ORDER
K. Sreedhar Rao, J.
1. This revision petition is filed against the order dated 12th July, 2001 made in M.A. No. 21 /2000 on the file of the II Addl. Civil Judge (Sr. Dn.), Belgaum.
2. The respondent-plaintiff filed a suit in O.S. No. 245/89 for declaration and permanent injunction against the petitioner contending that the demand notice issued by the defendant petitioner for payment of electricity charges is illegal and the threatened disconnection in the notice is also illegal. Inter alia, in the suit. I.A.I. was filed seeking temporary injunction directing the petitioner not to disconnect the power supply during the pendency of the suit. The trial Court after hearing both the parties, dismissed I.A.I. filed by the plaintiff. Being aggrieved by the said order, the Miscellaneous Appeal was filed before the Civil Judge (Sr. Dn.), Belgaum and in the appeal, the first Appellate Court set aside the order made on I.A.I. by the trial Court and granted interim injunction restraining the petitioner from disconnecting the power supply. Being aggrieved by the said order in the Miscellenous Appeal, the present revision is filed.
3. After going through the impugned orders of the trial Court and the first appellate Court, I find that there is a serious dispute relating to the jurisdiction of the Civil Court. The trial Court while disposing of I.A.I, placing reliance on the decision reported in (1997) 3 Supreme 615 in the case of Punjab State Electricity Board v. Ashwani Kumar and by referring to the decisions of this Court reported in ILR 1999 Kant 1665 in the case of B. Narayana Swamy v. Asst. Executive Engineer Elecl. K.E.B. and (1999) 2 Kant LJ 246 in the case of Sampanna Gurusiddappa Maribasannavar v. The Spe-
cial Land Acquisition Officer, Hidkal Dam Project, Hidkal, Taluk Hukkeri came to the conclusion that the suit of this nature is not maintainable in view of the provisions contained in Sections 24 and 26 of the Indian Electricity Act, 1910 and held that the application for temporary injunction is not maintainable in the absence of prima facie case for maintainability.
4. The first Appellate Court placing reliance upon the decision of this Court in the case of Mangalore Chemicals and Fertilisers Ltd. v. Karnataka Electricity Board holds that the decision of the Supreme Court and the other decisions of this Court have been distinguished and that the ratio laid down in the said decision of the Supreme Court does not apply to a case where the matter pertains to slow reading of a meter. In the present case also, there is a slow reading of the meter. No element of dishonesty or tampering is attributed against the plaintiff-respondent.
5. The facts reveal that the Karnataka Electricity Board referred the matter for adjudication to the Electrical Inspector under Section 26(6) of the Indian Electricity Act, after filing of the suit but before the adjudication of I.A.I. before the trial Court. A demand bill dated 9-3-1999 was also issued claiming deposit of an amount of Rs. 7,30,532/- with the Electrical Inspector failing which, disconnection was threatened. Being aggrieved by the demand, the suit was filed However, after institution of the suit, the Karnatakak Electricity Board made a demand for deposit of the amount before the Electrical Inspector. The first Appellate Court finds that the demand of deposit of amount before the Electrical Inspector is not tenable since the said demand is not insisted by the Electrical Inspector and it is issued by a meter tester. In that view, the first Appellate Court holds that the demand is not proper and the threatened disconnection should not be carried out.
6. The learned Counsel appearing for the respondent relied upon a ruling of this Court in the case of M/s. Sarang Steel Fabricators, Belgaum v. Karnataka Electricity Board reported in ILR (2000) 2 Kant LJ (SN. N) 28 : AIR 1998 Kant 190. In the said decision, it was held that the Board is not entitled to claim payment of disputed amounts until
the disputed liabilities are adjudicated by the Electrical Inspector and any threatened disconnection for non payment of the additional amounts would be illegal. However, the ratio laid down in the said decision has been overruled by a Division Bench of this Court in Writ Appeal No. 5173/1997. In Paragraph 5 of the Judgment, the Division Bench makes the following observations in regard to the position of law with reference to the provisions of Section 24 of and 26 of the Indian Electricity Act, 1910 :–
“A careful reading of the abovesaid provisions of the Act reveals that so far as the dispute with regard to the slow recording of meter is concerned. Section 26 of the Act confers power upon both the licensee as well as consumer to apply to the Electrical Inspector by giving notice to the other party not less than 7 days of his intention to do so. Sub-section (6) clearly states, any difference or dispute arises as to whether any meter referred to in Sub-section (1) is or is not correct, the matter shall be decided by the Electrical Inspector upon the application of either party. If, in the opinion of such Inspector the meter is ceased to be correct, such Inspector shall estimate the amount of the energy supplied to the consumer or the electrical quantity contained in the supply, during such time, not exceeding six months. Proviso to Sub-section (2) of Section 34 of the Act provides that the prohibition contained in this Sub-section shall not apply in any case in which the licensee has made a request in writing to the consumer for a deposit with the Electrical Inspector of the amount of the licensee’s charges or other sums in dispute or for the deposit of the licensee’s further charges for energy as they accrue, and the consumer has failed to comply with such request. It clearly states that any difference or dispute between the licensee and the consumer has to be determined by the Electrical Inspector which has been referred to him. The prohibition contemplated in Sub-section (2) of Section 24 of the Act shall not apply in any case in which the licensee has made a request in writing to the consumer for a deposit with the Electrical Inspector of the amount of the licensee’s charges or other sums in dispute or for the “deposit of the licensee’s further charges for energy as they, accrue. From the reading of the abovesaid Section. It makes it very clear that the power conferred under Sub-section
