R.R. Yadav, J.
1. The petitioner-firm has filed the instant writ petition seeking a relief to quash the impugned bill dated 14.9.83 (Ex. 6) in so far as, it creates demand under item No. 28 for Rs. 94,436.20 and further prayed to restrain the answering-respondents from recovering the aforesaid amount from the petitioner-firm in respect of load surcharge for the period from December, 1978 to February, 1983.
2. Brief facts necessary to be noticed for disposal of the present writ petition, are that after dissolution of the earlier firm M/S Rajasthan Forgings, the Rajasthan State Electricity Board (respondent No. 1) transferred the electric connection on Plot No. 27-B in the name of the petitioner-firm vide communication date 15.10.80 Ex, 2 to the writ petition passed by the Assistant Engineer (respondent No, 4) with the same sanctioned load. It is evident from the averments made in the writ petition that on the date of sanction of electric connection bearing Account No. 15/1/295 and Consumer No. 33348 sanctioned load was 30 H.P.
3. Since the petitioner-firm wanted to install some more machines and for that purpose required higher sanctioned load, hence, applied for increasing the sanctioned load from 30 HP to 90 HP and submitted 'L' Form on 30.7.1980.
4. The aforesaid application From 'L' in the prescribed form for increasing the sanctioned load from 30 HP to 90 HP remained pending with the Rajasthan State Electricity Board for a considerable long time and the authorities could not find time to take decision on his application. In the meantime, the machinery for which the petitioner wanted to get extended load sanction, was received by the petitioner-firm and motors in relation to the machinery had to be kept in the petitioner's factory.
5. It is further alleged by the petitioner firm that there was a vigilance checking by the Rajasthan State Electricity Board (Central Vigilance Squad) on 17.3.1983. A site checking report was made by the Central Vigilance Squad on 17.3.1983 marked as Ex. 4 to the writ petition. In this connection, it is alleged that while preparing this report, the Central Vigilance Squad took into consideration even the un-connected machinery lying in the petitioner's factory for the purpose of calculating the connected load.
6. It is also alleged by the petitioner in paragraph 18 of the writ petition that after the vigilance checking on 17.3.83, the petitioner-firm removed the necessary fittings and connected load of the factory within the limit of the sanctioned load. The petitioner-firm submitted a fresh test report to the satisfaction of the answering-respondents before the end of the consumption month of April, 1983.
7. After service of notice, the answering respondents filed a detailed return denying emphatically the averments made in the writ petition. It is stated in paragraph 11 of the reply filed by the answering respondents that the petitioner firm got the electric connection transferred in its name with the condition that he would pay all arrears of the electric dues against his previous consumer M/s Rajasthan Forgings, therefore, according to the answering respondents it is wrong to allege that the petitioner firm has got nothing to do with the electric connection No. 33348 and Account No. 15/1/295. In support of the aforesaid averments made in the, reply filed by the answering-respondents, they have annexed an undertaking given by the petitioner-firm on 14.10.80 to the Assistant Engineer, Rajasthan State Electricity Board, Jodhpur, which is marked as Annx. R/1 to the reply.
8. With regard to passing of the order on the application for it increasing the sanctioned load, it is stated by the answering respondents that before existing sanctioned load of 30 HP could be increased to 90 HP, the petitioner-firm was required to comply with the conditions mentioned in Ex. 8 to the writ petition. Unless and until the conditions are complied with, the petitioner-firm was not entitled for increasing the load. In fact, according to the averments made in the reply, the sanctioned load from 30 HP to 90 HP was extended w.e.f. 19.6.84 vide Ex. 8 to the writ petition. A close scrutiny of Ex. 8 discloses that extension of load in the name of the petitioner-firm was extended with reference to the letter No. 3656 dated 12.9.83 written by the petitioner-firm. Thus, it is evident that on the date of Vigilance site checking report on 17.3.83, the petitioner-firm was authorised for 30 HP load. It is specifically denied in paragraph 15 of the reply filed on behalf of the answering-respondents that the vigilance party took into consideration the unconnected machinery lying in the premises of-the petitioner-firm.
