NEMICHAND GANGWALL Vs. ASSAM STATE ELECTRICITY BOARD

JUDGEMENT

(1.) THE present appeal is directed against the judgment and order dated 28.2.2011 passed by the learned Additional District Judge, Kamrup, Guwahati in Title Appeal No. 4/2006 affirming the judgment and decree dated 23.12.2005 rendered by the learned Civil Judge (Senior Division) No. 3, Kamrup, Guwahati in Title Suit No. 174/2003 dismissing the suit instituted by the present appellant.

(2.) I have heard Mr. O. P. Bhati, learned counsel for the appellant and Mr. D. Nath, learned Standing counsel for the Assam State Electricity Board (for short, hereafter referred to as the 'Board') representing the respon-dents.

(3.) THE respondent Board in its written statement while questioning the maintainability of the suit on the ground of non exhaustion of the alternative remedy available under the terms and conditions of supply, 1988 pleaded that, electricity was supplied to the appellant-plaintiff on a purely temporary basis as per the order of the learned Executive Magistrate, Kamrup, Guwahati and fixed charge was levied and as such there was no illegality in the impugned bill dated 2.7.86. While asserting that all consumers under it are required to enter into an agreement before commencement of supply of electricity as per terms and conditions of supply framed under Section 49 of the Electricity (Supply) Act, 1948 (for short, hereafter referred to as the 'Act'), the Board contended that if any dispute is raised with regard to the accuracy of bill, in terms of Clause 18 of the terms and conditions of supply, he has to pay the amount charged under protest and comply with the procedure in connection therewith as laid down. Refering to the order dated 1.12.99 passed by the learned Civil Judge (Junior Division) No.1, Guwahati in Misc. (J) case No. 186m/1991 arising out of Title Suit No. 183/98 also filed by the appellant-plaintiff challenging the same disconnection notice dated 23.6.1998, the respondent Board pleaded res judicata. According to it, electricity was supplied to the appellant-plaintiff on a purely temporary basis in deference to the order of the learned Executive Magistrate, Guwahati as per the existing terms and conditions of supply and that therefore, he was a commercial consumer and not category-2- commercial consumer. It also endorsed the notice of disconnection for the admitted failure of the appellant-plaintiff to pay the amount of the bill lying outstanding against him. THE Board underlined that having regard to the nature of the dispute raised in the suit, the appellant-plaintiff ought to have preferred an appeal before the Assistant Chief Engineer (Commercial), ASEB as contemplated under the terms and conditions of supply and that he not having done so, the suit was not maintainable in law. On the pleadings of the parties, the following issues were framed by the learned trial court.