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2014 DIGILAW 1093 (CAL)

Om Prakash Jaiswal v. CESC Limited

2014-11-21

DEBANGSU BASAK

body2014
Judgment : Debangsu Basak, J. The writ petitioner is the husband of the Respondent No. 3. The CESC authorities demanded payment of sum assessed for unauthorized consumption of electricity by his wife at a premises different from that where the petitioner is presently enjoying electric supply. He claims that, the bill raised by the CESC authorities on his wife, the Respondent No. 3 for unauthorized consumption of electricity is not payable by him. He claims that the relationship between him and the Respondent No. 3 is estranged and that, they are living separately. The writ petitioner claims that, the electricity connection enjoyed by him is at a premises separate than that of the premises to which the unauthorized consumption took place and such his electric supply cannot be disconnected. The writ petitioner enjoys an interim order dated March 28, 2014 by which the CESC authorities were directed to connect the electric supply to the writ petitioner on the prima facie findings returned by the Court as recorded in the said order. The writ petition came up for final hearing upon completion of affidavits. Mr. Mukul Lahiri learned Senior Advocate for the petitioner submits that, the electric supply to the writ petitioner cannot be disconnected for arrears on account of a different consumer at a different place. He points out that, the alleged pilferage took place at a premises other than the premises where the writ petitioner is presently residing. He relies upon Regulation 3.4.2 of the West Bengal Electricity Regulatory Commission (Electricity Supply Code) Regulations, 2007 and submits that, under such regulations two criteria at the basic minimum must be satisfied entitling the CESC authorities to disconnect electric supply. According to him in Regulation 3.4.2 of the Regulations of 2007 a person having a nexus as that of the earlier supplier must apply to obtain electric supply at the same premises at which the earlier consumer was assessed for unauthorized consumption. According to him, in the instant case, none of the two criteria are satisfied and, therefore, the CESC authorities cannot disconnect electric supply to the writ petitioner. He next points out that, the claim of the CESC authorities on account of unauthorized consumption is of 2007 and that the notice issued by the CESC authorities impugned in the instant proceedings is dated February 10, 2014. He next points out that, the claim of the CESC authorities on account of unauthorized consumption is of 2007 and that the notice issued by the CESC authorities impugned in the instant proceedings is dated February 10, 2014. He refers to Section 56(2) of the Electricity Act, 2003 and submits that, no evidence is on record to show that, the CESC authorities raised bills either on the Respondent No. 3 or on the petitioner for the continuous period as envisaged under Section 56(2) of the Electricity Act, 2003. He submits that, the claim of the CESC authorities is barred by the laws of limitation. Mr. Om Narayan Rai, learned Advocate for the CESC authorities submits that, the writ petitioner is guilty of suppression of material facts. The Respondent No. 3 is the wife of the writ petitioner. The Respondent No. 3 was detected to have consumed electric supply unauthorizedly. She was issued a disconnection notice. She was, therefore, proceeded against for computation of the loss caused by such unauthorized consumption. A provisional order of assessment dated December 23, 2006 was passed by the Assessing Officer. The provisional order of assessment was served on the Respondent No. 3 by speed-post. The Respondent No. 3 did not respond thereto. A further notice dated January 3, 2007 was served on the Respondent No. 3 to appear before the Assessing Officer. She did not turn up. The Assessing Officer passed the final order of assessment on January 10, 2007. An appeal was carried to the appellate authority under Section 127 of the Electricity Act, 2003 on behalf of the Respondent No. 3. The appeal was signed by the writ petitioner herein. The appeal was disposed of by an Order dated June 26, 2007 finding that, the CESC authorities are entitled to the value of 4,536 units for unauthorized consumption of electricity by the Respondent No. 3. According to Mr. Rai, the writ petitioner suppressed the fact that he had signed the appeal on behalf of his wife, the Respondent No. 3. He relies upon 2007 Volume 8 Supreme Court Cases page 449 (Prestige Lights Ltd. v. State Bank of India) and submits that, as the writ petitioner did not come with clean hands and was guilty of suppression of material facts, the writ petition ought to be dismissed. According to Mr. Rai the writ petitioner comes within the definition of