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Judgment
B.H. Marlapalle, J.—Heard the learned counsel for the respective parties.
The petitioner is an Industrial establishment at Jalna and is an H. T Consumer of Respondent No. 1 Board. The power supply of the petitioner factory was disconnected on 7-9-1998 in pursuance of the letter of even date issued by the Executive Engineer, M.S.E.B., Division No. 1, Jalna. The disconnection of power supply has been effected on the ground of alleged theft/pilferage/illegal abstraction of electricity as is reported by the flying squad which carried out an inspection on 6-9-1998, on the premises of the petitioner.
Initially the petitioner had challenged the right of the Board to disconnect the power supply without any notice and more so the legality of clause 31(e) of the Conditions and Misc. Charges for Supply of Electrical Energy (hereinafter referred to as Supply Conditions for short)as framed by the Board and its constitutional validity. By way of interim relief the petitioner has prayed for directions to restore the power supply forthwith.
It appears that subsequent to the power supply disconnection, provisional electricity bill was issued to the petitioner by the Board on or about 11-9-1998 demanding an amount of Rs. 2,93,27,333.61 for the period from September, 1995 to August, 1998 by way of arrears. During the pendency of the petition the Chief Engineer of the Respondent No. 1 Board has made the final assessment of the bill as required under clause 31(e) of the Supply Conditions and served on the petitioner on 12-10-1998. In the said final assessment the demand made is of Rs. 2,60,72,829/-. By way of amendment, the petitioner has also challenged the legality and validity of the final assessment bill and has brought on record various representations made in that regard by the petitioner.
The Respondent Board has filed its affidavit-in-reply and has opposed the maintainability of the petition on the ground that it involves disputed questions of facts. The Board has also contended that the issue of challenge to the legality and validity of clause 31(e) of the Supply Conditions is no more res Integra in view of the recent Judgment of the Supreme Court in the case of M/s. Hyderabad Vanaspathi Limited Vs. Andhra Pradesh State Electricity Board and Others, and further urged before us, not to invoke extra-ordinary powers under Article 226 of the Constitution of India, in view of the seriousness of the allegations against the petitioner regarding theft/illegal abstraction of electricity and in this regard the Board has relied upon the Judgment of the Supreme Court in the case of Bihar State Electricity Board and others Vs. Parmeshwar Kumar Agarwala, etc. etc., , wherein the Supreme Court has, inter alia observed as under:-
Theft of electricity has become so chronic a disease that there can be no doubt that all efforts must be made to curb the same; not only to make the State Electricity Board viable, but also to ensure regular supply of electricity to the lawful consumers at reasonable tariff.
The Respondent board has brought on record the report of inspection carried out by the flying squad on 6-9-1998 allegedly in the presence of Shri Shailendra Gupta, Supervisor of the petitioner Company (the said Shri Gupta has signed the inspection report) and the relevant portion of the report reads as under:-
Supply to the consumer disconnected and after inspection of metering cable it was observed that the R & CT, B & CT and B & PT cables had markings of cuts. The outer insulation of B & PT was removed and it was found that the armouring had cut and the red wire (phase core) was cut and some other device was soldered in between. Similarly the R & CT and B & CT cables outer insulation was removed and it was found that in these cables too the inner armouring has cuts and some solution like material was filled in the coils, so inner cables could not be seen. AH the three cables were cut from glands of CTS and PTS and from the TTB near the meter box were removed and handed over to the Police authorities.
The learned counsel for the petitioner has invited our attention to a Judgment of the Supreme Court in the case of Municipal Corporation of Delhi Vs. M/s. Ajanta Iron and Steel Company (Pvt.) Ltd., and Judgment in the case of M.P. Electricity Board, Jabalpur and others Vs. Harsh Wood Products and another, . In the case of Municipal Corporation of Delhi (supra) condition No. 36 of the supply Condition of Delhi Electricity Supply Undertaking was considered and it was held that notice of disconnection was a pre-condition for disconnection of electric supply. This Judgment is therefore, based on the language of condition No. 36 of the supply conditions of Delhi Electricity Supply Undertaking and the matter before the Apex Court had arisen out of a Civil Suit filed by the consumer. In the next case of M. P. Electricity Board, Jabalpur and others (supra), the Apex Court has, inter alia, held that the right to disconnect power supply u/s 24 is available with the board on the failure of the consumer to pay the electricity bill, whereas the power of disconnection in case of pilferage was not covered by the provisions of section 24 of the Electricity Act, 1910. We are afraid that both these Judgments do not come to the rescue of the petitioner inasmuch as clause 31(e) of the supply conditions as framed by respondent No. 1 board specifically gives a power to the Board to disconnect the power supply forthwith on the ground of alleged theft/pilfer age/illegal abstraction of electricity by any consumer. In fact, the Judgment of the Apex Court in the case of M. P. Electricity Board (supra) prima facie supports the action of the Board in the instant case.
