Madhya Pradesh High Court
High Court Advocates Bar Association vs The State Of Madhya Pradesh on 3 May, 2024
Author: Vivek Agarwal
Bench: Vivek Agarwal, Avanindra Kumar Singh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
WRIT PETITION No. 18637 of 2015
BETWEEN:-
1. HIGH COURT ADVOCATES BAR
ASSOCIATION THROUGH ITS
SECRETARY JABALPUR (M.P.)
2. M.P. HIGH COURT BAR ASSOCIATION
THROUGH ITS SECRETARY HIGH COURT
CAMPUS, JABALPUR (M.P.)
.....PETITIONERS
(BY SHRI MANOJ SHARMA - SR. ADVOCATE ASSISTED BY
SHRI RAJMANI MISHRA - ADVOCATE AND SHRI K.N.
FAKHRUDDIN - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH
THROUGH CHIEF SECRETARY VALLABH
BHAWAN BHOPAL (MADHYA PRADESH)
2. PRINCIPAL SECRETARY LAW AND
LEGISLATIVE AFFAIRS DEPARTMENT
VALLABH BHAWAN BHOPAL (MADHYA
PRADESH)
3. CHAIRMAN M.P. K.V.V. CO. LTD. (MPSEB)
THROUGH ITS CHAIRMAN, SHAKTI
BHAWAN, JABALPUR (MADHYA
PRADESH)
4. EXECUTIVE ENGINEER (URBAN
DIVISION EAST), M.P. POORVA KSHETRA
VIDYUT VITRAN CO. LTD., JABALPUR
Signature Not Verified
Signed by: TULSA SINGH
Signing time: 03-05-2024
18:28:52
2
(MADHYA PRADESH)
.....RESPONDENTS
(SHRI SWAPNIL GANGULY - DY. ADVOCATE GENERAL FOR
RESPONDENTS NO.1 AND 2, SHRI MUKESH AGRAWAL -
ADVOCATE FOR RESPONDENTS NO.3 AND 4, SHRI SATISH
VERMA - ADVOCATE, SHRI RAVINDRA KUMAR GUPTA -
ADVOCATE AND SHRI V.N. MISHRA - ADVOCATE FOR
INTERVENORS)
----------------------------------------------------------------------------
Reserved on : 27/02/2024
Delivered on : 03/05/2024
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This petition having been heard and reserved for orders, Hon'ble Shri
Justice Vivek Agarwal pronounced the following:
ORDER
This writ petition is filed by the High Court Advocates Bar Association,
Jabalpur as petitioner No.1 and M.P. High Court Bar Association as petitioner
No.2 claiming that they are registered Associations of Practicing Advocates in
the High Court at Jabalpur. Petitioner No.2- M.P. High Court Bar Association
was established in the year 1956 when, in newly formed State of Madhya
Pradesh, the M.P. High Court was established. The date of formation or
registration of petitioner No.1 is not mentioned in the body of the petition but
being the lead petitioner, riding on the back of parent association namely M.P.
High Court Bar Association and placing reliance on the decision of Division
Bench of this High Court in the case of Vinod Kumr Bhardwaj Vs. State of
M.P. and others, (2013) 1 MPLJ 597, prayer is made that this writ petition in
the form of PIL be entertained and action of respondents No.3 and 4 namely
M.P. Madhya Kshetra Vidyut Vitaran Company Limited and the Executive
Engineer (Urban Division East) of M.P. Poorva Kshetra Vidyut Vitaran
Company Limited, Jabalpur in disconnecting the electricity supply of the Bar
Association and seeking recovery of electricity bills after the judgment passed
by this Court and Hon'ble Apex Court, be set aside and respondents No.1 and
2 i.e. the State of Madhya Pradesh through Chief Secretary and the Principal
Secretary, Department of Law and Legislative Affairs, Vallabh Bhawan, Bhopal
be directed to make payment of the electricity bills of the Bar Associations to
respondents No.3 and 4 as per the statement made by the Government of
Madhya Pradesh before the Hon'ble Supreme Court. It is further prayed that
respondents No.3 and 4 be directed to examine the electricity bills of the
petitioners-association and not to recover any electricity charges after the
judgment in the case of Vinod Kumar Bhardwaj (supra) and to refund the
electricity bills paid by the petitioners after the said judgment. It is also prayed
that respondents No.3 and 4 be directed to restore electricity forthwith and not
to disconnect the same in future till the matter is adjudicated by respondents
No.1 and 2 so that the public and litigants are not put to any inconvenience
which hampers the administration of justice.
