M.G.MUKHERJI,C.J. - (1.) THIS appeal as filed by the Rajasthan State Electricity Board, its Superintending Engineer, its Executive Engineer and its Assistant Engineer, the last three being posted at Jodhpur, is directed against a judgment and order dated January 7, 1986 passed by a learned Single Judge in S.B. Civil Writ Petition No. 506/76 whereby the learned Single Judge allowed the writ application of the writ petitioner.
(2.) THE writ petition was filed by the respondent against the Rajasthan State Electricity Board and its concerned officers wherein the writ petitioner prayed that he being the brother of late ruler Maharaja Hanwant Singh was entitled to the facilities of free supply of electricity and water under the coverage of a letter of Government of India bearing No E-4/P/49 dated March 2, 1949. The said facility was cancelled by the Government of Rajasthan by its letter No. F.22(36) GAD (67) dated September 8, 1967 with effect from April 1, 1967 which fact was confirmed by judgment of S.B. Civil Writ Petition No. 259/68 - Maharaja Gaj Singh v. State of Rajasthan decided on March 31, 1972 by this High Court. The writ petition as filed by Maharaja Gaj Singh praying for the said facilities as part and parcel of property right not being accepted, it was made clear in the said judgment that the exemption beyond April 1, 1967 was not acceptable. It was contended by the writ petitioner that the applicant was exempted till March 31, 1967. The writ petitioner begn paying the electricity charges with effect from April 1, 1967 regularly and no current dues were outstanding. The Assistant Engineer City III served a notice No. AEN/CSD.III/Rev/76/D, 2144 dated March 4, 1976 one the writ petitioner which was served on him on March 5, 1976 calling upon him to deposit the alleged outstanding dues of electricity consumption upto 1962 amounting to Rs. 38,443 = 38 and thereafter upto January 1976 a sum of Rs. 6,857 = 23 within 15 days failing which the respondent was threatened for disconnection of electricity supply. This notice was treated by the appellants as a notice under Section 24 of the Indian Electricity Act, 1910. The said notice further provided that action would be taken to recover the outstanding dues under Rajasthan Government Electrical Undertaking (Dues Recovery) Act, 1960 as arrears of land revenue. It was contended further that the Rajasthan State Electricity Board was first constituted in 1957 under a Central Act, namely, Electricity (Supply), Act, 1948. All the dues for the period prior to the constitution of the Board vested in the Board vide Section 60(1) of the Central Act No. 54 of 1948 and the provisions of Indian Electricity Act, 1910 (Central Act No. 9 of 1910) became applicable to the Electricity Board. As the Board is a body corporate as provided in Section 12 of the Electricity (Supply) Act, 1948, the Article applicable for the recovery of debts of the Board is a residuary Article 120 of the old Limitation Act of 1908 which applied to the recovery of electricity dues providing a period of six years from the date when the right to sue accrued instead of Article 149 providing a period of 30 years for the government dues. With the enactment of the Indian Limitation Act, 1963 which came into move on 1.1.1964 the period of limitation under the residuary Article 113 was reduced to three years from the date when the right to sue accrued. The respondent State Electricity Board did not file any suit against the writ petitioner within the period of limitation provided under Article 120 of the Limitation Act, 1908 within six years after the constitution of the Board in 1957 as the electricity dues were not chargeable to him since he was an exemptee and was allowed the facility of free electricity upto 1.4.1967 under clause 9 of the collateral agreement coming part of the covenant entered into by the Central Government with the Ruler of Jodhpur. It was contended by the writ petitioner that the alleged electricity energy charges which were otherwise also not admitted to be due were clearly hit by the law of limitation and hence the Rajasthan State Electricity Board adopted the device to serve a notice under Section 24 of the Indian Electricity Board adopted the 'device to serve a notice under Section 24 of the Indian Electricity Act, 1910 for recovery of the alleged purported dues which were otherwise not legally recoverable directly by any process of law under a threat of disconnection of the supply under Section 24 of the Indian Electricity Act. The notice only provided that legal action was to be taken to recover the outstanding dues under the Rajasthan Government Undertaking (Dues Recovery) Act, 1960. The Electricity Board thereafter adopted the device to take proceedings under Section 34 of the Act of 1960 which provides a summary procedure to recover electricity dues under Sections 4 and 6 as arrears of land revenue without giving a show cause notice or without granting an opportunity to the writ petitioner so as to deny the liability and without affording him any right of appeal or revision as is provided in Rajasthan Public Demand Recovery Act, 1952 for the recovery of government dues. By this device the Rajasthan State Electricity Board could obtain an order of attachment and sale of writ petitioner's properties under this Act which did not provide any scope for objection and the prescribed authority might otherwise be precluded from entertaining any objection and seek to proceed immediately to effect recovery of the alleged time barred dues by a coercive method of attachment and sale of the writ petitioner's properties. It was further more contended that under Section 9 of the Rajasthan Government Electrical Undertaking (Dues Recovery) Act, 1960, the said electricity charges were clearly time barred, inasmuch as, the said provision fixed six years limitation period as regards recovery of the electricity dues accruing before the date of the constitution of the Rajasthan State Electricity Board and the dues mentioned in the notice were of a period beyond six years. Further more, the Rajasthan State Electricity Board was precluded from recovering the dues, inasmuch as, it did not avail of the further opportunity to recover the alleged dues by filing an appropriate suit within the extended period as provided by Section 60A of the Central Amendment Act No. 30 of 1966 in Electricity (Supply) Act, 1948 and that period having expired the dues were not recoverable by any proceedings whatsoever. Various other contentions were raised in the writ application and the ultimate prayer was that there should be a writ in the nature of prohibition by any of restraining the Rajasthan State Electricity Board from disconnecting the writ petitioner's electricity supply and to restrain the recovery of the alleged dues mentioned in Annexure 1 in the writ application as arrears of land revenue under Rajasthan Government Electrical Undertaking (Dues Recovery) Act, 1960 and that by issuing a writ of mandamus or certiorari the notice under Section 24(1) dated 4.3.1976 under the provisions of Rajasthan Government Electrical Undertaking (Dues Recovery) Act, 1960 be quashed. There was a further challenge to Rajasthan Government Electrical Undertakings. (Dues Recovery) Act, 1960 on a contention being raised that the said provisions were ultra vires the provisions of the Constitution of India.
(3.) THE Rajasthan State Electricity Board raised a preliminary objection as regards maintainability of the wit application contending inter alia that in view of the provisions of Article 363 of the Constitution the writ petitioner is not entitled to any relief. That apart, the writ petitioner had remedy of filing a regular suit to dispute his liability and the extra ordinary jurisdiction of the Court should not have been availed of by him, who was duty bound to pay for the charges of electricity consumed by him. The question as to whether the demand was time barred or not was a disputed question of fact which the court should not decide within the frame work of a constitutional writ.;