Full Judgment Text
aIN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 3505 of 2007
Punjab State Electricity Board & Anr. …Appellants
Versus
Ashwani Kumar …Respondent
WITH
Civil Appeal No. 3506 of 2007
Punjab State Electricity Board & Anr. …Appellants
Versus
Sudesh Mahajan …Respondent
JUDGMENT
Swatanter Kumar, J.
st
1. This appeal is directed against the Order dated 21 February,
2006 passed by the National Consumer Dispute Redressal
Commission (hereinafter referred to as the ‘National Commission’),
New Delhi where it dismissed the review petition preferred by the
Punjab and Haryana State Electricity Board (for short ‘Electricity
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Board’) against the Order dated 16 August, 2005. One Ashwani
Kumar, respondent herein had filed a complaint before the District
Forum alleging that the electric meter bearing No. MS-32/603 was
installed in the premises owned and possessed by him in the name
of Kartari Devi and Suraj Prakash who had sold the property through
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Registered Sale deed dated 28 November, 1996 (Ext.C/1) and since
the purchase of the property, he has been using the electric meter
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and connection. On 2 July, 2002, he had received a Memo from
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the Electricity Board stating that the said connection had a
sanctioned load of 52.49 KW and it was required to be clubbed with
electric connection in the name of Janak Raj bearing electric
connection No. MS-32/580 with sanction load of 56.79 KW. Reply
was submitted by him to the Memo wherein he had stated the above
facts. It was further clarified that his property was separate and
distinct from property possessed by Sudesh Mahajan and the electric
connection in that premises was in the name of Janak Raj. They
denied the cross wiring in the property or even that the connection
was being commonly used by the parties. Thus, they contested the
demand raised by the Electricity Board to the extent of Rs.3,28,216/-.
2. Similarly, in the other case Sudesh Mahajan had filed a
complaint claiming a sale in favour of his predecessor in interest on
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28 November, 1996. They denied the charges of clubbing and took
up the stand that they were independent properties wherein different
meters have been installed and as such, the demand of
Rs.4,56,025/- and Rs.3,28,261/- was not payable by any of the
consumers namely Janak Raj and Kartari Devi or persons claiming
through them. To challenge the same, complaints were filed by both
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which came to be dismissed vide orders dated 2 June, 2002 and 8
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September, 2003 respectively, passed by the District Forum. The
appeals were filed by the private complainants against the Electricity
Board before the State Consumer District Redressal Commission,
Punjab which came to be registered as Appeal No. 218 and 219 of
2004 respectively. Both these appeals came to be allowed by the
State Forum and the demands raised were quashed. A further
direction was issued that the amount deposited by the respondents, if
any, under the impugned demand notice, the same shall be refunded
with interest @ 9% per annum. The State Forum while referring to
the documents of sale in favour of the respondents further held that a
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circular being CC No. 4 of 1997 issued by the Electricity Board on 8
January, 1997 dealt with the subject of running of more than one
connection in the same premises. According to the circular, if there
were two connections in the same premises they were required to be
clubbed for the purposes of payment of tariff. However, the
Competent Forum in appeal found that they were two distinct
persons, owning distinct properties and were having independent
electric connections. Reliance was placed on the fact that the
properties have been numbered as 136 and 136-A separately by the
Municipal Corporation. The properties were subjected to property tax
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separately. The result of these two distinct properties was that they
could not be termed as same premises under the relevant provisions
and therefore, the demand raised was entirely unjustified. The
Electricity Board filed appeals before the National Consumer Dispute
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Redressal Commission, which were dismissed, vide Order dated 21
February, 2006. As already stated, it is a small order and it will be
useful to refer to the same at this stage:
“Heard the Ld. Counsel for the Petitioner. As
per the Municipal record, two separate
buildings are there. One building admeasuring
554 sq. yards in P-136 owned jointly by Shri
Suraj Prakash, Shri Ashwani Kumar, Shri
Subhash Chander S/o Shri Tilak Raj and Smt.
Raj Rani. Other building admeasuring 504
Sq. Yards is P-136-A owned by the same
person. On record there is evidence that
Ashwani Kumar is running the business in the
name of Ashwani Textiles and he is the
proprietor. As against them there is other
textile mill known as Mahajan Handloom
Industries owned by Shri Sudesh Mahajan. In
this state of circumstances order passed by
the State Commission cannot be said to be, in
any way, erroneous. Hence, these Revision
Petitions are dismissed.”
