Ongoing Disconnection Drive Is Unjustified

Whether the idea to file a PIL against erratic power supply was conceived at the recently held controversial Civil Military Relation Seminar at the Manipur University sometime in early January this year or before that event, the PIL is a breakthrough in the history of our civil existence against unaccountability and dormant governance system. The Hon’ble Gauhati High Court’s direction to the Electricity department to provide reasons for erratic power supply was long overdue. The Court has yet to exercise its judicial activist role by which it can bring meaningful transformation in the existential realities of our society. It is a fact that the court has failed to respond to the need of our society.

Indeed, the PIL against the erratic power supply is a big slap on the face of the Electricity department which has been asleep all these years. The people of Manipur have almost forgotten that we have an electricity department who look after, regulate and provide the supply of electricity except to the so called VVIPs, VIPs, Ministers, MLAs, and Departments of the State Government or protected members of the elite class.

After a very long time, the disconnection drive has reminded that there is an Electricity department to regulate the supply of power or to cut off power lines. The mode of reminding the existence of electricity department has serious legal flaws. The Electricity Department claims that the ongoing electricity disconnection drive is being carried out under the Electricity, Act, 2003. The department’s disconnection drive soon after the filing of the PIL before the Gauhati High Court is against the Electricity Act, 2003. When a statutory authority or a department of the Government acts upon, it has certain obligations to follow. It cannot act in a manner which is arbitrary, unjust and unfair. While even the due process or the procedure established by law should itself be reasonable, just and fair, the actions of the State authority should strictly conform to the law and, it should not go beyond what is prescribed or permissible under the parent Act. It must not be inconsistent with the principles of (natural) justice. At all circumstances, the principles of (natural) justice are principles which are always higher than man-made laws—positive laws, higher because they are yardstick for justness, fairness, reasonableness and logicality.

The campaign for disconnection of electricity for those who have not cleared off their outstanding bills and those who have unauthorized electricity connection has to be done by strictly complying with the mandatory provisions of the relevant law. Provisions of law are mandatory and when a State agency like the Electricity department carries out its functions, it cannot but act by strictly conforming to and within the strict boundaries of the law only. While performing its functions i.e. disconnecting the power supply it cannot affect or infringe the fundamental rights of the citizens. One may argue that citizens only claim for rights while failing to perform their duties i.e. to pay electricity bills regularly.

The State is the guardian and the protector of the interests, rights and welfare of its Citizens. It has assumed obligations to provide a secure and comfortable environment for the development of its citizens and thus, it cannot act like a non-law abiding person. The State cannot act in an unjustifiable and irresponsible manner even when its citizens have acted unlawfully or unreasonably. This is what distinguishes the State from any other person or group of persons. The fact that certain consumers have unlawful electricity connection does not empower or guarantee the electricity department to disconnect the power lines of those consumers who have not cleared their bills in a manner which is against the law.

Certain legal provisions are pertinent to discuss here. As regards the consumers who have authorized electricity connection but who have not cleared off their outstanding electricity bills or dues or who have not been able to do so, Section 56 of the Electricity Act, 2003 provides that a clear 15 (fifteen) days’ notice in writing should be given before disconnecting power lines. It is also provided that if a person under protest, deposits—(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 the disposal of any dispute between him and the licensee (sic Electricity Department). Thus, a person who pays the sum which is overdue from him or who pays the electricity charges at the average charge which he has been paying for the last six months to the officials at the spot of disconnection drive cannot be disconnected of his power supply. Disconnecting without giving a 15 days’ notice is against the provisions of the law or the procedure established by law i.e. Section 56(1) of the Electricity Act, 2003. Acting contrary to this provision is against the Electricity Act, 2003 and hence, ultra vires. Disconnection without giving an opportunity is against the universal rule of the principles of (natural) justice. Audi alteram partem requires that an opportunity must be given before someone is condemned.

It is furthermore provided that electricity cannot be disconnected for a sum which has been overdue from a consumer but not shown continuously as recoverable as arrear of charges for electricity supplied before the expiry of two years from the date on which such sum became first due. Thus, Clause (2) of Section 56 is worthy to note which provides:

“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.”

To recover the amount of the electricity charges which has been overdue from a consumer that amount should within two years from the date when such amount became first due be shown continuously as recoverable as arrears of charges for electricity supplied. If the sum has not been shown continuously as recoverable as arrear of charges within the period of two years when such sum became first due, then consumer’s electric supply cannot be disconnected. Here the serving of electricity bills as overdue from a consumer showing the overdue amount continuously as recoverable as arrears of charges for electricity supplied is a sine qua non to enable the power department to disconnect the power supply line of those consumers who have outstanding overdue for a long period of time. It is a mandatory provision of law which must be fully complied with by the electricity department in any disconnection campaign. Acting contrary to it is ultra vires, illegal and contravenes the Electricity law.

