Delhi High Court
Kuldeep Singh Dhingra vs Municipal Corporation Of Delhi And ... on 25 February, 1992
Equivalent citations: AIR1992DELHI228, 47(1992)DLT375, 1992(22)DRJ528, 1992RLR208, AIR 1992 DELHI 228, (1992) 1 CURCC 681, (1992) 22 DRJ 528, (1992) 47 DLT 375
JUDGMENT
1. I do not propose to take long. I should not, for the situation is still in a state of flux and it would be too hazardous to venture into the specifics. What is required at present is to take a prima facie view and this is precisely what I propose to do. However, first a brief resume of the facts.
2. The plaintiff has been granted an Industrial Power (LT) connection for small power consumers which is being used for the purpose of manufacturing of paints being carried on by the company M / s. U. K. Paints (I) India. Only on January 8, 1992 the plaintiff in a writ petition had obtained an order staying disconnection of supply of electricity due to non-payment of the bills treating the said connection as Large Industrial Power connection. On January 10, a. large contingent of the employees of Delhi Electric Supply Undertaking (hereinafter called the Undertaking) swooped on the premises and made certain inspections. Alarmed by the action, the plaintiff addressed a letter dated January 11, 1992 to the Undertaking requesting a joint inspection. There was no response. However, on or about January 17, the plaintiff received what purported to be the record of inspection carried out on January 10 alleging, in short, theft of electricity and tampering of service line. On January 23, the plaintiff made a representation to the Undertaking refuting the allegations and alleging mala fides and praying again for a joint inspection. The Undertaking, however, lodged a First Information Report with the Police and served a 24 hours show-cause notice cum-disconnection notice. This was on February 1, 1992. On February 3 came this suit before the Court. The prayer of the plaintiff was for a decree of permanent injunction restraining the Undertaking from disconnecting the supply of electricity. It was' accompanied by an application under Order 39 for the grant of ad interim injunction order. Notices were issued for February 4, 1992 when I was informed that supply of electricity had been disconnected. This was followed by two applications, one for the amendment of the plaint and the other under Order 39, Rule I seeking restoration of the supply of electricity. It is the later application which is the bone of contention and which has led to this order.
3. Has the plaintiff made out a case for restoration of electric supply? It was contended by Mrs. Ahlawat appearing for the. defendants that it being a fool-proof case of theft of electricity, the relief sought by the plaintiff deserved outright rejection. Mr., V. P. Singh counsel for the plaintiff, however, took me through Section 39 of the India Electricity Act, 1910 and the documents on the record and contended that no case had been made out showing the commission of theft and in support sought to draw force from the judgment of the Supreme Court in Jaggannath Singh v. Ramaswamy, . However, on my part, I refuse to be drawn into the controversy, at least for the present. A First Information Report stands lodged. Investigation is to take its own course. Criminal trial, may or may not commence. As for me I am ill-equipped, at least at present, to return" finding, of guilt or even to assume the accusation as correct. Would it not require a full-fledged trial? And, it is in this context that Jagannath Singh's case becomes clearly distinguishable, for, in that case the consumer had already been convicted under the Indian Penal Code. We, on the other hand, are still at a stage where allegations are being hurled by one side and denied by the other. This being the position, I do feel that the relief sought cannot be denied merely on the ground that the Undertaking is crying wolf, and, in support, I seek to draw force from the Judgment of the Supreme Court in Municipal Corporation of Delhi v. M / s. Ajanta Iron and Steel Company (Pvt.) Ltd., .
4. Coming to the show-cause notice, it was argued that since representations had been made to the Undertaking giving plaintiff's version and denying the correctness of the Inspection Report, the authorities concerned ought to have, before issuing the showcause notice, considered the same and as this was not done principles of natural justice stood violated. It was further contended that there was total lack of application of mind in the matter of issuance of the show-cause notice and an attempt to demonstrate the same was made by taking me through it.
