VENKATASWAMI, J. ( 1 ) THIS appeal under Sec. 4 of the High Court Act is by the unsuccessful petitioner in WPNo. 1442 of 1975 and against an order of a learned single Judge of the Court whereby the reliefs for the issue of writs of certiorari and Mandamus had been refused. ( 2 ) BRIEFLY, the material facts necessary for the disposal of the appeal are these. The appellant, a Partnership firm engaged in the manufacture of plastic tops and laminations, imported and installed a Dixon Pilot quoting Machine and an Air Dryer in the year 1973. The respondent, karnataka State Electricity Board, hereafter referred to as the Board, sanctioned the said installation subject to an authorised load of 98 HP and serviced the same with effect from 15-9-1973. It also fixed the monthly minimum charges payable on that basis. It is, however, the case of the appellant that for various reasons, which are unnecessary to be detailed herein, it was unable to commence production till May, 1974. In the meanwhile, on 17-4-1974, a communication, Ext. D was received by the firm intimating that it had unauthorisedly installed an extra load of 52. 68 HP. in excess of the sanctioned load of 98 HP. and was, therefore, liable to be 'back-billed' at double the tariff rate for a period of six months immediately prior to 1-4-1974, the date on which such unauthorised act was detected by the officers of the Board. A demand for payment of the sum specified therein was also made accordingly. It is relevant to reproduce ext. D, as it would explain the stand taken on behalf of the Board at the earliest. It runs thus :" Sub : Back billing charges of W3 1365/p4-133 your installation was inspected by the Assistant Engineer special squad on 1-4-1974 and observed that you had connected total machineries of 22 HP plus 96 KW (150. 68 HP) as against the agreed load of 98 HP. You are well aware installing additional machineries without observing Board formalities contravenes the agreement executed by you and the Indian Electricity Act. Since you have unauthorisedly connected 52. 68 HP your installation is back billed for six months applying double the tariff rate i. e. 14 Rs per HP on unauthorised load. It may be noted that double the tariff rate will be continued until you either regularise or remove the load. Since you have unauthorisedly connected 52. 68 HP your installation is back billed for six months applying double the tariff rate i. e. 14 Rs per HP on unauthorised load. It may be noted that double the tariff rate will be continued until you either regularise or remove the load. The back billing charges of Rs. 4,431. 00 as worked out on the above lines should be paid within 15 days besides either regularising or removing the unauthorised load failing which your installation will be disconnected without further notice. " ( 3 ) THE appellant disputed the demand on grounds, inter alia, the the machinery had not been used at any time and that there was no inspection by the officers of the Board as alleged, to his knowledge. Again, on 18-5-1974, there was a further inspection of the machinery by the officers of the Board, which was followed up by a communication ext. E, dated 22-5-1974 to the appellant. In this communication, the board accused the petitioner of having removed the name plates of the machinery which would have afforded an indication as to its rated capacity. This letter reads :" Sub : Testing of WP3-1365 i write to state that your installation was inspected and tested on 16-5-1974. The entire heating load of the furnace was not on at the time of testing, since the heating load was found to be the same (12 kw) in switch positions 12 KW, 30 KW and 48 KW. Hence, it is evident that the heating element in the switch position of 30 KW and 48 KW have deliberately been disconnected. Your installation was again inspected on 18-5-1974 along with Asst Engineers of Special squad, Board Secretariat, for verification of name plate on previous occasion. It was found that the name plate was removed from its position. We could see four holes rivetted in place of name plates. It was also observed that the marking of switch position of heating element beyond 60 KW have been erased even though the switch could be operated for 2 more positions beyond 60 KW. Hence the maximum position of the switch must be 96 KW which has been erased. It is also observed that the name plate details of 3 motors were missing. You are hereby informed to bring these motors to our laboratory for testing and to determine the correct NHP. Hence the maximum position of the switch must be 96 KW which has been erased. It is also observed that the name plate details of 3 motors were missing. You are hereby informed to bring these motors to our laboratory for testing and to determine the correct NHP. It is clear from the above facts that you have removed the name plate deliberately. You are hereby informed to produce the name plates of heaters and motors and also to make arrangement to put on the heating elements in circuit in all switch position for re-inspection by the office on any convenient date. In the meantime, the bills have to be paid by you as assessed by Asst Engineer, Special Squad Board secretariat. " ( 4 ) DESPITE the petitioner's protest the Board disconnected the supply on 7-6-1974. The appellant on the same day sent up an 'appeal' to the Board complaining of the disconnection as illegal, arbitrary and mala fide. Presumably pursuant to the said appeal the Board seems to have got the machinery in question inspected by its Chief Engineer and on