The Maharashtra Electricity ... vs M/S Hotel Sai Sangam Through Sunil ...
2016 Latest Caselaw 2311 Bom

                                              1                   WP-5082.16.doc


                IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                                              
                           BENCH AT AURANGABAD

                         WRIT PETITION NO. 5082 OF 2016




                                                      
     1.       The Maharashtra Electricity Distribution
              Company Limited, Mumbai, through :
              Deputy Divisional Engineer,
              M.S.E.D.C.L., Sub Division Rahata,




                                                     
              Tq. Rahata, District : Ahmednagar

     2.        Deputy Executive Engineer,                      .. Petitioners/
              M.S.E.D.C.L., Rahata,                               Orig.Defts.




                                        
              Sub Division Rahata, Dist.Ahmednagar
                               versus
                             
              M/s Hotel Sai - Sangam,
              At Nimgaon Korhale, Tq. Rahata,            .. Respondent/
              Through: Sunil Bhimashankar Sonavane,         Original
                            
              Age 44 years, occup. Business,                 Plaintiff
              R/o Nimgaon, Tq. Rahata, Dist.Ahmednagar
                          -----
              Mr. Satish M. Godsay, Advocate for petitioners
              Mr. N. L. Choudhari, Advocate for respondent-caveator
      
   



                                    CORAM :       SUNIL P. DESHMUKH, J.

                                    DATE :        5th May, 2016


     ORAL JUDGMENT :





     1.       Rule. Rule made returnable forthwith.         Heard the learned

     counsel for parties finally, by consent.

2. The proceeding bearing regular civil suit no. 108 of 2016 has

instituted by present respondent against the petitioners in the court

of Civil Judge, Junior Division, Rahata, seeking injunction against

them and their head office with declaration that the action being

taken by the petitioners is illegal.

2 WP-5082.16.doc

3. Along with plaint, the plaintiff has also filed application

Exhibit - 5 seeking temporary injunction restraining the defendants

from disconnecting energy supply of his hotel. In the meanwhile,

energy supply was disconnected and as such application Exhibit-14

had been moved by plaintiff for re-connection of the same. Both

the applications (Exhibit 5 as well as Exhibit 14) were rejected by

the trial court under an order dated 12-04-2016.

4. The order of the trial court was subjected to challenge in

Miscellaneous Civil Appeal No. 14 of 2016 before the appellate court

by the plaintiff. While deciding said appeal in favour of appellant-

plaintiff under order dated 22-04-2016, the appellate court has

considered that the jurisdiction of the civil court has been

questioned by defendants with reference to section 145 of the

Electricity Act, 2003 and that the plaintiff has a remedy under the

provisions of said Act before the Assessing Authority who can pass

final order of assessment after giving opportunity to the parties. A

further appeal is provided against the order of the assessing

authority. Under the circumstances, the issue with regard to

jurisdiction arises and as such the trial court ought to have framed

preliminary issue to that effect pursuant to section 9A of the Code

of Civil Procedure, 1908 before deciding applications for interim

relief. The appellate court considered that the decision rendered

by the trial court would tantamount to a decision upon the issue of

jurisdiction without adducing evidence and affording opportunity to

3 WP-5082.16.doc

the parties. The issue, according to the appellate court, has been

dealt with by the trial court without framing the same. The

appellate court as such considered that the trial court's order is

unsustainable and it would be expedient that preliminary issue

according to section 9A of the Code of Civil Procedure be framed

and decided and in case it is decided in the affirmative holding

jurisdiction in favour of the trial court, applications for interim relief

be decided.

5.

The appellate court while passing the order had also directed

defendants to restore energy supply to the plaintiff o the condition

of deposit of arrears towards unauthorized use of energy supply for

a period of six months before assessment order. Learned counsel

for the petitioner submits that after amendment to section 126 of

the Electricity Act, such period is increased to one year and as such

there is an error creeping in, in the order of appellate court while

directing deposit of arrears of six months instead of one year.

6. Having regard to aforesaid, I do not think that this is a case

wherein discretion should be exercised in favour of the petitioners-

defendants. Let the action proposed by appellate court to proceed

with, only with a modification that period for deposit of arrears

should be of one year and not six months. The impugned order as

such, stands modified by replacing one year period in place of six

months.

4 WP-5082.16.doc

7. Writ petition stands disposed of. Rule discharged.

8. It is expected that the trial court would frame necessary

issue immediately and proceed with and decide the same as early

as possible, preferably within a period of ten weeks from the date

of receipt of writ of this order.

                              ig              SUNIL P. DESHMUKH,
                                                    JUDGE
                            
     pnd