IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.356 of 2010 1. THE BIHAR STATE ELECTRICITY BOARD, VIDYUT BHAWAN, BAILEY ROAD, PATNA THROUGH ITS CHAIRMAN. 2. THE ELECTRICAL SUPERINTENDING ENGINEER, PATNA CITY DIVISION, PATNA. 3. THE ELECTRICAL EXECUTIVE ENGINEER, PATNA CITY CIRCLE, PATNA CITY, PATNA. 4. THE ASSISTANT ELECTRICAL ENGINEER, ELECTRIC SUPPLY SUBDIVISION, KATRA, PATNACITY, PATNA. (RESPONDENTS)-APPELLANTS. VERSUS NAND KUMAR S/O SRI BISHWANATH PANDIT, R/O NEAR CHECK POST, DIDARGANJ, P.S.- MALSALAMI PATNACITY, DISTT.-PATNA. (PETITIONER) –RESPONDENT. For the appellants : Mr. Prakash Kumar, Advocate For the respondent : Mr. S.D.Sanjay, Advocate. WITH L.P.A.No.518 of 2010 NAND KUMAR S/O SRI BISHWANATH PANDIT, R/O NEAR CHECK POST, DIDARGANJ, P.S.- MALSALAMI PATNACITY, DISTT.-PATNA. (PETITIONER) –RESPONDENT VERSUS 1. THE BIHAR STATE ELECTRICITY BOARD, VIDYUT BHAWAN, BAILEY ROAD, PATNA THROUGH ITS CHAIRMAN. 2. THE ELECTRICAL SUPERINTENDING ENGINEER, PATNA CITY DIVISION, PATNA. 3. THE ELECTRICAL EXECUTIVE ENGINEER, PATNA CITY CIRCLE, PATNA CITY, PATNA. 4. THE ASSISTANT ELECTRICAL ENGINEER, ELECTRIC SUPPLY SUBDIVISION, KATRA, PATNACITY, PATNA. (RESPONDENTS)-APPELLANTS. ----------- For the appellant : Mr. S.D.Sanjay, Advocate. For the respondents : Mr. Prakash Kumar, Advocate. ------- - 2 - PRESENT: THE HON’BLE THE CHIEF JUSTICE THE HON’BLE MR. JUSTICE MIHIR KUMAR JHA O R D E R (18.03.2010) As per Dipak Misra, C.J.- These two appeals being interlinked and interconnected in view of the assail to the order dated 28.10.2009 passed by the learned Single Judge in CWJC no.11154 of 2009 from various spectrums by the consumer as well as the supplier, namely the Bihar State Electricity Board (for short, „the Board‟), they were heard analogously and are disposed of by a singular order. 2. Before we proceed to deal with the factual matrix and the contentions advanced at the Bar, we are inclined to state that a prefatory note is necessitous. The term „Law‟ is employed and taken recourse to herald the incandescent attributes of civilization and, the advancement of society is conditioned by the appropriate legal evolution. Sometimes the law is conceived as „jus naturale‟ and, at times as „jus civile‟ and at some other time it is equated with „jus honorarium‟. But the term „jus‟ is always important. „Jus‟ should never succumb to „joss‟. That is why it was said that the law is not the study of words alone, but a penetration into the study of nature within and nature without which are projected through words that have been the moving power of life. For that Simon pure reason, William Shakespeare said, „The law hath not been dead though it hath slept.” - 3 - 3. We have commenced with the aforesaid prologue as Mr. S.D.Sanjay, learned counsel appearing for the appellant-consumer would contend with immense vehemence that the provision contained under Section 127 of the Electricity Act, 2003 (for brevity, „the Act‟) not only imposes an onerous condition for preferring the appeal and further the facts in the present case are such where the learned Single Judge should have been well advised to invoke the inherent and equitable jurisdiction of this court under Article 226 of the constitution of India and not relegated the consumer-appellant to appeal. 4. Presently to the facts in brief. The appellant visited this Court assailing the order passed by the competent authority under Section 126(5) of the Act as well as the order of assessment amounting to Rs.18 lacs. The learned Single Judge, as is manifest from the order, thought it apt to direct the consumer to prefer an appeal as provided under Section 127 of the Act and further directed that the consumer would deposit at the time of filing of appeal 20% of the final assessment value and on the said condition being satisfied, the appellate authority shall decide the matter finally within one month from the date of filing of the appeal. 5. Be it noted, the supplier-Board has challenged the said part of the order on the foundation that the learned Single Judge has fallen into grave error by directing 20% of deposit of the final - 4 - assessment value as the said direction runs contrary to the mandate that has been engrafted under Section 127 (2) of the Act. 6. In the appeal preferred by the consumer it is submitted by Mr.S.D.Sanjay that the learned Single Judge has failed to appreciate that this was a case where the writ court should have interfered regard being had to the fact that Section 127 of the Act cannot be solitarily appreciated but has to be appreciated in the backdrop of Section 126 of the Act. He has especially invited our attention to Section 126(5) of the Act. It is apposite to note that Section 126 deals with assessment. Section 126(5) on which emphasis has been laid by Mr. Sanjay, reads as under: “ If the assessing officer reaches to the conclusion that unauthorised use of electricity has taken place, it shall be presumed that such unauthorised use of electricity was continuing for a period of three months immediately preceding the date of inspection in case of domestic and agricultural services and for a period of six months immediately preceding the date of inspection for all other categories of services, unless the onus is rebutted by the person, occupier or possessor of such premises or place.” 