This appeal is preferred against the decree & judgment, dated 21.06.2011, passed in O.S.No.228 of 2006 on the file of the Court of IV Additional District Judge, Fast Track Court, Tanuku, West Godavari District.
2. Heard Sri T.V.Jaggi Reddy, learned counsel for the appellant and Ms. Haritha, learned counsel representing Sri Metta Chandrasekhar Rao, learned counsel for the respondent.
3. The pleadings of the parties, in brief, are:
(a) The plaintiff’s rice mill is situated in Penugonda with service connection No.2889, Category No.3 contacted load of 60 HP+740 watts. Earlier, the plaintiff filed O.S.No.116 of 1997 on the file of the Court of Senior Civil Judge, Tanuku, seeking declaration challenging the demand notice issued by the defendant. Consequent upon dismissal of the said suit in O.S.No.116 of 1997, the defendant again issued notice, dated 26.08.2006 to the plaintiff demanding payment of Rs.55,120/- + Rs.3,302/- towards costs in O.S.No.116 of 1997. The said suit was dismissed giving right to the defendant to collect surcharge at the rate of 0.07 paise per day per Rs.100/- from 29.09.1997. The plaintiff gave reply, dated 27.09.2006, along with a demand draft bearing No.206252, drawn on State Bank of India, Tanuku, for Rs.55,120/- towards the balance amount against the proceedings of Chief Engineer, demanding to pay Rs.1,11,717/-, wherein no surcharge is claimed therein. While the matter stood thus, the defendant issued proceedings to pay late payment charges of Rs.1,37,303/- . Since there was genuine dispute with regard to the assessment made questioning the correctness and the matter is pending in competent Court, the defendant is not entitled to demand surcharge. The defendant has no right to claim such surcharge.
(b) Hence, the plaintiff brought the suit against the defendant for a declaration that the demand made by the defendant in Lr.No.AAO/ERO/TNK/JAO-III/Mly.Billing/D/No.2042/06, dt. 26.10.2006 is illegal, arbitrary and unenforceable, and for permanent injunction restraining the defendant, his men and agents from enforcing the demand and taking coercive steps for collecting the amount of Rs.1,37,303/- in any manner whatsoever including disconnection of the service connection No.2889, category III(B), Penugonda.
4. The defendant filed written statement denying the plaint averments and contending that the suit is not maintainable under the provisions of the Electricity Act. This Court has no jurisdiction to entertain the suit questioning the assessments etc. The suit is barred under the principle of res judicata. The Court, after elaborate trial in O.S.No.116 of 1997, rejected the contention of the plaintiff, and thereby, the defendant is entitled to recover the dues. The present surcharge proceedings are demanded by the department, as per the terms and conditions of supply within the purview of Electricity Supply Act, 2003. The plaintiff is not entitled for declaration and consequential relief of permanent injunction preventing the department from recovering the dues and in default to disconnect the service connection. The suit is bad for not impleading the Chairman and Managing Director of the company. There is no cause of action to file the suit. There is no prima facie case and balance of convenience in favour of the plaintiff. The suit is liable to be dismissed with costs.
5. Basing on the above pleadings, the trial Court framed the following issues for trial:
(i) Whether this Court has no jurisdiction to entertain the suit in view of the provisions of Electricity Supply Act, 2003?)
(ii) Whether the principles of res judicata is applied to the present suit?
(iii) Whether the suit is bad for non-joinder of necessary parties?
(iv) Whether the plaintiff is entitled for declaration and consequential relief of permanent injunction as prayed for?
(v) To what relief?
6. On behalf of the plaintiff, PW1 was examined and exhibits A1 to A4 were marked. The defendant was examined as DW1 and no documents were marked on the side of the defendant.
7. After hearing the parties and on considering the evidence on record, the trial Court dismissed the suit with costs observing that when the suit was once dismissed, the plaintiff is not entitled to approach the Court again questioning the amount claimed. Further, when the plaintiff filed the suit against the company, the Chairman and Managing Director has to be impleaded. The plaintiff failed to establish his legal right to seek for declaration and for consequential relief of permanent injunction and accordingly dismissed the suit as not maintainable.
