JUDGMENT The issue which has arisen for determination in this case arises out of the disconnection of electricity to the writ petitioner's meter by the respondent NO.1. 2. The petitioner has an industrial unit which manufactures grills, shutters, etc. The industrial unit known as M/s. Lakhi Unit Industries is at 215, Picnic Garden Road. According to the petitioner he has been carrying on this business since 1979 and has been regularly paying the electricity bills as raised by the respondent No. 1 on him. The last bill was paid on 4th July, 1996. The petitioner's case is that he was supplied electricity through a meter which, along with other 20 meters of other industrial units, were housed in a room belonging to one Ram Chand Agarwal. The petitioner has claimed that he has no access to the room. 3. The supply of electricity to the petitioner's meter was disconnected by the respondent No. 1 on 1st July, 1996. According to the petitioner the employees of the respondent No. 1 had asked the petitioner to produce the current bill. The current bill was in the residence of the petitioner. The petitioner left to bring the current bill but when he returned 20 minutes later he found the supply of electricity disconnected. According to the petitioner the employees of the respondent No. 1 broke open the seal and disconnected the loop connecting the petitioner's supply of electricity to his meter. 4. The respondent No. 1 has a different version of the incident. They say that a team of four of its officials made a surprise check and found the seals on the petitioner's meter to be spurious. On the presumption that the petitioner had removed the original seals of CESC and replaced the same with spurious ones to pilfer electricity, the officials of CESC dis-connected the supply of electricity to the petitioner's premises. A complaint was lodged in the local police station on the same day. A letter was also issued on the same date to the petitioner calling upon him to meet the Deputy Manager (Mains), Loss Control Cell of CESC at his office within 3 days to make representation, if any. According to the CESC a sum of Rs. 93,565.54 was payable by the petitioner to CESC on account of non-metered consumption. 5. According to the petitioner, there was no pilferage in fact. According to the CESC a sum of Rs. 93,565.54 was payable by the petitioner to CESC on account of non-metered consumption. 5. According to the petitioner, there was no pilferage in fact. It is also submitted that the CESC was not empowered to disconnect the supply of electricity to the petitioner's unit without giving the petitioner notice or an opportunity of being heard. It is also submitted that CESC had no material before it to come to a finding of pilferage. Finally it is submitted that the demand for Rs. 93,565.54 as a pre-condition to the reconnection was incompetent. Reliance has been placed on the decision of the Supreme Court in Municipal Corporation of Delhi vs. M/s. Ajanta Iron & Steel Co. AIR 1990 SC 822; Jagannath Singh & Sm. Santibai vs. M. P. Electricity Board AIR 1985 MP 70 . 6. The CESC has submitted that it supplies electricity as a licensee under the Indian Electricity Act, 1910 (hereafter referred to as the Act) as well as the Indian Electricity Rules 1956 (hereafter referred to as the Rules). At the time of supply of electricity an agreement is entered into between CESC and its consumers. The agreement provides for the applicability of the Act and Rules as well as the Conditions of Supply framed by CESC with the sanction of the Government of West Bengal. The CESC has argued that Schedule I, Paragraph VI, Second Proviso, clauses (b) and (d) of the Act allow the CESC to disconnect the supply of electricity without notice. "VI Requisition for supply to owners or occupiers in vicinity:-* * * * .. * .. * * * .. .. * * * * * * * * * * .. * * * .. Provided, first, * * * * * * * * * * * * * .. * * * .. * .. * * * * (a) * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * (b) * * * * * * * * * * * * * * * * * * * * * * * * * * * * * Provided, secondly, that the licensee shall be entitled to discontinue such supply- (a) *.. * * * * .. .. * * * * .. .. * * * * * * * * .. * .. .. * * * * * * * * .. * * (b) if the owner or occupier of the property to which the supply is made adopts any appliance, or uses the energy supplied to him by the licensee for any purposes or deals with in any manner, so as unduly or improperly to interfere with the efficient supply of energy to any other person by the licensee, or (c) * .. * .. * . * * * * * * * * * * * * * * * .. * * * * * * * * * * * .. ************* (d) If the owner or occupier makes any alterations of, or additions to, any electric wires, fittings, works or apparatus within such property as aforesaid, and does not notify the same to the licensee before the same are connected to the source of supply, with a view to their being examined and tested; but the licensee shall re-connect the supply with all reasonable speed on the cessation of the Act or default or both, as the case may be, which entitled him to discontinue it." 7. The attention of the Court has been drawn to the contradistinction with