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2004 DIGILAW 136 (CAL)

DIPAK ROY v. C. E. S. C. LTD

2004-02-23

GIRISH CHANDRA GUPTA

body2004
GIRISH CHANDRA GUPTA, J. ( 1 ) THIS application under Article 227 is directed against. an appellate order dated 21. 6. 2003 arising out of an order dated 4. 10. 2002 passed by the learned Trial Court refusing to grant a mandatory injunction for reconnection of electricity. The Appellate Court agreed with the order passed by the Trial court and dismissed the appeal. It is against this order that the plaintiff has come up before this Court invoking supervisory jurisdiction under Article 227. ( 2 ) GRAVE allegations have been made against the respondent, c. E. S. C. Ltd. that they have been misusing their statutory power of disconnection of supply of electricity in order to extort money from the consumers of electricity which has been denied by the respondents in paragraph 6 of the affidavit affirmed by Sri Ashim Chakraborty appearing at page 62 of the affidavit-in-reply. Considering the gravity of the allegations made by the plaintiff/petitioner and further considering that the allegation have far reaching consequences affecting the public in general this Court is inclined to make a deeper inquiry into the facts and circumstances of the case which is usually not done in exercise of this jurisdiction. ( 3 ) THE petitioner is a consumer of High Voltage Electricity. The petitioner is a qualified Engineer and is self-employed. He is engaged in manufacturing of spare parts used by the Defence and Railway Ministry. It appears from the affidavit-in-opposition filed by the respondents that during the period between January 1998 and March 2002 the consumption of electricity by the petitioner rose above 250 Units only on 2 occasions; first in april, 1998 when the consumption was 443 Units and secondly in August, 1998 when the consumption was 370 Units and for the greater part of the aforesaid period the consumption was within 200 Units. ( 4 ) ON 7. 3. 2002 Loss Control Cell of the respondents conducted a surprise raid at the factory of the petitioner when the following irregularities were alleged to have been detected :-"i) Lead Seals on Meter body found tampered. ii) Current coil (s) found replaced by coil (s) of non-standard higher size coils. iii) Cutout seals missing. "the following Special Notes also appear to have been made :-"the Meter was disconnected removing the incoming phase loops which were kept under L. C. C. seal. Connected load were : 3 nos. ii) Current coil (s) found replaced by coil (s) of non-standard higher size coils. iii) Cutout seals missing. "the following Special Notes also appear to have been made :-"the Meter was disconnected removing the incoming phase loops which were kept under L. C. C. seal. Connected load were : 3 nos. Large machine (1 KW); 1 no. Milling Machine (1 K. W.); 1 no. Griding machine (1 K. W.), All the machines do not run simultaneously. " ( 5 ) ON the basis of the aforesaid finding the supply of electricity was already disconnected on 7. 3. 2002. On 7. 3. 2002 the matter was also reported to the police. The fact that the matter was reported to the police on 7. 3. 2002 also appears from the above note appearing to have been prepared by Mr. Suvankar Pal, a copy whereof is annexure R-2 to the opposition appearing at page 13 thereof. ( 6 ) IT would also be relevant to notice the complaint lodged with the police which is as follows :"during notice surveillance the undersigned, went to the above address, today at above address today at about 12-30 hours and observed that the Meter holder had tampered the Meter body selas to get access to the internal mechanism of the Meter for maloperating and reducing actual Meter registration. As this act is in contravention to the I. E. Acts and Rules as well as our conditions of supply. We have disconnect the Meters by opening the incoming phase loops and kept those under our L. C. C. Seal. This is for your kind information and future reference. " ( 7 ) IT would appear that the Notes of Mr. Pal a copy whereof is annexure R-2 to the opposition was not the first document prepared by C. E. S. C. Ltd. If this document had been prepared by the respondent on the spot, then the fact that the matter was reported to the Police Station on 7. 3. 2002 could not have been indicated therein. The fact that such an indication is there in annexure R-2 suggests (a) inspection was made, (b) supply was disconnected, (c) the matter was reported to the police and (d) thereafter annexure R-2 was prepared. ( 8 ) THERE is another document dated 7. 3. 3. 2002 could not have been indicated therein. The fact that such an indication is there in annexure R-2 suggests (a) inspection was made, (b) supply was disconnected, (c) the matter was reported to the police and (d) thereafter annexure R-2 was prepared. ( 8 ) THERE is another document dated 7. 3. 2002 issued by the respondents wherein reasons for disconnection of supply of electricity were stated and the petitioner was told that the unmetered consumption made by him was estimated at a sum of Rs. 44,035. 35 P. which he was required to pay. He was required to pay additional security and reconnection charges. The reasons for disconnection shown in the aforesaid letter dated 7. 3. 2002, a copy whereof is annexure R-3 to the affidavit-in-opposition used by the respondents, are claimed to be as follows :"a) CESC Ltd's selas on the cut-outs at the service installations were missing and electricity was being drawn directly from the service cutouts. b) The original selas affixed by CESC Ltd. on the body of the meter (s) were tampered with. c) The current coil (s) inside the meter has been replaced by non-standard current coil (s) of higher size. " ( 9 ) BY the aforesaid letter dated 7. 3. 2002 the petitioner also appears to have been told that he has a right to make a written representation within 21 days from the date of the aforesaid letter to the Assessing authority for making assessment of the charges payable by the petitioner in terms of provisions of Clause 29 (c) of the Conditions of Supply failing which the assessment shall be made ex parte. ( 10 ) IT is not in dispute that the petitioner gave a letter dated 22. 4. 2002 to the respondents wherein the petitioner contended that the charge of pilferage of electricity was factually incorrect and that power should be restored at once. ( 11 ) THE respondents do not appear to have at all taken any notice of the letter dated 22. 4. 2002 and by their letter dated 11. 6. 2002 proceeded to assess the unmetered consumption at Rs. 44,035. 55 P, the relevant part of the assessment and/or the Order Sheet reads as follows :"3. ( 11 ) THE respondents do not appear to have at all taken any notice of the letter dated 22. 4. 2002 and by their letter dated 11. 6. 2002 proceeded to assess the unmetered consumption at Rs. 44,035. 55 P, the relevant part of the assessment and/or the Order Sheet reads as follows :"3. DAYS OF OPERATION since the premises and supply is being used for industrial establishment the total number of days is considered to be 295, giving benefit to weekly off days and. holidays, 4. DIVERSITY FACTOR (RECIPROCAL) in absence of any positive information the diversity factor is considered to be 0. 80. During the period in question there has been changes in tariff, from april, 2001. The consumer was billed for 2447 units for the preceding 12 months from the date of disconnection. I find that the consumer has made certain submission, which are unconnected and/or have no relevance to the facts and circumstances of the case and also beyond my authority and jurisdiction. On the basis of the above parameters; the total assessed consumption comes to 5. 00 kw X 8 hours X 295 days X 0. 8 = 9440 Units, out of which 2447 Units have been billed during the period in question leaving a balance of 6993 Units as unmetered consumption at industrial rate comes to :- a. Energy charge (Penal Rate) rs. 42049. 42 b. Govt. Duty payable to St. Govt. Rs. 1986. 13 total rs. 44035. 55 accordingly, I dispose of the matter by directing the LCC department of CESC Limited to raise the bill for the aforesaid amount of Rs. 44,036. 