2. To substantiate the aforesaid reliefs besides placing reliance on the
judgment of Division Bench of this High Court in Vinod Kumar Bhardwaj
(supra), reliance is placed on the order of Hon'ble Supreme Court dated
28/04/2014 wherein the State had challenged the orders of the Division Bench
in Vinod Kumar Bhardwaj (supra) by filing Petition (s) for Special Leave to
Appeal (Civil) No.(s).14402/2013 wherein on the basis of the letter dated
27/05/2013, the Government of Madhya Pradesh, Department of Law and
Legislative Affairs communicated to the Working Secretary, M.P. State Bar
Council, Hon'ble Supreme Court passed the order as follows :
"Sub: In relation to the announcement bearing No. A-2480
made by Hon'ble Chief Minister in the Adhivakta
Panchayat for payment of Electricity Bills. In relation to the
abovementioned subject it is most respectfully submits that
in furtherance of the announcement No. A-2482 i.e. "the
proposal pertaining to payment of Electricity Bills of the
places used for the sitting of the clients in the Court
compound/premises will be examined" made by the
Hon'ble Chief Minister in the Adhivakta Panchayat, the
State Government after examination has already allotted Rs.
65,59,657/- to the Hon'ble High Court vide department
memo dated 07/05/2013.
2. Learned senior counsel and counsel for the parties agree that
special leave petition may be disposed of in terms of the above
communication. 3. 3. The prayer made by the learned senior
counsel and counsel for the parties is fair and reasonable. It is
observed that the impugned order of the High Court is rendered
unnecessary in view of the above communication sent by the
State Government to the Working Secretary, Madhya Pradesh
State Bar Council.
4. In our opinion, no further order needs to be passed in the
special leave petition. It is disposed of accordingly."
I n view of said communication from the State, it is observed by the
Hon'ble Supreme Court that the order of the High Court is rendered
unnecessary in view of the above communication sent by the State Government
to the Working Secretary, Madhya Pradesh State Bar Council and after
recording a finding that no further orders were needed to be passed in the
Special Leave Petition, SLP was disposed of.
3. It is submitted that recovery of electricity bills by respondents No.3 and
4 is illegal, arbitrary and contrary to the judgments passed by this Court and the
Hon'ble Supreme Court. Bar Associations are having their accommodation in
the High Court building itself within the High Court premises. These
associations are providing several facilities like conference room, library,
canteen etc., therefore, the State Government is under obligation to make the
said payment and respondents No.3 and 4 cannot make any recovery of
electricity bills from the petitioners-associations. It is also submitted that the
disconnection of electricity connection was illegal and arbitrary.
4 . Shri Mukesh Agrawal, learned counsel for respondents No.3 and 4,
submits that there is nothing like free electricity. On the interim orders of the
High Court electricity supply was never disrupted. There is high infrastructural
cost starting from production to supply. Petitioners- associations' Office, on
inspection, was found to contain 16 AC, 184 tubleIights, 5 computers, 2 T.V.
sets, 180 fans, 3 watercoolers, 4 photocopy machines, one oven, one fridge
and several CFL consuming electricity having high total consumption. It is
also submitted that petition has been filed without making any representation to
the State Government. Electricity Authorities made correspondences with the
Registrar General of the High Court and on receiving a communication from the
Registrar General of the High Court that the petitioners are liable to make
payment of the electricity charges and as per the undertaking before the Hon'ble
Supreme Court, the State Authorities in terms of declaration of the Chief
Minister in Adhivakta Panchayat had decided to make payment of the
electricity bills of the places used for sitting of the clients in the Court
compound/premises commonly known as 'Suitor's Shed'. It is evident that it is
not meant for Bar Rooms and, therefore, prayer is made that respondents No.3
and 4 are interested in clearing of their dues whether they are paid by the State
Government or the respective Bar Associations i.e. not a matter of their
concern. In support, reliance is placed on Annexure-R/2 which is the
communication dated 30/09/2015 made by the Registrar General to the
Secretary of M.P. High Court Bar Association with a copy forwarded to
respondent No.4.
6. Respondents No.1 and 2 have also filed a very sketchy reply and this
reply filed under the affidavit of one Shri R.P. Gupta, S/o Shri M.L. Gupta,
Under Secretary, Law and Legislative Affairs Department, Vidhyachal Bhawan,
Bhopal, in fact in para-7 admits that the amount of electricity charges will be
reimbursed as per the announcement in accordance with the procedure
prescribed and they have already taken effective steps as per the announcement
made by the Chief Minister. Thereafter respondents No.1 and 2 have filed
additional return and have submitted that in terms of the undertaking given
before the Hon'ble Supreme Court as was communicated to the State Bar
Council, they had allocated a sum of Rs.65,59,657/-.
7 . Shri Manoj Sharma, learned senior counsel for the petitioners, in his
turn, submits that petitioners have filed a rejoinder pointing out that lawyers are
the Officers of the Court having duty as important as that of a Judge and
looking to the large responsibility which they discharge towards the society and
the vital role played by them in preservation of social justice system in terms of
the judgment of Hon'ble Supreme Court in the case of O.P. Sharma and
others Vs. High Court of Punjab and Haryana, (2011) 6 SCC 86 so also
in light of the judgment of Hon'ble Supreme Court in the case of Supreme
Court Bar Association and others Vs. B.D. Kaushik, (2011) 13 SCC 774 ,
it is prayed that the electricity bills be directed to be paid by the State
Government and no liability be fastened on the shoulders of the petitioners.
