Telangana High Court
Mr.Murtuza S.E., And Another vs Union Of India.,Min Of Energy, New Delhi ... on 22 February, 2024
THE HON'BLE THE CHIEF JUSTICE ALOK ARADHE
AND
THE HON'BLE SHRI JUSTICE ANIL KUMAR JUKANTI
WRIT PETITION No.25589 OF 2009
ORDER:
(per the Hon'ble Shri Justice Anil Kumar Jukanti) Mr. M. Laxminarasimham, learned counsel appears for the petitioners.
Mr. R. Vinod Reddy, learned Standing Counsel for Southern Power Distribution Company of Telangana Lmited appears for respondentNo.3.
Mr. Gadi Praveen Kumar, learned Deputy Solicitor General of India appearing for respondent No.1.
2. This writ petition is filed praying to grant the following relief:
"... to issue a Writ, Order or direction, more particularly in the nature of Mandamus by declaring:
a) the heading in Column (2) of Table in Section 152 (1) of the Electricity Act, 2003 (Act No.36 of 2003), which prescribes that the application of rate at which the sum of money for compounding to be collected for CJ & JAK, J W.P.No.25589 OF 2009 2 Low Tension (LT) consumers not basing on contracted demand, but for High Tension (HT) consumers basing on contracted demand as arbitrary, illegal and void, and against the Article 14 of the Constitution of India;
and b) the notice issued by respondent No.3 vide Lr.No.ADE/OP/Jeedimetla/D.No.2731, dated 17.11.2009, as arbitrary, illegal and void; and against Article 14 of the Constitution of India; and c) pass such order or other orders as deems fit and proper in the interest of justice."
3. Brief facts:
The petitioners in their business premises have a Low Tension (LT) [LT3 (A)] Service Connection bearing No.019000723 from the year 2002. It was inspected by the official respondents on 04.11.2009 and on 05.11.2009. The existing meter was taken and a new meter was fixed in its place. The old meter was tested in the presence of the petitioners in M.R.T. Lab on 11.11.2009. Notice was issued to petitioners and they received the same on 17.11.2009, wherein it was stated that a criminal case vide Crime No.2451 of 2009 came to be registered on 04.11.2009 for the offence of theft of electricity and that the petitioners, if willing, could pay a CJ & JAK, J W.P.No.25589 OF 2009 3 compounding fee of Rs.1,50,000/- and an amount of Rs.3,45,615/- was assessed as liability. A provisional assessment notice was issued towards consumption of electricity.
3.1 The contracted load of the petitioners business premises as per the records is said to be 14,920 watts. The main grievance of the petitioners is that as per Section 152 (1) of the Electricity Act, 2003 (for short, 'the Act, 2003') and as per heading to column (ii) of the said Section, the rate of compounding fee is fixed based on contracted demand in case of High Tension (HT) consumers, but in case of LT consumers, the same was not based on contracted demand and hence, is discriminatory, arbitrary and violative. According to petitioners, the LT consumers are penalized more compared to HT consumers for the same offence i.e., theft of energy. The further grievance of the petitioners is that as per Section 154 (5) of the Act, 2003, it is only the Special Court which is competent to determine the civil liability against a consumer for computation of the amount of theft of energy. It is averred CJ & JAK, J W.P.No.25589 OF 2009 4 that once a compounding fee is paid under Section 152 of the Act, 2003 in respect of the offence, it would act as a complete bar for claiming any other amount as civil liability other than compounding fee. Further grievance of the petitioners appears to be that as per Section 154 (5) of the Act, 2003, liability against the consumer in terms of money for theft of energy shall not be less than an amount equivalent to two times of tariff rate applicable for a period of 12 months preceding date of inspection. But, in the petitioners' case, it is made three times.
