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John Earnest Edward and anr. Vs. Rai Jogendra Chandra Ghose Bahadur - Court Judgment

LegalCrystal Citation
SubjectElectricity
CourtKolkata
Decided On
Reported inAIR1935Cal298
AppellantJohn Earnest Edward and anr.
RespondentRai Jogendra Chandra Ghose Bahadur
Cases ReferredHerron v. Rathmines and Rathgar Improvement Commissioners
Excerpt:
- .....license of defendant 2. by proviso (a), clause 6(i) of the schedule the licensee is not bound to supply energy to a consumer unless the latter executes a written contract in a form approved by the local government. in this case the plaintiff did execute the agreement ex. a-5 for premises no. 25 on 17th june 1922 in the form which was sanctioned by the local; government. i have already pointed out that this agreement does not empower defendant 2 to discontinue supply to premises no. 25 for, non-payment of the charges of other premises of the plaintiff. clause 6 of the subsequent agreements executed by the plaintiff in respect of his other premises however contain a clause enforcing the licensee to discontinue the supply to the plaintiff's premises where there is no default.9. dr. basak.....
Judgment:
ORDER

Nasim Ali, J.

1. These two rules were issued at the instance of the defendants upon the plaintiff opposite party in a suit instituted in the Court of the Small Causes, Sealdah for recovery of damages. The case of the plaintiff opposite party briefly stated is as follows: Plaintiff is the owner of Premises. 25 and 25 A Harish Mukerji Road Bhowanipur P.S. on 7th June 1933 and 8th June 1933 defendant 2 i.e., Calcutta Electric Supply Corporation Ltd. served notices upon him demanding payment of the charge for supplying electric current and intimating that on failure thereof the supply would be cut off. The amounts covered by the said notices were paid in time by the plaintiff. No notice of discontinuing the current of the aforesaid premises on account of their arrears was ever served on him. He was never informed by defendant 2 that the electric connexion of the said premises would be cut off, for non-payment of the charges for supplying energy to his other premises. Though nothing was due to defendant 2 on account of the said premises, defendant 1, an Inspector of defendant 2, entered the said premises on 23rd June 1933 on the false pretext of examining the meters of the said, premises for changing it without disclosing his real purpose and cut off the supply without knowledge of the plaintiff. There are 10 shops in the one storied out-house appertaining to the said premises, the shop keeper of which pay for the current to the plaintiff. On account of this wrongful cutting off of the supply the tenants of the shops lost their customers and plaintiff also sustained loss and damage. On these allegations plaintiff claimed Rs. 400 as damages.

2. The defences of the defendants in substance are; (1) that the plaintiff did not pay certain bills for supplying energy to premises 27-A, 27-B, 27-C, 27-D, Harish Mukherji Road; (2) that on 1st June 1933 plaintiff was given express notice that unless all the sums due from him were paid defendant 2 would disconnect the meters at Nos. 25 and 25-A Harish Mukerji Road; (3) that statutory notices were given to the plaintiff; (4) that on 23rd June 1933 Rs 380-5 6 was due from the plaintiff to defendant 2; (5) that by virtue of the provision of Clauses 6 and 10 of the agreement executed by the plaintiff on 17th June 1922, 29th December 1924, 14th January 1925, 28th January 1925, 6th February 1925, and 12th January 1932 and in pursuance of the power conferred by Section 20, Sub-section 1 and Section 24, Electricity Act, 1910, defendant 2 by its servant, defendant, entered upon the plaintiff's premises Nos. 25, 25-A and by its said servant removed and took away some fuses connecting defendant's meters in the said premises installed with the service and supply lines, (6) that on the said occasion and prior to the removal of the said fuses defendant 1 verbally intimated to the plaintiff his intention and purpose to disconnect the said meters and that he had authority and order of defendant 2 to cut off the supply of electrical energy from the said premises unless the plaintiff then and there paid to him as representing defendant 2 the whole of the money then due and owing in respect of energy supplied to the premises 27 A, 27-B, 27-C and 27-D, (7) that the written notices served upon the plaintiff prior to the cutting off the supply constitute 'information' required by Section 20, Sub-section 1, Electricity Act, 1910.

