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Judgment
Samaresh Banerjea, J.—In the instant writ application the petitioner has challenged the impugned action of the West Bengal State Electricity Board (hereinafter referred to as the Board) in disconnecting the electric supply to Rupmahal Cinema without any notice.
It is the case of the petitioner that on 10th May, 1995 at about 4.30 p.m. when the cinema hall was running, some of the personnels of the said Board came to the cinema hall and disconnected the electric supply illegally without any notice.
Is the contention of the respondent that such disconnection was made on the ground of pilferage of electricity by tampering the electric meter.
It is the case of the respondents in their affidavit that in course of physical verification on 6th May, 1995, it appeared that the concerned meter box were in unsealed condition and a hole of half inch diameter was found at left lower corner of the commercial meter and because of the same the respondents have assessed a sum of Rs.29.095.63 towards charges for unmetered consumption because of such pilferage.
The petitioner has also challenged such claim of that the respondents towards alleged unmetered consumption.
It may be recorded at the time of admitting the writ application the respondents were directed to restore the electric connection to the cinema hall of the petitioner on payment of Rs. 25,000/- subject to final order of the Court.
The question, therefore, which has come up for determination before this Court whether the respondents could have disconnected the electric supply in the manner aforesaid without notice and whether they can claim such amount towards unmetered consumption.
So far as the first question is concerned although it has been submitted by the learned Counsel appearing for the petitioner relying upon the decision of a Hon''ble Single Judge of this Hon''ble Court in the case of Hanuman Steel Rolling Mill & others vs. C.E.S.C. Ltd.. AIR Calcutta 449, that such disconnection cannot be made without notice, the aforesaid decision will not be applicable in the instant case.
The decision in the case of Hanuman Steel Rolling Mills (supra) was rendered in a case where the C.E. S.C. and not West Bengal State Electricity Board was the licensee in supply of electricity to the petitioner concerned. On interpretation of the various provisions of the Indian Electricity Act, the Court in the said case held, a notice was required to be served.
Although the provisions of Indian Electricity Act will not doubt be applicable in the instant case also, in the instant case admittedly the parties are governed by an agreement which empowers the Board to disconnect the electric supply of electrical energy to a consumer without any notice.
The relevant Clause 25 of the agreement may he quoted hereunder:-
"The Board shall have the right to disconnect supply of electricity energy to a consumer forth with without any notice if and when the Board is of the opinion that the metering installations including Meter. C.T.S. and associated circuitry or such of them is are found to have been handled and/or tampered with wrongfully and in that event a First Information Report shall be filed with the local Police Station not later than 24 hours from such disconnection."
It will thus appear from the said agreement that the West Bengal State Electricity Board under the said agreement can disconnect supply of electrical energy to a consumer forthwith without any notice if and when the Board is of the opinion that the metering installations have been tampered with wrongfully.
Although Mr. Pranab Chattopadhyay. the learned Counsel appearing for the Board has relied on the decision of Supreme Court in the case of M.P. Electricity Board, Jabalpur and others Vs. Harsh Wood Products and another, in my view that such decision of the Supreme Court will not be applicable in the instant case.
In the aforesaid case, the Supreme Court upheld the power of the M. P. Board to disconnect electric supply without notice as regulation framed by the Board under the Electricity (Supply) Act, 1948, gave such power to the Board.
In the instant case when this disconnection was made, till then no regulation under the 1948 Act was framed by the Board.
The only power which the Board, therefore, had to disconnect in case of tampering the meter without notice was under the aforesaid agreement by which no doubt both the parties are bound.
It may be noted, however, that under the said agreement it is only the Board itself which has the right to disconnect supply of electrical energy if and when (he Board forms an opinion that the metering installation were tampered.
It may also be noted in this connection what is the meaning of Board is also defined tinder The Electricity (Supply) Act, 1948, and it will appear from such definition the same docs not include all Officers in and personnels of the Board.
In the instant case no record has been produced by the respondents to satisfy the Court that such requisite opinion under the agreement was formed by the Board or the power of Board in respect thereof were delegated to the other Inspecting Officers of the Board to disconnect.
In fact at the relevant point there was no such delegation of power by the Board to its Officers although recently such delegation has been made by the Board by an appropriate resolution which has come to the notice of this Court in connection with another writ proceedings, namely, Apu Fish Freezing.
