Radiant Rotogravure Private Ltd. Vs CESC Ltd. and Others

Satya Brata Sinha, J.@mdashThe petitioner in this application has prayed for the following reliefs :--

"a) Writ in the nature or Mandamus commanding the respondents not to disconnect the electric supply of your petitioner but to rectify the electric bills immediately:"

2. The fact of the matter lies in a very narrow compass.

The petitioner is the owner of a factory, and for the purpose of running the factory, it has obtained electrical connection from the respondent company. According to the petitioner, it had been paying bills regularly, despite the fact that the bills had been erratic. The petitioner in a letter dated 21.11.96 as contained in annexure ''D'' to the writ application stated as follows :--

"... According to the consumption pattern for the year 1995 our monthly bills should range between Rs. 18,000/- to Rs. 22,000/- while as against this we have received bills for amounts which are out of proportion. Those could only be termed as baseless and absurd. We have on occasions pointed out to you by way of letter as well as in course of our meeting with your Mr. Harish Bakshi, Chief Clerk at your North Subarbon Regional Office, but without any result. Against Your bills we would like to state as hereunder :--

1. For the month of February 96 you have charged for 2700 units on ad hoc basis while the monthly consumption in our case should be about 5000 units. Again for March 96 you have charged for 6500 units on ad hoc basis and likewise bills for the month of April 96, June 96 and August 96 were either raised on ad hoc basis or showing unit consumption at a very much exorbitant level. For the month of August 96 the bill raised by you amounted to Rs. 2,10,950/-. The Above statistic gives a clear indication about the erration way the CESC opted in raising the bills for electric charges.

2. For the month of October 96, the present meter reading has been shown in the bill an 155631 unit while actual meter reading as taken by us on that day was 145631 unit. It is somehow appears to be a clerical mistake on your part.

We have lodged complaints on number of occasions pointing out the mess and depleted condition of the meter room which is located at the road side. It has been observed that your personnel coming for taking meter reading usually avoid to enter into the meter room on account of dirty environment and for that we have reason to believe that the bills raised as pointed out herein above are without any basis and are far away from the accruals"

The aforementioned dispute raised by the petitioner has not yet been disposed of.

3. Mr. Sen, learned counsel appearing on behalf" of the Calcutta Electric Supply Corporation Limited, however, stated on instruction that the petitioner does not permit meter readers to enter into the meter room as a result whereof ad hoc bills are being raised. The leaned counsel also has relied upon a decision of a learned single Judge of this court in Aruna Apartment Flat Owners'' Association v. Calcutta Electric Supply Corporation Limited and Ors. reported in 1996(2) CHN 184 and submitted on the basis thereof that in terms of Clause 16(b) and (c) of the Model Form of Draft Conditions of supply which has been substantially reproduced in Clauses 21 and 22 of the Calcutta Electric Supply Corporation, Conditions of Supply, the petitioner should have deposited the entire amount before such a dispute could be resolved. Clauses 21 and 22 of the said Conditions of Supply read thus :--

"21. (a) The readings of meters will be taken by the Licensee once in each month or at such intervals or times as the Licensee may think expedient and the consumption of electric energy will be taken to be the average of the advances of the meters if more then one meter is used in the same circuit.

(b) If either party disputes the accuracy of any meter registering the consumer''s supply, it shall be tested by the Electrical Inspector to Government in accordance with Section 26 of the Indian Electricity Act, 1910 or any revision thereof. If the accuracy of such a meter is disputed by the consumer he shall deposit with the Licensee the fee laid clown in the table of fees issued by Government under the Indian Electricity Rules for the time being in force and the Licencee will arrange for the meter to be tested accordingly. If upon test, the meter or the average of the meters if more than one in the same circuit is found to be not correct within the meaning of Section 26 of the Indian Electricity Act and the Rules thereunder, then proper adjustment shall be made in the Licensee''s bill or bills in accordance with the decision of the Electrical Inspector under Sub-section (6) of Section 26 of the Indian Electricity Act, 1910 or any revision thereof. If the meter or the average of the meters if more than one in the same circuit is found to be correct, the expense of the test shall be borne by the party who called for the test.

