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IN THE HIGH COURT OF GUJARAT
B.N. Kirpal, Akbar Nanjibhai Divecha, JJ.
Kiran Industries, Mehsana – Appellant
Versus
Gujarat Electricity Board, Baroda and Anr. – Respondents
Appeal from Order No. 505 of 1990 and A.O. No. 165 of 1994
Decided On : 05-05-1995
ELECTRICITY - BILL - DISCONNECTION - INTERIM RELIEF - JURISDICTION OF CIVIL COURT - CONDITION NO. 34 OF THE CONDITIONS AND MISCELLANEOUS CHARGES FOR SUPPLY OF ELECTRICAL ENERGY - APPLICABILITY - SECTION 41(H) OF THE SPECIFIC RELIEF ACT, 1963 - APPLICABILITY.
Fact of the Case:
Two appeals were filed against the orders passed by the trial court in two separate suits filed by consumers challenging the legality and validity of electricity bills issued by the Gujarat Electricity Board (GEB). In one case, an interim injunction was granted against disconnection of electricity supply on condition of deposit of Rs. 50,000, while in the other case, a mandatory injunction was granted directing GEB to restore electricity connection on deposit of Rs. 7,00,000.
Finding of the Court:
The court held that the jurisdiction of the civil court to examine the legality and validity of an electricity bill issued by GEB is not barred, irrespective of whether the consumer has approached the Appellate Authority under Condition No. 34 of the Conditions and Miscellaneous Charges for Supply of Electrical Energy. The court further held that no ex parte interim relief against disconnection of electricity supply for non-payment of a bill with higher charges should be granted at the stage of institution of a suit by a consumer challenging the legality and validity of such bill, irrespective of whether or not the consumer has approached the Appellate Authority. The court also held that in a suit questioning the legality and validity of a bill without higher charges, the proper exercise of discretion for grant of interim relief against disconnection for non-payment of the bill would be to direct the consumer to pay the amount of the bill to GEB on condition that GEB would treat it as a deposit carrying the commercial rate of interest to be adjusted against future bills after the decision in the suit in case the consumer ultimately succeeds therein.
Issues: 1. Whether a suit by a consumer questioning the legality and validity of an electricity bill issued by GEB is maintainable if the consumer has not first approached the Appellate Authority? 2. If the Appellate Authority is first approached and the Appellate Authority has decided the issue, can a suit by such consumer be entertained questioning the legality and validity of the bill in question? 3. Whether it is a proper exercise of discretion to order full payment of the amount of the bill subject to the 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?
Ratio Decidendi: 1. The jurisdiction of a civil court to examine the legality and validity of an electricity bill issued by GEB is not barred, irrespective of whether the consumer has or has not approached the Appellate Authority under Condition No. 34 of the Conditions before approaching the Court with his suit. 2. No ex parte interim relief against disconnection of electricity supply for non-payment of a bill with higher charges should be granted at the stage of institution of a suit by a consumer challenging the legality and validity of such bill, irrespective of whether or not the consumer has approached the Appellate Authority first before bringing his suit to the Court. 3. Even in a suit questioning the legality and validity of a bill without higher charges issued by GEB, (where condition No. 34 is not applicable) the proper exercise of discretion for grant of interim relief against disconnection for non-payment of the bill would be to direct the suitor to pay the amount of the bill to GEB on condition that GEB would treat it as a deposit carrying the commercial rate of interest to be adjusted against future bills after the decision in the suit in case the suitor ultimately succeeds therein. Only in the rarest of rare cases, the Court would grant interim relief against disconnection without payment of the bill in question to GEB but on certain terms and conditions. This can be done only after giving cogent and convincing reasons on the basis of exceptional circumstances brought on record.
Final Decision: Appeal from Order No. 505 of 1990 was dismissed, while Appeal from Order No. 165 of 1994 was accepted and the order passed by the trial court was quashed and set aside. The respondent in the second appeal was directed to pay the entire amount of the bill to GEB for restoration of electricity supply, which was to be treated as a deposit carrying the commercial rate of interest to be adjusted against future bills in case the respondent ultimately succeeded in the suit.
JUDGMENT :
Akbar Nanjibhai Divecha, J.
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 aggrieved 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 Section 9 of the Civil Procedure Code,
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