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The Indian Penal Code, 1860
Section 41 in The Indian Penal Code, 1860
State vs Hindustan on 30 September, 2010
Section 28 in The Indian Penal Code, 1860
The Code Of Civil Procedure (Amendment) Act, 1956
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G.E.B. vs R.K. Rayon, Dyeing And Printing ... on 5 April, 1999

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Gujarat High Court
Kiran Industries vs Gujarat Electricity Board And ... on 5 May, 1995
Equivalent citations: (1995) 2 GLR 1158
Author: A Divecha
Bench: B Kirpal, A Divecha

JUDGMENT

A.N. Divecha, J.

1. Common question of fact and law are found arising in both these matters. We have, therefore, thought it fit to dispose of all these matters by this common judgment of ours.

2. Appeal from Order No. 505 of 1990 (the main matter) is directed against the order passed by the learned Civil Judge (S.D.) at Mehsana on 28th November 1990 below the application at Exh. 5 in Special Civil Suit No. 85 of 1989. Thereby the learned trial Judge has granted an interim injunction against disconnection of electric connection No. A-683 for non-payment of one bill No. 211747 dt. 10-2-1989 for Rs. 1,11,590.60 ps. on condition of deposit of Rs. 50,000 and also on furnishing of bond and surety for Rs. 42,000 within 15 days from the date of the order.

3. Appeal from Order No. 165 of 1994 (the second matter for convenience) is directed against the order passed by the learned 3rd Joint Civil Judge (S.D.) at Mehsana on 18th May 1994 below the application at Exh. 6 in Special Civil Suit No. 103 of 1994. Thereby the learned trial Judge has granted a mandatory injunction directing the Gujarat Electricity Board (the Board for convenience), on deposit of Rs. 7,00,000 (seven lacs) by the consumer, to restore the electricity connection immediately with respect to the electric connection bearing Consumer No. ST- 1704 which came to be disconnected on account of non-payment of one bill of 22nd April 1994 for Rs. 42,12,354.40 ps.

4. It is not necessary to set out in detail the facts giving rise to both these matters. It would be sufficient to mention that, in each case, the consumer had instituted his suit questioning the legality and validity of the bill in question served to him. In each suit, the plaintiff prayed for an interim relief. In Special Civil Suit No. 85 of 1989 from which the main matter has arisen, the interim relief was granted on condition of deposit of Rs. 50,000 against disconnection of electric supply for non-payment of the bill for Rs. 1,11,590.60 ps. Imposition of such condition has aggrieved the consumer-plaintiff and he has, therefore, carried the matter in appeal before this Court by means of the main matter. So far as Special Civil Suit No. 103 of 1994 from which the second matter has arisen is concerned, the learned trial Judge has directed the Board, on deposit of Rs. 7,00,000 by the consumer-plaintiff in that case, to restore electric supply to the consumer-plaintiff. That order has (3) 1981 GLR 665 (4) C. M. P. No. 24107 of 1988 on 16-3-1990 by S.C. (5) AIR 1983 SC 1272 aggrieved the Board and it has, therefore, questioned its correctness in appeal by means of the second matter.

5. Both the main matter and the second matter came up for hearing before one of us (the learned Chief Justice) and both the matters have been referred to a Division Bench for their disposal in the light of the following three questions:

(i) Should a suit by the consumer questioning the legality and validity of a bill for consumption issued by the Board be entertained if the consumer has not first approached the appellate authority ?

(ii) If the appellate authority is first approached and the appellate authority has decided the issue, can the suit by such consumer be entertained questioning the legality and validity of the bill in question ?

(iii) Can it be said to be a proper exercise of discretion to order full payment of the amount of the bill subject to condition that the same would be adjusted along with interest if the suit is decreed in case a bill is raised and the appellate authority has accepted its correctness against the consumer and a suit is filed by such consumer to challenge its legality and validity ?

That is how this Division Bench is seized of the aforesaid two matters.

