- (1.) By this single judgment the aforesaid two matters can be disposed of, as the facts and law involved therein are identically same. Shorn of details of the fact made out in both the writ petitions it would be suffice to narrate the short fact. In both the cases the petitioners, are consumers of M/s. CESC Ltd., being the respondent No. 1. On 4/09/2000 one of the three phases of electric connection of the premises of the petitioners was gutted in fire, as a result whereof, the same was destroyed. On information the CESC officials came to restore the supply line after removing defect occurred due to fire. However, the line was not restored, despite repeated request and representations. On the contrary CESC authorities took a false plea of pilferage of electric energy, by means of tampering of seals of the meters. So, CESC sent a bill of huge amount for payment as condition precedent for restoration of supply line. The petitioners approached concerned Redressal Forum, under Consumer Protection Act, 1986 without any favourable result, ultimately these writ petitions were filed and pursuant to the interim order the line has been restored. In both the writ petitions the vires of amended conditions of supply, namely Clauses 28, 29, 30 as sanctioned by the Government dated 15/05/2000 are challenged. By the aforesaid conditions of supply CESC has been empowered amongst others to disconnect supply line without any notice in suspected cases of pilferage, and realize un-metered consumption of electric energy by pilferage and other charges. Upon proper examination of the body of the petitions I find there is no specific ground in the petition filed in Original Side writ to challenge the vires of the aforesaid conditions of supply, however, in the petition of the Appellate Side the grounds are there. As both the matters are being heard in consolidated manner, I have no option but to decide all the questions raised in both the petitions. The affidavit-in-opposition reveals fact somewhat differently, as it is stated that the petitioners had resorted to the clandestine act of pilferage of electric energy thereby, the petitioners have allowed electric energy to be consumed without any registration in the meter. Incident of breaking out of the fire in one of the phases was mere an isolated incident, but this incident was really an eye-opener to the CESC officials for detection of this pilferage of electric energy.
(2.) Mr. Pradip Kumar Ghosh, learned Senior Advocate appearing in support of the petition has argued the case on the question of vires. So, I cannot help to consider his submission, which is summarized as hereunder : He submits that the aforesaid clauses 28, 29, 30 have overridden the expressed provision of the statute under which conditions of supply have been framed and the same cannot be allowed to be done under the law as such they are bad in law. He submits that the aforesaid conditions of supply are not at all necessary even if it is assumed the same are valid, inasmuch as the existing provisions in the Act and Rules are quite adequate to meet any eventuality or situation even in case of theft of electric energy or for that matter in case of disconnection of supply line where the consumer commits default or commits breach of the terms and conditions of the supply. He has drawn my attention to Section 20 of the Indian Electricity Act, 1910, which authorize the licensee to inspect, test, repair meter or meter fittings and for this purpose the licensee can have access upon prior intimation to the occupier to inspect the electrical installation and metering system. For this, if necessary, the licensee can procure the order of Magistrate for entering the premises after giving not less than 24 hours' notice and even the line can be cut off if the entry or access is refused by the consumer. He contends that under provision of clauses 28, 29 service of prior notice has been done away with. So, according to him this dispensation of service of prior notice is really conflicting with the statutory provision for service of prior notice. Thus this provision ultra vires the Act, so far as it relates to service of prior notice is concerned.
(3.) He contends further that by virtue of Sections 39-44 and 50 of the Indian Electricity Act, 1910 cases of theft and pilferage can effectively and comprehensively be dealt with for which no separate provision for adjudication of dispute by in-house procedure under clauses 29 and 30 is necessary. The Act does not contemplate for formation of such in-house tribunal for adjudication of dispute as regard theft and pilferage of electric energy.;