Allahabad High Court
Aditya Rotor Spin (P) Ltd., Kanpur And ... vs U.P. State Electricity Board, Lucknow ... on 22 February, 1991
Equivalent citations: AIR1991ALL196, II(1991)DMC118, AIR 1991 ALLAHABAD 196, 1991 ALL. L. J. 233 (1991) ALL WC 211, (1991) ALL WC 211
Author: G.P. Mathur
Bench: G.P. Mathur
ORDER G.P. Mathur, J.
1. The petitioners have filed the present writ petition for a writ of mandamus commanding the respondents to restore the supply of electrical energy to the petitioner company and for declaring Regulation 22 of the Electricity Supply (Consumers) Regulations, 1984, as ultra vires. During the course of hearing of the writ petition the petitioners also moved an amendment application, which was allowed, for quashing the assessment demand notice dated 18-12-1990 (Annexure 9 to the writ petition).
2. Petitioner No. 1 is a private limited company which has a factory for manufacturing cotton yarn at Vishayakpur Rania in district Kanpur Dehal. The U.P. State Electricity Board, respondent No. 1, sanctioned a power connection for the factory of petitioner No. 1. On 4-12-1990 the factory was inspected by a team consisting of several senior engineers of the office of the Chief Engineer (Distribution), Central Area, Lucknow. When the meter was checked from outside the cubical box it was found that the meter was recording 33% less than the actual consumption. The meter box was thereafter opened and tested and it was discovered that one wire going from C.T. to the meter had been removed from the joint. The wire had been covered by PVC tape and thereafter it had been put on another wire connecting the meter and thus on account of PVC tape there was no contact between the C.T. and the meter. Thus on account of non-contact of one wire of the meter it was recording 33% less than the actual consumption of the energy. This checking was done in the presence of Shri R.D. Sharma, representative of the petitioner company. A checking report was immediately prepared on the spot which was signed by Shri R. K. Misra and Shri Randhir Singh, Executive Engineers, Shri S. N. Bajpai, Asstt. Engineer Sub-Divisional Officer, and Shri Sanjay Misra. J.E., on behalf of the U.P. State Electricity Board. It was also signed by Shri Dilip Kumar on behalf of the consumer (petitioners). A copy of the checking report dated 4-12-1990 has been filed as CAI to the counter-affidavit. On the same day, i.e., on 4-12-1990 Shri S. N. Bajpai, S.D.O., also lodged a first information report against the petitioner No. 1 under Section 39 of the Indian Electricity Act and Section 379 IPC at P.S. outpost Rania, district Kanpur Dehat, and a true copy of the same has been filed as Annexure 5 to the writ petition. Petitioner No. 2 also lodged a first information report at P.S. Akbarpur on 5-12-1990 (Annexure 6 to the writ petition) alleging that at about 11 am on 4-12-1990 officers and men of the U.P. Electricity Board came to inspect his factory in two vehicles and told Shri Dilip Shukla, an employee of the factory, that they had come to check the meter of the electric connection. It is also alleged that Shri Sanjay Misra, J.E., demanded Rs. 5,000/-and when Shri Dilip Shukla expressed his inability to pay, the electric supply was disconnected.
3. The petitioners filed writ petition No. 34001 of 1990 for a writ of mandamus commanding respondents to resume the supply of electrical energy to the petitioners and for declaring Regulation 22 as ultra vires. The writ petition was heard for admission on 18-12-1990 and it was disposed on the same day. The operative portion of the order reads as follows :--
"The respondents are directed to restore the electric supply of the petitioner on payment of usual charges of reconnection. If and when the petitioner deposits a sum of Rs. 63,635.56 (Rupees sixty three thousand, six hundred thirty five and fifty six paise only) with the respondent No. 2, the electric supply shall be restored within a period of one week from the date of deposit of the said sum."