6. The first question obviously, pertains to the jurisdiction of the Civil Court to entertain a suit challenging the legality and validity of a bill for consumption of electric supply by the Board. It cannot be gainsaid that, if its correctness is questioned, it would be a civil dispute. In view of Section 9 of the Civil Procedure Code, 1908 (the Code for brief), the competent Civil Court will have jurisdiction to decide such civil dispute unless its jurisdiction is either expressly or impliedly barred. It is not in dispute that there is no express bar against exercise of such jurisdiction by the competent Civil Court to decide such dispute. The question arises as to whether or not there exists an implied bar against exercise of such jurisdiction by the Civil Court.

7. What is pressed into service by and on behalf of the Board in that regard is Condition No. 34 of the Conditions and Miscellaneous Charges for Supply of Electrical Energy (the Conditions for convenience) incorporated in the agreement entered into between the Board and the consumer for supply of electrical energy. Thereunder, the bill incorporating some higher charges is subjected to review by the appellate authority on the representation/appeal being filed by the consumer in the manner stated therein. It reads:

34. Payment for energy dishonestly used or abstracted or maliciously wasted or diverted:

Where it is established to the satisfacation of Board's officer that a consumer has dishonestly abstracted, used, consumed or maliciously caused energy to be wasted, or diverted, the value of the electrical energy thus abstracted, used, consumed, wasted or diverted shall be assessed by such officer for the past six months period or the actual period from the date of commencement of supply, whichever is less, in the manner specified hereinbelow and the value of energy so assessed shall be collected by including the same in the next bill or by a separate bill. Such amount shall always be deemed to be the arrears of electricity dues for all purposes.

Provided that the value of the electricity energy so assessed to have been abstracted, used, consumed, wasted or diverted shall be subject to review by the Appellate Authority on the representation/appeal being filed by the consumer in the manner stated hereinbelow:

Provided further that in the case of consumer detected to have committed or to have been committing pilferage of energy, in addition to his liability to pay the amount towards the value of the electrical energy assessed to have been pilferred as computed in the manner specified hereinbelow (subject of course to the appeal to the Appellate Authority in regard to the quantum of energy so assessed), the power supply to such consumer shall be disconnected and shall be kept disconnected for a period of 30 days from the date of disconnection of power supply on the ground of pilferage of energy subject to review by the Review Committee at the Head Office of the Board or until a minimum amount specified hereinbelow is paid against the energy so assessed, whichever is later and the authority of such disconnection may be exercised by the Board at any time, but generally as soon as possible, after the detection of pilferage of energy. Subject to provisions of the second proviso hereinabove, when a consumer on first occasion is found wasting directly using/abstracting/consuming energy dishonestly or maliciously, is aggrieved by the assessment made by the Board's officer in respect of the monthly quantum of energy deemed to have been consumed and/or the period considered therefor, he shall pay an amount equivalent to 30% of the value of the energy so assessed before the supply is reconnected. However, the consumer on second or subsequent occasion is found wasting directly using/ abstracting/consuming energy dishonestly or maliciously he shall have to pay full amount of the energy so assessed before the supply is reconnected. Such consumer can represent his case if he so desires within 30 days from the date of receipt of the assessment order or from the date of reconnection of power supply whichever is late, but in no case later than 90 days from the date of receipt of the assessment order, before the Appellate Authority appointed by the Board at its Head Office who, after giving an opportunity to the consumer of being heard and producing all written and oral evidence in support of his representation and will decide the appeal and the decision of the Appellate Authority in the appeal shall be final and binding upon the consumer and he shall then pay the balance amount within 30 days from the date of communication of the order of the Appellate Authority failing which his supply is liable to be disconnected without any further notice.

8. It cannot be gainsaid that the aforesaid conditions have no statutory force. They are not framed under any provision of law. They can at the best be styled as contractual relations casting obligations on the contracting parties. They cannot be pressed into service for ousting the jurisdiction of the competent Court to decide the civil dispute with respect to such bill.

9. A strange argument was urged before us by learned Advocate Shri R.K. Shah as an Intervenor to the effect that theft of electricity would be an offence punishable under the Indian Penal Code, 1860 and the Board is trying to barter away such criminal liability by levying higher charges for consumption and such action on its part is contrary to the relevant provisions contained in Section 320 of the Code of Criminal Procedure, 1973. This submission has to be stated only to be rejected. The reason therefor, is quite simple. The higher charges levied by and on behalf of the Board are for unauthorised consumption of electrical energy supplied through transmission lines. The levy of higher charges will not and does not curtail the power of the Board to avail of the machinery of criminal law for hooking the culprit in that regard. The Board does not barter away its power to launch a criminal action against the offender by levying higher charges for such unauthorised consumption. If it does not set the machinery of criminal law into motion against the offender for such unauthorised consumption of electrical energy amounting to its theft, there might be diverse reasons and not the consideration of higher charges levied by it for such consumption.

