Allahabad High Court
Satya Narayan [In Chamber] vs U.P.Power Corporation Ltd.Thr.Its ... on 22 May, 2013
Author: Devi Prasad Singh
Bench: Devi Prasad Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH High Court of Judicature at Allahabad Lucknow Bench Lucknow *********** [RESERVED] Reserved On:- 02-05-2013 [ A.F.R. ] Circulated On:- 17.05.2013 Delivered On:- 22.05.2013 Court No. - 27 Case :- MISC. BENCH No. - 9090 of 2012 Petitioner :- Satya Narayan Respondent :- U.P.Power Corporation Ltd.Thr.Its Managing Director & Others Petitioner Counsel :- Kunwar R.P.Singh,P.K.Srivastava Respondent Counsel :- C.S.C.,Prashant Arora Hon'ble Devi Prasad Singh,J.
Hon'ble Dr. Satish Chandra,J.
[Delivered by Hon'ble Mr. Justice Devi Prasad Singh]
1. The petitioner, an electricity consumer, has preferred the instant writ petition under Article 226 of the Constitution of India against the recovery proceedings on account of default of payment of electricity charges, as arrears of land revenue under Rule 236 of the U.P. Zamindari Abolition and Land Reforms Rules, 1950.
2. From the hearing of the learned counsel for the parties and pleadings on record, it appears that the petitioner had applied for electricity connection for his shop in the year 1984-1985. In consequence thereof, the electricity connection was provided bearing No.1105/017460 in the year 1984-1985. In consequence thereof, the petitioner deposited required dues.
3. It is alleged that under the compelling circumstances and hardships, on account of closure and stoppage of business, the electricity connection of the petitioner's shop was disconnected in the year 1997-1998. It is stated by the petitioner's counsel that the petitioner's electricity connection was permanently disconnected in the year 1997-1998, though no specific date has been brought on record either by the petitioner or by the respondents. After lapse of almost 14 years, the Tehsildar, Tehsil Nanpara, District Bahraich served the impugned citation of recovery of an amount of Rs.86925/- on account of alleged outstanding dues of electricity charges from the year 1997-1998.
4. It is stated that in response to the impugned recovery citation, the petitioner submitted representation dated 1.8.2012, to the Executive Engineer, Electricity Distribution Division, Nanpara, Bahraich, a copy of which has been filed as Annexure No.2 to the writ petition. The petitioner has further fortified his case by bringing on record a letter of the Village Pradhan (Annexure No.3 to the writ petition) which reveals that the petitioner's shop no more exists and the house is also in dilapidated condition. The certificate of the Village Pradhan dated 25.7.2012, is addressed to the Executive Engineer, Electricity Distribution Division, Nanpara, Bahraich. It has been stated by the petitioner's counsel that under the fear of civil imprisonment in pursuance of the aforesaid citation of recovery, the petitioner deposited an amount of Rs.11,000/- on 30.7.2012. A copy of receipt is annexed as Annexure No.5 to the writ petition.
5. The petitioner has claimed the following relief, to reproduced from the memo of writ petition as under:-
"(i) Issue a writ, order or direction, in the nature of Certiorari thereby quashing the impugned recovery proceeding including citation to appear (Z.A. Form-69) issued on 20.07.2012 issued by the opposite party No.4 as contained in Annexure No.1 to the writ petition.
(ii) Issue any other Writ, Order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case.
(iii) Award the cost of the Petition in favour of the petitioner."
6. While preferring the writ petition in para 4, 5, 6 and 7, the petitioner has brought on record that shop has been closed and electricity connection was disconnected. For convenience, para 4, 5, 6 and 7 of the writ petition are reproduced as under:
4."That the brief facts of the case are that the petitioner had applied for electric connection for shop in the year 1984-85. The authority concern issued an electric connection No.1105/017460 in the year 1984-85. The petitioner had deposited all the dues for the uses of electricity over the said electric connection.
5.That due to unavoidable circumstances the shop of the petitioner in which electricity connection was applied and installed by authorities concerned has been disconnected in the year 1997-1998 and business of the petitioner was also stopped. On the report of the petitioner the electricity connected was installed in the shop of petitioner was permanently disconnected and there was no dues against the said electric connection.