00 and other bills of Additional Security Deposit, if any, reconnection charges and the cost of replacement of meter, as expeditiously as possible but in no case later than three days from the date of this order. I further direct CESC to restore the supply by replacing the existing meter with an adequate capacity of meter as expeditiously as possible upon receipt of all the aforesaid charges including outstanding dues, if any, and compliance of other formalities, if any. " ( 12 ) ON 11. 6. 2002 itself CESC appears to have raise a bill for Rs. 44,036/- on account of unmetered consumption; a bill for Rs. 5,000/- on account of meter replacement charge and another bill for Rs. 307- for reconnection charges. On 28. 6. " ( 12 ) ON 11. 6. 2002 itself CESC appears to have raise a bill for Rs. 44,036/- on account of unmetered consumption; a bill for Rs. 5,000/- on account of meter replacement charge and another bill for Rs. 307- for reconnection charges. On 28. 6. 2002 the petitioner appears to have instituted title Suit No. 225 of 2002 in the Court of the learned Civil Judge (Junior division), 1st Court, Alipore for a declaration and a mandatory injunction. On 28. 6. 2002 itself the petitioner made an interlocutory application in the aforesaid suit praying for an order of mandatory injunction directing CESC to restore supply of electricity and an order of temporary injunction restraining the CESC from disconnecting the supply of electricity after restoration. ( 13 ) ON 23. 7. 2002 the petitioner appears to have applied before the learned Trial Court for an order directing the Electrical Inspector, a statutory authority, to make an on-the-spot enquiry and to furnish a report to the learned Trial Court on the following points :"a) Whether the seal of the meter of the CESC Ltd. and the cut-outs of the service installation were7are in order or not; b) Whether original seals affixed by CESC Ltd. on the body of the meter were7are in order or not ; c} Whether corrent coil inside the meter has been replaced by non-standard current coil of higher size or not ; d) Whether electricity was drawn directly from the service cut-outs or not. " ( 14 ) THE CESC Ltd. appears to have filed an objection to the application for enquiry by the Electrical Inspector contending as follows :"with regard to the allegation made in paragraph No. 4 of the Electrical inspector, Govt. of W. B. is not competent and7or authorised to determine whether pilferage was taking place in a premises or not. The defendant further states with regard to the point No. (a) it will not be possible to determine whether the seal on the cut-out at the time of inspection were missing or not. The defendant further states that whether the seals on the meter body were tampered with or not can be determined only by forensic test only. With regard to the point No. (b) the defendant states that whether original seal on the body of the meter are in order or not can only be determined by forensic test. The defendant further states that whether the seals on the meter body were tampered with or not can be determined only by forensic test only. With regard to the point No. (b) the defendant states that whether original seal on the body of the meter are in order or not can only be determined by forensic test. So far as this defendant is aware no such facility is available with the electrical Inspector, Government of W. B. with regard to the point no. (d) the defendant states that at this stage it is not possible to determine whether electricity was being drawn directly from the service cut-out or not as the plaintiff has already removed the means of pilferage. " ( 15 ) IN the pending interlocutory application for mandatory injunction the petitioner appears to have filed an affidavit-in-reply to which a further reply appears to have been used by the respondents wherein the following statements were made on oath by Sri Ashim Chakraborty, the Deputy manager of CESC Ltd :"i State that during inspection it was found that seals on the cut-outs were missing and the seals on the body of the meter were tampered with and the current coils replaced by non-standard higher size coils. Although two wires connected with the cut-outs could not be found during inspection the defendant states that missing seals of the cutout go to show that the plaintiff was directly drawing electricity from the cut-outs. I further state that on opening the meter it can specifically said the size of the replaced coils. " ( 16 ) THE trial Court dismissed the interlocutory application for mandatory injunction directing the CESC Ltd. to restore supply of electricity holding as follows :-"in my considered view, the defendant has disconnected the suit meter on an allegations of pilferage of the same in accordance with the provisions of the Indian Electricity Act as well as 'condition of Supply' whether any such pilferage has actually been done or whether the plaintiff is to be held responsible for the same is to be determined only after full fledged trial on the issue. Therefore, unless the Court comes to a definite conclusion on the same, no order of mandatory injunction for restoration of the said supply can be granted against the defendant at this stage, AIR 1990 SC 882 relied upon by the plaintiff is not applicable to the instant case in view of the Amended Act as well as the 'conditions of Supply. " ( 17 ) AGGRIEVED by the order of the trial Court the plaintiff/petitioner preferred an appeal. The learned Appellate Court dismissed the appeal holding as follows :"the learned Court below rightly observed that whether any pilferage has actually done or whether the plaintiff is to be held responsible for the same are to be determined only after full-fledged trial on the issue. I am also one of the opinion with the learned Court below that unless the Court reaches to a definite conclusion on the same. No order of mandatory injunction for restoration of supply of electricity can be granted against the defendants. " ( 18 ) IT would appear that both the learned Trial Court and the Appellate court took the view that whether or not there has been any pilferage shall be decided at the trial and unless the Court reaches a definite conclusion that there has been no pilferage, there is no question of granting an order of mandatory injunction for restoration of supply of electricity. ( 19 ) ON behalf of the respondent Mr. Gupta placed strong reliance on clause 29 of the Conditions of Supply which provide as follows :"29. (a) Where there is reason to believe that the consumer has been or is guilty of pilferage of electricity, the Officer authorised by the licensee in that behalf may, at any time, enter the consumer's premises and without prejudice to the other rights of the Licensee, cause the supply of electricity to such consumer or premises to be disconnected forthwith without any notice and lodge a Fin with the local Police Station within 24 hours from such disconnection. (b) Supply shall remain disconnected till such time the means of pilferage are removed to the entire satisfaction of the Licensee and the amount assessed for such pilferage along with the additional Security deposit, if required and the disconnection and reconnection charges are deposited by the consumer. (b) Supply shall remain disconnected till such time the means of pilferage are removed to the entire satisfaction of the Licensee and the amount assessed for such pilferage along with the additional Security deposit, if required and the disconnection and reconnection charges are deposited by the consumer. (c) The Officer, authorised by the Licensee in that behalf, shall, at the earliest opportunity, issue a notice to the consumer giving reasons for disconnection and advising the consumer to make his written representation, if any, within the period specified in the notice. (d) The Officer, authorised by the Licensee in that behalf, shall after taking into consideration the written representation of the consumer, or where no such written representation is made, upon expiry of the notice period and upon affording an opportunity of being heard, assess the value of the electrical energy pilfered at penal rate and the quantity of electricity contained therein. The bill of assessment, along with additional Security Deposit, if any, and reconnection and disconnection charges, shall be provided to the consumer at the earliest after expiry of the notice period. (e) If in the course of assessment of the energy pilfered and the quantity of electricity contained therein the consumer is unable to satisfy the Officer authorised by the Licensee as to the load, hours of daily use, diversity factor, load factor, as applicable, and if there be no other reasonable means to affix them, the following basis shall apply : (a) The load shall be taken as highest of : (i) the load observed during inspection; (ii) the connected load ; (Hi) the contractual/sanctioned load. (b) The hours of use as ascertained by the Licensee based on local enquiry/information/reports available or in absence of any such information, 12 hours per day. (c) A load factor of 0. 