The petitioners have averred that they have deposited Rs. 63635.56 on 22-12-1990 and Rs.200/- towards the reconnection charges on 26-12-1990. However, the respondents issued a fresh bill dated 18-12-1990 for Rs. 7,42,931.88 which was served upon the petitioners on 21-12-1990. It is averred in para 22 of the writ petition that the Executive Engineer has issued an order on 27-12-1990 to the effect that the electric supply to the petitioner No. 1 should not be restored as a sum of Rs. 7,42,931.88 had not been deposited. It is specifically asserted in para 25 of the writ petition that no opportunity was given to the petitioner before the assessment bill dated 18-12-1990 was made and the same was wholly arbitrary and illegal. The petitioner has also filed an appeal on 22-12-1990 before the Superintending Engineer which has not yet been decided. This writ petition was accordingly filed by the petitioner for the reliefs mentioned above.>
4. This writ petition was heard for admission 4-1-1991 when the learned Standing Counsel for the U.P. State Electricity Board was directed to file counter-affidavit or to produce original record and the matter was posted for 11-1-1991. The respondents have filed a short counter-affidavit which was sworn by Shri S. C. Dwivedi, Court Clerk in the office of the Electricity Distribution Division, Kanpur. The case of the respondents, in brief, is that on receiving information that large scale theft of electricity was going on at the petitioner's factory a surprise raid was organised by the Vigilance Wing of the U.P. State Electricity Board which was headed by Shri Amba Prasad, SuperintendingEngineer, from the office of the Chief Engineer, U.P.S.E. Board, Lucknow. On checking the meter it was discovered that out of the three phases the C.T. or the Yellow Phase was so disconnected from the meter by taping and retaping that although the current was going on for consumption but was not being recorded by the meter and as such the meter was not recording 1/3rd of the actual consumption. Along with the counter-affidavit copies of the checking report and a sketch map of the cubical box containing the meter, showing the position of wires, has been filed as Annexures CA I and CA II. It is further averred that an assessment bill was prepared in accordance with Regulation 22 of the Electricity Supply (Consumers) Regulations, 1984, as per the guidelines given in Annexure I thereof. The details as to how the assessment bill was prepared is shown in Annexure CA III to the counter affidavit. In para 7 of the counter-affidavit it is mentioned that the amount of Rs. 63635,56 represented the electric bill for the month of November, 1990, as per the reading taken on 1-12-1990, i.e., prior to the checking done on 4-12-1990. It is further averred that it was a case of theft of energy and criminal proceedings have been initiated and as such it was necessary not to destroy the material evidence. It was for this reason that the electricity could not be restored because it was not possible to do so without destroying the material evidence. Shri A. S. Kapoor, learned Standing Counsel for the U.P.S.E. Board, made a statement before as that on account of short time given for filing the counter affidavit it was not possible for him to file a detailed counter-affidavit giving para-wise reply and as such a short counter-
affidavit was being filed. He, however, produced the original record of the case before us at the time of the hearing.
5. We have heard Shri Ramendra Asthana and Shri Sudhir Chandra, learned counsel on behalf of the petitioners, and Shri A. S. Kapoor, on behalf of the respondents, at length and we propose to dispose of this petition finally at this stage in accordance with the Rules of Court.
6. Learned counsel for the petitioners strenuously contended that the petitioners were not committing theft of electrical energy and in fact Shri Sanjay Misra, J.E. (Meters) was demanding bribe of Rs. 5000/- and as no money was paid to him, a false first information report had been lodged against petitioner No. 1 on 4-12-1990. The petitioners have not impleaded Shri Sanjay Misra as a party to the writ petition. The hearing of the writ petition took place on 11-1-1991, 30-1-1991, 1-2-1991 and 5-2-1991 and it was pointed out that in case the petitioners wanted to make allegations of mala fide against any officer or employee of the Board, he should have been impleaded as a party in his personal capacity to the writ petition so that notice could be issued to him and he got an opportunity to place his version. However, the petitioners have chosen not to implead either Shri Sanjay Misra or any other employee of the Board as party to the writ petition. In these circumstances we cannot adjudicate upon the allegations of mala fide raised by the learned counsel for the petitioners and this contention has to be rejected.
7. Even on merits the first information report lodged against the petitioners on 4-12-1990 and the record produced by the learned counsel for the Board show in that a team consisting of Shri Amba Prasad, Superintending Engineer, Shri N.C. Rastogi, Superintending Engineer, Shri R.K. Misra, Executive Engineer, Shri Randhir Singh, Executive Engineer, Shri S. N. Bajpai, S. D. O. and Shri Sanjay Misra, Junior Engineer, had conducted the inspection of the petitioners' factory. The surprise raid was organised by the Vigilance Wing of the Board and senior officers had come from the office of the Chief Engineer, Central Area, Lucknow. The team not only inspected the factory of the petitioner but also of another consumer, namely, M/s. Cnndra Poly Packer (p) Ltd. at Rania. The inspection was done in the presence of Shri R. D. Sharma, a representative of the petitioners, and the inspection note bears the signature of Shri Dilip Kumar on behalf of the petitioners. Petitioner No. 2 came out with his version of demand of bribe by Shri Sanjay Misra for the first time on the next day, i.e., on 5-12-1990, when he lodged the first information report to that effect at P.S. Akbarpur. To us it appears highly improbable that a team consisting of such senior officers of the Board like two Superintending Engineers, two Executive Engineers and one S.D.O. demanded a bribe of Rs. 5,000/- and when the said demand was not met they created evidence to show that theft of electricity was being committed. The version given by the petitioner No. 2 in his first information report is wholly unworthy of belief on the evidence which is before us in this writ petition. However, we are expressing no final opinion on this matter and it will be for the authorities to consider the rival allegations at the appropriate stage and come to their own conclusions independently on merits.
