Samaresh Banerjee, J.:—Common questions of law and fact being involved in all the cases, the same have been heard analogously and will be governed by the same judgment.

2. In each of the writ petitions being W.P No. 13179(W) of 1998, W.P No. 13180(W) of 1998 and W.P No. 13181(W) of 1998, the writ petitioner Pankaj Kumar Mukherjee a partner of three different small scale industrial unit has challenged the action of the CESC in disconnecting the power supply to each of the units of the petitioner on the alleged ground of tampering without notice and subsequent demand of the CESC for amount towards alleged unmetered consumption. In W.P No. 13179(W) of 1998 such disconnection had been made in respect of B.T Industrial Company, a small scale industrial unit of which the petitioner partner having its factory and office at 6, B.T Road, P.O— Panihati, Police Station-Khardah, Dist.- 24 Parganas (N). In W.P No. 13180(W)/98 such disconnection had been made in respect of Sampa Manufacturing Co. another small scale industrial unit having its factory and office at the same premises of which also the same petitioner Pankaj Kr. Mukherjee is a partner and in W.P No. 13181(W) of 1998 such disconnection had been made in respect of Electro Gas Welding & Engineering Co., situating in the same premises, a small scale industrial unit of which the said petitioner Pankaj Kr. Mukherjee is a partner.

3. In case of Ramlal Agarwal v. CESC Ltd., W.P No. 14081(W) of 1998 such disconnection had been made in respect of Calcutta Oil Industries, of which the writ petitioner Ramlal Agarwal is a proprietor having its office and factory at B.T Road, Tentultala, Agarpara, Calcutta-58 within the Police Station Khardah.

4. Since the question raised in all the present writ petitions really involved questions of law, the parties agreed that the matter can be disposed of without exchange of affidavits and production of records. Accordingly records of the cases were produced by the CESC authority and relying on the same both the parties addressed the court in full.

5. The main contentions of the writ petitioners is that even on the alleged ground of tampering, the CESC Authorities could not have disconnected the electric supply to the factory of the petitioner without giving any notice. The allegations of tampering of the meter has been denied. It has also been contended that the records of the case produced by the CESC itself will indicate that finding of the inspection team of CESC in respect of such tampering cannot be relied upon as there was not even independent witness to such action of the CESC and they entered into the factory premises in violation of section 20 of the Indian Electricity Act without notice. It has further been submitted that in any view of the matter no provisions of the Indian Electricity Act or schedule thereto and Rules made thereunder nor any agreement between the parties having empowered the CESC to claim any amount towards alleged unmetered consumption in case of such alleged tampering or to determine the amount in respect thereof, the claim of the CESC in respect thereof is wholly without jurisdiction. It has been submitted that in any view of the matter dispute relating to such alleged tampering and claim for unmetered consumption should be referred by the court to electrical inspector and in the mean time the court may direct restoration of supply of electricity in the factory of the petitioners.

6. The submission of Ld. Counsels on behalf of the CESC on the other hand, inter alia, is that their inspecting team having detected tampering of the meter and seal and the report of such inspection being prima facie material towards dishonest obstraction of electricity and stealing it is not for the writ court to interfere with the same. It has been submitted that no notice Under section 20 of the Indian Electricity Act was necessary before such visit to the factory and the very purpose of inspection may be frustrated if such notice under section 20 is given. It is the further submission of the CESC that no prior notice for disconnection in the case of tampering of the meter is necessary and any such notice might have enabled the petitioners to remove the evidence of such tampering. It has further been submitted that a determination having been made by the CESC towards unmetered consumption a dispute, if any, in respect thereof by the petitioners have to be raised before the CESC Authorities itself. It has been submitted that electrical inspector has no jurisdiction to decide the dispute in the matter of such tampering of the meter as also in the matter of determination such unmetered consumption and, therefore, there cannot be any reference to the electrical inspector and there should be no direction for restoration by the court unless at least 50% of the amount determined by the CESC towards unmetered consumption is deposited.

7. After considering the respective submissions of the parties as also different judgment of the Hon'ble Supreme Court and our High Court referred to by the parties, it appears to this court that the question whether the CESC can disconnect the electric supply to a consumer on the ground of tampering of the meter under the Indian Electricity Act, 1910 is no more res integra. It has already been decided by a Ld. Single Judge of this Hon'ble Court in case of Hanuman Steel Rolling Mill v. CESC Ltd. reported in 1996 (1) Calcutta High Court Notes page 469, that even on the ground of alleged tampering, disconnection cannot be made without giving prior notice. After considering a large number of decisions as also the provisions of the Indian Electricity Act and Schedule VI thereof it has been held that such disconnection on such ground without giving notice would amount of violation of the principles of natural justice and at least 7 days notice is called for before such disconnection.

