Madhya Pradesh High Court
Manoj Rajani vs Superintending Engineer, M.P.E.B. And ... on 28 September, 2005
Equivalent citations: AIR2006MP100, AIR 2006 MADHYA PRADESH 100, 2006 (2) AJHAR (NOC) 694 (MP), 2006 (4) AKAR (NOC) 471 (MP), 2006 A I H C (NOC) 234 (MP)
ORDER S.L. Kochar, J.
1. Petitioner Manoj Rajani has filed this petition under Article 226 of the Constitution of India whereby sought relief for quashing of supplementary bill of Rs. 68,740/- issued by respondents vide Annexure P. 12. For decision of this petition, necessary facts are as follows.
2. That the petitioner had electric connection in his name at a building situated at 569/1, M.G. Road, Rajani Bhawan, Indore. His consumer Number is 800506. On 28-9-1999, Inspector, Flying Squad No. 14, MPEB, City Indore came to the premises of the petitioner and in his presence inspected the electric meter No. 350607 and found slow working of one phase. The inspector took away the said meter and thereafter new meter was installed. Annexure P. 1 is the Inspection report duly signed by the Inspector, Flying Squad as well as the petitioner. On 17-2-2000, petitioner received the supplementary bill of Rs. 68.740A, Annexure P.2 and P.2A is the copy of this bill. On 2-3-2000 employees of the respondents took away the cut out of the meter causing non-supply of electricity. The petitioner approached respondents whereupon they asked him to pay the part of the amount of supplementary bill i.e. Rs. 35.000/- which he deposited on 3-3-2000. It is further contended by the petitioner that respondents issued threat to disconnect the electric supply in the event of non-payment of balance amount of supplementary bill. Photostat copy of deposit receipt of Rs. 35.000/- is filed as Annexure P. 3 and reconnection was done. Ex. P.4 is the charges of reconnection. The petitioner issued notice (Annexure P. 5) dated 14-3-2000 to the respondents for referring the matter to Electric Inspector as per provision Under Section 26(6) of the Indian Electricity Act, 1910 (for brevity "the Old Act") because if there is any dispute regarding correctness of the meter between the consumer and the MPEB the same shall be decided by the electrical inspector. Copy of this notice (Annexure P. 5) was also served upon the Electrical Inspector, Indore. But the respondents have not taken any heed of the request made by the petitioner by sending the notice Annexure P. 5 and issued demand letter Annexure P. 12 dated 12-6-2000 and the same was received by the petitioner on I 6-7-2000. In this demand letter, the threat for disconnecting the electric supply was given to the petitioner if within three days from the date of receipt of letter/notice (Annexure P. 12), remaining amount was not deposited. Upon receiving this demand letter {Annexure P. 12), the petitioner filed the instant writ petition and this High Court by order dated 7-8-2000 issued direction as an interim measure that electric connection of the petitioner shall not be discontinued.
3. The respondents have appeared through their Advocate and filed the reply wherein it is submitted that the petitioner was involved with malpractice and dishonestly as well as fraudulently, committed theft of electricity by stopping the one "R" Phase. Therefore, the question of referring the matter to electric inspector as per provision Under Section 26(6) of the Old Act would not arise. In the return, respondents have given the reference of number of decisions by Apex Court and this High Court as well as other High Courts of this country to strengthen their submission that if the consumer has committed theft of electricity by stopping the meter/any phase or by illegal interference in the meter and electric connection, the matter would not be referred to electric inspector for deciding the dispute between the consumer and the MPEB.
4. The petitioner has filed the rejoinder dated 12-11-2000 contending that at the time of inspection of the meter and preparation of panchnama as well as in demand notice and other documents it was no where alleged by the respondents against the petitioner for commission of theft of electricity by illegal, fraudulent and dishonest interference contrary to the provisions, rules and regulations of the MPEB with the electric connection and meter and for the first time in return they have alleged this wild and serious allegations.