8. Learned counsel for the petitioners next contended that the action of the respondents in disconnecting the electric supply to the factory of the petitioners without giving any notice is wholly arbitrary and illegal and violates the principles of natural justice. Learned counsel submitted that disconnection of electric supply is a serious matter which prejudicially affects the petitioners and, therefore, such a course cannot be adopted unless prior notice is given to the concerned consumer.
9. In order to examine the contention raised by the learned counsel for the petitioners it will be useful to briefly notice the relevant provisions of the Act and the Regulations, Section 39 of the Indian Electricity Act, 1910 (hereinafter referred to as the Electricity Act) provides that whoever dishonestly abstracts, consumes or uses any energy shall be deemed to have committed theft within the meaning of the Indian Penal Code, 1860 (45 of 1860) and the existence of artificial means for such abstraction shall be prima facie evidence of such dishonest abstraction. Section 44(c) provides that whoever maliciously injures any meter referred to in Section 26, sub-section (1), or any meter, indicator or apparatus referred to in Section 26, sub-section (7), or wilfully or fraudulently alters the index of any such meter, indicator or apparatus, or prevents any such meter indicator or apparatus from duly registering; shall be punishable with fine...... and if it is proved that any artificial means exist for.....causing such alteration or prevention as is referred to in clause (c)...... and that the meter, indicator or apparatus is under the custody or control of the consumer, whether it is his property or not, it shall be presumed, until the contrary is proved, that such connection communication, alteration prevention or improper use, as the case may be, has been knowingly and wilfully caused by such consumer Section 79 of the Electricity (Supply) Act, 1948, provides that the Board may make regulations for all or any of the matters enumerated therein. Clause (j) relates to the principles governing the supply of electricity by the Board to persons other than licensees under Section 49. The U.P. State Electricity Board, in exercise of the powers conferred by Sections 49 and 79 of the Electricity (Supply) Act, 1948, has made the Electricity Supply (Consumers) Regulations, 1984 (hereinafter referred to as the Consumers Regulations). Some of the regulations are quoted below for ready reference :--
1(3)-- Unless otherwise provided in any individual contract, all the provisions of these regulations shall apply to all kinds of electrical supply to all classes of consumers as if they were part of contract between the Board and the Consumer.
2(s) -- Theft of energy' means pilferage of energy with or without the aid of any device including the consumption of energy which is not metered and any conduct preventing the correct recording by the meter of the consumption of electricity and also includes the installations having taken (broken) or tampered meter body seals;
21 (iv)(c) -- The visit of the Meter Reader, a representativer of the supplier to the premises of the consumer for the purposes of meter reading shall not, in any way, be construed to mean checking or inspection or testing of installation by the Supplier.
21(vi) -- The consumer will be responsible to the supplier for the safety of its meters and other apparatuses installed at his premises. The consumer shall not allow access to the supplier's meter seals or other equipments installed in his premises, to any body other than the supplier's authorised representative. The consumer will aslo be responsible for ensuring that the meters, and the supplier's seal affixed thereto are not damaged, broken or otherwise tampered with by any person, whatsoever, other than the duly authorised representative of the supplier. The consumer may require such representative to produce his identity card to establish his authority to represent the supplier.
If the apparatus or in particular, the meter or any of supplier's seal fixed thereto is found damaged, broken or otherwie tampered with, the consumer shall, besides the liability to the penalty prescribed in Rule 138 of the Rules, be also liable to be assessed as per Annexure I attached herewith along with retesting and reseating fee of meter, as detailed in schedule of Miscellaneous Charges.
22(A) Malpractice : (i)......
(ii).....
(iii) If at any time the consumer is found exceeding the contracted load without specific permission of the supplier in case of connection up to 75 KW (100 BHP) the supplier may, without prejudice to its other rights under the agreement or under these regulations or under the provisions of the Electricity Act, estimate the value of the electrical energy, so abstracted, consumed or used as per guidelines given in Annexure-I and may also disconnect the supply without notice.
22(B) Theft of Energy. Where a fake or tampered meter body seal is detected or where there is evidence that consumer had dishonestly abstracted, consumed, used or wasted energy or otherwise established to the satisfaction of the supplier, that a consumer has in any manner abstracted, consumed or used electrical energy dishonestly, the supplier may estimate the value of the electrical energy so abstracted consumed or used as per guidelines given in Annexure-I and may also disconnect the supply without notice. The imposition of this liability will not relieve the consumer from any penalty imposed by law for such misuse of energy besides the disconnection of supply.
