ORDER
Shivashankar Bhat, J.
1. Writ Petition was heard for final disposal.
Petitioner is the proprietor of a Rice Mill having the benefit of electrical supply for running the mill. On 16.7.1993, the authorities of the Electricity Board inspected the premises of the Rice Mill and opined that the petitioner has been consuming electricity after tampering with the meter and thus, petitioner is guilty of theft of electricity. Thereafter petitioner was served with a Bill dated 23.7.1993 for Rs. 1,43,419/- being the alleged 'back billing charges'. This Bill was served on 24.7.1993. On 29th July, the present Writ Petition was filed challenging the said demand. Petitioner also seeks restoration of the electricity supply to his mill.
2. Petitioner contended that the impugned action of the respondents violated the principles of Natural Justice and that the demand under the impugned Bill was exhorbitant and arbitrary and that the petitioner has no other effective alternative remedy against the impugned action.
3. The learned Counsel for the petitioner relied on two Decisions of this Court in support of the Writ Petition, wherein it was held that principles of Natural Justice requires a prior hearing of the consumer and decision, before the supply of electricity is disconnected and any back billing is made.
4. I find the two Decisions were rendered under the old Regulations of the Electricity Board, which are now replaced by the present Regulations of the year 1988. Further, the first of the Decisions was not concluded in favour of the petitioner and the said Decision was reversed in Appeal. The second Decision, followed the earlier Decision prior to its reversal by the Appellate Bench.
5. Roman Sacks & Plastics Industries v. K.e.b. And anr., 1988(2) KLJ 538 is a Decision of a learned Judge of this Court. The meter was alleged to have been tampered with resulting in theft of energy in the said case; demand was made (as per Annexure-C in the said case) to pay on the basis of alleged theft under Regulation 41. The learned Judge relied on the Inspection Report preceding the issuance of bill which actually said that meter required replacement immediately. In the circumstances, the Court held at page 540 :
'This Court is only concerned with the civil consequence that would flow from non-observance of minimum requirements of principles of natural justice re: non-application of mind by the Board in its proper perspective inclusive of its failure to inform the petitioner the mode or method adopted to abstract power would amount to theft and resultant position of running of factory coming to stand-still. The demand made for payment of a sum of Rs. 2,38,907.25ps. without complying the principles of natural justice must be held to be illegal and void. As the impugned action, results in civil consequence, assuming for the sake of argument that there is an alternative remedy under Regulation 41 it is no bar for interference under Article 226 of the Constitution of India.'
The Court had no occasion to consider in the said case the validity of the disconnection of the electricity supply as an interim measure, on being prima facie satisfied of the theft; Court was considering the validity of the Bill issued without following the principles of Natural Justice.
6. Principles of Natural Justice are not governed by any straight jacket formula. It is now quite well known that application of the broad principles contained in the concept of Natural Justice depends on the statutory provisions, the need to take an immediate action on the part of the authority, nature of the power exercised by the authority, and the consequences of the exercise of the said power on the rights of the person affected thereby.
7. If 'prima facie' it is shown that there was a theft of electrical | energy, an immediate action is called for to safeguard the revenue of the Board; sufficient guidance is found in Regulation 44.07(a) as to how the amount due shall have to be computed. The formation of the opinion that prima facie there has been an offence falling within the said Regulation, committed by the consumer, involves a process of hearing the consumer; but that hearing is not to be through a detailed procedure; it is a summary process; consumer should be made known of the allegation against him with the basis for the suspicion against him and an opportunity to the consumer to express his comments or explanation thereto. At this stage an elaborate hearing is not envisaged. Nature of the charge and the material in support of the same, if. disclosed to the consumer, with an opportunity to dispel the prima facie material, will meet the situation. The charge under Section 39 of the Indian Electricity Act, 1910, pertain to the theft of energy. Section 44 pertains to interference with the meter and the improper use of energy; consumer should be made aware of the reason for the prima facie view that he has committed the offence referred in the Regulation covered by these provisions, so that the consumer may point out the fallacy in the inference drawn by the authority.
8. If there is a prima facie material leading to the inference that a consumer is guilty of the offence referred in the Regulation, an immediate action is called for, to prevent the recurrence of the offence. Electricity is a scarce commodity and is essential to the community in all respects. A person found to be prima facie guilty of an offence referred in Regulation 44 cannot be permitted to enjoy the benefit of having the supply of further energy until he is cleared of the charge. However, as an interim measure, he is permitted to have the electricity supplied to him, on payment of the value of the electricity estimated as per the Regulation 44.07(a) read with Regulation 44.07(c). The consumer has a right of appeal, as per Regulation 46, against an order made under Regulation 44.07; this is conditional on payment of the amounts referred in Regulation 46.01. The appellate authority is empowered to reduce the amount payable under Regulation 46.01, as per Regulation 46.02. The scope of the appeal is quite wide and it is obvious that the consumer may, lead further evidence or place fresh material before the appellate authority in support of his appeal.
