TMI Blog2010 (10) TMI 932X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Facts: 2. Facts and circumstances giving rise to this appeal are that the Municipal Committee, Hoshiarpur (hereinafter called the `appellant') had taken an electricity connection on 15.6.1992, for running a tubewell, from the Punjab State Electricity Board (hereinafter called the `Board'), for supplying water for daily use to the public of the locality at large. The average bill for the consumption of electricity of the said connection used to be around Rs.5,000/- per month and the said amount was paid regularly by the appellant. A bill dated 11.3.1994 to the tune of Rs.82,300/- was served upon the appellant by the Board. As the bill was very high, the appellant instead of making the payment, filed suit No. 304 of 1994 before the Civil Court challenging the said bill. The Board contested the Suit by filing a written statement contending that the connection had not been made properly and on checking, one of the Current Trap Potents (hereinafter called `CT') was found to be reversed, thereby nullifying the action of second CT, as a result of which only one CT was contributing to the recording of the energy actually consumed. The meter was showing only 1/3rd of the actual consu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rverse finding that after the correct/proper connection was made, the meter reading jumped to three times the previous readings. The High Court failed to note that for certain months subsequent to the correction of connection, the reading shown by meter was less than what had been shown prior to the correction, i.e., November 1993. The appeal deserves to be allowed. 6. On the contrary, Shri Satinder S. Gulati, learned counsel appearing for the respondent-Board, has vehemently opposed the appeal contending that it was not that the appellant had made any attempt to commit theft of energy or tampered with the meter. It was merely a fault/negligence on the part of the respondent-Board that the proper connection of the meter had not been made and after connecting the meter properly the meter readings had shown 3 times the consumption of electricity shown earlier. Thus, it was a case of recovery of the amount that was due in accordance with law and as per the actual total consumption of energy. The High Court was justified in re-appreciating the facts without formulating a substantial question of law in view of the provisions of Section 103 CPC. More so, the appellant has not shown wha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l can be maintained and no Court has the power to add to or enlarge those grounds. The appeal cannot be decided on merit on merely equitable grounds. 10. Further, there can be no quarrel that the right of appeal/revision cannot be absolute and the legislature can impose conditions for maintaining the same. In Vijay Prakash D. Mehta Jawahar D. Mehta v. Collector of Customs (Preventive), Bombay, AIR 1988 SC 2010, this Court held as under:- Right to appeal is neither an absolute right nor an ingredient of natural justice, the principles of which must be followed in all judicial or quasi- judicial adjudications. The right to appeal is a statutory right and it can be circumscribed by the conditions in the grant ..............The purpose of the Section is to act in terrorem to make the people comply with the provisions of law. 11. A similar view has been reiterated by this Court in Anant Mills Co. Ltd. v. State of Gujarat, AIR 1975 SC 1234; and Shyam Kishore Ors. v. Municipal Corporation of Delhi Anr., AIR 1992 SC 2279. A Constitution Bench of this court in Nandlal Anr. v. State of Haryana, AIR 1980 SC 2097, held that the right of appeal is a creature of statute and there i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Ammal Anr., AIR 2005 SC 1777; Mst. Sugani v. Rameshwar Das Anr., AIR 2006 SC 2172; Hero Vinoth (Minor) v. Seshammal, AIR 2006 SC 2234; P. Chandrasekharan Ors. v. S. Kanakarajan Ors., (2007) 5 SCC 669; Kashmir Singh v. Harnam Singh Anr., AIR 2008 SC 1749; V. Ramaswamy v. Ramachandran Anr., (2009) 14 SCC 216; and Bhag Singh v. Jaskirat Singh Ors., (2010) 2 SCC 250). 14. In Mahindra Mahindra Ltd. v. Union of India Anr., AIR 1979 SC 798, this Court observed: ..... It is not every question of law that could be permitted to be raised in the second appeal. The parameters within which a new legal plea could be permitted to be raised, are specifically stated in Sub-section (5) of Section 100. Under the proviso, the Court should be `satisfied' that the case involves a substantial question of law and not a mere question of law. The reason for permitting the substantial question of law to be raised, should be recorded by the Court. It is implicit therefrom that on compliance of the above, the opposite party should be afforded a fair or properopportunity to meet the same. It is not any legal plea that would be alleged at a stage of second appeal. It should be a substanti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of fact recorded by the lower appellate court. This is so, not only when it is possible for the High Court to take a different view of the matter but also when the High Court finds that conclusions on questions of fact recorded by the first appellate court are erroneous. 