TaxTMI 
TaxTMI 
2010 (10) TMI 932
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....ed 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 consumption of the energy, and once the proper connection was made, the reading of the meter jumped three times. In view thereof, the account of the said meter was overhauled from the date of its installation and the fresh bill was rightly issued. The appellant filed a replication contending that no opportunity of hearing was given to it before revising the bill nor was the checking/inspection done in the presence of any responsible officer of the appellant. No notice was ever given by the Board to the appellant for inspection. More over, the appellant was not in a position to pass on the liability ....
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.... 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 what prejudice has been caused to it, if the High Court did not frame a substantial question of law and no opportunity of hearing was given to it by the Board before revising the bill. Thus, no interference is called for and the appeal is liable to be dismissed. 7. We have considered the rival submissions made by the learned counsel for the parties and perused the record. LEGAL ISSUES: Second Appeal: Sections 100 & 103 C.P.C. 8. These provisions provide for the conditions precedent for entertaining a Second Appeal and the specific manner of its disposal. Section 100 CPC reads as follows: "100. Sec....
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....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 is no reason why the legislature, while granting the right, cannot impose conditions for the exercise of such right so long as the conditions are not so onerous as to amount to unreasonable restrictions rendering the right almost illusory. 12. In Gujarat Agro Industries Co. Ltd. v. Municipal Corporation of the City of Ahmedabad & Ors., (1999) 4 SCC 468, this Court held that the right of appeal though statutory, can be conditional/qualified and such a law cannot be held to be violative of Article 14 of the Constitution. An appeal cannot be filed unless so provided for under the statute and when a law authorises filin....
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....uld 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 substantial question of law. The reasons for permitting the plea to be raised should also be recorded. 15. In Madamanchi Ramappa & Anr. v. Muthaluru Bojjappa, AIR 1963 SC 1633, this Court observed: .........Therefore, whenever this Court is satisfied that in dealing with a second appeal, the High Court has, either unwittingly and in a casual manner, or deliberately as in this case,contravened the limits prescribed by Section 100, it becomes the duty of this Court to intervene and give effect to the said provisions. It may be that in some cases, the High Court dealing with the second appeal is inclined to take the view that wha....
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....ssue 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 question of fact, but because none of the courts below had pointedly addressed the question of whether the compromise in the case was obtained by perpetrating fraud on the court, the High Court was justified in exercising its powers under Section 103 C.P.C. to go into the question. (See also Achintya Kumar Saha v. M/s Nanee Printers & Ors., AIR 2004 SC 1591) 19. In Shri Bhagwan Sharma v. Smt. Bani Ghosh, AIR 1993 SC 398, this Court held that in case the High Court exercises its jurisdiction under Section 103 C.P.C., in view of the fact that the findings of fact recorded by the courts below stood vitiated on account of non-consider....
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....e 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.C. can be exercised by the High Court in a second appeal, the following conditions must be fulfilled: (i) Determination of an issue must be necessary for the disposal of appeal; (ii) The evidence on record must be sufficient to decide such issue; and (iii) (a) Such issue should not have been determined either by the trial court, or by the appellate court or by both; or (b) such issue should have been wrongly determined either by trial court, or by the appellate court, or by both by reason of a decision on substantial question of law. If the above conditions are not fulfilled, the High Court cannot exercise its powers under Sect....
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....on 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 adjudicate upon the said issue and other conditions mentioned therein stand fulfilled. Thus, the object of the Section is to avoid remand and adjudicate the issue if the finding(s) of fact recorded by the court(s) below are found to be perverse. The court is under an obligation to give notice to all the parties concerned for adjudication of the said issue and decide the same after giving them full opportunity of hearing. Natural Justice: 26. The principles of natural justice cannot be applied in a vacuum without reference to the relevant facts and circumstances of the case. Thus, they cannot be put in a strait-jacket formula. Natural justice is not....
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....s, 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 9/92 1841 8/93 2486 10/92 1812 9/93 2063 11/92 1270 10/93 7418 12/92 2032 C.T. Connection corrected 1/93 1264 11/93 6171 2/93 1368 12/93 4656 3/93 1644 1/94 3012 4/93 1647 2/94 3359 5/93 1911 3/94 842 6/93 2152 4/94 567 On perusing the same, the High Court reached the conclusion that prior to correct the connection, the meter was recording only 1/3rd of the total energy consumed, which seems to be factually incorrect. 32. Shri Gulati, learned counsel for the Board, could not answer our query that in case the report/chart prepared by the Board is taken to be correct, under what circumstances the meter reading in the months of March and April 1994 had been 1/....
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.... 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 correctly understood and appreciated the contents of the said chart and the High Court has interfered with the concurrent findings of fact in a most casual and cavalier manner. Such a course was totally unwarranted and uncalled for. The High Court committed a grave error in considering the findings of fact recorded by the courts below to be perverse. 35. Shri Gulati has placed much reliance on the conditions of supply of the electrical connection and, particularly, on Clause 23 which reads: Where the accuracy of meter is notinvolved and it is a case of incorrect connections or defective CTs PTs, genuine calculation mistakes etc., charges will be adjusted in favour of Board/consumer, as the case may be, for the period the mistake/defect continued. Additional charges will be recovered by serving a supplementary bill cum show cause notice. The consumer may also be allowed to pay the amount in installments.(Emphasis added) 36. The aforesaid....