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1996 Supreme(Cal) 418
HIGH COURT OF CALCUTTA
Ruma Pal, J.
Nishikanta Banik
vs.
CESC Limited & Ors.
WRIT APPEAL C.O. No. 9957 (W) of 1996
Decided On : October 14, 1996
Advocate Appeared:
Tulsi Das Roy for the petitioner;
Miss I. Banerjee for the respondent.
The power of a licensee to disconnect the supply of electricity without notice is subject to judicial review, and the licensee cannot demand any outstanding dues prior to reconnection.
Headnote:
ELECTRICITY - DISCONNECTION OF SUPPLY - NOTICE - POWER OF LICENSEE - REVIEWABILITY - OUTSTANDING DUES - RECONNECTION - PROCEDURE.
Fact of the Case:
The petitioner, an industrial unit, had its electricity supply disconnected by the respondent, CESC, on the ground of pilferage. The petitioner challenged the disconnection, contending that CESC had no power to disconnect without notice, that the basis for the disconnection was not reviewable, and that CESC could not demand outstanding dues prior to reconnection.
Finding of the Court:
The court held that CESC had the power to disconnect the supply of electricity without notice in certain circumstances, but that the basis for the exercise of such power was reviewable. The court also held that CESC could not demand any outstanding dues prior to reconnection.
Issues: 1. Whether CESC has the power to disconnect the supply of electricity without notice? 2. Whether the basis for the exercise of such power is reviewable; 3. Whether CESC has the right to demand any outstanding dues prior to reconnection.
Ratio Decidendi: 1. The court held that CESC had the power to disconnect the supply of electricity without notice in certain circumstances, as provided for in Schedule I, Paragraph VI, Second Proviso, clauses (b) and (d) of the Indian Electricity Act, 1910. However, the court also held that the basis for the exercise of such power was reviewable, as the licensee could not be the sole judge of its own cause. 2. The court held that CESC could not demand any outstanding dues prior to reconnection, as there was no provision in law or in the Conditions of Supply which enabled CESC to withhold the connection unless payment was made as demanded by CESC.
Final Decision: The court directed CESC to reconnect the supply to the petitioner's unit through a new meter at CESC's cost at the first instance within 48 hours, subject to the petitioner paying 50% of the amount claimed to CESC and subject to payment of reconnection fees. The court also referred the dispute between the petitioner and CESC to the Electrical Inspector under the provisions of Clause 3 Para VI Schedule I to the Act for determination.
The issue which has arisen for determination in this case arises out of the disconnection of electricity to the writ petitioner's meter by the respondent NO.1.
2. The petitioner has an industrial unit which manufactures grills, shutters, etc. The industrial unit known as M/s. Lakhi Unit Industries is at 215, Picnic Garden Road. According to the petitioner he has been carrying on this business since 1979 and has been regularly paying the electricity bills as raised by the respondent No. 1 on him. The last bill was paid on 4th July, 1996. The petitioner's case is that he was supplied electricity through a meter which, along with other 20 meters of other industrial units, were housed in a room belonging to one Ram Chand Agarwal. The petitioner has claimed that he has no access to the room.
3. The supply of electricity to the petitioner's meter was disconnected by the respondent No. 1 on 1st July, 1996. According to the petitioner the employees of the respondent No. 1 had asked the petitioner to produce the current bill. The current bill was in the residence of the petitioner. The petitioner left to bring the current bill but when he returned 20 minutes later he found the supply of electricity disconnected. According to the petitioner the employees of the respondent No. 1 broke open the seal and disconnected the loop connecting the petitioner's supply of electricity to his meter.
4. The respondent No. 1 has a different version of the incident. They say that a team of four of its officials made a surprise check and found the seals on the petitioner's meter to be spurious. On the presumption that the petitioner had removed the original seals of CESC and replaced the same with spurious ones to pilfer electricity, the officials of CESC dis-connected the supply of electricity to the petitioner's premises. A complaint was lodged in the local police station on the same day. A letter was also issued on the same date to the petitioner calling upon him to meet the Deputy Manager (Mains), Loss Control Cell of CESC at his office within 3 days to make representation, if any. According to the CESC a sum of Rs. 93,565.54 was payable by the petitioner to CESC on account of non-metered consumption.
5. According to the petitioner, there was no pilferage in fact. It is also submitted that the CESC was not empowered to disconnect the supply of electricity to the petitioner's unit without giving the petitioner notice or an opportunity of being heard. It is also submitted that CESC had no material before it to come to a finding of pilferage. Finally it is submitted that the demand for Rs. 93,565.54 as a pre-condition to the reconnection was incompetent. Reliance has been placed on the decision of the Supreme Court in Municipal Corporation of Delhi vs. M/s. Ajanta Iron & Steel Co. AIR 1990 SC 822; Jagannath Singh & Sm. Santibai vs. M. P. Electricity Board AIR 1985 MP 70.
6. The CESC has submitted that it supplies electricity as a licensee under the Indian Electricity Act, 1910 (hereafter referred to as the Act) as well as the Indian Electricity Rules 1956 (hereafter referred to as the Rules). At the time of supply of electricity an agreement is entered into between CESC and its consumers. The agreement provides for the applicability of the Act and Rules as well as the Conditions of Supply framed by CESC with the sanction of the Government of West Bengal. The CESC has argued that Schedule I, Paragraph VI, Second Proviso, clauses (b) and (d) of the Act allow the CESC to disconnect the supply of electricity without notice.
"VI Requisition for supply to owners or occupiers in vicinity:-* * *
* .. * .. * * * .. .. * * * * * * * * * * .. * * * ..
Provided, first, * * * * * * * * * * * *
* .. * * * .. * .. * * * *
(a) * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
(b) * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
Provided, secondly, that the licensee shall be entitled to discontinue such supply-
(a) *.. * * * * .. .. * * * * * * * * .. * ..