8. such being the position of law, the respondents, therefore, could not have disconnected the electric supply to the factory of the petitioners without giving any notice.

9. It has been submitted by the Ld. Counsels appearing on behalf of the CESC Ltd. that an appeal has been preferred against the said judgement which is still pending where in the operation of the said judgment has been stayed.

10. It may be recorded that the aforesaid judgment was rendered by the Ld. Single Judge in the aforesaid case of Hanuman Steel Rolling Mill as also in a batch of writ petitions which were heard analogously.

11. It appears, the CESC has preferred an appeal against the judgment and order passed in one of such writ proceeding which was heard analogously with the aforesaid case of Hanuman Steel Rolling Mill, namely, in Sankar Rubber Industries being FMAT No. ………… reported in 1996 (2) Calcutta High Court Notes page 533.

12. It will appear from the order of the Appeal Court passed in the aforesaid case of CESC Ltd. v. Sankar Rubber Industries that Their Lordships have not stayed the operation of the judgment passed the case of Hanuman Steel Rolling Mill at all. Their Lordships were pleased to direct that the judgment and direction contained in the case of Sankar Rubber Industries will remain confined to the parties in the said Appeal. It does not appear in other cases including in case of Hanuman Steel Rolling Mill, the CESC preferred appeal or the appeal court has stayed the operation of the judgment of the trial court in all such cases. In such view of the matter it certainly cannot be said that the aforesaid judgment rendered in the case of Hanuman Steel Rolling Mill (supra) has been stayed. Such judgment not having been set aside by the appeal court the same is still a good law. The CESC, therefore, could not have disconnected the electric supply to the factory of the petitioners on the ground of alleged tampering without giving notice.

13. In fact the respondents seem to be aware of such position for which they submitted before the appeal court that their condition of supply was awaiting approval of the State Government under section 21(2) of the Act for which appeal court directed expeditious disposal of the same.

14. Reliance has also been placed by the Ld. Counsel appearing on behalf of the CESC in the decision of the Supreme Court in the case of M.P Electricity Board v. Harsh Wood Products, reported in 1996 (4) SCC page 522 wherein it has been held, inter alia, that section 24 of the Indian Electricity Act, 1910 does not apply to demand on detection of pilferage, but would apply to a case of required supply made and prior demand for payment of electric charges with a notice of 7 days. The principles of law decided in the aforesaid case of M.P Electricity Board v. Harsh Wood Products does not apply in the instant case at all. The decision in the said case is not at all the authority for the proposition that under the Indian Electricity Act, 1910, disconnection of electric supply may be made on the ground of alleged tampering of the meter or pilferage without giving notice. In the said case the Supreme Court was considering a case of demand by the M.P Electricity Board towards unmetered consumption after disconnection of electric supply on the ground of alleged pilferage, under the provisions of Electric (Supply) Act, 1948, wherein electricity board is empowered to frame regulation and in the said case such demand was being raised in terms of such regulation framed by the said board. On detection of pilferage the board raised such bill towards unmetered consumption determining the amounts under regulation and in terms of agreement between the parties which was upheld by the Supreme Court in the said case. The contention of the consumer that the provisions of section 24 of the Indian Electricity Act, 1910, would apply was rejected holding the aforesaid provisions would not apply in case of pilferage, but in paragraph 9 of the said judgment the question whether the consumer is entitled to hearing before disconnection was answered in negative in view of the condition to which the respondents agreed at the time of installation. No such agreement exists between the parties in the instant case. One of the reasons for which it was held in the aforesaid decision of Hanuman Steel Rolling Mill that such notice will be required is that paragraph 26 of the condition of electric supply of the respondents empowered them to discontinue supply of electrical energy to a consumer after giving 7 days notice in the event of consumer's failure to comply with the provisions of the said conditions of supply or terms of agreement which have been approved by the State Government in exercise of its power under section 21(2) of the Indian Electricity Act. It was further held that pilferage and theft of electrical energy constitute violation of supply and, therefore, 7 days prior notice is required to be given.

15. It has been argued by Mr. Deb, Ld. Counsel appearing for the CESC that the court should take a practical view of the matter in case of such disconnection on the ground of pilferage in view of the fact that incidents of pilferage of electricity has become rampant which is creating havoc in the distribution of electricity sometimes jeopardising the very system of distribution affecting the interest of the honest consumers.