5. (f) If in the course of assessment, the consumer is unable to satisfy the officer authorised by the Licensee in that behalf, as to the period during which pilferage had taken place and in the absence of any other reliable evidence or date available to the Licensee, the period of assessment shall be taken as one year from the date of detection or from the date of initial connection, whichever is less. " ( 20 ) MR. Gupta contended that according to respondent's Officers, the petitioner was found to have been guilty of pilferage of electricity. " ( 20 ) MR. Gupta contended that according to respondent's Officers, the petitioner was found to have been guilty of pilferage of electricity. Therefore, supply was withdrawn. The petitioner was told the reasons for disconnection. He was told that he could make a representation as regards the correctness of the estimated pilfered quantity of electricity within 21 days. But the petitioner did not make any representation. Therefore, the assessment was made exparte. There is nothing wrong in doing so. The Courts below have rightly held that unless the suit is finally heard and it is found that there has been no pilferage, no relief can be granted to the petitioner. ( 21 ) MR. Roy, learned Advocate appearing for the petitioner has disputed each of the submissions made by Mr. Gupta. ( 22 ) THE Conditions of Supply relied upon by Mr. Gupta are stated to have been framed and sanctioned by the State Government under Section 21 of the Indian Electricity Act, 1910. It would therefore be appropriate to notice the provisions of Section 21 of the Act of 1910 :"section 21. Restrictions on licensee's controlling or interfering with use of energy.- (1) A licensee shall not be entitled to prescribe any special form of appliance for utilising energy supplied by him, or save as provided in any conditions made under sub-section (2) or by section 26, sub-section (7), in any way to control or interfere with the use of such energy : provided, that no person may adopt any form of appliance, or use the energy supplied to him, so as unduly or improperly to interfere with (a) the safety or efficient working of a licensee's electric supply- lines or other works; or (b) the supply of energy by the licensee to any other person. (2) A licensee may, with the previous sanction of the State Government, given after consulting the State Electricity Board and also the local authority, where the licensee is not the local authority, make conditions no inconsistent with this Act or with his licence or with any rules made under this Act, to regulate his relations with persons who are or intend to become consumers, and may, with the like sanction given after the like consultation, add to or alter or amend any such conditions; and any conditions made by a licensee without such sanction shall be null and void : provided that any such conditions made before the 23rd of January, 1922 shall, if sanctioned by the State Government on application made by the licensee before such date as the State Government may, by general or special order, fix in this behalf, be deemed to have been made in accordance with the provisions of this sub-section. (3) The State Government may, after the like consultation, add any new condition or cancel or amend any condition or part of a condition previously sanctioned under sub-section (2) after giving to the licensee not less than one month's notice in writing of its intention so to do. (4) Where any difference or dispute arises as to whether a licensee has prescribed any appliance or controlled or interfered with the use of energy in contravention of sub-section (1), the matter shall be either referred to an Electrical Inspector and decided by him or, if the licensee or consumer so desires, determined by arbitration. " ( 23 ) CLAUSE 32 of the Conditions of Supply relied upon by Mr. Gupta provides as follows :"nothing in these conditions or in any agreement between the licensee and the consumer shall abridge or prejudice the rights of the licensee under his licence and under the acts of the Government of india or the Government of West Bengal or any Rule thereunder. " ( 24 ) APROPOS Clause 32 of the Conditions of Supply the relevant provisions of the Act of 1910 as amended by the State of West Bengal are as follows :"section 39. " ( 24 ) APROPOS Clause 32 of the Conditions of Supply the relevant provisions of the Act of 1910 as amended by the State of West Bengal are as follows :"section 39. Theft of energy.- (1) Whoever dishonestly abstracts, consumes or uses any energy shall be punishable with imprisonment for a term which may extend to three years, or with fine which shall not be less than one thousand rupees, or with both; and if it is proved that any artificial means or means not authorised by the licensee exist for the abstraction, consumption or use of energy by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of energy has been dishonestly caused by such consumer. ""section 39. (2) - The licensee may, without prejudice to his right to institute pros'ecution for theft of energy under sub-section (1), cut off the supply and for that purpose cut or disconnect the 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 time as the artificial means or means not recognised by the licensee dishonestly caused by the consumer for abstraction, consumption or use of energy, continue to exist and no longer : provided that no officer below the rank of Divisional Engineer or district Engineer of the licensee shall cut or disconnect the electric supply-line or other works, being the property of the licensee : provided further that if any consumer is aggrieved by such disconnection, he may apply to the Electrical Inspector having jurisdiction within fifteen days of such disconnection, and the Electrical Inspector may order reconnection or may reject the application for reasons to be recorded in writing after giving the parties concerned an opportunity of being heard [vide W. B. Act 45 of 1994, Section 8 (w. e. f. date to be notified)],""section 39-A. Power to enter premises etc. for search and seizure.- Without prejudice to the provision of the Code of Criminal procedure, 1973 relating to search and seizure, where any officer authorised by the licensee has reasons to believe that any offence under Section 39 of this Act has been or is being, or is about to be committed in any premises, vessels or other places, he may, with such assistance as he thinks fit, at any time :- (a) enter, inspect and search premises, vessels or places and may use such minimum force as amy be necessary for the purpose ; (b) seize any means which may be found on search to have been dishonestly caused for abstraction, consumption or use of energy. " ( 25 ) IT would thus appear that drastic powers have been conferred by the statute on the respondent which may even take away one's livelihood and thereby make inroads on his right to life guaranteed under Article 21. Power to enter any premises at any time is obviously on invasion of the rights, privacy and freedom of the citizen. Such drastic powers can only be exercised where there are sufficient reasons to do so. Moreover, the authority vested with such powers is also expected to act bona fide in the exercise of its powers. On the top of that such powers must be exercised in a proper and fair manner. Unless specifically excluded such an obligation on the part of the authority shall be presumed. Reference in this regard can be made to the law laid down by the Apex Court in the case of Dr. R. . L. Yadav v. State of Bihar, reported in (1994)5 SCC 267 . In Paragraph 6 it was held as follows :- "the concept of natural justice is not a static one but is an ever expanding concept. In the initial stages it was thought that it had only two elements, namely, (i) no one shall