Court No. - 36 Case :- WRIT - C No. - 41149 of 2010 Petitioner :- M/S Gupta Ice Factory Respondent :- Dvvnl And Others Petitioner Counsel :- B.C. Rai Respondent Counsel :- Rajesh Tripathi Hon'ble Sheo Kumar Singh,J.
Hon’ble Rajesh Chandra,J.
Heard Sri B.C. Rai, learned counsel for the petitioner in
support of this petition and Sri B.P. Singh Dhakray assisted
by Sri H.P. Dube, learned counsel appearing for the Power
Corporation.
As short affidavits are also exchanged annexing with copy of
relevant documents/ orders, we are having basic facts, with
the consent,writ petition is being finally disposed of.
The challenge in this petition is the order dated 8.7.2010
issued by the Sub Divisional Officer (Annexure- 10 to the
writ petition) by which petitioner has been informed that his
electricity connection has been disconnected and as the
gate of the premises was closed, at the time of inspection
reading could not be taken. In the concluding portion of the
order it is mentioned that the electricity connection has been
disconnected on account of non-payment of huge amount
i.e. amount of Rs.33,66,478/- .
Learned counsel for the petitioner submits that the aforesaid
exercise of disconnection by the respondent officials is
totally, arbitrary, illegal and is in violation of the principles of
natural justice.
Submission of the learned counsel for the petitioner is that
for the purposes of disconnection, there is a procedure so
provided in the Electricity Act, 2003. His further submission
is that on 12.8.2006 ,checking team visited the petitioner’s
premises and prepared an illegal and false inspection
report ,contrary to the prescribed procedure and without
ascertaining and narrating the true facts, abruptly
disconnected electric supply of the petitioner.
Sri Dhakray opposed the submissions of the learned counsel
for the petitioner and raised various preliminary objections.
Sri Dhakray submits that being aggrieved by the Theft
Assessment order dated 26.8.2006 for a sum of Rs.
29,83,807/- petitioner filed writ petition being Civil Misc. Writ
Petition No. 49123 of 2006 before this Court and this Court
vide order dated 6.9.2006 disposed of the writ petition finally
with a direction that ‘in case the petitioner deposits a sum of
Rs. 5 lakh with the respondent no. 2 and files an appeal
against the order dated 26.8.2006 ( Annexure – 7to the writ
petition) within a month, the same shall be decided with in
one month thereafter. Till the decision of the aforesaid
appeal, no coercive steps shall be taken against the
petitioner and the electricity connection of the petitioner shall
be restored within a week from the date of aforesaid
deposit’.
Electricity Department, aggrieved by the order dated
6.9.2006 approached the Hon’ble Supreme Court by means
of filing Special Leave Petition (C) No. 17816 of 2006 in
which Hon’ble Apex Court stayed the operation of the order
dated 6.9.2006 passed in Writ Petition No. 49123 of 2006 on
10.11.2006.
Petitioner again approached to this Hon’ble Court by means
of filing Civil Misc. Writ Petition No. 227 of 2007 despite
earlier stay order dated 10.11.2006 passed by Hon.Apex
Court in S.L.P.(C) No. 17810 of 2006 and this Court again in
Writ Petition No. 227 of 2007 passed final order dated
8.1.2008 and disposed of the Writ Petition with a direction
that ‘in the circumstances if the petitioner has deposited
one third of the assessment bill dated 26.8.2006, the
appellate authority , respondent no.1 is directed to
dispose of the appeal of the petitioner expeditiously ,if
possible within a period of two months from the date a
certified copy of this order is filed before him by any of
the parties. Until the disposal of the appeal, no recovery
in pursuance of final assessment bill dated 26.8.2006
shall be made against the petitioner. It is made clear that
in case, there are other arrears on account of electricity
dues, the same can be recovered by respondents in
accordance with law’.
Further submission of the learned counsel for the power
corporation is that since the petitioner has not approached
this court with clean hands and obtained order from this
Court by concealing material facts and has also not
complied with the order passed by Hon’ble Apex Court in
S.L.P. (C) No. 17810 of 2006, respondents filed Contempt
Petition No. 73 of 2010 before Hon’ble Apex Court and the
Hon’ble Apex Court issued contempt notices to the petitioner
on 5.7.2010. It has further been submitted that the contempt
proceedings have been drawn against the petitioner for
violating the order of Hon’ble Apex Court 10.11.2006 passed
in Special Leave Petition.
