Rajinder Kumar vs Haryana Vidyut Parsaran Nigam Ltd.

G.S. Singhvi, J.

Whether clause 24A(xiii) of the Terms and Conditions of Supply of Electricity which requires the payment of 50% of the assessed amount as a condition precedent to the entertaining of appeal is ultra vires to Article 14 of the Constitution of India ?

A perusal of the averments made in the petition and the contents of the annexed documents shows that petitioner No. 1 had obtained electricity connection from the Haryana State Electricity Board (hereinafter referred to as ''the Board'') in 1987 for running a crusher. He also installed an Atta Chakki, which was later on leased out to petitioner No. 2. The petitioners have averred that in July, 1998, there were heavy rains in the area leading to the leakage of current in the wall. They made a complaint about this to the authorities of the erstwhile Board who gave direct connection to prevent accident likely to be caused due to leakage of current. However, on 2.8.1998 their premises were checked by the officers of the Board who accused them of committing theft of electricity and on the very next day memo dated 3.8.1998 was issued imposing penalty of Rs. 1,17,054/. They filed appeal against the illegal demand which has been dismissed by the Executive Engineercum Appellate Authority on the ground of nonpayment of 50% of the assessed amount as required by clause 24A(xiii) of the Conditions of Supply.

Shri Pritam Saini urged that the order passed by the appellate authority should be quashed on the ground of arbitrariness and violation of the principles of natural justice. Learned counsel argued that the condition incorporated in clause 24A(xiii) of the Conditions of Supply requiring the consumers to deposit 50% of the assessed amount as a condition to the hearing of appeal should be declared as ultra vires to the Electricity (Supply) Act, 1948 (hereinafter referred to as ''the Act'') and Articles 14, 19(1)(g) and 21 of the Constitution of India. He submitted that by incorporating the requirement of depositing 50% amount, the right of appeal conferred upon the consumer has been rendered nugatory. Shri Saini submitted that the demand Annexure P.1 raised by the SubDivisional Officer is totally arbitrary and unjustified because the petitioners were not given any notice or opportunity of hearing before the impugned demand was created.

In our opinion, none of the contentions urged by the learned counsel merits acceptance. The rights and liabilities of the erstwhile Haryana State Electricity Board were transferred to Haryana Vidyut Parsaran Nigam Ltd. (hereinafter referred to as ''H.V.P.N.'') which is registered as a government company. After its formation, H.V.P.N. decided to take stringent measures for curbing the theft of energy being supplied to the consumers. With this object and view, the Terms and Conditions of Supply were amended by issuing notification under Section 49 of the Act. Clause 24a(xiii) of that notification which relates to appeal reads as under :

"24A(xiii) Appeal

(1) A consumer aggrieved by an order of assessment made under condition 24a(xi) may prefer an appeal to the appellate authority prescribed in condition 24A(iv) within thirty days from the date of issue of the bill under condition 24A(xiii) provided the consumer has made payment of atleast 50% of the amount of assessment within 48 hours as per para 24A(xi)2(b) above.

(2) The memorandum of appeal shall be in duplicate in neat writing or typed and duly signed by the consumer. All the material on which the appellant seeks to rely for purposes of his appeal shall also accompany the memorandum of appeal.

(3) The appeal shall be decided as far as possible within a period of 30 days after giving a reasonable opportunity to the consumer of being heard in person or through a duly authorised officer shall also be offered by getting the comments of the checking officer in writing or hearing in person on the issues raised by the consumer. Provided that if the consumer fails to turn up in spite of being given a reasonable opportunity of being heard the appellate authority may proceed ex parte and decide the appeal on merits.

(4) The appellate authority may :

(i) Confirm, reduce, enhance or anull the assessment or

(ii) Conduct a further enquiry itself or call for a report from the officer who has made the assessment and dispose of the appeal in the light of such further enquiry or report.

(iii) Pass such other order as it deems fit provided that an order made under (i) or (ii) above shall contain the reasons thereof.

Provided further that no order adverse to the consumer shall be passed without giving him reasonable opportunity against an order to be passed in appeal.

An order made in appeal under this condition shall be final."

The contention of the learned counsel that the right of appeal conferred upon the consumer has been frustrated due to the incorporation of requirement of depositing 50% amount assessed by the competent authority deserves to be rejected in view of the decisions of the Supreme Court in Smt. Ganga Bai v. Vijay Kumar, 1974(2) SCC 393, The Anant Mills Co. Ltd. v. State of Gujarat, 1975(2) SCC 175, Shyam Kishore v. Municipal Corporation of Delhi, 1983(1) SCC 22, Vijay Prakash D. Mehta Shri Jawahar D. Mehta v. Collector of Customs (Preventive), Bombay, 1988(4) SCC 402 and Gujarat Agro Industries Co. Ltd. v. Municipal Corporation of City of Ahmedabad, IV (1999) SLT 204. In the last mentioned decision, a two Judges Bench of the Supreme Court examined the question in the context of the provisions contained in Section 406(2)(e) of the Bombay Provincial Municipal Corporations Act, 1949 which requires the assessee to deposit a certain percentage of tax as a condition precedent to the entertaining of appeal. While repelling the argument that the condition was arbitrary and unreasonable, their Lordships analysed the earlier decisions and then held as under :

"The requirement about the deposit of the amount claimed as a condition precedent to the entertainment of an appeal which seeks to challenge the imposition or the quantum of that tax, in our opinion, has not the effect of nullifying the right of appeal, especially when we keep in view the fact that discretion is vested in the appellate Judge to dispense with the compliance of the above requirement. All that the statutory provision seeks to do is to regulate the exercise of the right of appeal. The object of the above provision is to keep in balance the right of appeal, which is conferred upon a person who is aggrieved with the demand of tax made from him, and the right of the Corporation to speedy recovery of the tax. The impugned provision accordingly confers a right of appeal and at the same time prevents the delay in the payment of the tax. We find ourselves unable to accede to the argument that the impugned provision has the effect of creating a discrimination as is offensive to the principle of equality enshrined in Article 14 of the Constitution."

In view of the law laid down by the Supreme Court, we have no hesitation to reject the contention urged by Shri Saini that the requirement of depositing 50% of the assessed amount is arbitrary, unconscionable or unconstitutional or violative of Articles 14, 19 and 21 of the Constitution of India.

The petitioner''s challenge to the validity of AnnexureP.1 cannot be entertained because they have already availed the alternative remedy of appeal. In the memo of appeal filed by them before the Executive Engineer, the petitioners had incorporated all those grounds which have been raised in this petition. Therefore, we do not consider it proper to entertain the petitioner''s grievance against the impugned demand. Instead, we deem it appropriate to direct that the petitioners may deposit 50% of the assessed amount and request the appellate authority to decide their appeal on merits. With these observations, the writ petition is dismissed.