8. In para-7 of the rejoinder, it is submitted that projection about uses of air
conditioners etc by the respondents No.3 and 4 is shocking as if they are trying
to demonstrate that the petitioners-bar associations are operating or running
some sort of entertainment centre. It is pointed out that Bar Associations' Halls
i.e. Golden Jubilee Hall, Silver Jubilee Hall and Bar Association Halls are not
enough to meet out the demands of space and sitting arrangement for all the
members, therefore, other places are also required to be given free electricity.
9. Shri Mukesh Agrawal, learned counsel for respondents No.3 and 4, in
his turn, submits that electricity is not a free commodity. It is to be paid as
advocates cannot be subsidised in the matter of use of electricity. He further
submits that as per his information, High Court Bar Association as well as High
Court Advocates Bar Association, both, had taken electricity connection in their
respective names and were paying electricity charges till decision in the case of
Vinod Kumar Bhardwaj (supra). Thus, change of their stand in terms of
Vinod Kumar Bhardwaj (supra) is arbitrary and illegal.
1 0 . Shri Satish Verma, learned counsel for the intervenor, submits that
electricity charges are to the tune of Rs.One crore in last eight years and it is
public money, therefore, not paying the electricity dues is a huge loss to the
public exchequer. It is further submitted that there is no public interest in filing
this petition and petitioners have successfully managed 36 adjournments in last
more than seven years after getting interim order on 28/10/2015. List of
adjournments starting from 28/10/2015 till 15/11/2022 is brought on record as
Annexure-IA/2. It is also submitted that since declaration of the Chief Minister
a n d the State Government was for free power to the places used by
litigants/public at large and not for the places exclusively used by the Bar
Associations and in particular unrecognised Bar Association like petitioner
No.1, they cannot be given a right to enjoy free electricity.
11. Shri Ravindra Kumar Gupta, who is also an intervenor in the matter has
enclosed a leaflet which was floated as a charter of demands before the Chief
Minister and points out that there was no such demand like free electricity in the
charter of demands. Thus, Bar Associations are now estopped from raising a
plea of supply of free electricity.
12. Secretary, Law and Legislative Affairs Department, Bhopal has filed
his affidavit vide I.A. No.36/2024 clearly pointing out that a coordination from
t h e Registry of the High Court was made by the Office of the Principal
Secretary, Law and Legislative Affairs Department, Bhopal and, in turn,
response was received on 02/02/2024 (Annexure-RR/1) that for various District
Bar Associations and Tehsil Bar Associations, electricity bills are not being
provided by the State Government but only places used as Suitor's Shed is
being paid by the State Government. It is pointed out that earlier also W.P.
No.2165/2013 (PIL) was filed by one Shri Rameshwar Neekhra as enclosed as
Annexure-RR/2 claiming the same relief that respondents No.1 and 2 may
kindly be directed to exempt the Bar Associations over the whole of Madhya
Pradesh from payment of electricity bills and respondent No.1 be directed to
make good the monthly electricity bills but vide order dated 30/09/2014 passed
by the Division Bench of this High Court in terms of the order dated 28/4/2014
passed in SLP (Civil) No.14402/2013, petition was disposed of in the same
terms.
13. Registrar General of Madhya Pradesh High Court has also filed copy
of resolution of Administrative Committee (HJS) dated 31/08/2015 wherein a
resolution was passed to the effect that High Court has no role in the matter
concerning payment of electricity bills of the High Court Bar Associations and
it was resolved that the bar associations, of the Principal Seat at Jabalpur, its
Benches at Indore and Gwalior may be forthwith informed to pursue the matter
directly with the State Government for payment/reimbursement.
14. Registrar General also enclosed copy of the policy document regarding
construction of Advocates' Chamber at the District Court Premises in the State
of Madhya Pradesh. They have also enclosed list of places where electricity
charges are being reimbursed for Suitor' Shed.
15. After hearing learned counsel for the parties and persuing pleadings
available on record, it is profitable to refer the relevant provisions in this behalf.
Bar Council of India under Section 49(1)(c) of the Advocates Act, 1961 has
framed standards of professional conduct and etiquette to be observed by the
advocates. It provides that An advocate shall, at all times, comport himself in
a manner befitting his status as an officer of the Court, a privileged member
of the community, and a gentleman, bearing in mind that what may be lawful
and moral for a person who is not a member of the Bar, or for a member of
the Bar in his non-professional capacity may still be improper for an
advocate. Without prejudice to the generality of the foregoing obligation, an
advocate shall fearlessly uphold the interests of his client and in his conduct
conform to the rules hereinafter mentioned both in letter and in spirit. The
rules hereinafter mentioned contain canons of conduct and etiquette adopted
as general guides; yet the specific mention thereof shall not be construed as a
denial of the existence of others equally imperative though not specifically
mentioned. Thus, it is evident that advocate has to conduct himself fearlessly
and his conduct should be lawful and normal for a person who is not even a
member of bar.
