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Gujarat High Court
Judgename :A.N.Divecha, B.N.KIRPAL
GENERAL SECRETARY,gujarat MINERAL DEVELOPMENT CORPORATION EMPLOYEES UNION - Appellant
Versus
GUJARAT ELECTRICITY BOARD - Respondent
C.A. 505 of 1990
Decided On : 05/05/1995
It cannot be gainsaid that the aforesaid Conditions have no statutory force. They are not framed under any provision of law. They can at the best be styled as contractual relations casting obligations on the contracting parties. They cannot be pressed into service for ousting the jurisdiction of the competent Court to decide the civil dispute with respect to such bill. It thus becomes clear that the implied bar should have a reference to some statutory provisions and not de hors a statute. A consumer can invoke the jurisdiction of the competent Civil Court for questioning the legality and validity of a bill for consumption and higher charges issued by the Board without his first approaching the Appellate Authority. Such a suit by such a consumer will have to be entertained by the Court according to law. Condition No. 34 cannot therefore oust the jurisdiction of the competent Civil Court to examine the legality and validity of a bill for consumption at the instance of the consumer even if he has first approached and obtained the decision from the Appellate Authority.
[Paras 8, 11, 13 & 14]
Arbitration Act, 1940 - Sec. 34 - Civil Procedure Code, 1908 - Sec. 9 - Arbitration clause in the impugned agreement - Cannot oust the jurisdiction of Civil Court to entertain suit - However, under Sec. 34 the suit can be stayed.
Even if an arbitration clause is a part of the contract governing contractual obligations and relations between the parties, the jurisdiction of a competent Civil Court is not impliedly barred on account of existence of such arbitration clause in the contract. The proceeding of a suit based on such contract containing the arbitration clause may be stayed by pressing into service Sec. 34 of the Arbitration Act, 1940. However, the jurisdiction of the Court to entertain and, if necessary, to try the suit is not ousted by existence of such arbitration clause in a contract.
[Para 15]
Civil Procedure Code, 1908 - Sec. 9 - Jurisdiction of Civil Court - Cannot be conferred or ousted by mutual agreement.
The well known principle with respect to the jurisdiction of a competent Civil Court is that the parties by consent cannot confer jurisdiction on a Court which has no jurisdiction to try an action nor can they by consent oust the jurisdiction of a Court which has jurisdiction over the subject- matter of the suit brought before it.
[Para 16]
Civil Procedure Code, 1908 - Sec. 9 read with Order 39, Rule 1 - Discretionary remedy - Suit involving legality and validity of impugned electric bill - Court should exercise the discretionary power judiciously - Court should ordinarily direct conditional payment of bill amount.
The suit involving the legality and validity of a bill for consumption in due course is concerned, the Court will have to exercise its discretion in the light of the facts and circumstances of each case. In such a fact-situation, the consumer will have no remedy of appeal under the Conditions. Ordinarily, the consumer should be required to deposit the amount of the bill in question with the Board on stipulation that the Board would treat it as a deposit earning interest at the commercial rate in case the consumer ultimately succeeds in his case. The deposit together with accummulated interest till the date of the decision would then be appropriated towards future bills in the aforesaid manner. In exceptional cases, after obtaining proper securities from the consumer, he may not be required to pay the amount of the bill in full on condition that he will have to pay the balance amount with interest at the commercial rate in case he ultimately loses his case. Whether the suit is with respect to a bill for consumption with or without higher charges, interim relief may be granted with respect to the said bill but with respect to no other running bills unless the legality and/or validity of any such running bill is separately questioned. That would obviously be a separate proceeding to be dealt with according to law.
[Paras 22 & 23]
Civil Procedure Code, 1908 - Sec. 9 - Specific Relief Act, 1963 - Sec. 41(h) - Contractual Condition No. 34 - Validity upheld in Purshottamdas vs. Gujarat Electricity Board, 1987 (1) XXVIII GLR 637 Casex - In view of the aforesaid condition - The Civil Court can though entertain the suit but no interim relief deserves to be granted unless alternate remedy is exhausted.
