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2007 Supreme(AP) 594
Andhra Pradesh High Court
VINAYAKA MINI MODERN RICE MILL - Appellant
Versus
DIVISIONAL ENGINEER (OPERATION) - Respondent
Decided On : 06/20/2007
Advocates Appeared :
A.K.Kishore Reddy, O.Manohar Reddy
Headnote:
General Terms and Conditions of Supply – Petitioner is a Modern Rice Mill at Unduru Village of East Godavari district. It was extended power supply through service meter No. 654, after an agreement as required under the General Terms and Conditions of Supply (for short the GTCS), was executed petitioner approached this Court by filing alleging that the respondents have removed the service meter and shifted the transformer, without issuing any notice Writ petition was opposed by the respondents, by alleging that on account of the default committed by the petitioner, the power supply was disconnected and thereafter agreement was terminated vide orders after complying with the formalities taking note of this submission, this Court dismissed the Writ Petition filed by the petitioner against the order passed in the Writ Petition was dismissed leaving it open to it to assail the order of termination of agreement this writ petition proceedings issued terminating the agreement, are challenged. Learned counsel for the petitioner contends that it was not issued any notice as required under Condition the GTCS and that the impugned order suffers from several infirmities stage of admission the learned Standing Counsel for the respondents had obtained the record and made extensive submissions contends that the power supply was disconnected on account of non-payment of consumption charges for the months and that the order was preceded by a notice served upon the petitioner further submits that the order of termination does not suffer from any illegality or infirmity and that the only course open to the petitioner is to secure fresh power supply connection –Held, Basic requirement under law is that unless otherwise expressly provided, the authority, which passes an order detrimental to the interests of the citizen, alone must issue the show cause notice no provision contrary to this is brought to the notice of this Court order of termination which is challenged in this Writ Petition cannot be sustained in law standing Counsel for the respondents submits that even if the order of termination is to be treated as illegal or invalid, the agreement stood cancelled, after expiry of four months from the date of disconnection by operation of proviso to Condition GTCS way proviso brings about a deemed termination deemed state of affairs is provided under a Statute, it is for the parties to take advantage of the same and proceed accordingly take recourse to any other measure, which is at variance with the deemed provision, they cannot fall back on it. respondents themselves proceeded on the assumption that the agreement in favour of the petitioner remained intact, even after expiry of four months from the date of disconnection and they have chosen to terminate the agreement through a specific order ultimately order is found to be not in accordance with law, it would not be open to them to plead that the proviso operated and the agreement in favour of the petitioner stood terminated cannot approbate and reprobate contention cannot be accepted – Writ Petition is, accordingly allowed.
( 2 ) IN this writ petition, the proceedings issued on 26. 08. 2006, terminating the agreement, are challenged. Learned counsel for the petitioner contends that it was not issued any notice as required under Condition No. 5. 9. 4. 3 of the GTCS and that the impugned order suffers from several infirmities.
( 3 ) AT the stage of admission, the learned Standing Counsel for the respondents had obtained the record and made extensive submissions. He contends that the power supply was disconnected, on account of non-payment of consumption charges for the months of February and March 2005 and that the order dated 26. 08. 2006 was preceded by a notice, dated 29. 08. 2005, served upon the petitioner on 21. 11. 2005. He further submits that the order of termination does not suffer from any illegality or infirmity and that the only course open to the petitioner, is to secure fresh power supply connection.
( 4 ) THE fact that the petitioner was extended power supply under Category-III, duly executing agreement, in accordance with the GTCS, is not in dispute. There is some controversy as to the exact date, on which the disconnection took place. While the petitioner contends that it was on 15. 06. 2006, the respondents plead that the power supply was disconnected on 27. 03. 2005. That, however, does not become relevant, in the context of examining whether the termination of the agreement between the petitioner and the respondents is legal and proper.
( 5 ) CONDITION No. 5. 9. 4. 3 of the GTCS prescribes the procedure for cancellation of agreements. According to it, the agreement in favour of a consumer can be terminated, if he does not seek restoration of power supply, for a period of three months from the date of disconnection, and fails to pay the arrears within thirty days from the date of issuance of a notice therefor. In the instant case, this Court is inclined to accept the plea of the respondents that the disconnection took place on 27. 03. 2005. The petitioner was under obligation to get the power supply restored within three months. e. by 27. 06. 2005. Thereafter, it was open to the respondents to issue a notice under the relevant provision, requiring the petitioner to pay the accrued arrears, within thirty days. Failure to comply with, would lead to cancellation of agreement.
( 6 ) A perusal of the impugned order, dated 28. 07. 2006, discloses that proposals were submitted before the Divisional Engineer, first respondent herein, by the Assistant Accounts Officer, Samarlakot on 15. 07. 2006, for termination of the agreement. The notice of 30 days, as required under the said provision, is said to have been issued on 29. 08. 2005 by the Assistant Accounts officer. The agreement was ultimately terminated, through the impugned order, dated 26. 08. 2006, with effect from 30. 09. 2005.
( 7 ) LEARNED Standing Counsel has made available a copy of the proposal submitted by the Assistant Accounts Officer. The proposal is submitted in a prescri