16. In the case of O.P. Sharma and others (supra), Hon'ble Supreme
Court has held that advocates have an obligation to uphold rule of law and
ensure that public justice system functions at its full potential. It is further
held that members of legal profession have a social duty to show people a
beacon of light by their conduct and actions. In para-37 of the said judgment,
it is held that all Court functionaries whether advocates, Judges or staff ought
to act in accordance with moral and ethics.
17. In the case of Usha Mehta Vs. Government of Andhra Pradesh
and others, (2012) 12 SCC 419 while dealing with the facet of Article 14 of
the Constitution of India, it is held by Hon'ble Supreme Court that distribution
of State Largesse must be founded on sound, transparent, discernible and
well-defined policy known to public at large and in a non-discriminatory and
non-arbitrary manner. The State instrumentalities, cannot treat such
resources as a private venture, as it would amount to a flagrant violation of
the principles of equality. Thus, it is evident that petitioners, herein, who are
representatives of a intellectual body are in no way entitled to claim benefit of
State Largesse at par with Suitor's Shed or free electricity given to marginalized
farmers or under privileged section of the society as they are by their profession
and education forms a different class which, by no stretch of imagination, will
be termed as under privileged section of the society.
18. In the case of Sudha Vs. President, Advocates Association,
Chennai and others, (2010) 14 SCC 114 in para-40, Hon'ble Supreme Court
has held that the legal profession is different from other professions. What the
lawyers do, affects not only an individual but the administration of justice
which is the foundation of the civilised society. Both as leading member of
the intelligentsia of the society and as an intelligent citizen, the lawyer has to
conduct himself as a model for others both in his professional and in his
private and public life. The legal profession is a solemn and serious
occupation. It is a noble calling and all those who belong to it are its
honourable members. The members must maintain their honour by their
exemplary conduct both in and outside the Court.
19. Section 3(1) of the Electricity Act, 2003 provides that the Central
Government shall, from time to time, prepare the National Electricity Policy and
tariff policy, in consultation with the State Governments and the Authority for
development of the power system based on optimal utilisation of resources
such as coal, natural gas, nuclear substances or materials, hydro and renewable
sources of energy. Sub-section (2) of Section 3 provides that Central
Government shall publish the National Electricity Policy and tariff policy from
time to time. Sub-section (3) of Section 3 provides that Central Government
may, from time to time in consultation with the State Governments, and the
Authority review or revise the National Electricity Policy and tariff policy
referred to in sub-section (1).
20. Part VI of the Electricity Act, 2003 deals with distribution of electricity.
Section 42(1) provides that it shall be the duty of a distribution licensee to
develop and maintain an efficient co-ordinated and economical distribution
system in his area of supply and to supply electricity in accordance with the
provisions contained in this Act. Section 43(1) of the Electricity Act, 2003
provides that save as otherwise provided in this act, every distribution licensee,
shall, on an application by the owner or occupier of any premises, give supply
of electricity to such premises, within one month after receipt of the application
requiring such supply. Thus, it is evident that supply of electricity by the
distribution licensee is on the request of the owner or occupier of any premises
and there is an obligation to supply electricity.
21. Section 45 of the Electricity Act, 2003 deals with power to recover
charges. Sub-section (1) of Section 45 provides that subject to the provisions
of this section, the prices to be charged by a distribution licensee for the supply
of electricity by it in pursuance of Section 43 shall be in accordance with such
tariffs fixed from time to time and conditions of his licence. Thus, it is evident
that supply of electricity is in accordance with tariff fixed from time to time.
2 2 . Section 46 of the Electricity Act, 2003 provides that the State
Commission may, by regulations, authorise a distribution licensee to charge
from a person requiring a supply of electricity in pursuance of Section 43 any
expenses reasonably incurred in providing any electric line or electrical plant
used for the purpose of giving that supply.
23. Section 50 of the Electricity Act, 2003 deals with the Electricity Supply
Code and provides that State Commission shall specify an Electricity Supply
Code to provide for recovery of electricity charges, intervals for billing of
electricity charges, disconnection of supply of electricity for non-payment
thereof, restoration of supply of electricity, measures for preventing tampering,
distress or damage to electrical plant or electrical line or meter, entry of
distribution licensee or any person acting on his behalf for disconnecting supply
and removing the meter, entry for replacing, altering or maintaining electric lines
or electrical plants or meter and such other matters.