As aforesaid, the jurisdiction of the Civil Court to examine the legality and validity of the bill for consumption including higher charges at the instance of the consumer without his first approaching the Appellate Authority under Condition No. 34 is not either expressly or impliedly barred. However, the consumer should be held estopped from questioning such bill for consumption including higher charges without his first approaching the Appellate Authority. In such a situation, the consumers suit may be entertained by the Civil Court but to interim relief deserves to be granted to such consumer against disconnection of electric supply for non-payement of the bill under challenge in the suit. The Civil Court is precluded from granting any relief of injunction where the suitor can obtain such relief when the suitor has an alternative efficacious remedy available to him for redressal of his grievances voiced in the proceeding before it.
[Paras 25 & 26]
( 1 ) COMMON question of fact and law are found arising in both these matters. We have, therefore, thought it fit to dispose of all these matters by this common judgment of ours.
( 2 ) APPEAL from Order No. 505 of 1990 (the main matter) is directed against the order passed by the learned Civil Judge (S. D.) at Mehsana on 28th November 1990 below the application at Exh. 5 in Special Civil Suit No. 85 of 1989. Thereby the learned trial Judge has granted an interim injunction against disconnection of electric connection No. A-683 for non-payment of one bill No. 211747 dt. 10-2-1989 for Rs. 1,11,590. 60 ps. on condition of deposit of Rs. 50,000 and also on furnishing of bond and surety for Rs. 42,000 within 15 days from the date of the order.
( 3 ) APPEAL from Order No. 165 of 1994 (the second matter for convenience) is directed against the order passed by the learned 3rd Joint Civil Judge (S. D.) at mehsana on 18th May 1994 below the application at Exh. 6 in Special Civil Suit no. 103 of 1994. Thereby the learned trial Judge has granted a mandatory injunction directing the Gujarat Electricity Board (the Board for convenience), on deposit of rs. 7,00,000 (seven lacs) by the consumer, to restore the electricity connection immediately with respect to the electric connection bearing Consumer No. ST- 1704 which came to be disconnected on account of non-payment of one bill of 22nd April 1994 for Rs. 42,12,354. 40 ps.
( 4 ) IT is not necessary to set out in detail the facts giving rise to both these matters. It would be sufficient to mention that, in each case, the consumer had instituted his suit questioning the legality and validity of the bill in question served to him. In each suit, the plaintiff prayed for an interim relief. In Special Civil Suit no. 85 of 1989 from which the main matter has arisen, the interim relief was granted on condition of deposit of Rs. 50,000 against disconnection of electric supply for non-payment of the bill for Rs. 1,11,590. 60 ps. Imposition of such condition has aggrieved the consumer-plaintiff and he has, therefore, carried the matter in appeal before this Court by means of the main matter. So far as Special Civil Suit No. 103 of 1994 from which the second matter has arisen is concerned, the learned trial judge has directed the Board, on deposit of Rs. 7,00,000 by the consumer-plaintiff in that case, to restore electric supply to the consumer-plaintiff. That order has ieved the Board and it has, therefore, questioned its correctness in appeal by means of the second matter.
( 5 ) BOTH the main matter and the second matter came up for hearing before one of us (the learned Chief Justice) and both the matters have been referred to a Division bench for their disposal in the light of the following three questions : (I) Should a suit by the consumer questioning the legality and validity of a bill for consumption issued by the Board be entertained if the consumer has not first approached the appellate authority ? (ii) If the appellate authority is first approached and the appellate authority has decided the issue, can the suit by such consumer be entertained questioning the legality and validity of the bill in question ? (iii) Can it be said to be a proper exercise of discretion to order full payment of the amount of the bill subject to condition that the same would be adjusted along with interest if the suit is decreed in case a bill is raised and the appellate authority has accepted its correctness against the consumer and a suit is filed by such consumer to challenge its legality and validity ? that is how this Division Bench is seized of the aforesaid two matters.
( 6 ) THE first question obviously, pertains to the jurisdiction of the Civil Court to entertain a suit challenging the legality and validity of a bill for consumption of electric supply by the Board. It cannot be gainsaid that, if its correctness is questioned, it would be a civil dispute. In view of Sec. 9 of the Civil Procedu
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