consumer. He relies upon 2007 Volume 8 Supreme Court Cases page 449 (Prestige Lights Ltd. v. State Bank of India) and submits that, as the writ petitioner did not come with clean hands and was guilty of suppression of material facts, the writ petition ought to be dismissed. According to Mr. Rai the writ petitioner comes within the definition of consumer. He refers to Section 135(1A) of the Electricity Act, 2003 and the third proviso thereto and submits that, the CESC authorities have a right to disconnect existing supply for unpaid bills on account of unauthorized consumption of electricity. The writ petitioner enjoyed the electric supply standing in the name of his wife. The relationship between the writ petitioner and the wife was not estranged at that point of time as the writ petitioner preferred the appeal on behalf of his wife the Respondent No. 3 herein. The writ petitioner comes within the definition of “consumer” as defined in the Electricity Act, 2003. According to Mr. Rai, Section 56 including 56(2) of the Electricity Act, 2003 has no manner of application in the facts of this case. He submits that, Section 56 deals with consumption of electricity by a consumer through the legal method. In the instant case, the Respondent No. 3 was found guilty of unauthorized use of electricity and was duly assessed in accordance with law in terms of Sections 126 and 127 of the Electricity Act, 2003. The CESC authorities have a right to disconnect electric supply as would appear from Section 135(1A) third proviso. The CESC authorities have exercised such right. He next contends that, the laws of limitation will not apply and he relies upon All India Reporter 1978 Bombay page 369 (M/s. Bharat Barrel and Drum Manufacturing Co. Pvt. Ltd. v. The Municipal Corporation of Greater Bombay & Anr.) in support of such proposition. He points out that, under Section 127 of the Electricity Act, 2003 a person aggrieved by an order of assessment is entitled to prefer an appeal. The writ petitioner preferred the appeal on behalf of the Respondent No. 3. In reply learned Counsel for the writ petitioner reiterated their stand on Regulation 3.4.2 of the Regulations of 2007. I have considered the rival contentions of the parties and the materials made available on record. The writ petitioner enjoys electric supply at premises No. 18, Kali Banerjee Lane, Howrah. In reply learned Counsel for the writ petitioner reiterated their stand on Regulation 3.4.2 of the Regulations of 2007. I have considered the rival contentions of the parties and the materials made available on record. The writ petitioner enjoys electric supply at premises No. 18, Kali Banerjee Lane, Howrah. He received a notice dated January 15, 2014 requiring him to pay a sum of Rs.12,821/- for unauthorized use of electricity in respect of a meter which stood in the name of the Respondent No. 3. Immediately on receipt of such letter the writ petitioner caused his Advocate to reply thereto by a letter dated February 6, 2014. The CESC authorities wanted access to the meter of the writ petitioner by a letter dated February 10, 2014. The CESC authorities disconnected electric supply to the writ petitioner on February 10, 2014. The CESC authorities by a letter dated February 10, 2014 informed the writ petitioner that in the event he sought restoration of electric supply he has to pay a sum of Rs.12,821/- in respect of unauthorized consumption of electric supply made by his wife the Respondent No. 3. The writ petitioner by a letter dated February 12, 2014 protested against the action of the CESC authorities. When the writ petition was moved, on a prima facie finding, by an Order dated March 28, 2014 electric supply to the petitioner was directed to be restored. The writ petitioner did not make his wife a party respondent. According to the writ petitioner the relationship between him and his wife was estranged and that the Respondent No. 3 was living at her paternal house. The Court directed the wife of the writ petitioner to be made a party respondent and she was added as Respondent No. 3 to the writ petition. The writ petitioner seeks to deny liability to pay the bill of the Respondent No. 3 firstly on the ground of estranged relationship between him and the Respondent No. 3 and secondly on the ground that the CESC authorities cannot disconnect electric supply to the petitioner on the strength of Regulation 3.4.2 of Regulation of 2007 and Section 56 of the Electricity Act, 2003 as they do not apply to the facts of the case. No evidence has been placed on record as to the so-called estranged relationship between the writ petitioner and Respondent No. 3. No evidence has been placed on record as to the so-called estranged relationship between the writ petitioner and Respondent No. 3. The Respondent No. 3 did not enter appearance in the petition in spite of being