Bihar State Electricity Board, vidyut Bhawan, Bailey Road, patna, Through Its Chairman v. Nand Kumar S/o Sri Bishwanath pandit, R/o Near Check Post, didarganj, P. S. -malsalami Patna city, Distt. -patna (In 518) the Bihar State Electricity Board, vidyut Bhawan, Bailey Road, patna, Through Its Chairman &
2010-03-18
DIPAK MISRA, MIHIR KUMAR JHA
body2010
DigiLaw.ai
JUDGEMENT 1. As per Dipak Misra, CJ.These two appeals being interlinked and interconnected in view of the assail to the order dated 28.10.2009 passed by the learned Single Judge in CWJC No. 11154 of 2009 from various spectrums by the consumer as well as the supplier, namely the Bihar State Electricity Board (for short, the Board), they were heard analogously and are disposed of by a singular order. 2. Before we proceed to deal with the factual matrix and the contentions advanced at the Bar, we are inclined to state that a prefatory note is necessitous. The term Law is employed and taken recourse to herald the incandescent attributes of civilization and, the advancement of society is conditioned by the appropriate legal evolution. Sometimes the law is conceived as jus naturale and, at times as jus civile and at some other time it is equated with jus honorarium. But the term jus is always important. Jus should never succumb to joss. That is why it was said that the law is not the study of words alone, but a penetration into the study of nature within and nature without which are projected through words that have been the moving power of life. For that Simon pure reason, William Shakespeare said, The law hath not been dead though it hath slept. 3. We have commenced with the aforesaid prologue as Mr. S.D. Sanjay, learned counsel appearing for the appellant-consumer would contend with immense vehemence that the provision contained under Section 127 of the Electricity Act, 2003 (for brevity, the Act) not only imposes an onerous condition for preferring the appeal and further the facts in the present case are such where the learned Single Judge should have been well advised to invoke the inherent and equitable jurisdiction of this court under Article 226 of the Constitution of India and not relegated the consumer-appellant to appeal. 4. Presently to the facts in brief. The appellant visited this Court assailing the order passed by the competent authority under Section 126(5) of the Act as well as the order of assessment amounting to Rs. 18 lacs.
4. Presently to the facts in brief. The appellant visited this Court assailing the order passed by the competent authority under Section 126(5) of the Act as well as the order of assessment amounting to Rs. 18 lacs. The learned Single Judge, as is manifest from the order, thought it apt to direct the consumer to prefer an appeal as provided under Section 127 of the Act and further directed that the consumer would deposit at the time of filing of appeal 20% of the final assessment value and on the said condition being satisfied, the appellate authority shall decide the matter finally within one month from the date of filing of the appeal. 5. Be it noted, the supplier-Board. has challenged the said part of the order on the foundation that the learned Single Judge has fallen into grave error by directing 20% of deposit of the final assessment value as the said direction runs contrary to the mandate that has been engrafted under Section 127(2) of the Act. 6. In the appeal preferred by the consumer it is submitted by Mr. S.D. Sanjay that the learned Single Judge has failed to appreciate that this was a case where the writ court should have interfered regard being had to the fact that Section 127 of the Act cannot be solitarily appreciated but has to be appreciated in the backdrop of Section 126 of the Act. He has especially invited our attention to Section 126(5) of the Act. It is apposite to note that Section 126 deals with assessment. Section 126(5) on which emphasis has been laid by Mr. Sanjay, reads as under: "If the assessing officer reaches to the conclusion that unauthorised use of electricity has taken place, it shall be presumed that such unauthorised use of electricity was continuing for a period of three months immediately preceding the date of inspection in case of domestic and agricultural services and for a period of six months immediately preceding the date of inspection for all other categories of services, unless less the onus is rebutted by the person, occupier or possessor of such premises or place." 7. Relying on the said provision, it is propounded by Mr.
