LAWS(GJH)-2004-9-8

LEENABEN Vs. AHMEDABAD ELECTRICITY CO LTD

Decided On September 10, 2004
LEENABEN W/O SOHANLAL HEMANDAS SONI Appellant
V/S
AHMEDABAD ELECTRICITY CO.LTD. Respondents

JUDGEMENT

(1.) The present petitions have been preferred under Article 226 of the Constitution of India, whereby the petitioners have challenged the action of the respondent no.1 Company of disconnection of electricity supply and have prayed for a declaration that the respondent no.1 company has no power and authority to disconnect the power supply in absence of express provisions of Act or Rules framed thereunder.

(2.) The learned counsel for the petitioners submitted that the respondent no.1 has committed breach of section 126 of The Electricity Act, 2003 (hereinafter referred to as "The Act of 2003") as the Assessing Officer has to make inspection of the premises of the petitioner, has to issue notice of hearing and thereafter only, the assessment under section 126 of the Act of 2003 can be made by the respondent no.1 company. It is also submitted by the learned counsel for the petitioners that for the alleged theft of electricity, the respondent no. 1 company has no power of disconnection as per section 56 of the Act of 1956. The respondent no.1 has to give at least 15 days' clear notice in writing. Such notice has not been given and hence the action of the respondent no.1 company of disconnection of electricity is bad in law and deserves to be quashed and set aside and should be held to be illegal and dehors of the provisions of the Act of 2003. It is also submitted by the learned counsel for the petitioners that Electricity Supply Code is not framed by the respondent no. 2 and, therefore, there is no power of disconnection of power supply with the respondent no.1 company. The learned counsel for the petitioners has also submitted that as per section 127 of the Act of 2003, upon payment of 1/3rd of the assessed demand being deposited with the respondent no.1 company, the respondent no. 1 ought to reconnect electricity connection and thereafter, the respondent no.1 can finalise the assessment as per the provisions of section 126 of the Act of 2003. However, no such opportunity has been given by the respondent no.1 company and hence the action of the respondent no.1 of disconnection of electricity supply is illegal, arbitrary and hence violative of Article 14 of the Constitution of India.

(3.) Upon issuance of the notice, the respondent no.1 company has appeared through their learned advocate, who mainly submitted that the prayer in the petition is only in respect of the challenge of the power or authority to disconnect the power supply by the respondent no.1 in absence of any provisions of the Act or Rules framed thereunder. The petitioner has not prayed for an assessment made by the respondent no.1 company. It is also submitted by the learned counsel for the respondent no.1 company that under the provisions of section 21(2) of the Indian Electricity Act, 1910 (hereinafter referred to as "The Act of 1910"), Conditions of Supply have been framed and the Government of Gujarat has approved conditions of supply vide its notification no. GU-94-19-AEC-1691-4208-K dated 14th October, 1994 and as per clause 22(c) thereof, the licensee (in the present case, respondent no.1) shall be entitled to disconnect the supply of a consumer who has indulged in malpractice. Similarly, under clause 23(b), whenever there is a theft of energy, by any consumer, the licensee (respondent no.1) has all power to disconnect the electricity until the amount so assessed against the theft of energy is paid by the consumer. It is also contended by the learned counsel for the respondent no.1 company that as per Annexure "D", to the Conditions of Supply framed under section 21(2) of the Act of 1910, a format of agreement has been given which is to be signed by the consumer and by the officer of the respondent no.1 and as per clause 7 thereof, the condition of supply framed under section 21(2) of the Act of 1910 is binding upon the present petitioners and, therefore, the aforesaid two clauses 22(b) (theft of energy) and 23(c) (for malpractice) are binding to the petitioners which empower the respondent no.1 company to disconnect electricity supply in case of malpractice as well as theft of energy. In case of theft of electricity, such disconnection shall be continued until the amount assessed against theft of energy is paid by the consumer. In the present case, electricity meter of the petitioner was found tampered with and therefore, electricity connection of the petitioners was disconnected and the meter was taken away by the respondent no.1 by applying seals and for that, inspection report was given, a copy of which is at Annexure "A" to the memo of the petition. It is submitted by the learned counsel for the respondent no.1 that the petitioners have committed theft of electricity as defined under section 135 of the Act of 2003. It is also submitted by him that officers of respondent no.1 have all power to enter, inspect and search the premises of the petitioner, if they have a reason to believe that electricity has been, is being or is likely to be used unauthorisedly as per the order passed by the State of Gujarat, Energy and Petrochemicals Department, Gandhinagar dated 5th June, 2004. Therefore, officers of the respondent no.1 company have been empowered under section 135(2) of the Act of 2003 by the State of Gujarat. The learned counsel for the respondent no.1 has further submitted that the board has inherent power to disconnect the electricity connection in case of malpractice and theft of energy. In support of his this contention, he has placed reliance on the judgments of the Hon'ble Apex Court, reported in AIR 1996, SC, 2258 as well as AIR 1997, SC,1101. He has further submitted that as per section 135(2)(b) of the Act of 2003, the respondent no.1 has all power to remove all such devices which are used for unauthorised use of energy. In the present case, the meter of the petitioners was found tampered with (as per Annexure "A" to the memo of the petition) and, therefore, the same was removed by applying seals. Lastly, it is submitted by the learned counsel for the respondent no. 1 that as per section 185(2) and (3) read with Schedule, Conditions of Supply and Miscellaneous Charges framed under section 21(2) of the Act of 1910, are binding to the petitioner, more so when there is an agreement as per Annexure "D" appended with the Conditions of Supply and hence, the petitioners are bound by the Conditions of Supply and especially condition nos. 22 and 23 thereof, which empower the respondent no.1 to disconnect electricity supply in case of malpractice and theft of energy respectively. The aforesaid contention is also fortified by reading section 185(5) of the Act of 2003 read with section 6 of General Clauses Act, 1896. Thus, the conditions of Supply framed under section 21 of the Act of 1910 are binding upon the petitioners.