ORDER
1. This Revisional Application under Article 227 of the Constitution of India is directed by the Petitioners-Defendants (hereinafter referred as Defendant) against the Judgment and Order dated 25th August, 1995 passed by the Additional District Judge First Court, Nadia, in C. R. No. 56 of 1995 before him, for the reasons stated and on the grounds made out therein. The Ld. Addl. District Judge by his aforesaid impugned Order had rejected the revisional application filed by the defendants before him against the Orders dated 23/6/95 passed by the Ld. Munsif at Nabadwip in Title Suit No. 77 of 1995 and had directed the defendants to restore electric connection in the suit premises immediately in terms thereof for the reasons recorded therein.
2. The Respondent/ Plaintiff (hereinafter referred to as Plaintiff) had filed the relevant Suit before the Ld. Munsif praying, inter-alia, for a decree for mandatory injunction directing the defendants to remove all obstruction in the enjoyment of electricity in the normal course by re-connecting the electric connection in respect of the relevant Meter on the pleas taken in the Plaint, contending, inter-alia that he (Plaintiff) runs a Restaurant named and stayled as 'Happy Relax' at the premises in Question and has consuming electricity from Meter No. 1486 under Consumer No. 201047 on payment of regular charges without any complaint from the defendants. On May 24, 1995 at about 5-30 p.m. the defendant No. 1, alongwith 3/4 Office Staff had come to read the Meter. But they having been requested to wait for some time due to rush of customers at that time had taken exception for waiting for 15 minutes and had thus disconnected electricity after reading the Meter. The electricity had not been restored despite requests. The Plaintiff had thus instituted the relevant Suit and had filed an application for temporary mandatory injunction therein in aid of the prayer for permanent mandatory in-junction prayed for in the Suit. The Plaintiff had also filed another application under Section 151 of theCode of Civil Procedure (hereinafter referred to as Code) praying or issue of interim injunction directing the defendants to restore electricity for the relevant Meter in terms thereof.
3. The Ld. Munisif passing two separate Orders on 23-6-1995 had dismissed the Plaintiffs first application for temporary mandatory injunction under Order 39, Rule 1 and 2, read with Section 151 of the Code but had allowed his second application under Section 151 of the Code for issue of interim mandatory injunction, as sought for. Aggrieved by the aforesaid two Orders passed by the Ld. Munsif the defendants had moved the Ld. District Judge in revision there against under Section 115A of the Code. The Ld. Additional District Judge by his impugned order dated 25th August, 1995 had rejected the revisional application filed by the Defendants and had directed them to restore electric connection in the disputed premises through the relevant Meter immediately in terms thereof for the reasons recorded therein.
4. Aggrieved by the aforesaid impugned Order passed by the Lt. Additional Judge concerned (thereinafter referred to as Judge), the defendants have moved this Court under Article 227 of the Constitution of India there against for the reasons stated and on the grounds made out therein.
5. Upon hearing the submissions of the Ld. Advocates for both side at length and perusal of the materials on record I find that the Courts below had allowed the Plaintiff's relevant application under Section 151 of the Code by directing the defendants to restore electric connection in the disputed premises through the relevant Meter immediately in terms of the relevant Orders passed by them holding them that a prior notice of disconnection was prerequisite for disconnection of electricity through the Plaintiffs relevant Meter relying upon the decision of the Supreme Court in Municipal Corporation of Delhi v. M/s. Ajanta Iron & Steel Co. (Pvt.) Ltd., : [1990]1SCR733 . The Ld. Additional Judge has obseped in his impugned Order that the aforesaid decision of the Supreme Court is very much applicable in the relevantCase and that the Ld. Munsif had not committed any material irregularity or jurisdictional error in granting temporary mandatory injunction in favour of the Plaintiff. But on my perusal of the aforesaid decision of the Supreme Court I find that the Courts below had clearly misread the said decision and had mis-applied the same in the instant case for the reasons I shall presently discuss. In the relevant Case in the aforesaid decision before the Supreme Court prior notice of disconnection was contemplated by agreement under condition No. 36 thereof even in case where there is allegation of theft of electricity. The Supreme Court had held, in the facts of that case that in view of the fact that prior notice before disconnection was contemplated by agreement between the parties, in the facts and circumstances therein, the appellant therein could not be allowed to go back upon its words and refused the consumer the benefit of notice, as contemplated by the agreement. The Supreme Court in the said decision had thus directed restoration of electric supply, disconnected without any prior notice, as the agreement between the parties contemplated service of notice before disconnection of supply of electricity. The facts in the relevant case before us appear to he entirely different. There is no denying that the defendants had made regulations governing the supply of electricity by the Board under Section 79(j) of the Electricity (Supply) Act, 1948 containing condition 20(b) of the General Conditions of supply framed by the Board, amongst other conditions, which reads as follows :
20 (b) 'The Board shall have the right to disconnect supply of electrical energy to a consumer forthwith without any notice if and when the Board is of the opinion that the Metering Installation including Meters, CTs, PTs and associated Circuit/or such of them is/are found to have been handled and/or tampered with wrongfully and in that event a First Information Report shall be filed with the Local Police Station not later than 24 hours from such disconnection.'