22(C)-- The representative of the supplier who will get the supply so disconnected shall be an officer not below the rank of an Assistant Engineer who shall issue a letter to the consumer giving details of such malpractice, pilferage, dishonest abstraction or irregular use of energy detected.
22(D)-- The supply shall remain disconnected till such malpractice, pilferage or irregular use of energy is given up, the means thereof are removed or got regularised by obtaining sanction from competent authority and observing all other necessary formalities, as may be required to the entire satisfaction of the supplier and assessment bill along with ail outstanding arrear together with disconnection and reconnection fee is deposited by the consumer The bills of assessment shall be provided to the consumer at the earliest from the date of detecting such offence.
23(i)-- The Executive Engineer shall finalise all the assessment cases after giving an opportunity to the consumer to state his point of view.
23(ii)-- If the consumer is dissatisfied with the assessment so made, he may within 15 days of the receipt of assessment bill appeal to the Superintending Engineer. The memorandum of appeal shall be in legible writing, on full-scape paper in triplicate duly signed by the consumer. All material on which the applicant (consumer) seeks to rely for purposes of his appeal shall be sent along with the memorandum of appeal."
A scrutiny of the provisions of Regulation 22 will show that in case a consumer is found resorting to malpractice of exceeding the contracted load without the specific permission of the supplier or there is evidence that the consumer had dishonestly abstracted energy, the Board may disconnect the supply of electricity without notice. Cl.(C) of Regulation 22 requires that the representative of the supplier who will get the supply so disconnected shall be an officer not below the rank of the Asstt. Engineer who shall issue a letter to the consumer giving details of such malpractice, pilferage, dishonest abstraction or irregular use of energy detected. The Regulations further provide that the supplier may assess the value of the electrical energy so abstracted (i.e. by theft) as per guidelines given in Annexure I. Annexure-I is given at the end of the Regulations which gives a formula on the basis of which the value of the electrical energy dishonestly abstracted by the consumer is to be assessed. The formula provides that the units assessed will be equivalent L x F x H x D where L is the load factor, H is the average number of hours supply is made available and F denotes the type of supply, D is the number of days for which pilferage took place which can be established by production of satisfactory evidence by the consumer. In case there is no possible evidence to establish the period this factor is taken to be equal to 180 days (six months). This appears to be in accordance with S. 26(6) of Electricity Act which provides that in case the meter was out of order the Electricity Inspector may assess the amount of energy supplied to the consumer for such period not exceeding six months. C1(D) provides that the supply shall remain disconnected till such malpractice or pilferage is given up and the assessment bill with outstanding arrears is deposited by the consumer, it further provides that the assessment bill shall be provided to the consumer at the earliest from the date of detection of such offence. Cl. 23(i) provides that Executive Engineer shall finalise all the assessment cases after giving an opportunity to the consumer to state his point of view. The consumer is entitled to file an appeal before the Superintending Engineer under Cl.(ii) of Regulation 23 against the final orders of the Executive Engineer. Thus the regulations provide that on the detection of theft of energy the electric supply shall be disconnected by an officer not below the rank of an Asstt. Engineer. The Electricity Board will thereafter submit an assessment bill prepared as per the guidelines laid down in Annexure-I to the consumer. It is only after the consumer has deposited the bill and the malpractice or pilferage is given up that the electric supply shall be restored. The assessment bill given to the consumer under Cl. (D) of Regulation 22 is provisional in nature. The assessment bill will be finalised by the Executive Engineer after giving an opportunity of hearing to the consumer in accordance with Regulation 23(i). The consumer has also been given a right of appeal. It is true that at the stage of preparation of assessment bill under Cl. (D) of Regulation 22 the consumer is not given an opportunity of hearing but the bill shall be finalised only after giving him full opportunity.
10. The question to be considered is as to whether Regulation 22 which gives power to the Electricity Board, in certain circumstances, to disconnect the supply without notice is ultra vires as it violates the principles of natural justice.
