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Shantilal R. Desai Vs. P.N. Vyas and anr. - Court Judgment

LegalCrystal Citation
SubjectElectricity
CourtGujarat High Court
Decided On
Case NumberSpecial Civil Appln. No. 60 of 1967
Judge
Reported inAIR1968Guj179
ActsElectricity Act, 1910 - Sections 21(2), 24(1) and 24(2); ;Electricity Rules - Rule 27
AppellantShantilal R. Desai
RespondentP.N. Vyas and anr.
Appellant Advocate S.B. Vakil, Adv.
Respondent Advocate B.R. Shah, Asst. Govt. Pleader,; K.L. Talsania, Addl. Govt. Pleader and;
Excerpt:
.....choice or option to the licensee to make the consumer deposit with the electrical inspector of the amount of the licensee's charges or other sums in dispute or for the deposit of the licensee's further charges for energy they accrue due, thus making safe not only the amount that is in dispute in respect of any dispute referable but also in respect of the energy already supplied and also for the energy that may be supplied till the dispute is decided by the electrical inspector. , those which were made referable by the act when the act came into force as well the disputes which may be made referable under the act, at a later date......or interfering with use of energy. then section 22 casts an obligation on the licensee to supply energy within the area of supply. section 22-a empowers the state government to give direction to a licensee in regard to the supply of energy to certain class of consumers. section 23 lays down that the licensee shall not in making any agreement for the supply of energy, show undue preference to any person. so these are all the provisions which indicate that the incensee is under conclusion to supply energy under certain conditions. it appears that the legislature in order to protect the licensee under such circumstances, made the provision under section 24(1) that where the consumer neglects to pay any charge for energy or any sum other than charge for energy, after giving the.....
Judgment:

Vakil, J.

(1) This petition raises the question of proper construction of Section 24(2) of the Indian Electricity Act. 1910 hereinafter referred to as 'the Act' the petitioner is the licensee within the meaning of the said Act as also the Electricity (supply) Act, 1948 and is the sole owner of the Bilimora Electricity Power Supply Company. The petitioner supplied c but receives electrical energy from the Gujarat Electrical Board and distributes it in the town of Bilimora. The petitioner supplied electricity energy of high-tension as well as low-tension. As regards the supply if high-tension power, the tariffs for payment of charges for the supply of energy have been fixed by the Gujarat Electrical Board and they are known as Grid Tariffs. There are two schedules of tariffs called TH/ HTP- 1 and TH/HTP-2. The Schedule HTP-2 applies in respect of supply of high-tension for the combined purpose of lighting and power services in cases where the consumption. Respondent for lighting purposes is 15 percent and above but does not exceed 50 percent of the total consumption. Respondent No. 1 is Electrical Inspector. Respondent No. 2 -partnership is a consumer and under an agreement dated the 1st of may 1966 has been supplied high-tension power. The second respondent under the agreement has agreed to pay for the high-tension energy supplied, at rates as pre the Schedule HTP-1 and HTP-2 fixed by the Electrical Board from time to time. In respect of the high-tension power supplied to respondent No. 2, bills for demand of May, June and July 1966 were prepared and submitted to them in accordance with the rates contained in tariff HTP-1 as it was not noticed by the petitioner No. 2 was over 15 present of the total consumption. But thereafter having come to know about it, for the month of August bill dated 12th September 1966 was prepared bill the basis of Schedule HTP-2 and submitted to them it was not in accordance with the tariff. Petitioner sent back the bill intimating respondent No. 2 that it did not required any amendment as it was in accordance with the tariff. Petitioner also having noticed that even surfing the months of May, June and July respondent No. 2 had used energy for lighting purpose over 15 p. c. of the total energy consumed, sent revised bills for the three months on the basis of tariff HTP-2. Respondent No. 2 the 3rd of October 1966 on their own calculation sent with the letter, cheque for Rs. 1863.34 only for payment of the months of August 1966. In the said letter, they also mentioned that they were not prepared to pay even be difference in the amount claimed by the petitioner in respect of the months of May, June and July a according to them the said demand was not justified. On the 4th of October 1966 the petitioner wrote a letter to the respondent No. 2 forwarding a copy of the letter to respondent No. 1 that the bills submitted were correct and the cheque for the lesser amount due, in time necessary notice shall be served on them. In the application to respondent sent in an application to respondent No. 1 dated the 22nd of September 1966 purporting to submit the dispute to the first respondent. It was contended therein by the 2nd respondent that the bills served by the petitioner were in excess of the legal rates which the petitioner was entitle to charge. On the 4th October 1966 respondent No. 1 addressed a letter to the c informing him that the bill for August 1966 sent to respondent No. 2 was likely to be disputed. In reply, the petitioner put the respondent No. 1 in possession of all the facts and thereafter on the 5th of October 1966 gave a notice to respondent No. 2 demanding the payment of the amount of the bill for August failing which his connection will be cut. On the 7th of October 1966, the petitioner received the notice dated 6th October 1966 from Respondent No. 1 which is the impugned notice in this petition, informing him that respondent No. 2 had raised a dispute for the energy bill for August 1966 and requesting the petitioner not to disconnect the electric supply of respondent No. 2 till he heard further from respondent No. 1. Suffice it to say that some c correspondence was carried on by three petitioner with respondent No. 1 as well as respondent No. 2 and petitioner with respondent No. 2 and petitioner was informed that respondent No. 2 had disposed in full the amount for the bill of August 1966. Thereafter on the 18th of October 1966 the petitioner informed respondent No. 1 that the bills for the months of May, June July were issued under a wrong impression and therefore fresh supplementary bills were submitted to respondent No. 2 for payment and no the same day a notice was given by the petitioner to respondent No. 2 to pay up the difference. Within three days failing which the supply will be cut off. On 7th November 1966, the petitioner raised a contention before respondent No. 1 by his letter that the pre-requisite Section 24 was that three must be difference or dispute required to be determined by the Electrical inspector and the and the dispute purporting to have been referenced to him by respondent No. 2 was not such a dispute. Even after this, some other correspondence ensued between them but we need not reefer to the details thereof.