9. In reply to the averments made in paragraph 18 of the writ petition the answering respondents stated that the petitioner firm itself has admitted that it removed excess load and reduced the same upto the limit of the sanctioned load, therefore submitted a fresh L' Form in the consumption month of April, 1983. It would be pertinent to mention here that in reply to paragraph 18 of the writ petition, it is nowhere averred by the answering respondents as to on what date after vigilance checking on 17.3.83, the petitioner-firm removed the necessary fittings and reduced the connected load of the factory within the limit of the sanctioned load. It is also not denied as to whether the petitioner-firm submitted a fresh test report to the satisfaction of the answering respondents before end of the consumption month of April, 1983. It is true that the petitioner-firm has applied for increasing load vide its letter No 3656 on 12.9.83. It is further true that the petitioner-firm in paragraph 18 of the writ petition, had not given any specific date when it removed the necessary fittings and reduced the connected load of the factory within the limit of the sanctioned load.
10. From the averments made in the writ petition as well as in the reply filed by the answering-respondents, the fact of using excess surcharge load by the petitioner-firm on the date of vigilance checking on 17.3.83 is admitted.
11. Learned Counsel for the petitioner urged before me that factual foundation has been led in the present writ petition to the effect that ahuge liability of payment of Rs. 94,436.20 has been fastened by the Vigilance Engineer without affording an opportunity of hearing against the principles of natural justice and fair play. Secondly, load surcharge is recoverable under Clause 'f, which is quoted in paragraph 20 of the writ petition is not specifically denied rather an evasive reply in paragraph 20 has been given by the answering-respondents which appears to be a reply of paragraph 24 but later on paragraph 25 is also added in it without bearing any initial. According to the learned Counsel for the petitioner assuming that there was excess unauthorised load which was removed in the month of April, 1983 and has not been specifically denied about removal of the unauthoried excess load, hence, respondent No. 1 could charge under clause of only for two months for April, 1983 and has not been specifically denied about removal of the unauthorised at the rate of Rs. 100/- per KW.
12. It is further urged before me by the learned Counsel for the petitioner that the demand has already been created by the answering-respondents for two months In accordance with Clause 'f' amounting to Rs. 4137.20 per month vide Bill Ex. 5 and this amount had already been deposited by the petitioner-firm vide Ex. 5A to the writ petition. It is further submitted by the learned Counsel for the petitioner that in view of the aforesaid facts, the answering-respondents have no authority to recover a huge amount of Rs. 94,436.20 against the statutory provisions of clause 'f'.
13. My attention has also been invited by the learned Counsel for the petitioner towards the break up given In Ex. 7A to the writ petition by the Director (Vigilance), R.S.E.B. (Central Vigilance Squad), Jaipur which indicates that the demand has been created against the petitioner-firm on account of load surcharge since December, 1978 while according to him, in December, 1978 the petitioner-firm was not in existance. According to him, at that time another partnership firm was functioning on the same plot i.e. Rajasthan Forgings.
14. Learned Counsel appearing on behalf of the answering-respondents refuted the aforesaid contention raised on behalf of the petitioner-firm and urged that there is no provision under law for giving an opportunity before creation of demand for unauthorised excess surcharge load to an industrial power consumer, therefore, no question for giving opportunity before the recovery arises in the present case. In reply to the second argument, it is submitted that once it is admitted by the learned Counsel for the petitioner-firm that on the date of vigilance checking, the total load was found to be 62 HP + 17.5 KW, as such the load was 41.372 KW in excess as against the sanctioned load of 30 HP. Since the petitioner-firm itself has accepted this fact, hence, the impugned bill is in accordance with law.
15. In reply to the last argument, learned Counsel for the answering-respondents submitted that it is true that the petitioner-firm got the connection transferred in its name on 15.10.80 vide Ex. 2 to the writ petition but an undertaking that it would pay all the arrears of electric dues against its previous consumer M/S Rajasthan Forgings was also given.
16. In support of his aforesaid contention, learned Counsel for the answering-respondents invited my attention towards an undertaking given by the petitioner-firm on 14.10.80 to the Assistant Engineer, R.S.E.B. Jodhpur, which is on record as Annx.R/1 to the reply.
