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2002 DIGILAW 340 (CAL)

Nanibala Saha v. Indian Electricity Act

2002-05-16

KALYAN JYOTI SENGUPTA

body2002
JUDGMENT : - Kalyan Jyoti Sengupta, J.: The petitioner's domestic line has been disconnected on the allegation of pilferage. Disconnection notice has been given admittedly by a letter dated 14th March, 2002. The relevant portion of the notice is quoted below:- "The seal(s) on the meter terminal plate(s) were tampered with. This shows that you had gained unauthorised access to the metering system in order to dishonestly abstract/consume/use energy in violation of sections 39, 40, 44 and Clause VI(I) 2nd proviso (b) of the Schedule of the Indian Electricity Act, 1910, Rule 56 of the Indian Electricity Rules, 1956. In view of the aforesaid, there was reason to believe that you have been guilty of pilferage of electricity and accordingly we have been constrained to disconnect your supply on 04/03/2002 pursuant to the provisions of Clause 29(a) of our Conditions of Supply, without prejudice to our other rights." 2. The learned Counsel for the petitioner submits that no prima facie case has been made out under sections 39, 40 & 44 and Clause VI(I) 2nd proviso (b) of the Schedule of the Indian Electricity Act, 1910. He submits that commission of theft has not been established or proved, until and unless the aforesaid offence is proved before the appropriate forum, the petitioner's line cannot be disconnected, so the demand made by CESC cannot be sustained. He further submits that he has not breached the terms and conditions of supply of electric energy to the petitioner. 3. I am unable to accept his submission as far as the disconnection without notice is concerned as well as the demand made by the CESC in terms of the impugned notice. The learned counsel has overlooked another provisions of terms (vi) & Clause 29(a) which has been incorporated and/or introduced after approval of the Government dated 15th May, 2000 and which empowers the licensee to disconnect the supply line of the petitioner when there is a reason to believe that the consumer has been or is guilty of pilferage of electricity and the formation of the belief rested entirely on the official of the C.E.S.C. and none else at this stage. The aforesaid condition of supply has empowered to do so. Prima facie I am of the view that disconnection of the petitioner's supply line in terms of the aforesaid clause is not unlawful. The aforesaid condition of supply has empowered to do so. Prima facie I am of the view that disconnection of the petitioner's supply line in terms of the aforesaid clause is not unlawful. More so, the petitioner has not challenged the legality, validity of the aforesaid condition of supply. However, as far as the demand of the C.E.S.C. for payment of the amount as indicated in the notice is concerned, whether the same is lawful or not cannot be decided right now. A mechanism has been provided in the condition of supply in Clause 29(c). The entire action of the C.E.S.C. cannot be said to be illegal in view of the aforesaid provision. 4. As far as the case under sections 39, 40 & 44 is concerned, the same stands on a different footing from that of this action. The aforesaid sections provide for prosecution in case of theft and the argument advanced by the petitioner will be appropriate when any action is brought challenging the criminal prosecution. This action is an act to recover the loss and such an action is permissible under the law. Therefore, I reject the submission of the learned lawyer of the petitioner. 5. It appears that CESC has estimated a sum of Rs. 2,147.94 being the energy charges. I have enquired from the learned lawyers about the pattern of use of electric energy by the petitioner. It appears from the bills annexed to the writ petition that it is a domestic line and connection has been given to a two roomed flat and he has also annexed the bills dated 26.2.02. This bill does not record any consumption. It is submitted that the petitioner was not staying in the flat for some time and she has come back in the month of February, 2002 and that is why there was no consumption recorded in the bill. 6. However, considering the case made out in the petition and having heard the learned Counsels for the parties, I pass the following interim order. 7. The petitioner shall pay a sum of Rs. 1,000/- along with costs of meter replacement and reconnection charges amounting to Rs. 1,030/-. Upon such payment being made, the line shall be restored within 48 hours. The payment so to be made by the petitioner will be without prejudice to the rights and contentions of the parties. 8. 7. The petitioner shall pay a sum of Rs. 1,000/- along with costs of meter replacement and reconnection charges amounting to Rs. 1,030/-. Upon such payment being made, the line shall be restored within 48 hours. The payment so to be made by the petitioner will be without prejudice to the rights and contentions of the parties. 8. It would be open for the petitioner to make a representation to the Authorised Officer stating all facts within a fortnight from date. In the event no representation is made then, the bill raised on the petitioner shall be final and conclusive. If any representation is made then the same shall be decided in accordance with law after hearing the petitioner and by passing a speaking order. 9. The application is disposed of. 10. All parties concerned are to act on a xeroxed signed copy of this dictated order on the usual undertaking. Application disposed of with directions.