3. The opposite party gave evidence in support of his allegation in the plaint. Defendant 1 however did not come to the witness box. The learned Small Cause Court Judge held: (a) that the charges for premises 25 and 25-A were paid after service of notice; (b) that the charges for 27-A, B, C and D remained due; (c) that under Clause (6) of the agreement between parties defendant 2 had right to cut off the supply from premises Nos. 25 and 25-A; (d) that defendant 1 who cut off the supply did not disclose his purpose to the plaintiff that he wanted to enter the premises for cutting off the supply; (e) that defendant 1 cut off supply stealthily without the knowledge of the plaintiff and bolted away; (f) that if the plaintiff had known that defendant 1 had come to cut off the supply he would have paid off the dues then and there, although there was controversy how far the bills for the premises No. 27 which was sold away by the plaintiff are recoverable from him; (g) that the plaintiff was entitled to get damages at the rate of Rs. 20 per day. The suit has accordingly been decreed in part.

4. The present rules were thereupon obtained by defendants 1 and 2 under Section 25 Provincial Small Causes Court Act. The only point urged in support of the rule is that on the facts found by the learned Small Cause Judge plaintiff's suit should be dismissed. Now:

It is well settled that a public body invested with statutory powers such as are conferred upon the corporation must take care not to exceed or abuse its powers. It must keep within the limits of the authority committed to it. It must act in good faith. And it must act reasonably, per Lord Macnaghten in Westminister Corporation v. L & N Ry. (1905) AC 426.

5. Under Section 24, Electricity Act 1910, the licensee after giving seven days' notice in writing to a person who neglects to pay any charge in respect of the supply of energy to him, without any prejudice to his right to recover such charge by suit can cut off that supply and for that purpose can cut or disconnect any electric supply line and other works being the property of the licensee through which energy may be supplied and may discontinue the supply until such charge is paid. It is therefore clear that in addition to the right to realize the charge by suit the legislature has given power to the licensee to discontinue the supply of energy to a consumer who neglects to pay the charge. The section does not clearly lay down that the licensee can cut off the supply of the premises for which the charge has been paid for the consumer's neglect to pay the charges supplied to his other premises. The corresponding provision in the English Act which is to be found in Section 18, Electric Lighting Act 1909, (Edn 9. 7 C. 34) is however clear on the point. It is in these terms:

The undertakers may refuse to supply electrical energy to any person whose payments for the supply of electrical energy are for the time being in arrear (not being the subject of a bona fide dispute) whether any such payments be due to the undertakers in respect of a supply to the premises in respect of which such supply is demanded or in respect of other premises.

6. Dr. Basak appearing on behalf of the plaintiff-opposite party contends that Section 24, Electricity Act, authorizes the licensee to cut off supply only of that premises the charge of which is in arrear and that it does not authorize the licensee to discontinue supply to premises the charge of which has been paid off. Mr. Bose appearing on behalf of the petitioners on the other hand contends that words 'any person' 'any charge for energy' 'in respect of the supply of energy to him' are very wide and authorize the licensee to cut off the supply where the default occurs as well as in other premises owned by the same person within the area of supply. In order to accept Mr. Bose's contention one will have to read into the section some words which are not there. One will have to import into the section words to the effect the premises in respect of which the charge is due or in respect of other premises' after the words cut off the supply. Mr. Bose however contends that the words 'any person' 'to him' rather indicate that the legislature had in mind the same owner and not the same premises. But Section 18 of the English Act also contains the words 'any person' whose payments for the supply of the electrical energy for the time being in arrear.' The English Act definitely allows the licensee to refuse supply to other premises of the consumer whose payments are in arrears. But the Indian Act does not say so. Again if such powers were given by Section 24 it is difficult to understand why a clause embodying this right of the licensee to cut off the supply from premises where there was no default was not mentioned in the agreement executed before 1923: see Ex A-5 taken from the plaintiff in respect of premises No. 25 on 17th June 1922. Such a clause was introduced for the first time in the agreements the forms of which were sanctioned by the Local Government in 1923 under proviso (a) Sub-section (1), Clause 4 of the Schedule. Up to the year 1922 the licensee evidently thought that the Indian Act was different from the English Act in this concern. At any rate

the benefit of doubt is to be given to those who might be prejudiced by the exercise of powers which the enactment grants and against those who claim to exercise them: see Maxwell on Interpretation of Statntes, 7th Edn., p. 258.