other sub-clauses of the proviso which specifically provide for the giving of notice prior to disconnection. The CESC has also relied upon Rule 50 sub-Rule (3), Rules 56, 58, 138 and 141 of the Rules in support of the submission that unauthorised abstraction or tampering with the metering equipment by a consumer entitles the respondent No. 1 to disconnect the supply. Several decisions have also been relied upon namely; Union of India VS. Tulshiram Patel AIR 1985 SC 1416 , Aditya Roa Spin (P) Ltd. vs. u.p. State Electricity Board AIR 1991 AII196 and M. P. Electricity Board vs. Harsh Wood Products & Ors. 1996 (4) SCC 522 . Passages from De Smith's Judicial Review of Administrative Action (5th Edition) page 482 and Wade's Administrative Law (7th Edition) pages 519, 520 have been cited to contend that where there is an emergent situation the CESC is within its rights to effect disconnection of supply without prior notice. 1996 (4) SCC 522 . Passages from De Smith's Judicial Review of Administrative Action (5th Edition) page 482 and Wade's Administrative Law (7th Edition) pages 519, 520 have been cited to contend that where there is an emergent situation the CESC is within its rights to effect disconnection of supply without prior notice. It is also submitted that CESC can terminate the agreement for supply because the fundamental breach thereof by the petitioner under s. 39 of the Indian Contract Act, 1872. According to CESC the petitioner is no longer a consumer of CESC. As far as the claim for unmetered consumption is concerned the details of the computation have been given. It has been submitted that the petitioner is bound to compensate CESC for the same. Finally it is submitted that as disputed questions of fact are involved the Court should decline to go into the issues raised. 8. It would appear that three questions are to be determined by Court: (1) Whether CESC has the power to disconnect the supply of electricity without notice ? (2) Whether the basis for the exercise of such power is reviewable; and (3) Whether CESC has the right to demand any outstanding dues prior to reconnection. 9. In the Municipal Corporation of Delhi .vs. M/s. Ajanta Iron & Steel Co. Pvt. Ltd. (supra) a suit had been filed by the consumer challenging the threat of disconnection of electricity. During the pendency of the suit the line was disconnected. The suit was initially dismissed but decreed on appeal by the First Appellate Court. The High Court dismissed the second appeal. The further appeal to the Supreme Court was also dismissed with the observation: "It has to be appreciated that the licensed undertaking is performing a public duty and is governed by a special statute and the law also contemplates service of a notice before disconnection of supply of electricity." 10. But CESC has relied on a recent decision of the Supreme Court : M. P. Electricity Board, Jabalpur vs. Harsh Wood Products & Ors. (supra) to contend that notice under s. 24 of the Act does not apply to a demand on detection of pilferage. It only applies to a regular supply made. 11. In a decision of a learned Single Judge of this Court: Sri Hanuman Steel Rolling Mill & Anr. VS. (supra) to contend that notice under s. 24 of the Act does not apply to a demand on detection of pilferage. It only applies to a regular supply made. 11. In a decision of a learned Single Judge of this Court: Sri Hanuman Steel Rolling Mill & Anr. VS. CESC 1996(1) CHN 469 it was held that except in exceptional cases notice of disconnection was to be given. This judgment was delivered on 12.4.96 before the Supreme Court decided M.P. Electricity Board VS. Harsh Wood Products (supra) an 18.4.96. In any event the appeal from the judgment in Hanuman Steel Rolling Mill case is pending adjudication before the Appellate Court and as such I leave question (1) formulated above unanswered. 12. However, apart from the question of notice what is being disputed in this particular case is the factual basis giving rise to the power of CESC to disconnect. There is a dispute as to who broke the seals to the petitioner's meter. 13. Clauses (b) and (d) to the second proviso to para VI Schedule I of the Act no doubt provide for the disconnection of electricity in certain circumstances. These provisions, however, also assume the existence of a state of facts on the determination of which the licensee is entitled to discontinue the supply. If the decision of the licensee is conclusive in the matter this would be to invest the complainant of an offence with the powers of prosecution, adjudication and execution much like the cat Fury, in "Alice in Wonderland" in the trial of a mouse-a concept which is abhorrent to any civilized society. 14. No doubt a person may have to be a judge in his own cause in certain unavoidable situations under the doctrine of necessity. In Election Commission vs. Dr. Subhramaniam Swamy: 1996 (3) Scale 734 para 16 the Supreme Court upheld the property of a judge considering a cause in the determination of which he would be benefited if the only other alternative would be to stifle the case. ~. . 