3. The legality and correctness of the order passed by the
National Commission is challeged in these appeals. At the very
outset, we may notice that the electric supply regulations have been
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framed in exercise of the powers conferred under Section 49 and
Sub Section (j) of Section 79 of the Electricity Supply Act, 1948 (for
short referred as ‘the Act’) and other enabling provisions by the
Board. These regulations deal with different aspects, in particular,
they deal with providing of one connection in one premises and
consumer is required to give an undertaking on a non-judicial stamp
paper that no connection already exists in the premises, in which, the
connection is being applied in terms of Clause 3.1.1 of the
Regulations. Other relevant provisions which have a bearing on the
matters in controversy before us, relate to new connection in the
same premises, transfer of the premises, where there exists a
connection and the obligation on the part of the consumer to get the
connection clubbed. Now we may examine those relevant provisions
which read as under:
“3.5.2 Whenever, an existing consumer
applies for a new connection in the same
premises i.e. even having independent
shed/unit/piece of land having separate plot
no. etc., in his name, it shall normally be not
allowed. Such consumer should be asked to
apply for extension in existing load. However,
if a new connection has been applied in the
name of a new firm/company of which the
existing consumer is a Director/Partner, the
connection will only be allowed if the premises
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are distinctly and physically
separate/portioned so that it is not possible to
utilize electricity from one premises to the
other and further that in case of one of the
connections having been disconnected due to
default, it cannot be run from other connection
by making temporary arrangement.
3.5.2.1 Where the premises in question are
legally transferred, sold or leased to a new
unit and appropriate entry exists in the
municipal/ revenue record regarding such
transfer, the consumer/applicant should
furnish a copy of the registered deed for sale
or lease as the case may be. An informal
agreement of family partition/ lease etc. will
not be acceptable.
3.5.2.2 Where the Punjab Government has
allowed the registration of more than one
unit/renting out of the premises for setting up
industrial units in industrial plots/sheds in the
Focal Points depending on the size of the plot
and subject to fulfilment of some conditions
laid down for the purpose, in such cases the
new connection may be allowed provided
such units are in the name of different
persons and parts of such sheds/plots being
used by different industrialists, are properly
demarcated and separated from each other
by making suitable partition so that it is not
possible to use electricity from one unit to
another and in case of one connection having
been disconnected due to defaulting amount
etc., the same cannot be run from other
connection(s) in the adjoining industrial unit(s)
by tapping some supply points.
xxx xxx xxx
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3.5.7 Failure to get Connections Clubbed
If a consumer fails to exercise option to get
his connections clubbed within the stipulated
date or declares that there is only one
connection in his premises but later on it is
detected that he is having more than one
connection in one premises, he shall have to
pay higher tariff and surcharge, if applicable
w.e.f. 1.1.96.
4. The circular, which has been relied upon by the parties reads
as follows:
“In order to encourage the consumers to opt
for clubbing of their loads and also to facilitate
a smooth transition, it has been decided that
all consumers may be asked to give
undertaking for clubbing/conversion of two or
more connections in the same premises,
wherever existing by 31.1.97. Further action
in various situations may be taken as under:
(a) Cases where no change of voltage level is
involved;
The cost of clubbing with regard to service
Mains, if any, shall be borne by the Board.
However, consumer shall be charged higher
tariff wherever applicable, from the date of
undertaking, which in any case shall have to
be given before 31.1.97.
(a) Cases where change of voltage level is
involved;
In cases requiring conversion of supply
voltage from LT to 11 KV, Board shall carry
out the conversion including erection of a new
11/0.4 KV transformer with allied equipment in
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the first instance and recover the conversion
cost in six equal monthly instalments from the
consumer.
Note:- Where there is a transformer
exclusively feeding the consumer, this may,
on the option of the consumer, be sold to him
as per the provisions contained in SMI-39.
In both the cases (a) and (b) above, such
consumers shall be brought on higher tariff,
wherever applicable and any surcharge due to
voltage level shall be stopped with effect from
the date of undertaking.
The above relaxation shall be applicable to
the cases involving voltage level upto 11 KV.
(a) The consumers who do not exercise option by
31.1.97 or those who in the first instance
declare that there is only one connection
existing in their premises but later on are
detected to be running more than one
connection in the same premises, shall have
to pay higher tariff and surcharge wherever
applicable w.e.f. 1.1.96.”