(2) The main contention raised for our consideration is whether the Electrical Inspector respondent No. 1 has jurisdiction or authority to entertain the difference or dispute that had arisen between the petitioner and respondent No. 2. This contention directly takes us to the interpretation of Section 24 of the Act. It will be convenient to reproduce Section 24:-

'24 (1) Where any person neglects to pay any charge for energy, due from him to a license in respect of the supply of energy to him, the licensee may, after giving not less, than seven clear days' notice in writing to such person and without prejudice to his right to recover such charge or other sum by suit, cut off the supply and for that purpose cut or disconnect any electric supply-line or other works, being the property of the licensee, through which energy may be supplied, and may discontinue the supply until such charge or other sum together with any expenses incurred by him in cutting off and reconnecting the supply, are paid, but no longer.

(2) Where any difference or dispute which by or under this Act is required to be determined by an Electrical Inspector, has been referred to the Inspector before notice as aforesaid has been given by the licensee, the licensee shall not exercise the powers conferred by this section until the Inspector has given his decision: Provided that the prohibition contained in this sub-section shall not apply in any case in which the licensee has made a request in writting to the consumer for a deposit with the Electrical Inspector of the amount of the licensee's charges or other sums in dispute or for the deposit of the licensee's further charges for energy as they accrue, and the consumer has failed to comply with such request'.

Sub-section (1) of Section 24 entitled, in certain circumstances. These circumstances are that if the consumer fails to pay any sum due from him either in respect of the charge for electric energy or any sum other than a charge for energy, in respect of energy supplied. Sub-section (2) then puts an embargo on this right given to the licensee to cut of supply and it provides that where the difference or dispute which by or under the Act is required to be determined by an Electrical Inspector has been referred to the Inspector, before notice is served by the licensee, the license will not be entitled to exercise the power conferred on him under sub-section (1). But the proviso in added to this sub-section (2) and the proviso lays down the circumstances under which the prohibition contained in sub-section (2) would not apply to the licensee. It days down that the licensee shall not be prohibited from exercising that power in any case in which the licensee has made a request in writing to the consumer that he should deposit with the Electrical Inspector the amount of the licensee's charges or other sums in dispute or for the deposit of the licensee's further charges for energy as they accrue, and the consumer fails to comply with such a requests.

(3) On behalf of the petitioner Mr. Vakil further urged that case, sub-section (2) does not come into play at all it applies only in cases where the dispute is refereed to the Electrical Inspector which under this Act is required to be determined by an Electrical Inspector. He contended that none of provisions of the Act nor the schedule to the Act makes a dispute in regard to the non-payment of dues fro Electrical energy supplied or a dispute between the licensee and the consumer as regards the basis on which Electrical charge shall be paid, referable to the Electrical Inspector. Therefore, the impugned notice issued by the respondent No. 1 ordering him to desist from exercising his right under sub-section (1) is without jurisdiction. In order to emphasize this contention, he also pointed out that the words 'which by or under this Act is required to be determined by an Electrical Inspector has been refereed to the Inspector' were substituted in sub-section (2) by an amendment in the year 1959 in place of the word 'has been refereed under this Act to an Electrical Inspector'. It was argued that the words 'which by or under this Act is required to be determined by a 'Electrical Inspector' make a positive provision of a mandatory nature and they must be given full effect to. Prima facie, this contention has a great force. Mr. B. R. Shah, the learned Advocate appearing fro respondent No. 1 is not able to point out to us any provision either in the main body of the Act or even the schedule which makes referable to the Electrical Inspector any difference or, dispute in respect of electricity energy supplied. It may be first noted that the Schedule in Clauses V (2) and VI (3) does makes referring disputes arising in respect of matters dealt with provisions as to laying down of further distributing mains and Clause VI lays down provisions for the requisition for supply to owners or occupiers in vicinity. It is definite therefore that the amendment introduced in sub-section (2) is not a futile or superfluous amendment made the purposes of referring disputes to the Electrical Inspector .