17. I have given my thoughtful and anxious consideration to the rival contentions raised at the Bar and have critically gone through the material available on record. It is evident from the averments made in the writ petition as well as counter affldavit filed on behalf of the answering-respondents that before fastening a huge liability amounting to Rs. 94,436.20 involving civil consequences, no opportunity of hearing was afforded to the petitioner-firm. Thus, the basic complaint of the petitioner-firm before this Court is that no opportunity of hearing was afforded to it before fastening a huge liability of Rs, 94,436.20, which amounts violation of principles of natural justice and fair play while according to the learned Counsel appearing on behalf of the answering-respondents, the petitioner-firm is not entitled to be given an opportunity of hearing since there is no provision under law to afford him an opportunity of hearing before fixing the aforesaid liability.
18. In my humble opinion, whenever such a complaint is made before a court exercising its extra ordinary equitable jurisdiction under Article 226 of the Constitution of India, the Court has to decide whether the observance of rule of natural justice was necessary for a just decision on the facts of the case. The aforesaid violation of the principles of natural justice is also opposed by the answering-respondents on the ground that the petitioner-firm has not laid any foundation in the writ petition that what prejudice has been caused to it due to non-compliance of the principles of natural justice while the vigilance checking report itself was prepared in presence of its representative.
19. I have carefully examined the provisions of 'VI-Medium' Industrial Service (Schedule MP/LT-6), Clauses (a) and (f) of the Tariff for Supply of Electricity 1981 and Notification dated 7.7.81 issued by the Rajasthan State Electricity Board (Commercial Circle) in exercise of its powers conferred by proviso of Section 49 of the Electricity (Supply) Act, 1948 (Central Act No. 54 of 1948) in supersession of all existing tariffs. The aforesaid Notification in part I Tariff Structure, Low Tension Tariff-VI Medium Industrial Service (Schedule MP/LT- 6) in Clause (a) provides that this tariff shall be applicable to the industrial power Consumers printing press, Government Lift Irrigation Projects and Water Works for public supply having aggregate connected load of more than 25 HP but not exceeding a maximum demand of 125 KVA. Clause (f) of the said notification further provides;-
(f) Load surcharge for exceeding sanctioned load:
If the connected load of a consumer exceeds the sanctioned load, such excess In connected load shall be charged at an additional rate of Rs. 100/- per KW per month to be levied during the month when such unauthorised extension in load is detected and shall continue to be levied till such time, by consumer has removed/the unauthorised load or have got it regularised by sanction from the competent authority and submitted fresh test report to the satisfaction of the Board.
Additional charges so levied on account of exceeding sanctioned load shall be extra and shall be additional and exclusive of the payable/prescribed minimum charges corresponding to the sanctioned connected load.
The Board reserves its right to claim compensation from the consumer who exceeds his connected load ill an unauthorised manner, for such damages as may be occasioned to its apparatus equipment and Installations by reasons of this default. Without prejudice to this right, the Board may also cause the service of the consumer disconnected.
20. The aforesaid Notification further provides under General Conditions of Application under Sub-rule (11) Explanation, Sub-rule (12) and Sub-rule (13) of Rule 3, which are relevant for just disposal of the case, are quoted below:.
EXPLANATION: The expression 'existing consumer' means a person connected to the Board's distribution system for supply of electric energy, on the date of publication of these tariffs under the Tariff Schedule LP/HT-1 superseded by the new tariff.
(12) The expression 'person' used In relation to the consumption of energy includes a firm, a Company or Association of persons whether incorporated or not and any other body cooperated by whatever name called.
(13) In case of any doubt regarding applicability of these tariffs, the matter shall be referred to the Member of the Board, Incharge of Commercial matters whose decision thereon shall be final and binding on the consumer.
21. A perusal of the aforesaid Tariff Notification dated 7.7.1981 further discloses that there is no provision of hearing before fastening the liability for consumption of electric energy either by a consumer or a firm or a Company or Association of person whether incorporated or not, or any other body corporated by whatever name called. However, in case of any doubt regarding applicability of the tariffs under the said Notification, the matter is required to be referred to the Member of the Board, Incharge of Commercial matters, whose decision shall be final and binding on the aforesaid classes of consumers.
22. It is true that till recently, it was the opinion of the courts that unless the authority concerned herein, the Executive Vigilance Engineer was required by law under which, it functions and who acts quasi-judicially, there was no room for giving any opportunity of hearing even if the order has the civil consequences.
