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J&K High Court · body

2001 DIGILAW 141 (JK)

State Of J. &K. v. Gh. Mohi-ud-din Mir

2001-07-19

MUZAFFAR JAN

body2001
1. Heard the learned counsel for the parties. 2. Revision petition has been submitted to set aside the order dated 29-2-2000 passed by the learned Munsiff, Pulwama in the controversy where the plaintiff respondent-owner of a registered Flour Mill situated at Wangam, Pulwama filed suit for mandatory injunction praying that the policy of the petitioner-State & Electric Department to charge the consumers on the basis of minimum consumption guarantee charges as well as on the actual consumption as per meter is bad in law and not legally sustainable, with further relief of permanent injunction that the defendants (State and Electric Department) be restrained not to recover any arrears of tariff of disconnect the electric supply to the Flour Mill of the plaintiff-respondents. 3. Along with the suit an application for temporary injunction was also filed. The trial court after hearing the parties came to the conclusion that plaintiff has a prima facie case and directed the department (defendants) not to disconnect the Electric supply to the Flour Mill of the plaintiff and to charge the consumption of electric energy as per meter installed in the Flour Mill. The validity of this order dated 26-2-2000 has been challenged in the revision petition. 4. I have heard the learned counsel for the parties at length and perused the entire record. 5. Learned counsel for the petitioners has submitted that plaintiff-respondent does not have a prima facie case to justify the interim order passed by the trial court directing the defendants, the present petitioners to charge the plaintiff for actual consumption of electric energy as per meter and not to enforce the consumption of minimum guarantee charges. The consumer cannot dispute his liability for payment under consumption of minimum guarantee charges. Therefore, the revision petition may be allowed and the impugned order set aside. 6. On the other hand, the learned counsel for the respondent has argued that the order of the trial court is legally sound because the consumer will still be liable to pay the electric charges as recorded by the electric meter for installation of his Flour Mill. No loss would be caused to the electric department and as such, no illegality has been committed by the trial court which order may be sustained. 7. No loss would be caused to the electric department and as such, no illegality has been committed by the trial court which order may be sustained. 7. On consideration of the arguments of the learned counsel for the parties and for effective disposal of the present controversy the scheme for tariff under the Electricity Act has to be understood. 8. Section 23 of the Electricity Act is reproduced as under: - "23. Charges for energy to be made without un-due preference- 1. X X X 2. X X X 3. In the absence of any agreement to the contrary, a licensee may charge for energy supplied by him to any consumer- (a) By the actual amount of energy so supplied or (b) By the electrical quantity contained in the supply. (c) By such other method as may be approved by the Govt. 4. Any charges made by a licencee under clause(c) of Sub- section (3) may be based upon, and vary in accordance with any one or more of the following consideration, namely: - (a) The consumers load factor or (b) The power factor of his load, or (c) His total consumption of energy during any stated period, or (d) The hours at which" the supply of energy is required." 9. From plain reading of Section 23 of the Electricity Act, Sub-Section (C), it is amply clear that the Government has power to charge for consumption of electric energy by an alternate mode and method. The alternative mode and method is provided in the Schedule contained in the Act under Clause 3(X), which reads as under:- "(3) X: - Minimum Charges: - A licensee may charge a consumer a minimum charge for energy of such amount and determined in such manners as may be specified by his licence, and such minimum charge shall be payable not- withstanding that no energy has been used by the consumer during the period for which such minimum charge is made." Clause (X) of Section 3 provides for payment of minimum charges and creates an obligation to do so. 10. This obligation to pay the minimum guarantee charges has to be considered in view of the over all obligation of the State to generate, transmit and supply the electric energy on concessional rates to the consumers. 10. This obligation to pay the minimum guarantee charges has to be considered in view of the over all obligation of the State to generate, transmit and supply the electric energy on concessional rates to the consumers. Moreover, the State has to monitor and ensure maintenance of distribution of supply line from the location of generation to the distribution point which involves considerable financial liability. Admittedly, the electric charges recovered from the consumer are on subsidized rates, but the liability of the consumer under the minimum guarantee charges is created to share some burden of the State. 