7. It is therefore difficult to say that the right to discontinue supply to premises for which the charge has been paid off is given to the licensee by Section 24. The next point for determination is whether the agreements executed by the plaintiff authorize the defendant 2 to discontinue supply to premises No. 25, 25-A though the charges of those premises were paid off. It may be mentioned at the outset that the notices which were served upon the plaintiff did not mention that the supply would be discontinued on the basis of the agreements. Apparently they purported to be notices under Section 24 of the Act.

8. Under Section 3(2)(d)(i) the license granted under the Act may prescribe such terms as to the limits within which and the conditions under which the supply of energy is to be compulsory and permissive and generally as to such matter as the Local Government may think fit. The exercise of the power under Section 3 of the Act however is subject to the control of the Governor-General in Council. The Schedule in the Act contains provisions which are to be deemed to be incorporated with and to form part of every license granted under Part II of the Act, save in so far as they are expressly added to or varied or excepted by the license. The license granted to defendant 2 is not before the Court. The provisions of the Schedule are to be taken therefore to be incorporated in the license of defendant 2. By proviso (a), Clause 6(i) of the Schedule the licensee is not bound to supply energy to a consumer unless the latter executes a written contract in a form approved by the Local Government. In this case the plaintiff did execute the agreement Ex. A-5 for premises No. 25 on 17th June 1922 in the form which was sanctioned by the Local; Government. I have already pointed out that this agreement does not empower defendant 2 to discontinue supply to premises No. 25 for, non-payment of the charges of other premises of the plaintiff. Clause 6 of the subsequent agreements executed by the plaintiff in respect of his other premises however contain a clause enforcing the licensee to discontinue the supply to the plaintiff's premises where there is no default.

9. Dr. Basak however contends that Clause 10 of these agreements definitely states that the other clauses in the agreements are subject in all respects to the provisions of the Calcutta Electric License and to the provisions of the Indian Electricity Act of 1910, and that the condition contained in Clause 6 of these agreements, on which the petitioners rely, being inconsistent with the terms of the license and Section 24 of the Act is not enforceable. Under Proviso (a), Clause 6 the written contract which is to be executed by the consumer binds him to take a supply of energy for not less than two years to such amount as will produce at current rates charged by the licensee a reasonable return to the licensee. The license therefore authorises the licensee to take such an undertaking from the consumer. Mr. Meares in his 'Law Relating to Electrical Energy in India' 4th Edn. p. 75 has observed:

As to the agreement it will generally contain many other matters some of which may not be enforceable in law.

10. Again at 78 the following passage occurs:

It has always been customary for electric supply authorities, both in Great Britain and India, to issue so-called 'rules' purporting to bind the consumer, giving in considerable detail the way in which the consumer is to wire his premises and so on. A licensee may demand that the prospective consumer shall enter into an agreement, in a form to be approved by the Local Government, to take a supply for two years and to give security to that effect; but he may mot prescribe any special form of appliance nor may he control or interfere with the use of energy. No doubt as a guide of the non-technical consumer these so-called rules had a value. In Great Britain such licensee's rules have never received legal sanction, but the custom has now been legalized in India by the Indian Electricity (Amendment) Act, in Section 21 of the Act, in which the second and third sub-sections were inserted in 1922. The conditions of supply as authorized must not be inconsistent with the Act, the rules or the license; they require the previous sanction of the Local Government both for their introduction and as to their contents, so that in practice the onus of ensuring that they are unobjectionable will lie on the Electric Inspector.

