Gujarat High Court
Khodidas vs Uttar on 23 November, 2011
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
Gujarat High Court Case Information System
Print
LPA/1563/2011 14/ 14 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 1563 of 2011
In
SPECIAL
CIVIL APPLICATION No. 14652 of 2011
WITH
CIVIL
APPLICATION No. 11133 of 2011passed
In
LETTERS
PATENT APPEAL No. 1563 of 2011
For
Approval and Signature:
HONOURABLE THE
ACTING CHIEF JUSTICE
MR.BHASKAR
BHATTACHARYA
and
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
===============================================================
KHODIDAS
JETHARAM KADIA
Versus
UTTAR
GUJARAT VIJ COMPANY LIMITED
=========================================================
Appearance :
MR
KEYUR A VYAS for Appellant.
MR SP HASURKAR for
Respondent.
=========================================================
CORAM
:
HONOURABLE
THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA
and
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
Date
: 23/11/2011
CAV
JUDGMENT
(Per : HONOURABLE THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA) This Letters Patent Appeal under clause 15 of the Letters Patent is at the instance of a consumer of electricity and is directed against an order dated 29th September 2011 passed by a learned Single Judge of this Court in Special Civil Application No. 14652 of 2011 by which the learned Single Judge dismissed the writ- application under Article 226 of the Constitution of India filed by the said consumer.
Being dissatisfied, the writ-petitioner has come up with the present appeal.
The following facts are not in dispute:-
[a]. The appellant is a consumer of electricity and had been regularly paying the electric bills issued by the respondent, a licensee under the Indian Electricity Act, and has never committed any default in payment of the bills submitted to him by the respondent.
[b]. One Ashapura Construction Company run by one Atul K. Kadiya, the son of the appellant, constructed certain buildings. The respondent alleged that during the construction of the said buildings, Ashapura Construction Company committed theft of electricity and consequently, the respondent issued a bill of Rs.79,392/- to the said Ashapura Construction Company.
[c]. Subsequently, the respondent filed a Civil Suit being Special Civil Suit No. 32 of 2005 for realization of the said amount against the said Ashapura Construction Company through its Proprietor, Atul K. Kadiya, the son of the appellant, who contested the suit and ultimately, by a judgment and decree dated 3rd July 2009, the Civil Court passed a money decree in favour of the respondent against the said Ashapura Construction Company owned by the son of the appellant.
[d]. On 2nd August 2011, the respondent-company sent a notice to the appellant indicating that they were going to disconnect the electric connection of the appellant in view of the existence of the unsatisfied decree passed in the said suit notwithstanding the fact that the appellant was not even a party to the suit and the electric connection was not in the name of either the said Ashapura Construction Company or the son of the appellant.
[e]. After receiving the said notice, the appellant through his learned advocate gave a reply by pointing out that the threat of disconnection by the respondent was illegal as the appellant had nothing to do with the said Ashapura Construction Company and the appellant, the recorded consumer, was not at all a defaulter insofar as the electric connection which was sought to be disconnected.
[f]. Eventually, the respondent threatened that within a day the electric connection of the appellant would be disconnected.
[g]. The appellant, therefore, came up with an application under Article 226 of the Constitution of India praying for quashing of the said notice of threat of disconnection dated 2nd August 2011.
The said writ-application was opposed by the respondent by contending that as the son of the appellant, who was carrying on business of construction, was guilty of theft of electricity in course of such construction and had already suffered a money decree for the loss suffered by the respondent consequent to such theft, the respondent had decided to disconnect the supply of electricity to the appellant because the said son was residing in the house of the appellant with him. Another defence of the respondent in support of threatened disconnection was that as the appellant was aged about 80 years, he was not supposed to consume such a huge quantum of electricity as reflected in the bill in his residence for his own use and that his son is the real consumer. The respondent further contended that the appellant had no independent income, and, therefore, as his son was maintaining the appellant, the respondent had decided to disconnect the electric connection of the appellant, the father of the judgment-debtor who was the real consumer.
The learned Single Judge, by the order impugned herein, has dismissed the writ-application on the ground that the appellant had an alternative remedy by way of preferring an appeal against the decree passed by the Civil Court, and as such, the application filed under Article 226 of the Constitution of India was a misconceived one by totally overlooking the fact that the appellant was not party to the said decree.