6.That all of sudden in the month of July 2012 it has been brought in the notice of the petitioner that the Tehsildar Tehsil Nanpara, District Bahraich has issued a recovery notice for consumption of electricity for Rs.86925=00 shown in the Annexure No.1 which is without any basis.
7.That the petitioner has not consumed any electricity since permanent disconnection from the year 1997-98 and he has already stopped the business in which the connection was applied and installed by the petitioner and it is also important to mention here that Authority concerned has failed to issue any electricity bill since 1998-98 for electric connection."
7. While filing counter affidavit, U.P. Power Corporation has not categorically denied that the electricity connection was granted in the year 1984-85 but denied that the petitioner has moved any application and it was disconnected in the year 1997-98. Rather, it is stated that Sub-Divisional Magistrate, vide his report dated 6.8.2012 (Annexure No.CA-1) informed that no application has been moved by the petitioner with regard to disconnection of electricity so far. It is further stated that since the petitioner has not deposited the monthly electricity dues, the accumulated amount of Rs.86925/- was sought to be recovered by the impugned recovery citation. It is stated that various demand notices were issued to the petitioner for deposit of arrears of dues but he did not deposit. For convenience, para 6, 7, 8 and 9 of the counter affidavit filed by the Executive Engineer, Electricity Distribution Division, Bahraich, dated 3.12.2012, are reproduced as under:-
"6. That the contents of paragraph 4 of the writ petition do not call for any reply being matter of fact.
7. That the contents of para 5 of the writ petition are denied. It is stated that the petitioner has not moved any application for disconnection or any kind of dues has been deposited by the petitioner at any time from the date of connection of the electricity line. The deponent is filing a report dated 6.8.2012 as submitted by the Sub Divisional Officer of the concerned Division as Annexure No.CA-1 to this counter affidavit.
8. That the contents of para 6 of the writ petition are denied being incorrect. It is wrong to allege that the notice for recovery was issued suddenly. The fact remains that since the petitioner did not deposit the monthly electricity dues as and when it fell and prior to accumulation of the aforesaid amount of Rs.86925/-, various demand notices were issued to the petitioner for deposit of the arrears of dues but for the reasons best known to him, he did not pay any heed and now he has come up with a new case and no notice was issued prior to the notice under challenge in the writ petition.
9. That the contents of para 7 of the writ petition are denied. The petitioner till date has not deposited any amount of electricity dues and while the amount has been swallowed, he has come with a new case and no electricity has been consumed by him. Further, it is wrong to allege that his connection was ever disconnected. The petitioner has not made any application for disconnection of electricity line. A copy of the ledger current bill is being filed herewith as ANNEXURE NO.CA-2 to this counter affidavit."
8. In pursuance of the order passed by this Court, later on, a supplementary counter affidavit dated 8.1.2013 was filed on behalf of the respondents by Sri Shailendra Kumar Ojha, the Executive Engineer of the Circle bringing on record, the relevant provision of the Electricity Supply Code, 2005. In the supplementary counter affidavit, different provisions have been dealt with in para 4, 5 and 6, which are reproduced as under:-
"4. That section 6.15 of Electricity Supply Code, 2005 relates to recovery of arrears which reads as under:
"6.15:Recovery of arrears-- (1) The payments due to the Licensee shall be recovered as per provision of Section 56 of the Act and arrears of land revenue as per the provisions of the U.P. Electrical Undertaking (Dues Recovery) Act, 1958, as amended from time to time.
(b) Notwithstanding anything contained in any other law for the time being in force, no sum due from any consumer shall be recoverable after the period of two years from the date when such sum became first due unless such sum has been shown continuously as recoverable as arrears of charges of electricity supplied, and the supply of the electricity shall not be disconnected by licensee for this reason.
5. That procedure for disconnection of supply is provided in section 4.35, 4.36 and 4.38 of Code 2005 which are quoted below:
4.35 Procedure for Disconnection of Supply: The supply may be disconnected temporarily or on a permanent basis as per the procedure described below:
(i)The Licensee shall remove service line, meter etc after permanent disconnection.
(ii)However, the Licensee may not remove service line, meter etc in case of temporary disconnection.
(iii)The licensee may remove service line / cable if he has sufficient reason of unauthorized use of electricity in case of temporary disconnection. However meter shall not be removed in such cases.