11. Regulation 22 shows that the electric supply may be disconnected without notice if a consumer is adopting malpractice or is committing theft of energy. Theft of energy is a crime and by virtue of S. 39 of the Indian Electricity Act it amounts to an offence of theft within the meaning of Indian Penal Code. An offence under S. 379, I.P.C. is a congizable offence as defined in S. 2(c), Cr.P.C. and a police officer has the power to arrest the offender without warrant. The giving of notice to the consumer and hearing his reply is bound to take time. It is difficult to accept the contention of the learned counsel for the petitioners that the authorities of the Board, after having come to know of the commission of a crime should allow it to continue for a prolonged period without taking effective steps to prevent the commission of the crime. Judicial notice can be taken of fact that the generation of the electrical energy in the State is much below the demand. From time to time the State Government has issued orders in exercise of powers conferred by S. 22(B) of the Indian Electricity Act for regulation of supply and distribution of electricity thereby imposing compulsory cuts in consumption of energy. Almost all the industrial undertaking in the State have to observe compulsory cuts for a fixed period. This results in loss of industrial production yet the Board has to impose such compulsory cuts as it is unable to meet the demand of energy. In such a situation, where the generation of electrical energy is less and demand is more it appears highly incongruous that a dishonest consumer should be allowed to continue his illegal act of commission of theft in order to afford him an opportunity of hearing. Similarly in the case of malpractice as covered by sub-clause (iii) of Cl. (A) the Board cannot allow unscrupulous consumer to consume electricity, exceeding the contracted load, which unduly interferes with the efficient supply of energy to others. In every town the Board has installed substations which have a fixed capacity. If a consumer exceeds the contracted load it is bound to affect other vital services like water works, hospitals, railways etc. If before preventing the malpractice and disconnecting the electric supply, opportunity is given to such a consumer, it would mean that all other essential services should come to a grinding halt for several days. In such a situation the Board is fully entitled to act with promptitude and take immediate effective measures to ensure prevention of theft or malpractice.
12. It is well settled that in cases of extreme urgency where public interest would be jeopardised by the delay involved in a hearing, a hearing before condemnation would not be required by the principles of natural justice. In such situations a post decisional hearing, wherever possible, would satisfy the requirements of principles of natural justice. In Smt. Maneka Gandhi v. Union of India, AIR 1978 SC 597, Bhagwati, J. quoted with approval the following statement of law in A.S. de Smith, Judicial Review of Administrative Action, 2nd Edn., page 174 :--
"In administrative law a prima facie rights to prior notice and opportunity to be heard may be held to be excluded by implication where an obligation to give notice and opportunity to be heard would obstruct the taking of prompt action, especially action of a preventive or remedial nature."
In para 68 of the report it was observed as follows :--
".....since the life of the law is not logic but experience and every legal proposition must, in the ultimate analysis, be tested on the touchstone of pragmatic realism, the audi alteram partem rule would, by the experimental test, be excluded, if importing the right to be heard has the effect of paralysing the administrative process or the need for promptitude or the urgency of the situation so demands..... What opportunity may be regarded as reasonable would necessarily depend on the practical necessities of the situation. It may be a sophisticated full-fledged hearing or it may be a hearing which is very brief and minimal : it may be a hearing prior to the decision or it may even be post-decisional remedial hearing. The audi alteram partem rule is sufficiently flexible to permit modifications and variations to suit the exigencies of myriad kinds of situations which may arise....."
The opportunity of giving a post-decisional hearing, where immediate action is necessary, was reiterated by the Supreme Court in the case of Swadeshi Cotton Mills v. Union of India, AIR 1981 SC 818. In Liberty Oil Mills v. Union of India, AIR 1984 SC 1271 it was observed as follows in para 15 of the report:--
"..... Procedural fairness embodying natural justice is to be implied whenever action is taken affecting the rights of parties. It may be that the opportunity to be heard may not be pre-decisional; it may necessarily have to be post-decisional where the danger to be averted or the act to be prevented is imminent or where the action to be taken can brook no delay ..... There can be no tape-measure of the extent of natural justice. It may and indeed it must vary from statute to statute, situation to situation and case to case...."
Again in Union of India v. Tulsiram Patel, AIR 1985 SC 1416, Madon, J., who spoke for the majority, held as follows in para 101 of the report :--
"..... So far as the audi alteram partem rule is concerned, both in England and in India, it is well established that where a right to a prior notice and an opportunity to be heard before an order is passed would obstruct the taking of prompt action, such a right can be excluded. This right can also be excluded where the nature of the action to be taken, its object and purpose and the scheme of the relevant statutory provisions warrant its exclusion; nor can the audi alteram partem rule be invoked if importing it would have the effect of paralysing the administrative process or where the need for promptitude or the urgency of taking action so demands....."
The same view was expressed in the case of R. S. Dass v. Union of India, AIR 1987 SC 593. It is, therefore, clear that the principles of natural justice are not violated by disconnection of the electricity supply to a consumer without notice, if it is found that he was adopting any malpractice or was committing theft of energy. The regulations clearly show that electric supply will be restored as soon as the consumer deposits the assessment bill and the malpractice or pilferage is given up. The assessment bill will be finalised by the Executive Engineer after giving a hearing to the consumer and the consumer has been given an additional right of appeal. It may be mentioned here that the disconnection of electric supply in such a situation is temporary in nature as after the asessment bill is deposited the supply will be restored. It is more or less in the nature of an ad interim order. It is not necessary to give an opportunity of hearing when interim orders are passed during the pendency of an inquiry. In Liberty Oil Mill's case (AIR 1984 SC 1271) (supra) it was observed as follows in para 15 of the report :--
"..... Again it is necessary to say that pre-decisional natural justice is not usually contemplated when the decisions taken are of ad interim nature ending investigation or enquiry. Ad interim orders may always be made ex parte and such orders may themselves provide for an opportunity to the aggrieved party to be heard at a later stage........ There is no violation of a principle of natural justice if an ex parte ad interim order is made unless of course, the statute itself provides for a hearing before the order is made......"