Being dissatisfied, the appellant, the recorded consumer of electricity, has come up with the present appeal.
The only question that arises for determination in this appeal is whether for the money decree obtained against a person who is not even a recorded consumer of electricity, the electric connection given to his father can be disconnected even though the said father, the recorded consumer, is not a defaulter in payment of any dues recorded in the concerned electric meter nor is there any allegation of theft against the actual recorded consumer.
Mr. Hasurkar, the learned advocate appearing on behalf of the respondent, strenuously contended before us that although the electric meter stood in the name of the appellant, his son was residing in the said house and although he was not the owner of the said house, it was the said son who was actually enjoying electricity in the said premises. Mr. Hasurkar contends that the recorded consumer was not capable of earning at his old age and it was his son who was really maintaining his father, the recorded consumer. According to Mr. Hasurkar, in such a situation, the respondent is entitled to disconnect the supply of electricity of a recorded consumer, even though, he is neither a defaulter nor is there any allegation of pilferage of electricity against him. In support of his contention, Mr. Hasurkar strongly relied upon the decision of the Supreme Court in the case of Surjit Singh vs. Mahanagar Telephone Nigam Ltd reported in AIR 2008 SC 2226. Mr. Hasurkar, therefore, prays for dismissal of the appeal.
In order to appreciate the aforesaid question, it will be profitable to refer to the following relevant provisions of the Electricity Act, 2003 [hereinafter referred to as the Act] and Gujarat Electricity Regulatory Commission (GERC) Electricity Supply Code and Related Matters, 11 of 2005 [hereafter referred to as the supply code].
Section 56 of the Act provides as under:
"Sec.
56. Disconnection of supply in default of payment.-
(1). Where any person neglects to pay any charge for electricity or any sum other than a charge for electricity due from him to a licensee or the generating company in respect of supply, transmission or distribution or wheeling of electricity to him, the licensee or the generating company may, after giving not less than fifteen clear days' notice in writing, to such person and without prejudice to his rights to recover such charge or other sum by suit, cut off the supply of electricity and for that purpose cut or disconnect any electric supply line or other works being the property of such licensee or the generating company through which electricity may have been supplied, transmitted, distributed or wheeled and may discontinue the supply until such charge or other sum, together with any expenses incurred by him in cutting off and reconnecting the supply, are paid, but no longer:
Provided that the supply of electricity shall not be cut off if such person deposits, under protest,-
(a). an amount equal to the sum claimed from him, or
(b). the electricity charges due from him for each month calculated on the basis of average charge for electricity paid by him during the preceding six months, whichever is less, pending disposal of any dispute between him and the licensee.
(2). Notwithstanding anything contained in any other law for the time being in force, no sum due from any consumer, under this section shall be recoverable after the period of two years from the date when such sum became first due unless such sum has been shown continuously as recoverable as arrear of charges for electricity supplied and the licensee shall not cut off the supply of the electricity."
Section 135(1A) of the Act reads as under:
"(1A). Without prejudice to the provisions of this Act, the licensee or supplier, as the case may be, may, upon detection of such theft of electricity, immediately disconnect the supply of electricity;
Provided that only such officer of the licensee or supplier, as authorised for the purpose by the Appropriate Commission or any other officer of the licensee or supplier, as the case may be, of the rank higher than the rank so authorised shall disconnect the supply line of electricity:
Provided further that such officer of the licensee or supplier, as the case may be, shall lodge a complaint in writing relating to the commission of such offence in police station having jurisdiction within twenty four hour from the time of such disconnect:
Provided also that the licensee or supplier, as the case may be, on deposit or payment of the assessed amount or electricity charges in accordance with the provisions of this Act, shall, without prejudice to the obligation to lodge the complaint as referred to in the second proviso to this clause, restore the supply line of electricity within forty-eight hours of such deposit or payment."
Clause 8.7.5. of the Supply Code provides as under:
"In case of disconnection of supply for non payment of any charge for electricity or any sum other than a charge for electricity dues from the consumer to the Distribution Licensee in respect of supply or wheeling of electricity to the consumer, he will not be permitted to have electricity connection from any other Distribution Licensee."