The position, therefore, which emerges is that although the Board no doubt under The said agreement were so empowered to disconnect electric supply without notice in the aforesaid situation, in the instant case no such opinion having been formed by the Board, disconnection could not have been made by the inspecting leam of the Board without notice.
The aforesaid question as to whether such disconnection could not have been made in the instant case without notice however has now become academic in view of the fact because of the interim order, the respondents have restored the electric connection and at present regulation has been framed under the provisions of The Electricity (Supply) Act, 1948, empowering the Board to make such disconnection without notice in case of pilferage of electricity.
That apart power of the Board has also now been delegated to its Officers and, therefore, in case of pilferage the Officers of the Board on detection of such pilferage can disconnect the supply of energy to a consumer.
The question, therefore, which now remains to be considered whether the respondents could claim any account (amount ?) towards alleged unmetered consumption in case of such alleged pilferage.
When such disconnection was made, admittedly the Board had no power either under any provision of the Act or Rules or in an agreement to make such assessment.
At present, however, under the regulation framed under the said Act of 1948. the Board is empowered to make a provisional assessment towards such unmetered consumption in case of pilferage and thereafter to make the final determination after hearing the consumer.
Similar power of the Andhra Pradesh State Electricity Board has been upheld by the Supreme Court in the case of M/s. Hyderabad Banaspati Ltd. vs. Andhra Pradesh State Electricity Board & another, JT 1998 SC 84. where regulations framed by the said Board under the 1948 Act was challenged on various grounds.
The learned Advocate appearing for the petitioner has submitted, inter alia, that the Board alleging such pilferage which is being disputed by the petitioner, the " Board cannot be Judge of its own cause and, therefore, cannot determine such alleged unmetered consumption.
Such argument, however, is no more available to the petitioner in view of the decision of the Supreme Court in the aforesaid case of M/s. Hyderabad Banaspati Ltd. vs. A.P. State Electricity Board (supra).
I am also unable to accept the submission of the learned Advocate appearing for the petitioner that the dispute between the petitioner and the Board relating to such alleged pilferage and claim of the Board towards unmetered consumption is to be decided by the Chief electrical Inspector.
In the aforesaid case of M/s. Hyderabad Banaspati Ltd. vs. A.P. Stale Electricity Board (supra), the Supreme Court following its earlier decision in the case of Madhya Pradesh Electricity Board and Others Vs. Smt. Basantibai, held that a dispute regarding commissioning of fraud, tampering with meter and breaking of the body seal is one outside the ambit of Section 26(6) of the Electricity Act and the Electrical Inspector has no jurisdiction to decide such case of fraud.
In view of the aforesaid provisions of law, the dispute as to tampering of the meter and claim of the Board towards unmetered consumption cannot be referred to Electrical Inspector.
It may also be recorded that although have held in the case of Pankaj Mukherjee vs. C.E.S.C. Limited & others, that the aforesaid decision of the Supreme Court in the said case of Hyderabad Banaspati Ltd. (supra), would not be applicable in case of similar dispute in between C.E.S.C. and its customer, in the instant case, such a dispute is between the petitioner and the West Bengal State Electricity Board and the decision in the case of Hyderabad Banaspati Ltd., having been rendered under The Electricity (Supply) Act, 1948, such pronouncement of law by the Supreme Court is very much binding upon this Court.
Therefore, there cannot be any reference of the dispute in the instant case of the Electrical Inspector because of the aforesaid decision of the Supreme Court.
As to the claim of the respondents towards unmetered consumption, since under the regulation now framed by the Board, Board is empowered to determine such amount after giving hearing to the consumer, even though at the time of disconnection the Board was not so empowered, in my view, in fitness of things the dispute both regarding alleged tampering and towards alleged unmetered consumption should be decided by the Board itself under the provisions of the regulation after giving reasonable opportunity of hearing to the petitioner.
The present writ application is. therefore, disposed of by directing that the Board shall now determine in terms of regulation framed under The Electricity (Supply) Act. 1948, after giving hearing to the petitioner whether there was at all any pilferage of Electricity and if so what will be the actual amount due towards alleged unmetered consumption. The Board must come to a decision in respect thereof by passing a reasoned and speaking order.
In the event of success of the petitioner at such proceedings the amount already paid by the petitioner under order of the Court towards such alleged unmetered consumption will be adjusted by the Board with the future bills of the petitioner. In the event, the petitioner fails and it is found that further amount is due towards unmetered consumption, such amount shall be paid by the petitioner.
The writ application is, thus, disposed of.
There will be no order as to costs.
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