The main legal point established in the judgment is that the Civil Court lost jurisdiction to entertain or adjudicate the dispute when the plaintiff admitted in the plaint that the CESC authorities have taken recourse to disconnection on the alleged ground of pilferage.

JUDGMENT

Hiranmay Bhattacharyya, J. - The instant application under Article 227 of the Constitution of India is directed against an order dated July 12, 2011 passed by the Civil Judge, Junior Division, Third Additional Court, Alipore in Title Suit No. 306/405 of 1997 whereby the application under Order 7 Rule 11 of the Code of Civil Procedure filed by the petitioner herein was rejected.

2. The opposite party herein filed a suit for mandatory and permanent injunction alleging that the men, agent and employees of CESC Ltd. disconnected the supply of electricity abruptly without serving any notice of disconnection of the meters upon the opposite party herein.

3. Subsequently, the plaint was amended incorporating the fact that the meters were disconnected by the CESC Ltd. alleging that there were tampering in the metering arrangement. By amending the plaint the opposite party also incorporated the prayers for declaration that the disconnection without previous notice is bad in law and for a further declaration that the demand raised by the petitioner is unsustainable and mandatory injunction for restoration and reconnection of the meters which were disconnected.

4. The petitioner filed an application under Order 7 Rule 11 of the Code of Civil Procedure (for short "the Code") praying for rejection of the plaint on the ground that the suit is barred under Section 145 of the Electricity Act 2003, (for short "the Act of 2003").

5. The opposite party herein contested the said application by filing a written objection contending that the bar of jurisdiction of the Civil Court as laid down under Section 145 of the Act of 2003 does not apply in case of pending suits as the said Act do not operate retrospectively.

6. The Learned Trial Judge by the order impugned rejected the application under Order 7 Rule 11 of the code upon holding that the Act of 2003 does not give any retrospective effect. It was further held that since the instant suit was filed in the year 1997 i.e. prior to the coming into force of the Act of 2003, the jurisdiction of the Civil Court cannot be taken away by the Act of 2003.

7. Being aggrieved against the order dated July 12, 2011, the petitioners have preferred the instant application.

8. Mr. Sanyal, the learned advocate for the petitioners submitted that in view of the provisions laid down in Section 185 (2) of the Act of 2003 the disconnection of the meters of the opposite party by the petitioner herein on the ground of tampering in the metering arrangement should be deemed to be an action taken under the provisions of the Act of 2003. He submitted that such dispute is required to be decided under Section 126 and 127 of the Act of 2003. He further submitted that Section 145 of the Act of 2003 lays down that no Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Assessing Officer referred to in Section 126 or an appellate authority referred to in Section 127 is empowered by or under that Act to determine.

9. Mr. Sanyal placed reliance upon an unreported decision of a Division Bench of this Court passed in FAT No. 3038 of 2006 subsequently renumbered as FMAT No. 2725 of 2007 with CAN 7666 of 2006 (Smt. Madhabi Mukherjee versus CESC Ltd.) in support of his submission that Civil Courts do not have jurisdiction to decide a dispute on the alleged ground of pilferage even if a suit is instituted prior to the coming into force of the Act of 2003.

10. Mr. Sanyal further argued that the actions taken by the electricity authorities under the old Act have been saved by virtue of the provisions laid down in Section 185(2)(a) of the Act of 2003. In support of such submission he referred to a decision in the case of the Executive Engineer (Distribution), Tamilnadu Electricity Board, Thiruchendur & Others versus S.J. Gayas & Ors, (2008) AIR Madras 148 .

11. Mr. Ghosh, the learned advocate for the opposite party, submitted that the disconnection as well as filing of the suit was