6. The aforesaid condition being, what it is, there could be no mistaking that the Boardhas the right to disconnect supply of electrical energy to a Consumer forthwith without any notice in the circumstances stated therein. (covering theft/pilferage of electricity). It appears from paragraph-12 of the revisional application that the defendants had filed an application before the Ld. Additional District Judge praying for an Order to accept and consider the relevant agreement between the parties dated 11-3-1976. The Xerox copy of the said agreement containing the signatures of the parties (including the Plaintiff) has been annexed by the petitioners herein their supplementary affidavit affirmed on 20-12-1996. Paragraph-18 of the said Agreement would at once make clear that the Plaintiff/Consumer had thereunder agreed to abide by the Board's general conditions of supply for the time being in force so far as the same are applicable, which shall be deemed to be a part of the agreement between them. The Plaintiff would, therefore, clearly be bound by the Board's general conditions of supply. And, in terms of condition 20(b) thereof, as reproduced above, the Board has undoubtedly the right to disconnect supply of electrical energy to a Consumer forthwith without any notice in the circumstances indicated therein, including theft/pilferage of electricity. It is the defendants' positive and consistent case all through-out that the defendant No. 1 at the time of his routine checking of electric service connection on 24th May, 1995 had found that the Plaintiff was getting electrical 'energy directly from his service connection No. 1486 bypassing and tampering the electrical energy Meter installed at the premises in question, constituting an offence of theft of electrical energy for which the service connection of the plaintiff had to be disconnected on that very day at about 5.30 p.m., and an F.I.R. had been lodged therefor at Nabadwip Police Station on the following day (on 25-5-1995) at 10-30 p.m., as required by the aforesaid condition 20(b), for which a Police Case, being No. 71/95 dated 25-5-1995, had been instituted by the Police against the Plaintiff. In the facts and circumstances herein, no prior notice had clearly been contemplated by agreement between the partices for disconnection of electricity, facts and circumstances.Per contra, the agreement between the parties had clearly contemplated that no prior notice of disconnection would be required in the circumstances indicated in the aforesaid conditions of Supply framed by the Board (covering theft/pilferage of electricity), contrary to the facts in the relevant case before the Supreme Court in the aforesaid decision. Both the Courts below had, therefore, clearly gone grievously wrong and miserably astray in holding that prior notice of disconnection was the preprequisite before disconnection in terms of the aforesaid decision of the Supreme Court. The Ld. Additional District Judge had amazingly gone further to record in his impugned Order that the aforesaid condition 20(b) of the General Conditions of supply framed by the Board 'appears to be ultra vires', clearly beyond his authority and jurisdiction to hold so. The Learned Advocate for the Plaintiff-Opposite party had waxed eloquent that a second revisional application by the defendants before the High Court in the garb of an application under Article 227 of the Constitution would not be maintainable. True it is, the Supreme Court had sounded a note of caution in Umaji Keshaw Meshram v. Radhika Bai, : [1986]1SCR731 in tune with similar warning in some earlier decisions, that the Power under Article 227 of the Constitution is intended to be used sparingly and only in proper cases, for the purpose of keeping the Subordinate Courts and Tribunals within the bounds of their authority and not for correcting mere errors. In view of the facts and circumstances herein, as indicated above, it seems to me to be an appropriate case for exercising the power under Article 227 of the Constitution. The said Power is all the more required to be exercised for keeping the lower Revisional Court within the bounds of its authority in view of the observation made by him in the impugned Judgment that condition 20(b) of the General Conditions of Supply framed by the Board is ultra vires, which was absolutely beyond its authority and jurisdiction to do so, as already indicated above. In view of the discussions above, I am clearly of the view that the Power under Article 227 of the Constitution is required to be exercised forinterfering with the impugned order passed by the Lower Revisional Court.
7. Let alone the aforesaid decision of the Supreme Court in Municipal Corporation of Delhi : [1990]1SCR733 (supra), the Supreme Court had also held in M.P. Electricity Boad, Jabalpur, v. Harshwood Products, : AIR1996SC2258 under almost similar facts and circumstances, that Section 24 of the Indian Electricity Act, 1910 does not apply to demand on detection of pilferage. It would apply to a case of regular supply. Prior notice would not be required in a case after detection of pilferage. In view of the aforesaid decision as well disconnection of electricity by the defendants herein without prior notice on the allegation of theft/pilferage of electricity could not clearly be deemed to be unjust and improper. That apart, by granting the interim mandatory injunction the Courts below appear to have virtually granted unconditionally the entire relief sought for by the Plaintiff in the relevant Suit which could neither be granted, in the peculiar facts and circumstances herein. The views taken by the Courts below could neither be held to be acceptable on any reckoning. The decision in M/s. Mackintosh Burn Ltd. v. M/s. Nu-built Construction Pvt. Ltd., (1992) (2) CLJ 57, referred to by the Ld. Advocate for the Plaintiff-Opposite Party would, therefore, be of little aid to him, in the facts and circumstances herein.
8. In the premises above, the instant Revisional application should clearly succeed, as it must and the impugned Order is required to be interfered with. The same be hereby set aside. But in order to do justice to both the parties I direct the Petitioners/Defendants, in the facts and circumstances herein to restore supply of electrical energy to the Plaintiff on his depositing the sum of Rs.25,000/- (Rupees Twenty five thousand only), out of the Energy Bill for unmetered consumption amounting to Rs. 44,971,56, as appearing from Annexure-'F' to the Revisional Application, with the Petitioner-Defendant No. 2 within three weeks from date. On the Plaintiffs depositing the aforesaid sum of Rs. 25,000/- only with the Petitioner/,defendant No. 2 within the aforesaid period in terms of this Order, the latter shall keep the same in Suspense A/c. to be adjusted or refunded, as case may be, on the result of the relevant Criminal Prosecution instituted against the Plaintiff for alleged theft of electrical energy, being Nabadwip P/s. Case No. 71/95 dated 25-5-1995.
The Revisional Application stands accordingly disposed of without any Order as to cost. Interim Order, if any, stands vacated.
9. Order accordingly.