11. If any other conditions are to be imposed on the consumer the licensee is bound to take the previous sanction of the Local Government under Section 21(2). In this case it does not appear that previous sanction of the Local Government for inserting the condition under discussion in Clause (6) of the agreements was obtained under Section 21(2) of the Act. Again the conditions must be intra vires. If I am right in my view that Section 24 does not authorize the licensee to discontinue supply to the premises where there is no default, Clause (6) so far as it gives power to the licensee to discontinue supply to any other premises owned or occupies by the consumer would be inconsistent with the Act. The Regulations of the licensee which received the approval of the Local Government and which were placed before me do not appear to contain the 'condition' on which the petitioner rely. I am therefore of opinion that defendant 2 had no right to cut off supply from premises No. 25 and 25-A in respect of which all charges were paid.

12. Again assuming that defendant 2 had authority to cut off the supply under Section 24 this statutory power should be exercised in good faith and reasonably. In the written statement of the defendants it was definitely stated that defendant 1 when he went to the plaintiffs residential house at Premises No. 25 informed the plaintiff that unless the arrears were paid off to him then and there he would cut off the supply. Plaintiff in his evidence denied this. The defendant 1 did not come to the witness box to support this allegation in the written statement. In the notices Ex. D and E series it was not stated that unless the arrears of 27 A, B, C and D were paid of the supply to his residential house at premises No. 25 would be cut off. Plaintiff in his letter dated 26th May 1933 intimated to defendant 2 that be had sold off his mansion in 27 A, B, C and D to Raha Court of 'Wards Estate and they were liable for all current bills from that date. Assuming that the purchaser refused to pay, one would expect that defendant 2 would inform the plaintiff that unless the arrears for other premises were paid off immediately the supply to his residential house would be discontinued. The power to discontinue supply to a premises is evidently a power given in addition to the rights to realize the arrears by suit. Under the circumstances defendant 1 should have been given a opportunity to the plaintiff to pay off the arrears immediately before the connexion was cut off. The learned Judge has found that if defendant 1 had asked the plaintiff to pay off these arrears, the plaintiff would have at once paid them off. Defendant 1 instead of taking that course obtained access to the house on a representation which he knew to be not true and did not inform the plaintiff even after entering the house, that he was there to cut off the supply for nonpayment of arrears of the other premises. The facts of this case show that the power of cutting off the supply was not exercised reasonably.

13. Further the plaintiffs case is that the connexion was not cut off in accordance with the provisions of Section 20 of the Act. The contention of Dr. Basak is that before cutting off the supply defendant 1 was bound to inform the plaintiff of his intention to enter the house for the purpose of cutting off the supply, and that if defendant 1 had given him that information he would have either paid off the arrear or refused to allow defendant 1 to enter his house. It is argued that if arrears were paid off the connexion could not have been cut off. If however plaintiff refused to allow defendant 1 to enter the house plaintiff would have been entitled to a further notice under Section 20, Clause (3). The contentions of Mr. Bose on behalf of the petitioners with regard to this matter are however two-fold: (i) That Section 20(1) applies, only when the licensee or his agent, wants to enter for removing something cut, whereas in this case, as defendant 1 wanted only to cut off the supply and not to remove anything he was not bound to follow the formalities prescribed by Section 20(1). (ii) That even if defendant 1 was bound to follow those formalities he was bound simply to inform the plaintiff of his intention to enter and that he was not bound to disclose the purpose of his entry.

14. I am unable to agree with Mr. Bose in this view of the matter. As regards the first contention it may be pointed out that this is not the defendants case in the written statement, in which it was definitely stated that some fuses were removed and taken away by defendant 1. As regards the second contention it should be remembered that in the written statement it was definitely stated that defendant 1 informed the plaintiff that he wanted to enter the premises for the purpose of cutting off the supply and that unless the arrears were paid then and there the supply would be immediately cut off. Again under Section 20(1) the information is to be given to the occupier. The occupier may not be in a particular case the consumer. He may not even know whether the arrears have been paid off. Notice under Section 24 is served on the consumer. If the occupier is not the consumer he may refuse entry and the licensee would then have to give a further notice under Clause (3) and in the meantime the occupier may make arrangements for paying off the arrears. Again if the licensee or his agent does not disclose the purpose how is the occupier to know whether he has the right to enter because the right of entry into the house is only for the purposes specified in Section 20(1). Unless the purpose is disclosed it is also very difficult for him to decide whether the time when the licensee or his agent wants to enter the house is reasonable or not. Rule 108 of the Statutory rules lays down that all persons entering in pursuance of the Act any building which is used as a human dwelling shall in making such entry have due regard so far as may be compatible with the exigencies of the purpose for which entry is made to the social usages of the occupant of the building entered. Mr. Bose also contended that it was not necessary that the real purpose should be disclosed. It is argued by him that it would be sufficient compliance with the requirements of law if one of the purposes mentioned in the section be disclosed. In other words one purpose for entering the house may be disclosed though a different purpose is really included. This interpretation would however frustrate the object of the legislature. It is true that the properties mentioned in Clauses (a), (b) and (c), Section 20(1) are the properties belonging to the licensee. But they are in a house in the possession of another man which is his castle. That the licensee or his agent cannot enter the house against the wishes of the occupier is clear from the provisions contained in Clause (3), Section 20. Under the said clause if the licensee or his agent is not allowed to enter the premises, the licensee is to serve a notice and then he can cut off the supply-