16. While it may be true that certain sections of the consumer are pilfering electricity by tampering the meters, or otherwise and such incidents are large in number the same cannot create a right for the CESC itself to violate the provisions of law as has been interpreted by the court in the aforesaid judgment. Law laid down by the aforesaid judgment as pointed out hereinbefore is still a good law and very much binding upon the CESC.

17. As held by the Supreme Court in the case of Isha Marbles v. Bihar Electricity Board reported in Judgment Today 1995 (2) SC page 626, that “No doubt, dishonest consumers cannot be allowed to play truant with the public property but inadequacy of the law can hardly be a substitute for over zealousness.”

18. I am not, however, oblivious of the fact that there may be a situation when pilferage and the stealing of electricity may be absolutely apparent calling for immediate disconnection of the supply when there will be no scope of giving prior notice. In the case of Hanuman Steel Rolling Mill (supra) also it has been held that prior notice must be given unless on a special occasion it is not possible without elaborating such a situation. Pilferage by hooking or by using some apparatus for abstracting electricity dishonestly are some of such incidents which may not really be called for further investigation or enquiry and, therefore, giving prior notice, but calling for immediate disconnection of electricity. But such situation may not arise in case of each and every incidents of pilferage, for example in cases of tampering of the meter, breaking of the seal or changing the same etc. where the CESC really forms a prima Facie opinion that by such tampering or breaking of the seal attempt has been made to abstract electricity dishonestly in such a manner that such consumption is not recorded in the meter. In such case, in view of the aforesaid judgment in the case of Hanuman Steel Rolling Mill, disconnection cannot be made without giving notice.

19. In fact, it appears to this court that the CESC is conscious of the fact that because of the aforesaid judgment they cannot disconnect the supply of electricity without prior notice on such ground of pilferage by tampering of meter or breaking of the seals. It appears in the notice which has been served subsequent to disconnection, after indicating the particulars of tampering of seals, meters etc. it has been alleged no prior notice has been served as in such event evidence of tampering might have been removed or altered.

20. Such plea of the respondents are wholly untenable in view of the fact when it is alleged that the seal on the meter body is found spurious or replaced or broken, the evidence in respect thereof cannot be removed by a consumer if a prior notice is given for the simple reason that if after there notice, the consumer on his own places a new seal it will be immediately detected that the same is not the original seal, but a spurious one. That apart if such evidence can be removed by the consumer the same can also be done by the consumer after disconnection and subsequent notice and in such event the allegation of CESC of tampering will merely be allegation and would not be proved before any forum. If the CESC is really serious about such allegation of pilferage, which is not only a punishable offence under the Indian Electricity Act, but being theft also under Indian Penal Code should remove such tampered seal etc. and or yet it seized by the police after lodging of F.I.R or keep it in their safe custody for such seizures or production before the Electrical Inspector.

21. There is also substance in the contention of the writ petitioners that in view of the provisions contained in section 20 of the Indian Electricity Act, the respondents cannot enter into the premises of the consumer even for inspecting the meter or electric supply lines and other apparatus etc. without informing the occupier of its intention.

22. Section 20 of the said Act provides that a licensee may at any reasonable time and on informing the occupier of the intention enter into any premises to which energy is or has been supplied by him or any premises on land under over, along, across in or upon which the electric supply line or other works have been lawfully placed by him, inter alia, for the purpose of inspecting, testing, repairing or altering the electric supply lines, meters, fitting works and apparatus for the supply of energy belonging to the licensee or ascertaining the amount of energy supplied or the electrical quantity contained in the supply or removing, where a supply of energy is no longer required or where the licensee is authorised to take away and cut off such line, any electric supply lines, meters, fittings works or apparatus belonging to the licensee.

23. The whole purpose of the aforesaid provisions for entering into any premises for the aforesaid purposes after informing the occupier of the intention appears to be that the licensee must not tres-pass into the premises of the consumer.

24. From the scheme of the said section it appears that entering into any premises after so informing the occupier of the intention is mandatory. It is because of the aforesaid reason Sub-section 2 of section 20 empowers the licensee or any persons authorised in that behalf to enter into the premises of the consumer for the aforesaid purposes after giving not less than 24 hours notice in writing in pursuance of a special order made on this behalf by a Magistrate First Class or in a Presidency town by a Presidency Magistrate. Sub-section 3 of section 20 empowers the licensee to cut off the supply of the consumer after the expiry of 24 hours notice in the event a consumer refuses to allow a licensee or is authorised person to enter into his premises or refuses to allow such licensee or is authorised agent to perform any act entering into the premises or fails to give any facilities for such entry such purposes.