15. In Election Commission vs. Dr. Subhramaniam Swamy: 1996 (3) Scale 734 para 16 the Supreme Court upheld the property of a judge considering a cause in the determination of which he would be benefited if the only other alternative would be to stifle the case. ~. . 15. The respondent No. 1 in this case has assumed the powers to hold conclusively;- (a) that there has been a tampering of a seal; (b) that the tampering was done by the petitioner; (c) that the tampering was done by the petitioner wilfully; (d) that there has actually been a dishonest consumption of electricity by reason of such tampering; and (e) to finally assess the amount of electricity allegedly dishonestly consumed. No appeal lies from such assessment. 16. The post-decisional hearing which, according to CESC, was granted to the petitioner is limited to item (e) listed above As fas as items (b) to (d) are concerned the Rules relied on by the respondent No. 1 place the onus on the consumer to ensure that the service lines and apparatus are maintained. Rules 138 and 141 respectively provide for penalties in the form of fines for breaking a seal and for breaking the Rules. Construing these rules as well as Ss. 39 and 44 of the Act the Supreme Court in Jagannath Singh vs. Ramaswamy (supra) has held that breaking of a seal and exposing the stud hole of a meter is an "artificial means" within the meaning d the sections and where such artificial means are found it gives rise to a presumption that the consumer in whose custody or control the meter is, willfully knowingly prevented the meter from registering. But the petitioner has asserted that the meter was not in his custody at all but was under the control of a third party. If this be so, CESC would have to prove aliunde not only that the seal was broken, [vide item (a) ,above] but that it was broken by the petitioner and that he alone is responsible for any subsequent tampering with the meter (ibid). 17. This decision certainly does not suggest that the ipse dixit of CESC is final. At the highest it is a presumption which may be drawn. Is there no alternative to CESC deciding the matter unilaterally ? 18. The supply of electricity to an industry is vital to its survival. 17. This decision certainly does not suggest that the ipse dixit of CESC is final. At the highest it is a presumption which may be drawn. Is there no alternative to CESC deciding the matter unilaterally ? 18. The supply of electricity to an industry is vital to its survival. The power of disconnection of such supply is a drastic one entailing very serious consequences. The power may be exercised only under the strictest controls with a rigid adherence to the provisions of law whereby such power is sought to be exercised. 19. Therefore it is not only imperative for the respondent No.1; not only to safeguard the consumer but also to protect itself from the allegations of mala fides and improper interference with the consumption of electricity which are invariably made by consumers whose electric line has been disconnected; that the respondent No. 1 should adopt such a procedure which would obviate such disputes. 20. It is noteworthy that in Bhagwanbhai vs. State of Maharastra 1963 (2) Cr.LJ. 694 even though the provisions relating to searches contained in s. 103 of the Code of Criminal Procedure were held to have no application in making a search of a motor vehicle and it was not obligatory upon the police officer to comply with the requirements thereof, nevertheless the Supreme Court recommended that even though the statute did not make it obligatory, the police officers should "wisely carry out the search,' if it is possible for them to secure the presence of respectable witnesses, in their presence. This is a healthy practice which leads to cleaner investigation and is a guarantee against the oft-repeated charge against police' officers of plainting articles". 21. So also although s. 24 may have no application before deciding the existence of the facts for the exercise of powers of disconnection, CESC should follow the wise practice recommended by the Supreme Court, if possible. 22. To return to the facts of this case, the question as to who broke the seal in this case still remains a disputed issue. 22. To return to the facts of this case, the question as to who broke the seal in this case still remains a disputed issue. It is true that this is a disputed question of fact and although the Court may, if the occasion so arises, direct oral evidence to be taken even in an application under Art. 226 (See I. T.O., Special Investigating Circle B, Merath vs. Seth Brothers AIR 1970 SC 292 para 21), in, my view, having regard to that fact that the Act itself provides for the determination of such disputes by the Electrical Inspector, the same should be left to his decision. I refer to Schedule I, para VI (3) of the Act which provides: "(3) Where any difference or dispute arises as to the amount of energy to be taken or guaranteed as aforesaid, or as to the cost of any service-line or as to the sufficiency of the security offered by any owner or occupier or as to the position of the meter board or as to the improper use of energy, or to any alleged defect in any wires, fittings, works or apparatus, or as to the amount of the expenses incurred under the third proviso to sub-clause (1), the matter shall be referred to an Electrical Inspector and decided by him." 23. The decision of M.P. Electricity Board vs. Basant Bai AIR 1988 SC 71 para 9 held that a dispute relating to the tampering with the meter and breaking the seal is outside the ambit of s. 26(6) of the Act: Nevertheless, the Supreme Court did not exclude the operation of Schedule I, Para VI (3) of the Act in such cases. 