10. It may be noted at this stage that certain wrongful acts give rise to both an action in crime and an action in tort. Defamation and malicious prosecution are such wrongful acts. If a defamed person institutes an action in tort for damages by means of a civil proceeding without taking recourse to any criminal proceeding, it cannot be taken for granted that he has bartered away his right of criminal action in consideration of damages, if any, to be received in his civil action. In that view of the matter, we are not at all impressed by the submission urged before us by learned Advocate Shri R.K. Shah as the Intervener that Condition No. 34 of the Conditions cannot be pressed into service by or on behalf of the Board in defending a suit by a consumer for questioning the legality and validity of a bill for consumption inclusive of higher charges.

11. The implied bar contemplated in Section 9 of the Code can certainly be the bar arising from the relevant provisions contained in a statute. In its ruling in the case of Premier Automobiles v. K.S. Wadke , the Supreme Court has held that the jurisdiction of the Civil Court to decide industrial disputes arising under the relevant industrial and labour legislation is impliedly barred in view of the machinery provided in the relevant statutes for resolving such disputes. It thus becomes clear that the implied bar should have a reference to some statutory provisions and not de hors a statute.

12. In this connection, a reference deserves to be made to the Division Bench ruling of this Court in the case of Super Steels v. Ahmedabad Municipal Corporation reported in 1981 (22) GLR 665. It has been held therein (at page No. 668 of GLR):

...exclusion of jurisdiction of Civil Court is not readily to be inferred unless the finality is attached to the orders of special authorities or tribunals or where there is a bar of jurisdiction of the Court by an express provision or by necessary implications. Even such provision as to the finality or exclusion does not exclude the jurisdiction of Civil Court where the provisions of a particular Act have not been complied with or a statutory tribunal has not acted in confirmity with the fundamental principles of judicial procedure and where the special remedy does not ensure full and complete relief as available in Civil Court." We are in respectful agreement with the aforesaid dictum of law stated by this Court in its aforesaid Division Bench ruling.

13. In view of our aforesaid discussion, we are of the opinion that a consumer can invoke the jurisdiction of the competent Civil Court for questioning the legality and validity of a bill for consumption and higher charges issued by the Board without his first approaching the Appellate Authority. Such a suit by such a consumer will have to be entertained by the Court according to law. The first question will have to be answered accordingly.

14. Under Condition No. 34 of the Conditions, the decision of the Appellate Authority in appeal has been made final and binding upon the consumer and he is required to pay the amount of the bill (whatever remains outstanding) within 30 days from the date of communication of the order of the Appellate Authority failing which his supply is liable to be disconnected without any further notice. As pointed out hereinabove, the Conditions have no statutory force. Even at the cost of repetition, it may be reiterated that they are not framed under any provision of law. They can at the best be styled as contractual relations casting obligations on the contracting parties. Condition No. 34 cannot, therefore, oust the jurisdiction of the competent Civil Court to examine the legality and validity of a bill for consumption at the instance of the consumer even if he has first approached and obtained the decision from the Appellate Authority. The decision of the Appellate Authority thereunder has been final and binding qua the consumer and not qua the Court. It has rightly not been stipulated therein that such decision cannot be called into question in any Court. Any such stipulation in contractual terms might be hit by Section 28 of the Indian Contract Act, 1872. We are, therefore, of the opinion that the jurisdiction of the competent Court to examine the legality and validity of a bill for consumption issued by the Board is not ousted by Condition No. 34 of the Conditions. A suit for the purpose by such consumer can be entertained by the competent Civil Court. The second question will have to be answered accordingly.

