Calcutta High Court
C.E.S.C. Ltd. And Ors. vs Madho Prosad Mahabir Prosad Supplies ... on 23 May, 2003
Equivalent citations: (2004)1CALLT87(HC)
Author: J.K. Biswas
Bench: Ashok Kumar Mathur, Jayanta Kumar Biswas
JUDGMENT J.K. Biswas, J.
1. Writ Petition No. 555 of 1992 was filed in this Court by the respondents Nos. 1 and 2 herein (hereinafter referred to as "the writ-petitioners"). By the judgment and order dated 31st July 1996 the learned single Judge was pleased to allow it. The appellants who were the respondents Nos. 1 to 4 in it have preferred the present appeal against the said judgment and order.
2. The writ petitioner No. 1 is a consumer of the appellant No. 1 (hereinafter referred to as "the C.E.S.C."). From their factory situate at 26/27, N.D. Bose Lane, Konnyagor, Hooghly, the writ petitioners carry on the business of bleaching/dyeing and processing of cloth materials. The C.E.S.C. (a licensee, licensed under Part II of the Indian Electricity Act, 1910 to supply energy) supplies electrical energy to this factory. On 20th February 1992 the C.E.S.C. cut off the supply of energy to it.
3. On 24th February 1992 the writ petition was moved. The sum and substance of the case made out in it was that a vigilance officer of the C.E.S.C. had cut off the supply without giving any prior noticed and disclosing any reason, though no amount on any account was due and payable, and hence it was a disconnection effected without any authority of law. The prayer was commanding the C.E.S.C. by a writ of mandamus to reconnect the supply forthwith.
4. By an order dated 24th February 1992 the writ petition was admitted and an interim relief was granted to effect that upon payment of sum of Rs. 3,00,000/- the C.E.S.C. would reconnect the supply. Being aggrieved, the writ petitioner preferred an appeal, which was disposed of by a Division Bench of this Court by an order dated 12th March 1992. In terms of this order the C.E.S.C. was required to reconnect the supply on payment of a sum of Rs. 1,50,000/- in two equal instalments, and the reconnection was to be given on the writ petitioners' complying with the requirements as indicated by the CESC in its letter dated 20th February 1992. Being dissatisfied with this order, the writ petitioners moved the Supreme Court. By an order dated 3rd August 1992 the Supreme Court was pleased to dispose of their special leave petition. The Supreme Court modified the order of the Division Bench of this Court regarding deposit, and directed that ail other conditions stated in the Division Bench order would remain. It was also recorded in the order of the Supreme Court that the payments made by the writ-petitioners would be subject to the result of the writ petition. There is no dispute that in terms of this order the writ-petitioners paid Rs. 1,50,000/- to the C.E.S.C. and the supply was re-connected.
5. The C.E.S.C. contested the writ petition by filing an affidavit-in-opposition dated 28th May 1992 and a supplementary affidavit dated 25th June 1996. Its case was: (a) by a letter dated 31st January 1992 its Testing Department requested its Loss Control Cell to fix a date for a joint inspection of the factory premises of the writ-petitioner's since during site testing the Testing Department personnel had observed that the body and terminal covers seals of the meters were missing and pointers of all meters were out of position; (b) on 20th February 1992 a team of electrical engineers and inspectors of its Loss Control Cell, by inspecting the factory premises found that the seals on the service cut outs were missing, terminal plates of the meters were missing, the seals of the meter C.T, Terminal connection were broken, the terminals were kept loose, energy was being consumed direct from the service cut outs in order to by-pass the registration consumption of electrical units in the meters, the main switch was coming out of the wall, the wiring installations were hanging loose, the connected load was far in excess of the sanctioned one, there was no caution notice as required under the rules, and two separate distinct earth connections to meters were also not provided; (c) for consumption of energy in an unauthorized manner and also in breach of statutory provisions, the supply was cut off, and by a letter dated 20th February, 1992, sent through registered post, the writ-petitioner No. 1 was intimated all the reasons for cutting off the supply; (d) on 20th February 1992 a written complaint, regarding the offences committed by the writ-petitioners, was also submitted to the Officer-in-charge of Uttarpara Police Station in Hooghly District; (e) on the basis of the calculation made by it, besides fresh security deposit and re-connection charges, the writ-petitioners were liable to pay a sum of Rs. 7,45,246.20p towards charges for unmetered consumption of energy; (f) for theft of energy by the writ-petitioners it had the power and right, in terms of provisions of law and the contract between the parties, to rescind the contract and cut off the supply without serving any prior notice; and (g) the writ petition was liable to be dismissed, as the issue raised thereby involved seriously disputed questions of fact.
