Patna High Court
Bihar State Electricity Board vs Kishori Devi And Etc. on 9 May, 2002
Equivalent citations: AIR2003PAT38, AIR 2003 PATNA 38, (2002) 2 PAT LJR 773
Author: R.S. Garg
Bench: R.S. Garg
JUDGMENT Nagendra Rai, J.
1. Both the appeals arise out of a common order dated 28-11-2000 passed by a learned single Judge of this Court and the points involved in both the appeals being one and the same, they have been heard together and are being disposed by this common order.
2. LPA No. 20 of 2001 arises out of CWJC No. 5353 of 2000 which was filed by re-spondent-Smt. Kishori Devi for a direction to the appellant-Bihar State Electricity Board (hereinafter referred to as the Board) to restore electric connection which was disconnected without notice to her by the Assistant Electrical Engineer (Revenue), Bankpur Supply Division, Patna University, Patna on the ground that on surprise checking it was found that electrical energy was being used beyond the sanctioned load given to her.
3. LPA No. 25 of 2001 arises out of CWJC No. 8831 of 2000 which was filed by the four shopkeepers who are tenants of the aforesaid Smt. Kishori Devi (hereinafter referred to as the landlady).
4. The learned single Judge after hearing both the parties allowed both the writ applications on the ground that disconnection of supply of electricity of the writ petitioners of both the writ applications with regard to which criminal case is still pending was not justified without notices to them and without recording a definite finding about the malpractices and theft.
5. The facts which are not in dispute are that in the year 1991 respondent-Smt. Kishori Devi along with her Gotani purchased 1500 sq. ft of land from one Ram Kumar Das situate at mohalla Mahendru, P.S. Sultanganj, District Patna and constructed a market complex consisting of several rooms and shops. She is running a Coaching Institute on the first floor in three small rooms and out of 10 shops, four shops have been given to the tenants who are petitioners in other writ petition being CWJC No. 8831 of 2000 (respondents in LPA No. 25 of 2001). She has taken electric connection of one K.W. load for commercial purposes (non-domestic category consumer) with regard to one shop.
6. On 25-11-1999, Shri Ashok Kumar, the Assistant Electrical Engineer, respondent No. 4, along with a Magistrate and other persons inspected the premises of the landlady about 2.30 p.m. to 3.00 p.m. and during inspection found that the shopkeepers who are petitioners in C.W.J.C.No. 8831 of 2000 were illegally getting electricity through the line of the landlady. It was also found that the Coaching Institute run by the landlady was also connected with the connection given to her. In other words, it was found that the landlady and others were indulged in pilferage of energy and though the electric connection was given to the landlady for one shop, the electricity was being stolen beyond the sanctioned load. Thereafter the line was disconnected. Due to unauthorised connection of the landlady and her tenants, the Board suffered a loss of about Rs. 8000/- per year. Thereafter the Assistant Electrical Engineer lodged a First Information Report before the Sultanganj Police Station being Sultanganj P.S. Case No. 300 of 1999 under the provisions of the Indian Electricity Act for theft of electricity and that case is still pending.
7. The landlady on 12-4-2000 filed an application before the Assistant Electrical Engineer, respondent No. 4, stating that she is regularly paying electric bill and her electrical connection be restored and when ho action was taken by the authority of the Board, the aforesaid writ applications were filed for a direction to restore the electric connection.
8. Four tenants in the four shops of the landlady filed the aforesaid writ application for a direction to the Board to connect electric line to the meter of the landlady or in the alternative to direct the respondent-Board to accept the forms and its requisites for fresh connection separately in their shops.
9. It appears that one Ram Chandra Das was the tenant of the vendor of the landlady and the meter was running in his name and he defaulted in payment of electrical charges and Rs. 59277/- was due against him. The said fact was concealed by the landlady while applying for electric connection.
10. The stand of the land lady and tenants are that the Board has no power to disconnect the electricity without giving notice to them. The further stand of the tenants are that so far they are concerned they were taking electricity from the line of the landlady and for her malpractices they should not suffer and they should be given separate electric connection for their shops for which they have already applied separately.