23. The aforesaid legal concept has undergone a radical change after pronouncement of a decision of Constitutional Bench of the Apex Court in the case of Menka Gandhi v. Union of India and Ors. : 2SCR621 . Hon'ble Bhagwati, J (as he then was) speaking on behalf of himself, Hon'ble Untwalia and Hon'ble S. Murtaza Fazal Ali, JJ. (majority view) ruled in paragraphs 57 and 58 as follows:.Now, it is true that there is no express Provision in the passports Act, 1967 which requires that the audi alteram partem rule should be followed before impounding a passport, but that is not conclusive of the question, if the statute makes Itself clear on this point, then no more question arises. But even when the statute is silent, the law may in a given case make an implication and apply the principle stated by Byles, J., in Copper v. Wandswprth Board of Works (1863) 14 C.B.N.S. 180; 'A long course of decisions, beginning with Dr. Bentleys case (1923) 1 Str. 557 and ending with some very recent cases establish that although there are no positive words in the statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature'. The principle of audi alteram pattern which mandates that no one shall be condemned unheard, is part of the rules of natural justice are manifested, namely, Nemo Judex in Sua Causa and audi alteram partem. We are not concerned here with the former since there Is no case of bias urged here. The question is only in regard to the right of hearing which involves the audi alteram partem rule. Can it be imported in the procedure for impounding a passport?
58. We may commence the discussion of this question with a few general observations to emphasise the increasing importance of natural justice in the filed of administrative law. Natural justice is a great humanising principle intended to invest law with fairness and to secure justice and over the years it has grown into a widely pervasive rule affecting large area of administrative action Lord Morris of Borth-y-Gest spoke of this rule in eloquent terms in his address before the Bentham Club, XXX XXX XXX XXX XXXXXX XXX XXX XXX XXXXXX XXX XXX XXX XXX
24. It is pertinent to mention that in the aforesaid decision, there Lordship of the Supreme Court have qauoted with approval of Lord Morris of Borth-y-Gest address before the Bentham Club. In view of the aforesaid decision of the Apex Court, the argument of the learned Counsel appearing on behalf of the answering-respondents to the effect that since there is no positive words under the Tariff Notification dated 7.7.1981 under which the vigilance Authority has fastened the liability and ordered for recovery of load surcharge excess to the sanctioned load is not entitled to be given an opportunity of hearing, does not hold water and as such, it is hereby repelled, inasmuch as, the justice of common law will supply the omission of the aforesaid statutory notification.
25. No allegation of bias is made or argued against the Vigilance Authority on behalf of the petitioner-firm, therefore, in the present writ petition, the only question involves is in regard to the right of hearing which involves the doctrine of audi alteram partem.
26. Second question, which this Court is called upon to examine would be what is the nature of the order directing recovery of a huge amount mentioned above against the petitioner-firm. Whether the order for recovery of such a huge amount is a quasi judicial order or pure administrative order and whether the principles of right of hearing can be extended only to quasi judicial order or to an administrative order also in absence of any positive words in the statutory notification dated. 7.7.1981.
27. Undeniably the order of recovery of the afore-mentioned amount for load surcharge excess to the sanctioned load from the petitioner-firm is an administrative order based on Vigilance Site Checking Report dated 17.3.83 Ex. 4 to the writ petition. The Site Checking Report given by the Central Vigilance Squad is on record as Ex. 4 and break-up given by the same Central Vigilance Squad is also on record as Ex. 7A to the writ petition on the basis of which the bill was sent for recovery from the petitioner firm without giving an opportunity of hearing.
28. It is well to remember that in the case of Menka Gandhi (supra), in paragraph 59, their Lordships of the Supreme Court settled the law for all times to come resolving a conflict about the applicability of right of hearing in two categories of cases i.e. quasi judicial nature or of administrative nature holding that there can be no distinctive between the quasi judicial Junction and an administration function for applying the doctrine of natural justice which has civil consequences. It would be profitable to quote relevant portion of paragraph 59 of the aforesaid decision of the Apex Court as under:
59. Now, if this be the test of applicability of the doctrine of natural justice, there can be no distinction between a quasi-judicial function and an administrative function for this purpose. The aim of both administrative inquiry as well as quasi-judicial inquiry is to arrive at a just decision and if a rule of natural justice is calculated to secure justice or to put it negatively to prevent miscarriage of justice, it is difficult to see why it should be applicable to quasi-judicial inquiry and not to administrative inquiry. It must logically apply to both. On what principle can distinction be made between one and the other Can it be said that the requirement of fair play in action is any the less in an administrative inquiry than in a quasi-judicial one Sometimes an unjust decision in an administrative inquiry may have far more serious consequences than a decision in a quasi-judicial inquiry and hence the rules of natural justice must apply equally in an administrative inquiry which entails civil consequences.
