733.
(P&H HC) 30-08-2017
A. Code of Civil Procedure, 1908 (V of 1908), Section 9 – Jurisdiction of civil Court – Exclusion of -- Interpretation of -- Civil court has jurisdiction to try all disputes relating to property, office or even other matters which affect civil rights of citizen -- Jurisdiction of the civil court can only be barred by making another provision of statutory law which; expressly or by necessary implication; takes away the jurisdiction of the civil courts -- While considering the question of exclusion of the jurisdiction of civil court it has to be kept in mind that presumption would be in favour of the existence of the jurisdiction of civil court; so far as the civil matters are concerned -- While interpreting a provision excluding the jurisdiction of the civil court; such provision has to be given restrictive interpretation so as to retain the jurisdiction of the civil court in determination of civil rights of the citizens -- Therefore, the Courts are not supposed to interpolate words and phrases into that provision which purportedly excludes the jurisdiction of the civil court.
(Para 24,25)
B. Code of Civil Procedure, 1908 (V of 1908), Section 9 – Electricity Act, 2003 (36 of 2003), Section 126, 127, 145, 153, 154 – Theft of electricity – Assessment of penalty -- Jurisdiction of civil Court – Section 145 of the Act does not prescribe that the jurisdiction of civil court shall be excluded regarding those matters; regarding which the Special Court constituted under Sections 153 and 154 of the Act are empowered to decide -- Hence mere fact that the Special Courts have been constituted under Sections 153 and 154 of the Act, per se, is not the ground for exclusion of the jurisdiction of the civil court in itself.
(Para 26)
C. Electricity Act, 2003 (No.36 of 2003), Section – 126, 127, 145, 153, 154 – Theft of electricity – Mens-rea -- Power of Assessing officer -- Special Court – Jurisdiction of civil court -- Element of mens rea is an essential condition for allegation of theft as defined u/s 135 of the Act -- If mens rea is not there then the matter would fall u/s 126 of the Act then the officer would proceed in the matter of assessing the amount to be charged from the consumer and then provision of Sections 126 & 127 of the Act would be followed; resulting into exclusion of jurisdiction of civil court u/s 145 of the Act -- Held, once the theft is alleged, then the assessing officer/authorised officer cannot pass any order against the consumer demanding any specific amount, since in that situation the liability against consumer is to be determined by Special Court -- If any such order of assessment/penalty is passed and purported to be enforced against a consumer then the consumer has every right to avail the remedy of civil suit by challenging such order/demand raised by the department/licensee/supplier -- In such a situation, the jurisdiction of the civil court shall not be barred by virtue of Section 145 of the Act.
(Para 27-29, 36, 37)
D. Code of Civil Procedure, 1908 (V of 1908), Section 9 – Electricity Act, 2003 (No.36 of 2003), Section 126, 127, 145 – Theft of electricity -- Remedy of appeal – Jurisdiction of civil court -- in view of the provision of Section 9 of CPC which gives a plannery power to the civil courts to try any suit and also provisions of Order I Rule I of CPC gives a right to any person to bring a civil suit if he perceives, as aggrieved of any action of the officer or any other person, as violating his civil rights -- Simply because a consumer can be suggested to avail remedy of appeal u/s 127 of the Act, against an otherwise unauthorised, order, is no ground to hold that he cannot avail the remedy of civil suit by invoking civil jurisdiction of a civil court.
(Para 36)
E. Code of Civil Procedure, 1908 (V of 1908), Section 9 – Electricity Act, 2003 (No.36 of 2003), Section 126, 127, 145 – Theft of electricity -- Remedy of appeal – Jurisdiction of civil court -- If an unauthorised order of assessment/penalty is passed by the department/licensee/supplier, despite having alleged and initiated proceedings of theft; then the consumer cannot be said to have alternative remedies under Section 127 of the Act -- Therefore, he cannot be denied the right of filing the civil suit against such an illegal assessment/demand/penalty notice on the ground that he can avail an alternative remedy of appeal under Section 127 of the Act.
(Para 37)
F. Code of Civil Procedure, 1908 (V of 1908), Section 9 – Electricity Act, 2003 (No.36 of 2003), Section 126, 127, 145, 153, 154 – Theft of electricity – Assessment of -- Jurisdiction of civil Court – Since the Special Court cannot be initiated at the instance of the consumer and the civil liability as determined by the Special Courts has been restricted to be determined only 'against' the consumer and only for the loss/damages caused to the department and even without following the procedure of a civil court, therefore, mere existence of the Special Court does not, by implication, exclude the jurisdiction of the civil court, in a case where the assessing officer/licensee/supplier has passed an illegal or unauthorised order of demand despite having referred the matter to the police or the Special Court for determination of the same.
(Para 31, 36, 37)