In the event of any meter ceasing to be a correct meter and where there is not difference or dispute, the charges payable by the consumer for such period as the meter has been considered not to be correct shall be based on the average number of units paid for by the consumer during the three months preceding the date on which the meter is considered to have become incorrect, or during the corresponding period of the previous year or on the registration of the meter which replaces the incorrect meter.

22 (a) A monthly bill for electrical energy supplied will be rendered by the Licensee in accordance with the readings of the meters for each month, except in the case of supplied of electrical energy to theatres and cinemas when the bills will be rendered weekly in accordance with the reading of the meters for each week. The bill shall specify the date, hereinafter called the "due date" by which payment shall be made in order to obtain the-advantage of a rebate, if any.

(b) Bills will normally be sent by post; if a bill is not received at the usual date, the Licensee should be notified, at the Licensee''s office, failing such notice, no alteration of the due date will be allowed for the purpose of the rebate. If after the due date the bill remains unpaid, the Licensee may, after giving note less than seven clear days & notice in writing discontinue the supply of energy to the consumer at the said premises until such bill, together with any expenses incurred by the Licensee in disconnecting and reconnecting the supply is paid. The Licensee may utilise any deposit made under paragraph 12 for the purpose of recovering any sums due after the supply has been disconnected and if the security deposit is insufficient to cover the amount outstanding the consumer shall pay interest on the amount outstanding at the rate of 12 per cent per annum from the due date until payment is made.

(c) In the case of stand-by supplies to premises having a separate supply, one twelfth of the agreed minimum annual sum payable under paragraph 24 will be charged monthly even though energy to this value has not been consumed.

(d) If the bill for energy supplied is disputed, and if such bill is subject to a rebate for payment on or before the due date, it must be paid in full (without prejudice to the dispute) on or before the due date on order to obtain the rebate. In the case of other bills, the consumer shall be deemed to have admitted the accuracy of the bill unless he slates his objection and deposits 75 per cent of the amount with the Licensee within seven days from the issue of the bill. Any refund to which the consumer is subsequently found to be entitled will be paid promptly.

4. The conditions 21 and 22 of the Calcutta Electric supply Corporation''s conditions of supply are said to have been approved by the State in exercise of its power u/s 21(2) of the Indian Electricity Act, which therefore, clearly mandates the Licensee to raise bill on the basis of reading recorded in a meter installed in the premises for that purpose. The respondent company being a Licensee is bound by the provisions contained in the Indian Electricity Act and the Rules framed thereunder. In terms of Section 24(1) of the Indian Electricity Act, a Licensee derives a statutory power to disconnect the electric supply line provided the consumer neglects to pay any charges for energy or any sum other than a charge for energy due from him to a Licensee in respect of supply of energy to him, upon service of not less than seven clear days'' notice in writing and without prejudice to his right to recover such charge or other sum by initiating a proper proceeding. It is now well known that a provision contained in a statute shall have to be read harmoniously with the conditions of supply and/or subordinate legislation. In the event, such harmonious construction is not possible, the provisions of the act shall prevail over the model form of the draft condition of supply or Clauses 21 and 22 of the Calcutta Electric Supply Corporation''s Conditions of supply. As indicated hereinbefore, it is an admitted case that the Calcutta Electric supply Corporation Ltd. had not been issued bills on the basis of the reading of the consumption of the electrical Energy recorded in the meter installed for the said purposes u/s 26 of the Indian Electricity Act, unless there exists an agreement to the contrary, a meter has to be installed either by the Licensee or by the consumer. In the event, a meter is defective, such a dispute has to be referred to the Electrical Inspector in terms of Section 26(6) of the Indian Electricity Act.