be a Judge in his own cause and (ii) no one shall be condemned unheard. With the passage of time a third element was introduced, namely, of procedural reasonableness because the main objective of the requirement of rule of natural justice is to promote justice and prevent its miscarriage. With the passage of time a third element was introduced, namely, of procedural reasonableness because the main objective of the requirement of rule of natural justice is to promote justice and prevent its miscarriage. Therefore, when the legislature confers power in the State Government to be exercised in certain circumstances or eventualities, it would be right to presume that the legislature intends that the said power be exercised in the manner envisaged by the statute. If the statute confers drastic powers it goes without saying that such powers must be exercised in a proper and fair manner. Drastic substantive laws can be suffered only if they are fairly and reasonably applied. In order to ensure fair and reasonable application of such laws Courts have, over a period of time, devised rules of fair procedure to avoid arbitrary exercise of such powers. True it is, the rules of natural justice operate as checks on the freedom of administrative action and often prove time-consuming but that is the price one has to pay to ensure fairness in administrative action. And this fairness can be ensured by adherence to the expanded notion of rule of natural justice. Therefore, where a statute confers wide powers on an administrative authority coupled with wide desertion, the possibility of its arbitrary use can be controlled or checked by insisting on their being exercised in a manner which can be said to be procedurally. fair. Rules of natural justice are, therefore, devised for ensuring fairness and promoting satisfactory decision-making. Where the statute is silent and a contrary intention cannot be implied the requirement of the applicability of the rule of natural justice is read intc it to ensure and to protect the action from the charge of arbitrariness. Natural justice has thus secured a foothold to supplement enacted law by operating as an implied mandatory requirement thereby protecting it from the vice of arbitrariness. Courts presume this requirement in all its width as implied unless the enactment supplies indications to the contrary as in the present case. This Court in A. K. Kraipak v. Union of india, reported in (1969)2 SCC 262 . after referring to the observations in State of Orissa v. Dr. (Miss) Binapani Dei, reported in AIR 1967 SC 1269 observed as under :"the aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. after referring to the observations in State of Orissa v. Dr. (Miss) Binapani Dei, reported in AIR 1967 SC 1269 observed as under :"the aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it. " ( 26 ) THERE is nothing in the Conditions of supply relied upon by Mr. Gupta or the relevant provisions of the Act of 1910 which might suggest that applicability of this salutary principle of natural justice was excluded or intended to be excluded. ( 27 ) THE House of Lords in the beginning of the 20th Century in the case of Board of Education v. Rice, reported in 1911-13 All. E. R. 36 at page 38 laid down the law as follows :-"comparatively recent statutes have extended if they have not originated, the practice of imposing upon Departments or officers of state the duty of deciding or determining questions of various kinds. In the present instance, as in many others, what comes up for determination is a matter to be settled by discretion, involving no law. It will, i suppose, usually be of an administrative kind; but sometimes it will involve matter of law as well as matter of fact, or even depend upon matter of law alone. In such cases the Board of Education will have to ascertain the law and also to ascertain the facts. 1 need not add that in doing either they must act in good faith and listen fairly to both sides, for that is a duty lying upon everyone who decides anything. But I do not think that they are bound to treat such a question as though it were a trial. They have no power to administer an oath, and need not examine witnesses. They can obtain information in any way that they think best, always giving a fair opportunity to those who are parties to the controversy of correcting or contradicting any relevant statement prejudicial to their view. Provided that this is done, there is no appeal from the determination of the Board under Section 7 (3) of this Act. They can obtain information in any way that they think best, always giving a fair opportunity to those who are parties to the controversy of correcting or contradicting any relevant statement prejudicial to their view. Provided that this is done, there is no appeal from the determination of the Board under Section 7 (3) of this Act. The board have, of course, no jurisdiction to decide abstract questions of law but only to determine actual concrete differences that may arise, and as they arise, between the managers and the local education authority. The Board is in the nature of the arbitral tribunal, and a Court of law has no jurisdiction to hear appeal from their determination, either upon law or upon fact. But if the Court is satisfied either that the Board have not acted judicially in the way which I have described, or have not determined the question which they are required by the Act to determine, then there is a remedy by mandamus and certiorari. " ( 28 ) THE Apex Court in the case of Dr. R. L. Yadav v. State of Bihar (supra) laid down the law as regards the obligation of the authority in paragraph 10 as follows :". . . . . . . . . . . . . . . IT is obvious from the plain language of this sub-section that the underlying idea is that the power may be exercised in public interest, that is, to protect the Statutory Board from harm that may be caused to it by a Chairman/member who is incapable of working or who refuses to work or conducts himself in a manner injurious to the board's interest. The matter is left to the subjective satisfaction of the state Government which subjective satisfaction must be reached on relevant material on record and not on the whim and sweet will of the government. The power cannot be exercised unless relevant material is placed before the State Government on the basis of which the State government as a reasonable person is able to conclude that one or more of the conditions mentioned in the sub-section exists and therefore, it is necessary to exercise power of removal to safeguard the board from harm. The power cannot be exercised unless relevant material is placed before the State Government on the basis of which the State government as a reasonable person is able to conclude that one or more of the conditions mentioned in the sub-section exists and therefore, it is necessary to exercise power of removal to safeguard the board from harm. The power is clearly coupled with the twin duty, firstly to ensure that circumstances do exist for the exercise of the power of removal of the Chairman or Member, as the case may be, and secondly to safeguard the institution from harm that they may be caused by the continuance of such Chairman or Member on the Board. In the ultimate analysis the power has to be exercised in public interest and for public good because the State Government is duty bound to protect the image and credibility of the Board so that people's faith in the board is not shaken. Of course, if the State Government exercises the power vested in it under the said sub-section and if the exercise of such power is challenged in Court, the State Government will have to satisfy the Court that it exercised the power bona fide and on material relevant to establishing the existence of the factual situation necessary for exercise of the said power. That can at best be the extent of judicial scrutiny. . . . . . . . . . . . . . . . . . . " ( 29 ) THE power of entering the consumer's premises at any time is analogous to the power granted under Section 132 of the Income Tax Act which may be noticed :"132. Search and seizure. (1) Where the Director General or Director or the Chief Commissioner or Commissioner or any such Joint Director or Joint Commissioner as may be empowered in this behalf by the board, in consequence of information in his possession, has reason to believe