1. This Special Civil Application has been filed for the following reliefs:

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(a) To issue an appropriate writ, order or direction quashing and setting aside the order and bill dated 22-12-1986 issued by the Respondent No. 2 as per Annexure "C" as unconstitutional, illegal, null and void.

(b) To issue an appropriate writ, order or direction holding and declaring that the conditions Nos. 34 and 35 and such other conditions dealing with the matters of assessment of energy supply in the case of malpractice and dishonest use and disconnection of power supply etc. and such other conditions prescribed by the respondent No. 1 for supply of electrical energy in exercise of the power conferred on it by Section 49 of the Electricity (Supply) Act, 1948, are invalid, unconstitutional, and ultra vires conditions and to strike down the said conditions prescribed by the respondent No. 1 as such.

2. For the purpose of the disposal of this case, it is unnecessary for us to elaborately refer to the facts of this case. Suffice it to say that there is a contractual obligation between the petitioner and the respondent-Board in respect of supply of electricity to the petitioner herein. Conditions 34 and 35 which are being questioned as ultra vires the Constitution and arbitrary are conditions to which the petitioner is a party. It is the definite case of the respondent-Electricity Board that the petitioner, by inserting a plastic material, stopped the functioning of the meter and thereby, committed theft of electricity. The power supply was disconnected as early as 11-12-1986. It is also the say of the Electricity Board, through its counsel, that this is the second occasion on which the petitioner has committed the theft of electricity.

3. The third occasion of electricity theft was also found out and a notice has also been issued by the respondents herein. The question whether such act was committed by the petitioner or not is a disputed question of fact which cannot be decided in this Special Civil Application. As a matter of fact, it is admitted by the petitioner that he actually filed a suit and also prayed for an injunction therein, but subsequently, after the trial Court has vacated the injunction it already granted, he has withdrawn that suit and has come forward with the present Special Civil Application. Thus, we are of the view that we cannot go into the factual questions that arise in this case regarding the theft of electricity etc., and the petitioner has efficient and efficacious remedy by way of a suit to agitate such matters. When the counsel for the petitioner is confronted with this observation of this Court, he confined his argument only to Condition No. 34 of the conditions of supply of electricity by the Board to the petitioner. Condition No. 34 for the purpose of this case is extracted in part. They are to the following effect:

34. Payment for energy dishonestly used abstracted or maliciously wasted or diverted.

Where it is established to the satisfaction of the Board's officer that a consumer has dishonestly abstracted, used, consumed or maliciously caused energy to be wasted or diverted, the value of the electrical energy thus abstracted, used, consumed, wasted or diverted shall be assessed by such officer for the past six months' period or the actual period from the date of commencement of supply, whichever is less, in the manner specified hereinbelow and the value of energy so assessed shall be collected by including the same in the next bill or by a separate bill. Such amount shall always be deemed to be the arrears of electricity dues for all purposes.

Provided that the value of the electricity energy so assessed to have been abstracted, used, consumed, wasted or diverted shall be subject to review by the Appellate Authority on the representation/appeal being filed by the consumer in the manner stated hereinbelow.

When a consumer on first occasion is found wasting/directly using/abstracting/consuming energy dishonestly or maliciously, is aggrieved by the assessment made by the Board's Officer in respect of the monthly quantum of energy deemed to have been consumed and/or the period considered therefor, he shall pay an amount equivalent to 20% of the value of the energy so assessed before the supply is reconnected. However, the consumer on second or subsequent occasion is found wasting/directly using/abstracting/consuming energy dishonestly or maliciously he shall have to pay full amount of the energy so assessed before the supply is reconnected. Such consumer can represent his case if he so desires within 30 days from the date of receipt of the assessment order or from the date of reconnection of power supply whichever is late, but in no case later than 90 days from the date of receipt of the assessment order, before the Appellate Authority appointed by the Board at its Head Office, who, after giving an opportunity to the consumer of being heard and producing all written and oral evidence in support of his representation and will decide the appeal and the decision of the Appellate Authority in the appeal shall be final and binding upon the consumer and he shall then pay the balance amount within 30 days from the date of communication of the order of the Appellate Authority failing which his supply is liable to be disconnected without any further notice.