25. Because of the aforesaid provisions of the Act before entering into the premises of the consumer, the authorised officer of the CESC must inform the occupier of the premises of their intention.

26. It is, however, to be noted that the legislature in its wisdom has not provided that before such entering, a written notice has to be given nor any time for giving such information has been fixed; but it is merely provided that before entering the occupier must be informed about the intention and, therefore, it will be open to the authorised officer of the CESC to enter into the premises by informing any person whosoever might be in occupation at that time who may or may not be the owner.

27. But since in the instant case the respondents have not used any affidavits and the matters are being disposed on questions of law and on the basis of records. I am not inclined to go into the question as to whether in the instant case the respondents have entered into the premises without informing the occupier as to their aforesaid intention within the meaning of section 20 of the said Act.

28. It, however, appears from the records produced by the CESC themselves that in the instant case there was no witness to the aforesaid enquiry when such tampering of the seals have been detected. Since the allegation of the CESC on the basis of such enquiry based on the report of the inspector of such inspection is really a prima facie finding as to the alleged pilferage by the consumer and the veracity of the same is always challenged and relying on the same the electric supply of the consumer is disconnected, in fitness of things such inspection by the CESC for the purpose of finding out whether there has been any pilferage should be made in presence of a witness where signature should be obtained on the report, who should be a person other than the member of the inspecting team. Either any of the occupiers of the premises during such inspection or any other independent person may be such a witness. But the best possible course of action would be to hold such inspection in presence of the police as in any event in case of detection of pilferage the police has to be informed.

29. In this connection I am constrained to record certain facts, which has become necessary in view of the submission of the Ld. Counsel appearing on behalf of the CESC that in the matter of passing orders for restoration of supply in case of disconnection on the ground of pilferage the Court should take a practical view of the matter as large scale of pilferage of electricity has been creating havoc in the distribution of electric supply. Just as there is allegation by the CESC of large scale pilferage by a section of the consumers, almost in every case wherein a consumer approaches the Court after disconnection of electric supply on the ground of pilferage without notice, it is being alleged that the disconnection is being made without any justification in whatsoever and although, in fact, there is no pilferage for covering a consumer to pay more, as the CESC is aware in such a situation when the consumer will approach the court almost always the court will direct reconnection on payment of certain percentage of the amount claimed by the CESC towards unmetered consumption for, such pilferage and thereby the CESC earns revenue. It has been often commented that the same is a new modus operandi of the CESC for earning revenue indirectly.

30. While such allegation against the CESC appears to this Court to be too far fetched certain conduct of the CESC may give rise to such apprehension.

31. As pointed out hereinbefore the inspecting team of the CESC very often prepare the inspection report of pilferage of electricity by tampering of the meter or seal in absence of any witness, the CESC also never really make any serious to prosecute the concerned offender under Indian Electricity Act and Indian Penal Code.

32. Although pilferage of electricity really amounts to theft and is a criminal offence both under section 39 of Indian Electricity Act and section 439 of the Indian Penal Code, this court notes with great concern the appalling apathy of the CESC Authorities in taking proper steps for conviction of such offenders. A series of instances have come to the notice of this Court where even the First Information Report as to the commission of such offence is not properly lodged before the local police station giving all necessary particulars as to the commission of the offence and such so-called First Information Report very often is more often information to the police about the disconnection of the electricity without giving particulars, however, of pilferage or theft of electricity which has occurred. Up-till-now despite query from the Court no instance has been brought to the notice of this court where such criminal cases have been seriously pursued by the CESC for conviction of the offender or where even chargesheet has been framed against an offender after due investigation by the police.

33. Such deficiency have been sought to be explained by Mr. Deb appearing for the CESC Ltd. that the inspectors who after such inspection and disconnection go to the police station for lodging the First Information Report are lay man and, therefore, are not aware how such information is to be lodged and after loading of such information to the police by the CESC it is the duty of the police authorities to take appropriate action against the offender.

