H.S.E.B., PANCHKULA vs ANOOP STONE CRUSHER

WHETHER the statutory conditions of supply of electricity No. 24-A(ii)(3) and 24-A(v)(i) notified by the Haryana State Electricity Board under the powers conferred by Section 49 of the Electricity Supply Act, 1948, expressly mandate the service of the mamorandum of inspection and seizure upon the consumer of electirc energy before any adverse action can be taken against him - is the core question in this appeal.

THE facts relevant to the issue aforesaid may be noticed with relative brevity. THE respondents M/s. Anoop Stone Crusher carry on the business of running a stone crusher at their premises situated at village Chandimandir near Panchkula for the last more than four years. Admittedly they had been granted a sanctioned load of 63.915 K.W. for the supply of electric energy to their business premises. It was their case that they had never earlier indulged in any mal-practice or theft of electricity and also had been regular in paying the charges, therefor. On the 19th of June, 1990 the business premises of the complainants were checked by the Assistant Director Vigilance H.S.E.B., Panchkula and according to the appellants an unauthorised extenstion of load from the sanctioned load of 63.915 K.W. to 77.523 K.W. was detected. In accordance with the instructions a memorandum of inspection was prepared by the official aforesaid and subsequently on the basis thereof the Sub Divisional Officer, Panchkula served a demand notice on the complainant dated the 28th of June, 1991 for the payment of Rs. 24,000/- due to the alleged mal-practice noticed in the inspection. The complainants challenged the action of the appellant and their officials primarily on the ground that the memorandum of inspection was never served on them nor the report of the Assistant Director Vigilance was ever verified by any further enquiry and particularly on the ground that no opportunity whatsoever of being heard to show cause. against the demand was accorded to them. Consequently a prayer for quashing the payment of Rs. 24,000/- and grant of compensation for the harassment suffered was made. Reliance was placed on a number of documents including the wiring contractors test report and the relevant electricity bills etc.

In the written statement filed on behalf of the appellants a preliminary objections was raised to the very maintainability of the complaint on the ground that the complainant was not a consumer under the Act. Primal reliance, therefore, was on I (1991) CPJ 450. ''Escon Private Ltd. v. The Karnataka Electricity Board & Others''. On merits the broad factual position of the grant of the electric connection to the complainant was not disputed. It was however, asserted that on the 19th of June, 1991 the Assistant Director Vigilance on inspection had found that the complainant had unauthorisedly extended their load and he had later sent his report to the Sub Divisional Officer, Panchkula who in turn computed and levied the charges of Rs. 24,000/- according to the rules vide notice of demand dated the 28th of June, 1991. All other allegations were denied and any deficiency in the service on the part of the appellant-opposite party were controverted. Indeed it was the case that the appellants had acted charitably in not disconnecting the respondent''s connection forthwith, but had adopted the fair method of giving him an opportunity to pay the aforesaid amount before doing so.

IN support of the aforesaid stand the appellant-opposite party produced RW-1 Rikhi Ram, Junior Engineer, who had accompanied the vigilance officer at the time of checking and RW-2 Jai Parkash, C.A. who calculated the amount of penalty of Rs. 24,000/- . Exhibit R-1, the checking report and R-2 the notice of assessment were placed on the record. The District Forum in its considered order under appeal held that the provisions of the instructions 24-A(II)(3) and 24- A(V)(i) are mandatory and there was patent contravention thereof because the memorandum of inspection and seizure was neither supplied by the officer preparing the same nor by the S.D.O. before raising the impugned demand of Rs. 24,000/- . Consequently the appellants were injuncted from making the realisation. However, it was made clear that they were at liberty to reopen the case, if they deem necessary after fully complying with the procedure laid down in the statutory instructions. As is evident from the question posed at the out-set the controversy herein resolves around the statutory conditions 24-A(II)(3) and 24-A(V)(i) which may be noticed in extenso at the very outset:- 24-A(II)(3): "If such entry or inspection reveals prima-facie commission of any act or prejudicial use of supply malpractice or theft, as the case may be, the authorised officer and the employee(s) accompanying him shall have power to seize the evidence of such act, and shall prepare a memorandum of such inspection and seizure of entry and inspection as well as the evidence so seized, the authorised officer shall hand over a copy of the memorandum of inspection and seizure to the consumer of his representative or employee who so ever may be present and available at the time of such insepction and seizure. Refusal to accept it by the consumer or his representative or his employee shall be deemed to be a sufficient service of such copy to the consumer."

24A(v)(i) : Where the supply of a consumer is disconnected under Condition 24A(iii), the officer authorised under condition 24A(iv) to make assessment of the compensation to be recovered for an act of malpractice of theft of energy, as the case may be shall before making such assessment, ensure that a copy of the memorandum of inspection and seizure had been duly handed over or served to the consumer or his representative as required by condition 24A(ii)3."