made a party to the writ petition. The ground of estranged relationship between the writ petitioner and his wife the Respondent No. 3 was not seriously argued at the hearing. In such circumstances, estranged relationship between the petitioner and the Respondent No. 3 is not established. Applicability of Section 56 of the Electricity Act, 2003 to the facts and circumstances of the instant case requires consideration. Section 56 of the Electricity Act, 2003, deals with disconnection of supply in the event of default of payment. Sub-Section(1) of Section 56 lays down, inter alia, that where a person neglects to pay any charge for electricity or any sum other than a charge for electricity due from him to a licensee or the generating company in respect of supply, transmission or distribution or wheeling of electricity to him, the licensee or the generating company may, after giving not less than 15 days clear notice in writing, to such person and without prejudice his rights to recover such charge or other sum by suit, cut off the supply of electricity. In the facts of the instant case, the CESC authorities as the licensee is not claiming any sum from the petitioner in respect of supply, transmission or distribution or wheeling of electricity to him or to his wife. The claim is on account of unauthorized use of electricity by his wife. Section 135 of the Electricity Act, 2003, deals with theft of electricity. It comes under Part XIV of the Electricity Act, 2003 which deals with offenses and penalties. Section 135(1) of the Electricity Act, 2003 provides that, a person guilty of theft of electricity will be punished with imprisonment for a term that may extend to 3 years or with fine or with both. Section (1A) of Section 135 allows the licensee or supplier to disconnect supply of electricity immediately upon detection of theft of electricity. The third proviso to Sub-Section (1A) of Section 135 allows a licensee or a supplier to restore such supply line upon deposit or payment of the assessed amount of electricity charges. Section (1A) of Section 135 allows the licensee or supplier to disconnect supply of electricity immediately upon detection of theft of electricity. The third proviso to Sub-Section (1A) of Section 135 allows a licensee or a supplier to restore such supply line upon deposit or payment of the assessed amount of electricity charges. In the instant case, the amount that the Respondent No. 3 is liable to pay for the unauthorized use of electricity stands finally adjudicated. The CESC authorities as the licensee is, therefore, entitled to disconnect supply to receive payment of the amount assessed for unauthorized consumption of electricity. The provision allows a licensee or a supplier to disconnect electric supply when it detects theft of electricity and to restore upon receipt of payment of the assessed amount. The question, therefore, arises in the proceedings is whether the CESC authorities are entitled to disconnect supply to the petitioner on account unauthorized use of electricity by the wife of the petitioner being the Respondent No. 3 or not. The writ petitioner relies on Regulation 3.4.2 of the Supply Regulations, 2007 in this context. Regulation 3.4 of the West Bengal Electricity Regulatory Commission (Electricity Supply Code) Regulations, 2007 deals with recovery of arrears. Regulation 3.4.2 deals with the entitlement of a licensee to recover from a new and subsequent consumer the dues of the previous and defaulting consumer in respect of the same premises only if a nexus between the previous and defaulting consumer and the new consumer in respect of the same premises is proved. In my view, Regulation 3.4.2 is another entitlement of the licensee to recover its claim apart from those that the Act of 2003 empowers the licensee to employ to recover payment. In the instant case, the licensee has invoked its power to disconnect supply in terms of Section 135 of the Electricity Act, 2003. It is not contended on behalf of the petitioner that, the licensee cannot invoke Section 135 to recover arrears on account of unauthorized use of electricity. Section 135(1A) of the Electricity Act, 2003 empowers the licensee or the supplier to disconnect a supply of electricity on the detection of theft of electricity. In the instant case, the husband’s supply is disconnected on account of arrears due from the wife for unauthorized use of electricity. Section 135(1A) of the Electricity Act, 2003 empowers the licensee or the supplier to disconnect a supply of electricity on the detection of theft of electricity. In the instant case, the husband’s supply is disconnected on account of arrears due from the wife for unauthorized use of electricity. A consumer under the Electricity Act, 2003 is defined in Section 2(15) to mean any person who is supplied with electricity for his own use by a licensee