11. The guarantee under the Act is not to pay flat sum of money in an arbitrary manner, without any reasonable justification. The guarantee is to agree to consume minimum electric energy so that the department has a firm idea of the monthly or yearly requirement of the electric energy of the consumer and also to assess the approximate income likely to be generated on the basis of minimum guarantee charges to meet the generation requirement of the electric energy, for supply of minimum consumption demand of each consumer. Once consumer agrees to pay under minimum guarantee charge there is a corresponding duty cast on the department to generate the electric energy to the extent to honour the minimum guarantee charges which is in built in the Electricity Act and for the benefit for which the Act is enacted. The agreements under the Act cannot be taken at par with the contracts of the normal nature between the parties governing their rights, obligations and liabilities. The classification is on intelligible differentia and distinguishable. 12. The consumer cannot take the plea of default of Electric Department on account of low voltage tripping power shedding or distruption in the electric supply as violation of the terms of the minimum guarantee charges because of the distinguishable feature provided by the Act for the present agreements. See JT 2000 (Supp.3) S.C.39, Raymond Ltd and another Vs. Madhya Pradesh Electricity Board and others. 13. The tendency of the Department to disconnect the electricity on non payment of the electric charges without notice is a violation of Section 24 of the Electricity Act. Section 24 of the Act is reproduced as under: - " 24. Discontinuance of supply to consumer neglecting to pay charge:- 1. Madhya Pradesh Electricity Board and others. 13. The tendency of the Department to disconnect the electricity on non payment of the electric charges without notice is a violation of Section 24 of the Electricity Act. Section 24 of the Act is reproduced as under: - " 24. Discontinuance of supply to consumer neglecting to pay charge:- 1. Where any person neglects to pay any charge for energy or any sum, other than a charge for energy, due from him to a licensee in respect of the supply of energy to him, the licensee may, after giving not less than seven clear days notice in writing to such person and without prejudice to his right to recover such charge or other sum by suit, cut off the supply and for that purpose cut or disconnect any electric supply-line or other works, being the property of the licensee through which energy may be supplied and may discontinue the supply until such charge or other sum, together with any expenses incurred by him in cutting off and reconnecting the supply are paid, but no longer. 2. Where any difference or dispute has been referred under this Act to an Electric Inspector before notice as aforesaid has been given by the licensee, the licensee shall not exercise the powers conferred by this section until the Inspector has given his decision. Provided that the prohibition contained in this sub-section shall not apply in any case in which the licensee has made a request in writing to the consumer for a deposit with the Electric Inspector of the amount of the licensees charges or other sums in dispute or for the deposit of the licensees further charges for energy as they accrue, and the consumer has failed to comply with such request." 14. This section clearly provides that on non-payment of any charges, which are due to the licensee, a clear notice of not less than seven days in writing has to be given to the consumer. No notice would be required in case the consumer is found using the electric energy in violation of the minimum consumption guarantee. 15. On plain interpretation of the relevant provisions of the Electricity Act, it is manifestly clear that in case of non payment notice would be issued for charges which are due as per trivector meter and also covered by the minimum consumer guarantee. 15. On plain interpretation of the relevant provisions of the Electricity Act, it is manifestly clear that in case of non payment notice would be issued for charges which are due as per trivector meter and also covered by the minimum consumer guarantee. But no notice would be required in case the consumer is found using the electric energy with a trivector meter in perfect running condition but in violation of minimum consumption guarantee. 16. In the instant case the plaintiffs grievance of disputing the provisions of the Electricity Act or minimum consumption guarantee and subsequent refusal to pay under the minimum consumption charge does not constitute a civil enforceable right. The plaintiff/respondent on this count did not have a prima facie case. 17. In this view of the legal position the plaintiffs / respondent initially did not have a prima facie case sustainable on law and there was no justification for the learned Munsiff to pass the impugned order which apparently has been passed without jurisdiction and has to be set aside. 18. Accordingly the revision petition is accepted and order impugned set aside. 19. In view of the elaboration made or the present controversy, which normally comes up in the Subordinate Courts, Registry is directed to circulate copy of this order to all the Sub-ordinate courts for information.