(4)But Mr. Shah, in order to overcome the difficulty in his way, firstly tried to urge that there are provisions in the Act if they are read with the rules made under the Act to indicate that disputes in regard to the charge for energy supplied are also referable to the Electrical Inspector. In order to substantiate his submission, he drew our attention to Section 21 and particularly to sub-section (2) thereof, sub-section (2) reads as follows:--

' xx xx xx

(2) a licensee may, with the previous sanction of the State Government given after consulting the State Electricity Board and also the local authority, make condition not inconsistent with any rules made under this Act, to regulate his relations with persons who are or intend to become consumers, and may with the like sanction given after the like consultation, add to or alter or amend any such conditions made by a licensee without such sanction shall be null and void:

Provided that any such conditions made before the 23rd day of January, 1922 shall, if sanctioned by the State Government o n application made by the licensee before such date as the State Government may, general or special order, fix in this behalf, be deemed to have been in accordance with the provisions of this sub-section'

This entitles a licensee under certain restrictions to make conditions not in consistence with the Act or its licence to regulate his relations with his consumers. Then our attention was drawn to Rule 27 of the Rules framed under the Act. It provides that without prejudice to the powers conferred by Section 21 on the State Government, the model conditions of supply contained in Annexure VI may, with such variations as the circumstances of each case require, be adopted by the licensee for the purpose of sub-section (2) of that section with the previous sanction of the State Government. The model condition for licences are given in Annexure VI and our attention was drawn to condition No. 16 which deals with payment of bills. Clause (a) provides that bills should be paid at the licensee's local office within 15 days from the date of their prevention. Clause (c) is material and provides that if the consumer fails to pay any bill presented to him within the said period of 15 days, the licensee shall be at liberty to take action under sub-section 24 of Act and to cut off the supply after giving such consumer not less that seven clear days notice in writing without prejudice to his right to recover the amount of the bill by suit. It further provides that however, where any difference or dispute have been refereed under the Act to the Electrical Inspector before notice as aforesaid has been given by the licensee, the licensee shall not be at cut off the supply for failure to pay the bill except where the licensee has made a request in writing to the consumer that the amount in dispute should be deposited with the said Electrical Inspector and the consumer has failed to comply with such request. From these provision, Mr. Shah contended that reading together the rules made under the Act and the model form of conditions which the licensee may adopt while entering into the agreement with its consumers , it should be held that the dispute as regards the non-payment of charges for electrical energy is also intended to be referred to the electrical Inspector and therefore this dispute is also covered by sub-section (2) of Section 24 of the Act. We are, however, unable to agree with Mr. Shah. In the first place we find that there is no compulsion for the licensee to adopt the model conditions of supply. There is no data on the record to show that a condition similar to condition 16 of the model conditions of supply has been incorporated in the agreement between the parties aforesaid. It would not, therefore, be proper to take such provision into consideration for determining the rights between the parties. Besides, it would also require construction of Clause (c) of conditions of supply as to whether on a proper thereof it could be said that the dispute regarding the non-payment of charges for Electrical energy can also be said to be referable to the Electrical Inspector. From the facts of the case, as have mentioned above, we do not think ourselves justified in embarking upon such an inquiry.

