IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT: THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY WEDNESDAY, THE TWELFTH DAY OF MARCH, TWO THOUSAND EIGHT ONLY WRIT PETITION No.4950 of 2006 Between: Satish Chand Agarwal. …Petitioner. AND A.P. Central Power Distribution Company Ltd., Reptd., by its Chairman & Managing Director, Vidyut Soudha, Somajiguda, Hyderabad and two others. … Respondents Counsel for the petitioner: Sri A.Veera Swamy. Counsel for the respondents: Sri Bhuvana Sundar Reddy for Sri V.Ajay Kumar This Court made the following: ORDER: This Writ Petition is filed for a Writ of Mandamus to declare the action of the respondents in not restoring the power supply to the petitioner’s Service Connection No.K1/506 at House No.15-2-339, Maharaj Gunj, Hyderabad, as illegal, unjust and arbitrary; and to set aside bill dated 27-5-2005 as contrary to Section 56(2) of the Electricity Act. 2003 (for short “the Act”). The admitted facts of the case are that the above-mentioned Service Connection was released in the name of the petitioner’s grandfather. For non-payment of electricity charges for the month of February, 2001, power supply was disconnected in March, 2001. The respondents raised bills upto June, 2001. From the month of July, 2001 no bills were raised and the premises continued to be under disconnection. On 27-5-2005 the respondents raised a demand for Rs.1,28,762/-. This demand was preceded by the petitioner approaching the respondents for restoration of power supply and paying certain sums towards the value of energy said to have been pilfered by his tenant. Since the petitioner did not make payment of the arrears as demanded in letter dated 27-5-2005 issued by respondent No.2, power supply to the said premises was not restored. Feeling aggrieved by the same, the petitioner filed the present Writ Petition. The respondents filed a counter-affidavit and also an affidavit, wherein they have, inter alia, taken the stand that since there are arrears to the tune of Rs.1,28,762/- upto March, 2001, the petitioner is not entitled to restoration of power supply without paying off the said arrears. Heard Sri A.Veera Swamy, learned counsel for the petitioner, and Sri Bhuvanasundar Reddy, learned counsel representing Sri V.Ajay Kumar, learned Standing Counsel for the respondents. Learned counsel for the petitioner invited my attention to Section 56 of the Act, and in particular sub-Section (2), and submitted that admittedly the arrears demanded by the respondents are due for more than two years preceding the date on which the demand was made and that they were not shown continuously as recoverable towards arrears of electricity charges and, hence, refusal of the respondents to restore power supply is contrary to the said provision. Resisting the said contention, learned counsel for the respondents submitted that the provisions of Section 56 relate only to disconnection and the same do not impose any fetters on the licensee to recover the arrears in respect of a premises which was already disconnected prior to coming into force of the Act. He also submitted that the said provision is not given retrospective operation and that even if the said provision is construed as preventing a licensee from recovering the arrears beyond two years after they fell due, the respondents made a demand on 27-5-2005, which is well within the period of two years from 10-6-2003, the date on which the Act came into force. I have carefully considered the submissions of the learned counsel for the respective parties. Sub-Section (1) 185 of the Act, which came into force on 10-6-2003, repealed the Indian Electricity Act, 1910; the Electricity (Supply) Act, 1948; and the Electricity Regulatory Commissions Act, 1998. Under sub-Section (2) thereof, anything done or any action taken or purported to have been done or taken, insofar as it is not inconsistent with the provisions of the Act, be deemed to have been done or taken under the corresponding provisions of the Act. Keeping this provision in view, the provisions of Section 56 of the Act are required to be analyzed. For convenience, this provision is reproduced herein below: “Sec.56. Disconnection of supply in default of payment:- (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; and (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. (2) Notwithstanding anything contained in any other law for the time being in force, no sum due from any consumer, under this section shall be recoverable after the period of two years from the date when such sum became first due unless such sum has been shown continuously as recoverable as arrear of charges for electricity supplied and the licensee shall not cut off the supply of the electricity”. Under sub-Section (1) of Section 56 of the Act, the licensee or the generating company is conferred with a right to cut off electric supply after giving a notice of not less than fifteen days where any person neglects to pay any charges 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 said right is without prejudice to their right to recover the charges by filing a suit. The proviso envisages that such a right shall not be exercised if the person deposits, under protest, an amount equal to the sum claimed from him or 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. Sub-Section (2) thereof, which is the bone of the contention of the parties in this case, starts with a non-obstante clause and mandates that no sum due from any consumer shall be recoverable after the period of two years from the date when such sum became first due unless such sum has been shown continuously as recoverable as arrear of charges for the electricity supplied and the licensee shall not cut off the supply of the electricity. A careful reading of this provision shows that the same is very widely worded. The expression “no sum due from any consumer” under this section is referable to any charge for electricity or any sum other than a charge for electricity due from him to a licensee or the generating company. It is not in dispute that the arrears, which are demanded by respondent No.2 under the impugned notice, represent charges for electricity and, hence, it squarely falls within the ambit of sub-Section (1) of Section 56 of the Act. Such a