that (a ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (b ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (b ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (c) any person is in possession of any money, bullion, jewellery or other valuable article or thing represents either wholly or partly income or property which has not been, or would not be disclosed for the purposes of the Indian Income-tax Act, 1922 (11 of 1922) or this Act (hereinafter in this section referred to as the undisclosed income or property),. [then- (A) the Director General or Director or the Chief Commissioner or commissioner, as the case may be, may authorise any Joint Director, joint Commissioner, Assistant Director or Deputy Director, Assistant commissioner or Deputy Commissioner or Income-tax Officer, or (B) such Joint Director or Joint Commissioner, as the case may be, may authorise any Assistant Commissioner or Deputy Commissioner or income-tax-Office r, (the officer so authorised in all cases being hereinafter referred to as the authorised officer) to] (i) enter and search any building, place, vessel, vehicle or aircraft where he has reason to suspect that such books of account, other documents, money, bullion, jewellery or other valuable article or thing are kept; (ii) break open the lock of any door, box locker, safe, almirah or other receptacle for exercising the powers conferred by clause (i) where the keys thereof are not available; (iia) search any person who has not got of, or is about to get into or is in the building, place, vessel vehicle or aircraft, if the authorised officer has reason to suspect that such person has secreted about his person any such books of account, other documents, money, bullion, jewellery or other valuable article or thing; (iib) require any person who is found to be in possession or control of any books of account or other documents maintained in the form of electronic record as defined in clause (t) of sub-section (1) of Section 2 of the Information Technology Act, 2000 (21 of 2000), to afford the authorised officer the necessary facility to inspect such books of account or other documents; (iii) seize any books of account, other documents, money, bullion, jewellery or other valuable article or thing found as a result of such search. " ( 30 ) CONSTRUING Section 132 the Apex Court has held that recording of reasons before authorising search is a necessary prerequisite and the power must be used bona fide. Reference in this regard can be made to the case of ITO, Circle-B, Meerut v. M/s. Seth Brothers, reported in (1969)2 SCC 324 , in paragraph 8 it was held as follows :"the section does not confer any arbitrary authority upon the Revenue officers. The Commissioner or the Director of Inspection must have, in consequence of information, reason to believe that the statutory conditions for the exercise of the power to order search exist. The Commissioner or the Director of Inspection must have, in consequence of information, reason to believe that the statutory conditions for the exercise of the power to order search exist. He must record reasons for the belief and he must issue an authorisation in. favour of a designated officer to search the premises and exercise the powers set out therein. The condition for entry into and making search of any building or place is the reason to believe that any books of account or other documents which will be useful for, or relevant to, any proceeding under the Act may be found. If the Officer has reason to believe that any books of Account or other documents would be useful for, or relevant to, any proceedings under the Act, he is authorised by law to seize those books of account or other documents, and to place marks of identification therein, to make extracts or copies therefrom and also to make a note or an inventory of any articles or other things found in the course of the search since by the exercise of power and serious invasion is made upon the rights, privacy and freedom of the tax-payer, the power must be exercised strictly in accordance with law and only for the purposes for which the law authorises it to be exercised. If the action of the officer issuing the authorisation or of the designated officer is challenged the officer concerned must satisfy the court about the regularity of his action. If the action is maliciously taken or power under the section is exercised for a collateral purpose, it is liable to be struck down by the Court. If the conditions for exercise of the power are not satisfied the proceeding is liable to be quashed. But where power is exercised bona fide, and in furtherance of the statutory duties of the tax officers any error of judgment on the part of the Officers will not vitiate the exercise of the power. Where the commissioner entertains the requisite belief and for reasons recorded by him authorises a designated officer to enter and search premises for books of account and documents relevant to or useful for any proceeding under the Act, the Court in a petition by an aggrieved person cannot be asked to substitute its own opinion whether an order authorising search should have been issued. Again, any irregularity in the course of entry, search and seizure committed by the officer acting in pursuance of the authorisation will not be sufficient to vitiate the action taken, provided the officer has in executing the authorisation acted bona fide. " ( 31 ) THIS Court is therefore of the view that Clause 29 (a) of the conditions of Supply authorises an Officer of the licensee to enter the consumer's premises at any time provided (a) the Officer has reasons to believe that the consumer has been guilty of pilferage or (b) where the consumer is in fact guilty of pilgerage. In either case the Officer concerned has to record his reasons before entering the consumer's premises. After he has gained entry he can disconnect supply of electricity provided the consumer is in fact found to be guilty of pilferage and in doing so he must act in utmost good faith. ( 32 ) IN case the act of disconnecting the supply of electricity is challenged in Court the respondent would have to establish : (A) that the procedural safeguard that is recording of reasons prior to entering the premises was duly observed; (b) that the consumer was in fact guilty of pilferage of electricity which is lacked by legal evidence and (c) that the power of disconnection was exercised bona fide. ( 33 ) THIS Court is further of the view that both the learned Courts below adopted a wrong standard, asked a wrong question and reached a wrong conclusion. The proper questions to ask were those indicated above. Grant or refusal of an order of mandatory injunction for restoration of supply of electricity should depend on an answer to the points indicated above which should be posed as questions. If the questions are all answered in the negative, then an order in a mandatory form for restoration of the supply of electricity should be issued as a matter of course, If however only the first question is answered in the negative, the Court may be slow in the exercise of its discretion. If the second question is also answered in the negative the court shall not suffer the wrong because the jurisdictional fact was absent. The third question is of general importance. If the second question is also answered in the negative the court shall not suffer the wrong because the jurisdictional fact was absent. The third question is of general importance. Even in a case where pilferage is satisfactorily established the consumer can be made to suffer the legal consequences but in doing so the authority is obliged to exercise its powers bona fide. It must be remembered that the legislature has conferred the powers on the authority so that it can use the same in its self-defence. But those powers can never be used for an oblique or collateral purpose nor for the purpose of oppression. ( 34 ) LET us now have a look on the law governing the grant of mandatory injunction at an interlocutory stage. In the case of Thompson v. Park, (1944)2 All ER 477 Lord Goddard, C. J. , observed : "the status quo that could be preserved was the status that existed before these illegal and criminal acts on the part of the defendant. It is a strange argument to address to a Court of law that we ought to help the defendant who has trespassed and got himself into these premises in the way in which he has done and say that that would be preserving the status quo and that it would be a good reason for not granting an injunction. " This observation was quoted with approval by a Division Bench of this Court in the case of Indian Cable Co. Ltd. v. Sumitra, reported in AIR 1985 Cal 248 . ( 35 ) THE Apex Court in the case of D. C. Warden v. C. S. Warden reported in AIR 1990 SC 867 laid down the following law :"the relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. " ( 36 ) AFTER we have ascertained the law governing the field, let us now have a look at the controversy and the material produced by the parties. . ( 37 ) THE petitioner in its interlocutory application for mandatory injunction alleged as follows :-"on 7. 