# Plaintiff/ v. U.P. Electricity Board, Lucknow and another

- **Citation:** (2008) 2 ILRA 377
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-03-20
- **Case number:** Second Appeal No. 233 of 2008
- **Bench:** Mrs. Poonam Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/plaintiff-v-u-p-electricity-board-lucknow-and-another-41179
- **Pages:** 4

## Headnote

Code of Civil Procedure-Section 100Second Appeal-Substantial question of
law-must be debatable-not previously
settled-material bearing of case.

Held: Para 13

The Apex Court in the recent case of
Santosh Hazari Vs. Purshottam Tiwari,
(2001) 3 SCC, 179, ruled that a point of
law which admits of no two opinions
may be preposition of law but cannot be
a substantial question of law. To be
'substantial' a question of law must be
debatable, not previously settled by law
of the land or a binding precedent, and
must have a material bearing on the
decision of the case, if answered either
way, in so far as the rights of the parties
before
it
are
concerned.
It
will,
therefore, depend on the facts and
circumstances of the each case whether
a question of law is substantial one and
involved in the case or not? The same
view has been expressed by the Apex
Court in the case of Govinda Raju Vs.
Mariamman (2005) 2 Supreme Court
Cases, 500.
378 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
Case law discussed:
1997 Supreme Appeals Reporter (S.C.) page
363, (2002) I SCC, 134, JT 2004 (5) SC, 54,
(2005) 7 Supreme Court Cases, 60, 2006
All.C.J. (Supreme Court) 1481 (1999) 3
Supreme Court Cases, 722, (2005) 2 Supreme
Court Cases, 500

## Text

2 All] Soney Lal V. U.P. Electricity Board, Lucknow and another
377
so, it was not open to him to deal with the
quantum of punishment independently
from other employees on merit. In my
opinion, such approach of authority is
contrary law being in the teeth of the
decision of this court.

17. In view of aforesaid discussions,
the impugned order passed by Managing
Director, UPSRTC dated 18th May 2002,
contained in Annexure-1 of the writ
petition cannot be sustained and is hereby
quashed. However the matter is again
remitted back to the Managing Director of
UPSRTC to take fresh decision on the
question of quantum of punishment to be
imposed upon the petitioner in the light of
observations made herein before.

18. Since no person out of 27
persons involved in the aforesaid incident
has been dismissed or removed from
service, therefore, the petitioner can also
not be removed from service, Accordingly
the respondents are directed to reinstate
the petitioner in service from the date of
dismissal alongwith the continuity of
service and consequential benefits of
seniority and the respondents are further
directed to pay the petitioner 40%
monthly salary as arrears of salary
alongwith other emoluments attached to
the post for the period during which the
petitioner was out of employment within a
period of three months, provided he
furnishes proof of his non-employment
during the aforesaid period before the
authorities concerned and authorities
concerned is satisfied about his nonemployment during the said period.

19. With the aforesaid observations
and directions, the writ petition succeeds
and allowed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.03.2008

BEFORE
THE HON'BLE MRS. POONAM SRIVASTAVA, J.

Second Appeal No. 233 of 2008

Soney Lal

...Plaintiff/Appellant
Versus
U.P. Electricity Board, Lucknow and
another
...Defendant/Respondents

Counsel for the Appellant:
Sri Anjani Kumar Dubey
Sri Dr. S.B. Singh

Counsel for the Respondents:
Sri H.P. Dubey
Sri S.C. Pandey

Code of Civil Procedure-Section 100Second Appeal-Substantial question of
law-must be debatable-not previously
settled-material bearing of case.

Held: Para 13

The Apex Court in the recent case of
Santosh Hazari Vs. Purshottam Tiwari,
(2001) 3 SCC, 179, ruled that a point of
law which admits of no two opinions
may be preposition of law but cannot be
a substantial question of law. To be
'substantial' a question of law must be
debatable, not previously settled by law
of the land or a binding precedent, and
must have a material bearing on the
decision of the case, if answered either
way, in so far as the rights of the parties
before
it
are
concerned.
It
will,
therefore, depend on the facts and
circumstances of the each case whether
a question of law is substantial one and
involved in the case or not? The same
view has been expressed by the Apex
Court in the case of Govinda Raju Vs.
Mariamman (2005) 2 Supreme Court
Cases, 500.
378 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
Case law discussed:
1997 Supreme Appeals Reporter (S.C.) page
363, (2002) I SCC, 134, JT 2004 (5) SC, 54,
(2005) 7 Supreme Court Cases, 60, 2006
All.C.J. (Supreme Court) 1481 (1999) 3
Supreme Court Cases, 722, (2005) 2 Supreme
Court Cases, 500

(Delivered by Hon'ble Mrs. Poonam Srivastava, J.)