9. As per Regulation 44, if it is prima facie established that an offence is committed, action could be taken. Term 'Prima facie' connotes 'on the first impression'; the first impression is to be the basis for the action unless it is disproved. A fact is said to be 'Prima facie established' if the surrounding circumstances indicate towards that direction. A 'Prima facie' view of things could always be displaced by proving other facts and circumstances which would erase the first impression.
10. While applying the doctrine of Natural Justice, Regulations 44 and 46 shall have to be read together. Regulation 44 alone cannot be and should not be read in isolation. If these two Regulations are read together, it is clear that, the consumer is given a wide and liberal opportunity to dispel the opinion found against him.
11. The initial action under Regulation 44.07(a) is comparable to the provisions enabling an employer to keep his employee under suspension pending enquiry, or a power to suspend a licence pending further investigation.
12. In this context the Decision of the Supreme Court in LIBERTY OIL MILLS AND ORS. v. UNION OF INDIA AND ORS., : [1984]3SCR676 is quite relevant. At page 1284, the Supreme Court observed:
'.....We do not think that it is permissible to interpret any statutory instrument so as to exclude natural justice, unless the language of the instrument leaves no option to the Court. Procedural fairness embodying natural justice is to be implied whenever action is taken affecting the rights of parties. It may be that the opportunity to be heard may not be pre-decisional where the danger to be averted or the act to be prevented is imminent or where the action to be taken can brook no delay. If an area is devastated by flood, one cannot wait to issue show cause notices for requisitioning vehicles to evacuate population. If there is an cut-break of an epidemic, we presume one does not have to issue show cause notices to requisition beds in hospitals, public or private. In such situations, it may be enough to issue post-decisional notices providing for an opportunity. It may not even be necessary in some situations to issue such notices, but it would be sufficient but obligatory to consider any representation that may be made by the aggrieved person and that would satisfy the requirements of procedural fairness and natural justice. There can be no tape-measure of the extent of natural justice. It may be indeed it must vary from statute to statute, situation to situation and case to case. Again, it is necessary to say that pre-decisional natural justice is not usually contemplated when the decisions taken are of ad interim nature pending investigation or enquiry. Ad interim orders may always be made expert and such orders may themselves provide for an opportunity to the aggrieved party to be heard at a later stage. Even if the interim orders do not make provision for such an opportunity, an aggrieved party has, nevertheless, always the right to make an .appropriate representation seeking a review of the order and asking the authority to rescind or modify the order. The principles of natural justice would be satisfied if the aggrieved party is given an opportunity at his request. There is no violation of a principle of natural justice if an ex parte ad interim order is made unless of course, the statute itself provides for a hearing before the Order is made as in Clause A. Natural Justice will be violated if the authority refuses to consider the request of the aggrieved party for an opportunity to make his representation against the ex parte ad interim orders.'
13. It was contended that the requirement of pre-deposit under Regulation 46.01 of a part of the demanded amount is an onerous condition, which practically frustrates the right of appeal.
14. This contention has no merit at all. Regulation 46.02 confers discretion on the appellate authority to reduce the amount to be deposited before filing the appeal. This discretion, certainly, is a Judicial discretion, to be exercised to advance Justice; amount to be deposited before filing the appeal, would thus vary depending upon the facts of each case; the maximum amount, however, is at the percentage stated in Regulation 46.01.
15. Condition of pre-deposit before availing the appellate forum has been upheld by the Supreme Court, while considering a similar provision in the Customs Act 1962, in VIJAY PRAKASH D.MEHTA AND JAWAHAR D. MEHTA v. COLLECTOR OF CUSTOMS (PREVENTIVE), BOMBAY, : [1989]175ITR540(SC) , the Supreme Court held:
'The aforesaid Section provides a conditional right of appeal in respect of an appeal against the duty demanded or penalty levied. Although the Section does not expressly provide for rejection of the appeal for non-deposit of duty or penalty, yet it makes it obligatory on the appellant to deposit the duty or penalty, pending the appeal, failing which the Appellate Tribunal is fully competent to reject the appeal. See, in this connection, the observations of this Court in respect of Section 129 prior to substitution of Chapter XV by the Finance Act, 1980 in Navil Chandra Chhotelal v. Central Board or Excise & Customs, : 1981(8)ELT679(SC) . The proviso, however, gives power to the Appellate Authority to dispense with such deposit unconditionally or subject to such conditions in cases of undue hardships. It is a matter of judicial discretion of the Appellate Authority.'