11. The stand of the appellant-Board on the other hand is that the Board has framed a tariff in exercise of power under Section 49 of the Indian Electricity (Supply) Act, 1948 (hereinafter referred to as the Supply Act) read with Section 79 of the said Act with regard to different categories of consumers. The landlady falls under non-domestic category consumer and fixed charges and minimum guarantee charges in respect of non-domestic consumers are based on the contracted load and they increase with the increased connected load. In a case of non-domestic consumer if he unauthorisedly extends his load without getting permission from the competent authority, the same amounts to malpractices or a theft of electrical energy and it causes financial prejudice and revenue loss to the Board as to the Board will go on charging the consumer on the basis of his contracted load whereas he uses more energy in unauthorised manner. The landlady was given one K.W. load for her one shop and during inspection she was found to have been unauthorisedly extending her electric connection to the tenants and also to the coaching Institute run by her on the first floor. The consumption of the electricity was beyond the level of the contracted load. On account of unauthorised extension beyond the capacity of the load, the meter got burnt and that also shows that the land lady was using electricity beyond the sanctioned load in unauthorised manner. When the Assistant Electrical Engineer found unauthorised load disconnected the line in terms of the provisions under Clause 16.9 of the appellant-Board tariff notification dated 23-6-1993 and lodged the police case for theft of the electricity which is still pending. 12. The further stand of the Board is that Clause 16.9 of the tariff provides that in case of detection of unauthorised load, the Board or its concerned officers without prejudice to its other rights under the agreement or under the provisions of the Indian Electricity Act is empowered to estimate the value of the electrical energy so extracted or consumed beyond the sanctioned load; to calculate and recover in the manner provided therein and also to disconnect the electric supply without notice. The Board in exercise of the said power has disconnected the line as it found that the landlady was using the electricity much beyond the contracted load and engaged in malpractices and theft of the electricity. Thus, there is no requirement of notice so far disconnection is concerned. The steps for assessment for compensation for the malpractices and theft are taken in accordance with the aforesaid clause of the tariff.
13. The learned single Judge as stated above allowed the writ applications.
14. The only question for consideration is as to whether the Board or its officers are required to give notice to the consumer before disconnecting electric line if they detect use of electricity in unauthorised mariner in the sense of consuming electricity beyond the sanctioned load which amounts to malpractice or theft,
15. The learned counsel appearing for appellant-Board submitted that Clause 16.9 of the tariff regulation itself provides for disconnection in such a situation without notice and the learned single Judge ignored the aforesaid provision and wrongly held that the notice is required before disconnection in a case where the consumer is found to have consumed electricity in unauthorised manner. He also submitted that the learned single Judge also wrongly held that the use of electricity beyond the sanctioned load in unauthorised manner does not amount to theft in the eye of law. He further submitted that the learned single Judge wrongly relied upon the judgment of the Apex Court in the case of Municipal Corporation of Delhi v. Ajanta Iron and Steel Company Pvt. Ltd. reported in AIR 1990 SC 882, as the facts of the case are different and in that case under the agreement between the Delhi Electricity Supply Undertaking and the consumer there was a condition regarding service of notice before disconnection.
16. Learned counsel appearing for the respondents supported the order passed by the learned single Judge and submitted that unless a determination is made in the criminal case about the theft of the electricity and it is held that the land lady and the tenants have committed a theft of electricity, the authority has no power to disconnect the electric line without notice to them.
17. Section 49 of the Supply Act contains a provision with regard to supply of electricity by the Board to the consumers other than licensees. Section 79 of the Supply Act empowers the Board to make regulation. Clause (j) of the aforesaid section empowers the Board to lay down the principles governing the supply of electricity by the Board to the consumers other than licensees as mentioned in Section 49 of the Supply Act. In exercise of the aforesaid power it is admitted position that the Board has issued tariff notification from time to time. In the present case, the relevant tariff notification is dated 23-6-1993, Under the said notification different rates for different types of consumers have been prescribed. The mode for determining the rates has also been mentioned therein. Clause 16.9, deals with detection of unauthorised load and the relevant portion of the said clause is as follows.
" 16.9(A) Detection of unauthorised load :--If at any time the consumer is found exceeding the contracted load without specific permission of the Board, the Board may, without prejudice to its other rights under the agreement or under the provisions of Electricity Act, estimate the value of the electrical energy, so extracted, consumed or used shall be calculated as below and may also disconnect the supply without notice:--
I. Necessary assessment for compensation in the following malpractice and theft of energy cases shall be made as below :--
(a) In cases of use of energy through artificial means or by adopting any appliance.
(b) In case of using energy by creating obstruction in running of meter or interfering with the system of supply or wires etc.
(c) In case of dishonest abstraction of electrical energy or running of energy when supply is disconnected."
18. The aforesaid tariff notification and the terms and conditions for supply of the electricity of the Board are statutory in nature. Under Section 49 of the Supply Act, there is no requirement of entering into a contract with the individual consumer but provision has been made to enter into agreement with the consumer containing terms and conditions contained in the tariff notification with a sole view to make the consumer aware of the terms and conditions of the supply.
