Secretary, K.S.E.B, Trivandrum Rev. v. M. Sainaba And Others

1. This Civil Revision Petition raises the question whether a suit is maintainable against the Electricity Board and Authorities thereunder for taking certain action which is said to be mala fide and without proper authority. The suit was instituted for a mandatory and a prohibitory injunction for directing the defendants to remove the two electric posts already put up in the plaintiff's property and for a permanent injunction restraining the defendants from drawing up electric line through or across the plaintiff's property. The suit was resisted taking several contentions. One of the contentions raised is that the suit is not maintainable. This question was considered as a preliminary issue and the Court found that the suit is maintainable. Now the 1st defendant, the Secretary, Kerala State Electricity Board, Trivandrum has filed this Civil Revision Petition.

2. Counsel for the petitioner submitted that in view of the provisions contained in S. 56 of the Electricity Act and S. 82 of the Electricity (Supply) Act, 1948 the suit is not maintainable. Sufficient protection is given preventing filing of suits for the actions taken by the Electricity Board for drawing up electric lines over or across the property of land owners. As I said earlier, the Court below found that the suit is maintainable. Of course, on facts whether the suit is liable to be decreed or not is certainly a different question. The short point I have to consider is as to the correctness of the decision of the court below, holding that the suit is maintainable. Certainly this question has to be decided on the basis of the above two statutory provisions contained in S. 56 of the Electricity Act and S. 82 of the Electricity (Supply) Act. So I feel that it is appropriate to quote those two Sections. Section 56 reads thus:—

“56. Protection for acts done in good faith.— (1) No suit, prosecution or other proceeding shall lie against any public officer, or any servant of a local authority, for anything done, or in good faith purporting to be done, under this Act.

(2) No court shall take cognizance of an offence under this Act, by a public officer except with the sanction—

(a) in the case of a person employed in connection with the affairs of the Union, of the Central Government; and

(b) in any other case, of the (State Government)”.

Section 82 of the Electricity (Supply) Act reads:

“82. Protection to persons acting under this Act.— No suit, prosecution or other legal proceeding shall lie against (any member or officer or other employee of the Board) for anything which is in good faith done or intended to be done under this Act”.

3. Now 1 turn to the question of ouster of jurisdiction of courts by the above statutory provisions. In this connection, I feel that I must begin by enquiry with that celebrated decision of the Privy Council reported in AIR 1940 PC 105 Secry. of State v. Mask & Co. Lord Thankerton in considering a question under the Sea Customs Act said very lucidly the general principle of ouster of jurisdiction of Civil Courts. He said that it is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred but such exclusion must either be explicitly expressed or clearly implied. It is also settled law that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. This decision has been referred to in AIR 1966 SC 1738 State of Kerala v. N. Ramaswami Iyer and Sons. In paragraph 8 the Supreme Court observed thus (at p. 1741):—

“(8) It is true that even if the jurisdiction of the civil court is excluded, where the provisions of the statute have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure, the civil courts have jurisdiction to examine those cases”.

I may also refer to AIR 1947 PC 78 Raleigh Investment Co. Ltd. v. The Governor-General in Council where the judicial committee of the Privy Council considered a question of jurisdiction of the Civil Court to entertain a suit questioning the assessment of income-tax otherwise than by using the machinery expressly provided by the Act observed that though in form the relief claimed did not profess to modify or set aside the assessment, in substance it did because the repayment could not be ordered so long as the assessment stood. Further the claim for the declaration could not be regarded as having any relevance except as leading up to the claim for repayment and the claim for injunction was merely verbiage. The cloud of words fails to obscure the point of the suit. An assessment made under the machinery provided by the Act, if based on a provision subsequently held to be ultra vires, is not a nullity like an order of a court lacking jurisdiction. Reliance on such a provision is not an excess of jurisdiction but a mistake of law made in the course of its exercise. Their Lordships, therefore, regard the suit as in truth directed exclusively to a modification of the assessment. The Privy Council was considering a case of a challenge of an assessment made by the Income-tax Officer and as to whether it is liable to be questioned in a civil suit on the ground that the provision of the Income-tax Act itself is ultra vires. In that context the Privy Council said that assuming that the provisions are ultra vires since the assessment can be questioned by the machinery provided under the Income-tax Act a suit is not maintainable. This case has been relied on by the Supreme Court in AIR 1966 SC 1738. The Supreme Court observed that “The Act is therefore a complete Code dealing with the levy, assessment and collection and refund of tax. It authorises investment of power in a hierarchy of authorities to administer the Act. For the purpose of making assessment of tax, the authorities have power to decide all questions arising before them, and the orders of the appellate authorities subject to the exercise of revisional jurisdiction under S. 15 are declared final. Liability to pay tax arises under and by virtue of the provisions of the Act, and the quantum of liability may be determined under the Act alone”

4. In AIR 1955 SC 576 Shiromani Gurdwara Parbandhak Committee, Amritsar v. Raja Shiv Rattan Dev Singh, Jagannadhadas, J. considered a question of exclusion of jurisdiction of the Civil Court in view of certain provisions of Punjab Sikh Gurdwaras Act in respect of a suit or an issue which is normally within its competence can be brought about only by clear and unambiguous language or by the necessary implication thereof. The court observed thus:—

“In our opinion, therefore, the jurisdiction of the Civil Court in respect of the issues that arise for determination in this case is not barred by any of the provisions of the Act”.

5. The general principle is, under S. 9 of the C.P.C a Civil Court shall have jurisdiction to try all suits of a civil nature. But it is permissible for the legislature to enact provisions excepting suits though of civil nature from the cognizance of the court. The condition for making a valid exclusion or ouster of Civil Courts from trying a suit of civil nature must be either expressly or impliedly barred by I he provisions of the Act. So the statute can make provision expressly or by necessary implication barring the jurisdiction of the Civil Courts in respect of a particular matter. It has to be noted that the mere conferment of special jurisdiction on a tribunal in regard to certain specified matters does not in itself exclude the jurisdiction of the Civil Courts.