2 4 . Section 56 of the Electricity Act, 2003 deals with disconnection of
supply in default of payment. Section 56(1) reads as under :
''Section 56. (1) Where any person neglects to pay any
charge for electricity or any sum other than a charge for
electricity due from him to a licensee or the generating
company in respect of supply, transmission or distribution
or wheeling of electricity to him, the licensee or the
generating company may, after giving not less than fifteen
clear days' notice in writing, to such person and without
prejudice to his rights to recover such charge or other sum
by suit, cut off the supply of electricity and for that
purpose cut or disconnect any electric supply line or other
works being the property of such licensee or the generating
company through which electricity may have been
supplied, transmitted, distributed or wheeled and may
discontinue the supply until such charge or other sum,
together with any expenses incurred by him in cutting off
and reconnecting the supply, are paid, but no longer:
Provided that the supply of electricity shall not be cut off if
such person deposits, under protest,-
(a) an amount equal to the sum claimed from him, or
(b ) the electricity charges due from him for each month
calculated on the basis of average charge for electricity
paid by him during the preceding six months,
whichever is less, pending disposal of any dispute between
him and the licensee.''
25. Section 65 of the Electricity Act, 2003 deals with issue of subsidy by
State Government. It deals as under :
"Section 65. Provision of subsidy by State
Government:
If the State Government requires the grant of any subsidy
to any consumer or class of consumers in the tariff
determined by the State Commission under section 62, the
State Government shall, notwithstanding any direction
which may be given under section 108, pay, in advance and
i n such manner as may be specified, the amount to
compensate the person affected by the grant of subsidy in
the manner the State Commission may direct, as a
condition for the licence or any other person concerned to
implement the subsidy provided for by the State
Government:
Provided that no such direction of the State Government
shall be operative if the payment is not made in accordance
with the provisions contained in this section and the tariff
fixed by State Commission shall be applicable from the
date of issue of orders by the Commission in this regard."
26. The Tariff Policy (para 8.3.4) issued by Government of India in 2016
issued in accordance with Section 3 of the Electricity Act, 2003 provides as
under :
"Extent of subsidy for different categories of consumers can
be decided by the State Government keeping in view various
relevant aspects. But provision of free electricity is not
desirable as it encourages wasteful consumption of electricity.
Besides in most cases, lowering of water table in turn creating
avoidable problem of water shortage for irrigation and
drinking water for later generations. It is also likely to lead to
rapid rise in demand of electricity putting severe strain on the
distribution network thus adversely affecting the quality of
supply of power. Therefore, it is necessary that reasonable
level of user charges is levied".
27. Thus, it is evident that Section 65 of the Electricity Act provides that
if the State Government requires the grant of any subsidy to any consumer or
class of consumers in the tariff determined by the State Commission under
Section 62, pay, in advance and in such manner as may be specified, the
amount to compensate the person affected by the grant of subsidy in the
manner the State Commission may direct, as a condition for the licence. Thus,
it is evident that mere announcement by the functionaries of the State
Government is not sufficient but it is required to pay in advance the amount of
subsidy to the Distribution Licencee if it intends to do subsidise supply of
electricity.
28. Thus, it is evident that statutory provisions contained in the Electricity
Act, 2003 contains sufficient safeguards for the Electricity Distribution
Company to disconnect the supply in default of payment. Therefore, now the
issue which stands crystal clear is that there cannot be any free electricity as far
as distribution company is concerned. User has to pay and it cannot avail free
electricity as erection of the facilities for generation of electricity and then
creation of infrastructure for its distribution has its economic cost and that cost
is to be reimbursed as per the Supply Code evolved from time to time with
consultation of the State Electricity Regulatory Commission.
29. In the case of Rajasthan State Industrial Development and
Investment Corporation Vs. Subhash Sindhi Cooperative Housing
Society, Jaipur and others, (2013) 5 SCC 427, in para-24 Hon'ble Supreme
Court has held as under :
"24. The primary purpose of the writ is to protect and
establish rights, and to impose a corresponding imperative
duty existing in law. It is designed to promote justice, (ex
debito justiceiae) and its grant or refusal is at the discretion
of the court. The writ cannot be granted unless it is
established that there is an existing legal right of the
applicant, or an existing duty of the respondent. Thus, the
writ does not lie to create or establish a legal right but, to
enforce one that stood already established. While dealing
with a writ petition, the court must exercise discretion,
taking into consideration a wide variety of circumstances,
inter-alia, the facts of the case, the exigency that warrants
such exercise of discretion, the consequences of grant or
refusal of the writ, and the nature and extent of injury that is
likely to ensue by such grant or refusal. Hence, discretion
must be exercised by the court on grounds of public
policy, public interest and public good. The writ is
equitable in nature and thus, its issuance is governed by
equitable principles. Refusal of relief must be for reasons
which would lead to injustice. The prime consideration for
issuance of the writ is, whether or not substantial justice
will be promoted. Furthermore, while granting such a writ,
the court must make every effort to ensure from the
averments of the writ petition, whether proper pleadings are
being made. Further in order to maintain the writ of
mandamus, the first and foremost requirement is that, the
petition must not be frivolous and it is filed in good faith.
