Tuesday, November 29, 2011
Electricity Company has no right to interfere with Power Supply of the consumer father who is not an abettor of alleged power theft by his son.
While granting a writ of a mandamus quashing the notice of disconnection issued by the licensee Electricity Company, in the matters of LETTERS PATENT APPEAL No. 1563 of 2011, the Division Bench of Hon. acting Cheif Justice Mr. Bhasker Bhattacharya and Hon. MR. Justice J.B. Pardiwala of Gujarat High Court has recently held that " The respondent Electricity Company has no right to interfere with the supply of electricity of the writ-petitioner so long there is no violation of the provisions of the Act authorizing disconnection. A natural person has the right to do all lawful things unless his right has been curtailed by some rule of law. It is equally a fundamental principle that in case of a statutory authority, it is just the other way. The statutory authority has no power to do anything unless those powers are conferred on it by the Statutes which created it." In its latest landmark setting judicial precedent, protecting the rights of the power consumers without any defaults, the Hon Gujarat High Court has further observed that " A statutory authority like UTTAR GUJARAT VIJ COMPANY LIMITED has no power of disconnection of electricity in the facts of the present case as the same is not authorized by the relevant provisions of Section 56 and 135 (A) of the Electricity Act, 2003 and Clause 8.7.5. of Gujarat Electricity Regulatory Commission (GERC) Electricity Supply Code and Related Matters, 11 of 2005, even as a natural person in the capacity as a decree-holder its right to enforce a decree against a third party is curtailed by Section 51 of the Code.A plain reading of the aforesaid statutory provisions makes it abundantly clear the relevant Statutes do not authorize the licensee under the Act to disconnect the supply of electricity of a consumer unless he is a defaulter in making payment of the charge of electricity or other charges payable under the relevant statutes or unless such consumer is guilty of theft of electricity. Simply because a person, who has suffered a money decree in a civil suit filed by the licensee, lives in a particular premises, such fact will not enable the licensee under the Act to disconnect the electricity of that premises when no amount is due and payable by the recorded consumer of electricity of that premises.Similarly, the Code of Civil Procedure does not authorize a decree-holder to take any coercive step against the father of the judgment-debtor for realization of unpaid money payable by a decree nor does it permit the decree holder to take any step whatsoever against the judgment-debtor than those provided in Section 51 of the Code. Disconnection of electricity of the premises where the judgment-debtor actually resides is also not provided as a mode of realization of unsatisfied decree in the Code of Civil Procedure. A father is also under no obligation to pay off the dues payable under a decree suffered by the son where the father is not party to the decree and regarding the allegation of theft of electricity levelled against the son of the appellant, it is needless to mention that such an act is a criminal offence and the criminal trial against the son of the appellant has not yet culminated in conviction with any finding of guilt. According to the criminal jurisprudence, the father of a person who is guilty of an offence cannot be punished in anyway for the crime committed by the son unless he is an abettor. In the case before us, the respondent has not alleged the charge of abetment of theft of electricity against the appellant and the alleged theft was not even committed in the premises in question owned by the appellant.We, therefore, hold that the Respondent, a creature of the statute by issuing a statutory notice of disconnection acted without jurisdiction in interfering with the legal right of the writ-petitioner to have electricity in accordance with law when he had not violated any of the provisions of the Act justifying disconnection. Thus, it is a case of abuse of statutory power at the instance of a statutory authority for the purpose of overcoming the statutory restriction imposed with an eye to enforce a money decree against a third party in a manner not prescribed by law.
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