6. In AIR 1963 SC 1547 Firm Seth Radha Kishan v. Administrator Municipal Committee, Ludhiana, Subba Rao, J. as he then was, said that “the statute may specifically provide for ousting the jurisdiction of civil Courts; even if there was no such specific exclusion, if it creates a liability not existing before and gives a special and particular remedy for the aggrieved party, the remedy provided by it must be followed. The same principle would apply if the statute had provided for the particular forum in which the remedy could be had”. In the same decision, Subba Rao, J. said that “but there is also an equally well settled principle governing the scope of the Civil Court's jurisdiction in a case where a statute created a liability and provided a remedy. Even in such cases, the Civil Court's jurisdiction is not completely ousted. A suit in a civil court will always lie to question the order of a tribunal created by a statute, even if its order is, expressly or by necessary implication, made final, if the said tribunal abuses its power or does not act under the Act but in violation of its provisions”.

7. Now I shall try to understand the exact scope and width of the two provisions, viz., S. 56 of the Electricity Act and S. 82 of the Electricity (Supply) Act. Section 56 deals with protection for acts done in good faith. It presupposes that if the act has been done not with good faith, there is no bar of suit. So this provision did not completely bar the jurisdiction of the court. The application of the Section depends upon the complaint of the suitor. If it is a complaint that the action has been taken not with good faith, certainly S. 56 has no application at any rate, at the threshold on the ‘rising of the curtain’. The protection granted to the public officer or any servant of the local authority under S. 56 is pre-conditioned on the fact that the action taken or purported to have been taken by the public officer or any servant of local authority should be in good faith. Similarly S. 82 also gives protection from not defending a suit or other legal proceedings by any member or officer or other employees of the Board for anything done with good faith and that the action has been done or intended to have been done under the provisions of the Act. What is important to note is that it is not a total exclusion of jurisdiction, but it is hedged with conditions and so it is difficult for a court at the threshold without going to the merits to say that the suit is not maintainable.

8. In AIR 1960 Mad 374 South Madras Electric Supply Corpn. Ltd. v. T.L Jagannatha Aiyar, the Madras High Court had occasion to consider a similar suit. The suit was for a mandatory injunction directing the defendants to remove the high tension lines and posts that have been fixed on plaintiffs land without his permission and for recovery of past and future damages. One of the contentions raised by the defendants in that suit was that the remedy of the plaintiff was under S. 12 of the Electricity Act for compensation to be determined under that provision. It is also contended that under S. 56 of the Electricity Act, the plaintiff cannot maintain the suit against any public officer for what he has done in the discharge of his duty. The court observed thus:—

“Where the plaintiff sues for a mandatory injunction directing the defendants to remove the high tension lines and posts that have been fixed on his private land without his permission and for recovery of past and future damages, the remedy sought by the plaintiffs is not provided for by S. 12 or any of the sub-sections or provisos to that. A complaint of trespass of the kind complained of and damages therefor is not provided for by any of the sections of the Electricity Act. The Civil Court has ample jurisdiction to try the suit”.

Considering S. 56 the court observed thus:—

“Section 56 provides that no suit shall lie against any public officer for what he has done in the discharge of his duty. Therefore it is well-known and a well-established principle of law that unless there is express ouster of the jurisdiction of the civil court it must be presumed that ordinarily a civil court has jurisdiction and in this case the liability has not been excluded from the purview of the civil court and there is no provision of law contained in the Electricity Act for its adjudication. A complaint of trespass of the kind complained of in the present case and damages therefor is not provided for by any of the sections of the Electricity Act”.

9. In AIR 1972 Raj 40 Firm Sadul Shahr Cotton Ginning and Pressing Factory v. The Rajasthan State Electricity Board it was held that S. 82 has no application and that no protection is available to the Board as such. I cannot fully agree with this position of law though perhaps in the circumstances of the case dealt with by the learned Judge of the Rajasthan High Court, it may be justified. What the court said is that under S. 56 of the Electricity Act and under S. 82 of the Electricity (Supply) Act protection against suit and prosecution is not given to the Board itself and that it cannot therefore be said that simply by the use of the words “any person” in S. 82, as it stood before the amendment of 1966, the scope of protection was so wide as to include the Board also. Of course, in this case the suit has been instituted against the Secretary, Kerala State Electricity Board, Trivandrum and two others. A reading of the written statement and the circumstances of the case would clearly indicate that when the plaintiff has instituted the suit against the Secretary, Kerala State Electricity Board, the plaintiff intended to file the suit against the Board. In paragraph 7 of the written statement it is made clear that the “Kerala State Electricity Board has no intention to draw the line further across the plaintiff's property”.

10. I am of the view that there is no exclusive and total bar of jurisdiction against all actions taken by the Electricity Board or by the officers of the Electricity Board by virtue of S. 56 of the Electricity Act and S. 82 of the Electricity (Supply) Act. But the court has to consider whether the actions have been taken within the parameters of the Act or whether the actions have been taken with good faith. If the actions are taken or purported to have been taken with good faith and within the provisions of the Act, certainly the suit is liable to be dismissed. But to say at the threshold that the suit is not maintainable seems to be not correct.

11. So I hold that the decision of the court below is correct and the Civil Revision Petition has to be dismissed. I do so.

12. I record my sincere appreciation for the valuable assistance given to the court by Sri. T.C Mohan Das, Advocate, acting as amicus curiae in this case.

Petition dismissed.