JUDGMENT
Radha Mohan Prasad, J.
1. As both the writ petitions relate to restoration of electric connection bearing consumer No. 19-256011500/191641 C/S2, with consent of parties, they have been heard together and are being disposed of by this common order.
2. Petitioner in the first case is the landlady and petitioners in the second case are tenants. In both the writ petitions prayer is to direct the Respondents to restore electric connection which was disconnected by the Assistant Electrical Engineer, (Revenue) Bankipur. Supply Division, Patna University, Patna (Respondent No. 4) on 25.11.1999 without any notice. In the second writ petition, further prayer is to instal the meter separately to shop of the petitioners after accepting the form and its requisites which have been refused by the Respondents.
3. According to the case of the petitioner in the first case, she is bonafide consumer and the aforementioned connection stood in her name and she was paying electric bill regularly. However, on 25.11.1999 premises was suddenly checked by Respondent No. 4 who found that the electric connection was being provided to the renter in the shopping complex which belong to her for which Sultanganj P.S. Case No. 300 dated 25.11.1999 under Sections 39/44 of the Indian Electricity Act and Section 379, I.P.C. was registered against Birendra Kumar Sah and others. According to her, she took 1 K.W. electric connection from the Respondent-Board and pays commercial electric bill and there is no question of theft of electricity. According to the case of the petitioners in the second case, the shopping complex has one meter of landlady and it is connected with all four shops which belong to the petitioners. In both the writ petitions, it is stated that renter are ready to take electric connection but the Respondents are not ready to give fresh electric connection, causing unnecessary loss to them as the shops of the petitioners are only source of their livelihood. Their further case is that when the electric meter ceased to function the petitioner landlady informed Assistant Engineer (Electrical) of the area on 22.9.1998 but no step was taken either to remove the defects in the meter or to change the meter rather the Respondent started to take the electric charge on the fixed unit determined by the authority. A true copy o the application dated 22.9.1998 has been annexed as Annexure-4.
4. The case in the supplementary affidavit filed on behalf of the petitioner-landlady is that she along with her Gotani purchased the land measuring 1500 sq. ft. in the year 1991 which belonged to Sri Ram Kumar Das and constructed 10 rooms of shopping complex. The meter installed in the shopping complex is meant for shopping complex, which has tenants only in four small shops on ground floor and coaching institute on first floor is run in three small rooms by the petitioner and rest six small shops are vacant. Ram Chandra Prasad was tenant of Ram Kumar Das, who had separate meter in his name and the petitioner has no connection with his meter. The F.I.R. also shows that the meter of Ram Chandra Prasad does not exist and thus, according to the petitioner, there is no question of illegal connection with the meter of Ram Chandra Prasad. It is stated that the petitioner is ready to give her consent to her tenants to take separate line of electric connection from the Respondents.
5. Counter-affidavit has been filed on behalf of the Respondents in the first case. According to the case of the Respondents, petitioner is a non-domestic Category consumer for which separate tariff has been framed by the Board in exercise of the power conferred under Section 49 of the Indian Electricity Act, 1949. The petitioner has taken electric service connection for one KW load for her one shop only and during inspection on 25.11.1999 she was found to have unauthorizedly extended the electric connection to other shops in the shopping complex and also a coaching institute being run on the first floor of the premises on rent, which was much beyond the contracted load, in presence of the Magistrate. It is alleged that on account of unauthorized extension of load beyond the capacity of the meter, the meter got burnt which itself is an evidence to unauthorized load. On detection of unauthorized load, F.I.R. was lodged for unauthorized extension of load and theft of electricity as the consumer was drawing electricity much beyond the contracted load without recording on the meter. The value of the theft of electricity has been estimated to be Rs. 8,000/- per year. It is further alleged that there were dues on the same premises in the name of one Ram Chandra Prasad vide connection No. 50985-256011500 CS-2 amounting to Rs. 59,277/- and the petitioner deceived the Board in concealing this fact which was detected late. According to the case of the Board, no fresh connection is given unless the outstanding dues in the premises are released, and, thus, this is also an act of cheating. It is stated that the electric supply was disconnected in exercise of the powers conferred under Clause 16.9 of the tariff notification dated 23.6.1993 and this power is distinct from the powers conferred under Section 24 of the Indian Electricity Act, 1910 for disconnection of supply on account of non-payment of dues after seven days’ notice. It is further stated that the petitioner is liable to pay penal compensatory charges laid down under Clause 16.9 of the tariff and after payment of the same the Respondents have no difficulty in extending the supply to the different tenants with the consent of their own. It is also stated that the landlady is only entitled to restoration of her electric supply and separate electric service connection to her tenants after payment of the compensatory bill under Clause 16.9 of the tariff. Respondents have denied delivery of letter dated 22.9.1998 of the petitioner landlady.