Relying on the said provision, it is propounded by Mr. Sanjay, learned counsel for the consumer that in the case at hand, with regard to unauthorised use of electricity and the theft, there is a sea of difference and that apart the period that has been computed is absolutely improper on the face of it. He has put forth that there was an inspection on 20th March, 2009 and the inspection report would reveal in a most unambiguous manner that there was nothing wrong with the meter and everything was in apple-pie-order as far as consumer is concerned. It is urged by him that there was a second inspection on 19.6.2009 and the competent authority has found everything to be in order, but unfortunately the said aspects have not been taken into consideration. It is his submission the said facets vividly exposit a pure question of law which the writ court should have addressed and as that has not been done the order impugned is sensitively susceptible. It is also canvassed by him that a different formula is applied for direct theft and theft through meter and the same could have been penetrated at a glance by the learned Single Judge. In essence, it is proponed that there is no factual dispute. It is his further submission that relegation to appeal is unjust inasmuch as there is a condition of pre-deposit, and hence, the remedy becomes illusory. The learned counsel has urged that when the condition is onerous, the same can be waived and if Section 127 of the Act is appreciated in proper perspective, it is to be treated as directory and not mandatory. Learned counsel has contended that the High Court in exercise of writ jurisdiction can reduce the quantum and when the learned Single Judge has so done, the same cannot be found fault with if the appeal of the consumer does not succeed. To buttress the aforesaid submission, he has commended us to the decisions rendered in J.M. Baxi & Co. Gujarat vs. Commissioner of Customs, New Kandla and Another, (2001)9 SCC 275 , Bhavya Apparels (P) Ltd. and Another vs. Union of India and Another, (2007)10 SCC 129 and Bhavya Apparels (P) Ltd. and Another vs. State of Andhra Pradesh and Others, (2009)3 SCC 177 . 8. Controverting the aforesaid submissions put forth by Mr.
Gujarat vs. Commissioner of Customs, New Kandla and Another, (2001)9 SCC 275 , Bhavya Apparels (P) Ltd. and Another vs. Union of India and Another, (2007)10 SCC 129 and Bhavya Apparels (P) Ltd. and Another vs. State of Andhra Pradesh and Others, (2009)3 SCC 177 . 8. Controverting the aforesaid submissions put forth by Mr. Sanjay, learned counsel for the consumer-appellant, learned counsel for the Board Mr. Prakash Kumar, in oppugnation, contended that the order of assessment has been passed after following due procedure of law and when the same is subject to appeal, the writ court could not have adverted to the same and, therefore, the learned Single Judge has rightly directed the consumer to prefer an appeal but has fallen into error by reducing the statutory deposit which is mandatory. It is also urged by him that the theft was directly from the pole and there has been delineation to that effect as paragraph 3 of the final assessment and in any case, no pure question of law emerges. 9. Before we advert to the stand put forth by Mr. Sanjay, whether the writ court could have dealt with the subject matter like this directly in exercise of jurisdiction under Article 226 of the Constitution of India, we would like to notice a few citations in the field. 10. In Zila Parishad Moradabad vs. M/s Kundan Sugar Mills, AIR 1968 SC 98 , the Apex Court has held as follows: "A provision like Section 128 of the U.P. District Boards Act for an appeal against an assessment to tax is there, but the fact that the petitioner has not availed of it, does not oust the jurisdiction of the High Court to entertain a petition under Article 226 and it is for the High Court to exercise its discretion whether to entertain the petition or not. Where there is nothing to show that the discretion has not been properly exercised by the High Court the Supreme Court would not interfere." 11. In Champalal Binani vs. Commr. of Income Tax, West Bengal, AIR 1970 SC 645 , their Lordships have ruled thus: "......... A writ of certiorari is discretionary: it is not issued merely because it is lawful to do so.
In Champalal Binani vs. Commr. of Income Tax, West Bengal, AIR 1970 SC 645 , their Lordships have ruled thus: "......... A writ of certiorari is discretionary: it is not issued merely because it is lawful to do so. Where the party feeling aggrieved by an order of an Authority under the Income-tax Act has an adequate alternative remedy which he may resort to against the improper action of the authority and he does not avail himself of that remedy the High Court will require a strong case to be made out for entertaining a petition for a writ. Where the aggrieved party has an alternative remedy the High Court would be slow to entertain a petition challenging an order of a taxing authority which is ex facie with jurisdiction. A petition for a writ of certiorari may lie to the High Court, where the order is on the face of it erroneous or raises question of jurisdiction or of infringement of fundamental rights of the petitioner........" 12. In A.V. Venkateswaran vs. R.S. Wadhwani, AIR 1961 SC 1500 , the Apex Court has expressed thus: "The wide proposition that the existence of an alternative remedy is a bar to the entertainment of a petition under Art. 226 of the Constitution unless (1) there was a complete lack of jurisdiction in the officer or authority to take the action impugned, or (2) where the order prejudicial to the writ petitioner has been passed in violation of the principles of natural justice and could, therefore, be treated as void or non est and that in all other cases, Courts should not entertain petitions under Art. 226 or in any event not grant any relief to such petitioners cannot be accepted. The two exceptions to the normal rule as to the effect of the existence of an adequate alternative remedy are by no means exhaustive, and even beyond them a discretion vests in the High Court to entertain the petition and grant the petitioner relief notwithstanding the existence of an alternative remedy.