34. Such submission on the part of the CESC, in my view, betrays their total lack of interest in ensuring that such offenders are also convicted by criminal court. When CESC appears to be of the view that pilferage of electricity has become rampant and the same is causing havoc to distribution of electric supply to the honest consumers it would have been normal for the CESC to take all appropriate steps for conviction of such offenders. If the police fails after complaint of such pilferage, even to investigate in the matter properly and submit even a chargesheet if the CESC has any seriousness about prosecuting and convicting such wrong doers it could have easily filed a complaint before a Ld. Magistrate having appropriate jurisdiction against such offenders or at least could have applied under section 156(3) of the Code, of Criminal Procedure for direction upon the police for investigating into the matter. But if the police fails to perform its duty the CESC certainly should take all steps for its prosecution and conviction of the offender by filing a complaint before the appropriate Court instead of remaining happy only by disconnecting electric supply of such offenders and thereafter raising a claim towards alleged unmetered consumption.

35. This now brings us to the question as to the claim of the CESC authorities towards unmetered consumption. In each of the cases it appears apart from the claim made by the CESC for charges towards alleged unmetered consumption, claim for additional security as also reconnection charges has been made for the purpose of reconnection.

36. The question whether the CESC can unilaterally determine the amount as charges towards alleged unmetered consumption in case of such pilferage also appears to this Court to be no more res intertgra.

37. In the case of State of West Bengal v. Rupa Ice Factory reported in 1997 (2) CHN page 254 a Division Bench of this Hon'ble Court has already held that in absence of any rules and regulations or conditions of supply or agreement between the parties authorising the licensee to determine the amount payable on account of pilferage, the matter should be decided by electrical inspector. It was held by the Division Bench referring to Clause VI(III) of the schedule to the Indian Electricity Act, 1910, which provides, inter alia, reference of any difference and dispute to the electrical inspector as to the improper use of energy, that such expression would mean use of energy in an un-authorised manner and, therefore, consumption of electricity by direct tapping or pilferage would come within the meaning of such expression.

38. It is true that the dispute in the aforesaid case which was considered by the appeal court was not between the CESC and a consumer, but between the State Electricity Board and its consumer. But at the relevant point of time when the appeal court was considering the case admittedly no regulation was framed by the West Bengal State Electricity Board empowering it to determine any amount towards unmetered consumption in the case of pilferage of electricity and after noting the fact that there was no rules and regulations or conditions of supply or agreement between the parties authorising the board to determine the amount payable on account of theft the appeal court held the same had to be referred under the provisions of Clause VI(III) of the Schedule of the Indian Electricity Act, 1910 to the electrical inspector. Since the disputes in the instant case is between the CESC and its consumers the aforesaid regulation and Clause VI thereof is very much applicable in the instant case. The aforesaid decision of the appeal court in the said case of State of West Bengal v. Rupa Ice Factory is very applicable in the instant case.

39. There is no provisions of the Indian Electricity Act, 1910, which authorises the licensee in the instant case the CESC to determine any such amount towards unmetered consumption. As held by the Supreme Court in the case of M.P Electricity Board v. Harsh Wood Products (supra), that section 24 of the Indian Electricity Act does not apply to demand on detection of pilferage. No provisions of the Schedule to the said Act nor any condition of supply nor any agreement of the parties also empowers the CESC to determine such amount and since pilferage of electricity by tampering of the meter or breaking of the seal or replacing the original seal with a spurious seal or otherwise certainly amounts to improper use of energy within the meaning of Clause VI(III) of the Schedule of the Indian Electricity Act, 1910, the dispute between the parties as to allegation of such pilferage and claim towards unmetered consumption certainly can be referred to the electrical inspector for determination of such dispute after hearing both the parties.

40. It may be noted in this connection that another Division Bench of this Hon'ble Court in the case of West Bengal State Electricity Board v. Ganges Manufacturing Co. Ltd. being FMAT No. 2199 of 1993 (unreported) held that in the even of any dispute as to any claim raised by the licensee on the ground of consumption of energy on the ground of unmetered consumption in the case of pilferage or theft, there should be proper enquiry in respect thereof by the electrical inspector.

41. It may be noted in this connection the trial court in the said case of Ganges Manufacturing Co. Ltd. v. West Bengal State Electricity Board, reported in 1993 (2) CLJ page 210, held that in absence of any provisions of the Act or agreement empowering the board, to raise bills towards unmetered consumption because of tampering of the meter, the only course left open the board to realise such amount is by establishing the claim by filing a suit. The Division Bench was, however, of the view that disputes relating to the same is to be determined by the electrical inspector.

