G.S SANDHAWALIA, J.

Civil Misc. No. 13381-C of 2011.

Prayer made in this application is for condonation of delay of 17 days in re-filing the appeal.

The application is allowed in view of the averments made in the application, which are supported by affidavit. The delay of 17 days in re-filing the appeal is condoned.

Civil Misc. No. 13382-C-2011

This is an application for making deficiency of court fee good. The Civil Misc. application is allowed in view of the averments made in the application, which are supported by affidavit.

Civil Misc. No. 13383-C of 2011.

Prayer made in this application is for condonation of delay of 10 days in filing the appeal.

The application is allowed in view of the averments made in the application, which are supported by affidavit. The delay of 10 days in filing the appeal is condoned.

Civil Misc. No. 13384-C of 2011.

Prayer made in the application is for grant of exemption from filing the certified copy of judgment and decree dated 3.1.2011 passed by Civil Judge (Jr. Division), Amritsar and grounds of appeal filed before the Lower Appellate Court.

In view of the averments made in the application, which are supported by affidavit, the Civil Misc. Application is allowed.

RSA No. 4596 of 2011

1. The present appeal has been filed by defendant Board now Punjab State Power Corporation Limited which is aggrieved against the judgment and decree of the Addl. District Judge, Amritsar dated 30.3.2011 wherein while allowing the appeal of the plaintiffs, the suit of the plaintiffs was decreed and the Memo No. 4557 dated 3.11.2006 was set aside and the plaintiffs were held entitled to the consequential relief of declubbing the electric connections and injunction was granted restraining the defendants-respondents from disconnecting the electric connection of the plaintiffs on the basis of impugned demand which was found to be not legal.

2. The case of the plaintiffs who were two in number was that plaintiff no. 1 had obtained an electric connection bearing No. MS01/0081 with sanctioned load of 29.97 KW at property No. 3088, outside gate Hakima, Amritsar wherein he was carrying on business of recycling of plastic which was subsequently enhanced to 49.97 KW on 23.6.2005 for which an amount of Rs. 30,000/- was deposited with the defendants vide receipt No. 339 dated 23.6.2005

3. Similarly plaintiff no. 2 also had electric connection bearing account No. MS01/75 with sanctioned load of 37.20 KW at property No. 3089 outside gate Hakima, Amritsar where he was carrying on similar business which was subsequently enhanced to 67.20 KW on 30.6.2005 for which an amount of Rs. 45,000/- was deposited with the defendant-Board. The officials of the Board had checked the connections of the plaintiff along with another connection of M/s Des Raj Ashok Kumar through its proprietor with sanctioned load of 18 KW in property No. 3090 having account No. H682/107 outside Gate Hakima Amritsar and ordered clubbing of all the three connections and issued memo No. 5237 dated 5.12.2005 and claimed an amount of Rs. 61,031/- from the plaintiffs and M/s Des Raj Ashok Kumar. This amount was subsequently enhanced to Rs. 1,81,015/- vide letter No. 141 dated 10.1.2006 The said action was challenged before the Zonal Level Dispute Settlement Committee, which had passed an order dated 10.7.2006, which had held that the connection of M/s Des Raj Ashok Kumar be declubbed, however, ignoring the findings contained in the joint report. It was averred that in the joint report there was no allegations that there was any intermixing of the connections with each other and the plaintiffs had separate entry gates to their respective properties and connections of both the plaintiffs were even electrically and physically separate. Thereafter, defendant no. 2 had issued bill dated 3.11.2006 claiming an amount of Rs. 2,50,380/-. It was accordingly alleged that the said claim was illegal, arbitrary and against the report of clubbing committee itself and the units being separate from each other had nothing common with each other. The plaintiff No. 1 was carrying on business on the ground floor whereas plaintiff no. 2 was carrying on business on the first floor and had separate entries and there were more than 18 more electric connections which had been provided in different sheds in the same Ahata. It was pleaded that the plaintiffs were separately assessed to income tax and with other departments and as per condition No. 19.3 of the conditions of supply and connections, the plaintiffs' connections could not be clubbed and plaintiffs were separately maintaining bank accounts and even Regulation 167 of Sale Regulations was in favour of the plaintiffs and required that connections should be declubbed. It was pleaded that there was no commonness or intermixing of the load. Neither any show cause notice was issued to the plaintiffs before issuing the impugned memo and clubbing was done for extracting excess amount from the plaintiffs on account of higher tariff and inspite of request to withdraw the same, the defendants had refused to accede to the said claim.

4. Defendants filed written statement taking various preliminary objections including that the matter had already been decided by the Dispute Settlement Committee and the suit was barred by the principle of resjudicata and the plaintiffs had already deposited part payment. It had also pleaded that checking had been done by the enforcement department and plaintiffs had signed the inspection report after admitting it to be correct and that the demand of Rs. 2,50,380/- was rightly issued since both the connections were running in the same building and having one entry. It is, however, admitted that connection of plaintiff no. 1 was on ground floor whereas the connection of the plaintiff no. 2 was on the Ist floor and after the decision of the Dispute Settlement Committee, the matter had been discussed in detail and plaintiffs had deposited 1/3rd amount without protest.

