Judgment:
G. Rajasuria, J.
1. This appeal is focussed as against the Judgment and Decree dated 27.04.2007, passed in A.S. No. 23 of 2006, by the Principal District Judge, Virudhunagar at Srivilliputhur, in setting aside the dismissal Judgment and decree dated 26.07.2006 emerged in O.S. No. 20 of 2004 on the file of Sub Court, Virudhunagar and in remanding the suit to the Sub Court, Virudhunagar for fresh disposal.
2. The parties, for convenience sake, are referred to hereunder according to their litigative status before the trial Court.
3. Broadly but briefly, precisely but narratively, the case of the plaintiff as stood exposited from the plaint could be portrayed thus:
The plaintiff filed the suit O.S. No. 20 of 2004 in the Sub Court, Virudhunagar, seeking mandatory injunction and permanent injunction on the main ground that the Electricity Board Authorities without adhering to the procedures and throwing to winds the principles of natural justice proceeded with the enquiry based on the Second show cause notice which itself was issued only at the instance of the direction given by the Honourable High Court in W.P. No. 19788 of 2001. According to the plaintiff, the authority has not given enough opportunity to put forth the case of the plaintiff that there was excess billing and that as to prove as to how the Electricity Board was wrong in calculating the consumption charges.
4. Per contra denying and refuting, challenging and impugning the allegations/averments in the plaint, the Electricity Board filed the counter, the quintessence of which would run thus:
The plaintiff illegally evaded huge electricity charges to the tune of Rs. 2,44,07,935/- (Rupees Two Crores Forty Four Lakhs Seven Thousand Nine Hundred and Thirty Five only), due to theft of electricity. When the Electricity Board took action, the plaintiff approached the Honourable High Court, whereupon the Honourable High Court set aside the first show cause notice issued by the authorities concerned and directed the authority to conduct enquiry in accordance with Rules after issuing fresh show cause notice. Thereupon, the second show cause notice was issued and the matter was processed as per law and it was concluded on 21.04.2004. However, the suit O.S.20 of 2004 was filed on 29.04.2004 without disclosing the final order passed and also without preferring appeal to the authorities concerned. The civil Court had no jurisdiction to entertain the suit of the plaintiff. Accordingly, the Electricity Board prayed for dismissal of the suit.
5. The trial Court framed the relevant issues.
6. Ultimately the trial Court dismissed the suit giving a finding that the Civil Court had no jurisdiction to entertain the suit and on the factual merits also, it was held that the plaintiff had no case.
7. Challenging and impugning the Judgment and Decree of the trial Court, the appeal in A.S. No. 23 of 2004 was filed before the District Court concerned.
8. During the pendency of the appeal, I.A. No. 266 of 2006 was filed before the appellate Court by the plaintiff and he got an order to the effect that it would be sufficient if he pays only 60% of the current consumption electricity charges. Further, the first appellate Court set aside the Decree and Judgment of the trial Court and remanded the matter to the trial Court for deciding the case as per law.
9. Being aggrieved by, such an order of remand, the present Civil Miscellaneous Appeal is focussed on the main ground that the first appellate Court was not justified in setting aside the decree and judgment of the trial Court. The first appellate Court wrongly remanded the matter.
10. The points for consideration are:
(i) Whether the Civil Court is having jurisdiction to entertain the original suit?
(ii) Whether there is any infirmity in the judgment and decree of the first appellate Court?
11. Heard both sides.
12. A resume of facts absolutely necessary and germane for the disposal of this Civil Miscellaneous Appeal would run thus.
13. Undoubtedly and indisputably the facts are as under:
On 17.03.1995 the plaintiff mill was provided with HTSC supply in HTSC No. 140. Subsequently, on 12.06.1997 power theft was deducted by the authorities concerned and demanded the plaintiff to pay Rs. 3,64,130/- (Rupees Three Lakhs Sixty Four Thousand One Hundred and Thirty only). The plaintiff preferred appeal as against it to the Chief Engineer and subsequently he paid the said sum to the Electricity Board.
14. It so happened that on 26.07.2001, another inspection was conducted by Anti Power Theft Squad and found that the plaintiff committed electricity theft by tampering with the seal and some adhesive materials in the Meter. Thereupon, the Metre itself was removed by the authorities by replacing it. On 26.07.2001, a Criminal case was registered in that connection by the Police in Crime No. 108 of 2001 at the instance of the E.B officials. Thereupon, the electricity supply was disconnected by the Electricity Authorities. On 27.07.2001, a show cause notice was issued claiming Rs. 2,44,07,035/- (Rupees Two Crores Forty Four Lakhs Seven Thousand Nine Hundred and Thirty Five only) as compensation charges by the Electricity Board. Thereupon, on 12.09.2001, the assessment order was passed by the Superintending Engineer, Virudhunagar.