4.36 Temporary Disconnection The supply shall be disconnected temporarily only after due diligence, and if the cause of the disconnection is not removed within the number of days indicated in notice served in the manner as described in Section 171 of the Act, in each of following cases, within:
(a) The disconnection date indicated in the notice served to the consumer, but not less than 15 days, if electricity bills on account of charges of electricity, or any sum other than a charge for electricity, are not paid, provided further that the amount of bill indicated in notice is not stayed by any court of law, else, the supply shall not be disconnected. Provided that the supply shall not be disconnected, if such person deposits under protest, an amount equal to the sum claimed by licensee, or the electricity charges for each month calculated on the basis of average charge for electricity paid by him during the preceding six months, whichever is less, pending disposal of any dispute between him and the licensee.
(b) After a minimum period of seven days, if of a particular business /industry, any activity being carried out becomes unlawful due to lack of necessary permission or withdrawal of permission from the authority competent in law.
(c) After a minimum period of seven days, if the power factor of consumer's installation other than the following categories of consumer is less than 0.75, unless otherwise specified in the tariff order, during any billing period
(i) Domestic having connected load up to 10 KW
(ii) Non-domestic having connected load up to 5 KW
(d) Within 48 hours,
- if the wiring, apparatus, equipment or installation at the premises of any consumer is found to be defective,
- if there is leakage of electricity,
- if the consumer is found to have altered the position of the meter and related apparatus,
- if the consumer uses any apparatus or appliance or uses the energy in such manner as to endanger the service lines, equipment, electric supply mains and other works of the Licensee,
- if the limits of Maximum current demand at the consumer installation is exceeded beyond the limits indicated in table under clause 4.24,
- if it is found that consumer is using electricity in any manner which unduly or improperly interferes with the efficient supply of energy to any other consumer.
(e) The disconnection date indicated in the notice served to the consumer, but not less than 15 days, if any time consumer is found indulging in the unauthorized use of electricity as per the procedure specified in clause 6.8(d).
(f) At least 30 days, if the consumer fails to deposit the additional security or the security has become insufficient.
(g) After a minimum period of 24 hours, if the consumer fails to give the Licensee or his authorized person reasonable facility for such entry or performance as specified in clause 4.30 to 4.34 of the Code.
(h) After a minimum period of seven days, in case of dishonouring of the cheque by the bank (non-encashment of cheque)] 4.38 Permanent Disconnection (i)The supply shall be disconnected permanently in following cases:
(a) With the termination of the agreement.
(b) If the cause for which the supply was temporarily disconnected is not removed within six months period.
(c) On request of consumer after submission of an affidavit and clearing of all electricity."
6. That Section 6.6 of the Code reads as under:
"6.6 Self Assessed Bill:
In case of non-receipt of bill the consumer may deposit self assessed bill in the format prescribed by the licensee for the period for which bill has not been received provided that it is not less than the average consumption of the last six months. The Licensee shall not levy any late payment surcharge in the next bill if consumer's claim of non-receipt of bill is correct. The payment so made by the consumer shall be adjusted in the next bill."
9. While filing counter affidavit, respondents have not explained as to whether between 1997-1998 and 2012 any demand notice was sent and in case it has been sent, then it has not been brought on record. An adverse inference may be drawn that no demand notice was sent for more than 12 years by the respondents to recover the alleged dues in question. During the pendency of writ petition, the parties entered into compromise which has been admitted by the petitioner through supplementary affidavit. On payment of an additional amount of Rs.2841/-, parties have settled the dispute. Hence to that extent so far as the recovery proceeding is concerned, the writ petition seems to have lost efficacy.
10. However, during the course of hearing, it came to the light that for 12 years, the department has not taken action to recover the dues and nothing has been brought on record in reply to the averments contained in the writ petition to the extent that the business and the shop has been closed hence the electricity in question was not utilised for the purpose of business and even the petitioner's house is in dilapidated condition. An inference may be drawn that electricity connection either was either disconnected or not utilised since 1997-1998. There appears to be serious negligence on the part of the U.P. Power Corporation.
11. Now it is well settled law that while deciding private dispute, public interest may be looked into, vide [2011 (7) ADJ 169 (DB) (LB)]: Dr. Devendra Pratap Singh and others. Vs. Union of India.