3. " ( 36 ) AFTER we have ascertained the law governing the field, let us now have a look at the controversy and the material produced by the parties. . ( 37 ) THE petitioner in its interlocutory application for mandatory injunction alleged as follows :-"on 7. 3. 2002 four persons claiming to be the employees of the defendant/company came to inspect the meter with measuring instrument, check the seal and without informing the plaintiff and without any notice disconnected the supply of electricity deliberately, arbitrarily and without just cause. On 8. 3. 2002 the plaintiff went to the Regional Office of the defendant met with the Revenue Officer and reported the incident to him. The Revenue Officer asked the plaintiff to complain to Manager-Ill loss Control Cell, CESC Ltd. The plaintiff wrote letter dated 8. 3. 2002 and submitted it to the Manager-IIl, Loss Control Cell of the defendant for the restoration of supply of electricity immediately. In the said letter the plaintiff disclosed that the plaintiff is engaged in the production of critical important items and R and D of the Defence and Indian Railways and for the restoration of supply of electricity. Finding no action on the part of the defendant and finding that there is disruption of defence products for non-supply of electricity the plaintiff wrote another letter dated 11. 3. 2002 calling upon the defendant to restore the supply of electricity. Till that date the plaintiff was not aware as to why the supply of electricity was disconnected. All on a sudden on 15. 3. 2002 the plaintiff received letter dated 7. 3,2002 sent under registered post with A/d on 12. 3. 2002 issued by the defendant alleging therein about the pilferage of electricity by the plaintiff. The said letter was written by the Deputy Manager, Loss Control cell of the defendant/company. The plaintiff states that the letter dated 7. 3. 2002 containing untrue allegations. The plaintiff did not make any pilferage of electricity at Premises No, 422, Purbachal Main Road, calcutta-700078. The defendant did not mention in the said letter dated 7. 3. 2002 the name of the persons who made the inspection. It is denied that on 7. 3. 2002 CESC Ltd. 's seal on the cut-outs at the service installation were missing and electricity was being drawn directly from the service cut-outs. The defendant did not mention in the said letter dated 7. 3. 2002 the name of the persons who made the inspection. It is denied that on 7. 3. 2002 CESC Ltd. 's seal on the cut-outs at the service installation were missing and electricity was being drawn directly from the service cut-outs. It is denied that the original seals attached by the CESC Ltd. on the body of the meters were tampered with. It is denied that the current coils inside the meters have been replaced by non-standard current coils of higher size. It is denied that the plaintiff made any unauthorised access to the metering system in order to dishonestly obstruct/consume/use energy in violation of sections 39, 40 and 44 and Clause Vl (1) Second Proviso (b) of the schedule of the Indian Electricity Act, 1910, Rule 56 of the Indian electricity Rules, 1956. The plaintiff is not guilty of pilferage as alleged. The plaintiff states that Deputy Manager, Loss Control Cell is not a competent person to carry out function as mentioned in Section 29a of the Condition of Apply. The defendant has not disclosed the date of FIR allegedly lodged to the Local Police Station against the plaintiff. The plaintiff states that the contents of the letter dated 7. 3. 2002 is purposive, illegal and has been issued with ulterior motive. The plaintiff is not liable to pay the sum of Rs. 44,035. 57p or additional security/disconnection/reconnection charge and other demand made by the defendant by the purported letter. After the receipt of the letter the plaintiff gave the reply to the purported notice by the letter dated 22. 4. 2002 and 29. 4. 2002. The plaintiff did not receive any notice under Section 24 (1) of the Indian electricity Act prior to disconnection. The plaintiff through Yetazu Instrumentation, the manufacturers of various electrical meters got the Meter No. 2329508 externally inspected. The said company after the external inspection of the aforesaid meter has been pleased to observe the following : (a) That the lead seals (3 numbers) bearing mark of CESC on the body of the meter are in order. (b) That the current coil as externally visible through the front panel glass does not bear any mark of rating or specifications. There are other observations too. The plaintiff craves leave to refer the letter dated 20. 6. (b) That the current coil as externally visible through the front panel glass does not bear any mark of rating or specifications. There are other observations too. The plaintiff craves leave to refer the letter dated 20. 6. 2002 issued by the Yetazu Instrumentation at the time of hearing. The plaintiff craves leave to refer at the time of hearing. The plaintiff craves leave to refer all the letters at the time of hearing. " ( 38 ) THE respondent in its affidavit-in-opposition used in the trial Court alleged as follows :a"that the allegation made in paragraphs No. 2 (1) and 2 (m) are denied as false, misconceived and motivated. It is specifically denied that the plaintiff was getting difficulties in getting the supply of electricity since the month of January, 2002 after alleged fringle cheap and defective plastic body meter was installed replacing the old steel body meter. The defendant states that newly installed meter has been manufactured with modern technology and do more accurate. It is further denied that the plaintiff had occasional problem of phase fault. It is further denied that such disruption of work continued and the matter was reported to the service department of the defendant It is further denied that men and agents of the defendants used to check up after receiving complaint from the plaintiff or that after necessary repair they used to seal the cut-outs or that sometimes they used to leave cut-outs without properly sealing with the assurance to get cut-outs sealed properly next time. It is further denied that the plaintiff also noticed that the meter continued to give reading even if the main switch was put off. It is further denied the matter was reported to the defendant with a demand to rep/ace the meter. It is further denied in the 3rd week of february, 2002 the men and agents of the defendant company came and inspected the meter. It is also dined that on 4th week of February, 2002 two more persons claiming to be the persons of the defendant company wanted to inspect the meter. It is further denied that the representative of the plaintiff allowed them to inspect the meter. It is further denied that in course of inspection of the meter they twisted up and down the three lead seals of the meter and thereafter left. It is further denied that the representative of the plaintiff allowed them to inspect the meter. It is further denied that in course of inspection of the meter they twisted up and down the three lead seals of the meter and thereafter left. It is further denied that they came just after a few days with few more persons claiming to be the persons of the defendant/company to inspect the meter. It is further denied that they also turned up and twisted the seals of the meter in the same fashion as it was done earlier and left the spot in spite of the protest of the plaintiff. It is further denied that on 7,3. 