6. It is contended on behalf of the petitioners that disconnection of the electric supply in the premises in question is wholly arbitrary more so when the petitioners have regularly paid the electric charges and have seriously denied the allegation of theft. It was also contended that over the alleged dues standing against Ram Chandra Prasad, the Board is not legally justified to disconnect the electricity which was provided to the landlady afresh in her name and she had nothing to do with the said Ram Chandra Prasad. It is submitted that if any dues stands as against Ram Chandra Prasad, the Board can initiate action against him by lodging certificate case and/or taking any other appropriate proceeding against him. It has also been submitted that the impugned action of disconnection of electricity in the premises in question admittedly without giving any notice is contrary to the principle decided by the apex Court in the case of Municipal Corporation of Delhi v. Ajanta Iron and Steel Company Pvt. Ltd. .
7. On the other hand, Mr. Jha, learned Counsel appearing for the Board has submitted that on account of unauthorized extension of load beyond the capacity of meter, the Board was entitled to disconnect the supply and under such circumstances no notice was required to be given to the petitioners as the power to disconnect the line on account of unauthorized extension of contracted load is distinct from the powers conferred under Section 24 of the India Electricity Act for disconnection of supply on account of non-payment of dues after seven days’ notice. In support of his contention, he placed reliance on the decision of this Court reported in 1999 (2) BLJR 1253 Shiv Shambhu Hard Coke v. Bihar State Electricity Board and Ors and 1991 Cr.L.J. 1025 Narasingha Choudhary v. State. He further submitted that the petitioner landlady in her pleadings does not claim that she is supplying electricity to the petitioners tenants and as such, it is a clear case of theft of electricity by the tenants, which entitles the Board to disconnect the electricity.
8. This Court is unable to accept the said submission of the learned Counsel for the Board. Clause 16.9 has been quoted in the counter-affidavit. Clause 16.9 of the tariff deals with a case of detection of unauthorized load and in such case how the necessary calculation is to be made for payment of compensation in case consumer is found exceeding the contracted load, and also disconnect the supply without notice, but, it does not provide that even before such determination/finding supply of electricity can be disconnected without notice.
9. In the case of Shiv Shambhu Hard Coke v. B.S.E.B. and Ors. this Court has also noticed with reference to the earlier decision that if the consumer has consumed the electricity more than the sanctioned load and if a dispute is raised, the matter is to be decided applying the principles of natural justice, and not that this Court never said that in a case where it is detected that the consumer is consuming electricity more than the sanctioned load, the Board at the time of disconnection must not give an opportunity before disconnection. It has also been noticed that the law laid down in the case of Md. Iqbal is that in case a dispute is raised regarding the bill charged on the basis of actual consumption, which is beyond the sanctioned load, then the principles of natural justice has to be followed.
10. The apex Court in the case of Municipal Corporation of Delhi v. Ajanta Iron and Steel Co. (Pvt) Ltd. which was a case where some Officers of the undertaking made inspection of meter and alleged theft of electricity after tampering the seals affixed on the meter was detected and First Information Report was lodged, and on that account, the electricity was disconnected without notice, It was argued on behalf of the undertaking that in view of the conduct of the plaintiff in stealing electricity, the Court should in its discretion refuse to issue a direction for restoration of the electric supply. The apex Court repelled the said argument by saying that “We are afraid, it is not possible to agree with the appellant for more reasons than one. The plaintiff is seriously denying the allegation of theft and it is not possible to assume the accusation as correct without a full-fledged trial on this issue. The case of Jagarnath Singh v. B.S. Ramaswamy ; relied upon on behalf of the appellant is clearly distinguishable inasmuch as the consumer in that case was convicted under the Indian Penal Code, and the conviction was being maintained in appeal. Besides, the service of notice is a prerequisite for disconnection, and the appellant cannot be allowed to go back upon its words and refuse the consumer the benefit of notice as contemplated by the agreement. The learned Counsel for the appellant urged that the Delhi Electric Supply Undertaking will seriously suffer if this view is upheld. We do not understand as to what is the difficulty in the way of the appellant to serve a notice on the consumer before discontinuing the supply. It has to be appreciated that the licensee undertaking is performing a public duty and is governed by a special statute and the law also contemplates service of a notice before disconnection of supply of electricity. The Courts below have made it clear that they have not examined the case on merits. The question whether, the allegations of theft are true or not has to be examined and decided in an appropriate proceeding, and the appellant will not, therefore, be prejudiced by the present judgment in its claim.”
