Calcutta
Electric Supply Corporation Vs. Shri
N.M. Banka & Anr [1996] INSC 1486 (21 November 1996)
B.P.
Jeevan Reddy, Suhas C. Sen
ACT:
HEAD NOTE:
O R D
E R
The
following order in this case was passed by us on 6th November, 1996 :
"While
we propose to give reasons for our Order later, the following s the operative
and final Order in the Special Leave Petition.
Leave
granted.
The
appeal is allowed with the following directions :
(1)
Within one month from today, Respondents No. 1 - consumer shall deposit a sum
of Rupees thirty lakhs towards the demand of arrears by the appellant-company
against him.
(2) On
such deposit being made, the dispute between the parties involved in the
Transferred case No. 42 of 1996 shall stand referred to the Chief Electrical
Inspector, Calcutta who shall decide the same within two months from the date
the dispute is referred to him.
(3) If
the amount specified in Direction No.1 is not deposited, it shall be open to
the appellant- company to recover the arrears due to it according to law.
(4)
Pending further orders in the matter, all the properties of the respondent are
attached herewith.
(5)
Respondent No.1 shall pay the costs of the appellant which are estimated at
Rupees fifty thousand only." The reasons for passing the aforesaid order
are as under :
This
is a case of gross abuse of process of court. One N.M. Banka had applied to
CESC Limited which carries on business of generation, supply and distribution
of electricity in Calcutta and its suburbs for a connection of
electricity to premises No.11, U.N. Mukherjee Road, Calcutta. After completion of inspection,
the CESC agreed to supply electricity to N.M. Banka by letter dated 5th February, 1988 subject to compliance of usual
conditions.
Some
time later, it came to the knowledge of CESC that N.M. Banka was a partner of
the firm M/s Rajkumar Dyeing & Printing Works which was carrying on
business at the same premises. The partnership firm was an existing registered
consumer from whom a very substantial sum of money was lying due. Moreover, the
partnership firm was found drawing electricity far in excess of the sanctioned
load of 50 H.P.
On
coming to know the that N.M. Banka was a partner of Rajkumar Dyeing &
Printing Works, which was a defaulter in payment of electricity charges, the
CESC Limited by letter dated 22 September, 1988 informed Banka that supply of
electricity to him has been kept in abeyance. Apart from the huge liability of Rajkumar
Dyeing & Printing Works, there was also a technical difficulty in giving a
separate electric connection to Banka because t was not possible to give two
separate electric connections to one particular premises. Existence of two
services in the same premises would be hazardous.
On
22nd July, 1988, writ petition was moved by Rajkumar Dyeing & Works, the
partnership firm and also Shri Banka, the partner for a direction n the nature
of mandamus commanding CESC and their officers from disconnecting the
electricity line of the factory situated at No.11, U.N. Mukherjee Road,
Calcutta. A prayer was also made to refer the disputed bills to the arbitrator
as provided in the Indian Electricity Act for adjudication. The allegation was
that CESC had issued an inflated bill for the month of June 1988 and were
appellants if they failed to pay the said bill bay 20th July, 1988. It was
further prayed that if the electricity line was disconnected, the factory will
have to be closed down and about 90 workers will have to be laid off without
any fault of the appellants. The writ petition was moved ex-parte and a
direction was given that the electricity supply will not be disconnected 'till
Wednesday next'. On 28th July, 1988, the matter was once again heard ex-parte
and the interim order not to disconnect the supply was further continued. The
matter, thereafter, has come up for hearing from time to time and the interim
order has been continued with occasional directions to deposit some money. By
this process, the writ petition was kept pending for more than five years. The
appellant who was a defaulter when the writ petition was filed continued to get
supply of electricity by making occasional payments pursuant to the direction
of the Court. The Writ petitioner did not pay the bills submitted in usual
course, the arrears kept mounting up and the CESC ultimately disconnected the
line. By an order dated 16th
February, 1993, the
Court directed the line to be restored and the writ petition was directed to
remain heard in part.
It is
difficult to understand how this writ petition was allowed to linger on for five
years. The Court did not and could not possibly come to a finding on the
disputed questions of fact. According to CESC, the bills were prepared
properly. The appellants did not pay the bills. The total amount of arrears due
to the CESC had mounted up to Rs. 67,40,948.10 after giving pursuant to the
interim orders passed by the Court from time to time. On behalf of the CESC,
very serious allegations have been made about theft of electricity and
overloading as a result of which the meter was burnt out several times and
non-payment of bills.
Section
24 of the Electricity Act gives the right to the supplier to disconnect any
electric supply line after giving seven days' notice, if a consumer neglects to
pay the charge for energy or any sum other than the charge for energy due from
him in respect of supply of energy. In case of dispute or difference about the
meter or the correctness of the bill, the consumer may apply to the Electrical
Inspector. The Inspector in such a case shall estimate the amount of energy
supplied to the consumer. The supplier shall not be at liberty to take off or
remove any meter until the dispute has been determined by the Electrical
Inspector. The writ petitioners did not avail of the statutory remedy provided
by sub-sections (4) and (6) of Section 26 but approached the Court for interim
relief and by this process, managed to continue to get supply of electricity
even though there was a huge mounting default.
It is
difficult to understand how the Court allowed the question of these disputed
bills to linger on for more than five years without disposing of the case on
merits. It was also not proper for the Court to direct CESC to supply
electricity to a defaulter indefinitely by interim orders passed from time to
time. Specific statutory remedy provided by the Indian Electricity Act to the
consumer should not have been allowed to be bypassed.
It has
been contended on behalf of the consumer that the second prayer in the writ
petition was for referring the matter for arbitration. We fail to see the sense
of this prayer. If the consumer was aggrieved by the bills, he should have
approached the Electric Inspector straight away.
When
the consumer approached the Court, the Court should have directed the consumer
to avail of the statutory remedy.
In any
event, under the writ jurisdiction, the Court could not have decided about the
correctness or otherwise of the bills. Serious allegations were made by the
CESC about the consumption of electricity beyond the sanctioned load and also
of non-payment of valid bills. The allegation is also that when the electricity
supply to Rajkumar Dyeing & Printing Works was stopped, a partner, Banka,
wanted to get a service line in his own name at the same place to run the
printing works. This was obviously a fraudulent move and the CESC rightly
refused to get the second line.
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