15. Being aggrieved by the assessment order, writ petitions were filed challenging such assessment order. Whereupon the writ petitions were disposed on 21.03.2003 with the direction that the Electricity Board would be at liberty to proceed further as per law by issuing fresh show cause notice; in the meanwhile, the Electricity Board had to give connection to the plaintiff's mill on his depositing Rs. 24,00,000/- (Rupees Twenty Four Lakhs only) with the Electricity Board. As against which the Writ Appeal was filed in W.A. No. 1801 of 2003 and so far the condition to deposit was concerned, it was reduced from Rs. 24,00,000/- (Rupees Twenty Four Lakhs only) to Rs. 10,00,000/- (Rupees Ten Lakhs only) to be deposited with Electricity Board. Accordingly, on 10.01.2004 the Electricity supply was restored to the plaintiff's mill and a new Meter was fixed on 09.01.2004 in the mill premises.
16. On 25.06.2003 a fresh show cause notice was issued to the plaintiff by the Electricity Board Authorities. On 17.03.1995 explanation was given to the authorities concerned by the plaintiff. Enquiry was conducted on the following dates: 06.08.2003, 31.10.2003, 12.11.2003, 15.11.2003, 22.11.2003, 30.12.2003, 13.01.2004, 20.01.2004, 27.02.2004.
17. Up to these facts, there is no dispute at all. Even though assessment order was passed by the Electricity Board concerned on 21.04.2004, yet according to the plaintiff, it was not served on the plaintiff well before 29.04.2004, the date on which the original suit in O.S. No. 20 of 2004 was filed before the sub Court, Virudhunagar.
18. The plaint proceeds on the line as though as on the date of filing of the suit, the plaintiff was not in communication of the said final order which was allegedly passed by the Electricity Board authorities on 21.04.2004. However subsequently it transpired that on 21.04.2004 the Electricity Board passed orders and it was communicated later.
19. It is also just and necessary to narrate what happened during the pendency of the O.S. No. 20 of 2004 and A.S. No. 23 of 2001 for better appreciation and just disposal of the Civil Miscellaneous Appeal. On filing of O.S. No. 20 of 2004, the plaintiff filed I.A. No. 174 of 2004 and got an interim order to the effect that the plaintiff could pay only 60% of the current consumption charges and continue to enjoy the electricity supply. However, the trial Court dismissed the suit on merits as already set out supra.
20. Being aggrieved by, such order, appeal was filed before District Court, Virudhunagar. During the pendency of the appeal I.A. No. 266 of 2006 was filed so as to get the same type of interim order, which the plaintiff was enjoying during the pendency of the suit. The first appellate Court also granted such interim order.
21. Being aggrieved by such interim order passed by the first appellate Court, the Civil Revision Petition was filed which was disposed of, with the direction to dispose of the appeal itself by the District Court within a period of one month. The first appellate Court instead of deciding the case on merits picked some holes in the procedures followed by the trial Court and simply remanded the matter to the trial Court.
22. Challenging the said order of remand, the present Civil Miscellaneous Appeal has been filed as set out supra.
23. The learned Counsel for the Electricity Board would place reliance on the decision in Punjab State Electricity Board v. Ashwani Kumar reported in : [1997]2SCR1143 . An excerpt from it, would run thus:
8. The question then arises whether the civil court would be justified in entertaining the suit and issue injunction as prayed for? It is true, as contended by Shri Goyal, learned Senior Counsel, that the objections were raised in the written statement as to the maintainability of the suit but the same were given up. Section 9 of the CPC provides that the civil court shall try all suits of civil nature, subject to pecuniary jurisdiction, unless their cognizance is expressly or by necessary implication barred. Such suit would not be maintainable. It is true that ordinarily, the civil court has jurisdiction to go into and try the disputed questions of civil nature, where the fundamental fairness of procedure has been violated. The statutory circulars adumbrated above do indicate that a fundamental fairness of the procedure has been prescribed in the rules and is being followed. By necessary implication, the cognizance of the civil cause has been excluded. As a consequence, the civil court shall not be justified in entertaining this suit and giving the declaration without directing the party to avail of the remedy provided under the Indian Electricity Act and the Indian Electricity (Supply) Act and the Instructions issued by the Board in that behalf from time to time as stated above.