The two exceptions to the normal rule as to the effect of the existence of an adequate alternative remedy are by no means exhaustive, and even beyond them a discretion vests in the High Court to entertain the petition and grant the petitioner relief notwithstanding the existence of an alternative remedy. The broad lines of the general principles on which the Court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court, and in a matter which is thus pre-eminently one of discretion, it is not possible, or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the Court." 13. In State of U.P. vs. Indian Hume Pipe Co. Ltd., AIR 1977 SC 1132 , it has been held as follows: "In the instant case, the question as to what is the true connotation of the words, "sanitary fittings" and whether the hume pipes manufactured and sold by the respondent were sanitary fittings within the meaning of that expression was a question of law and since the entire material on the basis of which this question could be determined was placed before the Sales Tax Officer and it pointed in one and only one direction, namely that the hume pipes were not sanitary fittings and there was nothing to show otherwise, the High Court was justified in entertaining the writ petition. Moreover, there is no rule of law that the High Court should not entertain a writ petition where an alternative remedy is available to a party. It is always a matter of discretion with the Court and if the discretion has been exercised by the High Court not unreasonably or perversely, it is settled practice of this court not to interfere with the exercise of discretion by the High Court. The High Court in the present case entertained the writ petition and decided the question of law arising in it and in our opinion rightly." 14.
The High Court in the present case entertained the writ petition and decided the question of law arising in it and in our opinion rightly." 14. In M/s Shiv Shanker Dai Mills vs. State of Haryana, AIR 1980 SC 1037 , their Lordships proceeded to state as under: "Where public bodies, under colour of public laws, recover peoples moneys, later discovered to be erroneous levies, the dharma of the situation admits of no equivocation. There is no law of limitation, especially for public bodies, on the virtue of returning what was wrongly recovered to whom it belongs. Nor is it palatable to our jurisprudence to turn down the prayer for high prerogative writs, on the negative plea of alternative remedy since the root principle of law married to justice, is ubi jus ibi remedium." Their Lordships further proceeded to lay down as under: "Article 226 grants an extraordinary remedy which is essentially discretionary, although founded on legal injury. It is perfectly open for the Court, exercising this, flexible power, to pass such order such as public interest dictates and equity projects, Courts of equity may, and frequently do, go much further both to give and withhold relief in furtherance of the public interest than they are accustomed to go where only private interests are involved. Accordingly, the granting or withholding of relief may properly be dependent upon consideration as of public interest...." 15. In Kuntesh Gupta vs. Management of Hindu Kanya Mahavidyalaya, AIR 1987 SC 2186 , the Apex court while dealing with the jurisdiction of Article 226 of the Constitution of India vis-a-vis the alternative remedy has stated thus: "Further, it is well established that an alternative remedy is not an absolute bar to the maintainability of a writ petition, when an authority has acted wholly without jurisdiction, the High Court should not refuse-to exercise its jurisdiction under Art. 226 of the Constitution on the ground of existence of an alternative remedy. In the instant case the Vice-Chancellor had no power of review and the exercise of such a power was absolutely without jurisdiction.