Yenning on 13th February, 2011 in The Sangai Express has shown the following data available as of 30th Sep 2010 which shows the electricity bills overdue in Manipur :-

Total amount which is overdue is 250 crores (Govt. Deptts + VVIPs + VIPS + Ministers + MLAs + Public). Here, Rs 22 crores is clearly overdue from i) PHED – 7.85 crores, ii) MAHUD – 30 crores, Hi) IFCD – 2.39 crores, iv) MEDICAL DEPARTMENT – 99 lacs, v) ELECTRICITY DEPARTMENT – 75.17 lacs, vi) REVENUE DEPARTMENT – 68.47 lacs, vii) MANIPUR POLICE – 58.34 lacs, viii) GAD – 47.13 lacs, ix) ART & CULTURE DEPARTMENT – 46.57 lacs, x) MINOR IRRIGATION DEPARTMENT – 41.13 lacs.

The data is amazingly refreshing. The disconnection drive is yet to carry out a superman campaign. The transparency and accountability or rather lawfulness of the disconnection drive would be ensured if the facts of disconnection and collection of electricity charges or fines, if any, from these Governmental departments are furnished to the media and the general public. Public cannot suffer from unaccountable pubic authorities, though they are connected by the thin controversial term ‘Public’. In a hierarchy of relationship, when law is strictly followed at the top brass level, the lower rung cannot but follow the same suit and it is also logical to punish the latter for disobedience. However, ironically when law is made to follow or enforce only to those who belong to the lower strata, such system is best described as an authoritarian or dictatorial regime. The current disconnection campaign or enforcing the electricity law is selective application of the law: Rule of Law does not provide and guarantee selective application of law.

There are instances with evidences of cutting off electricity cables which are used for ‘internal purposes inside the house and taken away by the electricity officials. This is an act which is not permitted under the Electricity Act, 2003. Section 378 of the Indian Penal Code defines theft thus:

“Whoever, intending to take dishonestly any property out of the possession of any person without that person’s consent, moves that property in order to such taking, is said to commit theft) : “When the Electricity officials cut off the electricity cables which are used for internal purposes within the house, and taken away, that is not guaranteed by the Electricity law. Nowhere in the Electricity Act, is 2003 there a provision which guarantees the electricity officials to cut off and take away electric cables for those consumers who have authorized connection but who have not cleared their overdues. It is an act of theft simply. An illegal act cannot be committed under the disguise of enforcing law. Taking photographs of power cable connections violates right to life and personal liberty. It’s a humiliating act which violates Article-21 and hence, illegal and oppressive. The acts are not guaranteed by the Electricity Act 2003.

Electricity has become indispensable to enjoy life today even to the extent of a dignified and meaningful life. Human life is not mere animal existence, the facilities of a dignified and meaningful life has become a right within the concept of the right to life both from the domestic and international perspectives. Those who have not seen how does electricity bulb lights and whose livelihood depends on the electricity have a right to sue the electricity provider in Manipur for getting them their rights delivered before appropriate court of law. We need to educate ourselves that we have to pay the price for what we use and enjoy. The recently emerged opportunist attitude and its opportunist class behavior have instilled amongst us a misconception that ‘everything is free and enjoyable without, accountability, and that which money can buy do not need questions of legality. This is spoiling our society.

Few questions can be put—why is electricity not provided in the hill areas and remote places of Manipur? Is it because there are many defaulters who have not cleared their overdues or who have unauthorized connection? What steps have been taken for those applicants who have requested to install meters but not yet installed or never responded to? Who would be held accountable for wastage’ of electricity that is unnoticeably taking place at various areas of Government complexes? Why is it that the Electricity Department has without announcing a policy of the State for electricity started disconnection drive all of a sudden when it has remained quiet for long long period of time? Plans for collecting the electricity overdues should be made keeping in mind of the yardstick of reasonableness, justness, fairness and logicality.

Our civil society has failed to respond and react to arbitrary, illegal, discriminatory, authoritarian and oppressive acts of the State. Losing the vigor of resistance against arbitrary, illegal and authoritarian regime is a manifestation that the Manipuri Civilization has become unscientific. The court of law has failed to take cognizance of the arbitrariness, illegality and whimsical acts of the disconnection campaign. Court of law does not need a public spirited citizen to bring to its notice that public are suffering, from arbitrary and illegal acts of the State. It can take suo moto cognizance and exercise its overdue judicial activism against actions which are illegal and arbitrary.

Had great Justices and judicial activists like Holmes, Cardozo of the United States of America and PN Bhagwati of India manned law courts of today, the courts would have settled Constitutionalism, Rule of Law and Justice as the ultimate guarantor and protector of the people. The failure of the court to take cognizance of these illegalities discourages those citizenry who have faith in the judiciary as the repository of justice. The late jurist, Professor N Sanajaoba once stated that if we have to enforce the laws in India in the strict sense of the term, then we would need a jail as big as the territory of India itself.

*The article is written by Laishram Malem Mangal.

(Courtesy: The Sangai Express)

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