19. Clause 16.9 of the Tariff Regulation clearly provides that if the consumer is found exceeding the contracted load without specific permission of the Board, then the Board apart from other action permissible in law will disconnect electric line and estimate the value of electrical energy, so extracted, consumed or used and recover the same from consumer. Thus according to the regulation in case electricity is used beyond the sanctioned load or is being used in unauthorised manner, the Board has power to disconnect the electric connection without notice, determine the amount of compensation apart from other action which includes lodging of a criminal case for theft of electricity.
20. The principle of audi alteram partem is the basic concept of natural justice. This principle has been applied in administrative action with a view to ensure justice and fair play. Its main object is to advance cause of justice and prevent miscarriage of justice. This principle can never be applied to do injustice or affect public interest. The settled law is that this principle cannot be kept in a straight jacket formula. Its applicability depends upon the facts and circumstances of the case and it can be broadened or tailored to advance cause of justice and public interest. Even if the provision is silent as to the requirement of the aforesaid principle, the same may be read in taking into consideration the nature or the effect of the order. The aforesaid principle can also be excluded expressly or impliedly.
21. Clause 16.9 of the tariff notification excludes the requirement of hearing before j disconnecting the electric connection. The object behind is very clear. The Board supplies the electricity to the consumers and charges tariff for the same. The Board has to safeguard its property including the electrical energy. If the consumer uses electricity beyond the sanctioned load then the consumption of electricity beyond the sanctioned load without the consent of the Board amounts to theft or malpractices adopted by the consumer. The use of electricity by the non-consumer in unauthorised manner is also a malpractice and theft. The Board with regard to safeguard its interest is required to take immediate steps. The Board cannot give prior notice that they are coming to detect theft and malpractice to the consumer and non-consumer as in such a case it will not be possible to detect the aforesaid act. The action which the Board has to take is urgent one to protect its property. The law is well settled that in a case where the urgent action is required, the principle of natural justice; of giving opportunity of hearing is dispensed with 011 the ground of public policy and safety. Thus the disconnection of electricity without notice to the consumer is perfectly valid and justified in law and is neither violative of principle of natural justice nor violative of Article 14 of the Constitution of India.
22. This question has been considered by the Apex Court in three cases, namely, Municipal Corporation of Delhi v. Ajanta Iron and Steel Company (Pvt.) Ltd., (AIR 1990 SC 882) (supra); M.P. Electricity Board, Jabalpur v. Harsh Wood Products, reported in (1996) 4 SCC 522 : (AIR 1996 SC 2258) and Hyderabad Vanaspathi Ltd. v. A. P. State Electricity Board, reported in (1998) 4 SCC 470 : (AIR 1998 SC 1715).
23. In the case of Municipal Corporation of Delhi (AIR 1990 SC 882) (supra), the Apex Court held that notice was necessary after taking into consideration the provisions contained in the agreement which specially provided for service of notice as a pre-requisite condition for disconnection of electric supply. The learned single Judge did not notice this difference between the agreement in that case and the provision of tariff notification in question which provides disconnection without notice.
24. In the case of M.P. Electricity Board, Jabalpur, (AIR 1996 SC 2258) (supra) the electrical installation of the respondents connected by the appellant Board was inspected and it was found that they have made alterations to installations and use of devices to commit theft of electrical energy and thereafter FIR was lodged against them. One of the conditions of the tariff was that in such a situation without prejudice to other rights, the Board could connect supply of electricity forthwith and may call upon the consumer to make payment for compensation for the unauthorised user. The said provisions are similar to the provision of the tariff in question. In paragraph 9 the Apex Court held that it was not necessary to give hearing at the time of disconnection. The action taken by the respondent-authority in disconnecting the electric line and in determining the compensation in terms of the tariff notification was not violative of Articles 20(1) and 14 of the Constitution of India and principle of natural justice. The relevant paragraph 9 of the judgment is as follows :
"The only question is : whether the consumer is entitled to hearing before disconnection ? In view of the conditions to which the respondents had agreed at the time of installation and also the prima facie conclusion reached by the authorities, it was not necessary to give further hearing to the respondents. The action taken by the appellant is not violative of Articles 20(1), 14 of the Constitution and principles of natural justice."