42. Same is the view of the Ld. Single Judge in the aforesaid case of Hanumah Steel Rolling Mill (supra).

43. Mr. Deb, the Ld. Counsel appearing for the CESC Ltd., however, has submitted that in view of the recent decision of the Supreme Court in the case of Hyderabad Vanashpati Ltd. v. Andhra Pradesh State Electricity Board reported in AIR 1998 SC page 1715, the aforesaid decision of the Division Bench is no longer a good law as it has been held by the Supreme Court in the said decision that the electrical inspector has no jurisdiction to decide a dispute as to the alleged tampering and pilferage and the expression “improper use of energy” in Clause VI(III) of the Schedule of the Indian Electricity Act, 1910, will not include the case of theft or pilferage. Mr. Deb has specifically drawn the attention of the court to paragraph 35 of the said Judgment.

44. After carefully considering the aforesaid decision of the Supreme Court, I am of the view that the aforesaid decision of the Supreme Court is not an authority for the proposition that in case of dispute relating to pilferage and amount of alleged unmetered consumption under Indian Electricity Act, 1910, the electrical inspector has no jurisdiction to decide the same and, therefore, it cannot be referred to the electrical inspector for adjudication of such disputes, even though no provision of the said, rules, regulations, conditions of supply or agreement empowers the licensee to claim such amount. It appears to this court that the aforesaid decision of the Supreme Court will not be applicable in the instant case as the aforesaid question was never an issue before the Supreme Court.

45. Admittedly in the said case, the Andhra Pradesh State Electricity Board under the provisions of Electricity (Supply) Act, 1948, to be precise under section 49 of Electric Supply Act of 1948 framed terms and conditions of supply of electricity, which was held to be statutory by the Supreme Court. Clause 39 of the said terms and conditions lays down elaborate procedure empowering the board to make provisional assessment of the amount towards unmetered consumption in case of pilferage and thereafter to make a final assessment after hearing the consumer. Such Clause 39 was challenged, inter alia, on the ground that the same is ultra vires sections 24, 26(6) and Clause 6(3) of the Schedule of the Indian Electricity Act, 1910, and also section 44 of the Electricity (Supply) Act, 1948 is wholly arbitrary and violative of Article 49 of the Constitution.

46. It was held by the Supreme Court considering all aspects of the matter that it was within the power of the board to frame such conditions and regulations under section 49 of the Act and the same does not contravene the provision of sections 21 and 26 of the Indian Electricity Act, 1910, nor it is violative of Article 49 of the Electricity Supply. Such conditions of supply were held to be statutory. The Supreme Court also rejected the contentions of the appellants that the aforesaid conditions of supply are contrary to the provisions of the Indian Electricity Act specially sections 21(4) and 26(6)(b) of the Act.

47. Relying upon the earlier decision of the Supreme Court in the case of M.P State Electricity Board v. Smt. Basantibai, reported in AIR 1988 SC page 71 it was held that a dispute regarding commission of fraud, tampering of the meter and breaking the body seal is one out side the ambit of sections 21 and 26 of the Indian Electricity Act and an electrical inspector has no jurisdiction to decide such cases of fraud. It was held the provisions of sections 21 and 26 of the Indian Electricity Act provided for different situations.

48. In paragraph 35 of the judgment it was held by Their Lordship that Clause VI(III) of the Schedule of the Indian Electricity Act is not applicable unless the distribution of supply mains have been laid down under the provisions of Clause IV or Clause V and the supply of energy through the mains or any of them has commenced and the provisions of section 26 of the Electricity (Supply) Act, 1948 exclude the applicability of Clause VII of the Schedule to the Board. Their Lordship further held because of the same Clause VI of the Schedule of the Indian Electricity Act cannot by itself apply and that is why the second proviso to section 26 of the Electricity (Supply) Act, 1948 clarifies the position that provisions of Clause VI of the Indian Electricity Act shall apply to the board in respect of that area only, where distribution mains have laid down by the board and the supply of energy through any of them has commenced.

49. It is true as pointed out by Mr. Deb that in the self same paragraph after holding the aforesaid provisions of Clause VI of the Schedule will not apply, it was observed by Their Lordship “even assuming that Clause applies, it will not alter the situation. The difference or disputes referred to in Sub-Clause 3 of Clause VI will not cover fraudulant and mal-practice or pilferage. A perusal of the said Sub-Clause makes it evident that the matter shall be referred to an electrical inspector only in cases of defects mentioned therein and not otherwise.” Mr. Deb, relying on the aforesaid observation of the Supreme Court in the said case has submitted that such observation of their Lordship is a clear pronouncement of law which is binding on all.