11. It is well known that the natural justice is one of the facet of the fundamental rights and the principle of audi alteram pattern is the basic concept of the principle of natural justice. In the field of administrative action, this principle has been applied to ensure fair play and justice to the affected person. So much so that even if there is no provision in a rule that the principle of natural justice is to be followed in the sense of giving opportunity of hearing before taking an action, it has to be read into the provision to ensure against the failure of justice. It is true that it is also settled that where the rule excludes either expressly or by necessary implication, any decision or order cannot be faulted on the ground of breach of principles of natural justice unless the Court comes to the conclusion that the decision is vulnerable on other grounds.
12. The instant case is not of theft of electricity directly from the source, i.e., pole put up by the Board. In the instant case, the charge is that the petitioner landlady has taken the electric service connection for 1 KW load to one shop only and has unauthorizedly extended supply to other shops and to the first floor of the building where coaching institute was found running and that she has unauthorizedly extended the load and, thus, liable to pay for the fixed charges and minimum consumption charge in accordance with their total connected load. It is not the case of the Respondent that the electricity was being consumed by the petitioners directly from the source without any valid connection. The charge that the petitioner landlady had taken electric service connection for 1 KW load for one shop only has been seriously denied. It is asserted by the petitioner landlady that each room of the shopping complex in question is connected in the meter of the petitioner which is meant for shopping complex. The Respondent-Board has not produced any evidence in support of the charge that the petitioner landlady had taken the electric service connection for 1 KW load for one shop only and unauthorisedly extended the supply to other shops and to the first floor of the building where a coaching institute was found running. Petitioners in the second case have also asserted that the said shopping complex has one meter of landlady and it is connected with all four shops, and that the shopping complex is of aforesaid landlady, who was taking 1 KW electric connection from the Respondents and she is paying the electric bill and there is no question of theft of electricity. Moreover, it is not the case of the Respondent-Board that there was any inquiry conducted as that after giving notice to the petitioners and thereupon finding recorded that the electricity was being consumed beyond the contracted load.
13. This Court fails to appreciate as to how the case referred to by the learned Counsel for the Board reported in 1991 Cr.L.J 1025 is of any help to him. It was a case where the Rice Mill owner had taken connection from his Rice Mill to his godown, shop, cow-shed without authority. Orissa High Court held that the ingredients of Section 28 of the Indian Electricity Act are conspicuously absent as the petitioner was not involved in any business of supplying energy and that too, to the public and that for such act no offence can be said to have been committed so as to be punishable since Section 28 of the Act itself has no application.
14. This Court is unable to accept the submission of the learned Counsel for the Board that the Board can deny and/or disconnect the supply of electricity on account of non-payment of dues payable by completely a different person with whom it is not even alleged that the petitioners had any connection. If at all there is any dues against Ram Chandra Prasad, the Board can realize the same from him by taking appropriate proceeding against him, but cannot deny the supply of electricity to completely a different consumer who has no connection with the earlier consumer.
15. In view of the law settled by the apex Court in the case of Municipal Corporation of Delhi (supra) disconnection of supply of electricity to the petitioners on the above-mentioned ground for which criminal case has been lodged and is still pending against the petitioners of the second case, was not legally justified without any notice to the petitioners and recording of finding.
16. In the result, both the writ applications are allowed. Respondents are directed to restore the electric connection to the premises in question forthwith without prejudice and subject to the final judgment of the criminal case lodged by the Board. Meanwhile, the Board shall also consider to supply fresh electric connection to the shop owners in pursuance to their applications. In the facts and circumstances, there shall be no order as to costs.