7. Relying on the said provision, it is propounded by Mr. Sanjay, learned counsel for the consumer that in the case at hand, with regard to unauthorised use of electricity and the theft, there is a sea of difference and that apart the period that has been computed is absolutely improper on the face of it. He has put forth that there was an inspection on 20th March, 2009 and the inspection report would reveal in a most unambiguous manner that there was nothing wrong - 5 - with the meter and everything was in apple- pie- order as far as consumer is concerned. It is urged by him that there was a second inspection on 19.06.2009 and the competent authority has found everything to be in order, but unfortunately the said aspects have not been taken into consideration. It is his submission the said facets vividly exposit a pure question of law which the writ court should have addressed and as that has not been done the order impugned is sensitively susceptible. It is also canvassed by him that a different formula is applied for direct theft and theft through meter and the same could have been penetrated at a glance by the learned Single Judge. In essence, it is proponed that there is no factual dispute. It is his further submission that relegation to appeal is unjust inasmuch as there is a condition of pre-deposit, and hence, the remedy becomes illusory. The learned counsel has urged that when the condition is onerous, the same can be waived and if Section 127 of the Act is appreciated in proper perspective, it is to be treated as directory and not mandatory. Learned counsel has contended that the High Court in exercise of writ jurisdiction can reduce the quantum and when the learned Single Judge has so done, the same cannot be found fault with if the appeal of the consumer does not succeed. To buttress the aforesaid submission, he has commended us to the decisions rendered in J.M.Baxi & Co. Gujarat Versus Commissioner of Customs, New Kandla and another, (2001) 9 SCC 275, Bhavya Apparels (P) - 6 - LTD. and another Versus Union of India and another, (2007) 10 SCC 129 and Bhavya Apparels (P) LTD. and another Versus State of Andhra Pradesh and others, 2009(3) SCC 177. 8. Controverting the aforesaid submissions put forth by Mr. Sanjay, learned counsel for the consumer-appellant, learned counsel for the Board Mr. Prakash Kumar, in oppugnation, contended that the order of assessment has been passed after following due procedure of law and when the same is subject to appeal, the writ court could not have adverted to the same and, therefore, the learned Single Judge has rightly directed the consumer to prefer an appeal but has fallen into error by reducing the statutory deposit which is mandatory. It is also urged by him that the theft was directly from the pole and there has been delineation to that effect as paragraph 3 of the final assessment and in any case, no pure question of law emerges. 9. Before we advert to the stand put forth by Mr. Sanjay, whether the writ court could have dealt with the subject matter like this directly in exercise of jurisdiction under Article 226 of the Constitution of India, we would like to notice a few citations in the field. 10. In Zila Parishad Moradabad V. M/s. Kundan Sugar Mills, AIR 1968 SC 98, the Apex Court has held as follows: “ A provision like Section 128 of the U.P. District Boards Act for an appeal against an assessment to tax is there, but the fact that the petitioner has not availed of it, does not oust the jurisdiction of the High Court to entertain a petition under - 7 - Article 226 and it is for the High Court to exercise its discretion whether to entertain the petition or not. Where there is nothing to show that the discretion has not been properly exercised by the High Court the Supreme Court would not interfere.” 11. In Champalal Binani vs. Commr. of Income Tax, West Bengal, AIR 1970 SC 645, their Lordships have ruled thus: “……… A writ of certiorari is discretionary: it is not issued merely because it is lawful to do so. Where the party feeling aggrieved by an order of an Authority under the Income-tax Act has an adequate alternative remedy which he may resort to against the improper action of the authority and he does not avail himself of that remedy the High Court will require a strong case to be made out for entertaining a petition for a writ. Where the aggrieved party has an alternative remedy the High Court would be slow to entertain a petition challenging an order of a taxing authority which is ex facie with jurisdiction. A petition for a writ of certiorari may lie to the High Court, where the order is on the face of it erroneous or raises question of jurisdiction or of infringement of fundamental rights of the petitioner……..” 12. In A.V.Venkateswaran v. R.S.Wadhwani, AIR 1961 SC 1500, the Apex Court has expressed thus: “The wide proposition that the existence of an alternative remedy is a bar to the entertainment of a petition under Art. 226 of the Constitution unless (1) there was a complete lack of jurisdiction in the officer or authority to take the action impugned or (2) where the order prejudicial to the writ petitioner has been passed in violation of the principles of natural justice and could, therefore, be treated as void or non est and that in all other cases, Courts should not entertain petitions under Art. 226 or in any event not grant any relief to such petitioners cannot be accepted. The two exceptions to the normal rule as to the effect of the existence of an adequate alternative remedy are by no means exhaustive, and even beyond them a discretion vests in the High Court to entertain the petition and grant the petitioner relief notwithstanding the existence of an alternative remedy. The broad lines of the general principles on which the Court - 8 - should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court, and in a matter which is thus pre-eminently one of discretion, it is not possible, or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the Court.” 