50. The Supreme Court itself, however, has decided time and again when the Supreme Court judgment will be a binding precedent. Time and again it has been held by the Supreme Court that a decision is an authority only for such proposition which is actually decided in the said case and not what logically flows from the same. It has also been held that a judgment of the Supreme Court has to be understood in the context of the said case and finding of the Supreme Court takes its colour in the context of the said decision and the observations made in the judgment of the Supreme Court on a question which was not issue before the Supreme Court, would not be a binding precedent.

51. In this connection the decision of the Supreme Court in the case of Krishna Kumar v. Union of India reported in 1990 (4) SCC 207 may be referred to where the Supreme Court has explained the meaning and implication of the doctrine of precedence, laying down the principles therein when a court will be bound by previous decision. In this connection the relevant observation of the Supreme Court in the said case is worth quoting:—

“The doctrine of precedent, that is being bound by a previous decision, is limited to the decision itself and as to what is necessarily involved in it. It does not mean that this Court is bound by the various reasons given in support of it, especially when they contain “propositions wider than the case itself required”. This was what Lord Selborne said in Calendonian Railway Co. v. Walker's Trustees and Lord Halsbury in Quinn v. Leathem, Sir Frederick Pollock has also said: “Judicial authority belongs not to the exact words used in this or that judgment, nor even to all the reasons given, but only to the principles accepted and applied as necessary grounds of the decision.”

“In other words, the enunciation of the reason or principle upon which a question before a Court has been decided is alone binding as a precedent. The ratio decidendi is the underlying principle, namely, the general reasons or the general grounds upon which the decision is based on the test or abstract from the specific peculiarities of the particular case which gives rise to the decision. The ratio decidendi has to be ascertained by an analysis of the facts of the case and the process of reasoning involving the major premise consisting of a preexisting rule of law, either statutory or judge-made, and a minor premise consisting of the material facts of the case under immediate consideration. If it is not clear, it is not the duty of the Court to spell it out with difficulty in order to be bound by it. In the words of Halsbury (4th Edn., Vol. 26, para 573)”.

“The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi, as ascertained on a consideration of the judgment in relation to the subject matter of the decision, which alone has the force of law and which when it is clear it is not part of a tribunal's duty to spell out with difficulty a ratio decidendi in order to bound by it, and it is always dangerous to take one or two observations out of a long judgment and treat them as if they gave the ratio decidendi of the case. If more reasons than one are given by a tribunal for its judgment, all are taken as forming the ratio decidendi.”

52. “It has also been held by the Supreme Court in the case of Commissioner Of Income Tax v. Sun Engineering Works (P) Ltd. reported in AIR 1993 SC page 43 following an earlier constitutional bench of the Supreme Court in the case of Madhav Rao v. Union of India reported in AIR 1971 SC page 530 its order takes its colour on the question involved in the case and the context it was rendered.”

53. That part as held by the Supreme Court in the case of General Manager v. Pawan Kumar reported in AIR 1976 SC page 1766 (paragraph 7) that one additional or different facts may make a world of difference between conclusion in two cases even when the same principles are applicable in each case to similar facts.

54. The marked difference of facts in the present case from the aforesaid Supreme Court Cases of Hyderabad Banashpati Ltd. v. Andhra Pradesh State Electricity Board (supra) as pointed out hereinbefore, in fact does make a world of difference.

55. In the instant case as pointed out hereinbefore the issue before the Supreme Court was whether Andhra Pradesh State Electricity Board has the power to assess amount of such unmetered consumption and the regulation and condition of supply made in respect thereof are contrary to the provisions of the Electricity (Supply) Act, 1948 and Indian Electricity Act. What will be the scope of Clause VI of the Schedule under the Indian Electricity Act, 1910 was never an issue before the Supreme Court. The Supreme Court had no occassion in the said case to consider when admittedly no provisions in the Indian Electricity Act, 1910 nor any Schedule thereto nor any rules nor any conditions of supply nor any contract between the parties empower the licensee under the said Act to assess or determine any amount towards consumption of alleged unmetered consumption of energy, disputes raised against such determination towards unmetered consumption by the licensee can be decided by the electrical inspector under the provisions of the aforesaid Clause VI(III) of the Schedule to the Indian Electricity Act, 1910. Interpretation of the aforesaid Clause VI Schedule if any made by the Supreme Court was vis-a-vis Section 26 of the Indian Electricity Act.