5. In the instant case, a bare perusal of the aforementioned letter dated 21.11.96, clearly goes to show that the petitioner has raised a dispute within the meaning of Section 24(1) of the Indian Electricity Act. It is pertinent to note that recourse to the provisions of Section 24(1) of the Indian Electricity Act can be taken provided the consumer neglects to pay any charge. The terminology ''neglect'' is of wide significance, it has been held by the courts that in the event a bona fide dispute is raised by the consumer, the Licensee cannot exercise its power u/s 24(1) of the Indian Electricity Act before resolving the dispute. In Corporation of the City of Nagpur Vs. The Nagpur Electric Light and Power Company Ltd., , a Division Bench of Bombay High Court, inter alia, held that if there is a bona fide dispute between the parties as to what was payable, failure to pay cannot amount to a ''neglect'' to pay within the meaning of Section 24(1) of the Indian Electricity Act and therefore, action u/s 21(1) of the Act cannot be taken by electrical undertaking. It has further been held that the amount stated in the notice u/s 24(1) must be accurate and if it is in excess of what is due, then the notice given u/s 24(1) would be ineffective. Their Lordships laid down the law by stating that the powers conferred on a electrical undertaking by Section 24(1) are very drastic and therefore, strict compliance of that section is expected. The aforementioned decision of the Bombay High Court has later been followed by another Division Bench of the Bombay High Court in Maharashtra State Electricity Board Vs. Madhusudandass and Brothers, . Patel, J., speaking for the Division Bench stated the law thus :--

"It is difficult to appreciate the contention that the question as to whether or not the supply was properly discontinued has not been raised in the pleading. The defendant''s contention was all along that he was prepared to pay the charges according to the contractual rate, the contract was for a period of five years and the Board had no right to apply the new Tariff rates and that the charges under the new tariffs were excessive. In para 1 of the written statement the defendants alleged that the disconnection of the supply on all these occasions was wrongful. As to the minimum charges in para 2(B) of the written statement it says that the plaintiff wrongfully cut off the supply and hence it was not entitled to claim the minimum charges. True it is not contended that the Board was not entitled to discontinue the supply u/s 24 of the Electricity Act as there was dispute between the parties. But then law need not be pleaded. It is our duty to apply the law to facts proved and found. Though therefore the point was not argued in the court below, we would not be justified in not allowing the defendant to argue the point."

6. It has further been held :--

Corporation of the City of Nagpur Vs. The Nagpur Electric Light and Power Company Ltd., it was held that if there was a bona fide dispute between the parties as to what is payable, the failure to pay the dues does not amount to a neglect to pay within the meaning of Section 24(1) and action u/s 24(1) could not be taken by an electrical undertaking in such a case. If the Board, therefore, is obliged to act u/s 24(1), then in view of the dispute between the parties, it could be said that the Board was not Justified to cutting off the supply. The question is whether Section 24(1) is applicable to the Board."

7. A Division Bench of Patna High Court has also held the same view (see 1980 Bihar Bar Council Journal 200). Yet recently, a learned single Judge of the Allahabad High Court in The Premier Ice Factory, Kanpur Vs. The Commercial Manager, Kanpur Electricity Supply Administration and Another, held that the sine qua non for operation of Section 24 is that there must be a charge or sum due that the person neglects to pay. In that case the decisions in Orissa Fibre Vs. The Orissa State Electricity Board and Another, was considered wherein R.N. Misra, J. (as His Lordship then was) while explaining the scope and purpose of Section 24 of the Act held that Section 24(1) of the Indian Electricity Act of 1910, is intended to be exercised as a coercive measure to force the consumer to pay the charges to the licensee. Arrear dues in respect of energy bills are certainly claims recoverable through court. The power vested u/s 24(1) of the Act is to ensure payment of the energy charges without forcing the licensee to resort to a suit. It has further been held that the provisions of Section 24(1) are not invoked against consumer who is in arrears. In this jurisdiction also the law has been stated by a Division Bench in a case reported in John Earnest Edward and Another Vs. Rai Jogendra Chandra Ghose Bahadur, , wherein the Division Bench clearly held that taking recourse to provision of Sub-section (1) of Section 24 of the Electricity Act is a harsh remedy and the same should be taken recourse to as a last resort. The decision of the learned Judge in Aruna Apartment''s case (supra) is to be viewed from the aforementioned settled principle of law. In the said case, the learned counsel were remiss in bringing to his Lordships notice the well settled principle of law interpreting the provisions of Section 24 of the Indian Electricity Act. Neither the question raised in this application were raised nor considered. Event relevant decisions had not been brought to the notice of the learned Judge. Before the learned Judge a decision of mine in Dumraon Textiles Limited Vs. Bihar State Electricity Board and Others had been cited to the court, where in also it is held that the Board being a licensee cannot be permitted to raise arbitrary bills without complying with the principles of natural justice.