BEFORE adverting in depth to the aforesaid provisions, it deserves notice that there is no gain saying the fact that today the facility of any electricity connection and the supply thereof provides the life-blood of modern living. This would be even more so as regards industrial establishments which are powered by electric supply. Indeed it is unnecessary if not wasteful to labour on the vital importance of the supply of electricity energy to a consumer which has been expressly brought within the ambit of the definition of a "service" under Section 2(1)(o). Consequently the power to disconnect electric supply or to place onerous conditions thereon is a drastic power which must be exercised with judicious discretion and fully in accordance with the rules and statutory instructions governing the same. Now a plain reading of the conditions 24- A(ii)(3) would make, it manifest that a clear duty has been cast on the authorised officer to supply a copy of the memorandum of inspection to the consumer or his representative etc. The word employed is "shall" and it is trite learning that in a legal provision. It is used when the intention of the framers is to impose a mandatory duty. This however, is not all. The conditions seems to provide a double safeguard to the consumer because in condition No. 24-A(v)(i) it is further provided that the official concerned must ensure before making any adverse, assessement against the consumer that a copy of the memorandum of inspection had been duly served upon him or his representative. Herein again the word employed is "shall" and not ''may'' and what has been said earlier with regard to the preceding condition would equally apply in the present case. In a reading of the two conditions (together and not in isolation, which must necessarily be done) it has inevitably to be held that the statutory conditions impose, a duty on the authorities to serve the memorandum of inspection on the. consumer and a corresponding right upon the latter to receive the same. In the light of the aforesaid discussion, the answer to the question posed at the out-set is rendered in the affirmative and it is held that these statutory conditions aforesaid expressly mandate the service of the memorandum of inspection upon the consumer of electric energy before any adverse action can be taken against him.

ONCE it is held as above it is somewhat plain sailing for the respondent. Mr. K.K Gupta, the learned Counsel for the appellant very fairly conceded that on the present record, it stood established that the memorandum of insepction prepared on the 19th of June, 1990 was never served as such on the respondent-consumer or his representative. He was equally fair that even when the demand notice dated the 29th of June, 1991 was issued later in time the officer concerned had not chosen to ensure that a copy of the memorandum of inspection had been duly handed over or served to the consumer or his representative.

HOWEVER, a somewhat lame stand was half-heartedly attempted on behalf of the appellant that though admittedly the copy of the momrandum of inspection was not served yet the consumer was apprised of the details thereof vide Ex.R-2 dated the 28th of June, 1991. Even this untenable submission is completely negatived by the record. On behalf of the respondents Mr. B.R. Gupta forcefully pointed out that though Annexure R-2 mentioned on the front page that some details were on the reverse, the same was totally blank both in the original and the copies thereof. The attempt of the learned Counsel for the appellant even to cluch at a straw is thus totally vain. Last, but not the least, the learned Counsel for the appellant placed reliance on the observations of the Karnatka State Commission I (1991) CPJ 450 ''Escon Private Ltd. v. The Karnataka Electricity Board & Others'' for contending that the supply of electric energy is a sale of goods and since the respondent was an industrial establishment, the same was for a commercial purpose and, therefore, the respondent was ousted out of the definition of a ''consumer'' and thus ineligible to raise and maintain a consumer dispute under the Act.

Within this jurisdiction the aforesaid submission has only to be noticed and rejected. It is true that the Escon Private Limited Case would lend some handle to the contention of the learned Counsel for the appellants. What however, deserve notice is, that this Commission in II (1991) CPJ 38. ''Haryana State Electricity Board v. Dinesh Kumar'' was seized of the somewhat analogous if not identical question in the said case and therein after an exhaustive discussion it was concluded as under:- "In the light of the above, the answer to the first question posed at the outset is rendered in the terms that the supply of electrical energy under the Act is a hiring of service and not a purchase of goods."

THE aforesaid ratio was then sought to be challenged in the later case of this Commission in I (1992) CPJ 127. ''S.D.O A.E.E. City Division, Hissar v. M/s. Hotel Palki, Hissar'' on the specific ground of the opposite view in Escon Private Limited''s case. After a in depth consideration of the issue, it has been categorically held as follows therein :- "For the very detailed reasons recorded on this point in ''Haryana Electricity Board v. Dinesh Kumar'' we are constrained to record our respectful dissent from the dictum aforesaid of the Karnatka State Commission (i.e. Escon Private Limited v. Karnataka Electricity Board & Others. In the light of the above discussion, the ratio decidendi on this point in the ''Haryana State Electricity Board v. Dinesh Kumar'' even after a fresh consideration is hereby reaffirmed."

It equally deserve notice that in the ''S.D.O.A.E.E. City Division, Hissar v. M/s. Hotel Palki, Hissar'' it has been further held that a State Commission is bound by its own previous decision on pure questions of law. Therefore, for a twin reasons, the last submission of the learned Counsel that the respondent was not a consumer is wholly untenable and is hereby rejected.

IN the light of the above, this appeal must fail and is hereby dismissed with costs which are assessed at a modest sum of Rs. 200/- only. This shall be paid over to the respondent within two months from today failing which compliance will have to be enforced under Section 27 of the Act. Appeal dismissed with costs.