15. It may be mentioned at this stage that, even if an arbitration clause is a part of the contract governing contractual obligations and relations between the parties, the jurisdiction of a competent Civil Court is not impliedly barred on account of existence of such arbitration clause in the contract. The proceeding of a suit based on such contract containing the arbitration clause may be stayed by pressing into service Section 34 of the Arbitration Act, 1940. However, the jurisdiction of the Court to entertain and, if necessary, to try the suit is not ousted by existence of such arbitration clause in a contract.

16. Similarly, a suit on the basis of a contract might possibly be filed in two or more Courts. By terms of the contract, the parties can agree that, out of two or more Courts having jurisdiction over the subject-matter of such suit, only a particular competent Court might be chosen for resolution of all the disputes arising under such contract. Even existence of such term in a contract would not oust the jurisdiction of all other Courts having jurisdiction over the subject-matter of such suit. The other Courts might, however, require the suitor to approach the forum chosen by the parties to the contract for resolution of all their disputes arising thereunder. The well known principle with respect to the jurisdiction of a competent Civil Court is that the parties by consent cannot confer jurisdiction on a Court which has no jurisdiction to try an action nor can they by consent oust the jurisdiction of a Court which has jurisdiction over the subject-matter of the suit brought before it. We are, therefore, of the opinion that Condition No. 34 of the Conditions does not have the effect of ousting the jurisdiction of the competent Civil Court to examine the legality and validity of a bill for consumption with or without higher charges issued by the Board.

17. Before adverting to examination of the third question, it may be noted that a bill for consumption in due course is different from a bill for consumption within the purview of Condition No. 34 of the Conditions. The latter type of bill would include what might be styled in the popular parlance as higher charges. This bill inclusive of so-called higher charges would be within the purview of Condition No. 34 of the Conditions. A bill for consumption in due course would not be amenable to any appeal as provided in the aforesaid condition. It thus becomes clear that a suit by a consumer questioning the legality and validity of a bill could be either with respect to a bill for consumption in due course or a bill for consumption inclusive of higher charges. If the subject-matter of a suit by a consumer is a bill inclusive of higher charges and if the consumer has unsuccessfully availed of the remedy of appeal as provided in the aforesaid condition, the question would arise as to how discretion should be exercised by the competent Court for grant of any interim relief against disconnection of supply of energy by the Board on account of non-payment of such bill.

18. It is true that the remedy of interim relief in such a case is discretionary in nature. It is, however, a settled principle of law that such discretion has to be exercised in a judicial and judicious manner in the light of principles governing exercise of such discretion. It would certainly depend on the facts and circumstances of each case. However, certain guidelines can be formulated for judicial and judicious exercise of such discretionary power.

19. We have to bear one thing in mind. The Board is responsible for supply of electric energy to its consumers on payment of charges for consumption. The Board is thus dealing in electric energy. It has also to meet its expenses for supply of electric energy and maintenance and installation of lines for such supply and to bear administrative expenses for the purpose. Such expenses would naturally be met from the revenue it receives by way of charges for consumption from its consumers. Any disruption of such cycle might affect its working though the amount involved might comparatively be very small. Such small amount may only be a drop of water in the vast ocean of funds representing its turnover. However, the potentiality of a drop of water to cause substantial damage cannot be overlooked. As a businesshouse, the Board can ill-afford loss of revenue even if it be of a single paise.

20. At the same time, the case of the consumer cannot altogether be overlooked. In case he is able to establish his case at trial, his interests should also be protected. Simply because the appellate decision is against him is no ground to believe that a consumer has no case whatsoever in his favour. If he has a good case, he should not ordinarily be deprived of the use of his money, hard-earned or otherwise. In such a situation, the balance of convenience would require imposition of suitable conditions while granting interim relief against disconnection of electric supply by the Board on account of non-payment of the bill in question. Such condition could be deposit of the entire amount of the bill with the Board on stipulation that, in the case of the consumer's ultimate success in the suit, the deposited amount would carry interest at the commercial rate from the date of deposit till final decision in the matter and the amount should be adjusted towards future bills treating the deposited amount as deposit earning interest and further bills to be adjusted against interest first and against the principal if the amount of interest is not sufficient for the purpose of payment of the bill in question. Any erosion in the deposited amount because of adjustment in the running bill after the final decision in the matter would result in earning interest on the outstanding amount.