A plain reading of the aforesaid statutory provisions makes it abundantly clear the relevant Statutes do not authorize the licensee under the Act to disconnect the supply of electricity of a consumer unless he is a defaulter in making payment of the charge of electricity or other charges payable under the relevant statutes or unless such consumer is guilty of theft of electricity. Simply because a person, who has suffered a money decree in a civil suit filed by the licensee, lives in a particular premises, such fact will not enable the licensee under the Act to disconnect the electricity of that premises when no amount is due and payable by the recorded consumer of electricity of that premises.
Similarly, the Code of Civil Procedure does not authorize a decree-holder to take any coercive step against the father of the judgment-debtor for realization of unpaid money payable by a decree nor does it permit the decree holder to take any step whatsoever against the judgment-debtor than those provided in Section 51 of the Code. Disconnection of electricity of the premises where the judgment-debtor actually resides is also not provided as a mode of realization of unsatisfied decree in the Code of Civil Procedure. A father is also under no obligation to pay off the dues payable under a decree suffered by the son where the father is not party to the decree.
Regarding the allegation of theft of electricity levelled against the son of the appellant, it is needless to mention that such an act is a criminal offence and this court has been given to understand that the criminal trial against the son of the appellant has not yet culminated in conviction with any finding of guilt. According to the criminal jurisprudence, the father of a person who is guilty of an offence cannot be punished in anyway for the crime committed by the son unless he is an abettor. In the case before us, the respondent has not alleged the charge of abetment of theft of electricity against the appellant and the alleged theft was not even committed in the premises in question owned by the appellant.
We now propose to deal with the decision cited by Mr. Hasurkar.
In the case of Surjit Singh vs. Mahanagar Telephone Nigam Ltd (supra), the Supreme Court was dealing with a case where the appellant therein and his wife were living together at their residence in Rajouri Garden, Delhi. At that residence, there was one telephone line bearing No. 5121187 in the name of appellant Surjit Singh and there was also another telephone line bearing No. 5416493 at the same residence in the name of the appellant's wife. There was a third telephone line bearing No. 3265301 in the name of the appellant and installed at the business premises of the appellant at 1195, Chahrahat Building, Jama Masjid, Delhi. There were admitted arrears of telephone dues in connection with line No. 5416493 which was in the name of the appellant's wife. For non-payment of the telephone dues in connection with this line, the other two lines in the name of the appellant being 5121187 at his residential premises and line No. 3265301 at his business premises were disconnected. The contention of the appellant was that the telephone lines in his own name being line No. 5121187 at his residence and line No. 3265301 at his business premises should not be disconnected on account of non-payment of dues in connection with the line in the name of his wife being line No. 5416493. The appellant contended that he and his wife were two separate legal entities, and he could not be penalized for the fault of his wife.
The appellant filed a writ-petition in the Delhi High Court which was dismissed by a learned Single Judge and his appeal before the Division Bench of the High Court was also dismissed by the judgment impugned before the Supreme Court.
While dealing with such an appeal, the Supreme Court made the following observations:
"In the present case which is before us it has come on the record that the appellant's wife is a housewife who is living with the appellant at his residential premises at Rajouri Garden, Delhi. It has not been alleged that the appellant's wife has an independent source of income by doing some business or by some service etc. In these circumstances, it can be inferred that the payment of the bill of the telephone line in the name of the appellant's wife was being made by the appellant himself, since his wife has no independent source of income and is economically dependent on him.
11. In our opinion, we have to draw a distinction between the cases where a relative who though living in the same house has an independent source of income, and cases where one relative is dependent on another. While in the former case if there are two different lines, one in the name of the relative who is economically independent and has his own source of income and the other in the name of the petitioner, it could be held that non-payment of dues by the relative cannot lead to the consequence of the disconnection of the telephone line of the petitioner. However, in the latter category of cases i.e. where one relative is economically dependent on another, the position, in our opinion, is wholly different. For instance, if there is a telephone line in the name of a minor child of a father, and another telephone line in the name of the father, and both of them are living together in the same house, then obviously the telephone bills of the telephone line in the name of the minor child is being paid by the father. Hence, in our opinion, for non-payment of the bills of the telephone line in the name of the minor child, the telephone line of the father can be disconnected.