Again, at page 2013:
'....Here we are concerned with the right given under Section 129A of the Act as controlled by Section 129E of the Act, and that right is with a condition and thus a conditional right. The petitioner in this case has no absolute right of stay. He could obtain stay of realisation of tax levied or penalty imposed in an appeal subject to the limitations of Section 129E. The proviso gives a discretion to the authority to dispense with the obligation to deposit in case of 'undue hardships.' That discretion must be exercised on relevant materials, honestly, bona fide and objectively. Once that position is established it cannot be contended that there was any improper exercise of the jurisdiction by the Appellate Authority. In this case it is manifest that the order of the Tribunal was passed honestly, bona fide and having regard to the plea of 'undue hardship' as canvassed by the appellant, there was no error of jurisdiction or misdirection.'
Then, it was held:
'It is not the law that adjudication by itself following the rules of natural justice would be violative of any right Constitutional or Statutory without any right of appeal, as such. If the Statute gives a right to appeal upon certain conditions, it is upon fulfilment of these conditions that the right becomes vested and exercisable to the appellant. The proviso to Section 129 E of the Act gives a discretion to the Tribunal in cases of undue hardships to condone the obligation to deposit or to reduce. It is a discretion vested in an obligation to act judicially and properly.'
16. Therefore, the requirement of a pre-deposit while invoking the appellate jurisdiction by itself will not render the said jurisdiction otiose or as unattainable by the aggrieved person.
17. I have already referred to a Decision of the learned single Judge of this Court in M/s. Rohan Sacks & Plastics Industries' case, but the said Decision cannot be considered as a binding precedent, in view of the further appeals. The Karnataka Electricity Board filed W.A.1800 of 1988 against the said Decision by an order dated 31.1.1991 the Decision of the learned single Judge was practically set aside; the consumer was directed to approach the Appellate Authority by making certain deposit as a condition for the appeal. The consumer went up in appeal to Supreme Court by filing Special Leave to Appeal (Civil) No.4683 of 1991. Amount to be pre-deposited was reduced by agreement of the parties and the Special Leave Petition was accordingly disposed of.
18. Another learned Judge of this Court, held, in M/s. OSWAL PLASTICS v. KARNATAKA ELECTRICITY BOARD AND ANR., W.P.No. 4226 of 1990 DD 2-4-1990, that principles of Natural Justice is not attracted while disconnecting the electrical connection under the Regulation referred to above; Regulation 44.07(c) provides for disconnecting the supply 'forthwith and without notice.'
19. The requirement of pre-deposit, before filing the appeal was upheld by another Judge in SIDDAIAH AND ORS. v. THE ASST. EXECUTIVE ENGINEERS AND ANR., W.P. Nos. 33237 of 1982 DD 7-1-1985.
20. Therefore, I have no hesitation in holding that there is an effective alternative remedy available to a consumer against the demand made under Regulation 44; as also against the disconnection of the electrical supply and it is most appropriate for this Court to decline to extend its Writ jurisdiction against such demands or the disconnections, unless facts of a particular-case demands an interference by this Court, when there has been a gross miscarriage of Justice at the hands of the authorities which requires immediate rectification by this Court; those would be rare cases. It cannot be said that the supply of electricity is threatened to be disconnected or has already been disconnected or a huge amount is demanded under Regulation 44, by itself, is a case calling for immediate exercise of Writ jurisdiction by this Court.
21. SOUTHERN STEELMET AND ALLOYS LTD., BANGALORE v. KARNATAKA ELECTRICITY BOARD, BANGALORE AND ANR., : AIR1991Kant267 was relied upon by the petitioner. The learned Judge had followed the Decision of the learned single Judge in Rohan Sacks & Plastics Industries case. I have already held that the said Decision cannot operate as a binding precedent; for the same reason, the Decision in Southern Steelmet & Alloys Ltd. also cannot be considered as a binding precedent. This apart, I find a substantial difference between the language of Regulation 41(e)(1) relied in the said Decision, and Regulation 44.07(a) relied upon in the instant case. The word 'prima facie' was absent governing the word 'established' in the Regulation 41 (e)(1), unlike the present Regulation 44.07(a). The Decision in M/s. Southern Steelmet & Alloys Ltd. is based on the language of the relevant Regulation of the year 1983; the present case before me is under the Regulations framed in the year 1988.