21. So far as the suit involving the legality and validity of a bill for consumption in due course is concerned, the Court will have to exercise its discretion in the light of the facts and circumstances of each case. In such a fact-situation, the consumer will have no remedy of appeal under the Conditions. Ordinarily, the consumer should be required to deposit the amount of the bill in question with the Board on stipulation that the Board would treat it as a deposit earning interst at the commercial rate in case the consumer ultimately succeeds in his case. The deposit together with accumulated interest till the date of the decision would then be appropriated towards future bills in the aforesaid manner. In exceptional cases, after obtaining proper securities from the consumer, he may not be required to pay the amount of the bill in full on condition that he will have to pay the balance amount with interest at the commercial rate in case he ultimately loses his case.

22. Whether the suit is with respect to a bill for consumption with or without higher charges, interim relief may be granted with respect to the said bill but with respect to no other running bills unless the legality and/or validity of any such running bill is separately questioned. That would obviously be a separate proceeding to be dealt with according to law. In this view of the matter, the third question will have to be answered accordingly.

23. We are fortified in our view by the binding unreported ruling of the Supreme Court in the case of A.P. State Electricity Board v. Hindustan Zinc Ltd. in Civil Miscellaneous Petition No. 24107 of 1988 and allied matters in Appeal (Civil) No. 2567 of 1970 and allied matters decided on 16th March 1990. In that case, in appeal preferred by the consumers against validity of bills for consumption, the Supreme Court had granted stay against recovery of such bills for consumption. Thereupon the Andhra Pradesh State Electricity Board moved Civil Miscellaneous Petitions for vacating the stay order. While vacating the stay granted earlier, it has been held by the Supreme Court:

On a consideration of the matter, it appears to us that in such cases where public utility undertakings seek to recover the prescribed charges for supplies and services and the consumers dispute the validity of the demands raised against them, it is appropriate, except in extraordinary cases and in exceptional circumstances, not to interdict the collection but to protect the interests of those who are called up to pay charges which they seek to dispute by ensuring that in the event of their success in the litigation, they should have prompt restitution of what had been recovered from them with reasonable recompense by way of interest. We do not think that these cases are an exception to this principle. The fact that the appellants have had the benefit of and enjoyed the stay for the last five years should by itself make no difference or build any additional equities in their favour. There is no justification whatever for the continuance of the stay.

The aforesaid principle of law enunciated by the Apex Court in its aforesaid unreported ruling should clinch the issue in favour of the Board in these matters.

24. That brings us to the jurisdiction of the competent Civil Court in granting interim relief in a suit involving the legality and validity of a bill for consumption including higher charges without the consumer's first approaching the Appellate Authority under Condition No. 34 of the Condition. It may be mentioned at this stage that the Division Bench of this Court in its ruling in the case of Parshottamdas v. Gujarat Electricity Board reported in 1987 (1) XXVIII (1) GLR 637 has held Condition No. 34 to be intra vires. In that view of the matter, every consumer will be bound by such condition. He will have to act in accordance with contractual obligations including the obligation cast on him by or under Condition No. 34. That condition should preclude him from approaching the competent Civil Court first for questioning the legality and validity of a bill for consumption including higher charges without approaching the Appellate Authority as provided in the aforesaid condition. As aforesaid, the jurisdiction of the Civil Court to examine the legality and validity of the bill for consumption including higher charges at the instance of the consumer without his first approaching the Appellate Authority under Condition No. 34 is not either expressly or impliedly barred. However, the consumer should be held estopped from questioning such bill for consumption including higher charges without his first approaching the Appellate Authority. In such a situation, the consumer's suit may be entertained by the Civil Court but no interim relief deserves to be granted to such consumer against disconnection of electric supply for non-payment of the bill under challenge in the suit.