3.2 It is submitted by learned counsel appearing on behalf of petitioners that Section 154 of the Act, 2003 clearly contemplates that it is the Special Court which has got the jurisdiction to decide the matter and in violation of Section 154 of the Act, 2003, assessment has been done. The petitioners were not served with any copy of inspection report, which is required to be supplied under the General Terms and Conditions. It is also submitted that no notice was served on the petitioners for fixing the time for testing the said meter in CJ & JAK, J W.P.No.25589 OF 2009 5 the M.R.T. Lab and that the compounding fee fixed in case of LT consumers is not based on contracted demand but is based on connected load, which is discriminatory, whereas the rate of compounding fixed in case of HT consumers is on the basis of contracted demand. It is urged that by varying rates of compounding, the LT consumers are penalized more for the same offence if committed by HT consumers. 3.3 It is submitted that once the petitioners have opted for compounding as per Section 152 of the Act, 2003, it would act as a complete bar and there would be no other liability other than the compounding fee. It is contended that no proceeding shall be instituted once opted for compounding and no separate assessment can be made for the loss or damage said to have been sustained for commission of theft of energy. It is further contended that the provisional assessment order passed by respondent No.3 vide notice dated 17.11.2009 is without jurisdiction as the Special Court alone has jurisdiction to determine the civil liability under Section 154 (5) of the Act, 2003.
CJ & JAK, J W.P.No.25589 OF 2009 6 3.4 It is submitted by learned counsel appearing on behalf of the official respondents that when the petitioners premises was inspected on 04.11.2009 at 1145 hours by the Assistant Divisional Engineer, it was observed that the Meter cover 2No MRT side seals are not in good condition and the meter was referred for MRT Lab Testing. The meter was tested on 11.11.2009 and both the meter body side seal bits were in tampered position and seal bits holes are enlarged. The meter was tested in the presence of the representative. It was also noticed that there was no recording of voltage in R&B phases and the percentage error is -66.08%. The printed circuit board of the meter has been accessed and disturbed by suppressing the R&B phase voltages and that the consumer is indulging in theft of energy dishonestly. It is averred that the past consumption discloses that the consumption being recorded by the meter is unduly low, taking into account the connected load, the number of hours of usage of electricity and the purpose for which the power has been availed. It is pointed out that the service connection was disconnected on CJ & JAK, J W.P.No.25589 OF 2009 7 04.11.2009. The consumer was found guilty of theft of electricity under Section 137 of the Act, 2003. It is contended that the electricity charges due to the company was provisionally assessed at Rs.3,45,465/- basing on the assessment rules and the provisions of general terms and conditions of supply.
3.5 It is submitted that on payment of 50% of assessed amount, the petitioners were entitled for reconnection and could pay the balance 50% in installments.
4. Heard the learned counsels and perused the record.
5. We have considered the rival submissions. It is evident from the record that the petitioners are guilty of theft of electricity under Section 135 of the Act, 2003 by indulging in tampering with the seal bits and by accessing the printed circuit board of the meter. These facts are evident from the provisional assessment notice issued to the petitioners on 17.11.2009. As per the provisional assessment order, an amount of Rs.3,45,465/- has been assessed as civil liability, CJ & JAK, J W.P.No.25589 OF 2009 8 due to the company. The Apex Court in West Bengal State Electricity Distribution Company Limited and Others v. M/s. Orion Metal Private Limited and Another 1 has dealt with the issue elaborately.
6. It is pertinent to extract the gist of the judgment rendered at various paragraphs by the Hon'ble Apex Court in West Bengal State Electricity Distribution Company (supra). The Hon'ble Apex Court, dealing with the contention that when once a case of alleged theft of energy under Section 135 (1) (a) of the Act, 2003, is booked, that no assessment is permissible under Section 126 (1) of the Act, 2003, the Hon'ble Apex Court in its order at various paragraphs, the summary of which is extracted, held as under:
"A perusal of Sections 126, 135, 153 and 154 of the Act, 2003 and a conjoint reading of the same, it appears that once an inspection of any premises of any consumer is done and if the officer comes to a conclusion that the consumer indulges in unauthorized use of electricity, a provisional assessment to the best of his judgment is to be made 1 AIR ONLINE 2019 SC 982 CJ & JAK, J W.P.No.25589 OF 2009 9 under Section 126 (1) of the Act, 2003 after following the due procedure. The Apex Court held that all instances of unauthorized use of energy may not amount to theft of electricity within the meaning of Section 135 of the Act, 2003, but the theft of electricity as covered by Section 135 will fall within the definition of unauthorized use of electricity."