(1) of Section 24 for disconnection of supply to consumer shall not be effective unless the licensee made a demand in writing to the consumer to deposit either charges or other sums in dispute with the Electrical Inspector. This makes further clear that the Board has got every right to call upon the consumer by issuing a notice to pay the sum or other charges in dispute before invoking its power under Section 24(1) of the Act for disconnection of the supply of energy to the consumer. If the payment of licence charges or other sum in dispute are deposited by the consumer, he has got a right under Sub-section (6) of Section 26 and proviso to that Section to get such dispute referred to the Electrical Inspector for adjudication. Till such dispute is adjudicated the licensee-Board shall not invoke the power under Section 24(1) of the Act and the consumer is required to deposit the disputed amount. The learned single Judge has failed to appreciate and interpret the right and power contemplated upon the Board, in view of the specific right conferred upon the Board under proviso to Sub-section (2) of Section 24 of the Act. Proviso to Sub-section (6) of Section 26 of the Act states that the dispute or difference between the parties with regard to the correctness of the meter referred to in Sub-section (1) of Section 26 of the Act shall be decided upon the application of either party, by an Electrical Inspector and in the opinion of such Inspector if the meter is ceased to be correct, such Inspector shall estimate the amount of the energy supplied to the consumer or the electrical quantity contained in the supply, during such time, not exceeding six months. The learned single Judge has erred in not considering the right conferred upon the parties. Therefore, the finding of the learned single Judge that the dispute raised by the consumer on the ground that the meter is faulty and is recording excessively and the bills raised, are challenged as per the meter recording and therefore, the amount demanded by the Board at Annexure E is not actually due, is untenable in law. The further conclusion of the learned single Judge is that the amount has not become due to the Board under Sub-section (1) of Section 24 and consequently proviso to Sub-section (2) of Section 24 will not apply is also not tenable in law. Therefore, the reasoning and the interpretation of the provisions referred to above and the
various decisions referred by the learned single Judge at paragraph 8, 8.1 of the impugned order are not attracted to the facts of the case. A plain reading of the above said (sic) the power is conferred upon the Board. Under Sub-section (1) and proviso to Sub-section (2) of Section 24 to call upon the consumer to pay the amounts towards charges for energy or any other sums other than the charge for energy. If there is any dispute with regard to that amount, such dispute shall be referred to the Electrical Inspector. The licensee shall not exercise the power until the decision is rendered by the Electrical Inspector in that regard. It further makes it clear that the prohibition contemplated under Sub-section (2) of Section 24 shall not apply in case the licensee has made a demand in writing to the consumer to deposit the amount due. Therefore, proviso to Sub-section (2) of Section 24 is attracted to the facts of the case on hand.”
7. In the present case, of course two questions would arise for consideration, first regarding the maintainability of the suit and the second regarding the liability of the plaintiff to deposit the amount of demand by virtue of Sub-section (2) of Section 24. However, the present revision should be confined only to the liability of the plaintiff to deposit the demanded amount and the legal consequences of non-deposit. The question of maintainability should be kept open to be argued by the parties before the trial Court by a separate application or as a preliminary issue.
8. In view of the ratio laid down by the Division Bench of this Court in M/s. Sarang Steel Fabricators, Belgaum v. The Karnataka Electricity Board (AIR 1998 Kant 190) the position becomes very clear that whenever there is a dispute or difference with regard to the liability of payment of concerned charges or other charges, the Board is entitled to refer the matter for adjudication to the Electrical Inspector under Sub-section (6) of Section 26 and upon such reference, the Electrical Inspector shall adjudicate the liability. However, under the proviso, the licensee is entitled to make a request in writing for the deposit of the licence charges or any other disputed sums to be deposited before the Electrical Inspector and if the consumer fails’ to make the deposit, as per the terms of the request made before the
Electrical Inspector, there is no legal impediment for the Karnataka Electricity Board to proceed with disconnection.
9. In the present case, although subsequent to the filing of the suit the matter was referred for arbitration to the Electrical Inspector, and demand notice was issued for payment of the disputed consumption charges by way of back-billing charges, it is incumbent on the part of the plaintiff-consumer to deposit even the disputed amount before the Electrical Inspector to avoid disconnection. It is no excuse for the consumer-plaintiff to contend that the amount is in dispute and that his liability to pay the amount will arise only after the adjudication by the Electrical Inspector.
10. In that view of the matter. I find that the order of the first Appellate Court in granting injunction against the Karnataka Electricity Board directing not to disconnect the power supply ignoring the provisions of law contained in Sub-section (2) of Section 24 is illegal. These aspects of the matter although not dealt with by the trial Court while disposing of I.A.I., for the reasons discussed above, I find that the order of dismissal of I.A.I, has to be confirmed.
Accordingly, the Civil Revision Petition is allowed.
