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PETITIONER: CALCUTTA ELECTRIC SUPPLY CORPORATION

       Vs.

RESPONDENT: SHRI N.M. BANKA & ANR.

DATE OF JUDGMENT:       21/11/1996

BENCH: B.P. JEEVAN REDDY, SUHAS C. SEN

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      The following  order in  this case  was passed by us on 6th November, 1996 :      "While we  propose to give reasons for our Order later, the following   s  the operative  and  final  Order  in  the Special Leave Petition.      Leave granted.      The appeal is allowed with the following directions :      (1) Within  one month  from  today,      Respondents No.  1 - consumer shall      deposit  a  sum  of  Rupees  thirty      lakhs towards the demand of arrears      by  the  appellant-company  against      him.      (2) On such deposit being made, the      dispute   between    the    parties      involved in  the  Transferred  case      No. 42 of 1996 shall stand referred      to the  Chief Electrical Inspector,      Calcutta who  shall decide the same      within two months from the date the      dispute is referred to him.      (3)  If  the  amount  specified  in      Direction No.1 is not deposited, it      shall be  open  to  the  appellant-      company to  recover the arrears due      to it according to law.      (4) Pending  further orders  in the      matter, all  the properties  of the      respondent are attached herewith.      (5) Respondent  No.1 shall  pay the      costs of  the appellant  which  are      estimated at  Rupees fifty thousand      only."      The reasons  for passing  the aforesaid  order  are  as under :      This is  a case of gross abuse of process of court. One N.M. Banka  had applied  to CESC  Limited which  carries  on business  of   generation,  supply   and   distribution   of electricity in  Calcutta and its suburbs for a connection of

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electricity  to   premises  No.11,   U.N.  Mukherjee   Road, Calcutta. After completion of inspection, the CESC agreed to supply  electricity  to  N.M.  Banka  by  letter  dated  5th February, 1988  subject to  compliance of  usual conditions. Some time  later, it came to the knowledge of CESC that N.M. Banka was  a partner  of the  firm  M/s  Rajkumar  Dyeing  & Printing   Works which  was carrying on business at the same premises. The  partnership firm  was an  existing registered consumer from whom a very substantial sum of money was lying due.  Moreover,  the  partnership  firm  was  found  drawing electricity far  in excess of the sanctioned load of 50 H.P. On coming  to know   the  that N.M.  Banka was  a partner of Rajkumar Dyeing  & Printing  Works, which was a defaulter in payment of  electricity charges,  the CESC Limited by letter dated 22  September, 1988  informed  Banka  that  supply  of electricity to him has been kept in abeyance. Apart from the huge liability  of Rajkumar  Dyeing &  Printing Works, there was  also  a  technical  difficulty  in  giving  a  separate electric connection  to Banka  because t was not possible to give two  separate electric  connections to  one  particular premises. Existence  of two  services in  the same  premises would be hazardous.      On 22nd July, 1988, writ petition was moved by Rajkumar Dyeing &  Works,   the partnership firm and also Shri Banka, the partner  for  a  direction  n  the  nature  of  mandamus commanding CESC  and their  officers from  disconnecting the electricity line  of the  factory situated  at  No.11,  U.N. Mukherjee Road,  Calcutta. A  prayer was  also made to refer the disputed  bills to  the arbitrator  as provided  in  the Indian Electricity  Act for adjudication. The allegation was that CESC  had issued an inflated bill for the month of June 1988 and were appellants if they failed to pay the said bill bay 20th  July, 1988.  It was  further prayed  that  if  the electricity line  was disconnected, the factory will have to be closed down and about 90 workers will have to be laid off without any  fault of  the appellants. The writ petition was moved  ex-parte   and  a    direction  was  given  that  the electricity supply  will not be disconnected ’till Wednesday next’. On  28th July,  1988, the matter was once again heard ex-parte and  the interim order not to disconnect the supply was further  continued. The  matter, thereafter, has come up for hearing  from time  to time   and  the interim order has been continued  with occasional  directions to  deposit some money. By  this process, the writ petition  was kept pending for more  than five years. The appellant who was a defaulter when the  writ petition was filed continued to get supply of electricity by  making occasional  payments pursuant  to the direction of  the Court. The Writ petitioner did not pay the bills submitted  in usual course,  the arrears kept mounting up and  the CESC  ultimately disconnected  the line.  By  an order dated 16th February, 1993, the Court directed the line to be  restored and the writ petition was directed to remain heard in part.      It is  difficult to  understand how  this writ petition was allowed  to linger  on for five years. The Court did not and could  not possibly  come to  a finding  on the disputed questions  of  fact.  According  to  CESC,  the  bills  were prepared properly. The appellants did not pay the bills. The total amount  of arrears  due to  the CESC had mounted up to Rs. 67,40,948.10 after giving pursuant to the interim orders passed by  the Court  from time  to time.  On behalf  of the CESC, very serious allegations have been made about theft of electricity and  overloading as  a result of which the meter was burnt  out  several  times  and  non-payment  of  bills. Section 24  of the  Electricity Act  gives the  right to the

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supplier   to disconnect  any  electric  supply  line  after giving seven days’ notice, if a consumer neglects to pay the charge for  energy or   any  sum other  than the  charge for energy due  from him in respect of supply of energy. In case of dispute  or difference about the meter or the correctness of the  bill, the  consumer  may  apply  to  the  Electrical Inspector. The  Inspector in  such a case shall estimate the amount of  energy supplied  to the  consumer.  The  supplier shall not  be at  liberty to  take off  or remove  any meter until the  dispute has  been determined  by  the  Electrical Inspector.  The  writ  petitioners  did  not  avail  of  the statutory remedy  provided by  sub-sections (4)  and (6)  of Section 26  but approached  the Court for interim relief and by this  process, managed  to  continue  to  get  supply  of electricity even  though there  was a huge mounting default. It is  difficult to  understand how  the Court  allowed  the question of  these disputed bills to linger on for more than five years  without disposing  of the case on merits. It was also not  proper for  the Court  to direct  CESC  to  supply electricity to  a defaulter  indefinitely by  interim orders passed from time to time. Specific statutory remedy provided by the  Indian Electricity  Act to  the consumer  should not have been allowed to be bypassed.      It has  been contended  on behalf  of the consumer that the second prayer in the writ petition was for referring the matter for  arbitration. We  fail to  see the  sense of this prayer. If  the consumer  was aggrieved  by  the  bills,  he should have approached the Electric Inspector straight away. When the  consumer approached  the Court,  the Court  should have directed the consumer to avail of the statutory remedy. In any  event, under  the writ jurisdiction, the Court could not have  decided about  the correctness or otherwise of the bills. Serious  allegations were  made by the CESC about the consumption of  electricity beyond  the sanctioned  load and also of  non-payment of  valid bills. The allegation is also that when  the  electricity  supply  to  Rajkumar  Dyeing  & Printing Works  was stopped, a partner, Banka, wanted to get a service  line in his own name at the same place to run the printing works. This was obviously a fraudulent move and the CESC rightly refused to get the second line.