Calcutta High Court (Appellete Side)
Limited & Anr vs Suresh Chandra Rooj on 27 July, 2021
27.07.2021
7
ns Ct.04
S.A. 236 of 2010
West Bengal State Electricity Distribution Company
Limited & anr.
Vs.
Suresh Chandra Rooj.
Mr. Sumit Ray ............ for appellants.
Mr. Ray, learned advocate appears on behalf of
appellants and presses for admission of the second appeal
on ground no.IV, to be formulated as the substantial
question of law. The ground is reproduced below:-
"IV. For that the Learned Appeal Court
failed to appreciate the true meaning
and purpose of the schedule appended
to the Indian Electricity Act, 1910 under
Section 3, Sub-Section (2), Clause (f)
whereby the Electrical Inspector was
empowered to decide any difference or
dispute arises as to the amount of
energy to be taken. Therefore it is not
correct to hold by the Appeal Court that
Electrical Inspector can only decide the
issue whether meter is correct or not,
and as such the impugned judgement
passed by the Learned Appeal Court in
Title Appeal No.47 of 2006 dated
September 20, 2008 is bad in law and
should be set aside."
2
The trial Court by judgment dated 10th May,
2006 dismissed the suit on contest against defendant no.2
and ex parte against defendant no.1, without costs. Issues
framed by said Court were as follows:-
"1(a) is formulated at the time of
Judgment-
1) Is the suit maintainable in its present
form?
1.
a) Has the plaintiff any cause of
action for filing the instant suit?
2) Is the suit barred u/s 34 of S.R. Act?
3) Is the suit barred by law of estoppel,
waiver and acquiescence?
4) Whether the plaintiff is bona fide
customer of the defendant?
5) Whether any arrear amount is lying
due by the plaintiff for consuming
electricity?
6) To what other relief, if any, is the
plaintiff entitled?"
Plaintiff laid evidence both oral and documentary while
defendants did not. Issue nos.1, 1(a) and 4 to 6 were
decided against plaintiff and issue nos.2 and 3, in his
favour. Plaintiff appealed.
Lower appellate Court by judgment dated 20 th
September, 2008 set aside the trial Court's judgment. Said
Court found that sub-section (6) in section 26, Indian
Electricity Act, 1910 was not a bar to maintainability of the
suit. Sub-section (6) says as follows:-
"(6) Where any difference or dispute arises
as to whether any meter referred to in
sub-section (1) is or is not correct the
matter shall be decided, upon the
application of either party, by an Electrical
Inspector; and where the meter has, in the
opinion of such Inspector ceased to be
correct, such Inspector shall estimate the
amount of the energy supplied to the
consumer or the electrical quantity
contained in the supply, during such time,
not exceeding six months, as the meter
shall not, in the opinion of such Inspector,
have been correct; but save as aforesaid,
the register of the meter shall, in the
absence of fraud, be conclusive proof of
such amount or quantity:
Provided that before either a licensee or a
consumer applies to the Electrical
Inspector under this sub-section, he shall
give to the other party not less than seven
days' notice of his intention so to do."
We have perused both the judgments and
sections 24 and 26. Mr. Ray, in moving the appeal relied
on clause (3) in paragraph VI in the Schedule to the Act.
Said clause is reproduced below:-
"(3) Where any difference or dispute
arises as to the amount of energy to be
taken or guaranteed as aforesaid, or as
to the cost of any service-line or as to
the sufficiency of the security, offered
by any owner or occupier, [or as to the
position of the meter board] or as to the
improper use of energy, or to any
alleged defect in any wires, fittings,
works or apparatus, or as to the amount
of the expenses incurred under the third
proviso to sub-clause (1), the matter
shall be referred to an [Electrical
Inspector] and decided by him."
We ascertained from Mr. Ray that the Act did
not bar or oust jurisdiction of civil Court. He submits,
under the new Act there is a bar.
The lower appellate Court found on facts that
defence case of non-payment could not be sustained.
Positive case of plaintiff by oral and documentary evidence,
showing payment of bills raised, was proved. Said Court
went on to say that plaintiff had never disputed working of
the meter. It also did not go into plaintiff's contention that
the bills were incorrect but found plaintiff had paid them.
Hence, there was judgment restraining defendants from
seeking to recover on the bills. Defendants being aggrieved
have come before this Court.
The lower appellate Court having decided on
facts, no substantial question of law arises. It is a
consequence that appellant cannot discontinue the supply
on bills paid. The provision in the schedule, urged on
behalf of appellant is clearly inapplicable.
The appeal is dismissed.
(Arindam Sinha, J.)
(Saugata Bhattacharyya, J.)