5. The trial Court on the basis of the pleadings framed the following issues:-

“1. Whether the memo No. 4557 dated 3.11.2006 claiming Rs. 2,05,380/- is illegal, unlawful, null and void and is liable to be set aside, if so on what grounds? OPP

2. Whether the defendants are liable to be restrained from disconnecting the electric connections installed in the premises of the applicant? OPP

3. Whether the civil court has got jurisdiction to entertain and decide the present suit in view of the judgment of the Hon'ble Supreme Court in Ashwani Kumar's (supra) case? OPP

4. Whether the suit of the plaintiffs is maintainable in the present form? OPD

5. Whether the plaint is properly signed and verified as per law by the plaintiffs? OPP

6. Whether the suit of the plaintiff is without cause of action? OPD

7. Whether the suit of the plaintiffs is barred by the principles of resjudicata in view of the matter decided by the Disputes Settlement Committee? OPD

8. Whether the suit of the plaintiffs had become infructuous in view of the part payment made by them without protest? OPD

9. Relief.”

6. The plaintiffs examined three witnesses and produced on record various documents from Ex. P1 to Ex.P42 whereas defendants examined DW-1 retired Superintending Engineer who had inspected the connections installed on the premises of the plaintiffs and DW-2.

7. The trial Court while placing reliance upon 19.3 of the Conditions of Supply of sale of electric energy and evidence of DW-1 held that the unit bearing account No. MS01/81 was manufacturing plastic pieces whereas unit bearing account No. MS01/75 was preparing bags from the plastic pieces and unit bearing account No. HG82/07 was working for the cutting and packing of the bags and all the three connections were controlled from one common office and the same work was being carried out under both the connections, and that connections were in the names of plaintiffs individually and not in the name of distinct firms and no certificate of registration of any of the firm using the connections in question had been produced or proved on record. The arguments of the counsel for the plaintiffs that separate enhancements were made and amounts were deposited by plaintiffs no. 1 and 2 separately showed that the units were not connected with each other was taken into consideration and the trial Court came to the conclusion that both the connections were running in one and the same premises for one business and were controlled by one office and plaintiffs had failed to produce any evidence that there was a separation between both the connections. The cross examination of DW-2 Kuljit Singh regarding the independent gates to approach the sheds was rejected on the ground that he was just a witness to prove the calculations and reference was made that as per the clubbing committee report Ex.P14.Ex.D1 since there was machinery belonging to account No. MS01/75 lying in the shed of Sham Sunder who was having account No. MS01/81, therefore, it was proved that the two plaintiffs were having a connection with each other keeping in mind that land was joint in the revenue record, though separate registries were existing and thus, it was held that plaintiffs were not entitled to relief of declaration and permanent injunction and accordingly the electric connections of the plaintiffs had been rightly clubbed and the demand was upheld. On the issue of the Civil Court jurisdiction and principle of resjudicata, the trial Court held that it had jurisdiction and suit is not barred by principle of resjudicata in spite of the decision of the Dispute Settlement Committee while placing reliance upon the Full Bench Judgment in Ranbaxy Laboratories Ltd. v. Punjab State Electricity Board 2004 (1) Civil Court Cases 592. On the issue of the maintainability of the suit and cause of action, it was held that the plaintiffs suit was not maintainable and they had no cause of action and the connections had rightly been clubbed. Issue no. 5 regarding properly signing and verification of the plaint was decided in favour of the plaintiffs and on issue no. 2, it was held that by making part payment the suit had not become infructuous and the issue was decided in favour of the plaintiffs while dismissing the suit for permanent injunction and declaration vide judgment and decree dated 3.1.2011

8. Aggrieved against the aforesaid judgment and decree the plaintiffs filed appeal before the Lower Appellate Court, which has been decided in their favour vide judgment and decree dated 30.3.2011 and the Addl. District Judge, Amritsar allowed the appeal and decreed the suit. Resultantly the present Regular Second Appeal has been filed by the Corporation.

9. Counsel for the appellants has contended that judgment of the Lower Appellate Court is perverse and is liable to be set aside as the Regulations of the Board had not been taken into consideration while allowing the appeal of the plaintiffs. A perusal of the judgment and decree which is under challenge goes on to show that the lower Appellate court took into consideration provisions of Conditions No. 19, 19.1 to 19.4 of the Conditions of Supply and took into contention that the checking committee had not prepared any site plan of the place where all the three connections were installed and while giving the recommendations of clubbing had not taken into account the records of the plaintiffs whereby their loads were extended and admittedly Ex. D4 which was site report had been prepared in the office. The fact that there were other connections in the same building i.e in property no. 3088 was also taken into consideration and that they were having separate passages to go and the sheds were not intervening. The Lower Appellate Court noticed that in the building in question there were other connections of different consumers like Sunny Traders, Rallia Ram, Guru Ram Dass Woollen Mill, H.H Woollen Industry and Naval Kishore, whose bills were got exhibited as Ex.P34, Ex.P35, Ex.P36, Ex.P37 and Ex.P38 Merely because a generator had been installed of 82.5 KV for supplying electricity to connection No. MS01/75 during power cuts, the same would not lead to a conclusion that the units were being run under the control of the same person since as per the report there was no intermixing of the connections.