5. The learned Counsel for respondents Shri Prakash Jain has submitted that the Indian Electricity Act, 1910 has been repealed by Electricity Act, 2003 (for short "the New Act") (36 of 2003) came into force from 2-6-2003 by virtue of Section 185 of the New Act and therefore, the provisions of the Old Act i.e. Section 26(ibid) would not apply. According to him, the matter should be referred to the Forum for Redressal of Grievance of the Consumers as per provision Under Section 42(5) of the New Act. On the other hand, the learned Counsel for petitioner Shri Saraf has submitted that Under Section 185 of Repeal and Saving Provision of New Act, there is absolutely no provision regarding application in pending cases before the Court of law whether the disputes/cases/civil suits writ petitions shall be decided on the basis of the provision of the New Act or Old Act and under Sub-section (5) of Section 185 the application of Section 6 of the General Clauses Act, 1897 (10 of 1897) has been saved, therefore, in view of the provision of Section 6(c) and (e) of the General Clauses Act, for deciding this writ petition, provisions of Old Act will apply.
6. Having heard the learned Counsel for parties and after perusing the petition and documents filed by the petitioner, return along with the documents submitted by the respondents and rejoinder, this Court is of the view that at the time of inspection of electric connection and meter by Inspector Of Flying Squad on 28-9-1999 at 6.00 p.m. the petitioner was present and inspection report/panchnama (Annexure P. 1) was prepared. This panchnama is nowhere disclosing the allegation of tampering with the meter by any human agency as well as commission of theft of electricity by the consumer with dishonest and fraudulent intention. The petitioner was having three phase connection out of which the meter of two phase were running fast and meter of third phase was running slow. It is also mentioned, in column No. 15 regarding details of irregularities found in the premises of consumer that at first phase meter was stopped and on all the phases load found were 2.0, 0.5, 0.5 and meter of phase of 20 ampere load was stopped and the same should be changed. In the whole body of the inspection memorandum, nowhere it is mentioned that any kind of direct or indirect interference was done with the electric meter by any human agency. In demand notice (Annexure P. 2) also respondents have nowhere mentioned that the petitioner committed theft of electricity and caused loss to the MPEB. In demand notice Rs. 68,740/- were demanded only on the basis of non-working of meter of "R" phase. This demand notice is in a printed form and the amount of money as well as reason for demand were filled up in the blank column. As Serial No. 2 it is; printed that whether connection was domes-tic or commercial/power used and whether meter body/terminal seal were found broken/found tampered. None of these allegations have been pointed out and mentioned in demand notice (Annexure P.2). The demand of the amount as mentioned herein above was made only on the ground that meter of "R" phase was stopped and this calculation was arrived at on the basis of the meter reading of other two phases. The petitioner served notice (Annexure P. 5) about referring the matter to the electrical inspector as per provision Under Section 26(6) of the Old Act and the same was replied by the respondents by letter/demand notice (Annexure P. 12). In this document also nowhere they have alleged against the petitioner for commission of theft of electricity and also not levelled any kind of allegation against him about causing stoppage of the meter, tampering with the meter or any instrument which may result into less recording of con-sumption of electricity. In this document, again respondents have mentioned that at the time of checking of meter it was found that out of three phases, one phase was stopped and other two phases were running because of which the consumption through one phase could not be recorded in the meter. Therefore, the demand was made for this phase on the basis of consumption by other two phases. The respondents have also demanded balance amount of the first demand notice. The respondents have for the first time levelled allegation of malpractice by human agency and dishonesty, fraud played by the petitioner by stopping the one "R" phase for committing theft of electricity. Reply to rejoinder is also disclosing the same allegation. In the return as well as reply of rejoinder, it has been contended by the respondents that if one phase was running slow the same has been construed by the Supreme Court as interference by human agency for dishonestly commission of theft of electricity. The respondents have placed reliance on Supreme Court judgment rendered in case of MPEB, Jabalpur v. Harsh Wood Products . In this judgment, there was specific allegation against the consumer for commission of theft of electricity. The grievance of the consumer was that before disconnection of electricity he should have been afforded opportunity Of hearing whereupon the Supreme Court has held that when the consumer found prima facie to have committed theft electricity it is not necessary in view of the agreed conditions of supply and prima facie conclusion of theft, to hear the consumer before disconnection of electricity connection. Supreme Court has held that under this circumstances provisions of Section 20 of the Electricity Act 1910 stipulating notice not applicable to case of pilferage of electricity. Supreme Court has also held that order of disconnection is not violative of Articles 20 and 14 of the Constitution. The ratio of this case is not at all applicable in the fact and circumstances of the present case.