(5) Then Mr. Shah urged that the proviso by to sub-section (2) of Section 24, if not directly, by necessary implication indicates that the non-payment of electrical charges is also referable to the Electrical Inspector. He argued that the proviso makes a specific reference to the amount of the licensee's charges or other sums in dispute. If sub-section (2) were not intended to cover disputes as regards charges or other sums in respect of supply of electrical energy, Legislature would not have linked up 'the amount of licensee's charges' for the energy supplied with other sums in the proviso and refer to them both as sums in dispute. In the submission of Mr. Shah, as the language of the proviso stands, the words 'in dispute' qualify both expressions 'licensee's charges' and 'other sums'. If legislature never intended the 'licensee's charges' to be a referable dispute under sub-section (2), the expression 'licensee's charges' would never have been put in the proviso which provision is necessarily introduced as an exception to the fetter created on the right of the licensee's referred to in sub-section (2). It was urged that the collocation of the relevant words mentioned above in the proviso clearly indicate that they are relatable to the 'dispute' which is required to be determined by the Electrical Inspector, under sub-s. (2). At first sight it may appear that there is some force in this submission made by Mr. Shah but on scrutiny it is found to be devoid of merit. The provisions which directly relate to the supply of electrical energy to the consumers appear in Section 19-A. Section 21 provides certain restrictions on the licensee's controlling or interfering with use of energy. Then Section 22 casts an obligation on the licensee to supply energy within the area of supply. Section 22-A empowers the State Government to give direction to a licensee in regard to the supply of energy to certain class of consumers. Section 23 lays down that the licensee shall not in making any agreement for the supply of energy, show undue preference to any person. So these are all the provisions which indicate that the incensee is under conclusion to supply energy under certain conditions. It appears that the Legislature in order to protect the licensee under such circumstances, made the provision under Section 24(1) that where the consumer neglects to pay any charge for energy or any sum other than charge for energy, after giving the requisite notice, licensee shall be entitled to stop supply of electrical energy. This power vested in the licensee is however circumscribed to a certain extent by sub-section (2) of Section 24 whereby it is provided that in case a difference or dispute arise between the licensee and the consumer, and if such a dispute is required to be determined by the Electrical Inspector, has been referred to the Electrical Inspector before he gives notice under sub-section (1), he shall not be entitled to cut off supply till a decision is given by the Inspector. So this is a fetter placed on his right to cut off supply. Then the Legislature has enacted the proviso for a dual purpose, one is to relieve the licensee from the rigor of the provision to sub-section (2) given some further choice or option to the licensee to make the consumer deposit with the Electrical Inspector of the amount of the licensee's charges or other sums in dispute or for the deposit of the licensee's further charges for energy they accrue due, thus making safe not only the amount that is in dispute in respect of any dispute referable but also in respect of the energy already supplied and also for the energy that may be supplied till the dispute is decided by the Electrical Inspector. At the same time, it keeps his right to cut off the supply alive, in case the consumer fails to make the deposits in respect of the dues for energy already supplied or that which accrues due or sums in dispute. This provision is presumably intended to induce the licensee not to resort to the extreme step of cutting the supply and at the same time secure his dues in respect of all his claims as also the amount that may accrue due till the Inspector gives his decision as regards the actual dispute at the same time it keeps open his right to cut supply if the consumer fails to deposit the amount. The other purpose and the more demanding one, in our view, is to use language wide enough to cover all disputes viz., those which were made referable by the Act when the Act came into force as well the disputes which may be made referable under the Act, at a later date. We will explain in a moment what we mean. Sub-section (1) contemplates that disputes might arise between the licensee and the consumer which may be of various types. There may be disputes which may refer merely to the non-payment of charges for electric supply, there may be disputes as regards 'any sums other than a charge for energy'. The latter may include a variety of disputes made referable and non-referable sub-section (1) therefore is a general provision made by the Legislature, and it vests in the licensee a right to stop supply if the amount due in respect of charge for energy or any other sums regarding the supply of energy is disputed and not paid after notice is given.

But by sub-section (2) this right is fettered to an extent. The fetter intended is that if any dispute arises, which is made determinable by the Electrical Inspector either by any provision under the Act, and if the dispute is refereed to the Inspector before the notice under sub-section (1) is given by the licensee, then, the licensee shall have to stay his hand till the dispute is decided. Now it is referred obvious that a dispute may be made referable to the Electrical Inspector when the Act was passed by its own provisions or it may referable after the Act comes into force, under the Act viz., by the rules or any other provision under the Act. When the Legislature contemplated by sub-section (2) that disputes which were not presently referable such as the charges for electricity supplied, may be made referable in the future, it had to make the proviso to be wide enough to cover al these cases. Therefore, though dispute for charges for electricity is not referable even today, it may be made referable in future and to cover such a contingency the words 'the amount of the licensee's charge' had to be included in the proviso. Having regard, therefore, to the specific words of sub-section (2) which lays down the embargo, it is clear that the dispute as regards the licensee's charges can only come within the operation of sub-section (2) if it is made referable by or under the Act. Under the circumstances, we are unable to agree with either of the submission of Mr. Shah and we hold that the Electrical Inspector respondent No. 1 has no authority to pass the impugned order asking the licensee not to exercise his right under sub-section (1) of Section 24 to cut off the electricity supply.

(6) We, therefore, order a wirt of prohibition to issue restraining the 'first respondent from proceeding further with the injury pursuant to the representation dated 22nd September 1966 and further a writ directing respondent No. 1 to treat the directions issued by him to withhold his action of second action of discontinuing supply of electricity energy to the second respondent, as null and void. The petitioner is therefore, allowed his costs and respondent No. 1 shall pay the costs of the petitioner. Respondent No. 2 to bear his own costs.

(7) Petition allowed.


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