12. Learned counsel for the petitioner has invited attention to an order passed by the Division Bench of this Court on 3.1.2013 in Writ Petition No.4545 (M/B) of 2005 (Om Narain Sahu. Vs. U.P. Power Corporation and others), of which one of us (Hon'ble Mr. Justice Devi Prasad Singh) was a member. In the aforesaid writ petition (supra), certain directions were issued by this Court while deciding the writ petition. The relevant portion of the said judgment is reproduced as under:-
"Subject to aforesaid observations, writ petition is allowed.
1. A writ in the nature of mandamus is issued directing respondents to consider the petitioner's prayer for refund of dues deposited in the year, 1991 within one month alongwith simple interest @ 10%. The appropriate order shall be passed within one month from the date of receipt of a certified copy of this order.
2. Further, a writ in the nature of mandamus is issued directing U.P. Power Corporation to constitute a Committee to provide therein time frame essentially with regard to providing electricity connection. Time frame for electricity connection to the citizen after completion of necessary formalities should be reasonable subject to feasibility. In case, connection is not provided within time frame, the accountability may be fixed and for delay of every date, appropriate interest be provided to the citizen with regard to amount deposited by them. The decision should be taken by U.P. Power Corporation within three months and report with regard to the action taken by Corporation be sent to this Court within a period of three months.
3. Further a writ in the nature of mandamus is issued directing U.P. Power Corporation to hold enquiry and take disciplinary action against the officers who are responsible for present controversy and inaction in providing electricity connection.
Registry shall send copy of judgment to the Managing Director, U.P. Power Corporation. The compliance report by the U.P. Power Corporation be placed before Court immediately after three months. Writ petition is allowed accordingly with the cost of Rs.50,000/-(fifty thousand) which will be deposited with the Registrar of Court within one month failing which it shall be recovered as arrears of land revenue. Out of which, an amount of Rs. 25,000/-(twenty-five thousand) will be remitted to the present petitioner and rest will go to Oudh Bar Association Library.
Order Date :- 03.01.2013"
13. During the course of hearing, we have been informed by the learned counsel for the U.P. Power Corporation that appropriate action has been taken to implement the aforesaid directions of this Court and action-taken report shall be submitted within the time frame.
14. From the perusal of Section 6.15 of Electricity Supply Code, 2005 (supra), it is borne out that sum due from any consumer may be recoverable within the period of two years from the date when such sum became first due. Meaning thereby, ordinarily, the outstanding dues against the electricity charges shall not be recoverable after lapse of two years but the limitation of two years may be extended further in case it is established that the amount due, is continuously shown as recoverable in lieu of arrears of charges of electricity supply. Meaning thereby, in case notices are sent to the consumer before expiry of two years and the process continues on some reasonable, just and proper grounds, then the sum recoverable may be recovered as arrears of land revenue in terms of clause (1) (b) of Section 6.15 of the Electricity Supply Code, 2005 but in case the Power Corporation kept silent and failed to establish that it has made effort for recovery of dues, then after lapse of two years, electricity dues may not be recovered from the consumer. It is not disputed that the payment of electricity charge in pursuance of electricity connection, is based on contractual obligation and statutory mandate. Under the Limitation Act, 1963, the period of limitation provided to deal with such matters, is 3 years.
15. While proceeding with the recovery charge in the cases where defence set up by the consumer is that he is not consuming the electricity and applied for disconnection of electricity, then it is not open for the Power Corporation to bank upon Section 4.38 (c) of the Electricity Supply Code, 2005 (supra) which provides that a permanent disconnection may be made only in case an affidavit is filed clearing all electricity dues. In any case, the Power Corporation cannot oversight the mandate of Section 4.36. In case consumers fail to pay the electricity bills, then it shall be obligatory on the part of the Power Corporation to take appropriate action for recovery of electricity dues under Section 6.15 within a period of two years. In case after service of first notice, the consumer does not pay electricity charge, then it shall be obligatory on the port of U.P. Power Corporation and its employees to proceed under Section 4.36 for temporary disconnection of electricity.
16. A perusal of clause (a) of Section 4.36 reveals that in case within 15 days the consumer does not pay electricity charges after receipt of notice, then in the event of non-payment of electricity dues, the electricity may be disconnected temporarily. However, disconnection shall not be warranted in case the consumer deposits the amount demanded under protest. The provision contained in clause (1) of Section 4.36 is mandatory and is subject to Section 6.15 which provides limitation of two years.