12. Similarly, there can be a case where the husband and wife are living in the same house and both have independent sources of income, and the wife herself is paying for the bills in connection with the telephone line in her own name, whereas the husband is paying for the bills of his own telephone line. In such a case, for non-payment of the bill of the wife the telephone line of the husband cannot be disconnected."
The Court further observed as follows:
"It is true that on a literal interpretation of Rule 443, we would have to accept the contention of learned counsel for the appellant. However, in our opinion, in this case, the literal rule has not to be adopted, because we have also to see the intention of the rule. The intention obviously was that payment of telephone dues should be made promptly, otherwise the telephone department will suffer. We have, therefore, to take an interpretation which effectuates and furthers the intention of Rule 443, i.e. the telephone bills should be paid in time.
22. In the case of a wife who is a housewife and is economically dependent on her husband, obviously the telephone bills in connection with the line in her name are being paid by her husband and not by herself. Hence, we have to adopt a purposive construction in this case and not go by the literal rule of interpretation.
23. Though, no doubt, ordinarily the literal rule should be applied while interpreting a statute or statutory rule, but the literal rule is not always the only rule of interpretation of a provision in a statute, and in exceptional cases the literal rule can be departed from."
After going through the said decision, we find that in that case a dependent wife committed default of payment and was enjoying the telephone connection of her husband in the selfsame premises whereas in the case before us, there is no default in making payment of electric charges or other charges payable under the Act by any consumer but it is a case of non-payment of decreetal dues by a judgment-debtor who is not a consumer of electricity during the pendency of an appeal filed by him. For the satisfaction of a money decree, the decree-holder can proceed against the judgment-debtor only in accordance with the provisions contained in Section 51 of the Code and the said provision does not authorize the decree-holder to adopt any other mode than those prescribed in the schedule of the Code. The position, however, would have been different if the son of the appellant was also a consumer having connection of electricity in the selfsame premises or other premises owned by the appellant and had committed default in payment of the electricity or other charges payable under the Act and was also totally dependent upon the appellant. In such a case, the respondent by taking aid of the decision in the case of Surjit Singh (supra), could justify threat of disconnection of the electricity of the appellant for default committed by his son who was totally dependent upon his father.
Therefore, the writ-petitioner who is not a judgment-debtor has right to complain before the writ-court that a licensee under the Act acted beyond the provision of the Act and has no right to disconnect the electricity otherwise than on the grounds mentioned in the Act and that even the Code of Civil Procedure does not authorize the decree-holder to proceed against the father of a judgment debtor for recovery of the amount due by taking a measure not prescribed under the Code.
At this juncture, it will be profitable to refer to the well-known proposition of law that a natural person has the right to do all lawful things unless his right has been curtailed by some rule of law. It is equally a fundamental principle that in case of a statutory authority, it is just the other way. The statutory authority has no power to do anything unless those powers are conferred on it by the Statutes which created it.
In the case before us, the Respondent as a statutory authority has no power of disconnection of electricity in the facts of the present case as the same is not authorized by the Act and even as a natural person in the capacity as a decree-holder its right to enforce a decree against a third party is curtailed by Section 51 of the Code.
We, therefore, hold that the Respondent, a creature of the statute by issuing a statutory notice of disconnection under the Act acted without jurisdiction in interfering with the legal right of the writ-petitioner to have electricity in accordance with law when he had not violated any of the provisions of the Act justifying disconnection. Thus, it is a case of abuse of statutory power at the instance of a statutory authority for the purpose of overcoming the statutory restriction imposed with an eye to enforce a money decree against a third party in a manner not prescribed by law.
We, therefore, issue a mandamus quashing the notice of disconnection issued by the licensee under the Act which is the subject-matter of the writ-application and hold that the respondent has no right to interfere with the supply of electricity of the writ-petitioner so long there is no violation of the provisions of the Act authorizing disconnection. The learned Single judge, as it appears from the order impugned, did not advert to the above aspect of the matter and proceeded as if the appellant had suffered a money decree for the theft of electricity.
The Letters Patent appeal and the writ-application filed by the appellant are thus allowed. No costs.
In view of the above order passed in the appeal, the Civil Application does not survive and stands disposed of accordingly.
[BHASKAR BHATTACHARYA, ACTING C.J.] mathew [J.B.PARDIWALA.
J.] Top