5. The bare reading of the above regulations and circular makes it
apparent that the aim of the Electricity Board is to provide single
connection in the premises. Not only this, it is the obligation of the
consumer, to get the connections clubbed where more than one
connection exists in the same premises. This policy is, primarily,
meant to encourage single connection as well as consumers to opt
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for clubbing of their loads and also to facilitate a smooth
transmission. Besides this, the most important aspect is the mischief
that these provisions ought to suppress. A consumer who gets two
meters installed in his premises and in that garb receives bulk supply
instead of medium supply clearly makes an attempt to avoid payment
of higher tariff. It cannot be disputed that a consumer of a medium
supply is subjected to a lower tariff than the one receiving bulk
supply. Therefore, the intention, thus, is to avoid revenue loss to the
Board by circulating the prescribed procedure. These regulations
and circulars, thus, cannot be interpreted so as to defeat the very
object of suppressing such a mischief in the consumption of
electricity. Therefore, if the Electricity Board finds that such mischief
is being played, there is nothing in law preventing the Board from
treating it as a clubbed connection and impose such tariff and penalty
as is permissible in accordance with law. No consumer can be
permitted to defeat the spirit of the regulations and take undue
advantage of receiving electric supply through all different meters in
the same premises and with an intention to defraud the Electricity
Board of its genuine dues for supply of electricity.
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6. Having referred to these regulations, now we may revert back
to the facts of the present case. The officers of the Electricity Board
had conducted inspection of the premises in question and prepared
an inspection report. As per the inspection report, there is only one
plot being Plot No. 136, Industrial Area-A, Ludhiana and in that Smt.
Kartari Devi is stated to be the consumer. She has a sanctioned load
of 52.49 KW and the Consumer Account No. was MS-32/603. The
other consumer is Shri Janak Raj in the same property having
Consumer Account No. MS-32/580 with a sanctioned load of 56.79
KW. In the report, it was noticed as follows:-
“6. In the connected portion of premises
(Aahata) one more connection MS-32/0603
Kartar Devi is installed. The supply of which
also comes to this premises and at the
moment some load of that connection is found
running on this side.
7. The common wall of both sides has one
shutter and one Kainchi Gate. In the half
portion of Kainchi Gate a wall of
approximately four feet exists. As per Board
instructions case of clubbing is made out
action be taken.”
6. This report was signed by Shakti Jaggi, a representative of the
consumer, to whom the copy of the same was given. The
Department, vide their letter written to the consumer, had stated that
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in terms of circular No. 78 of 1995, dated 15 September, 1995 and 4
th
of 1997, dated 8 January, 1997, the connections were liable to be
clubbed on the basis of this inspection report and they were expected
to file reply within fifteen days from the date of issue of the notice. In
the reply submitted by the consumers, no specific objections were
filed to the effect that the inspection was conducted in a prejudicial
manner or correct facts had not been noticed and that is why the
protest was raised. In any case, it was open to the consumer to file
objections to the report at a subsequent stage. Except that, there
were two distinct properties and connections, nothing was averred in
the reply or before the Forum as to why the officers had reported the
facts in their report which justify clubbing of the connections.
Thereafter, the demands of Rs.3,28,216/- and Rs.4,56,025/-, as
stated above, were raised from these consumers. Both the reports
have been received by the consumer’s representatives. The demand
notices were admittedly received by the consumer as they are the
very basis of the complaints filed by them. The circular being CC No.
4 of 1997, while referring to the scheme of the Electricity Board under
Clause (c) of the circular, made it obligatory upon the consumers to
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exercise the option by 31 January, 1997 and even to those persons
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where one connection is stated to be existing in the premises but
later on are detected to be running more than one connection and
they would have to pay higher tariff and surcharge w.e.f. 1.1.1996.
The version, put forward by the consumers, is that there were two
separate premises and they had produced certain documents before
the Forum, which persuaded them to treat these premises as
separate. All these documents were prior to the date of inspection
and it has been noticed by the Forum that the inspection reports
were signed under protest. The reports, which have been placed
before us at page Nos. 56 and 59 respectively of the paper book,
show that some protest was raised, however, no objections were filed
to show what was the protest and what exactly the consumer were
objecting to. It, certainly, required a definite finding to be recorded by
the Forum. Non-recording of such a finding has prejudicially affected
the rights of the parties.