9. Shri Goyal has contended that the authorities do not hear the parties, nor give a reasoned order. Therefore, the parties cannot be precluded to avail of the remedy of a suit. We cannot accept such a broad and generalised proposition. When the provision for appeal by way of review has been provided by the statutory instructions, and the parties are directed to avail of the remedy, the authorities are enjoined to consider all the objections raised by the consumer and to pass, after consideration, the reasoned order in that behalf, so that the aggrieved consumer, if not satisfied with the order passed by the Board/appellate authority, can avail of the remedy available under Article 226 of the Constitution. Therefore, by necessary implication, the appropriate competent authority should hear the parties, consider their objections and pass the reasoned order, either accepting or negativing the claim. Of course it is not like a judgment of a civil court. It is then contended that the respondent has been subjected to pay huge amount of bill in a short period; hence, it is a case for interference. We find no force in the contention. May be that due to the advice given by the counsel, the respondent obviously has availed of the remedy of the suit, instead of departmental appeal. In our view, by necessary implication the suit is not maintainable. Therefore, the respondent is at liberty to avail the remedy of appeal within six weeks from today and raise the factual objections before the Board and the Board/appellate authority would consider and dispose of them, as indicated earlier, on merits.
24. The entire perusal of the aforesaid decision of the Honourable Apex Court would leave no doubt in the mind of this Court that indiscriminately Section 9 of the Code of Civil Procedure, should not be allowed to be invoked and the Court would not be justified in entertaining the suits if the plaintiff has not exhausted the remedy contemplated under the Electricity Act and the Electricity Supply Act.
25. Their Lordships of the Honourable Apex Court has clearly observed that barely on allegations that the remedy provided in the Special enactment is illusory, the parties should not be allowed to file suits.
26. The learned Counsel for the appellant also relied on the following decisions:
(i) Tamil Nadu Electricity Board v. Chakkaravarthy reported in (2005) 2 M.L.J 426.
(ii) Nahar Enterprises v. The Chairman, The Tamil Nadu Electricity Board reported in 2007 3 L.W.136.
(iii) M. Prem Selvi v. Executive Engineer (Distribution), Electricity Distribution Circle/South reported in : (2007)6MLJ471 .
27. The aforesaid three decisions are on similar facts, wherein this Court had the opportunity to come across the plaintiffs who approached the civil Court without exhausting the appeal remedy provided under the Act. This case is squarely covered by the precedents of the Honourable Apex Court and this Court cited supra.
28. Whereas the learned Counsel for the plaintiff relied on the following decisions:
(i) Ram Swarup and Ors. v. Shikar Chand and Anr. reported in : [1966]2SCR553 .
(ii) Srinivasa v. State of A.P reported in : [1970]2SCR714 .
29. Both the aforesaid decisions of the Honourable Apex Court are relating to the matters other than the Electricity Act. The first decision of the Honourable Apex Court is relating to the U.P. (Temporary) Control of Rent and Eviction act, (3 of 1947). The second decision is relating to Andhra Pradesh (Andhra Area) Estates Land (Reduction of Rent) Act, (30 of 1947). The facts leading to the ratio decedendi in those decisions are different from the facts leading to the ratio decedendi which emerged from the decision of the Honourable Apex Court in Punjab State Electricity Board v. Ashwani Kumar reported in : [1997]2SCR1143 which is a recent one and that too, it is relating to the Electricity Act itself, and it clearly applies to the lis on hand.
30. No doubt, the decision rendered in Ram Swarup and Ors. v. Shikar Chand and Anr. reported in : [1966]2SCR553 , was by the larger Bench of Honourable Five Judges and the decision in Srinivasa v. State of A.P reported in : [1970]2SCR714 was also rendered by the Honourable Three Judges Bench of the same Court. However, the decision of the Honourable Apex Court in Punjab State Electricity Board v. Ashwani Kumar reported in : [1997]2SCR1143 , is by the Division Bench of the Honourable Apex Court, but it is relating to the Electricity Act itself. The aforesaid three decisions are relating to Central Excise Act and my discussion would show as to how the recent decision of the Honourable Apex Court would be a binding precedent on this Court.
31. The learned Counsel for the plaintiff relied on the following decisions also:
(i) Punjab State Electricity Board, Patiala v. G.N. Agriculture Engineering Works reported in .
(ii) Union of India v. A.V. Narasimhalu reported in : 1983(13)ELT1534(SC) .