8. The appellant, in the grounds of appeal, primarily urged that there is no reference of any surcharge to be collected from the appellant in the order of the Chief Engineer; that in the earlier suit, the trial Court did not pass any decree for collection of surcharge on the amount due; that the respondent/defendant having contested the earlier suit, has not made any counter claim for collection of surcharge on the amount due; that for no fault of the appellant, he was issued a bill to pay abnormal amount; and that when the original bill was issued in the year 1996, the Electricity Act, 2003 was not enacted.
9. The main contention of the appellant/plaintiff is that the plaintiff is not liable to pay late payment charges since there was a genuine dispute with regard to the assessment made questioning its correctness.
10. On the other hand the defendant contested the suit mainly on the ground that the civil Court has no jurisdiction to entertain this suit as per the provisions of the Electricity Act, 2003 and further, as the Chairman & Managing Director of the Andhra Pradesh Eastern Power Distribution Company Limited (APEPDCL) is not made a party. It is also contended that the suit is barred by principle of res judicata as the judgment and decree in O.S.No.116 of 1997 has become final with regard to the demand notice, dated 26.10.2006.
11. The first question of application of principle of res judicata does not apply as the earlier suit was filed in respect of liability based on assessment, whereas the present suit is filed in respect of demand raised for the late payment of such dues, and thus, the issues involved in both the suits are quite different.
12. Nextly, coming to the aspect of the maintainability of the suit is concerned, it is contended by the learned counsel for the respondent that the impugned notice was issued in the year 2006, i.e., on 26.10.2006, whereas, the new Act has come into force on 26.05.2003 and thus, as per Section 145 of the new act, the jurisdiction of civil Court is barred in respect of matters which are covered by the authorities created under the Act. Section 145 of the Act reads as under:
“145. Civil Court not to have jurisdiction:- No civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which an assessing officer referred to in Section 126 or an appellate authority referred to in Section 127 or the adjudicating officer appointed under the Act is empowered by or under this Act to determine and no injunction shall be granted by any court or authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.”
13. In this regard, the contention of the learned counsel for the appellant is that since the liability demanded is in respect of liability that arose under the old Act, and it is only a continuation in claiming late payment charges, the new Act has no application. It is not the case of the appellant that if the case falls under the provisions of the new Act, Section 145 does not apply to the facts of the present case.
14. Therefore, now, it is to be examined further in the light of the contention of the appellant.
15. Section 185 of the Electricity Act, 2003, deals with repealing and saving provisions. Section 185 reads as follows:
185. Repeal and saving.- (1) Save as otherwise provided in this Act, the Indian Electricity Act, 1910 (9 of 1910), the Electricity (Supply) Act, 1948 (54 of 1948) and the Electricity Regulatory Commissions Act, 1998 (14 of 1998) are hereby repealed.
(2) Notwithstanding such repeal,-
(a) anything done or any action taken or purported to have been done or taken including any rule, notification, inspection, order or notice made or issued or any appointment, confirmation or declaration made or any licence, permission, authorization of exemption granted or any document or instrument executed or any direction given under the repealed laws shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this Act.
(b) the provisions contained in Sections 12 to 18 of the Indian Electricity Act, 1910 (9 of 1910) and rules made thereunder shall have effect until the rules until the rules under Sections 67 to 69 of this Act are made;
(c) the Indian Electricity Rules, 1956 made under Section 37 of the Indian Electricity Act, 1910 (9 of 1910) as it stood before such repeal shall continue to be in force till the regulations under Section 53 of this Act are made;
(d) all rules made under sub-section (1) of Section 69 of Electricity (Supply) Act, 1948 (54 of 1948) shall continue to have effect until such rules are rescinded or modified, as the case may be;
(e) all directives issued, before the commencement of this Act, by a State Government under the enactments specified in the Schedule shall continue to apply for the period for which such directions were issued by the State Government.