22. A Division Bench of Allahabad High Court had an occasion to consider a similar situation in ADITYA ROTOR SPIN (P) LTD., KANPUR AND ANR. v. U.P. STATE ELECTRICITY BOARD, LUCKNOW AND ANR., : AIR1991All196 . After referring to the relevant provisions, the Bench, observed at page 203:
'.....Thus the regulations provide that on the detection of theft of energy the electric supply shall be disconnected by an officer not below the rank of an Asst. Engineer. The Electricity Board will thereafter submit an assessment bill prepared as per the guidelines laid down in Annexure-l to the consumer. It is only after the consumer has deposited the bill and the malpractice or pilferage is given up that the electric supply shall be restored. The assessment bill given to the consumer under Clause (D) of Regulation 22 is provisional in nature. The assessment bill will be finalised by the Executive Engineer after giving an opportunity of hearing to the consumer in accordance with Regulation 23(i). The consumer has also been given a right of appeal. It is true that at the stage of preparation of assessment bill under Clause (D) of Regulation 22 the consumer is not given an opportunity of hearing but the bill shall be finalised only after giving him full opportunity.
The question to be considered is as to whether Regulation 22 which gives power to the Electricity Board, in certain circumstances, to disconnect the supply without notice is ultra vires as it violates the principles of natural justice.
After a few observations, the Court proceeded to say:
'....Almost all the industrial undertakings in the State have to observe compulsory cuts for a fixed period. This results in loss of industrial production yet the Board has to impose such compulsory cuts as it is unable to meet the demand of energy. In such a situation, where the generation of electrical energy is less and demand is more it appears highly incongruous that a dishonest consumer should be allowed to continue his illegal act of commission of theft in order to afford him an opportunity of hearing. Similarly in the case of malpractice as covered by Sub-clause (iii) of Clause (A) the Board cannot allow unscrupulous consumer to consume electricity, exceeding the contracted load, which unduly interferes with the efficient supply of energy to others. In every town the Board has installed sub-stations which have a fixed capacity. If a consumer exceeds the contracted load it is bound to affect other vital services like water works, hospitals, railways, etc. If before preventing the malpractice and disconnecting the electric supply, opportunity is given to such a consumer, it would mean that all other essential services should come to a grinding halt for several days. In such a situation the Board is fully entitled to act with promptitude and take immediate effective measures to ensure prevention of theft of malpractice.
It is well settled that in cases of extreme urgency where public interest would be jeopardised by the delay involved in a hearing, a hearing before condemnation would not be required by the principles of natural justice. In such situations a post decisional hearing, wherever possible, would satisfy the requirements of principles of natural justice.'
23. In PATEL PARSHOTTAMDAS VANMALIDAS v. GUJARAT ELECTRICITY BOARD AND ANR., AIR 1987 Gujarat 188a Bench of Gujarat High Court held that the condition of pre-deposit before filing the appeal would not make the appeal illusory. It was contended that before assessing the amount payable on finding that there was a theft of energy, consumer was not given an opportunity of being heard; it was held that, such a condition was part of the agreement entered into by the consumer with the Electricity Board and therefore the consumer was bound by the same. At page 190, the Bench held:
'That, 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 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.'
24. The petitioner has an ample remedy of appeal under Regulation 46. The mahazar discloses the reason for the action and the petitioner was made aware of the grounds for the action taken under Regulation 44, by virtue of this mahazar. According to the petitioner he was not present when mahazar was prepared. It was prepared in his premises at the time of checking the meter. Petitioner's representative must have been present, because it is not the case of the petitioner, that the authorities made any forcible entry. In view of the alleged theft and the tampering with the meter, supply of electricity was disconnected forthwith. The manner in which meter was interfered with, has been stated in the mahazar. The mahazar is dated 16.7.1993. The impugned demand of Rs. 1,43,419/- was issued as per the Bill dated 25.7.1993 and therefore, petitioner had ample time to put forth his case before the respondents; even otherwise, petitioner can challenge the basis of the demand by filing an appeal and in the appeal he may also challenge the basis for the inference of theft. It was then contended that having regard to the manufacturing capacity of the petitioner, the impugned demand was exhorbitant.
25. This is a matter for appellate authority to consider and this Court cannot examine the same at this stage.
26. In view of the interim order of this Court one more observation is necessary. By an Interim Order dated 26.8.1993, reconnection was ordered in case petitioner deposits a sum of Rs. 20,000/-; if connection has been restored, same shall not be disconnected again only on the ground of dismissal of this Writ Petition. However, it is open to the respondents to disconnect the supply in case petitioner fails to discharge all his obligations or incurs any other liability under the relevant provisions of the Act or the Regulations, or who fails to deposit any further amount while filing the appeal under Regulation 46. Petitioner may approach the appellate authority under Regulation 46 by filing an appeal, after making the required deposit as per the said Regulation (subject to any reduction as may be ordered by the appellate authority), within thirty days from today. Subject to this, the Writ Petition is dismissed. Rule discharged.