25. In the case of Hyderabad Vanaspathi Ltd., (AIR 1998 SC 1715) (supra), the Officers of the Board also found pilferage of energy and power supply was immediately disconnected and a provisional assessment of the loss was made in terms of the relevant clause of the tariff notification. In that case, Clause 39.5 of the conditions of supply stipulated that where the consumer is guilty of supply of electricity to any service, which is disconnected by the Board' or 'pilferage of energy', the officer authorised in this behalf by the Board may without prejudice to the board's other rights cause the supply of electricity to such consumer to be forthwith disconnected without any notice and report the matter to the final assessing authority. In the case of the malpractices other than the one mentioned above, supply shall be disconnected only in the event of failure on the part of the consumer to pay half of the estimated amount within the period stipulated in the provisional assessment notice. The Apex Court upheld the aforesaid provision and held that "it is the statutory duty of the Board to arrange for the supply of electricity throughout the State and for transmission and distribution of the same in the most efficient and economical manner. For that purpose it has necessarily got to prevent unauthorised user, pilferage or malpractices by the consumers. Hence the necessary safeguards have to be provided as part of the conditions of supply so that the consumers will be bound by them. While on the one hand, the Board has to recoup the loss suffered by such pilferage or other malpractices, it has also on the other got to stop immediately the continuation thereof. Hence the Terms and Conditions of Supply have to provide for compensation as well as immediate disconnection."
The Apex Court agreeing with its earlier Judgment rendered in M.P. Electricity Board, (AIR 1996 SC 2258) (Supra) held that the immediate disconnection in case of theft or malpractices or pilferage was not violative of principles of Article 14 of the Constitution of India. In paragraph 38 of the Judgment, the Apex Court referred the case of the Municipal Corporation of Delhi (AIR 1990 SC 882) (Supra) which has been relied upon by the learned single Judge and held that notice before disconnection of electricity was necessary on the ground that the agreement itself contained a provision for service of notice on consumer as a pre-requisite condition for disconnection.
26. Thus, the provision of Clause 16.9 of the tariff notification requiring disconnection without notice is a valid one and the same is required in public interest otherwise the Board may not be able to safeguard its interest by stopping pilferage or malpractices. Requiring a notice of hearing in such a situation will not serve the public purpose, on the other hand it will encourage dishonesty on the part of consumers and will run against the public policy. Thus, it is held that in a case of consumer covered by Clause 16.9 of the tariff notification, no notice is required prior to disconnection. Even if the non-consumers are indulged in pilferage and malpractices, the line can be disconnected and thereafter appropriate action can be taken against him according to law.
27. At this stage, it is clarified that the determination of value of electricity consumed and assessment of compensation in terms of the aforesaid clause has to be made after observing the principles of natural justice, i.e., after giving an opportunity to the affected person to present his/her version. There the principles of natural justice cannot be excluded for the reason that there is no urgency in the matter. Once the line is disconnected, the determination of the aforesaid matter has to be made in terms of the tariff notification and in case the provisional claim made by the Board is disputed by the consumer, an opportunity has to be given to him and thereafter the final decision has to be taken. Though the provision is silent regarding giving an opportunity of hearing but the same has to be read in the said provision.
28. This Court has been noticing filing of a large number of writ applications against the decisions taken by the Board in the matter of determination of the tariff and assessment of compensation for unauthorised use of electricity and like matters, the primal reason being non-availability of an alternative forum provided by the Board to the consumers to challenge the orders passed in such matters. This is the high time that the Board should take immediate steps to provide either an appellate forum or a revisional forum to challenge the aforesaid orders, which will not only minimise the litigation and harassment caused to the consumers but will also help the Board in settling the controversy in regard to its revenue at the earliest. The Board should consider this aspect of the matter immediately and take steps accordingly.
29. Accordingly, it is held that the disconnection of electric line of the landlady was fully justified and no direction can be given for re-connection of the line till the Board determines the compensation for unauthorised use. The Board should take steps for determination of the value of electricity consumed and the amount of compensation after giving an opportunity of hearing to her. After the amount to be recovered from her in terms of Clause 16.9 is determined and she pays the same, then her line should be connected. So far as the tenants are concerned, they have been found indulged in theft and pilferage of energy by taking electricity from the landlady to whom the electric line was given to run only one shop and the criminal case is pending against them. They have applied for electric connection. The Board is directed to consider the matter and take decision is accordance with law.
30. In the result, the order passed by the learned single Judge dated 28-11-2000 is set aside and both the appeals are allowed with the aforesaid observations/directions. In the facts and circumstances of the case, there shall be no order as to costs.
R.S. Garg, J.
31. I agree.