2002 the officers of the Loss Control Cell disconnected the supply of electricity without informing the plaintiff anything and deliberately, arbitrarily and without any just cause. In this connection, the defendants states as follows : i) Widespread pilferage of electricity is causing immense tosses to the defendant and making it virtually impossible for the defendant to carry on the business. Apart from causing losses to the defendant widespread pilferage is also causing immense loss to the government revenue. ii) Furthermore unauthorised and/or. Illegal abstraction of energy exposes the entire premises including adjacent areas to the risk of fire and other hazards including electric shock. Illegal abstraction and/or pilferage also upsets equitable supply of electricity to the consumers. iii) The defendant being a public limited company is run entirely out of its own resources raised from inter alia sale of electricity to consumers. Losses suffered by the defendant including losses on account of pilferage have a direct relationship with the fixation of tariff. As such the consumers in general have to suffer for the unauthorised and illegal acts of dishonest consumers. iv) In the circumstances, it is imperative that effective steps be taken by the defendant to prevent pilferage of electricity and strong action be taken against consumers who are found to have indulged in unauthorised and illegal acts. v) To check pilferage of electricity the defendant has constituted a Loss control Cell. From time to time officials of the Loss Control Cell of the defendant including senior technically competent personnel visit the premises of the consumers and make surpirse inspection of the meters installed threat. v) To check pilferage of electricity the defendant has constituted a Loss control Cell. From time to time officials of the Loss Control Cell of the defendant including senior technically competent personnel visit the premises of the consumers and make surpirse inspection of the meters installed threat. Such surprise inspections are carried out at random and also when the defendant on receipt of information or otherwise has reason to suspect that the consumer might be resorting the dishonest abstraction of electricity. vi) No prior notice of such inspection is required to be given. The defendant is entitled in law as also under its terms and conditions of supply of electricity to the consumers to inspect the meter of consumers at any reasonable time. Furthermore, prior notice is not expedient as such prior notice would put an errant consumer on guard and defeat the very purpose of surprise inspection. vii) However, the representatives of the consumers present at the concerned premises are invariably informed of the reasons for inspection of the consumers' premises. viii) One of the specific conditions of supply of electricity by the defendant to the plaintiff at all material times was and still is that the plaintiff would not tamper or even handle the said meter and/or wires and circumstances associated therewith or allow/permit the same to be handled by any person other than the authorised representative f the defendant. ix) It is an express and/or implied term of the conditions of supply of electricity by the defendant to the plaintiff that in the event the said meter was found to have been unauthrisedly handled or tampered with the defendant would be entitled to forthwith disconnect supply of electricity to the said premises. Provisions are also to be found in the Indian Electricity Act, 1910 and the Rules and Regulations framed thereunder. x) Before the said meters were installed the same were duly tested at the laboratory of the defendant and the proprietary seals of the defendant were punched to the service cut-outs. The main object of affixing and/or punching the seals of the defendant on the said meters is to prevent unauthorised handling and/or tampered with the said meters. xi) That during routine surveillance Mr. Suvankar Pal, Senior Engineer, loss Control Cell had been to the premises of the plaintiff on 7. 3. 2002 at about 12. The main object of affixing and/or punching the seals of the defendant on the said meters is to prevent unauthorised handling and/or tampered with the said meters. xi) That during routine surveillance Mr. Suvankar Pal, Senior Engineer, loss Control Cell had been to the premises of the plaintiff on 7. 3. 2002 at about 12. 30 hours and found that the defendant company's seals on the cut-outs at the service installation were missing and the electricity was being drawn directly from the service cut-outs. The original seals affixed by the defendant-company on the body of the meter were tampered with and the current coils found replaced by non-standard higher size coils. This shows that the registered consumer had gained unauthorised access to the metering system in order to dishonestly abstract/consumed/used energy in violation of Sections 39, 40, 44 and Clause Vl (1) second proviso (b) of the schedule to the Indian Electricity Act, 1910 and Rule 56 of the indian Electricity Rules of 1956. xii) The plaintiff had tampered with the said meter to avoid registration of actual consumption and thereby defrauded the defendant of its legitimate dues on account of electricity consumed by the plaintiff at the said premises in other words the plaintiff was committing pilferage of electricity at the said premises. xiii) The aforesaid acts were not only in flagrant violation of the terms and conditions of supply of electricity by the defendant to the plaintiff but also in violation of the statutory provision of the Indian electricity Act, 1910 and the Rules and Conditions of Supply framed thereunder apart from being acts of crime. " ( 39 ) BESIDES making the aforesaid allegations the respondent relied pon documents which have also been annexed to the opposition used in this court. We shall now examine those documents. ( 40 ) THE petitioner has relied upon report of an independent agency to show that there has been no tampering either with the seals on the body of the meter or with the current coils. ( 41 ) THE petitioner applied for a direction upon the Electrical Inspector, a statutory authority to make an on-the-spot enquiry into the alleged tampering which has been noticed hereinabove. It has also been noticed above that the respondent vehemently opposed any such enquiry by the statutory authority. ( 41 ) THE petitioner applied for a direction upon the Electrical Inspector, a statutory authority to make an on-the-spot enquiry into the alleged tampering which has been noticed hereinabove. It has also been noticed above that the respondent vehemently opposed any such enquiry by the statutory authority. This Court has been informed that the application is still pending, ( 42 ) THE trend of monthly consumption of electricity by the petitioner, furnished by the respondent itself and noticed above does not suggest, far less shows any reduction in consumption. It is not alleged by the respondent that there has either been any increase in the number of machinery or working hours of the petitioner which was not reflected in the consumption registered by the meter. The figures of consumption disclosed by the respondent do not show any significant rise or fall. In its opposition the respondent has not even disclosed any ground or grounds which led or could have led the respondent to believe that the petitioner "has been or is guilty of pilferage of electricity". ( 43 ) LET us now examine the material produced by the respondent. We have already noticed and set out hereinabove the first document in chronological order which is the written compliant to the police which obviously was made after detection of the alleged pilferage. It would appear that there is even no allegation of any pilferage in the said complaint. The allegation there is restricted to "during notice surveillance the undersigned, went to the above address, today at above address today at about 12-30 hours and observed that the Meter holder had tampered the Meter body seals to get access to the internal mechanism of the Meter for maloperating and reducing actual meter registration. " ( 44 ) COMPARE this written complaint which is annexure R-4 to the affidavit used by the respondent with the memo prepared by the Senior engineer Sri Pal the relevant portion whereof has also been set out hereinabove. No elaborate reasoning is required to show that great deal of improvement has been made in annexure R-2 compared to annexure R-4 the complaint made to the police. The alleged replacement of the current coils is not there in annexure R-4. ( 45 ) COMPARE annexure R-2 with annexure R-3 to the affidavit-in-opposition used by the respondent also dated 7. 