Hon'ble Shishir Kumar, J. - (1.) THE present second appeal has been filed against judgment and order passed by Court below by which defendants' appeal has been allowed and suit filed by plaintiff-appellant has been dismissed.
(2.) FACTS arising out of present second appeal are that plaintiff-appellant filed a suit for declaration against Corporation-respondent on the ground that he has installed a tube-well and pumping set for the purposes of agriculture having connection No. A-2620 with five horse power. Father of appellant is also having another connection, plaintiff has got no concerned with the said connection. According to appellant there is no dues and bills are always being paid when it has been raised by the Corporation. Up-to 31.1.1995, all bills have been paid. Motor installed in the tube-well were stolen, therefore, after that when there is necessity, he put a motor and get the water from the tube-well and if power is not being supplied then motor is operated with tractor for providing water to the field. On 25.1.1996 when appellant was crushing sugar cane, employees of the Corporation demanded certain illegal amount which was refused. A false report was lodged at the police station and a demand for realization of the electricity dues to the tune of Rs. 38,960/- was raised. Respondents after receipt of notice filed a written statement denying claim made in the plaint but admitted it to this extent that as payment was not made, therefore, an assessment was done. On 25.1.1995, a surprise visit by the employees of the Corporation was done then it was found that appellant was using a motor of extra 7.50 horse power connected with crusher and tube-well for the purposes of irrigation. On that very day inspections were conducted at about 13 places and an FIR were lodged and assessment accordingly was made on the basis of surprise inspection. Trial Court after considering claim of parties frame about five issues and one of the main issues was whether defendants are entitled to realize the amount mention in the demand notice, whether the suit was barred by Section 4 of U.P. Act No. 16 of 1958 and Section 330 of the Zamindari Abolition Act and whether the provisions of Section 34/38 of the Specific Relief Act has been followed. Issue Nos. 1 and 2 were clubbed and a finding has been recorded that defendants have assessed the appellant regarding theft of electricity though plaintiff has said that he was having valid connection. A finding has been recorded that as regards assessment, defendants have not submitted any document that any notice was given before the assessment Plaintiff has proved that he is having a valid connection. Defendants have failed to prove that on 22.5.1995 raid was conducted at the tube-well of the appellant. No document has been submitted by defendant that on the basis of raid, assessment of bill was prepared and then it was send to the appellant After recording such findings trial Court decreed the suit by restraining Corporation from realizing any amount. Defendants-respondents filed an appeal and Appellate Court allowed the appeal on the ground that as plaintiff-appellant is having remedy of appeal under the Act, therefore, suit cannot be held to be maintainable and trial Court has wrongly decreed the suit. Issue No. 6 was framed by the Appellate Court and a finding to that effect has been recorded that defendants-respondents have brought to the notice Section 23 of the U.P. Electricity Supply Consumers Regulation 1984 which gives power to consumer that, in case, if he is dis-satisfied with assessment, can file an appeal. But admittedly, he has not approached the appellate form after the assessment The Appellate Court has also placed reliance upon various judgments of this Court on this issue and has recorded a finding that in view of judgments, in case, such dispute has been raised by plaintiff, then aggrieved person has to approach the Appellate Forum and in view of Section 9 of Civil Procedure Code, suit cannot be treated to be maintainable. After recording such finding the Court below has allowed the appeal and dismissed the suit giving liberty to appellant to file an appeal.
(3.) HENCE, present second appeal has been filed. Learned counsel for appellant has submitted that unless and until there is an assessment, no appeal will lie. The appeal under Section 23 of the U.P. Electricity Manual will lie only when there is assessment Section 23 is being quoted below : "23. Assessment and Appeal.-(i) The Executive Engineer shall finalise all the assessment cases after giving an opportunity to the consumer to state his point of view. (ii) If the consumer is dis-satisfied with the assessment so made, he may within 15 days of the receipt of assessment bill, appeal to the committee as constituted below, which shall hear and decide the cases according to the valuation mentioned against each: (1)Committee at circle level: A. Superintending Engineer B. Deputy Chief Accounts Officer or Accounts Officer nominated by him C. Executive Engineerffest) Chairman up to Rs. 2.00 lakhs Member Member (2) Committee at Zonal level: A. Chief Engineer (Zone) Chairman Above Rs. 2.00 lakhs B. Deputy Chief Accounts Officer or where no Dy.C.A.O. Is posted, senior most Accounts Officer Member and up to Rs. 10.00 lakhs C. Senior-most Superintending Engineer Member (3) Committee at Area level: (A) Chief Engineer (Distribution) Chairman All matters (B) Chief Accounts officer and Financial Advisor or Deputy Chief Accounts Officer (C) Senior-most Chief Engineer Member (Zone) SAVING : Notwithstanding anything contained in these regulations, any act done prior to the amendment of these Regulations shall be deemed valid and shall not be affected otherwise or deemed annulled by this amendment. The memorandum of appeal shall be in legible writing, on full scope paper in triplicate duly signed by the consumer. All materials on which the applicant (consumer) seeks to rely for purposes of his appeal, shall be sent alongwith the memorandum of appeal. (iii) The appellate authority shall dispose off the appeal after considering the submission of the appellant in the memorandum of appeal, the material placed before him by the appellant and the enquiry records. It shall not be obligatory for the Appellate Authority to give a personal hearing, but if a request is made in that behalf he may grant such hearing to the appellant. The appellant may be represented at such hearing by a legal practitioner or any person duly authorised in that behalf. (iv) The appellate authority may: (a) confirm, reduce, enhance or annual the assessment, or (b) set aside the assessment and order fresh disposal of the case with or without further enquiry, or (c ) conduct a further enquiry itself or call for a report from the lower authorities and dispose off the appeal in the light of such further enquiry or report, or (d) pass such other orders as it deems fit: Provided that no orders adverse to the consumer shall be passed without giving notice and opportunity for a written representation to the consumer: Provided further that if the consumer fails to turn-up inspite of giving reasonable opportunity of being heard the appellate authority may proceed ex parte and decide the case on merits. (v) The appellate authority shall give reasons for his conclusions except in cases where the appeal is allowed in toto. The order in appeal shall be final and binding on the consumer. (vi) The period of assessment for malpractice and pilferage of electricity or dishonest abstraction of energy or other irregular use of energy shall be in accordance with the procedure laid down in Annexure-1: Provided that the inspection of the meter made by the Meter reader or other representative of the Board for the purposes of meter reading shall not be deemed as inspection of the installation. (vii) For the inspection of malpractice, pilferage or theft of energy, the supplier's representative shall have the right to access to the premises of the consumer at any time, it is needed. The supplier's representative, before entry into the premises shall disclose his identity and thereafter enter into the premisses and the consumer shall not detain him in performing the duty. Any obstruction caused in inspection of the premises will make liable the connection to be summarily disconnected forthwith besides such other actions as are permissible under these regulations.";