Additionally, the applicant must make a demand which is
clear, plain and unambiguous. It must be made to an officer
having the requisite authority to perform the act
demanded. Furthermore, the authority against whom
mandamus is issued, should have rejected the demand
earlier. Therefore, a demand and its subsequent refusal,
either by words, or by conduct are necessary to satisfy the
court that the opposite party is determined to ignore the
demand of the applicant with respect to the enforcement of
his legal right. However, a demand may not be necessary
when the same is manifest from the facts of the case, that
is, when it is an empty formality, or when it is obvious that
the opposite party would not consider the demand. (Vide:
Commissioner of Police, Bombay v. Govardhandas Bhanji,
AIR 1952 SC 16; Praga Tools Corporation v. Shri C.V
Imanual & Ors., AIR 1969 SC 1306; Punjab Financial
Corporation v. Garg Steel, (2010) 15 SCC 546; Union of
India & Ors. v. Arulmozhi Iniarasu & Ors., AIR 2011 SC
2731; and Khela Banerjee & Anr. v. City Montessori
School & Ors., (2012) 7 SCC 261)."
30. In para-26 and 27 of the said judgment it is held as under :
"26. Thus, it is evident that a writ is not issued
merely as is legal to do so. The court must exercise its
discretion after examining pros and cons of the case.
27. Executive instructions which have no statutory
force, cannot override the law. Therefore, any notice,
circular, guidelines etc. which run contrary to statutory
laws cannot be enforced. (Vide: B.N. Nagarajan & Ors.,
etc. v. State of Mysore and Ors. etc., AIR 1966 SC 1942;
Sant Ram Sharma v. State of Rajasthan & Ors., AIR 1967
SC 1910; Secretary, State of Karnataka & Ors. v.
Umadevi & Ors., AIR 2006 SC 1806; and Mahadeo Bhau
Khilare (Mane) & Ors. v. State of Maharashtra & Ors.,
(2007) 5 SCC 524)."
31. Thus, it is evident that any public announcement by the then Chief
Minister in Wakeel Panchayat will, at best, be an executive instruction which
has no statutory force and cannot override statutory provisions contained in
Electricity Act, 2003.
32. In the case of Swastic Industries Vs. Maharashtra State
Electricity Board, (1997) 9 SCC 465, it is held that Section 24 of the
Electricity Act, 1910 makes it clear that right to recover the charges is one
part of it and right to discontinue supply of electrical energy to the consumer
who neglects to pay charges is another part of it. It is further held that right
to file a suit under Section 60-A of the Supply Act is a matter of option given
to the licensee, the Electricity Board. Therefore, the mere fact that there is a
right given to the Board to file the suit and the limitation has been prescribed
to file the suit, it does not take away the right conferred on the Board under
Section 24 to make demand for payment of the charges and on neglecting to
pay the same, they have the power to discontinue the supply or cut off the
supply, as the case may be.
33. As far as the judgment in the case of Vinod Kumar Bhardwaj
(supra) is concerned, it is a judgment on consent. Shri M.P.S. Raghuvanshi,
Additional Advocate General as he was then had given concession as is evident
from para-4 of the judgment wherein Hon'ble Division Bench observed as
follows :
"4. In the return, the State has opposed the plea of the
petitioner, however, during course of arguments, learned
Additional Advocate General has produced certain papers
to the effect that the process of decision making is going
on in regard to payment of electricity bills of bar rooms in
the Court premises by the Government. Learned Additional
Advocate General informed the Court that a Vakil
Panchayat was held on 12-8-2012 at the residence of
Hon'ble the Chief Minister and in the aforesaid Panchayat,
Hon'ble the Chief Minister made a declaration that the State
Government shall provide the electricity charges of the bar
rooms and for the purpose of implementation of the
declaration, a committee of Hon'ble the Chief Minister,
Chief Secretary, Advocate General and Private Secretary of
Law has been constituted and the matter is under active
consideration of the Government. Learned Additional
Advocate General further produced a letter dated 29-9-
2012 written by the Secretary Law and Legislature, State of
M.P. to the Registrar General, in which, it is mentioned that
how much amount shall be required for the purpose of
payment of electricity charges of sitting places of litigants
in the Court premises. In this letter, the expenses in regard
to providing tube-lights and fans in the Court premises is
also included. The Registrar (Establishment) vide letter
dated 3-1-2013 informed the Government in regard to
amount which would be required for payment of electricity
charges in pursuance to the letter of Law Secretary.
Learned Additional Advocate General has submitted that
on the basis of aforesaid correspondences, a decision
would be taken within a certain period and the matter is
under active consideration before the Government."