56. The Supreme Court, therefore, really had no occasion in the said case to consider whether the electrical inspector would have jurisdiction to decide a dispute of the aforesaid nature with which we are faced in the instant case, whether under Clause VI(III) of the Schedule when the expression ‘improper use’ in the said Schedule may include case of fraud or tampering, pilferage or theft giving a wider interpretation of the aforesaid expression when no provisions of the said Rules, conditions of supply or agreement empowers the CESC to claim such amount on the ground of pilferage.

57. That apart, I am of the view, in case of such pilferage and theft when the parties are governed by the provisions of Indian Electricity Act, 1910 and the Schedule thereto and the rules made thereunder, in absence of any provisions empowering the licensee, in the instant case CESC to determine such amount towards unmetered consumption, such liberal and wider interpretation of Clause VKIII) of the Schedule to the said Act is called, but for which it may lead to a situation which may really help a consumer even if he really pilfers or steal electricity. In absence of any provisions under said Act or any agreement, in such a situation the licensee will not be entitled to realise any amount towards such unmetered consumption except by way of suit, where delay is proverbial and will enure to the benefit of wrong doer. But the electrical inspector under the said Act being a statutory independent authority and also being an expert in the line, in fitness of things, such disputes should be decided with utmost expedition after hearing both the parties by such an expert.

58. For the reasons stated above, I am of the view that such determination should be made by such expert like electrical inspector and more for reasons that assessment towards unmetered consumption is made by such CESC on the basis of such technicalities like load factor, maximum demand, also on the basis of a total amount of electricity supplied and guess work as to the period from when the meter did not record the actual consumption because of such tampering; sometimes such period being determined as 290 days sometimes even for a longer period despite the fact during the regular reading of meter on every month such pilferage or tampering of the meter or breaking of seal was not detected.

59. For the reasons stated above, I am of the view that in fitness of things in the instant cases also the dispute as to the pilferage of electricity and the amount determined by the CESC towards alleged unmetered consumption on the ground of alleged pilferage should be decided by the electrical inspector.

60. Lastly it has been contended on behalf of the CESC relying on the decision of the Supreme Court in the case of West Bengal State Electricity Board v. Fakir Chand Rice Mill reported in 1996 (8) SCC page 647 that in case of direction for restoration at least 50% of the assessed amount should be directed to be deposited normally.

61. Such decision, however, is not an authority for the proposition that in all cases the court must direct payment of 50% of assessed amount while directing restoration of supply. On the contrary it appears Their Lordship accepted the contention of the consumer that the same is the discretion of the court although the same is to be exercised properly. The Supreme Court, however, did not even hold that the trial court wrongly exercised its discretion in directing payment of lesser amount. Considering the facts of the case, the Supreme Court itself directed deposit of further amount. The aforesaid decision, thus, was rendered under the facts and circumstances of the case.

62. I, therefore, dispose of each of the writ application, by directing that restoration of electricity shall be made by the CESC on payment of 50% of the amount claimed by them as charges towards unmetered consumption along with reconnection charges. But no payment need be made for such restoration for claim of additional security. Such restoration shall be made within 72 hours of such payment. The dispute in respect of alleged pilferage and demand towards such unmetered consumption on the ground of alleged pilferage of electricity shall be referred to the Electrical Inspector by the petitioners by making an application before the Electrical Inspector who within four months from such reference shall adjudicate the same after hearing the parties and come to a decision by passing a reasoned and speaking order. It is made clear that payment of such amount by the petitioner towards such unmetered consumption under the order of the court will be subject to the decision of the Electrical Inspector and will be subject to adjustment if any, by the CESC with future bills. It is further made clear that such restoration shall be made by the CESC by replacing such alleged tampered meter with a new meter in presence of the petitioner or his representative and the alleged tampered meter so removed shall be deposited with the Electrical Inspector for his examination and finding as to the pilferage of the electricity by tampering such meter and/or breaking of seals.

63. Since in the case of Ramlal Agarwalla v. CESC being W.P No. 14080(W)/98 it appears that the respondent CESC has already restored electric connection to the factory of the petitioner under the order of the Court, the petitioner shall now deposit 50% of the amount claimed by the respondents towards unmetered consumption along with reconnection charges within a fortnight from date subject to be decision of the electrical inspector. In default, the respondents will be at liberty to disconnect the electric connection of the petitioner.

64. All the four writ applications are thus disposed of.

65. There will be no order as to costs.

Learned Advocates for the parties are permitted to take down gist of this order for communication to the respondents who shall act on such communication.

Xerox certified copy/Certified copy, if applied for, shall be given positively before the Puja Vacation.

Writ applications disposed of.

S.P