21. It will be apt to refer to Section 103 CPC which enables the High Court to determine the issues of fact: xx xx xx 22. The section, noted above, authorises the High Court to determine any issue which is necessary for the disposal of the second appeal provided the evidence on record is sufficient, in any of the following two situations: (1) when that issue has not been determined both by the trial court as well as the lower appellate court or by the lower appellate court; or (2) when both the trial court as well as the appellate court or the lower appellate court have wrongly determined any issue on a substantial question of law which can properly be the subject-matter of second appeal under Section 100 CPC. 18. In Jadu Gopal Chakravarty v. Pannalal Bhowmick Ors., AIR 1978 SC 1329, the question arose as to whether the compromise decree had been obtained by fraud. This Court held that though it is a que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt should also be categorical as to the issue of perversity vis-`-vis the concept of justice. Needless to say however, that perversity itself is a substantial question worth adjudication -- what is required is a categorical finding on the part of the High Court as to perversity. The requirements stand specified in Section 103 and nothing short of it will bring it within the ambit of Section 100 since the issue of perversity will also come within the ambit of substantial question of law as noticed above. The legality of finding of fact cannot but be termed to be a question of law. We reiterate however, that there must be a definite finding to that effect in the judgment of the High Court so as to make it evident that Section 100 of the Code stands complied with. (Emphasis added) 21. Powers under Section 103 C.P.C. can be exercised by the High Court only if the core issue involved in the case is not decided by the trial court or the appellate court and the relevant material is available on record to adjudicate upon the said issue. (See: Haryana State Electronics Development Corporation Ltd. Ors. v. Seema Sharma Ors., (2009) 7 SCC 311) 22. Before powers under Section 103 C.P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the vice of procedural irregularity or the findings are such that no reasonable person would have arrived at those findings, then the findings may be said to be perverse. Further if the findings are either ipse dixit of the Court or based on conjecture and surmises, the judgment suffers from the additional infirmity of non-application of mind and thus, stands vitiated. (Vide: Bharatha Matha Anr. v. R. Vijaya Renganathan Ors., AIR 2010 SC 2685) 25. In view of above, the law on the issue can be summarised to the effect that a second appeal lies only on a substantial question of law and it is necessary to formulate a substantial question of law before the second appeal is decided. The issue of perversity itself is a substantial question of law and, therefore, Section 103 C.P.C. can be held to be supplementary to Section 100 C.P.C., and does not supplant it altogether. Reading it otherwise, would render the provisions of Section 100 C.P.C. redundant. It is only an issue that involves a substantial question of law, that can be adjudicated upon by the High Court itself instead of remanding the case to the court below, provided there is sufficient evidence on record to adjudic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a fundamental right itself renders the impugned action void. So also the violation of the principles of natural justice renders the act a nullity. 29. Similarly, in S.L. Kapoor (supra), this Court held: The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced. 30. In view of the above, in case there is a non-compliance of a statutory requirement of law or the principles of natural justice have been violated under some circumstances, non-compliance of the aforesaid may itself be prejudicial to a party and in such an eventuality, it is not required that a party has to satisfy the court that his cause has been prejudiced for non-compliance of the statutory requirement or principles of natural justice. Present Case: 31. The High Court was much impressed by the chart submitted by the respondent-Board after correcting the connection, which reads as under: Month Unit Month Unit 8/92 3124 7/93 2231 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T are wrong. If one only CT was contributing for recording of energy then best way for the board was to install a check meter. After comparing the recording of energy by both the meters, the Board can only opine that the meter installed is not correct one and is not correctly recording the energy. So simply by saying that the disk of the meter consuming 42 seconds for one revolution, connection to the CT is not correct. Connection were corrected on the day of checking i.e. on 5.10.93 but chart produced by the Board shows that in the month of 3/94 units consumed were only 842 and in the month 9/92 units consumed were 1841. So, chart shows that after correcting the connection energy consumed is not regular. The only conclusion which should be drawn is that account of the meter was wrongly over hauled from the date of the installation of the meter. (Emphasis added) 34. The first appellate court concurred with the aforesaid findings of the fact. However, the High Court without framing a substantial question of law and without making any reference to Section 103 C.P.C. decided the case against the appellant by merely placing reliance on the aforesaid chart. The two courts below had co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing, however, the operator could have called the Municipal Engineer at that time. The detail along with the bill was served to the plaintiff, however, the bill alone does not indicate about the calculation......... 38. It is, thus, evident from the aforesaid deposition of the witness produced by the respondent-Board that no prior intimation of checking had been given to the appellant, nor was any responsible officer present at the time of checking. A copy of the checking report/chart was not given to the appellant for filing of objections nor was any show cause notice given along with the demand notice. Thus, it is a clear cut case of violation of the principles of natural justice as well as of clause 23 of the conditions of supply. Admittedly, no check meter had ever been installed and thus, it could not be held that the meter did not record the quantity of energy actually consumed. In view of the above, we do not find any force in the submissions made by Shri Gulati that the appellant must show the prejudice caused to it by not framing the substantial question of law by the High Court and not giving it the opportunity of hearing prior to the sending of the revised bill. 39. I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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