5. There is nothing on the record to suggest, even obliquely, that before issuing the show-cause notice the representations made by the plaintiff were blessed with even a cursory look. I was told that the issuance of the show cause notice was preceded by the approval of the "competent authority" to disconnect supply "after giving 24 hours notice to the consumer". Was the "competent authority" apprised of the representations? The pleadings say nothing. The counsel for the defendants also preferred to parry the query. 1, therefore, assume that he too gave the green signal to go ahead without caring to look into the representations. As for the show-cause notice it is a cyclostyled demon. Even all the blanks are not filled in. Allegations 1 to 8 enumerated therein do not apply, and yet nobody took the trouble to score them -off. And as if this was not enough, it asks the consumer to show-cause why supply of electricity be not disconnected in terms of "clause 39/44 of Delhi Electricity Control Order". I could not locate any such "clause 39/44". The counsel for the plaintiff also could not. Even the counsel for the defendants failed to find it. Nobody can because it simply does not exist.
6. What does one get out of all this? It is, first, that before issuing the show-cause notice, the authorities concerned did not examine the representations made by the plaintiff and, secondly, there was some lack of application of mind at the time of the preparation of the show-cause notice. If that be so, the crucial question would be with regard to the effect of all this on the legality of the action taken.
7. Were the authorities bound to take the representations into consideration before the issuance of the show-cause notice? Since this question is concerned with the width and interpretation of Clause 36 of the Delhi Electric Supply Undertaking, Conditions of Supply, it may be usefully extracted:
"36. Discontinuance of supply.
(I) The Undertaking shall have the right to discontinue supply to a consumer on giving 24 hours notice in writing if there is reason to believe that the consumer is contravening any of the provisions of the Act or of the following conditions:
(i) If any consumer adopts any electrical appliance which is likely to affect injuriously the supply to other consumers or uses the energy supplied or deals with it in any manner so as unduly or improperly to interfere with the efficient supply, of energy to any other person by the Undertaking.
(ii) Fails to keep in proper order any meter belonging to him by which the supply is registered.
(iii) If the electric supply lines, fittings, works or any other apparatus within the premises of the consumer are not in good order and conditions are likely to affect injuriously the use of energy by the Undertaking or by any other person.
(iv) Commits a breach of his agreement with the Undertaking.
(v) If the consumer is a limited company, it is liquidated compulsorily or voluntarily.
(vi) If having been duly notified the consumer refuses to permit or, fails to give any authorised representative of the undertaking reasonable facilities to enter any premises to which energy is, or has been supplied for the purpose of testing or inspecting the installation of the consumer.
The Undertaking shall also have the right to discontinue the supply of energy to a consumer who fails to pay any amount due to the undertaking or who becomes bankrupt or executes any assignment for the benefit of his creditors after giving such consumer not less than seven clear days notice of intention so to do.
The Undertaking shall, however, on the cessation of the act on the part of the consumer which entitled it to disconnect the supply to the consumer and on payment by the consumer of the expenses incurred by the Undertaking in cutting off and reconnecting the supply, reconnect the supply with all reasonable speed.
8. Clause 36, we have seen, empowers the Undertaking to discontinue supply to a consumer "on giving 24 hours notice in writing" and "if there is reason to believe" that the consumer is contravening any of the provisions of the Act or the conditions as enumerated in Clause 36. Significantly, clause 36 prescribes no procedure to be followed before the issuance of the show-cause notice. Is the issuance of a show-cause notice to be preceded by the affording of a reasonable opportunity to the party concerned? The perusal of the Conditions of Supply or the Act would show that the Undertaking is not, bound to follow any such rigid, hide-bound, predetermined procedure. It may evolve its own procedure and such a procedure may vary in each case keeping in view the facts, circumstances and exigencies of each case. It was argued that since the representations were before the authorities they were bound, at least by principles of natural justice and fair play, to consider them before deciding to issue the show-cause notice and that since this was not done, the notice must be ignored. The argument, with all respect, has left me totally unconvinced. There is no rule of justice or fair play, at least not to my knowledge, which requires the authority, at least in a case like the present one, to seek the comments of the person concerned before even embarking upon to issue a show-cause notice or to necessarily concern itself with the comments offered suo motu. As already noticed, the statute too does not provide for such a course. Show cause notice is issued by the undertaking so that the aggrieved party is given an opportunity to make an appropriate representation. It would, in my opinion, be inconsistent with the scheme of Clause 36 to hold that before issuing a show-cause notice the Undertaking must hold a hearing, which may .include, as in the present case, the consideration of the representations made. If this were done, the issuance of a show-cause notice would be, an unnecessary repetition. Moreover, the main object of Clause 36 is not only to follow the rule, which is one of elementary justice, that a man shall not be subjected to final judgment or punishment without an opportunity of being heard, but also to take prompt action. This provides yet another ground to hold that the authorities concerned are not enjoined to consider the representations made by the person aggrieved before the issuance of the show-cause notice. Moreover, here is a case where pending the issuance, of the show-cause notice no order of any interim nature had been passed. Thus it was not a stage where plaintiff had been exposed to any risk or hazard. There was thus no requirement to observe any modicum of residual, core natural justice. This much for the first limb of the argument.