The Supreme Court referred to the case of Queen v. Randolph rt al., 56 DLR (2d) 283 where the following passage from Broom's Legal Maxims, 10th ed., p. 68, was quoted with approval :--
"Although cases may be found in the books of decisions under particular statutes which at first might seem to conflict with the maxim, it will be found on consideration that they are not inconsistent with it, for the rule, which is one of elementary justice, only requires that a man shall not be subject to final judgment or to punishment without an opportunity of being heard."
As we have pointed out above Regulation 23 gives full opportunity to the consumer to state his point of view and therefore disconnection of electric supply without notice in the case of theft of energy or malpractice does not at all violate principles of natural justice.
13. Learned counsel lor the petitioners placed great reliance on the case of Municipal Corporation of Delhi v. M/s Ajanta Iron & Steel Co., AIR 1990 SC 882 in support of his contention that the electric supply cannot be disconnected without issuing notice to the consumer. Para 3 of the report shows that condition No. 36 of the supply of electricity clearly provided that electric supply could not be disconnected without serving a notice on the consumer. In fact the sole ground on which the 1st Addl. District Judge, Delhi, decreed the suit of the company was nonservice of notice as required under condition No. 36 in regard to supply of electricity by Municipal Corporation of Delhi. In the resent case the regulations are not silent on the question of giving notice but on the contrary provide that in cases of theft of electricity, supply can be disconnected without notice. The regulations are part of the contract between the Board and the consumer by virtue of sub-cl. (3) of Regulation 1 and are therefore binding upon the petitioners. The case cited by the learned counsel, in our opinion, is wholly distinguishable on facts.
14. It was next contended that clause 12(a) of the agreement executed between petitioner No. 1 and the Board provides, that the electric supply could be disconnected only after service of notice. The relevant clause provides that if at any time during one continuance of the agreement the consumer commits any breach or fails to observe any of the terms of the agreement which are mandatory on the part of the consumer to be observed and if the consumer having been served with a notice in writing by the supplier fails within 15 days to remove the default of breach complained of, then it will be lawful for the supplier to terminate the agreement and disconnect the supply. We have examined the terms of the agreement carefully. The agreement does not at all contemplate a situation where the consumer is committing theft of energy or is resorting to malpractice. Cl. 4 of the agreement lays down that consumer shall provide suitable switches to control his apparatus and clause 5 lays down that the consumer shall not transmit the energy beyond the boundaries of his premises, Clause 6 lays down regarding the location of switch gear etc. Therefore, the terms of the agreement do not at all refer to theft or malpractice and the contention raised by the learned counsel cannot be accepted. Similarly S. 26(3) of the Electricity Act also contemplates a situation where meter has developed some defect of its own and not where a deliberate tampering has been done by a human agency by changing the mechanism or using a device by which the meter records less than actual consumption. In our opinion the case of petitioners is not covered by S. 26(3) and disconnection of supply could be done without notice.
15. It was next contended that cl. 18 of the agreement provides that in case of any inconsistency between the terms as contained in the agreement and those in the conditions of supply, the terms of the covenant shall prevail. According to the learned counsel the terms of the agreement which provide for giving a notice before disconnection should prevail over the Consumers Regulations, 1984. In our opinion there is no inconsistency between the terms of the agreement and those in the conditions of supply. As observed earlier the terms of agreement do not at all refer to theft of energy and thus there is no inconsistency. In this view of the matter the provisions of Electricity Supply (Consumers) Regulations, 1964, will have full play and the petitioners are bound by the same.