25. Our aforesaid view finds support from Section 41 (h) of the Specific Relief Act, 1963 (the S.R. Act for brief). It reads:

41. Injunction when refused - An injunction cannot be granted: xxx xxx xxx

(h) when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust. xxx xxx xxx

Thereunder, the Civil Court is precluded from granting any relief of injunction where the suitor can obtain such relief when the suitor has an alternative efficacious remedy available to him for redressal of his grievances voiced in the proceeding before it. It cannot be gainsaid that an appeal has been provided under Condition No. 34 against a bill for consumption including higher charges. It cannot be gainsaid that higher charges are levied for malpractice and/or theft of energy on the part of the concerned consumer or consumers. Such malpractice and/or theft would be indulged into by or on behalf of the concerned consumer or consumers by using certain subtle device. It would require some experience and expertise to detect such malpractice and/or theft of energy. It would need all the more expertise to understand the nature of such detection. It cannot be gainsaid that it would involve some technical knowledge about supply of energy through transmission lines if it does not involve production or use of transformers. Expertise in such matters comes by study and practical experience. A technical know-how in the matter would be an asset in understanding malpractice and/ or theft of energy and detection thereof. Shri Pandya for the Board informs us that the Appellate Authority for the purposes of Condition No. 34 of the Condition would be possessing such expertise and technical know-how. Such Appellate Authority should be able to understand the problem of both the consumer and the department in its true perspective because of his expertise and practical experience. Such Appellate Authority would, therefore, be best suited to decide the dispute between the consumer and the Board with respect to the legality and validity of a bill for consumption inclusive of higher charges. Courts are obviously illequipped in such matters. They do not possess the necessary expertise and/or technical know-how. They as well lack practical experience in dealing with supply of electrical energy through transmission lines. They are well equipped and well trained in deciding whether or not the authorities have acted within the bounds of law. In that view of the matter, the remedy of appeal thereunder can be said to be an alternative remedy.

26. It has to be branded as efficacious as well for the simple reason that the consumer has to pay an amount equivalent to 30% of the value of the energy assessed under the bill in question for advancing his cause before the Appellate Authority. The Court might require the consumer to pay the entire amount of the bill or to deposit it with the Board or to furnish a bank guarantee for the same in order to seek interim relief against disconnection of supply of electrical energy for non-payment of a bill for consumption inclusive of higher charges. In that view of the matter, the remedy of appeal under the aforesaid Condition can be said to be both alternative and efficacious. The consumer should be subjected to such alternative efficacious remedy of appeal thereunder. Section 41(h) of the S.R Act may be pressed into service for subjecting the consumer to the remedy of appeal under Condition No. 34 of the Conditions with respect to the impugned bill for consumption inclusive of higher charges.

27. It may be mentioned that Section 41(h) of the S.R. Act is not confined to the grant of relief in the ultimate decision of the Court. It can be used at the stage of interim orders also. We are fortified in our view by the binding ruling of the Supreme Court in the case of Cotton Corporation of India Ltd. v. United Industrial Bank . In that case, Section 41(b) of the S.R. Act was pressed into service for grant of interim injunction in a proceeding. By analogy, the aforesaid binding ruling of the Supreme Court would be applicable for the purpose of applicability of Section 41(h) of the S.R. Act.

28. In view of our aforesaid discussion, our answers to the aforesaid three questions are as under:

(i) A suit by the consumer questioning the legality and validity of a bill for consumption issued by the Board has to be entertained even if the consumer has not first approached the Appellate Authority.

(ii) The suit by such consumer has to be entertained questioning the legality and validity of the bill in question even if the Appellate Authority is first approached and the Appellate Authority has decided the issue.

(iii) It would be a proper exercise of discretion in a suit filed by the consumer challenging the legality and validity of a bill for consumption inclusive of higher charges to order full payment of the amount of the bill subject to the condition that, on the consumer's ultimate success in the matter, the amount so paid would be treated as a deposit carrying interest at the commercial rate and it would be adjusted along with interest against future bills.

29. We think it necessary to summarise our conclusions on the basis of our aforesaid discussion. Our conclusions are:

(i) The jurisdiction of a competent Civil Court to examine the legality and validity of a bill for consumption with or without higher charges issued by the Board is not barred irrespective of the fact that the consumer has or has not approached the Appellate Authority under Condition No. 34 of the Conditions before approaching the Court with his suit.

(ii) No ex parte interim relief against disconnection of electricity supply for non-payment of a bill for consumption with higher charges should be granted at the stage of institution of suit by a consumer challenging the legality and validity of such bill irrespective of the fact whether or not he has approached the Appellate Authority first before bringing his suit to the Court.