charge shall not be recoverable after the period of two years from the date when such sum first became due. Thus, this provision laid emphasis on the charge becoming first due. Admittedly, the charge became first due in February, 2001, for which supply was disconnected in March, 2001 and about four years elapsed before a demand was made. Since the respondents failed to show the said sum as arrears continuously between July, 2001 and 27-5-2005, sub-Section (2) of Section 56 of the Act is squarely attracted to this case. As noted above, the contention of the learned counsel for the respondents is that this provision only prevents the licensee from exercising the power of disconnection and does not enable a consumer to seek restoration of power supply, which was already disconnected even before the Act came into force. In my considered view, this contention cannot be accepted. Though sub-Section (2) of Section 56 of the Act is envisaged in the context of power of the licensee or the generating company to disconnect the power supply, this provision imposes absolute fetter on the licensee or the generating company to recover any arrears which are beyond the period of two years from the date when they became first due and were not shown continuously as recoverable arrears. This provision has a salutary purpose. Prior to the Act coming into force, the Indian Electricity Act, 1910 was governing the supply by the licensees to their consumers. Section 24 of the said Act empowered the licensees to exercise the power of disconnection. The said provision did not contain any limitation for recovery of the arrears. This resulted in piling up of huge arrears from the consumers. The Parliament, obviously taking note of the said situation, stipulated limitation in sub-Section (2) of Section 56 of the Act in order to see that the licensee or the generating company does not sleep over the bills without raising a demand and later seeks to recover the arrears without any limit of time from the consumers. This provision is thus obviously intended to balance the interest of the consumers and the licensee/generating company, as the case may be, so that both parties will be vigilant and circumspect regarding payment and recovery of the charges. Coming to the submission of the learned counsel for the respondents that the restriction contained in sub-Section (2) of Section 56 of the Act applies to situations where power supply was not disconnected, I am of the view that it applies even to the premises which was under disconnection of power supply. If the licensee is prevented from disconnecting the power supply for non-payment of the arrears due for more than two years a fortiori, the licensee cannot decline to restore the power supply, which was already disconnected for non-payment of such arrears. In my considered opinion, Section 56(2) of the Act is widely worded to make the prohibition contained therein apply not only to pre-disconnection cases but also to post- disconnection cases where the licensees refuse to restore the power supply for non-payment of arrears, which have become barred. Otherwise, the whole purpose of limiting the right of the licensee to recover the arrears will be rendered otiose. Learned counsel for the respondents further contended that since the arrears were demanded within two years from the date of the Act coming into force, the demand satisfies the condition contained in sub- Section (2) of Section 56 of the Act. This argument overlooks the specific words of the provision viz., “after the period of two years from the date when such sum became first due”. Irrespective of the fact that the Act came into force on 10-6-2003, for the purpose of operation of Section 56(2) of the Act the Parliament intended that the said provision covers all the arrears which became due even before the Act came into force. Therefore, it is not permissible for the respondents to contend that in respect of the arrears, which already fell due before the Act came into force, they have a right to insist recovery of the same after the Act came into force irrespective of the provisions of sub- Section (2) of Section 56 of the Act. As referred to supra, while sub-Section (1) of Section 185 repealed the provisions of the Indian Electricity Act, 1910 and the other two enactments already mentioned, Clause (a) of sub-Section (2) of Section 185 of the Act saved anything done or any action taken under the repealed enactments insofar as the same is not inconsistent with the provisions of the Act. Thus, the disconnection made under the provisions of the Indian Electricity Act, 1910 would continue to be legal if the same is not inconsistent with the provisions of this Act. As no disconnection can be made for non-payment of the arrears after the period of two years when they first became due under this Act, the continued disconnection, which was first made under the provisions of the repealed Act, is inconsistent with the present Act. The respondents cannot, therefore, refuse to restore the power supply for non-payment of arrears, the recovery of which has become barred under sub-Section (2) of Section 56 of the Act. The learned counsel for the respondents contended that under the Limitation Act the respondents are entitled to recover the arrears within three years apart from initiating proceedings under the Revenue Recovery Act. This contention cannot be accepted because of two reasons, viz., even if the respondents had three years time to recover, the said period expired even before the demand was made on 27-5- 2005. Moreover, sub-Section (2) of Section 56 of the Act contains a non-obstante clause which has overriding effect on all other laws which are for the time being in force. Viewed from this angle also, the respondents are not entitled to recover the arrears as demanded in notice dated 27-5-2005 issued by respondent No.2. For all the above-mentioned reasons, the Writ Petition is allowed. The impugned demand is quashed. Respondents are directed to restore power supply to the petitioner’s Service Connection No.K1/506 at House No.15-2-339, Maharaj Gunj, Hyderabad, subject to his complying with all other legal requirements for restoration of power supply. -------------------------------------- C.V.NAGARJUNA REDDY,J Dt.12-3-2008 MNR