1. Heard learned counsel for the
plaintiff/appellant and Sri S.C. Pandey,
counsel for the defendant/respondents.

2. The plaintiff/appellant instituted a
suit no. 564 of 1992 for mandatory
injunction against Power Corporation to
restore electricity connection, which was
disconnected illegally despite the fact that
all the dues and electricity bills were duly
paid. A demand notice was served on the
plaintiff for an amount of Rs.19,115/-
towards minimum bill charges, which was
challenged in civil suit. The trial court
dismissed the suit on 23.9.2002. Against
which civil appeal no.17/47 of 2002 was
preferred,
and the same was also
dismissed on 3.1.2008. Both the judgment
and orders are challenged in the instant
second appeal.

3. Counsel for the appellant has
placed extract of ledger book and
submitted that the alleged electricity dues
from August to December, 1986 was paid
on 9.1.1987 and thus findings of the
courts below are perverse on the face of
it.

4. Counsel for the defendant/
respondents has categorically argued that
civil suit against the demand notice is
barred
under
Section
4
of
U.P.
Government Electrical Undertaking (Dues
Recovery) Act, 1958 and Regulation 8 of
Electricity Supply Consumer Regulations
of
1984.
The
courts
below
have
concluded that notice for recovery of dues
once issued to the consumer, it cannot be
challenged in a civil suit and the suit was
not maintainable. The dues recoverable as
arrears of land revenue cannot be
challenged in a civil suit. The jurisdiction
of civil court is completely barred under
Section 145 of Electricity Act, 2003.
Section 145 of the said Act is quoted
below:

"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 this Act is empowered by
or under this Act to determine and no
injunction shall be granted by any court
or other authority in respect of any action
taken or to be taken in pursuance of any
power conferred by or under this Act."

5. Counsel for the appellant has
argued that the Electricity Act 2003 is not
applicable to the appellant as it is
subsequent Act and therefore, question of
maintainability of the suit does not arise.
This was never challenged before the
courts below. Besides, findings recorded
by the two courts are absolutely perverse
and liable to be set aside.

6. Counsel for the respondents has
placed Section 5 of U.P. Electrical
Undertaking (Dues Recovery) Act, 1958,
which provides that if the dues for which
notice of demand has been served are not
deposited with the prescribed authority
within 30 days from the date of service, or
such extended period as the prescribed
authority may allow, the same together
2 All] Soney Lal V. U.P. Electricity Board, Lucknow and another
379
with cost of recovery as may be
prescribed shall be recoverable as arrears
of
land
revenue
notwithstanding
contained in any other law instrument or
agreement.

7. The two courts below have also
recorded findings that there was a demand
notice for an amount of Rs,19,115/-
towards minimum charges, which the
appellant was liable to pay since the
electricity
connection
was
not
disconnected, only power supply was
stopped for non-payment of the dues but
connection continued in the name of the
appellant.

8. Submission of the counsel for the
appellant assuming to be correct that there
was no dues even then no objection was
filed and recovery notice was not
challenged under Regulation, 1984. Issue
nos. 4 and 5 were specifically on the
question of maintainability of the suit.
The two issues were whether the suit is
barred under section 4 of Recovery Act,
1958 and Clause 8 of Electricity Supply
(Consumer)
Regulation,
1984?
Both
issues were decided against the appellant.
In the case of Punjab State Electricity
Board and another Vs. Ashwani Kumar,
1997 Supreme Appeals Reporter (S.C.)
page 363, the Apex Court ruled that
Section 9 C.P.C. though provides that
civil court has jurisdiction to try all suits
of civil nature, subject to pecuniary
jurisdiction, unless cognizance of such
suit
is
expressly
or
by
necessary
implication barred. It was also held that
the Indian Electricity Act has provided
alternative remedy to hear complaint of
the consumer, therefore, no civil suit for
injunction is maintainable, the demand by
the
Electricity
department
was
recoverable as arrears of land revenue
and, therefore, the recovery could not be
challenged in a civil suit, the court could
not injunct the power corporation from
realizing its dues.