13. In State of U.P.v. Indian Hume Pipe Co. Ltd., AIR 1977 SC 1132, it has been held as follows: “ In the instant case, the question as to what is the true connotation of the words, “sanitary fittings” and whether the hume pipes manufactured and sold by the respondent were sanitary fittings within the meaning of that expression was a question of law and since the entire material on the basis of which this question could be determined was placed before the Sales Tax officer and it pointed in one and only one direction, namely that the hume pipes were not sanitary fittings and there was nothing to show otherwise, the High Court was justified in entertaining the writ petition. Moreover, there is no rule of law that the High Court should not entertain a writ petition where an alternative remedy is available to a party. It is always a matter of discretion with the Court and if the discretion has been exercised by the High Court not unreasonably or perversely, it is settled practice of this court not to interfere with the exercise of discretion by the High Court. The High Court in the present case entertained the writ petition and decided the question of law arising in it and in our opinion rightly.” 14. In M/s. Shiv Shanker Dal Mills v. State of Haryana, AIR 1980 SC 1037, their Lordships proceeded to state as under: “Where public bodies, under colour of public laws, recover people‟s money, later discovered to be erroneous levies, the Dharma of the situation admits of no equivocation. There is no law of limitation, especially for public bodies, on the virtue of returning what was wrongly recovered to whom it belongs. Nor is it palatable to our jurisprudence to turn down the prayer for high prerogative writs, on the negative plea of „alternative remedy‟ since the root principle of law married to justice, is ubi jus ibi remedium.” - 9 - Their Lordships further proceeded to lay down as under: “Article 226 grants an extraordinary remedy which is essentially discretionary, although founded on legal injury. It is perfectly open for the Court, exercising this, flexible power, to pass such order such as public interest dictates and equity projects, Courts of equity may, and frequently do, go much further both to give and withhold relief in furtherance of the public interest than they are accustomed to go where only private interests are involved. Accordingly, the granting or withholding of relief may properly be dependent upon consideration as of public interest….” 15. In Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalaya, AIR 1987 SC 2186, the Apex court while dealing with the jurisdiction of Article 226 of the Constitution of India vis-à- vis the alternative remedy has stated thus: “Further, it is well established that an alternative remedy is not an absolute bar to the maintainability of a writ petition, when an authority has acted wholly without jurisdiction, the High Court should not refuse to exercise its jurisdiction under Art. 226 of the Constitution on the ground of existence of an alternative remedy. In the instant case the Vice Chancellor had no power of review and the exercise of such a power was absolutely without jurisdiction. Indeed, the order passed by the Vice-Chancellor on review was a nullity; such an order could be challenged before the High Court by a petition under Art. 226 of the Constitution and the High Court was not justified in dismissing the writ petition on the ground that an alternative remedy was available to the appellant under Section 68 of the U.P. State Universities Act.” 16. In Dr. Kamala Kanta Kar v. Orissa State Board of Homeopathic Medicine, Bhubaneswar, AIR 1988 Orissa 82, a Division Bench of the High Court of orissa has opined thus: - 10 - “It has been authoritatively held in a series of decisions of the Supreme Court, as well as of this court that the prohibition to grant relief under Art. 226 of the Constitution of India when an alternative remedy has not been resorted to is only a self imposed limitation adopted more for the necessity of propriety than as a mandatory requirement of law and that such a policy has no application where the act complained of is that of a violation of the principles of natural justice, or one of lack of jurisdiction. Even apart from it, nothing prevents the prerogative of the High Court to issue a writ of certiorari in a fit case where recourse to the alternative remedy would be unnecessary, lengthy and circuitous and the question involved for interpretation would be more appropriately decided by the High Court, such as cases involving purely questions regarding interpretation of law.” 17. In this context we may profitably quote a passage from the decision rendered in the case of Reg v. Hillington, London Borough Council (1974) 1 QB 720, wherein Lord Widgery, C.J. has stated thus: “It has always been a principle that certiorari will go only where there is no other equally effective and convenient remedy …” “The statutory system of appeal is more effective and more convenient than application for certiorari and the principal reason why it may prove itself more convenient and more effective is that an