15. In fact Clause (3) was introduced into Section 20 by the amending Act of 1922 to meet difficulties of the licensees in obtaining access to houses on their lawful business. The object of the amendment, was to enable them to cut off the supply in the last resort. It is true that if a dishonest consumer persists in refusing to allow the licensee or his agent to enter the premises to cut off the supply even after the notice under Section 20(3) the section does not say how the supply is to be cut off. If possible, the licensee may cut off the supply from outside without entering the house. Perhaps, the object may also be achieved by starting prosecution under Section 47 of the Act. But the provisions contained in the Act certainly contemplate that the supply should be discontinued as a last resort after all the formalities laid down in the Act had been complied with. Regard being have to the formalities laid down I am not in a position to hold that the legislature contemplated that entry into private property could be secured by misrepresentation.

16. It was also contended by Mr. Bose that notices Ex. E series are notices under Section 20(3) of the Act. These notices were given on 19th June 1933. But in these notices even the plaintiff was not informed that the connection of premises No. 25 and 25-A would be cut off. Further there was no attempt before the date on which the said notices were given to enter the premises in question as required by Section 20(1) and consequently there had been no refusal within the meaning of Section 20(3). Mr. Bose also contended that the written notices given on 19th June 1933 contained the information as required by Section 20(1). I have already pointed out that those notices do not mention even that the licensee wanted to cut off the supply from premises No. 25. It is also argued by Mr. Bose that if a person has got a right to do something and if he succeeds in doing that thing by employing fraudulent means he is not liable in tort. It is however not necessary for the purposes of the present case to express my opinion on this point. The legislature has given certain powers to a Corporation to be exercised in a particular manner. Suffice it to say that

It is not within the province of any tribunal to relax conditions which the legislature thought fit to impose: see Herron v. Rathmines and Rathgar Improvement Commissioners (1892) AC 498, at pp. 523-524.

17. The provision about cutting off the supply is in the nature of a penal provision. The object of the legislature is that the supply is to be cut off as a last resort, i.e., after all the steps indicated in the Act for realization of the arrears have failed. This view of the matter was also presented in the written statement of the defendants. When defendant 1 went to cut off the supply, if he had simply informed the plaintiff that he would discontinue the supply unless the arrears were paid, the plaintiff, as the Small Cause Court Judge has observed, would have paid off the arrears; and there would have been no necessity for cutting off the supply. The learned Judge in one part of his judgment has observed:

the drastic measure adopted, the stealthy severance of electric connexion and bolting away from the consumer's premises was not dignified proper and valid.

18. The last point urged by Mr. Bose is that plaintiff's suit being a suit for damages for breach of contract and the plaintiff having by his own act brought about the injury to himself, he is not entitled to claim any damages. In view of what I have said before I am unable to accept this contention. The suit is really a suit for damages for breach of an obligation imposed by statute. Though there was an agreement between the parties the right to enforce the terms thereof was also made subject to the provisions of law. In view of the facts and circumstances disclosed in this case I am not inclined to interfere in the matter. The rules are accordingly discharged with costs. There will be only one hearing-fee in the two rules which is assessed at three gold mohurs.


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