9. Counsel for the appellant has tried
to emphasize substantial questions of law,
which are in fact factual in nature and
question of validity of the demand notice
and its consequent recovery.

10. Counsel for the appellant has
tried to argue that the Electricity Act,
2003 is not applicable and question of
maintainability of the suit was never
raised before the courts below. Besides,
findings recorded by the two courts are
absolutely perverse and liable to be set
aside in the instant appeal as there was
nothing due. Perusal of the provision of
Electricity Act, 1958, Section 5 of the
said Act entitles the Power Corporation to
serve demand notice for the consumption
of electricity supply of the consumer, who
is required to deposit the dues within 30
days of service of notice. If dues are not
paid, the Power corporation has a right to
disconnect the supply. However, if the
electricity
connection
continues,
the
consumer is liable to deposit minimum
charges. There is no illegality whatsoever
least to say any substantial question of
law arises worth consideration in the
instant second appeal. Besides, I am
satisfied that civil suit is not maintainable
and
jurisdiction
of
civil
court
is
completely barred.

11. The Apex Court depreciated the
liberal
construction
and
generous
application of provisions of Section 100
C.P.C. Hon'ble Supreme Court was of the
view that only because there is another
view possible on appreciation of evidence
that cannot be sufficient for interference
380 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
under Section 100 C.P.C. For ready
reference, extract of paragraph no.7 of the
case of Veerayee Ammal Vs. Seeni Ammal
(2002) I SCC, 134 is quoted below:

"7. .....We have noticed with distress
that despite amendment, the provisions of
Section 100 of the Code have been
liberally
construed
and
generously
applied by some Judges of the High
Courts with the result that objective
intended to be achieved by the amendment
of Section 100 appears to have been
frustrated. Even before the amendment of
Section 100 of the Code, the concurrent
finding of facts could not be disturbed in
the second appeal. This Court in Paras
Nath Thakur Vs. Mohani Dasi held: (AIR
p.1205 para 3).
It is well settled by a long series of
decisions of the Judicial Committee of the
Privy Council and of this Court, that a
High Court, on second appeal, cannot go
into questions of fact, however, erroneous
the findings of fact recorded by the courts
of fact may be. It is not necessary to cite
those decisions. Indeed, the learned
counsel for the plaintiff-respondents did
not and could not contend that the High
Court was competent to go behind the
findings of fact concurrently recorded by
the two courts of fact."

12. Similar view has been expressed
in a number of other decisions by the
Apex Court in the cases of Thiagarajan
and others Vs. Sri Venugopalaswamay B.
Koil and others, JT 2004 (5) SC, 54,
Rajeshwari Vs. Puran Indoria (2005) 7
Supreme Court Cases, 60, Gurdev Kaur
and others Vs. Kaki and others 2006
All.C.J. (Supreme Court) 1481 and
Kondiba Dagadu Kadam Vs. Savitribai
Sopan Gujar and others (1999) 3
Supreme Court Cases, 722.
13. The Apex Court in the recent
case of Santosh Hazari Vs. Purshottam
Tiwari, (2001) 3 SCC, 179, ruled that a
point of law which admits of no two
opinions may be preposition of law but
cannot be a substantial question of law.
To be 'substantial' a question of law must
be debatable, not previously settled by
law of the land or a binding precedent,
and must have a material bearing on the
decision of the case, if answered either
way, in so far as the rights of the parties
before it are concerned. It will, therefore,
depend on the facts and circumstances of
the each case whether a question of law is
substantial one and involved in the case or
not? The same view has been expressed
by the Apex Court in the case of Govinda
Raju Vs. Mariamman (2005) 2 Supreme
Court Cases, 500.

14. In view of the aforesaid
decisions and after going through the
entire record, I do not find any substantial
question of law worth consideration in the
instant appeal. I am satisfied that the civil
court has no jurisdiction and the findings
recorded by the two courts do not call for
any interference. The instant second
appeal lacks merit and is, accordingly,
dismissed with costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.03.2008

BEFORE
THE HON'BLE S.U. KHAN, J.

First Appeal No.47 of 1980

State
of
U.P.
through
Collector,
Saharanpur

...Appellant
Versus
Mohd. Ashik Khan
...Respondent