4. It is the say of Mr. Patel, the Learned Counsel appearing for the petitioner, that this condition does not provide any opportunity to the petitioner to submit his case before any penalising action is taken. The Learned Counsel further submits that the appeal provided with such harsh condition of paying 100% penal assessment is illusory. It is further submitted by the Learned Counsel that since the Indian Electricity Act has made elaborate provision for penalising the malpractices, the condition imposed by the Board as Condition No. 34 will amount to double punishment and cannot be sustained. Even apart from these submissions, the Learned Counsel drew our attention to Section 26(6) of the Indian Electricity Act, and has submitted that when there is a defect in the meter, it is only the Electrical Inspector who has to decide the same and the Board has no authority or power to decide as to the defectiveness of the meter and impose penal assessment upon the consumer concerned. In support of his contention, the Learned Counsel also brought to our notice the decision in Hamidullah Khan v. Chairman M.P. Electricity Board, , and the decision in Basantfbai v. M.P. Electricity Board More .

5. As regards the contention of absence of procedure for submitting the case of the consumer before the impugned assessment of penalising action is taken, we are not able to appreciate this argument. The consumer with his open eyes enters into an agreement with the Board with such conditions. Those conditions are for the purpose of meeting certain exigencies in granting the service connection. It has also been made clear by the Board in Condition No. 3 which is framed under the title 'The Gujarat Electricity Board' Prevention of Theft of Energy and Malpractices (By Consumers) Regulations, 1976' as follows:

3. The Board may with a view to preventing the consumers from indulging in committing theft of energy and committing malpractices impose such conditions in its conditions of supply applicable to its consumers and forming part of the contract of supply between the Board and the consumer as the Board may deem fit.

6. Thus, it is clear that the Board has formulated such a condition in order to safeguard its interest. Such a condition is there for the purpose of checking, apart from other things, the theft of electricity. It is not a case of any defective meter, but it is a case of theft of electricity by the consumer concerned. As a matter of fact, in this case it is alleged that the petitioner, by inserting a plastic strip was able to stop the running of the meter and thereby, committed theft of electricity. The condition clearly states as to the procedure that has to be adopted for the purpose of questioning the departmental action in levying penal charges. It has also been made clear in the condition as to the limit to which the Department can go for the purpose of assessing the theft of electricity. In no case the Department can go beyond a period of six months, according to this condition. In Condition No. 34, we are able to see that manner of assessment also has been specified. If all these steps are taken by the Department, the condition itself states that the consumer has a remedy by filing an appeal to the appropriate authority within a specified time. Thus, a conjoint reading of this condition and the purpose for which it is intended, clearly makes out that such a condition is not arbitrary or unreasonable, but within the powers of the Board and, in our opinion, it does not offend any of the articles of the constitution. The argument as if the imposition of penal assessment before filing an appeal is harsh and makes the appeal illusory cannot be appreciated. The penal assessment, as we have stated already, is restricted to a limited period. Such an assessment was made after the Department itself was satisfied with regard to the theft of electricity committed by the consumer concerned. Hence, it cannot be said that the appeal provided under Condition No. 34 is an illusory one.

7. We are also not convinced that such a condition provided under Condition No. 34, in anyway, conflicts with the provisions of the Indian Electricity Act as directly coming into conflict with Section 26(6) of the Indian Electricity Act. Section 26(6) reads as follows:

26. x x x x (6) Where any difference or dispute arises as to whether any meter referred to in Sub-section (1) is or is not correct, the matter shall be decided, upon the application of either party, by an Electrical Inspector; and where the meter has, in the opinion of such Inspector ceased to be correct, such Inspector shall estimate the amount of the energy supplied to the consumer or the electrical quantity contained in the supply, during such time, not exceeding six months, as the meter shall not, in the opinion of such Inspector, have been correct; but save as aforesaid, the register of the meter shall, in the absence of fraud, be conclusive proof of such amount or quantity:

Provided that before either a licensee or a consumer applies to the Electrical Inspector under this sub-section, he shall give to the other party not less than seven days' notice of his intention so to do.

The two decisions cited by the Learned Counsel appearing for the petitioner in Hamidullah Khan v. Chairman M.P. Electricity Board and the decision in Basantibai v. M.P. Electricity Board Indore , deal with defective digit in the meter and a meter which was burnt respectively. As far as the present case is concerned, there is no question of any defective meter as such, but the consumer has dexterously inserted a plastic wire in order to stop the meter from running. This is a case, if it is proved, squarely coming under the theft of electricity and will not in any way be construed as one coming under the category of recording consumption under a defective meter. Hence, Condition No. 34 does not come into conflict either with the Indian Electricity Act or Section 26(6) of the Indian Electricity Act as submitted by the Learned Counsel appearing for the petitioner herein. Taking all these aspects into consideration, we are of the view that Condition No. 34 is not unreasonable or arbitrary and it does not offend any of the provisions of the Constitution.

8. For all these reasons, we do not find any substance in this Special Civil Application and accordingly, the same is dismissed.