(iii) Even in a suit questioning the legality and validity of a bill for consumption without higher charges issued by the Board, (where condition No. 34 is not applicable) the proper exercise of discretion for grant of interim relief against disconnection for non-payment of the bill would be to direct the suitor to pay the amount of the bill to the Board on condition that the Board would treat it as deposit carrying the commercial rate of interest to be adjusted against future bills after the decision in the suit in case the suitor ultimately succeeds therein. Only in the rarest of rare cases, the Court would grant interim relief against disconnection without payment of the bill in question to the Board but on certain terms and conditions. This can be done only after giving cogent and convincing reasons on the basis of exceptional circumstances brought on record.

(iv) In case a suit is brought before the Court questioning the legality and validity of a bill for consumption with higher charges issued by the Board without the suitor's availing of the alternative remedy of appeal and the suitor is found disinclined to avail of the alternative remedy of appeal and insists on grant of interim relief against disconnection for non-payment of the bill, the Court should refuse interim relief by pressing into service Section 41(h) of the S. R. Act. It is clarified that in no case any interim relief against disconnection of electricity supply without payment of the bill for consumption with higher charges under challenge should be granted. The consumer should be ordered to pay the bill in question in full to the Board for claiming the interim relief against disconnection for its non-payment.

(v) In case a suit questioning the legality and validity of a bill for consumption with higher charges issued by the Board is brought before the Court after the decision of the Appellate Authority under Condition No. 34 of the Conditions, the Court should grant the interim relief against disconnection by ordering payment of the bill in question in full to the Board and by directing the Board to treat such payment as a deposit carrying the commercial rate of interest till the decision of the Court and to adjust the amount with accrued interest towards payment of future bills in case the consumer ultimately succeeds in his suit.

30. It may be mentioned that all the learned Advocates appearing before us in these two matters have ably assisted us in enunciating certain principles of law as are stated in this judgment. They have cited and referred to several rulings in support of their respective submissions. We have, however, not chosen to deal with all of them as we have culled out the principles of law therefrom. We have, therefore, not thought it fit to burden this judgment of ours by dealing elaborately with all the rulings cited at the Bar.

31. So far the main matter is concerned, the interim relief has been granted on condition of deposit of Rs. 50,000 against the bill for Rs. 1,11,590.60 ps. This order is obviously and patently incorrect. It cannot be sustained in law. In view of our aforesaid discussion, this matter at the instance of the consumer deserves to be dismissed.

32. So far as the second matter is concerned, a mandatory injunction of reconnection has been ordered on deposit of Rs. 7,00,000 against non-payment of the bill for Rs. 42,12,354.40 ps. In view of our aforesaid discussion, the second matter at the instance of the Board deserves to be accepted and the order deserves to be modified by ordering the respondent therein to pay the entire amount of the bill for restoration of supply of electrical energy through the disconnected line on the terms and conditions referred to in this judgment.

33. In the result, Appeal from Order No. 505 of 1990 fails. It is dismissed with no order as to costs on the facts and in the circumstances of the case. Appeal from Order No. 165 of 1994 is accepted. The order passed by the learned 3rd Joint Civil Judge (S.D.) at Mehsana on 18th May 1994 below the application at Exh. 6 in Special Civil Suit No. 103 of 1994 is quashed and set aside. The respondent in this appeal is directed to pay the entire amount of the bill to the appellant herein for restoration of supply of electrical energy through the disconnected line which has to be treated as a deposit carrying the commercial rate of interest to be adjusted against future bills in the case of the present respondent's ultimate success in the suit. There shall be no order as to costs on the facts and in the circumstances of the case.

34. After pronouncing the aforesaid judgment, learned Advocate Shri P.K. Jani prayed for staying the operation of this judgment. We are unable to agree to this request. This Court has merely applied the principles of law which had been enunciated by the Supreme Court, repeatedly, in cases dealing with public dues and the discretion that Courts should exercise in such matters. We, however, give to Shri Jani's client eight weeks' time to make the balance payment.

(SBS) A.O. No. 505 of 1990 dismissed.

A.O. No. 165 of 1994 accepted.