6. The writ-petitioners filed an affidavit-in-reply dated 20th July 1993. In this they stated the following facts: (a) the case made out by the C.E.S.C. in its opposition was based on false, fabricated, and concocted allegations and statements, (b) the letter dated 20th February 1992, received by them on 28th February 1992, was issued by the C.E.S.C. to them after filing of the writ petition and this was done to justify its illegal demand; and (c) there was no contract between the parties. By a supplementary affidavit dated 20th June 1996 they produced the bills raised by the C.E.S.C. after the supply was re-connected in terms of the Court's order.
7. On the basis of the aforesaid materials the writ petition was heard, and allowed by the learned single Judge by the impugned judgment and order dated 31st July 1996. On the question of cutting off supply without notice the learned Judge held that the allegation, commission of the offences by the writ-petitioners was based on circumstantial evidence, because they had not been caught flagrante delicto, the C.E.S.C. had no power to cut off the supply of energy without giving a prior notice therefore. However, the learned Judge was pleased to allow the writ petition on two grounds, viz. (1) even after expiry of more than four years no proceeding was initiated on the basis of the first information report dated 20th February 1992, and for the alleged offences there was no scope any more, to take cognizance, as the prescribed period of limitation had already expired; and (2) there was no significant disparity between the meter readings recorded in the bills raised by the C.E.S.C. before disconnection and after re-connection. The C.E.S.C. was accordingly directed to adjust, against future bills, the sum of Rs. 1,50,000/-, paid by the writ petitioners in terms of Court's order, it was also directed to pay costs assessed at Rs. 10,000/-.
8. Before us, the learned counsel for the appellants has raised the following contentions: (a) the finding of the learned Judge regarding requirement of service of prior notice for cutting off supply on an allegation of theft of energy by the consumer, is based on a misconstruction of the provisions of the Indian Electricity Act, 1910 (hereinafter referred to as "the Act") and Clause VI of the Schedule thereto: (b) the C.E.S.C. supplied energy to the writ petitioners in terms of a contract, and on breach of terms of such contract by them, by committing theft of energy, the C.E.S.C. was entitled and empowered to terminate the contract and cut off the supply without serving any prior notice; (c) for failure, if any, of the police authority to proceed with the complaint, the right and power of the C.E.S.C. to demand and recover the charges for unmetered consumption of energy from the consumer, do not and cannot stand extinguished; and (d) the learned Judge, in any case, was not right in allowing the writ petition overlooking the highly disputed questions of fact involved in it, and by making a summary comparison of the meter readings mentioned in the bills.
9. The learned counsel for the writ petitioners has supported the impugned judgment and order by contending that since the C.E.S.C. failed to establish the allegation of theft of energy by his clients, it was not entitled to demand any amount on account of alleged unmetered consumption of energy, and therefore his clients were entitled to refund and/or adjustment of the sum of Rs. 1,50,000/- deposited by them in terms of Court's order. His further contention is that there is no question of payment of any amount by the writ petitioners because there C.E.S.C. never demanded any amount by lawfully raising a bill.
10. After hearing the learned counsel for the parties and considering the materials on records, we find ourselves unable to agree with the learned single Judge. Our reasons are recorded hereinafter.
11. The issues raised in the writ petition was whether without giving any prior notice the C.E.S.C. could cut off the supply making an allegation of theft of energy by the writ petitioners. On joining the issue, the C.E.S.C. claimed that besides commission of the offence, the writ petitioners were liable to pay, inter alia, charges for un-metered consumption of energy; oh this account it claimed Rs. 7,45,246.20p. By way of interim relief re-connection of supply was given to the writ petitioners on payment of Rs. 1,50,000/- by them. This payment was made subject to the result of the writ petition. It is therefore clear that at the time of final disposal of the writ petition the learned Judge was required to decide two things, viz. (1) whether the disconnection was lawful; and (2) whether the C.E.S.C. could demand any charges and the writ petitioners were liable to pay the same.
12. The learned judge held that since the allegation of theft was based on circumstantial evidence, the disconnection of supply without giving prior notice was bad. He was of the view that supply could have been cut off without prior notice, had the writ petitioners been caught flagrante delicto.
