R.R. Sood vs Delhi Electricity Supply ...
1991 Latest Caselaw 781 Del

JUDGMENT

Mahinder Narain, J.

(1) By this application, C.M. 3797 of 1991, the applicant makes a grievance of supply of electricity to him at rates which are much higher than the rates at which the electricity is being supplied to other persons In the area in which the premises occupied by the applicant are located.

(2) The facts which give rise to this application are that a building was constructed at A-13, Green Park Extension, New Delhi, and flat No. S-1 is stated to have been acquired by the petitioner. This building was built according to the sanctioned building plan.

(3) The sanctioned building plan of this building was revoked by an order of the Municipal Corporation. Aggrieved by that order, SB. Kishore, the builder-owner of the building built on A-13 Green Park Extension, filed a civil writ petition, being Civil Writ No. 1299 of 1988. As recorded in the order dated 26.10.1988, in that writ petition, this Court stayed the "operation of the order revoking the sanction to the plan, and further directed that no action should be taken on the basis of the revocation of the sanction plan till further orders."

(4) Parties do not dispute that the said writ petition is still pending in this Court, and the order dated 26.10.1988 was still operative.

(5) The result of that order is that the building built on A-13, Green Park Extension, cannot during the pendency of the writ be treated as a building without sanctioned building plans.

(6) For the purpose of determination of the question of the rates at which electricity supplied can be charged by the respondent, one has to see the provisions of the Indian Electricity Act, 1910, Section 22 whereof reads as under :- 22.Obligation on lincense to supply energy -Where energy is supplied by a license, every person within the area of supply shall, except insofar as is otherwise provided by the terms and conditions of the license, be entitled, on application, to supply on the same terms as those on which any other person in the same area is entitled in similar circumstances to a corresponding supply. Provided that no person shall be entitled to demand, or to continue to receive, from a license a supply of energy for any premises having a separate supply unless he has agreed with the license to pay to him such minimum annual sum as will give him a reasonable return on the capital expenditure, and will cover other standing charges incurred by him in order to meet the possible maximum demand for those premises, the sum payable to be determined in case of difference or dispute by arbitration.

(7) The proviso is not relevant for the purposes of consideration of this application. What is relevant is that a license in this case admittedly the license is the Delhi Electric Supply Undertaking, has to supply electricity to a person on application. It is note worthy that there are no limitations, no conditions of any kind in Section 22 in relation to supply or non-supply of electricity. The obligation under Section 2 ' of the Indian Electricity Act appears to be to supply electricity upon application, that too on same terms, as others in the area of supply are receiving the electricity from the license.

(8) Counsel for the D.E S.U. has not been able to point out any other provision in the Indian Electricity Act on the basis of which it is open to a licensee to impose conditions regarding the supply of electricity.

(9) Counsel for the D.E.S.U., however, says that limitations on the supply of electricity are provided by the Delhi Eleectricity Control Order, which according to the Counsel, have been made in exercise of powers conferred by Section 22-B of the Indian Electricity Act. Provision of Sections 22-A and 22-B were inserted in the Indian Electricity Act by Section 130 of Amending Act 32 of 1959. The said amendments were made with the following objects and reasons stated in the Gazette of India, Extra-ordinary, Part-11 Section 2 No. 45 dated 27th September, 1959. "The bill is..................Central Government" 7 Powers to regulate were to be used only in certain circumstances. Section 22-B reads as under :- 22-B Power to control the distribution and consumption of energy. (1)If the State Government is of opinion that it is necessary of expedient so to do, for maintaining the supply and securing the equitable distribution of energy it may by order provided for regulating the supply, distribution, consumption or use thereof.

(10) The circumstances which needed to pre-exist regulations were two; one for maintaining supply, and second to secure equitable distribution of electricity energy. The State Government order should; (i) regulate the supply; (ii) regulate the distribution; (iii) regulate the consumption; (iv) regulate the use of electrical energy. If either of these circumstances did not exist "regulations" could not be acted upon.

(11) Maintenance of supply relates to generation of electricity which obviously will have no connection with equitable distribution of the energy generated, except insofar as electricity must be generated before it can be distributed. If there is no electricity generated, question of its distribution would not arise.

(12) Assuming, therefore, that electricity is being generated, it will need to be equitably distributed, and in that connection its supply may be regulated, its distribution may be regulated, and its consumption may be regulated, and its use may be regulated.

(13) It is well settled that regulation may involve restrictions, but do not include prohibition. In Ward v. Folkstone Water Works Co. 24 Q B.D. (334), it was held that, "to regulate a supply of water does not mean to shut it off altogether. Therefore, where an Act required the consumers of water to provide, proper ball or stop cocks, or other necessary apparatus, for regulating, the supply, that did not include an out of door screw down valve, whereby the water could be shut off from coming into a consumer's house". In toronto v. Virgo, (1896) A.C. 88, it was held, "A power to make a bye-law to regulate and govern a trade does not authorise the prohibition of such trade; there is a marked distinction between the prohibition or prevention of a trade and the regulation or governance of it; and, indeed, a power to regulate and govern seems to imply the continued existence of that which is to be regulated or governed." In Saghir Ahmad v. State of U .P. . The Supreme Court cited the observations of Lord Davey in Municipal Corporation of the City of toronto v. Virgo,1896AC88, wherein it was observed that "......... Their Lordships think that there is a marked distinction to be drawn between the prohibition or prevention of a trade and the regulation or governance of it, and indeed a power to regulate and govern seems to imply the continued existence of that which is to be regulated or governed.

(14) In view of the facts and circumstances of the case, I do not need to pronounce whether the provisions of the Delhi Electricity Control Order are intra vires or not. This may be left to apother case as in any case, in the instant case before me, by orders of the Court, the building in question is not an unauthorised building. The Division Bench has, in cases where buildings are not authorised, directed supply of "temporary connections". It ordered in Civil Misc.No.649 of 1991 in Civil Writ No. 414 of 1991, "temporary connection shall continue till further orders, and the respondent shall regulate the supply of 30 kv. of power to the premises, and shall charge at normal rate, and not on the basis of temporary connenction. Regular supply of 30 kv. be made within one week from today".

(15) Inasmuch as by virtue of order passed by this Court in Civil Writ No. 1299, the building in question, i.e. A.-13, Green Park Extension, cannot be considered to be an unauthorised building during the pendency of the writ petition. Byvirtue of Section 22 of the Electricity Act, the electricity which is to be supplied to that building, has to be supplied on the same terms on which electricity is being supplied to others in the area of supply.

(16) The petitioner is, therefore, entitled to receive electricity on the same terms, on which the same is being supplied in the area of supply to other persons. Admittedly 11 kv. is being supplied, which shall have to be paid for on the same terms, as others are being supplied. In other words, the supply should be made and paid fur on normal rates during the pendency of this writ petition.

(17) C.M. stands disposed of.