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PETITIONER: MUNICIPAL CORPORATION OF DELHI

       Vs.

RESPONDENT: AJANTA IRON & STEEL CO. (PVT.) LTD.

DATE OF JUDGMENT28/02/1990

BENCH: SHARMA, L.M. (J) BENCH: SHARMA, L.M. (J) RAMASWAMI, V. (J) II

CITATION:  1990 AIR  882            1990 SCR  (2) 733  1990 SCC  (2) 659        JT 1990 (2)    94  1990 SCALE  (1)409

ACT:     Indian  Electricity Act, 1910: Electricity  Supply--Dis- connection of--Service of notice a pre-requisite.

HEADNOTE:     The  Delhi Electricity Supply  Undertaking  disconnected the  supply of electricity to the respondent-company  during the pendency of the suit for a prohibitory injunction  with- out  serving  notice on the consumer. The trial  court  dis- missed the amended suit for mandatory injunction to  restore the  supply. The First Appellate Court decreed the  suit  on the  sole ground of non-service of notice as required  under condition  No. 36 in regard to supply of electricity by  the appellant.  It  did not go into the allegation of  theft  of electricity  by the plaintiff. The High Court dismissed  the appeal. Dismissing the appeal by special leave, this Court,     HELD: 1. The licensee undertaking is performing a public duty  and  is governed by a special statute.  The  law  also contemplates  service  of a notice before  disconnection  of supply of electricity. The appellant cannot also be  allowed to go back upon its words and refuse the consumer the  bene- fit  of  notice as contemplated by the agreement.  The  suit was,  therefore,  rightly  decreed by  the  First  Appellate Court. [735B-C, A-B]     2. The plaintiff is seriously denying the allegation  of theft.  It is not possible to assume the accusation as  cor- rect without a full-fledged trial on this issue. The  courts below  have  not examined the case on merits.  The  question whether  the allegations are true or not has to be  examined and decided in an appropriate proceeding. The appellant will not,  therefore, be prejudiced in its claim by dismissal  of the appeal. [734G-H, 735C]     Jagarnath  Singh  v.B.S. Ramaswamy,  [1966] 1  SCR  885, distinguished.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 3693  of 1989.

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734     From  the Judgment and Order dated 23.2. 1989  of  Delhi High Court in R.S.A. No. 31 of 1989.     K.S. Bindra, R.K. Maheshwari and G.S. Gujananip for  the Appellant. Prem Sunder Jha for the Respondent. The Judgment of the Court was delivered by     SHARMA, J. This appeal by special leave arises out of  a suit filed by the respondent-company against the  appellant, Municipal  Corporation of Delhi, for a mandatory  injunction to restore the supply of electricity discontinued during the pendency  of  the suit. Initially the suit was filed  for  a prohibitory  injunction  from  disconnecting  the   electric connection. The plaint was amended following stoppage of the supply of energy.     2. According to the plaintiff’s case, the suit had to be filed  as  the  Delhi  Electricity  Supply  Undertaking  was threatening  disconnection  without disclosing  any  reason. Subsequently,  some  officers  of the  Undertaking  made  an inspection  of the meters and alleged theft  of  electricity after  tampering  with the seals affixed on  the  meters.  A First Information Report was lodged with the police.     3.  Admittedly no notice was served by the  Delhi  Elec- tricity Supply Undertaking on the plaintiff before  severing the  electric connection. The learned trial court,  however, dismissed  the  suit and the plaintiff appealed.  The  First Additional  District  Judge,  Delhi, who  heard  the  appeal decreed the suit on the sole ground of nonservice of  notice as  required under condition no. 36 in regard to  supply  of electricity by the appellant. The Delhi High Court dismissed the  appellant’s second appeal at the admission stage  by  a reasoned judgment.     4.  The learned counsel for the appellant has  contended that  in  view of the conduct of the plaintiff  in  stealing electricity,  the Court should in its discretion  refuse  to issue a direction for restoration of the electric supply. We are  afraid, it is not possible to agree with the  appellant for more reasons than one. The plaintiff is seriously  deny- ing the allegation of theft and it is not possible to assume the  accusation as correct without a full-fledged  trial  on this  issue. The case of Jagarnath Singh  v.B.S.  Ramaswamy, [1966] 1 SCR 885; relied upon on behalf of 735 the  appellant  is clearly distinguishable inasmuch  as  the consumer  in that case was convicted under the Indian  Penal Code,  and  the conviction was being maintained  in  appeal. Besides, the service of notice is a prerequisite for discon- nection,  and  the appellant can not be allowed to  go  back upon its words and refuse the consumer the benefit of notice as  contemplated by the agreement. The learned  counsel  for the appellant urged that the Delhi Electric Supply Undertak- ing will seriously suffer if this view is upheld. We do  not understand  as to what is the difficulty in the way  of  the appellant  to serve a notice on the consumer before  discon- tinuing the supply. It has to be appreciated that the licen- see Undertaking is performing a public duty and is  governed by  a special statute and the law also contemplates  service of  a notice before disconnection of supply of  electricity. The  courts  below  have made it clear that  they  have  not examined  the  case  on merits. The  question  whether,  the allegations of theft are true or not has to be examined  and decided in an appropriate proceeding, and the appellant will not, therefore, be prejudiced by the present judgment in its claim.  In the result, the appeal is dismissed but,  without costs.

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P.S.S.                                                Appeal dismissed. 736