or the Government or by any other person engaged in the business of supplying electricity to the public under the Act of 2003 or any other law for the time being in force and include any person whose premises are for the time being connected for the purpose of receiving electricity with the works of a licensee, the Government or such other person, as the case may be. The relationship between the petitioner and the Respondent No. 3, as husband and wife, was not estranged when the wife was discovered to have consumed electricity unauthorizedly. The fact that the relationship was not estranged will appear, inter alia, from the appeal preferred by the Respondent No. 3 which was signed by the writ petitioner. It can be safely deduced that, the writ petitioner enjoyed the benefits of the unauthorized use of electricity by the Respondent No. 3 and, therefore, comes within the purview of the definition “consumer” as defined in the Electricity Act, 2003. On that analogy the CESC authorities are entitled to invoke Section 135 of the Electricity Act, 2003 to recover its claim on account of unauthorized use of electricity. The point of limitation raised by the writ petitioner is also without any basis. True the assessment on account of unauthorized use of electricity was of 2007. The electric supply to the Respondent No. 3 stood disconnected in 2007. The licensee had no address to raise the bill for the unauthorized use of electricity on the respondent No. 3. Section 56(2) and the period of limitation laid down therein, does not help the writ petitioner, in my view, on at least on two counts. The electric supply to the Respondent No. 3 stood disconnected in 2007. The licensee had no address to raise the bill for the unauthorized use of electricity on the respondent No. 3. Section 56(2) and the period of limitation laid down therein, does not help the writ petitioner, in my view, on at least on two counts. Firstly, it is not the case of the writ petitioner that, notwithstanding the licensee having knowledge of the address at which to raise the bill for the unauthorized use of electric supply by the Respondent No. 3, the licensee did not do so for a period in excess of two years. The licensee raised its demand and disconnected electric supply to the writ petitioner immediately upon finding the writ petitioner to consume electricity at the present address. Secondly, Section 56 does not envisage a scenario where the consumer is guilty of unauthorized use of electric supply. Consequently, Sub-Section (2) of Section 56 will not apply to the facts of this case. Moreover, as laid down in Bharat Barrel and Drum Manufacturing Co. Pvt. Ltd. (supra) the licensee has a right to disconnect electric supply to recover its dues. Learned Counsel for the licensee has relied upon Prestige Lights Ltd. (supra) for the proposition that, the writ petition has to be dismissed as the writ petitioner has come with unclean hands. In Prestige Lights Ltd. (supra) Supreme Court was of the following view in paragraph 35 thereof:- “35. It is well settled that a prerogative remedy is not a matter of course. In exercising extraordinary power, therefore, a writ court will indeed bear in mind the conduct of the party who is invoking such jurisdiction. If the applicant dies not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the court, the court may dismiss the action without adjudicating the matter. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ courts would become impossible.” The fact that the writ petitioner verified the appeal on behalf of the Respondent No. 3 in 2007 when the Respondent No. 3 was proceeded against on the ground of unauthorized use of electric supply is according to me, a material fact which was required to be stated by the writ petitioner up front. The conduct of the writ petitioner is not above board. The writ petitioner sought not to disclose full facts and relevant materials. This factor is accentuated by the reason that, the writ petitioner has alleged estrangement of relationship between him and his wife, the Respondent No. 3. Again the so-called estrangement of relationship has not been established in any manner nor argued at the time of hearing. For the reasons aforesaid I find no merit in the writ petition. The interim order dated March 28, 2014 is vacated. In the event the writ petitioner pays the amount demanded by the respondent authorities in its letter dated January 15, 2014 being Annexure P-3 to the writ petition within seven days from the date hereof, the respondent authorities will not disconnect supply to the writ petitioner. In the event of failure to do so, the respondent authorities are at liberty to take such steps that they are entitled to law including disconnecting electric supply to the writ petition. W.P. No. 204 of 2014 is disposed of on the above terms. No order as to costs.