7. The inspection report (Annexure P.1) as well as demand notice (Annexure P.2) are not making any allegation against the petitioner for commission of theft of electricity directly or indirectly. For the first time this allegation has been levelled in the return filed by the respondents. Even after serving of notice (Annexure P. 5) by the petitioner to refer the matter to Electrical Inspector as per provision Under Section 26(6) of the Old Act, the respondents while sending reply, and demanding the balance amount by letter Annexure P. 12, nowhere alleged in this letter also about commission of theft of electricity against the petitioner. Therefore, the contentions of the respondents in their return as well as reply to rejoinder are not tenable and authority mentioned therein are also not at all helpful to the respondents.
8. For deciding the controversy involved in this writ petition, it would be convenient to reproduce Section 185 of the new Act. Thus, the same is reproduced as under :
185. Repeal and saving.- (1) Save as otherwise provided in this Act, the Indian Electricity Act, 1910 (9 of 1910), the Electricity (Supply) Act, 1948 (54 of 1948) and the Electricity Regulatory Commissions Act, 1998 (14 of 1998) are hereby repealed.
(2) Notwithstanding such repeal.-
(a) anything done or any action taken or purported to have been done or taken including any rule, notification, inspection, order or notice made or issued or any appointment, confirmation or declaration made of any license, permission, authorization or exemption granted or any document or instrument executed or any direction given under the repealed laws shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this Act;
(b) the provisions contained in Sections 12 to 18 of the Indian Electricity Act, 1910 (9 of 1910) and rules made thereunder shall have effect until the rules under Sections 67 to 69 of this Act are made;
(c) the Indian Electricity Rules, 1956 made under Section 17 of the Indian Electricity Act, 1910 (9 of 1910) as it stood before such repeal shall continue to be in force till the regulations under Section 53 of this Act are made.
(d) all rules made under Sub-section (1) of Section 69 of the Electricity (Supply) Act, 1948 (54 of 1948) shall continue to have effect until such rules are rescinded or modified, as the case may be;
(e) all directives issued, before the commencement of this Act, by a State Government under the enactments specified in the Schedule shall continue to apply for the period for which such directions were issued by the State Government.
(3) The provisions of the enactments specified in the Schedule, not inconsistent with the provisions of this Act, shall apply to the states in which such enactments are applicable.
(4) The Central Government may, as and when considered necessary, by notification, amend Schedule.
(5) Save as otherwise provided in Sub-section (2), the mention of particular matters in that Section, shall not be held to prejudice or affect the general application of Section 6 of the General Clauses Act, 1897 (10 of 1897), with regard to the effect of repeals.