3. 2002. The alleged replacement of the current coils is not there in annexure R-4. ( 45 ) COMPARE annexure R-2 with annexure R-3 to the affidavit-in-opposition used by the respondent also dated 7. 3. 2002. It would at once become clear that further improvement has been made in annexure R-3. To make it more visible we shall once again set out Reason (III) appearing in annexure R-2 is as follows :- "cut-out seals missing. " ( 46 ) IN annexure R-3 the self-same ground has been improved which is as follows :-"cesc Ltd's seals on the cut-outs at the service installation were missing and electricity was being drawn directly from the service cut-outs. " ( 47 ) NOW compare annexure R-3 with the following statement made on oath by Sri Ashim Chakraborty, Deputy Manager of the respondent :-"i state that during inspection it was found that selas on the cut-outs were missing and the seals on the body of the meter were tampered with and the current coils replaced by non-standard higher size coils. Although two wires connected with the cut-outs could not be found during inspection the defendant states that missing selas of the cut-out go to show that the plaintiff was directly drawing electricity from the cut-outs. I further state that on opening the meter it can specifically be said the size of the replaced coils. " ( 48 ) IT would thus appear that in the complaint to the police there was no allegation with regard to any interference with the cut-out. In the memo prepared by Mr. Pal which is annexure R-2, an allegation was made that cut-out was interfered with. In annexure R-3 it was alleged that "electricity was being drawn directly from the service cut-out". Each of these three documents is dated 7th March, 2002. The allegation that "electricity was being drawn directly from the service cut-out" has been totally given up in the statement made on oath by Sri Ashim Chakraborty set out hereinabove. ( 49 ) ACCORDING to Mr. Ashim Chakrabory's statement noticed above, the size of the replaced coils can be ascertained on opening the meter. If that is so, then the allegation with regard to replacement of the current coils with higher size non-standard coils, to be found in annexure R-2, is untrue. ( 49 ) ACCORDING to Mr. Ashim Chakrabory's statement noticed above, the size of the replaced coils can be ascertained on opening the meter. If that is so, then the allegation with regard to replacement of the current coils with higher size non-standard coils, to be found in annexure R-2, is untrue. ( 50 ) THIS analysis goes to show unmistakably that the entire allegation of pilferage and replacement of current coil is a cooked up story. There is no material to show that the lead seals on the body of the meter were tampered except for a bald allegation. It has already been noticed that no reasons are even alleged to have been recorded before entering the premises of the petitioner for inspection. No such recorded reason has been disclosed by the respondent. When the supply of electricity to the petitioner was disconnected without any reason, not to talk of sufficient reason, and huge sum was demanded as a precondition for restoration of supply, the conclusion is irresistible that the entire activity was anything but bona fide. The improper intention of the respondent is further demonstrated by the fact that in making the so-called assessment dated 11. 6. 2002, (a) the special note appearing in annexure R-2 that all the machines do not run simultaneously was not taken into consideration at all; (b) the load factor appearing in clause 29 of the conditions of Supply is 0. 5 whereas in the so-called assessment it has been enhanced to 0. 8; (c) the case of the petitioner that he did not do any wrong was rejected by saying that "they are unconnected and/or have no relevance to the facts and circumstances of the case and also beyond my authority and jurisdiction". ( 51 ) IN the facts and circumstances all the three questions formulated above have to be answered in the negative. ( 52 ) ON 24th September, 2003 the following order was passed :-"mr. Roy learned Advocate appearing for the petitioner prayed for leave to file affidavit in-reply dealing with the allegations contained in the affidavit filed on behalf of the CESC Ltd. in Court today. He may do so on the reopening day. Let this matter appear in the list on the following day marked 'for order' and the same is treated as heard-in-part. He may do so on the reopening day. Let this matter appear in the list on the following day marked 'for order' and the same is treated as heard-in-part. In the meantime, it will be open to the petitioner to pay up the billed amount as raised by CESC Ltd, In the event, the petitioner pays the entire billed amount, the CESC Ltd. shall forthwith reconnect the supply of electricity. The old meter should not be removed if any technical fault is there in the old mater and for that reason supply cannot be restored through the existing old meter, a new meter can be installed without removing the existing old meter. It is made clear that for any purpose except restoration old meter should neither be touched nor should be removed. In case a new meter is required to be installed, the consumer will pay for it. Mr. Gupta learned Advocate appearing for the CESC Ltd. submitted that if the entire payment is made, CESC Ltd. shall restore supply of electricity within 48 hours. This payment shall be made without prejudice to the rights and conditions of the parties pending decision in this application. " ( 53 ) ON 17th September, 2003 when the application was moved it was submitted on behalf of the respondent that the amount of pilfered electricity had been quantified at Rs. 44,035. 55p. ( 54 ) IT appears from the affidavit-in-reply that on 10. 10. 2003 the petitioner tendered a cheque for Rs. 44,035. 55p. in pursuance of the order dated 24. 9. 2003. It appears from the letter dated 13. 10. 2003 addressed by the petitioner to the respondent that the respondent insisted upon payment by cash or D/d or Manager's cheque so that supply can be restored within 48 hours from the date of tender of payment. It further appears form the self-same letter that a Manager's cheque for an identical sum dated 11. 10. 2003 was tendered under the cover of the letter dated 13. 10. 2003. It appears from the letter dated 15. 10. 2003 addressed by the petitioner to the respondents that the respondents refused to accept payment by the Manager's cheque and demanded more money, A xerox copy of the Manager's cheque dated 11. 10. 2003 is appearing at page 19 of the affidavit-in-reply. 10. 2003. It appears from the letter dated 15. 10. 2003 addressed by the petitioner to the respondents that the respondents refused to accept payment by the Manager's cheque and demanded more money, A xerox copy of the Manager's cheque dated 11. 10. 2003 is appearing at page 19 of the affidavit-in-reply. Irrespective of whether more money was demanded or not the fact remains that the payment was not accepted. Naturally, restoration of supply of electricity was not made and there is no explanation as to why or how could the respondent afford to disobey the order passed by this Court. ( 55 ) FOR the reasons aforesaid the petition succeeds. The respondent is directed to restore the supply of electricity within 48 hours without insisting upon any payment whatsoever. The respondent is also restrained by an order of injunction from disconnecting the supply of electricity after restoration on the basis any alleged pilferage or tampering of meter or any cut-out which is the subject matter of the present suit. The respondent shall also pay costs of this application assessed at Rs. 5,000/ -. It is made clear that the findings recorded herein are for the purpose of the interlocutory application and shall not stand in the way of the trial Court arriving at a different finding after the suit final heard. Later : ( 56 ) PRAYER for stay, as made by the learned Advocate, for the CESC ltd. , is considered and rejected. ( 57 ) A copy of the conditions of supply submitted to this Court is returned to the learned Advocate, for the petitioner.