16. It was then contended by learned counsel for the petitioners that Regulation 22 of the Consumers Regulations are ultra vires as they provide no guidelines as to when the power of disconnection of electric supply may be exercised by the Board. According to learned counsel the Regulations were wholly arbitrary as they confer unbriddled power of disconnection. In support of his submission the learned counsel placed strong reliance on the decision of the Supreme Court in the case of Delhi Transport Corporation v. D.T.C. Mazdoor Congress, AIR 1991 SC 101 and specially upon the observations of Hin'ble L. M. Sharma, J, as contained in para 216 of the report and also upon the case of Central Inland Water Transport Corporation v. B. N. Ganguly AIR 1986 SC 1571. Both the cases relate to termination of service of employees. In the case of Delhi Transport Corporation (supra) the Hon'ble Supreme Court was considering the validity of Regulation 9(b) framed under the Delhi Road Transport Act which provided that service of an employee may be terminated on one month's notice or pay in lieu thereof. Similarly in the case of Central Inland Water Transport Corpn. (supra) the Supreme Court was considering the validity of Rule 9(1) of Central Inland Water Transport Corporation (Service, discipline and appeal) Rules which provided that the employment of a permanent employee shall be subject to termination on three months notice on either side. The aforesaid rules which empowered the employer to terminate the services of an employee on notice simpliciter were held to be arbitrary and violative of Art. 14 of the Constitution on the ground that a regular temporary or permanent employee could be dismissed or removed from service at the whims and caprices of the concerned authority without any reason whatsoever. Such unbriddled, arbitrary and uncanalised power to terminate the services even of a permanent employee without assigning any reason and without giving an opportunity of hearing was held to be per se arbitrary and discriminatory. In our opinion, the cases cited by the learned counsel have no application at all to the facts of the present case. The power under Regulation 22 to disconnect the electric supply without notice can be resorted to only if there is evidence that consumer had dishonestly abstracted, consumed, used wasted energy or otherwise established to the satisfaction of the supplier that the consumer has in any manner abstracted, consumed or used electrical energy dishonestly. The regulations lay down sufficient guidelines and precise situations in which such a power is to be exercised. It is not that in every case the board has got power to disconnect the electric supply. It is only in the situations enumerated in Regulation 22 that such a power can be exercised. Therefore, in our opinion, the regulations cannot be struck down on the ground that they are arbitrary or violative of Art. 14 of the Constitution.
17. On the basis of the meter reading slip dated 1-12-1990 (annexure 4 to the writ petition) it was contended that at the time when the meter reading was taken by the meter reader on 1-12-1990 the meter reader had not found that any tampering had been done. Emphasis was laid on the endorsement on the document to the effect "all seals untouched as demand is less than 75% of the biliable demand". The respondents' counsel has contended that a meter reader is not required to cheek the meter while taking the reading nor he is authorised to open the Cubical box. In our opinion this endorsement does not at all show that the meter reader had done any testing or that he had verified as to whether any tampering had been done or not. That apart, Regulation 21(iv)(c) and proviso to Regulation 23(vi) clearly lay down that the visit of the meter reader for the purpose of meter reading was not, in any way, to be construed to mean checking or inspection of testing of installation by the supplier. It was also contended that the petitioners had sent several applications to respondent No. 2 for checking of the meter and in case any tampering had been done such a course would not have been adopted. It is argued on behalf of the respondents that this was done by way of peshbandi in order to create evidence in favour of the petitioners. However, these are all questions of fact which the authorities will decide after examining the rival contentions and the evidence adduced by the parties. In our opinion this circumstance by itself cannot lead to any inference that the petitioner was not committing theft of electrical energy.
18. Learned counsel for the petitioners next submitted that this Court had passed an order on 18-12-1990 in writ petition No. 34001 of 1990 directing that the respondents shall restore the electric supply of the petitioner within a period of one week from the date of deposit of Rs. 63635.56 and the petitioner had deposited the aforesaid amount on 22-12-1990 and the reconneclion fee on 26-12-1990 and, therefore, the respondents were bound to restore the electric supply of the petitioners. This amount of Rs. 63635.56 related to the electricity bill of the petitioners for the month of November,. 1990 as per reading taken on 1-12-1990, i.e. prior to the surprise raid conducted on 4-12-1990. This fact is stated in para 7 of the counter-affidavit and is also admitted by the petitioner in this appeal filed before the Suprintending Engineer, copy of which has been filed as Annexure 12 to the writ petition. The assessment bill of Rs. 7,42,931.85 (Annexure 9 to the writ petition), which was issued under the signature of Assistant Engineer, Kanpur, bears the date 18-12-1990 and was served upon the petitioners on 21-12-1990 as stated in para 19 of the writ petition. The earlier writ petition was decided on 18-12-1990 and till then this assessment bill had not been served upon the petitioners. This Court while deciding writ petition No. 34001 of 1990 on 18-12-1990 had no occasion to adjudicate upon the validity of the assessment bill dated 18-12-1990 as it had not been served upon the petitioners till then and it was not known that such a bill was under preparation. The question is that if the assessment bill dated 18-12-1990 is a valid bill, the respondents are still bound to restore the electric connection although payment thereof has not been made. Cl. (B) of Regulation 22 clearly provides that the supply shall remain disconnected till assessment bill along with all outstanding arrears together with disconnection and re-connection fee is deposited by the consumer. It is an admitted fact that the petitioners have not yet deposited the amount mentioned in the assessment bill. In case the assessment bill had not been served upon the petitioners the respondents were certainly bound to restore the electric supply within a week of the deposit of Rs. 63635.56 by the petitioners as directed by order dated 38-12-1990. However as even before the petitioners had deposited the aforesaid amount the assessment bill had been served upon them, they are liable to deposit the amount mentioned in the assessment bill before claiming restoration of electric supply in accordance with cl. (B). In the matter of electric supply, where periodic. bills are given, the order dated 18-12-1990 cannot enure to the benefit of the petitioners for all times to come. By way of illustration we may point out that if there is dispute regarding electricity bill for the month of January and a consumer obtains an order from the' court that his supply shall not be disconnected for depositing the bill for the month of January, it would not mean that the supply cannot be disconnected even if the consumer fails to deposit the bills for subsequent months. Since the situation has altered after the decision of the writ petition by this Court on 18-12-1990 to the effect that an assessment bill has been served upon the petitioners in accordance with the regulations on 21-12-1990 and as the validity of the said assessment bill had not been adjudicated upon by this Court, we arc of opinion that the electric supply could be restored to the petitioners only after depositing the said amount.
