such deposit has been enclosed along with the appeal.

(3) The appellate authority referred to in sub-section (1) shall dispose of the appealafter hearing the parties and pass appropriate order and send copy of the order to theassessing officer and the appellant.

(4) The order of the appellate authority referred to in sub-section (1) passed under sub-section (3) shall be final.

(5) No appeal shall lie to the appellate authority referred to in sub-section (1) againstthe final order made with the consent of the parties.

(6) When a person defaults in making payment of assessed amount, he, in addition tothe assessed amount shall be liable to pay, on the expiry of thirty days from the dateof order of assessment, an amount of interest at the rate of sixteen per cent perannum compounded every six months.

145 Civil court not to have jurisdiction:

Section No civil court shall have jurisdiction to entertain any suit or proceeding inrespect of any matter which an assessing officer referred to in S.126 or an appellateauthority referred to in S.127 or the adjudicating officer appointed under this Act isempowered by or under this Act to determine and no injunction shall be granted byany court or other authority in respect of any action taken or to be taken in pursuanceof any power conferred by or under this Act.”

7. Since the assessment has been made u/s 126 and the same hasbeen challenged by the plaintiffs before the appellate court u/s 127,invoking the jurisdiction of the civil court for the selfsame relief cannotbe sustained. The appellate court has discussed this aspect in para 15

of the judgment impugned in this revision, which reads as under:

“ 15. The respondents claims that there are two differentcharges levied under VII and category II. As per the category VII only publiccharitable trusts and societies registered under societies act runningeducational and medical and non-profitable basis are entitled to get billingunder category No.VII. Whereas the educational institutions run byindividuals non-governmental institutions and private trusts are classifiedunder category No.II. As per the terms and conditions of 35 where aconsumer has been under particular category and is billed accordingly and itis subsequently, observed that the classification is not correct, the boardmay alter the classification and suitably revise the bills if necessary evenretrospectively. Accordingly, they found in the inspection that theconsumption is utilized for non-governmental purposes, accordingly issuedbill basing on Ex.B.1 revised bill was issued. As per the Indian ElectricityA.P. Amendment Act, 2000 i.e., Act.35/2000 under section 49-1 SpecialTribunal was constituted under this act shall have jurisdiction to decide anydispute relating to correctness and otherwise of any meter. As per thesection 45 of Indian Electricity Act 2003, no civil court shall have jurisdictionto entertain any suit or proceedings in respect of any matter which assessingofficer referred under section 126 and appellate authority referred undersection 127 or adjudicate officer appointed empowered to determine and noinjunction can be granted by the court. As per the decision relied upon by thecounsel for the appellant, the civil court shall not be justified in entertainingthe suit and giving declaration without directing the party to avail remedyprovided under electricity act. Here, the lower court did not consider theseaspects. As per G.O.Ms.No.180/1 dated 18.10.2003, the court of AdditionalDistrict and Sessions Judge was appointed as special court under section153 of Electricity Act. Therefore, I feel the lower court has no jurisdiction toentertain the disputes regarding billing and grant injunction. Even as per theclaim of the respondent, the bill amount is about Rs.2,50,000/- which waschallenged by the petitioner respondent but the court fee is paid onlyRs.2,000/- under section 24 (A) of A.P.C.F.Act instead of section 24(d).Therefore, the suit itself is not maintainable as the petitioner failed toapproach concerned Tribunals under electricity act and did not approach thecompetent Tribunal and approached the Principal Junior Civil Judge’s Court,which has no jurisdiction and the suit is not properly valid and the lower courtalthough granted injunction, failed to consider that minimum charges arerequired to be paid by the society subsequently also and reclassification canbe challenged before concerned authorities and need not refuse challengebefore the court.”

Since the plaintiffs had invoked the jurisdiction of the appellateauthority as provided u/s 126, the civil suit filed by them questioning the assessment made by the defendants is not maintainable.

8. Accordingly, this Civil Revision Petition is devoid of merits and itis hereby dismissed.

29[th] December, 2009. (B.Seshasayana Reddy,J)tnb

C.R.P.NO.6098 OF 2006

29[TH] DECEMBER, 2009.