8. It is now well know that a decision is an authority for what it decides and not what can logically be deduced therefrom. It is further well settled principle of law that a decision is an authority for the proposition it decides and not what can logically be deduced therefore (See Lord Halsbury in Quinn v. Leathem 1900(1) All ELR par 1). It is also now well settled that a decision on a question not argued would not create a precedent. (See Goodyear India Ltd., Gedore (India) Pvt. Ltd., Kelvinator of India Ltd. and the Food Corporation of India and Another Vs. State of Haryana and Another,

9. In that view of the matter, I am of the opinion that the decision of the learned single Judge in Aruna Apartment''s case (supra) cannot be said to be a binding precedent inasmuch as the question raised in this application had not been raised therein. The ratio of a judgment is the reasons assigned therein. There is nothing to show that in the aforementioned case the interpretation of the words, ''neglects to pay'' occurring in Section 24(1) of the Indian Electricity Act was brought to the notice of the learned Judge nor various decisions of this courts as also other courts were brought to its notice.

10. In this view of the matter, I am of the opinion that the said decision must be held to have passed substation as regards construction of the Clauses 21 and 22 of the condition of supply vis-a-via Section 24(1) of the Indian Electricity Act. In S.B.I. Staff Association v. Election Commission of India reported in 1994 (1) BLJR 128 it has been held that�

"It is well known, as was observed by lord Halsbury in Quinn v. Leathem. (1900) I All ELR 1, that a decision is an authority for what it decides and not logically can deduced there from.

It is also well known that a judgment of the Supreme Court has to be read in a reasonable manner and like any other documents in its entirety.

In Central Coal fields Ltd. v. State of Bihar 1993(1) PLJR 617 a Division Bench of this courts of which I was a member) observed as follows :

It is also well known that judgment of a court is not to be read as a statute.

In General Electric Co. Vs. Renusagar Power Co., it was held.

"As often enough pointed by us, words and expressions passed in Judgment are not to be construed in the same manner as statues or as word and expressions defined in statues. We do not have any doubt that when the words, adjudication of the merits of the controversy in the suit were used by this court in State of U.P. v. Janki Saran Kailash Chandra the words were not used to take in every adjudication which brought to an end the proceeding before the court in whatever runner but were meant to over only such adjudication as touched upon the real dispute between the parties which gave rise to the action. Objections to adjudication of the disputes between the parties, on whatever ground, are in truth not aids to the progress of the suit but hurdles to such progress. Adjudication of such objections cannot be termed as adjudication of the merits of the controversy in the suit. As we said earlier a broad view has to be taken of the principles involved and narrow had technical interpretation which tends to defeat the object of the legislation must be avoided."

It is now well known that a decision is an authority for what is decides and not what logically can be deduced there from. It is also well settled that a point not argued does not create a binding precedent with regard thereto.

In Rajshwar Prasad Mishra v. The State of West Bengal and Anr. AIR 1965 SC 1997, it was held :

''Article 14 empowers the Supreme Court to decide the law and not enact it. Hence the observation of the Supreme Court should not be read as statutory enactment. It is also well known that ratio of a decision is the reasons assigned there in.''

Dias on Jurisprudence at page 139 observed knowing the law--What is ''law in a precedent is its fulling or ratio decidendi, which concerns future litigations as well as those involved in the instant dispute. Knowing the law in this context means known how to extract the ratio decidendi from cases. Statements not part of the ratio decidendi are distinguished as obiter dicta and are not authoritative. Three shades of meaning can be attached to the expression ''ratio decidendi''. The first, which is the translation of it, is the reason for (or of) deciding. Even a finding of fact may this sense be the ratio decidendi. Thus a Judge may state a rule and then decide that the facts do not fall within it. Secondly, it may mean the rule of law preferred by the Judge as the basis of his decision, or thirdly it may mean'' the rule of law which others regard as being a binding authority.