29. Now, I propose to pass on to examine as to whether the right of hearing in the present case, which involves the doctrine of audi alteram pattern rule, can be extended to the facts of the present case. Does fairness in action demand in the present case that an opportunity to be heard should have been given to the petitioner-firm In my humble opinion, If any of the conditions enumerated herein below are fulfilled even in the cases of administrative orders having civil consequences, the principle of right of healing must be extended:
(a) For the reasons given in the preceding paragraphs of this judgment, the law must now be taken to be well settled that even in administrative proceeding, which involves civil consequences, the doctrine of natural justice must be, held to be applicable. In the present case, although the order passed by the Vigilance Department is an administrative in nature but the liability fastened by the Vigilance Department of a huge amount of Rs. 94,436.20 necessarily involves civil consequences, hence, the principles of natural justice are attracted in the present case and no such liability can be fastened upon the petitioner firm without affording an opportunity of hearing merely on the ground that no positive words are in the statutory notification dated 7.7.1981 providing an opportunity of hearing to the petitioner-firm.
(b) It is borne out from the material available on record that the Site Checking Report is prepared by the Rajasthan State Electricity Board (Central Vigilance Squad) and decision to recover the aforesaid huge amount is also taken by the same Agency. Thus a complainant as well as investigating agency against the petitioner firm about excess surcharge load beyond the sanctioned limit itself has taken decision to recover the huge amount without giving an opportunity of hearing to the petitioner-firm, is not palatable in modem welfare State Where there is a crisis of confidence. In my humble opinion, the sole principle of natural justice is a fair play in action, that is why it has received widest recognition throughout the democratic welfare State in the World.
(c) Justice should not only be done but it must appear to others that it is being done.
(d) A close scrutiny of Ex. 7A reveals that S.No. 2 on the basis of consumer acceptance the load of surcharge for 11 months for excess unauthorised load is calculated to be Rs. 27,567.30. The name of consumer or any partner or any person is not disclosed. While in reply, it is stated that one of the representative of the petitioner firm has accepted the aforesaid surcharge load beyond the sanctioned limit. The name of consumer or representative is not disclosed even in the reply filed on behalf of the answering respondents.
(e) A perusal of Ex. 7A further indicates that at item No. 3, it is shown that as per consumer's acceptance, remaining unauthorised load is in existence from the date of connection i.e. December, 1978 upto 1982 (41 months). The amount calculated is shown to be Rs. 66,866.90. For the reasons stated in the preceding paragraphs, this calculation further does not inspires confidence.
30. In rebuttal, about the applicability of the principles of natural justice, the, answering-respondents have averred in their reply and learned Counsel for the answering-respondents has also argued before me that since the petitioner in the present case has not led any foundation as to what prejudice he has suffered, therefore, on this ground also the petitioner-firm is not entitled to be given an opportunity of hearing. In my humble opinion, non-observance of the principles of natural justice by denying an opportunity of hearing to the petitioner firm is itself a prejudice to the petitioner firm and proof of prejudice and averments of prejudice in the present writ petition independently of proof of denial of natural justice is unnecessary. The opportunity of hearing has not been provided in the present case to the petitioner-firm, therefore, denial of opportunity of hearing is itself sufficient prejudice and no averment in the writ petition and no further proof of prejudice is required in the present case. My aforesaid view is buttressed by a decision rendered by the Apex Court in the case of S.L. Kapoor v. Jag Mohan and Ors. : 1SCR746 .
31. There is yet an another reason not to accept the aforesaid amount calculated by the Vigilance Agency, inasmuch as notification dated 7.7.81 under which the tariff is calculated against the petitioner firm, has come into force with effect from the month of August, 1981 which is made applicable to the consumption of electric energy to be recovered in the said billing month and onwards. Thus, the aforesaid amount of Rs. 66,866.90 is not permissible to be calculated under the said Notification dated 7.71981, which was enforced with effect from the month of August 1981 in supersession of all the existing Tariffs. There is no explanation whatsoever as to how this calculation has been made at the rate of Rs. 100/- per KW under the aforesaid notification with effect from December 1978 when the said notification was not applicable for the electric energy consumed or for excess surcharge load prior; to 7.7.1981.
