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Rajasthan High Court
Bhargava, J.
Sadul Shahar Cotton Ginning & Pressing Factory - Appellant
Versus
Rajasthan State Electricity Board - Respondents
S.B. Civil First Appeal No. 21 of 1971
Decided On : November 12, 1971
Firm Sadul Shahr Cotton Ginning and Pressing Factory Sadulshahr whose supply of electricity four the purpose of running the factory remained disconnected from 28/03/1965 to l5/04/1965, instituted the present suit against the Rajasthan State Electricity Board for recovery of Rs. 10993/-as damages. The suit is founded both on tort and on contract, but the lower court has found that no agreement was executed between the parties.
In this court the main point which has been canvassed is whether the plaintiff can bring an action for damages for breach of statutory duty when the Electricity Act lays down a penalty for non-performance of that duty.
There is no room for doubt that sec. 18 read with cl. (6) of the Schedule to the Act of 19i0 makes it incumbent upon the Board as licensee to supply provided the Board is competent to supply it under the Act. No doubt there are some provisions in the Electricity Act which are for the benefit of the public and it may be that in such cases the penalty provided under sec. 42 of the Act of 1910 may be the exclusive remedy but where as in the present case the duty is owed primarily to the individual and not incidentally, it could not have been the intention of the Legislature that a breach of the obligation is exclusive and no separate action in a civil court is maintainable. Besides this, though sec. 42 of the Act of 1910 provides a penalty to be imposed by a Magistrate on prosecution where the licensee without reasonable excuse, discontinues the supply of energy or fails to supply energy, but this is of little consolation . to the individual like the plaintiff who cannot be adequately compensated for the loss suffered by him even if some compensation is allowed to him by the Magistrate. Further the Electricity Act of 1910 and the Act of 1948 do not contain any provision which expressly or impliedly bar the jurisdiction of the civil court to entertain a suit of the present nature.
The only protection under cl. (1) is to a public officer or any servant of a local authority and that too for acts done or purporting to have been done in good faith. Cl. (1) does not cover the case of a licensee or Board as it is neither a public officer nor servant of a local authority.
Sec. 82 which immediately follows sec. 81 was, intended to protect only the persons which are mentioned in sec. 81 and who have a physical entity and not the Board, which is a person only in the eye of law. The Board is required to discharge various duties under the Act and keeping in view those functions and duties it cannot be held that the protection against suit and prosecution was intended to be given to the Board also. (paras 2, 7, ll, 15.17 and 19)
2. Firm Shadul Shahr Cotton Ginning and Pressing Factory Sadulshahr whose supply of electricity for the purpose of running the factory remained disconnected from 28th March, 1965, to 15th April, 1965, instituted the present suit against the Rajasthan State Electricity Board (hereinafter to be referred as the Board) for recovery of Rs 10993/. as damages. The suit is founded both on tort and on contract, but lower court has found that no agreement was executed between the parties, although plaintiffs case was that it had submitted the agreement to the defendant but the same was not returned after completion. The ground on the basis of contract ii not pressed in this Court. It was also alleged in the court below that the disconnection was due to the malicious action of Shri Prishan Singh, Assistant Engineer of the Board, who wanted to disconnect the plaintiffs supply of energy on 8-2-1965 also but it could not be done then due to the intervention of the Additional Chief Engineer who happened to be there on that date. However supply of energy was disconnected on 28th March, 1965, without any legal justification. Due to the aforesaid disconnection, the plaintiff could not fulfil the commitments which he had made with third parties and thus suffered a loss of Rs. 10993.
3. It is not disputed that in the first instance, plaintiff was supplied 100 H.P. energy which was increased to 125 H. P. on 16-1-1965. Though the case of the defendant in the lower court was that connection was given to the plaintiff temporarily on his request for testing the machinery, there is no substance in this plea because in para 14 of the written statement it is admitted that the power supplied to the plaintiff was given to run the factory. Again this plea is not borne out by the letters which were exchanged between the parties when connection was given.
4. It is admitted that the plaintiff was disconnected from 28th March, 1965, to 15th April, 1965, though it is denied that it was due to any malicious act on the part of the employees of the Board including Shri Prishan Singh. It was also denied that the plaintiff suffered damages due to the disconnection. The plea of the defendant is that the disconnection was effected in order to make it convenient for the railway authorities to inspect the over-head electric crossing and the overhead electric crossing could not have been energised unless the permission of the railway authorities was obtained. The railway authorities characterised the action of the Board in energising the over-head high tension crossing as unauthorised and so the Divisional Superintendent, Northern Railway Bikaner demanded that the crossing should be unenergised for inspection. It was also stated that sec. 82 of the Electricity (Supply) Act, 1948, is a bar to the suit.
5. The trial court framed 15 issues of which issues Nos. 2, 3, 4, 5, 6, 8, 10 and 14 are as follows : —
"[2] Whether! the Deft. sanctioned 125 HP power and a contract was executed between the parties to continue the same for 5 years ?
[3] Whether Prishan Singh Assistant Engineer with a malafide intention to cause harassment to the plaintiff discontinued the power supply to the plaintiff factory on 28-3-65 ?
[4] Whether the plaintiff factory remained closed for 19 days due to the illegal disconnection of power by defendant ?
"[5] Whether the plaintiff has suffered Rs. 10993 as damages and loss and the plaintiff is entitled to recover the same from the Rajasthan State Electricity Board ?
[6] Was there any contractual or legal obligation on the defendant to supply power to the plaintiff without interruption ?
[8] Whether the defendant is liable for the malafide actions of Prishan Singh A. E. N.
[10] Whether the suit is basted by sec.82 of the Electricity [Supply] Act, 1948 ?
[11] Whether the suit is barred by sec. 56 of the Indian Electricity Act ?"
6. After
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