In the instant case the Vice-Chancellor had no power of review and the exercise of such a power was absolutely without jurisdiction. Indeed, the order passed by the Vice-Chancellor on review was a nuility; such an order could be challenged before the High Court by a petition under Art. 226 of the Constitution and the High Court was not justified in dismissing the writ petition on the ground that an alternative remedy was available to the appellant under Section 68 of the U.P. State Universities Act." 16. In Dr. Kamala Kanta Kar vs. Orissa State Board of Homeopathic Medicine, Bhubaneswar, AIR 1988 Orissa 82, a Division Bench of the High Court of Orissa has opined thus: "It has been authoritatively held in a series of decisions of the Supreme Court, as well as of this court that the prohibition to grant relief under Art. 226 of the Constitution of India when an alternative remedy has not been resorted to is only a self-imposed limitation adopted more for the necessity of propriety than as a mandatory requirement of law and that such a policy has no application where the act complained of is that of a violation of the principles of natural justice, or one of lack of jurisdiction. Even apart from it, nothing prevents the prerogative of the High Court to issue a writ of certiorari in a fit case where recourse to the alternative remedy would be unnecessary, lengthy and circuitous and the question involved for interpretation would be more appropriately decided by the High Court, such as cases involving purely questions regarding interpretation of law." 17.
Even apart from it, nothing prevents the prerogative of the High Court to issue a writ of certiorari in a fit case where recourse to the alternative remedy would be unnecessary, lengthy and circuitous and the question involved for interpretation would be more appropriately decided by the High Court, such as cases involving purely questions regarding interpretation of law." 17. In this context we may profitably quote a passage from the decision rendered in the case of Reg vs. Hillington, London Borough Council, (1974)1 QB 720, wherein Lord Widgery, C.J. has stated thus: "It has always been a principle that certiorari will go only where there is no other equally effective and convenient remedy..." "The statutory system of appeal is more effective and more convenient than application for certiorari and the principal reason why it may prove itself more convenient and more effective is that an appeal to (say) the Secretary of State can be disposed of at one hearing whether the issue between them is a matter of law or fact or policy or opinion or a combination of some or al| of these ..whereas of course an appeal for certioraris limited to cases where the issue is a matter of law and then only it is a matter of law appearing on the face of the order." "An application for certiorari has however this advantage that is speedier and cheaper than the other methods and in a proper case, therefore, it may well be right to allow it to be used... I would, however, define a proper case as being one where the decision in question is liable to be upset as a matter of law because on its face it is clearly made without jurisdiction or in consequence of an error of law." 18. In Whiriphool Corporation vs. Registrar of Trade Marks, Mumbai and Others, (1998)8 SCC 1 , the Apex Court in paragraph 15 has held thus: "15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction.
But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field." 19. As advised at present, we may sit in a time machine and refer to a Division Bench decision of this court rendered in Sawar Mal Choudhary and Others vs. The State Bank of India and Others, 1986 P.L.J.R. 660 wherein after referring to various decisions of the Apex Court in paragraph 34 it has been held thus: "The stand taken on behalf of the petitioners has only to be noticed and rejected. It may perhaps be first highlighted that under Section 62 providing for a revision what is required is not a double deposit and the second proviso thereto makes it clear that no certificate debtor shall be called upon to do so if he has already deposited this amount at an earlier stage. It would follow there from that where the certificate debtor has once made the deposit at appellate stage, there is no further impediment in his way of the same nature for preferring a revision. This apart, it seems to be well settled by precedent that merely providing for condition for deposit for regulating the right of appeal or revision in no way renders it either illusory, ineffective or something which can be ignored or bypass d. It is unnecessary to elaborate this aspect on principal because, to my mind, it appears to be covered by binding authority. In Anant Mills vs. State of Gujarat ( AIR 1975 SC 1234 ) Khanna, J., speaking for the Court, observed as follows: "The right of appeal is the creature of a statute.