32. A careful scrutiny of the aforesaid notification indicates that Sub-rule (13) of Rule 3 provides the general conditions about applicability of the said notification in case of any doubt regarding applicability of these tariffs, the matter is required to be referred to the Member of the Boad Incharge of Commercial matters whose decision thereon shall be final and binding on the consumer. It is not understandable as to why the aforesaid huge amount of Rs. 66,866.90 has been calculated under the aforesaid Notification w.e.f. December, 1978 without making reference to the Member of the Board, Incharge of Commercial matters inviting his decision thereon which would have become final and, binding on the petitioner firm. Learned Counsel appearing on behalf of the answering respondents has not placed any explanation as to why the amount was calculated against the petitioner firm with effect from December, 1978 without making reference to the Member of the Board, Incharge of Commercial matters about the applicability of the said notification w.e.f. 1978 while admittedly it was not enforced in the year 1978. According to the aforesaid notification, admittedly, the calculation of tariff for unauthorised excess surcharge load beyond the sanctioned limit, cannot be calculated under the said notification fastening a liability upon the petitioner firm w.e.f. December 1978 while the rate of tariff @Rs. 100/- per KW was not in enforce in the month of December, 1978. What was the rate of tariff about the excess surcharge load beyond the sanctioned limit in the years 1978-79, 1979-80 and prior to 7.7.81 has not been brought to the notice of this Court.
33. In my humble opinion, in the present case fairness in action demand that an opportunity of hearing ought to have been given to the petitioner firm and instead of fastening the liability of the aforesaid huge amount, the matter ought to have been referred under Sub-rule (13) of Rule 3 of the aforesaid Notification to the Member of the Board, Incharge of Commercial matters instead of fastening the liability by the Vigilance Agency who itself was an investigating agency in the present case. In my considered opinion, the Vigilance Agency is not entitled to fasten the aforesaid liability of such a huge amount against the mandatory provisions of the statutory notification dated 7.7.1981. Apart from the aforesaid reason, I am of the opinion that since in the present case the Vigilance Agency has investigated the matter and as such being the invetigating agency was naturally suppose to be interested in success of its investigation. The facts and circumstances stated above, are enough to indicate towards an irresistable conclusion that in the present case, there is a likelihood of bias. In such cases, it is not necessary that there should be a positive evidence that an administrative agency call upon to take decision, should be proved to have actual bias but it would be sufficient if there is likelihood of such bias.
34. For the reasons stated in the preceding paragraphs in the present case there is a likelihood of such bias because the aforesaid fastening of liability on the petitioner firm is, based on the investigation conducted by the Vigilance Department. According to me, predisposition involves a mental process and once a person has done investigation in a particular matter naturally he will be always interested in its success. In the present case the Vigilance Agency is disqualified to take decision about the huge liability fastened on the petitioner-firm being investigating agency itself, inasmuch as, they will be deemed to be naturally interested in the result of their investigation. Thus, the aforesaid liability fastened by the Vigilance Agency is not sustainable in the eye of law without giving an opportunity of hearing to the petitioner-firm. As a mater of fact, the matter ought to have been referred to the Member of the Board, Incharge of Commercial matters for deciding the applicability of the said Notification and also for calculating liability of the petitioner firm about the use of surcharge load beyond the sanctioned limit by the firm.
35. It is well to remember that the basic aim and object of this Court while exercising its equitable extra-ordinary jurisdiction under Article 226 of the Constitution of India far to advance justice between the parties and to prevent mis-carriage of justice and in furtherance of the aforesaid aim and object, this Court should uphold fairness as a fundamental principle of good administration.
36. In abundant caution to ensure the vast power vested in the modern State and its instrumentality is not abused but properly exercised the rule of fairness, in action is to be observed. The Authority should not be guided on irrelevant and extraneous consideration. Fairness in action is also a principle to ensure that public authority must arrive on a just decision either promoting the interest or affecting the right of the citizen having civil consequences.