24. The third aspect of the matter is the condition imposed by CESC for reconnection. I am not prepared to hold that the contract between the parties is terminated under s. 39 of the Contract Act. Clause (d) to the second proviso Para VI Schedule I to the Act obliges the licensee to reconnect the supply with reasonable speed on the cessation of the Act or both which entitled the licensee to discontinue the supply of electricity. Clause 26 of the CESC's Condition of Supply also provides this. This act or default for which the line was disconnected was theft or improper use of energy without payment. Upon cessation whereof CESC must reconnect the line. Clause 26 of the CESC's Condition of Supply also provides this. This act or default for which the line was disconnected was theft or improper use of energy without payment. Upon cessation whereof CESC must reconnect the line. This assumes the subsistence of the relationship. As the act or default itself is disputed it would not be appropriate to withhold the supply of electricity to the petitioner merely on the calculations as made by CESC. Besides there is no provision in law or in the Conditions of Supply which enables CESC to withhold the connection unless payment is made as demanded by CESC. The most important distinction between this case and the Harsh Wood Product's case (supra) is the absence of any provision in the case before me entitling CESC to withhold the supply of electricity after disconnection on the ground of pilferage without the payment of the alleged claim on account of improper dues. In the case before the Supreme Court the power was expressly provided for. 25. Having regard to the facts of the case I dispose of the writ petition by directing ;- (1) the removal of the allegedly tampered meter together with the seal by the Chief Electrical Inspector or his authorised officer after sealing the same within a week from date; (2) subject to the petitioner paying 50% of the amount claimed to CESC and subject to payment of reconnection fees the CESC will reconnect the supply to the petitioners unit through a new meter at CESC's cost at the first instance within 48 hours thereafter (3) the dispute raised by the petitioner with regard to each of the stages in the decision making process (a) to (e) referred to above is hereby referred to the Electrical Inspector under the provisions of Clause 3 Para VI Schedule I to the Act. The Electrical Inspector will decide the dispute either by himself or by an authorised competent officer to do so. The matter shall be decided after giving the petitioner an opportunity of being heard within a period of 8 weeks from the date of service of the operative portion of this order together with a copy of the writ application upon the Electrical Inspector. The matter shall be decided after giving the petitioner an opportunity of being heard within a period of 8 weeks from the date of service of the operative portion of this order together with a copy of the writ application upon the Electrical Inspector. The decision shall be a reasoned one and shall be communicated to the parties within a week of taking thereof; (4) in the event the Electrical Inspector or the authorised officer decides in favour of the petitioner, the amount paid by the petitioner to the CESC pursuant to this order shall be refunded by the CESC to the petitioner together with interest calculated thereon on the same rate at which CESC charges interest from its consumer from the date of deposit unit the date of payment. The CESC will be entitled to refund the sum payable to the petitioner (together with accrued interest) by way of adjustment against the bill raised for the months immediately succeeding the decision of the Electrical Inspector/Authorised Officer; (5) if the dispute is decided in favour of CESC, the petitioner will deposit such balance amount as may be determined by the Electrical Inspector/Authorised Officer as payable to CESC within a period of 4 weeks from the date of the decision of the Electrical Inspector/Authorised Officer. Such balance amount will carry interest at the usual rate charged by CESC in respect of delayed payment. In default of such payment CESC will be entitled to disconnect the supply of electricity to the petitioners unit without any further notice. However, despite this order it will be open to the petitioner to pray for payment of the balance amount by instalments before the Electrical Inspector/Authorised Officer, who will be entitled to grant such instalments as he may in his absolute discretion thinks fit. 26. The writ application is accordingly disposed of. There will be no order as to costs. Directions issued Application disposed of.