In Anant Mills vs. State of Gujarat ( AIR 1975 SC 1234 ) Khanna, J., speaking for the Court, observed as follows: "The right of appeal is the creature of a statute. Without a statutory provision creating such a right the person aggrieved is not entitled to file an appeal. We fail to understand as to why the legislature while granting the right of appeal cannot impose conditions for the exercise of such right. In the absence of any special reasons there appears to be no legal or constitutional impediment to the imposition of such conditions................. Likewise, it is permissible to enact a law that no appeal shall lie against an order relating to an assessment to tax unless the tax had been paid. Such a provision was on the statute book in S. 30 of the Indian Income-tax Act, 1922. The proviso to that section provided thatno appeal shall lie against an order under sub-sec. (1) of S. 46 unless the tax had been paid. Such conditions merely regulate the exercise of the right of appeal so that the same is not abused by a recalcitrant party and there is no difficulty in the enforcement of the order appealed against in case the appeal is ultimately dismissed. It is open to the legislature to impose an accompanying liability upon a party upon whom legal right is conferred or to prescribe for the exercise of the right." 20. In H.P. Electricity Regulatory Commission vs. H.P. State Electricity Board, (2006)9 SCC 233 , the Apex Court did not interfere with the order of the High Court whereby the High Court had directed the appellant to assail the order impugned therein before the appellate Tribunal. 21. In Vijay Prakash D. Mehta and Another vs. Collector of Customs (Preventive), Bombay, (1988)4 SCC 402 it has been held that the right to appeal is neither an absolute right nor an ingredient of natural justice the principles of which must be followed in all judicial and quasi-judicial adjudications. The right to appeal is a statutory right and it can be circumscribed by the conditions in the grant. 22.
The right to appeal is a statutory right and it can be circumscribed by the conditions in the grant. 22. The purpose of referring to the citations from both the spectrums is to convey that under certain circumstances, the jurisdiction under Article 226 of the Constitution of India can be exercised and the concept of alternative remedy is not an absolute bar, but, a pregnant one, the question that emanantes for consideration in the case at hand whether the factual matrix as exposited is such whereby this court can release the appellant-consumer from preferring an appeal and adjudicate the lis itself. 23. As has been stated hereinbefore there was an order of assessment by the competent authority under the Act. On a scrutiny of the same it is demonstrable that there has been a finding that the consumer was indulged in direct theft. Submission of Mr. Sanjay is that even if there is theft it has to be calculated up to 90 days. To bolster the said stand, he has referred to the report dated 20th March, 2009 and 19th June, 2009 and also to certain provisions of the Bihar Electricity Supply Code, 2007. Needless to say, the said Code has been brought into existence in exercise of power conferred under the provisions of the Electricity Act, 2003 . Thus, in the obtaining the facual matrix, it is well-nigh impossible to say that the facts are absolutely tell-tale giving rise to a pure question of law where a party should not be asked to seek his remedy in appeal. We have our gravest doubt and we think rightly that the writ court in exercise of power under Article 226 of the Constitution of India cannot dwell upon and delve into the niceties of the stand and stance put forth by the consumer-appellant and combatted by the Board. Thus, we repel the submission of Mr. Sanjay on this score. 24. The next facet of submission of Mr. Sanjay is that the High Court can reduce the amount in exercise of its inherent and equitable jurisdiction. To support the said stand he has relied on Bhavya Apparels (P) Lid. and Another (supra). In the said case, the Apex Court dealt with Section 129-E of the Customs Act, 1962.
24. The next facet of submission of Mr. Sanjay is that the High Court can reduce the amount in exercise of its inherent and equitable jurisdiction. To support the said stand he has relied on Bhavya Apparels (P) Lid. and Another (supra). In the said case, the Apex Court dealt with Section 129-E of the Customs Act, 1962. On a perusal of Section 129-E it is evincible that power has been conferred on the Commissioner (Appeals) or the Appellate Tribunal to dispense with such deposit subject to such condition as he or it may deem fit to impose so as to safeguard the interest of the revenue. True it is, in the said decision, their Lordships have referred to authority in Mardia Chemicals Ltd. vs. Union of India, (2004)4 SCC 311 , but after that their Lordships have held in paragraph 19 which is reproduced below: "The Constitution Bench, therefore, was of the opinion that such a condition would be onerous and, thus, arbitrary if a suitor is required to deposit such an amount at the initial stage and not at the appellate stage." 25. In our opinion the said decision is of no assistance for the proposition canvassed. 26. Mr. Sanjay, learned counsel for the consumer-appellant has invited our attention to paragraphs 2 and 3 of the decision in J.M. Baxi & Co., Gujarat (supra), a two-Judges Bench of the Apex Court. On a perusal of the said decision, we are disposed to think that the direction was issued regard being had to the special features of the said case and their Lordships have not held as a proposition of law that alternative remedy should never be thought of by the High Court. 27. In Bhavya Apparels (P) Ltd. and Another (supra), the Apex Court while taking note of the fact with regard to stay of recovery of tax reduced the quantum. Be it noted, there is no provision in the present case like the one under the Sales Tax Law which has been adverted to by the Apex Court and hence, the decision is distinguishable. 28. Thus, from the aforesaid decisions it is clear as crystal that a right of appeal can be conditioned and hedged.