34. Thus, it is evident that there was a kind of concession recorded by the
then Additional Advocate General on the premise of which judgment in the case
o f Vinod Kumar Bhardwaj (supra) proceeds. However, the actual
proceedings of the Wakeel Panchayat as have been produced by the State
Authorities reveal that the decision was only to provide free electricity to
Suitor's Shed used by litigants and not bar rooms, therefore, the decision
rendered in the case of Vinod Kumar Bhardwaj (supra) h a s neither a
precedential value nor any binding affect as it has not taken into consideration
the statutory provisions contained in the Electricity Act, 2003.
35. Similarly, in the case of B.D. Kaushik(supra) context is different.
While dealing with the main issue of "One-Bar-One-Vote" and also the
judgment of Delhi High Court in the case of P.K. Das, Advocate and others
Vs. Bar Council of Delhi and others, AIR 2016 Delhi 135 being the issue of
allotment of chambers, reference to the context is that a bar association
necessarily means and implies that it is an association representing members
regularly practicing in the Courts and responsible for conduct of its members
and for ensuring proper assistance to the Court. In consideration thereof,
the Court provides space for the Office of the association, library and all
necessary facilities like chambers at concessional rates for members regularly
practicing in the Court, parking place and canteen besides several other
amenities. Thus, it is evident that if there is a mutual understanding to provide
certain facilities, that will not become a right in the hands of the members of the
association to claim them as freebies.
36. As referred above, judgment in the case of O.P. Sharma and others
(supra), clearly highlights the conduct of the members of the bar should be
above of what is expected from common public.
37. As per report published in Business Today titled "The Economics of
Election Freebies" made a comparative study of freebies being distributed
across the State, it quoted that "the Union Finance Minister noted that freebies
are being announced across many States without taking their financial feasibility
into account. Even the Chief Election Commissioner voiced concerns over this
phenomenon and despite Centre's strict adherence to fiscal deficit targets in the
previous years and questioning of the freebie culture especially after the debt
crisis in neighbouring Sri Lanka an alarm has been raised in regard to logic and
justification for such freebies" .
38. The said magazine quoted that "Competitive populism has remained a
dominant theme in State elections" It also noted that Supreme Court of India
had issued notices to the Madhya Pradesh and Rajasthan Governments, Central
Government and the Election Commission on a plea seeking comprehensive
guidelines to bar political parties from distributing cash and other freebies at the
expense of taxpayers.
39. The Article further quoted a report called State of State Finances 2023-
24 by PRS Legislative Research, which says that subsidised items can be
broadly classified as merit and non-merit goods. "The consumption of certain
goods and services such as education and health by an individual may have
wider benefits for the society and the subsidisation of such goods can be
considered socially desirable." However, providing subsidies for non-merit
goods may not involve wider social benefits, pointing out that in 2022, the
Reserve Bank of India had also observed that increasing expenditure on non-
merit subsidies can constrain the space for capital expenditure. The article
quoted N.R. Bhanumurthy, Vice Chancellor of Bengaluru-based Dr. B.R.
Ambedkar School of Economics University, who said that "it is a freebie as it
does not have a long-term impact on growth and development, or on
productivity."
40. The PRS report also noted that several States continue to budget
revenue deficit, thus constraining capital outlay. It noted that "over the past
several years, States have spent close to 8-9 per cent of their revenue receipts
on providing subsidies. States can provide subsidies on various items such as
electricity, public distribution system, education, health and transportation.
Subsidies form a part of revenue expenditure, which is used for largely non-
capital formation items such as payment of salaries, pensions and interest
liabilities, and dominates the Budget expenditure. It raised a concern on the
basis of the PRS report authored by its researchers Shri Tushar Chakrabarty
and Tanvi Vipra expressing that as "a significant portion of such subsidies are
spent to provide subsidised or free electricity. Concerns have been raised over
rising subsidies for non-merit goods in several States. Providing such non-merit
subsidies may constrain the fiscal space available for capital expenditure." This
article quoted M. Govinda Rao, Emeritus Professor at NIPFP, Chief Economic
Advisor of Brickwork Ratings, and a member of the 14th Finance Commission,
that "People look for short-term benefits and governments want to win
elections by giving them at the cost of long-term growth-enhancing
expenditures... People want benefits now though this will burden the future."
Thus, it is evident from the aforesaid article that freebies have long lasting
impact on the development of a State or a Nation.
41. Several studies have pointed out the impact of free electricity can be
significant and multifaceted. They are as follows :
"Financial strain on DISCOM`s: Providing electricity free
or at low tariff places the financial burden on DISCOM`s,
which must be borne by governments. If there is any delay
in release of funds can severely impact the finances of the
DISCOM`s and quality of service, they provide.
Wastage of Natural resources : Free electricity promotes
excessive consumption leading of wastage of natural
resources due to increased consumption.