the basis of the report received thereon, it not only affirmed the earlier demand but enhanced the same and demanded in all a sum of Rs. 7554-30 as 'back-billing' charges. Hence, the petition under Art,226 of the Constitution seeking writs in the nature of Certiorari and Mandamus quashing the several notices of demand towards back-billing charges and restoration of service, respectively. ( 5 ) THE learned Single Judge dismissed the petition, holding that sec. 24 of the Indian Electricity Supply Act clearly supported the impugned action of the Board and that, in any event, the petitioner had an adequate alternative remedy by way of a departmental appeal to the superintending Engineer as provided under Regulation 41 (e) (1) of the regulations framed under that Act. Hence the present appeal. ( 6 ) BEFORE adverting to the contentions urged at the Bar, it is necessary to notice one more fact which has a bearing on the reliefs to be granted ultimately. Subsequent to the disposal of the writ petition by the learned Single Judge on 1-7-1976 and before the filing of the present appeal, the Board issued a further notice to the appellant demanding a sum of Rs. Subsequent to the disposal of the writ petition by the learned Single Judge on 1-7-1976 and before the filing of the present appeal, the Board issued a further notice to the appellant demanding a sum of Rs. 21,397,94 in all by way of back-billing charges, line minimum charges and penal charges in respect of the several periods during which the machinery had stood connected for the supply of electricity. The principal reason for the enhanced demand seems to be the interim order for restoration of service passed by the learned Single Judge during the hearing of the writ petition, as a result of which the service had stood restored. But, the petitioner continued to complain that the fust used in connection with such restoration was inadequate and insufficient to service a load of 98 HP and, therefore, the machinery could not be used. But, since the monthly minimum charges due as a result thereof remained unpaid, the service came to be disconnected once again. The appellant has, therefore, filed IAI seeking the quashing of the said notice of demand, marked as Ext. B-1, also. ( 7 ) ON behalf of the appellant, it was contended that the impugned demands as a result of backbilling, evidenced by Exts. D, J and B-1 (IAI), were illegal, arbitrary and without the authority of law ; that the disconnection of power on 7-6-1974 was similarly without the authority of law, and, in addition, violative of the principles of natural justice. On behalf of the respondent, it was urged that the action of the Board in levying charges by way of back-billing and disconnecting the power supply was clearly supportable in law, particularly in the light of the provisions of Sec. 24 of the Electricity Supply Act and Regulation 41 (e) of the Electricity Supply Regulations framed pursuant to the power conferred by sec. 79 of that Act. It was further urged that by virtue of the provisions of the Constitution (42nd Amendment) Act, the writ petition would not be maintainable in view of the fact that there was an alternative remedy of an appeal provided under Regulation 41 (e) (1), and that the same had not been exhausted. We shall now proceed to examine these contentions. ( 8 ) WE shall first take up for consideration the point concerning the availability of an alternative departmental remedy to the appellant. We shall now proceed to examine these contentions. ( 8 ) WE shall first take up for consideration the point concerning the availability of an alternative departmental remedy to the appellant. In our view, the contention urged in this behalf cannot be allowed to prevail. It is no doubt true that Regulation 41 (e) (1) has made provision for such an appeal by an aggrieved party in the following terms :" * * * Any consumer aggrieved against an order of assessment made by a local officer, may first pay the amount demanded and then may appeal to the Superintending Engineer, within a fortnight of the communication of the order. "firstly, a petition presented by the appellant to the Board has been in substance treated as an appeal as is evident from a communication sddressed by the Board to the appellant on 21-10-1974, which runs thus;" Sub : R. ,r. No. W3p-1365 please refer to your letter dated 27-9-1975 addressed to this office re : back-billing of your installation cited above. Your appeal dated 6-6-1974 was examined by the Chairman. K. E. B. , in the light of the report received from the Chief Engineer, Elec. (South) K. E. B. and orders of the Board have been communicated to you: vide this office letter of even No. dated 23rd September, 1974. ** *"it is also seen from the record before us that the letter of 23rd september, 1974 had merely affirmed that the levy of back-billing charges was in order. In this slate of affairs, any further appeal to the Superintending engineer who is only an official of the Board, would be, in our view, only an idle formality. 