Be it noted, there is no provision in the present case like the one under the Sales Tax Law which has been adverted to by the Apex Court and hence, the decision is distinguishable. 28. Thus, from the aforesaid decisions it is clear as crystal that a right of appeal can be conditioned and hedged. Section 127(2) of the Act reads as follows: "No appeal against an order of assessment under sub-section (1) shall be entertained unless an amount equal to one-third of the assessed amount is deposited in cash or by way of bank draft with the licensee and documentary evidence of such deposit has been enclosed alongwith the appeal." 29. The key word in the said provision is "entertain". In this contest, we may refer with profit to the language employed in the third proviso to Section 30(1) of the Workmens Compensation Act. In the said proviso, it has been stipulated that no appeal by the employer shall lie unless the memorandum of appeal is accompanied by certificate of the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against. Interpreting the said provision, the High Court of Orissa in M/s Oriental Insurance Company Limited vs. Gajendra Putti & Anr., 1996(2) OLR 79, has held that when the term entertain is used, an appeal can be presented before the High Court but the same shall not be taken up for admission or dealt with unless the condition precedent to deposit is satisfied. 30. In this context, we may profitably refer to the decision of the Apex Court in M/s Lakshmiratan Engineering Works Ltd. vs. Asst. Commissioner (Judicial)-l, Sales Tax, Kanpur Range, Kanpur and Another, AIR 1968 SC 488 (V 55 C 107) wherein their Lordships while interpreting the word entertain used in the proviso to Section 9 of the Uttar Pradesh Sales Tax Act, 1948, referred to the decisions rendered in Kundan Lal vs. Jagannath Sharma, AIR 1962 All. 547 , Dhoom Chand Jain vs. Chamanlal Gupta, AIR 1962 All. 543 , Haji Rahim Bux and Sons vs. Firm Samiullah and Sons, AIR 1963 All.
547 , Dhoom Chand Jain vs. Chamanlal Gupta, AIR 1962 All. 543 , Haji Rahim Bux and Sons vs. Firm Samiullah and Sons, AIR 1963 All. 320 , whereby the term entertain was interpreted to mean proceed to consider on merits or adjudicate upon and expressed the view as follows: "(10) In our opinion these cases have taken a correct view of the word entertain which according to dictionary also means admit to consideration. It would therefore appear that the direction to the court in the proviso to S. 9 is that the court shall not proceed to admit to consideration an appeal which is not accompanied by satisfactory proof of the payment of the admitted tax. This will be when the case is taken up by the court for the first time. In the decision on which the Assistant Commissioner relied, the learned Chief Justice (Desai, C.J.) holds that the words "accompanied by" showed that something tangible had to accompany the memorandum of appeal. If the memorandum of appeal had to be accompanied by satisfactory proof, it had to be in the shape of something tangible, because no intangible thing can accompany a document like the memorandum of appeal. In our opinion, making an appeal the equivalent of the memorandum of appeal is not sound. Even under O. 41 of the Code of Civil Procedure, the expressions "appeal" and "memorandum of appeal" are used to denote two distinct things. In Whartons Law Lexicon, the word "appeal" is defined as the judicial examination of the decision by a higher Court of the decision of an inferior court. The appeal is the judicial examination: the memorandum of appeal contains the grounds on which the judicial examination is invited. For purposes of limitation and for purposes of the rules of the Court it is required that a written memorandum of appeal shall be filed. When the proviso speaks of the entertainment of the appeal, it means that the appeal such as was filed will not be admitted to consideration unless there is satisfactory proof available of the making of the deposit of admitted tax." 31. From the aforesaid authorities it is clear as noon day that after condition precedent is satisfied then only the appeal shall be dealt with on merits. 32. The submission of Mr.
