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2011 DIGILAW 923 (CAL)

R. Maity & Co. v. CESC Limited

2011-07-14

PATHERYA

body2011
Judgment : PATHERYA, J. By this writ petition the petitioner seeks a direction upon the State to withdraw the sanction granted to the Conditions of Supply of 2001, and in particular clause 29 of such Conditions. The case of the petitioner is that the electricity to its business premises was disconnected on 18th August, 2001. Prior thereto an inspection was held by the Licensing Company with a threat to disconnect line from the pole jumper. A complaint was also lodged at Tiljala Police Station and the said theft was proved correct as disconnection took place on 18th August, 2001. On an earlier occasion supply had been disconnected and when disconnected in 1998 WP No. 281 of 1998 was filed wherein an order was passed directing the Chief Electrical Inspector to inspect connection in the said premises. Accordingly, an inspection was held and report filed, wherefrom, it appears that the allegations of the Licensing Company was unfounded and accordingly reconnection of electricity was directed. Therefore, on the basis of the report of the Chief Electrical Inspector, the action of the Licensing Company is illegal and the said Regulations with regard to pilferage is beyond Section 39 of the 1910 Act. Section 26(6) of the Indian Electricity Act 1910 postulates consideration of disputes by the Chief Electrical Inspector. Therefore, the licensing Company is not entitled to decide the correctness of the meters and as Regulation 29 is contrary to Section 39 of the 1910 Act the said Regulation be struck down. There are two meters installed in the said premises and it is only in respect of one meter that the allegation of theft has been levelled and notice issued. Therefore, meter no. 2566022 could not have been disconnected, as there is no allegation of pilferage or theft in respect of the said meter. In view of the aforesaid Clause 29 of the Conditions of Supply 2001 be struck down and electricity restored to the petitioners’ premises. Reliance is placed on AIR 1988 SC 71 . Although Section 49 of 1910 Act and Section 79 of 1948 Supply Act empowers the Board to make Regulation as the licensing Company is only a licensee, it is not empowered to make any Regulations. As no inspection was made on 18th August, 2001, Section 29(a) of the Conditions of Supply will not apply in view of the complaint lodged on 14thAugust, 2001. As no inspection was made on 18th August, 2001, Section 29(a) of the Conditions of Supply will not apply in view of the complaint lodged on 14thAugust, 2001. Counsel for the licensing Company submits that under Section 26(6) of the 1910 the Chief Electrical Inspector is only to decide cases with regard to correctness of meter and not cases of pilferage as held in AIR 2007 Calcutta 71 (CESC Ltd. & Ors –Vs-Pawan Kumar Kedia). In the case of CESC Ltd –Vs- Lohia Mandelia & Ors decided on 5th September, 2006 in APO 123 of 2003 the validity of the Conditions of Supply 2001 has been upheld. Therefore the Conditions of Supply 2001 cannot be questioned. The factory of the petitioner has two meters and one consumer number only. One of the meters was an industrial meter and the other was a commercial meter. It is only the industrial meter which was disconnected while the commercial meter is in use. It was due to the loss on account of theft and pilferage suffered by the Licensing Company that electricity was disconnected. On 18th August, 2001 the petitioner was called upon to submit its written representation. Without submitting such representation this writ petition was filed and warrants no order. Having considered the submission of the parties the basic question that has arisen for consideration in this writ petition is the authority of the Licensing Company in making the Conditions of Supply 2001. The Conditions of Supply 2001 was not made unilaterally by the Licensing Company and was considered at different levels and then enforced after being approved by the State Government. It was given wide publicity through advertisements and published on bills too. Therefore, the consumers including the petitioner was aware of the said Conditions of Supply prior to filing of the writ petition but did not challenge the same. The said Conditions of Supply 2001 can be invalidated only if it is in conflict with the provisions of the Act or the Constitution. The petitioner has alleged that the Conditions of Supply and Regulation 29 is in violation of Section 39 of the 1910 Act. The said Conditions of Supply 2001 can be invalidated only if it is in conflict with the provisions of the Act or the Constitution. The petitioner has alleged that the Conditions of Supply and Regulation 29 is in violation of Section 39 of the 1910 Act. Section 39 reads as follows:- “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”. Regulation 29 of the Conditions of Supply 2001 and in particular Regulation 29(a) and 29(c) reads as follows:- Regulation 29(a) “where there is reason to believe that the consumer has been or is guilty of pilferage of electricity, the officer authorized 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 FIR with the local Police Station within 24 hours from such disconnection” 29(b) xxxxxxxxx. Regulation 29(c ) “ The Officer, authorized 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.” Regulation 29(d) “ The Officer authorized 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.” 29(e) xxxxxxx. 29(f) xxxxxxx. 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.” 29(e) xxxxxxx. 29(f) xxxxxxx. Therefore from a reading of Section 39 of the 1910 Act and Regulation 29 of the Conditions of Supply 2001 it will be evident that Regulation 29 is in aid of Section 39 and not in derogation thereof. Regulation 29 of the Conditions of Supply of 2001 came up for consideration in the case of CESC Ltd –Vs- Lohia Mandelia and Ors (APO 123 of 2003), and the Division Bench of this Hon’ble Court in its judgment has upheld the validity of the Conditions of Supply 2001 after considering the decisions reported in 1988(1) SCC 23 and 1998 4 SCC 470 . Therefore, the Conditions of Supply of 2001 cannot be faulted. As the Electricity Act 2003 was not inforce at the time of filing of this writ petition, the 1910 Act applied and under Section 21(2) of the 1910 Act the Licensing Company was entitled to make conditions which were not inconsistent with the Act or Rules. Regulation 29 of the Conditions of Supply 2001 lays down the procedure to be adopted to safeguard the interest of the Licensing Company and check theft of electricity. It permits the licensee to also make Regulations. The right to appeal from any decision taken is also provided. Therefore, Regulation 29 of the Conditions of Supply 2001 is not contrary to the 1910 Act and does not call for interference. The power of The Chief Electrical Inspector was considered in AIR 2007 SC 1214 and 1988 (1) SCC 23 both of which held that The Electrical Inspector can only decide disputes with regard to whether a meter is correct or faulty but not with regard to tampering of meter. Therefore, 1988 1 SCC 23 is not applicable to the facts of this case. Accordingly no Order is passed on this application and the same is dismissed.