8 (a ). Secondly, it may further be noticed from the communication dated 21-10-1974 that reliance has been placed on the Chief Engineer's report in support of the affirmation of the levy. Therefore, any resort to an appeal as provided would imply that an opinion formed by a Chief engineer could be challenged before a Superintending Engineer, who was only a subordinate of his leading to an anomalous situation. For all these reasons, we are clearly of the view that the bar enacted in Art. 226 of the Constitution as amended, could not be held to operate to the prejudice of the appellant. For all these reasons, we are clearly of the view that the bar enacted in Art. 226 of the Constitution as amended, could not be held to operate to the prejudice of the appellant. ( 9 ) THE next question for consideration is whether the levy of back- billing charges as per Exts. D, J and B-l, is legal and valid. The case of the Board in this regard, in substance, is that the machinery in question had been found to have been unauthorisedly connected to a load far in excess of the authorised load of 98 HP. In this context, it is to be noticed that the specific case of the appellant has been that he had not used the machinery even with the authorised load and the limit of monthly minimum charges had at no time been exceeded. This factual allegation has not been controverted by any one on behalf of the Board. It must, therefore, be taken as a fact that the appellant had not consumed energy by unauthorisedly using the machinery (Vide : Exts. D and E ). Indeed, this fact is further substantiated by the report of the Chief Engineer of the Board dated 30-8-1974. The following are the relevant observations made therein :" The consumer is paying a monthly minimum charges of Rs. 686/- based on the sanctioned load. But he has not used the machine in full from the date of sanction till to-date. Hence very little consumption has been recorded for all these months. * * * from the above it is felt that there is no need to suspect the capacities of the motors which had no name plate details. But however the party has been requested to get these motors tested in our laboratory for assessing the correct rating of each mbtor. * * * * it was suspected by them that the name plate is since removed and they found some markings on the unit. During my inspection however, i found that there is no indication as to the removal of the name plate. Further, the unit is an imported one and even though the installation has been serviced on 15-9-1973 it has not been put into full commercial use so far. The consumer has been paying billing demand on the HP minimum only. During my inspection however, i found that there is no indication as to the removal of the name plate. Further, the unit is an imported one and even though the installation has been serviced on 15-9-1973 it has not been put into full commercial use so far. The consumer has been paying billing demand on the HP minimum only. The reasons for not running the machineries as seated by the consumer to be partly due to lack of raw materials and also due to non-availability of qualified technicians to run this sophisticated machinery. The original purchase documents pertaining to these were also furnished to me by the consumer and it is stated by the suppliers that the machine is rated as 60 KW. The reasons for doubting the correct capacity may be that a step-switch has been provided with a range varying from 12 KW minimum to 60 KW maximum and beyond this 60 KW there are further 2 steps which have been blocked and it is stated by the consumer that this has been done by the manufacturers themselves. I also found no heating elements connected beyond 60 KW range. I am of the opinion that this is a standard unit manufactured by the firm, their ratings are fixed depending upon the requirements of the consumers and in this particular case the connection has been made upto 60 KW and the other 2 ranges have been blocked. Under the circumstances i feel that the capacity of the heating element may be taken as 60 KW only as I find no reason to believe that the consumer might have tampered with it. "therefore, the question that arises for consideration is whether even in the absence of the use of the unauthorised load as aforementioned, the appellant would be liable for payment of 'back-billing' charges merely on the score that the machinery had been connected to operate on an unauthorised load. It must, however, be observed that the very fact that it had been so unauthorisedly connected has been disputed by the appellant. But, in the view we have taken of this case, it is unnecessary to say anything one way or the other on this disputed question of fact. ( 10 ) ON behalf of the Board reliance in this regard has been placed almost exclusively on the provisions of Regulation 41 (e) (1), which reads:" (e) (1 ). But, in the view we have taken of this case, it is unnecessary to say anything one way or the other on this disputed question of fact. ( 10 ) ON behalf of the Board reliance in this regard has been placed almost exclusively on the provisions of Regulation 41 (e) (1), which reads:" (e) (1 ). , Where it is established to the satisfaction of the Local officer that a consumer has dishonestly abstracted, used or consumed or maliciously, caused energy to be wasted or diverted, such officer shall estimate the value of the electrical energy thus abstracted, consumed, used or wasted for a period of six months or for such period as may be deemed justified in the circumstances of any given case, at twice the normal rate of tariff applicable to the installation from which the energy is abstracted, consumed, used or wasted and demand and collect the same by including the same in the next bill or by a separate bill. Such amount shall be deemed to be arrears of electricity charges. Neither failure to launch a prosecution nor the acquittal of the consumer in any criminal case launched against him on this account on a ground other than that the prosecution case is false, shall bar the proceedings under