7. The documents (Ext.C1 to Ext.C10), noticed by the State
Commission, show that the consumer had advanced the argument of
separate properties, separate ownership and separate connections.
However, there is no reason recorded as to why the evidence of the
Department i.e. the inspection report is incorrect and cannot be relied
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upon. There is ambiguity. The District Forum, while relying upon the
report, had rejected the complaint which was reversed by the State
Forum. These are the findings of facts and they must be recorded in
a manner which would clearly establish on record the case of one
party or the other in accordance with law. The trading accounts filed
by the consumer in one of the appeals related to financial year 1991-
92, 1992-93, 1993-94 and 1996-97. On behalf of respondents,
st
Subhash Chander, had filed the rent receipts for the period 1 April,
th
2002 to 30 September, 2002. Primarily, the documents produced
by the consumers related to the period prior to the date of inspection.
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The inspection of the premises was conducted on 19 June, 2002. It
was required of the consumers to establish their case for the period,
at the time of or subsequent to the date of inspection. There could
reasonably be possibility of issues being answered against the
consumers. The report prepared by the officers of the Electricity
Board is an act done in discharge of their duties and could not be
straight away reflected or disbelieved unless and until there was
definite and cogent material on record to arrive at such a finding. It is
not disputed before us that if two connections are operating in the
same premises, in that event, the concept of clubbing and
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consequential charges and penalty would be attracted. That being
so, and particularly, where a National Commission has not adverted
to some discussion on the points raised in the appeal, the policy of
the Electricity Board and the regulations cannot be rendered otiose.
It is the obligation of every bona fide consumer to comply with the
requirements and the regulations in the circular and not to abuse the
advantage given under the policy of the Electricity Board. If there is
a prima facie record to show that the consumer had attempted to
circumvent the circular and with an intention to avoid payment of
higher tariff, two connections were being utilized in the garb of
different premises, while in fact, it was one and same premises, the
penal consequences must follow. The circular issued and the
regulations read with the provisions of the Act, clearly contemplate
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imposition of penalty and such charges with effect from 1 January,
1996. There is no explanation on record as to why the date is
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effective from 1 January, 1996. Even if taking the said date to be
correct then the dues, which can be recovered, are the dues payable
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to the Electricity Board in accordance with law. The notice dated 2
July, 2002 (Ext.C/5) was issued on the basis of the inspection report.
From the record before us it will be a serious question to be
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specifically answered by the Competent Forum, as to whether the
premises in question are two distinct and different premises or it is
one in the same (i.e. only property No. 136 or 136 and 136-A). If
these are two independent premises owned by two different persons
who are consumers of the Board in their own capacity and there is no
intention on their part to use these connections collectively and have
not violated their sanctioned load, the consequences in law will be
different. But, if there is intention to use both connections and avoid
higher tariff, the consequences will be entirely different in that case.
The inspection report is a document prepared in exercise of its
official duties by the officers of the Corporation. Once an act is done
in accordance with law, the presumption is in favour of such act or
document and not against the same. Thus, there was specific onus
upon the consumer to rebut by leading proper and cogent evidence
that the report prepared by the officers was not correct. As already
noticed, no objections were filed to the said report except some
protest, that too, without stating as to what was the specific protest
about, whether the facts recorded in the report were factually
incorrect or that the report was received under protest. As is
apparent from the reports on record, it bears two signatures of the
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consumer/consumer’s representatives, one with regard to the
preparation of report and other with regard to receiving the copy of
the report. The words ‘under protest’ have been recorded at the
bottom of the report. This, itself indicates the ambiguity in the protest
raised by the consumers.
8. In the circumstances aforestated, we are of the considered
view that the matter requires to be remanded to the Competent
Authority in the Electricity Board to determine and record the clear
findings afresh as to whether it was a case of clubbing or not in
accordance with the provisions and observations afore-referred with
liberty to the parties to produce any further documents, if they so
desire. The authority shall pass a final order expeditiously. The fate
of the notices and consequences thereof shall be subject to the final
order that may be passed by the Competent Authority. Parties are at
liberty to challenge the order so passed in accordance with law.
9. The appeals are, therefore, disposed off with the above
direction while leaving the parties to bear their own costs.
................................J.
[ DR. B.S. CHAUHAN ]
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……..............................J.
[ SWATANTER KUMAR ]
New Delhi
July 8, 2010.
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