appeal to (say) the secretary of State can be disposed of at one hearing whether the issue between them is a matter of law or fact or policy or opinion or a combination of some or all of these ……..whereas of course an appeal for certioraris limited to cases where the issue is a matter of law and then only it is a matter of law appearing on the face of the order.” “An application for certiorari has however this advantage that is speedier and cheaper than the other methods and in a proper case, therefore, it may well be right to allow it to be used… I would, however, define a proper case as being one where the decision in question is liable to be upset as a matter of law because on its face it is clearly made without jurisdiction or in consequence of an error of law.” - 11 - 18. In Whirlphool Corporation Vs. Registrar of Trade Marks, Mumbai and others, (1998) 8 SCC 1, the Apex Court in paragraph 15 has held thus: “ 15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field.” 19. As advised at present, we may sit in a time machine and refer to a division Bench decision of this court rendered in Sawar Mal Choudhary and others Vs. The State Bank of India and others, 1986 P.L.J.R.660 wherein after referring to various decisions of the Apex Court in paragraph 34 it has been held thus: “The stand taken on behalf of the petitioners has only to be noticed and rejected. It may perhaps be first highlighted that under section 62 providing for a revision what is required is not a double deposit and the second proviso thereto makes it clear that no certificate debtor shall be called upon to do so if he has already deposited this amount at an earlier stage. It would follow thereform that where the certificate debtor has once made the deposit at appellate stage, there is no further impediment in his way of the same nature for preferring a revision. This apart, it seems to be well settled by precedent that merely providing for condition for deposit for regulating the right of appeal or revision in no way renders it either - 12 - illusory, ineffective or something which can be ignored or bypassed. It is unnecessary to elaborate this aspect on principal because, to my mind, it appears to be covered by binding authority. In Anant Mills v. State of Gujarat (AIR 1975 SC 1234) Khanna, J., speaking for the Court, observed as follows: “The right of appeal is the creature of a statute. Without a statutory provision creating such a right the person aggrieved is not entitled to file an appeal. We fail to understand as to why the legislature while granting the right of appeal cannot impose conditions for the exercise of such right. In the absence of any special reasons there appears to be no legal or constitutional impediment to the imposition of such conditions…………….. Likewise, it is permissible to enact a law that no appeal shall like against an order relating to an assessment to tax unless the tax had been paid. Such a provision was on the statute book in S, 30 of the Indian Income-tax Act, 1922. The proviso to that section provided that --- „no appeal shall lie against an order under sub-sec. 1) of S.46 unless the tax had been paid.” Such conditions merely regulate the exercise of the right of appeal so that the same is not abused by a recalcitrant party and there is no difficulty in the enforcement of the order appealed against in case the appeal is ultimately dismissed. It is open to the legislature to impose an accompanying liability upon a party upon whom legal right is conferred or to prescribe for the exercise of the right.” 20. In H.P.Electricity Regulatory Commission Vs. H.P.State Electricity Board, (2006) 9 SCC 233, the Apex Court did not interfere with the order of the High Court whereby the High Court had directed the appellant to assail the order impugned therein before the appellate Tribunal. 21. In Vijay Prakash D. Mehta and another Vs. Collector of Customs (Preventive), Bombay, (1988) 4 SCC 402 it has been held that the right to appeal is neither an absolute right nor an ingredient of natural justice the principles of which must be followed - 13 - in all judicial and quasi-judicial adjudications. The right to appeal is a statutory right and it can be circumscribed by the conditions in the grant. 22. The purpose of referring to the citations from both the spectrums is to convey that under certain circumstances, the jurisdiction under Article 226 of the Constitution of India can be exercised and the concept of alternative remedy is not an absolute bar, but, a pregnant one, the question that emanates for consideration in the case at hand whether the factual matrix as exposited is such whereby this court can release the appellant-consumer from preferring an appeal and adjudicate the lis itself. 23. As has been stated hereinbefore there was an order of assessment by the competent authority under the Act. On a scrutiny of the same it is demonstrable that there has been a finding that the consumer was indulged in direct theft. Submission of Mr. Sanjay is that even if there is theft it has to be calculated up to 90 days. To bolster the said stand, he has referred to the report dated 20th March, 2009 and 19th June, 2009 and also to certain provisions of the Bihar Electricity Supply Code, 2007. Needless to say, the said Code has been brought into existence in exercise of power conferred under the provisions of the Electricity Act, 2003. Thus, in the obtaining the factual matrix, it is well- nigh impossible to say that the facts are