9. So far as the question of application of Section 26 Sub-section (6) of the Old Act read with Section 185 Repeal and Saving of the New Act and Section 6 of the General Clauses Act, this Court is of the considered view that in the New Act, as per provision Under Section 185 Sub-section (2)(a) in provision of Repeal and Saving, corresponding provisions of Section 26 Sub-section (6) of the Old Act is not available but Under Section 42 Sub-section (5) of the New Act every Distribution Licensee is required to establish a Forum for Redressal of Grievance of the Consumers in accordance with the guidelines as may be specified by the State Commission. The New Act is silent about retrospective effect of provision Under Section 42 Sub-sections 5, 6, 7 and 8. In this provision, the Forum and procedure is prescribed for deciding the grievances and dispute raised by the consumer whereas in the old Act Under Section 26 dispute regarding correctness of the meter could be referred to the Electrical Inspector and decision of such Inspector shall be final. This is a question of providing Forum and procedure in the Statute for deciding the dispute between the supplier and the consumer even in the New Act, there is no specific mention whether the provisions of Forum and Procedure would have prospective application or retrospective application. The provisions of New Act in this regard shall have the retrospective effect. In Fifth Edition of the year 1992 of the Principles of Statutory Interpretation by Hon'ble Justice G.P. Singh, Former Chief Justice of this High Court at page 296, has considered about operation of statutes dealing with procedure and on the basis of number of pronouncements of the Supreme Court and Interpretation of Statute of MAXWELL, has observed as under :
(ii) "Statutes dealing with procedure.- In contract to statutes dealing with substantive rights, statutes dealing with merely matters of procedure are presumed to be retrospective unless such a construction is textually inadmissible. (26) As stated by LORD DENNING : "The rule that an Act of Parliament is not to be given retrospective effect applies only to statutes which affect vested rights. It does not apply to statutes which only alter the form of procedure or the admissibility of evidence, or the effect which the Courts give to evidence". (27) If the New Act affects matters of procedure only, then, prima facie, "it applies to all actions pending as well as future". (28) In stating the principle that "a change in the law of procedure operates retrospectively and unlike the law relating to vested right is not only prospective". (29) The Supreme Court has quoted with approval the reason of the rule as expressed in MAXWELL (30) "No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner prescribed for the time being by or for the Court in which the case is pending, and if, by an Act of Parliament the mode of procedure is altered, he has no other right than to proceed according to the altered mode".
(26) Gardner v. Lucas (1878) 3 AC 582 (HL), p. 603; Delhi Cloth & General Mills Co. Ltd. v. CIT, Delhi AIR 1927 PC 242, P. 244; Jose De Costa v. Bascora Sadashiva Sinai Narcornim ; Gurbachan Singh v. Satpal Singh .
(27) Blyth v. Blyth (1966) 1 All ER 524 (HL), p. 535.
(28) A.G. v. Vernazza (1960) 3 All ER 97 (HL), p. 100; K. Eapin Chako v. Provident Fund Investment Company (P) Ltd. .
(29) Anant Gopal Sheorey v. State of Bombay ; See further, Union of India v. Sukumar Pyne ; Tikaram & Sons v. Commr. of Sales Tax, U.P. ; State of Madras v. Lateef Hamid & Co. ; Balumal Jamnadas Batra v. State of Maharashtra . (An enactment relating to burden of proof like Section 123, Customs Act, 1962, would be a. matter of procedure); Rai Bahadur Seth Sriram Durgaprasad v. Director of Enforcement . (Section 113A, Evidence Act, 1872 inserted in the Act by Act 46 of 1983 providing for presumption as to abetment of suicide by a married woman is a procedural provision and applies to trial of offences committed earlier to the insertion of the Section); Gurbachan Singh v. Satpal Singh AIR 1990 SC 209, p. 219.
(30) MAXWELL : Interpretation of Statutes, 11th Edition, P. 216.
10. Since the petitioner has no vested right in the course of procedure and he has only right of prosecution or defence in the manner prescribed in the statute, his this right has already been saved and prescribed in the New Act Under Section 42(6) and the same will apply with retrospective effect in pending disputes/cases. Therefore, the petitioner and respondents are free to lodge their grievance before the Forum for Redressal as prescribed Under Section 42 Sub-section (5) of the New Act.
11. In the light of aforesaid factual and I legal analysis involved in the present case, the Demand Notice (Annexure P. 12} issued by respondents dated 12-6-2000 demanding the balance amount of Rs. 33.740/- is hereby quashed and parties are free to take appropriate steps for resolving the dispute before the Forum for Redressal of the Consumers and on lodging of such grievance, the Forum is directed to decide the same in accordance with the law.
12. The petition is allowed in the terms as indicated herein above.