Inefficiencies: Consumers might not feel incentivized to
conserve energy, resulting in wasteful consumption patterns
and reduced overall efficiencies.
Operational Challenges: Rapid rise in demand for electricity
due to free electricity programs leads to severe strain on
distribution network and accurate demand projection for
scheduling of electricity is also difficult.
Hindrance to investment: A lack of revenue from electricity
sales can hinder distribution companies' ability to invest in
improvement in their network and service.
Difficulty in payment: Due to lack of financial resources,
distribution companies find it difficult to pay the generation
companies from whom they buy power, thus affecting their
financials as well."
42. Sreekumar Nhalur and Ann Josey of Prayas (Energy Group) published
an article "Free Power at a Big Price" which was published by 'the Hindu' on
13th October, 2021, dealing with the problems with free power and proposed
that good power supply and services are necessary to improve quality of life
and encourage productive activities. This, in turn, requires financially stable
distribution companies and accountability measures for quality service for all,
especially small and rural consumers. Free or low tariff power is at best a short
term relief, which should be provided to those who desperately needed. A
Government which has long term interest of the people in mind should work to
limit free power beneficiaries. Thus, the article suggests that for overall
development limiting free power beneficiaries will help.
43. Lawyers being promoter of development and preservers of democracy
are expected to rise above sectorial interest and contribute in all modes of
national development. They are the torch bearers and conscious keepers of the
people in the democracy in a welfare State and when their role is examined
starting from the freedom movement till date, their contribution to the
development is immense especially in the form of social service given by them
to do pro bono cases or to assist the legal aid in the country. Thus, when
examined from this perspective, it is evident that they would not like to be part
of such scheme which causes overall dent to the national/state interest.
44. In fact, Hon'ble Supreme Court had issued certain directives in the case
o f S. Subramaniam Balaji Vs. Government of Tamil Nadu & others
(Civil Appeal No.5130/2013), as a result of which the election commission
added a new chapter to its Model Code of Conduct in February, 2014.
Thereafter Lawyer Ashwani Upadhyay filed a petition in the Supreme Court as
PIL opposing the practice of political parties providing or promising freebies to
voters and Hon'ble Supreme Court stated that the economy has to strike a
balance between money and welfare of the people and advised Government to
relook and renew whether they should be giving freebies to people as has been
noted by the Maharashtra Economic Development Council in an article titled
"Analysis of Government Freebies in India" 30th November, 2022 by Vaishnavi
Mungale. IOSR Journal of Humanities and Social Science, Vol. 27, Issue-12,
Series-3 (December. 2022) an article titled "Freebies Politics in India and its
Political, Economic and Psychological Impact on Voters" by Rohit Kumar,
Assistant Professor, Chandigarh Group of Colleges, Jhanjeri (Mohali) and
Suman Preet Kaur, Assistant Professor of the same College. Reserve Bank of
India titled "The State Finances - Risk Analysis" expresses great concern above
the financial health of the States such as West Bengal, Punjab, Kerala, Rajasthan
and Andhra Pradesh due to their emphasis on social welfare and freebies.
45. According to RBI report, total outstanding liabilities of these four
States were greater than the national average of 32%. This article quoted
Justices N. Kirubakaran and B.Pugalenthi, Judges of Madras High Court stating
that freebie culture makes people of Tamil Nadu lazy. Similarly N.K. Singh,
Member of the 15th Finance Commission warned that freebies are a "quick
passport to fiscal disaster". The article gives example of Sri Lankan economy
which recently collapsed and the experience of the people in regard to power
outages and a lack of basic necessities such as school, fuel and medicines to
highlight that freebies have their long term adverse impact on the economy of
the country, therefore, when examined from this perspective, then interest of a
section of society cannot dominate the overall goal of national development
where challenge is to reduce the freebies and subsidies so to make more of
capital expenditure to trigger development of a country. These experts in the
field of developmental economics and their experience leads to a singular
conclusion that free electricity is neither desirable nor necessary. Policy of the
State Government reveals that free electricity was never promised to the lawyers
but it was only promised for the needy litigants, therefore, Government in its
order confined it to the Suitor's Shed.
46. Secondly, once petitioners had taken a electricity connection and had
entered into the arena of contractual relationship with the electricity company,
then it cannot bypass its contractual liability and seek shifting of liability to the
shoulders of the State Government. Petitioners' demand for payment of
electricity bills of the Bar Associations to respondents No.3 and 4 by the State
when examined from the aforesaid perspective of developmental economics &
social well being and also the overall economic heath of the country cannot be
said to be justified.
47. Prayer for refund of the electricity bills paid by the petitioners to
respondents No.3 land 4 is also not justified. It has no legal sanctity.
48. Accordingly, this writ petition fails and the same is hereby dismissed.
(VIVEK AGARWAL) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
ts