13. In our opinion, the view of the learned judge cannot be sustained for the simple reason that such an interpretation of the power of the licensee to cut off supply to a consumer on allegation of theft of energy is bound to give rise to an absurd unworkable situation. A consumer intending to consume energy by indulging in theft is not expected to inform the licensee about the point of time when he will engage himself in the act. A licensee is also not supposed to keep a round the clock watch over the consumers, so that if any of them indulges in the act of theft of energy, it could catch such errant consumer flagrante delicto (that is, in the very act of committing the crime). The offence of theft does not diminish for failure to catch the thief red handed. If we are to accept the view of the learned Judge, then the very purpose of Section 39 of the Act will stand defeated. This section says:
"39. Theft of energy.--Whoever dishonestly abstracts, consumes or uses any energy shall be punishable with imprisonment for a term which may extend to three years, or with fine which shall not be less than one thousand rupees, or with both; and if it is proved that any artificial mean or means not authorized by the licensee exist for the abstraction, consumption or use of energy by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of energy has been dishonestly caused by such consumer".
It appears, provisions of this section were not properly brought to the notice of the learned judge. It provides that a rebuttable presumption of theft of energy by the consumer will arise once the licensee is successful in proving that any artificial mean or means not authorized by the licensee existed for the abstraction, consumption or use of energy the consumer. In the face of such provision of law there is no scope of inserting the doctrine of flagrante dlicto while examining the question regarding requirement of a prior notice before cutting off supply for theft of energy.
14. Power to cut off supply to a consumer has been given to a licensee by Section 24 of the Act. This power, however, can be exercised only when the consumer neglects to pay the charges for energy or any other sum due from him in respect of supply or energy to him. Nothing has been brought to our notice to show that at the relevant point of time there was any provision of law which would regulate the power of the C.E.S.C. to cut off supply of energy by alleging itself theft by the writ petitioners. This being the position, we have to see whether it was the conscious intention of the legislature not to confer such power, or such power was inherent in nature.
15. A licensee's obligation to supply energy to a consumer is a statutory obligation cast by Section 22 of the Act. If the consumer neglects to pay the charges for supply or energy, the licensee can cut off supply by exercising its power available under Section 24 of the Act. For theft of energy the licensee can prosecute the consumer in competent criminal Court. Theft of energy is dishonest consumption of energy through unauthorized mean or means. A proposition that the licensee has the power to disconnect supply to a consumer who neglects to pay, but not a consumer who commits theft of energy--in our opinion does not sound. Such a proposition is bound to defeat the very purpose of Section 9 of the Act. In our view, the licensee's power to cut off supply of energy to a consumer who is engaged in theft of energy's an inherent power; it is a concomitant of its statutory obligation to supply. The obligation of supply inheres the power to cut off the supply in cases like the theft of energy by consumer. Section 24 of the Act, in fact, puts a restriction on such inherent power. The purpose of giving a prior notice before cutting off the supply is to afford an opportunity to the consumer to remove the circumstances which warrant such an action, We do not find any reason to hold that the absence of express conferment of a power on the licensee, under the Act and rules framed thereunder, to cut off supply to a consumer found to be engaged in the act of theft of energy, must be translated into either non-existence of such a power, or existence of such a power that could be exercised only after giving prior notice to the consumer.
16. Hence we are of the view that, at the relevant point of time, without giving any prior notice, the C.E.S.C. was within its power to cut off the supply of energy to the writ petitioners who were allegedly found to be engaged in the act of theft of energy. If the statements made in the affidavit filed by the C.E.S.C in opposition to the writ petition are accepted at their face value, then it must be held that the allegation of theft was not based on circumstantial evidence, the writ petitioners were rather caught flagrante delicto. We therefore hold that no illegality was committed by the C.E.S.C. by cutting off the supply of energy to the writ petitioners alleging theft of energy by them.
17. The learned Judge held that as no step was taken for establishing the offence of theft, the writ petitioners were entitled to get benefit of the deposit by way of adjustment against future bills. In other words, he held that the C.E.S.C. was not entitled to demand any charges. In our view, on this aspect also the learned Judge was not correct.