(3) The provisions of the enactments specified in the Schedule, not inconsistent with the provisions of this Act, shall apply to the States in which such enactments are applicable.
(4) The central Government may, as and when considered necessary, by notification, amend the Schedule;
(5) Save as otherwise provided in subsection (2), the mention of particular matters in that section, shall not be held to prejudice or affect the general application of Section 6 of the General Clauses Act, 1897 (10 of 1897), with regard to the effect of repeals.”
Thus, as per Section 185(2) of the Act, not withstanding repeal of the previous legislations on electricity referred in sub-section (1), anything done or any action taken or purported to have been taken or taken including order or notice etc., the same shall be deemed to have been done or taken under the corresponding provisions of the new Act.
16. Here, it is also pertinent to refer to Section 6 of the General Clauses Act, 1897 which deals with the effect of repeal. It reads as under:
“6. Effect of Repeal:- Where this Act, or any [Central Act] or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not—
(a) revive anything not in force or existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;
and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.”
A combined reading of Section 6(c) of the General Clauses Act and Section 185(2) of the Electricity Act, 2003, would support the contention of the respondent that the provisions of the Electricity Act, 2003 are applicable to the present case since the impugned notice was ordered after coming into force of the new Act, 2003.
17. In the light of the above provisions, the contention of the appellant that the provisions of the Electricity Act, 2003, do not apply cannot be accepted since no inconsistency between the previous legislation and the new Act has been shown. The deeming provision renders the actions done as legal and valid as if they are done under the provisions of the new Act. Since challenge made to any action of the authorities under the new Act is a procedural matter, the person challenging such action has to adopt the law of procedure applicable as on the date of the challenge.
18. By the date of issuing the impugned notice, the new Act has already come into force. Thereby, in view of Section 145 of the Electricity Act, 2003, the jurisdiction of the civil Court is barred expressly. Hence, on this ground alone, the suit is liable to be dismissed.
19. Placing reliance on the provisions of the old Act, learned counsel for the respondent submitted that the suit is barred on account of Sections 12 and 82 of the Electricity (Supply) Act, 1948.
20. The suit was originally instituted against the Assistant Accounts Officer, Electricity Revenue Office, APEPDCL. According to the learned counsel, the suit ought to have been filed against the Andhra Pradesh State Electricity Board and not against the officers working in the Board. The Andhra Pradesh State Electricity Board was constituted and under Section 12 of the Electricity (Supply) Act, 1948, the Board shall be a corporate body by the name notified under Sub-section (1) of the Section 5, having perpetual succession and a common seal, with power to acquire and hold property both moveable and Immovable and shall by the said name sue
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and be sued. Therefore, it is manifest from the above provision of law that it is the Board, but not the officers that shall have to be sued. Under Section 82 of the said Act, no suit, prosecution or other legal proceeding shall lie against any member, officer or servant of the Board for anything which is in good faith done or intended to be done under the Act. 21. Admittedly, the suit has been instituted against the Accounts Officer, but not the Board, as required under law. In this regard, learned counsel for the appellant submitted that since the impugned demand was raised by the defendant as its signatory, the suit was laid against him. This argument cannot be countenanced in view of the express provisions of law. Thus, for this reason also, the suit is not maintainable. 22. Even with regard to merits of the case as to the liability to pay late payment charges, no provision is shown that just because litigation in Court is pending, the defendant cannot raise the liability of the plaintiff for the late payment charges. The trial Court has discussed, in detail, about such liability based on conditions of agreement for obtaining service connection with specific reference to numbers and there is no need to reiterate and discuss the same again herein. As such, the plaintiff has no case even on merits challenging such liability. Thus, there is no merit in the appeal. 23. In the result, the appeal is dismissed. There shall be no order as to costs. Miscellaneous petitions pending, if any, shall stand closed.