From the aforesaid authorities it is clear as noon day that after condition precedent is satisfied then only the appeal shall be dealt with on merits. 32. The submission of Mr. S.D. Sanjay, learned counsel for the appellant- consumer that though the appellate authority may not be in a position to waive or dispense or reduce the amount that has been provided under Section 127(2) in view of the prescription under the statute, the High Court can do it in exercise of equitable jurisdiction under Article 226 of the Constitution of India. In this context, it is seemly to refer to Anant Mills Co. Ltd. vs. State of Gujarat and Others, AIR 1975 SC 1234 , wherein it has been held as follows: "The right of appeal is the creature of a statute. Without a statutory provision creating such a right the person aggrieved is not entitled to file an appeal. We fail to understand as to why the legislature while granting the right of appeal cannot impose conditions for the exercise of such right. In the absence of any special reasons there appears to be no legal or constitutional impediment to the imposition of such conditions................. Likewise, it is permissible to enact a law that no appeal shall lie against an order relating to an assessment to tax unless the tax had been paid. Such a provision was on the statute book in S. 30 of the Indian Income-tax Act, 1922. The proviso to that section provided thatno appeal shall lie against an order under sub-sec. (1) of S. 46 unless the tax had been paid. Such conditions merely regulate the exercise of the right of appeal so that the same is not abused by a recalcitrant party and there is no difficulty in the enforcement of the order appealed against in case the appeal is ultimately dismissed. It is open to the legislature to impose an accompanying liability upon a party upon whom legal right is conferred or to prescribe for the exercise of the right." 33. Thus, when a statutory provision like appeal is conditioned, circumscribed and hedged, it has to be respected and there cannot be exercise of power by the High Court to entertain it and direct reduction of the quantum. 34.
Thus, when a statutory provision like appeal is conditioned, circumscribed and hedged, it has to be respected and there cannot be exercise of power by the High Court to entertain it and direct reduction of the quantum. 34. In view of the aforesaid, we are of the considered opinion that when a condition precedent is postulated in a statutory provision which is mandatory the High Court in exercise of its inherent and equitable jurisdiction cannot reduce the amount. Thus, the submission of Mr. S.D. Sanjay, we are afraid, has to be repelled. 35. The third submission of Mr. S.D. Sanjay, learned counsel for the appellant- consumer is that the relegation to appeal is an illusory remedy. We may repeat at the cost of repetition to draw inspiration for the said proposition he has commended us to passages from Merdia Chemicals Ltd. (supra). But in the said case it was itself held that the appeal can be hedged by condition. Be that as it may, as the constitutional validity of Section 127(2) is not an issue before us, we are only inclined to state that the remedy being provided by the legislature and same being not assailed it cannot be regarded as inefficacious or illusory. In this regard, we may refer with profit to the decision in Jagmodhan Mehatabsing Gujaral and Others vs. State of Maharashtra, (2006)8 SCC 629 , wherein in paragraph 29, the Apex Court has expressed thus: "Large-scale theft of electricity is a very alarming problem faced by all the State Electricity Boards in our country, which is causing loss to the State revenue running in hundreds of crores of rupees every year. In our considered view, after proper adjudication of the cases of all those who are found to be guilty of the offence of committing theft of electricity; apart from the sentence of conviction, the court should invariably impose heavy fine making theft of electricity a wholly non-profitable venture. The most effective step to curb this tendency perhaps could be to discontinue the supply of electricity to those consumers temporarily or permanently who have been caught abstracting electricity in a clandestine manner on more than one occasion. The legislature may consider incorporating this suggestion as a form of punishment by amending Section 39 of the Electricity Act, 1910." 36.
The most effective step to curb this tendency perhaps could be to discontinue the supply of electricity to those consumers temporarily or permanently who have been caught abstracting electricity in a clandestine manner on more than one occasion. The legislature may consider incorporating this suggestion as a form of punishment by amending Section 39 of the Electricity Act, 1910." 36. In view of the aforesaid analysis we are unable to extend any kind of acceptation to the submission canvassed by Mr. S.D. Sanjay. 37. In view of the above premised reasons, the L.P.A. No. 518 of 2010 preferred by the consumer-appellant stands dismissed and L.P.A. No. 356 of 2010 preferred by the Board is allowed and it is directed that if the consumer-appellant deposits the amount as stipulated under Section 127(2) within a period of six weeks from the date of receipt of the order passed today, the appeal shall be heard on merits and be disposed of within two months therefrom. Regard being had to the facts and circumstances of the case, there shall be no order as to costs.