18. The allegation of theft of energy gives rise to two liabilities of a consumer, viz, (1) as criminal liability under Section 39 of the Act for commission of the offence of theft; and (2) a civil liability under Section 48 of the Act in respect of payment of compensation for dishonest consumption of energy through unauthorized mean or means. Neither of these liabilities is dependent on the other. The licensee has both the right to prosecute the consumer in criminal Court, and the right to recover the compensation from him for un-metered consumption of energy. For prosecution the licensee can set the State machinery into motion, or itself can file the complaint in competent Court. Once the licensee elects any one of the two modes, it will be deemed to have exercised its right to prosecute the consumer. Exercise of this right, however, is not a sine qua non for exercise of the other right. If the licensee chooses, it can waive any of its rights. Its right to recover charges for un-metered consumption of energy can be exercised by it before or after exercising the right to prosecute, or simultaneously with its. The licensee invokes the consumer's civil liability (by exercising its right to recover the charges for un-metered consumption) when the licensee serves the bill for the same upon the consumer. An acquittal in the criminal case or the inaction of the State machinery to take action on the first information report does not extinguish either the licensee's this right, or the consumer's that civil liability. The fate of the criminal liability may at best weigh in favour of the concerned party in case of a dispute between the parties regarding the civil liability.
19. The legal position, in our opinion, being as explained above, the learned Judge was not right in allowing the writ petition on the ground that the allegation regarding commission of the offence of theft of energy was virtually a still borne one. Admittedly, the C.E.S.C. had elected to utilise the State machinery for prosecuting the writ-petitioners. Nothing was there on record regarding the failure or progress of the criminal case. Nothing was there in the writ petition touching the validity, legality or any other aspect of the criminal case. The scope of the writ petition was confined to the only question regarding validity of the disconnection of supply without notice. The demand of the C.E.S.C. towards charges for un-metered consumption of energy was predicated by the allegation of such consumption. The questions of fact whether such consumption took place, and if so, to what extent, and whether the writ-petitioners were liable to pay any compensation or charges for such alleged consumption--all these could be adjudicated only by a competent forum on the basis of oral and documentary evidence adduced by the parties. The writ Court is not such a forum. So the civil liability of the writ-petitioners and the right of the C.E.S.C. to enforce such liability should not have been decided by the learned Judge by a mere comparison of the meter readings recorded in the bills preceding and following the disconnection. The learned Judge should have left the parties to pursue their respective remedies, in accordance with law, before the appropriate forum, including the Civil Court. We therefore hold that the C.E.S.C. had the right to demand charges for un-metered consumption of energy, and the writ-petitioners were liable to pay the same, if there was such consumption by them, and their liability was independent of their criminal liability.
20. In the writ petition the relief that could be given to the writ petitioners was: a direction upon the C.E.S.C. to re-connect supply. We have found that there was no illegality in the act of cutting off the supply by the C.E.S.C. But by way of interim relief the re-connectton was directed. The re-connection was opposed by the C.E.S.C. by claiming payment of charges for un-metered consumption. For such claim the direction was given for deposit of Rs. 1,50,000/- by the writ petitioners. The writ petitioners got the relief they sought, without their civil liability being adjudicated and decided. Such liability, however, could not be decided by the Writ Court. Therefore, we are of the view that on the facts of this case it will be just and fair not to disturb the relief of re-connection already given to the writ petitioners, and at the same time to allow the C.E.S.C. to keep the amount already deposited by the writ petitioners, till their civil liability, if any, is adjudicated and determined according to law.
21. For the foregoing reasons, we allow the appeal, set aside the impugned judgment and order, and dispose of the writ petition with the following order:
The C.E.S.C. will be at liberty to take steps for recovery of the charges for un-metered consumption of energy, if any, by the writ petitioners. If the C.E.S.C does not raise the bill for such charges within three weeks, then the writ-petitioners will be entitled to refund of Rs. 1,50,000/-, and such refund shall be made within a period of three weeks thereafter. If the C.E.S.C. raise the bill in terms of this order, then the sum of Rs. 1,50,000/- will remain with the C.E.S.C. till the civil liability of the writ petitioners is determined according to law, and this sum will be refunded or appropriated by the C.E.S.C., as the case may be, depending on the final outcome of such determination. This order will govern only that disputes between the parties which arose form the disconnection of supply of energy by the C.E.S.C. to the writ petitioners on 20th February 1992. In the facts and circumstances of the case, there will be no order as to costs.
A.K. Mathur, C.J.
22. I agree.