this provision. The levy of this compensation shall be without prejudice to the Board's right to disconnect the service of the consumer and/or take such other action as it is entitled to under law. Any consumer aggrieved against an order of assessment made by the local officer, may first pay the amount demanded and then may appeal to the Superintending Engineer, within a fortnight of the communication of the order. (B. O. A5-6532/71-72 SOL dated 29-5-1973 ). " ( 11 ) IT is clear from this provision that the Board acquires the right to 'back- bill' from a consumer only if he was found to be guilty of one or the other acts specified therein and thereby consumed or wasted electrical energy unauthorisedly. The clause 'consumer has dishonestly abstracted, used or consumed or maliciously caused energy to be wasted or diverted' would, in our opinion, connote actual consumption or wastage of electrical energy by the consumer thus causing unlawful loss to the licensee-Board. The clause 'consumer has dishonestly abstracted, used or consumed or maliciously caused energy to be wasted or diverted' would, in our opinion, connote actual consumption or wastage of electrical energy by the consumer thus causing unlawful loss to the licensee-Board. This conclusion is further strengthened by the provisions made therein for the manner of computation of the charges to be levied as a result thereof, which specifically enjoin that such charges should be based on energy consumed or wasted. Once this conclusion is reached, it follows that the Board could not at all rely on it in support of the back-billing charges levied by it, in the face of the concluded fact that the appellant had not consumed energy with the help of the unauthorisedly connected load. The contention of the appellant, therefore, clearly deserves to be upheld. We hold accordingly. ( 12 ) THE question that remains to be considered is the one relating to disconnection of power supply to the appellant. The factual position in this regard is that the first disconnection took place for non-payment of backbilled charges as per Ext-D and the second disconnection as a result of non-payment of monthly minimum charges during the period in which the machinery had been connected to supply pursuant to an interim order made in the course of the hearing of the writ petition before the learned single Judge. In regard to the first, to which alone the relief concerning msndamus had been confined, there cannot be any doubt that once the levy of back-billing charges were held to be illegal, the action of the Board would be clearly unauthorised, and the issue of a mandamus for restoration of connection would be in order. But, the difficulty that has arisen is that the appellant had secured a re-connection of supply by Virtue of an interim order of the Court as observed earlier. It was clearly, therefore, its duty to have paid the monthly minimum charges for the period during which the installation had been supplied with power and there had not been any consumption of power in excess of the specified minimum. It is not the case of any one before us that such minimum would not become payable if the machinery had remained unused for any reason. It is not the case of any one before us that such minimum would not become payable if the machinery had remained unused for any reason. It is, however, the case of the appellant that the connection given in compliance with the said interim order by the use of an 100 Ampere fuse, could not be effectively utilised and, therefore, he had complained about it to the Court. It seems to us that this objection of the appellant merely amounts to this, that the Board had not fully complied with such order. This is not the same as saying th'at the supply had not been restored so as exonerate him from the liability to pay the monthly minimum charges. Further, if really the installation had been unworkable as contended, about which we express no concluded opinion, the remedy open to the appellant was to have requested for disconnection pending further orders by the Court on the complaint made to it. In these circumstances, we are clearly of the view that the appellant would be liable to pay the monthly minimum charges that had accrued during the period the installation had stood connected to power supply, pursuant to the said interim order. We are, therefore, of the view that any mandamus that may have to issue regarding restoration of connection could only be conditional upon payment of the monthly minimum charges and such other ducs, If any, if the same have not been paid. In the light of the foregoing, we are unable to uphold the judgment in appeal. The appeal is accordingly allowed and in reversal of the order of the learned single Judge, WP. 1442 of 1975 is also allowed to the extent indicated above. IA-I also stands allowed. ( 13 ) IN the result, the demands comprised in Sxts-D', 'j' and 'b-1' in so far as they relate to back-billing charges and other dues arising therefrom are hereby quashed. A direction in the nature of mandamus will also, issue to the respondent-Board to restore the electric Supply to the installation of the appellant, provided he pays up all the monthly minimum charges and other dues of a- like nature during the period the power supply had stood restored pursuant to the interim orders passed during the pendency of the writ petition. In the circumstances of the case, the appellant would be entitled to all the costs incurred both in appeal and the writ petition. We make an order accordingly. --- *** --- .