37. The courts attempt to secure justice for the parties and effort to prevent miscarriage of justice by invoking uncodified principle of natural justice is to ensure fairness inaction either by the State or its instrumentality having ethical import with absolute neutrality and impartiality:
38. From the above discussion, it is established that principles of natural justice namely, no one shall be a judge in his own cause (Nemo debat esse Judex Propria Causa) and another principle to the effect that the State or its instrumentality while deciding an issue having civil consequences, is bound to hear other side (audi alteram partem) have almost set a form from authoritative pronouncement of the Apex Court but other two components of principles of natural justice namely, denial of an opportunity of hearing itself, is a sufficient prejudice attracting the principles of natural justice and another rule about make decision in good faith without bias, is still in-offing and have not set an uniform pattern. Applicability of two subsequent components of principles of natural justice mentioned above depends on the facts of each case. In my humble opinion, all afore-mentioned components of the principles of natural justice are attracted in the present case, for the reasons stated above and an argument contrary to it, is not acceptable and as such hereby repelled.
39. Now, it would be expedient to examine other two arguments raised by the learned Counsel appearing on behalf of the petitioner-firm about the applicability of Clause 'f' under VI-Medium Industrial Service Schedule MP/LT-6) as well as the last argument to the effect that since the petitioner-firm was not in existence in December, 1978 and at that time, there was another partnership firm functioning on the same plot i.e. Rajasthan Forgings, therefore, the petitioner is not liable to pay for the excess surcharge load beyond the sanctioned load before granting connection to it on 15.10.1980 Ex. 2 to the writ petition. The aforesaid two contentions of the learned Counsel for the petitioner are inter-linked.
40. As regards the last contention advanced by the learned Counsel appearing on behalf of the petitioner firm to the effect that the petitioner firm is not liable for payment of excess surcharge, load beyond the sanctioned limit w.e.f. December, 1978 for the electric energy consumed or excess surcharge load by the earlier firm namely, Rajasthan Forgings. This last contention of the learned Counsel for the petitioner is not acceptable to me in view of the undertaking given by the petitioner-firm on 14.10.1980 to the Assistant Engineer, Rajasthan State Electricity Board, Jodhpur Annx. R/1 to the reply which clearly stipulates that the petitioner-firm would pay all the arrears of electric dues against its previous consumer M/s. Rajasthan Forgings. In view of the aforesaid undertaking given by the petitioner firm itself. It is not acceptable to me that prior to 15.10.1980 when connection was given to the petitioner-firm It is not liable to pay all the arrears of electric dues against its previous consumer M/s Rajasthan Forgings. The aforesaid undertaking given by the petitioner firm on 14.10.1980 is binding on the petitioner firm and an argument contrary to it, is not acceptable to me.
41. As regard the second limb of argument of the learned Counsel for the petitioner to the effect that under Clause 'f' which is quoted in the earlier part of this judgment, the petitioner-firm is liable to pay only for two months for the unauthorised load at the rate of Rs. 100/-per KW is also not acceptable to me, inasmuch as, it involves factual controversy alleged by the petitioner and denied by the answering respondents. It is established principle of law that this Court cannot under take factual enquiry under Article 226 of the Constitution of India. Thus, the interpretation of Clause 'f' relied upon by the learned Counsel for the petitioner is left open to be decided by the Member of the Board, Incharge of Commercial matters to whom I propose to remand the matter to decide afresh after giving a reasonable opportunity of hearing to the petitioner-firm after taking into account the factual ground realities of the present case.
42. In the instant case, since a part of cause of action about applicability of the notification dated 7.7.1981 is cogninsable by the Member of the Board Incharge of Commercial matters, therefore rest of the matter Is also liable to be referred for decision to the same authority in absence of any provision to meet the present contingency.
43. As a result of the aforesaid discussion, the instant writ petition is allowed and the decision taken by the Rajasthan State Electricity Board (Central Vigilance Squad) creating demand under item No. 28 for Rs. 94, 436.20 by the impugned bill dated 14.91983 Ex. 6 to the writ petition, is hereby quashed and the case is remanded back to the Member of the Board, Incharge of Commercial matters to fix the liability against the petitioner firm for using excess surcharge load beyond the sanctioned limit expeditiously since the matter is pending for a considerable long period. No order as to costs.