10. Accordingly, it held that it was not opined or suggested or recommended by the checking staff that the connections require clubbing and the report was prepared subsequently without providing any opportunity to the plaintiffs in violation of the principle of natural justice. The fact that the plaintiffs had produced their income tax returns and Sham Sunder being proprietor of M/s R.P Plastic had got exhibited the income tax returns for the years 2002-03, 2003-04 and 2004-05 Ex. P20, Ex.P21 and Ex.P22 respectively whereas income tax returns of plaintiff no. 2 for the assessments years 2001-02, 2002-03, 2003-04, and 2006-07 had been placed on record as Ex.P23, Ex.P24, Ex.P25 and Ex.P28 respectively which showed that both the proprietorship firms were differently run by different proprietors and, therefore, there were two separate establishments and could not be controlled by the same person as they had distinct entities. That fact that there were various other connections running in the building No. 3088 was also taken into consideration and that clubbing committee had been constituted which had given its report Ex. P14 that all the connections were physically and electrically separate and on the basis of the said report the connection No. HG82/107 had been declubbed of M/s Des Raj Ashok Kumar. Resultantly, memo dated 3.11.2006 was set aside.

11. That as per requirements of Conditions No. 19, 19.1 to 19.4 of the Conditions of Supply for the sale of Electricity Energy a consumer can have distinct entity and separate establishment and if he is separately assessed to income tax and sales tax then it shall be deemed to be separate establishment. Even Clause 19.4 also says that if there are two or more establishments situated within a single premises and under the control of the same person then the Board in its discretion may supply power at one point by treating them as one consumer. Conditions No. 19, 19.1 to 19.4 of the Conditions of Supply for the sale of Electricity Energy are reproduced below:-

“19. For the purpose of these conditions of supply, a consumer shall have a distinct entity and shall be deemed to be a separate establishment if he;

19.1 has a distinct set of staff, a separate premises owned or taken lease.

19.2 is covered by a different licence of registration or incorporated as separate company under the relevant law, where such procedure are applicable.

19.3 holds a separate sale tax No. and is separately assessed to Income tax.

19.4 if two or more establishments situated within a single premises are practically under the control of the same persons and there are chances of the electricity from one premises being used in the other; the Board in its discretion of at the request of the said establishments may supply power to one point by treating them a single consumer. In such an eventuality, the Board shall not have any objection to the supply being used by more than one unit.”

12. In the present case, it has been brought on record that both the plaintiffs were having different proprietorship concerns and filing separate income tax returns and, therefore, have separate legal entities. The Trial Court also found that separate sale deeds were existing though the land had not been formally partitioned as per the order of the Zonal Dispute Committee. The clubbing of the said connections was, thus, not justified. In view of such facts, the Lower Appellate Court has come to the valid conclusion that there was no recommendations of the enforcement agency and the report had been prepared subsequently while sitting in the office. This Court in Punjab State Electricity Board, Patiala v. Guru Nanak Agriculture Engineering Works 2007 (2) PLR 363 has held that the Civil Court would have jurisdiction where an order of clubbing had been passed and the same would not be covered under Section 126 of the Electricity Act, 2003 and the bar provided under Section 145 would not come into play. Similarly in Het Ram Saini v. R.S.E.B 2002 (4) RCR (Civil) 502, it has been held that there might by a common passage to industrial units but that will not make the different premises a single premise. It was also noticed by the Court that the judgment of the Apex Court in the Punjab State Electricity Board v. Ashwani Kumar 1997 (3) RCR (Civil) 147 (SC) would not bar the jurisdiction of the Civil Court. Even otherwise in the present case, the plaintiffs had firstly approached the committee and thereafter gone to the Civil Court to agitate their claims after the relief had been denied and it is settled principle that once the authorities have not acted within their jurisdiction then Civil court will always have jurisdiction. That the dictum of the Hon'ble Supreme Court in Punjab State Electricity Board v. Ashwani Kumar case (supra) to approach the High Court would also not be applicable in the present case in view of the fact that disputed questions of fact were involved in the present case as to the issue of number of premises and connections existing therein therefore, the only remedy was to approach the Civil Court. This Court in Ranbaxy Laboratories Ltd.'s case (supra) has held that jurisdiction of the Civil Court under Section 9 is not barred and as noticed above in the present case the plaintiff had firstly agitated their rights before the Dispute Settlement Committee and thereafter approached the Civil Court and findings of the Lower Appellate Court cannot be said to be perverse or illegal in any manner.

13. Thus, no question of law much less any substantial question of law arises from the records of the present case which would warrant interference in Regular Second Appeal. Accordingly, the present appeal is dismissed in limine and judgment and decree of the Lower Appellate Court is upheld.