17. The provision contained under Section 4.36 is mandatory and it shall be obligatory on the part of the Power Corporation to take steps for temporary disconnection in case the electricity dues are not paid within two years from the first bill of electricity charge or after expiry of period provided in notice as the case may be. In case defence is set up that the electricity connection has been disconnected or an application is moved for the purpose and from verification, it is borne out that electricity has not been utilised and is disconnected, then it shall not open for the Power Corporation to take a defence that consumer has utilised the electricity even after period of two years and liable to pay charges.
18. It is settled law that while interpreting the statutory provisions contained in an Act or statute, any one should not be read in isolation but it should be read in reference to context. According to Maxwell, a construction which would leave without effect any part of the language of a statute will normally be rejected. Hon'ble Supreme Court by catena of judgment held that while interpreting any section of a statute, every word and provision and the statutes as whole should be looked into, in context to which it is used and not in isolation vide 2002 (4) SCC 297 Grasim Industries Limited v. Collector of Customs; 2003 SCC (1) 410 Easland Combines v. CCE; 2006 (5) SCC 745 A. N. Roy v. Suresh Sham Singh and 2007 (10) SCC 528 Deewan Singh v. Rajendra Prasad Ardevi; 2009 (27) LCD 161,Lipton India Ltd. Gaziabad Vs. State of U.P. and others; 1972 (82) ITR 15 DB/All, Seth Shiva Prasad Vs. Commissioner of Income Tax U.P.; (2010) 5 SCC 246, Zameer Ahmed Latifur Rehman Sheikh Vs. State of Maharashtra.
19. Accordingly, the provision contained in Electricity Supply Code, 2005 should be read from beginning to end and not in piecemeal. The reliance placed by U.P. Corporation of clause (c) of Section 4.38 in isolation that electricity connection shall be deemed to be not disconnected unless affidavit is filed with proof of clearing of all electricity charges seems to be not sustainable. Clause (c) of Section 4.38 is subject to action taken by the U.P. Power Corporation under Section 4.36 with regard to temporary disconnection and mandate of Section 6.15 of the Code.
20. In the present case, there appears to be no notice sent by the respondent U.P. Power Corporation to the petitioner for about 12 years. Accordingly, respondents will have no right to recover dues in the name of electricity charges after lapse of two years from the year when the petitioner claims that electricity was disconnected and he has closed the shop.
21. During the course of argument, it has been informed that in rural area, the electricity is supplied without metre on fixed payment. In case it is so, then outstanding dues may be calculated keeping in view the monthly rent for the period of two years only. Looking into the clause (1) of Section 6.15 (supra) read with Section 4.36 against the consumer, it shall always be incumbent upon the U.P. Power Corporation to send notice and take action in terms of Section 4.36 in case electricity charges are not paid by the consumer within the period provided in notice and take appropriate action for temporary disconnection. Any action taken on the part of the U.P. Power Corporation under Section 4.36 shall attract the provisions contained under Section 6.15 of the Code.
22. The decision taken under the compelling circumstances in terms of agreement between the parties shall not deprive the petitioner to claim refund of dues keeping in view the observations made in the present judgment.
23. In view of the above, we mould the relief and permit the petitioner to approach the respondent authority concerned for refund of dues keeping in view the observations made in the present judgment in case the amount paid by him, is higher than what he may be liable to pay in a period of two years. It shall be appropriate for the U.P. Power Corporation to issue appropriate order or direction keeping in view the observation made in the body of the present judgment to make employees aware with regard to their duties under the Electricity Supply Code, 2005 as well as public.
24. In view of the above, the writ petition is allowed and the relief is moulded. A writ in the nature of mandamus is issued directing the respondent Corporation to issue appropriate order or circular keeping in view the observation made in the present judgment expeditiously say, within two months and submit a compliance report to this Court in three months. The petitioner shall be entitled for refund of dues in case he has paid higher amount than what required to pay in the light of the observation made in the present judgment. Any representation moved by the petitioner, shall be decided expeditiously say within two months from the date of service of certified copy, keeping in view the observation in the present judgment.
Registrar shall communicate the judgment to Managing Director U.P. Power Corporation within two weeks. Registry to take follow up action.
The writ petition is decided accordingly. No orders as to costs.
[Justice Dr. Satish Chandra] [Justice Devi Prasad Singh]
Order Date :- 22.5.2013
Rajneesh Dy. R-PS)