(iii) Assistant Commissioner of C.Ex v. Diamond Engineering (Chennai) Pvt. Ltd. reported in : 2006(203)ELT193(Mad) (Mad.)
In view of my findings supra, these three decisions are not germane for deciding this case.
32. At this juncture, I would like to refer to a passage from the famous treatise 'Salmond's Jurisprudence'. Certain excerpts from it, would run thus:
The ratio decidendi, as opposed to obiter dicta, is the rule acted on by the Court in the case. But since the common law practice is that courts should explain and justify their decisions, we normally find the rule which is applied actually stated in the judgment of the Court. Later courts, however, are not content to be completely fettered by their predecessors, and wisely so: for the development of the common law has been an empirical one proceeding step by step. When a court first states a new rule it cannot have before it all possible situations which the rule as stated might cover, and there may well be situations to which it would be quite undesirable that it should apply.... Another test is that suggested by Dr. Goodhart. According to this the ratio is to be determined by ascertaining the facts treated as material by the judge together with his decision on those facts. This test directs us away from what judges say towards what in fact they do, and indeed it is the only way of deriving a ratio in cases where no judgment is given. Where a judgment is given, however, it is from this that we must discover which facts the judge deemed material and which not. Goodhart's essay, in which he advances this test, catalogues various types of fact which may be assumed, in the absence of anything in the judgment to the contrary, to be immaterial - facts which he terms impliedly immaterial. The 'material facts' test is also valuable in stressing that propositions of law are only authoritative in so far as they are relevant to facts in issue in a case: a judicial statement of law therefore must be read in the light of the facts of the case. Further, it is valuable in pointing out that we cannot always rely on the judge's reasoning in a case since this may be patently at fault. This is especially likely to be so in cases where the judge backs up his decision with arguments of policy and justice. The only shortcoming of Goodhart's test is that while it provides a very useful method of ascertaining the ratio decidendi of a case, this does not appear to be quite the same method as that in current use in practice. For in practice the courts seem to pay more attention to the judge's own formulation of the rule of law than Dr. Goodhart's test would allow; the courts look at this, it seems, not just to discover the material facts but to discover the rule which the judge thought himself to be applying. On the other hand it is true that any such rule must be evaluated in the light of the facts considered by the court to be material.
33. The aforesaid excerpt would clearly demonstrate that the ratio decedendi of a smaller Bench of the Honourable Apex Court on a specific set of facts would be a binding precedent on all the lower Courts. Here, the decisions of the Honourable Apex Court cited supra by the learned Counsel for the plaintiff are on different set of facts relating to different Enactments.
34. However, the comparatively recent decision of the Honourable Apex Court in Punjab State Electricity Board v. Ashwani Kumar reported in : [1997]2SCR1143 , is on the Electricity Act and almost based on similar facts which are involved in this case.
35. As such, I am of the considered opinion that the decision of the Honourable Apex Court in Punjab State Electricity Board v. Ashwani Kumar reported in : [1997]2SCR1143 , is binding on this Court and the same has been followed by the other three Judges of this Court. Hence, I am of the considered opinion that the civil Court is having no jurisdiction to entertain the original suit. But, the first appellate Court committed gross error in ignoring this trite proposition of law and simply remanded the matter.
36. Hence, in these circumstances, the judgment and decree of the first appellate Court is liable to be set aside and there is no merit in it.
37. Relating to further factual aspects involved in the matter, I would like to observe that the plaintiff after getting the order from the Writ jurisdiction of this Court, enjoyed the benefit of getting second show cause notice, while so without exhausting the remedy, he simply approached the civil Court by filing the original suit exposing himself to be looked askance at his bonafides in filing such untenable suit.
38. The check electricity meter was installed as early as on 09.01.2004, which was much earlier to the filing of the suit, none the less the plaintiff got orders from both the Courts below as though he was entitled to pay only 60% of the current consumption charges.
39. Hence, for all these reasons, I am of the considered opinion that the judgment and decree of the first appellate Court should necessarily be set aside and the original suit shall stand dismissed. Since the civil Court's jurisdiction is decided in this matter, I would make it clear that it is open for the plaintiff to approach the appellate authority within the time stipulated to seek remedy excluding the time taken for prosecuting the civil proceedings till now. In order to avoid further confusion, I make it clear that within a period of thirty days from the date of receipt of a copy of this judgment, the plaintiff is at liberty to file appeal and get appropriate orders on merits including interim orders if any which the authority might be able to grant legally as per law. Consequently, connected Miscellaneous Petitions are closed. No costs.