19. We may point cut that the electricity supply of the petitioners has not been disconnected on the ground of nondeposit of bill for the month of November, 90 which was for Rs. 63675.56 but on the ground of commission of theft of electricity. Discontinuance of electric supply for a long period is likely to cause grave hardship to a consumer. Therefore, the Board has made provision in Regulation 22(D) for restoration of supply on deposit of assessment bill. We have already held that Regulation 22 is valid and does not suffer from any illegality. In case restoration of electric supply is ordered now, without the petitioners having deposited the assessment bill, it would amount to restoration of supply even though the petitioner has not complied with the requirement of Regulation 22.
20. Learned counsel for the petitioners has also submitted that the assessment bill was highly excessive and arbitrary. The assessment bill has been prepared in accordance with the guidelines given in Annexure I to the Regulations and as such it cannot be said to be arbitrary. The record of the case produced by the learned Standing Counsel show's that the electricity bill of the petitioner in for the month of January, 1990 was Rs. 156088/-, for the month of March, 1980, Rs. 100696/-andforthemonthofSept. 1990, it was Rs. 94976/-. Therefore, the assessment bill roughly represents the electricity bill of the petitioners for about six to seven months. This amount cannot be said to be arbitrary or illegal in any manner.
21. The question is whether the electric connection of the petitioner should remain disconnected for all times to come. In accordance with the scheme of Regulation 22 we direct that in case the petitioners deposit the amount mentioned in the assessment bill dated 18-12-1990 together with such other fee as required by the rules, the respondents will restore the electric connection of the petitioners within three days of the date of such deposit. The petitioners will be entitled to file a representation against the assessment bill before the Executive Engineer together with such other evidence as they want to lead in support of their case in accordance with Regulation 23(i) of the Regulations. The Executive Engineer shall finalise the assessment bill without any delay after giving an opportunity of hearing to the petitioners. The petitioners will also have a right of appeal against the order passed by the Executive Engineer in accordance with Regulation 23(ii). In case the final bill so prepared is for an amount less than the assessment bill the extra amount deposited by the petitioners shall be refunded to them.
22. The petitioners have prayed for a writ of certiorari for quashing of the assessment bill. As discussed earlier we do not find any illegality in the assessment bill at this stage and as such the prayer made by the petitioners is rejected.
23. The petitioners have also prayed for a writ of mandamus directing the respondents to restore the electric connection of the petitioners. It was held in State of M.P. v. G. C. Mandawar, AIR 1954 SC 493 that a mandamus can be granted only when there is in the applicant a right to compel the performance of some duty cast on the opponent. As discussed above the regulations clearly provide that until the assessment bill is deposited the electric supply of the petitioners cannot be restored. In these circumstances the petitioners are not entitled to a writ of mandamus, as prayed by them, at this stage.
24. We may also point out that the petitioners have an alternative remedy of filing a representation to the Executive Engineer and appeal to Superintending Engineer under Regulation 23. Therefore, it is not a fit case for interference at this stage.
25. The material on record shows that out of three phases going to the meter one phase was covered by taping and retaping with the result that actually there was no contact between the wire and meter and therefore the meter was recording 33 per cent less than the actual consumption of electricity. It was a deliberate and intentional act done by a human agency with the sole object of benefiting the petitioners. The meter was not recording less on account of any defect which may have developed of its own without the aid of human agency. The petitioners are prima facie guilty of theft. Therefore, they are not entitled to an equitable and discretionary relief under Art. 226 of Constitution of India.
26. For the reasons mentioned above the writ petition is dismissed. There will be no order as to costs.
27. Petition dismissed.