The allegation of theft or pilferage or illegal abstraction of electricity has been vehemently denied by the petitioner as is set out in the different representations submitted to the Respondent No. 1 Board and its officers. This issue cannot be decided in a petition filed under Article 226 of the Constitution of India as it involves disputed questions of facts. However, a perusal of clause 31(e) of the supply conditions provides for a remedy of appeal against the final assessment bill in such cases. There is no dispute that the supply conditions are statutory in nature and are binding on the consumer as well as the Board. The petitioner has signed these conditions while applying for the H.T supply line, when a statutory remedy is provided for an appeal against the final bill submitted by the board, a writ petition under Article 226 of the Constitution of India need not be entertained as has been established by various legal pronouncements. In this regard we may usefully refer to the Judgment of the Supreme Court in the case State of Goa and others Vs. Leukoplast (India) Ltd. etc., , wherein the Apex Court, inter alia, held that where questions of facts were involved, there was no reason to bypass the statutory remedy and file a Writ Petition.
Clause 31(e) of the supply conditions also vests with the electricity board the power to reconnect the disconnected power supply if the consumer deposits an amount not less than 20% of the final bill. In fact, the Respondent-board has made such an offer to the petitioner in writing. However, it is the contention of the petitioner that due to the precarious financial conditions through which the petitioner is passing presently, it is not possible to deposit such huge amount which comes to approximately Rs. 52 lacs. The petitioner has alternatively suggested the mode of bank guarantee as well as adjustment of the deposit already made with the Respondent-board. We feel that it is left to the discretion of the board to consider these proposals.
For the present we are of the opinion that there is a remedy of appeal provided to the petitioner and the petitioner is desirous to file such an appeal. The period for deciding such an appeal has not been set out in clause No. 31(e) of the Supply Conditions and the learned counsel for the Board orally stated on instructions that such an appeal, if made by the petitioner, could be decided within a period of one month or so. The petitioner has expressed its difficulty to make a substantive appeal in the absence of certain important documents which the petitioner has requested the board to supply and there has been no response as yet by the board in this regard. Our attention has been invited to the letter dated 1-10-1998 which has been received by the Board on 3-10-1998.
The learned counsel for the petitioner, in support of his prayer for interim directions to the electricity Board to reconnect the power supply unconditionally, has relied upon two orders passed by a Division Bench of this Court (Mane and Kochar, JJ.) in Writ Petitions Nos. 4008/98 and 4036/98. By the said orders, these petitions have been admitted and by way of interim relief in W. P. No. 4008/98 the electricity Board has been directed to restore the power supply unconditionally, whereas in W.P. No. 4036/98 the Board has been directed to restore the power supply on payment of Rs. 15 lacs. The orders relied upon by the learned counsel are of interlocutory nature and appear to have been passed taking into consideration the facts and circumstances prevailing in those cases. In fact, a perusal of the said interlocutory orders does not indicate that any reference has been made to the Conditions of Supply and more particularly clause 31(e) thereof. When the relevant facts regarding the alleged theft or illegal abstraction of electricity are in dispute and when it is prima facie established that the Board has acted as per the Supply Conditions which have statutory effect and are binding on the petitioner, there is no case to show that the Respondent-board has acted in contravention of any law or that it had failed to perform its statutory duty. As we have observed hereinabove the petition involves disputed questions of facts and there is an efficacious and substantive remedy of appeal available to the petitioner, we are not inclined to entertain (he petition and therefore, no orders of interlocutory nature can be passed by us, though the petitioner has relied upon the above referred interlocutory orders passed in other Writ Petitions. These orders will have to be interpreted in the light of facts of these cases. In the circumstances of the case at hand, we do not think that interim relief is warranted. We also note that clause 31(e) of the Supply Conditions provides for a remedy to the petitioner to get the power supply restored on payment of at least 20% of the final bill amount demanded by the electricity Board.
For the reasons stated hereinabove, we are not inclined to entertain the petition under Article 226 of Constitution of India and the same is hereby rejected summarily. However, we make it clear that we have not considered the merit of the petitioner''s challenge to the legality and validity of clause 31(e) of the Supply Conditions or the correctness of final demand bill. Taking into consideration the peculiar facts of this case we direct the Board to supply the documents as under :-
(A) To supply information and furnish documents showing the units of electricity supplied through the feeder at the 132 KVA Sub-Station Additional MIDC Jalna, during the period between September, 1995 and August, 1998 and whether any line loss was found by the Board during the aforesaid period.
(B) To supply the documents including the circulars, guidelines showing the permissible limits of line loss issued by the Board/Government.
(C) To furnish information as to whether any line loss was found of feeder supplying electricity to SRJ Petty Steels Pvt. Ltd., Jalna, at any point of time in an independent enquiry conducted by the M.S.E.B. and if so, supply the copy of such a enquiry report.
(D) To furnish the copy of the monthly line loss of each of the feeder supplying electricity to SRJ Petty Steels Pvt. Ltd., Jalna for the period between September, 1995 to August, 1998.
These documents should be supplied as early as possible and in any case by 19lh October, 1998, so as to enable the petitioner to file an appeal as provided under clause 31(e) of the Supply Conditions. If such an appeal is filed by the petitioner on or before 26th October. 1998, we further direct the appellate authority of the Respondent Board (for H.T. consumers) to decide the said appeal within a period of 15 days from the date of receipt of the appeal after giving due hearing to the petitioner. We record the undertaking of the petitioner that due co-operation will be extended to the appellate authority to dispose of the appeal if filed, within the stipulated period as mentioned hereinabove.