From the facts noted above, it is clear that the first order of
this Court is dated 06.09.2006 passed in Civil Misc. Writ
Petition No. 49123 of 2006 in which it was directed that the
petitioner shall deposit a sum of Rs. 5,00,000/- with power
corporation and may file an appeal against the order dated
26.08.2006 within a month and that the appeal shall be
decided within one month thereafter and the further direction
that till the decision of the aforesaid appeal no coercive
steps shall be taken against the petitioner and that the
electricity connection shall be restored within a week from
the date of deposit of Rs. 5,00,000/-. was stayed by the
Apex Court in Special Leave Petition (C) No. 17816 of 2006
vide order dated 10.11.2006. The record reveals that the
petitioner then moved an application dated 16.11.2006
before the Apex Court for further direction and for
clarification of the interim order dated 10.11.2006 and
prayed as under:-
(A) Clarify and modify the order dated 10.11.2006 passed by this
Hon’ble Court to the effect that respondents/applicants may not
disconnect the electricity connection pursuant to the said stay order
granted by this Hon’ble Court;
(B) during the pendency of SLP no recovery, pursuant to the said order
granted by this Hon’ble Court may be made effective as the
respondents/applicants have already deposited Rs. 5,00,000/- equal to
1/3rd which can be recovered from the respondents/applicants under
Section 126 of the Act, for the purpose of filing appeal under Section
127 of the said Act before the Commissioner;
(C) direction may be given to commissioner Agra Division, Agra to
dispose of appeal dated 16.10.2006 as early as possible.
It is admitted that in spite of the above aforesaid application
dated 16.11.2006 no modification/clarification in the order
has so far been made by Hon’ble The Apex Court. It appears
that without bringing the said application dated 16.11.2006
( for modification of Apex Court’s order dated 10.11.2006) to
the notice of the Managing Director of the power corporation
the petitioner made a representation that he is ready and
willing to deposit 1/3rd of the amount due and that the
electricity connection may be restored. The petitioner then
succeeded in getting the reconnection on 28.02.2007. This
order for reconnection was apparently in the teeth of the
order of Hon’ble the Apex Court passed on 10.11.2006. The
counter affidavit filed on behalf of power corporation reveals
that after the order of Hon’ble the Apex Court issuing
contempt notice on 05.07.2010, the Executive Engineer
passed an order for the disconnection of the electricity and it
was under the directions of the Executive Engineer that the
Sub Divisional Officer disconnected electricity and wrote the
impugned letter dated 08.07.2010 to the Executive Engineer
that the electricity has been disconnected.
From the facts and circumstances noted above it is clear
that all the subsequent developments can be said to have
taken place after the order of Hon’ble The Apex Court in
Special Leave Petition dated 10.11.2006.
That being so, we are not satisfied by the submissions made
on behalf of petitioner that all the questions which are
involved in the present case being question of fact can be a
matter of a scrutiny straightway by this Court specially when
initial cause of action and intervention/stay by this court is
engaging attention of Hon’ble the Supreme Court.
Submission of the learned counsel for the petitioner in
respect of illegal disconnection of the electricity can always
be a matter of argument before the appellate authority itself
where the appeal of the petitioner alongwith stay application
is pending and it is for the appellate authority to pass
appropriate order in accordance with law. The averments
about pendency of appeal and stay application is clearly
stated in para -24 of the writ petition itself.
The petitioner may lay his grievances before the appellate
authority with regard to the disconnection of his electricity in
the pending appeal or may file appeal against the fresh
disconnection order if the law so permits.
Various decisions on which reliance has been placed by the
learned counsel for the petitioner are as under:-
(i) M/s Stan Commodities Pvt. Ltd. Vs. Jharkhand State Electricity
Board & others. 2007 ELR (Jh) 1469.
(ii) Employees State Insurance Corporation, Kanpur and other
Vs.LM.L. Ltd. Kanpur and another, 2006(2) AWC 1735.
(iii) Municipal Corporation of Delhi Vs. Ajanta Iron and Steel Company
(Pvt.) Ltd.1990(2) SCC 659.
(iv) Swastic industries Vs. Maharashtra State Electricity Board (1997) 9
S.C.C. 465
(v) Primier Ice Factory Vs.The Commercial Manager Kanpur Electricity
Supply Admn. and another,AIR1988 Allahabad, 8.
(vi) Narendra Singh Bhasinand Com.Vs.S.N. Limaya Municipal
Commissioner,Nagpur and others, AIR 1966 Bombay,164
(vii) Corporation of the City of Nagpur Vs.The Nagpur Electric Light
and Power Company Ltd.Nagpur, AIR 1958 Bombay,498
(viii) M/s Bharat Barrel & Drum Manufacturing Com.Pvt.Ltd. Vs.The
Municipal Corporation of Greater Bombay and another, AIR 1978
Bombay 369.
(ix) Commissioner Karnataka Housing Board Vs.C.Muddaiah, (2007) 7
SCC , 689
(x) BPL Ltd.and others Vs. R. Sudhakar and others, (2004) 7 SCC
219.
(xi) Arunima Baruch Vs. Union of India and others ,(2007) 6 SCC ,120.
These decisions have no application to the facts of the
present case.
It is a case where petitioner has not come to this Court with
clean hands and inspite of stay granted by Apex Court on
10.11.2006 to the order of this Court dated 26.8.2006 and
thereafter moving clarification application dated 16.11.2006,
having not succeeded in getting any result, succeeded in
filing IInd Writ Petition and got some order from the
competent authority and thus on all these facts, petitioner dis
entitled himself from any consideration on merits of the
matter.
On all these facts and details noted above, we are not
inclined to grant any relief in this writ petition as the
petitioner has an alternative efficacious remedy available to
him and at the same to pursue his cause for which he has
already moved before Apex Court.
Writ petition is accordingly dismissed.
Order Date :- 20.7.2010
n.u.