There is a temptation to suppose that a case has one fixed ruling which is there'' (and discoverable here and now and once and for all). This is not so, for the ratio is not only the ruling given by the deciding judge for his decision, but any one of a series of rulings as elucidated by subsequent interpretations. The pronouncement of the Judge who decided the case is a necessary step towards ascertaining the ratio but the process by no means ends there, subsequent interpretation is at least as significant, sometimes more so. ''It is not sufficient'' said Jessel M.B.

That the case should have been decided on a principle of that principle is not itself a right principle, or one not applicable to the case and it is for a subsequent Judge to any whether or not it is a right principle and, if not, he may himself lay down the true principle.

11. The said authority has recently been considered by a Division Bench of this court in West Bengal Primary Organiser Teachers Association and Ors. v. State of West Bengal and Ors. in F.M.A.T. 2096 of 1996 disposed of on 24.12.96.

12. Having considered the mailer, I am, of the view that Clauses 21 and 22 of the conditions of supply and Clause 16(b) and (c) of the model form of draft condition of supply have to be read in the context of Sub-section (1) of Section 24 of the Indian Electricity Act and thus in a case where consumer has raised a bona fide dispute, the Licensee has no other option but to restrain its hands in exercising its power u/s 24(1) thereof unless bona fide dispute raised by a consumer is resolved.

13. Having regard to the facts and circumstances of this case, I am prima facie satisfied that the respondent company had not only acted illegally in raising bills on an ad hoc basis, but according to the petitioner, even there exists an error in the reading of the meter and thus keeping in view the decision of the Bombay High Court in AIR 1958 Bom, the petitioner was not obliged to pay a bill which was ex facie erroneous. However, in view of the statements made by Mr. Sen that the petitioner had not been allowing the meter readers to enter into the premises, it is directed that the petitioner shall allow the meter reader to enter into premises upon opening the meter room so as to enable him to take correct reading and the officer authorised by the Senior Commercial Executive of the Licensee shall visit the premises of the petitioner and submit his report and on the basis thereof the Senior Commercial Executive shall decide the dispute raised by the petitioner in its letter dated 21.11.96 upon giving an opportunity of hearing to him. However, there cannot be any doubt whatsoever that the petitioner has consumed electrical energy at least to some extent. Mr. Sen states at the Bar on instruction that upto November, 1996 a sum of Rs. 4,39,119. 52 P., is due besides delayed payment sur charges. The petitioner shall without prejudice to the rights and contentions of the parties and subject to the ultimate order that may be passed by the Senior Commercial Executive, deposit a further sum of Rs. 1 lac within two weeks from date. It is expected that the dispute raised by the petitioner shall be resolved and if necessary, a fresh bill shall be served upon him within a period of four weeks from date.

14. It is placed on record that the petitioner is said to have deposited a sum of Rs. 50,000/= in terms of the order dated 24.12.96 and this order shall not, however, preclude the petitioner and/or Calcutta Electric Supply Corporation Limited to refer any dispute, if any occasion arises therefore to the Chief Electrical Inspector in terms of Section 24(2) and or Section 26(6) of the Indian Electricity Act and in the event such a dispute is raised by either of the parties, it is expected that the Chief Electrical Inspector shall dispose of such a dispute at an early date and preferably within a period of two months from the date of such reference.

15. Till an appropriate order is passed, the electrical connection shall not be disconnected subject to the condition that the petitioner shall go on paying the current bills raised on the basis of the consumption of electrical energy recorded in the meter. If the Licensee considers it proper it may raise a comprehensive bill in view of the fact that it had not been able to take down the meter reading for a long time. There cannot be any doubt whatsoever that the amount paid by the petitioner shall be taken into account and duly adjusted for.

16. Since no affidavit-in-opposition has been used, the allegations made in the writ application are not admitted by the respondents. It is further placed on record that I have passed this order on the basis of the statements made in the writ application and I have not entered into the merit of the matter, which in view of my direction aforementioned has got to be considered on its own merit by the aforementioned concerned authorities.

This application is disposed of with the aforementioned observations and directions.

Xerox certified copy of this judgment, if applied for urgently, may be supplied on priority basis.