9. Undoubtedly, the show-cause notice does betray some lack of mind. But then, the defendants' case is that the portion written in hand succinctly brings to the notice of the plaintiff the allegations against him with regard to which he had been called upon to show-cause. I do tend to agree with the defendants on this aspect of the matter. Even Mr. V. P. Singh could not match the contention and since the hand written portion does contain all the necessary allegations in clear and unambiguous terms, it cannot be said that there was total lack of application of mind. It is because-of this that while dealing with the contention of Mr. Singh, I have preferred to use in this as well as in one of the preceding paragraphs the expression "some lack of mind" as opposed to "total" lack of mind and I do feel, that it would not be wise but otherwise to throw out the notice merely because some inaccuracies have crept in and some allegations foreign to the case have been introduced more so, when the allegations central to the case have been incorporated unmistakenly and unambiguously. This much for the remaining limb of the argument.
10. After the hearing I called for the departmental file which Mrs. Ahlawat so graciously allowed me to examine. It was revealing. Since what followed after the expiry of the show-cause notice period has provided me with the brick and mortar, let me mention that what the perusal of the file has shown me is that after the service of the showcause notice and before the disconnection of the supply of electricity no effort was made to go through the representations or to examine them and further that since approval for disconnection had already been obtained prior to the issuance of the show-cause notice, no fresh look was given. Order to disconnect was passed mechanically and without further application of mind.
11. Undoubtedly, the plaintiff did not respond to the show-cause notice. No reply was filed. No representation was made. No hearing was claimed. Was the Undertaking, under the circumstances, not justified in disconnecting the supply of electricity? More so, when Clause 36 emphasises the necessity of taking speedy action? My answer, to the expected disappointment of the Undertaking, must be in the negative. The simple reason is that although the authorities had the representations of the plaintiff, though made before the issuance of the show-cause notice, fully controverting the allegations and giving his side, of the story, no effort was made to look into them or to, examine them. The Undertaking ignored them before issuing the show-cause notice on the ground that there was no such requirement. It ignored them again after notice presumably on the ground that they had not been made in response to the notice thereby reducing fairness into something worst than a rigid, ritualistic abstraction where the victim has been lock-j awed. It must not be forgotten that fair hearing, however minimal, is the requirement of administrative gentlemanliness. What has happened here is that natural justice which V. R. Krishna Iyer, J. described as "a brooding omnipresence" See Mohinder Singh Bill's case has been carried fathoms deep. It was observed by Lord Parker that good administration and an honest or bona fide decision require not only impartiality or merely bringing one's mind to bear on the problem , but acting fairly In re. H. K. (An Infant) 1965 AC .201. Unfortunately, by ignoring the representations made by the plaintiff, the study of which could have helped the defendants in taking a fair and balanced view, they have acted unfairly or unjustly. What could have promoted was thus frozen.
What should then be done?
Byles J tells us in Cooper v. Wandeworth Board of Works: (1863) 14 CB (NS) 180:
"I remember to have heard it observed by a very learned man that even. God himself did not pass sentence upon Adam before he was called upon to make his defense. "Adam (say God) "where art thou? Hast thou not eaten of the tree whereof I commanded thee that thou shouldest not eat:" And the same question was put to Eve also."
Let the defendants follow the laws of God, for they are the laws of man also. Opportunity shall be given to the plaintiff to make his defense, if he has any, and in so making it, he shall also be, in view of the peculiar facts of the case, afforded one hearing. In the meanwhile the defendants may remove the metering equipment etc. which may be required for investigation but shall see to it that supply of electricity is restored to the plaintiff within two days from today. Of course, nothing stops the defendants, not this order at least, from taking appropriate action after hearing the plaintiff in his defense.
12. Order accordingly.