7. The Hon'ble Apex Court further held that, "Section 126 forms part of the scheme which authorizes the electricity supplier to ascertain the loss in terms of revenue caused to it by the consumer by his act of "unauthorized use of electricity" whereas Section 135 deals with offence of theft if he is found to have indulged himself in the acts mentioned in clauses (a) to 135 (e) of sub-section (1) of Section 135 of Electricity Act. Further, it is also clear from Section 154 of the Act, which prescribes procedure and power of Special Court, that the Special Court is empowered to convict the consumer and impose a sentence of imprisonment. The Special Court, in cases, where a criminal complaint is lodged, is also empowered to determine civil liability under Section 154 (5) of the Act. As per Section 154 (6) of the Act, in case, civil liability so determined by the Special Court is less than the amount deposited by the consumer or the person, the excess so amount CJ & JAK, J W.P.No.25589 OF 2009 10 deposited by the consumer or the person, shall be refunded by the licensee or the concerned person, as the case may be. Merely because the Special Court is empowered to determine the civil liability under Section 154 (5) of the Act, in case where a complaint is lodged, it cannot be said that there is no power conferred on the authorities to make provisional assessment/final assessment under Section 126 of the Act."
... ...
"Unauthorized use of electricity cannot be restricted to clauses under Section 135 (a) to (e), but has to be given a wider meaning so as to cover cases of violation of terms and conditions of supply.
"Unauthorized use of electricity" itself is an expression which would, on its plain reading, take within its scope all the misuse of the electricity or even malpractices adopted while using electricity. It is difficult to restrict this expression and limit its application by the categories stated in the explanation.
... ...
"When there is an allegation of unauthorized use of energy by tampering the meter, such cases of unauthorized use of energy include 'theft' as defined under Section 135 of the Act. The power conferred on authorities for making assessment under Section 126 CJ & JAK, J W.P.No.25589 OF 2009 11 (1) of the Act and power to determine civil liability under Section 154 (5) of the Act, cannot be said to be parallel to each other. In this regard, we are of the view that the High Court has committed an error in recording a finding that both proceedings cannot operate parallelly."
... ...
"In cases where allegation is of the unauthorized use of energy amounting to theft, in such cases, apart from assessing the proceedings under Section 126 (1) of the Act, 2003, a complaint also can be lodged alleging theft of energy as defined under Section 135 (1) of the Act. In such cases, the Special Court is empowered to determine civil liability under Section 154 (5) of the Act. On such determination of civil liability by the Special Court, the excess amount, if any, deposited by the petitioner, is to be refunded to the consumer."
8. We may now deal with grievance of petitioners with regard to discrimination between LT and HT consumers. The petitioners' contention that LT consumers are penalized more compared to HT consumers for the same offence i.e., theft of energy is devoid of merits as the HT consumers are a class of their own and LT consumers are a separate class.
CJ & JAK, J W.P.No.25589 OF 2009 12 Article 14 of the Constitution of India would be attracted only if similarly situate persons are treated differently. HT consumers form a class different from LT consumers and both by no stretch of imagination can be said to be similarly situate. Therefore, the contention is devoid of merits.
9. The challenge that the penalization of LT consumers is on the higher side compared to HT consumers is violative of Article 14 of the Constitution of the India is untenable. Such a classification is a creation of the legislature, and there is a general presumption of constitutionality, and the burden is on the petitioners to show that there is violation of Article 14 of the Constitution of India. The petitioners have failed to discharge the burden.
10. In the light of the judgments of the Hon'ble Apex Court (stated supra), we find that the authorities are indeed empowered to determine the civil liability under Section 126 of the Act, 2003 and it is only on the determination of the civil liability by the Special Court, when the issue is on the file of CJ & JAK, J W.P.No.25589 OF 2009 13 the Special Court, excess amounts, if any paid, shall be refunded to the petitioners.
11. For the foregoing reasons, the writ petition is devoid of merits and is liable to be dismissed and the same is accordingly dismissed. There shall be no order as to costs.
Miscellaneous applications pending, if any, shall stand closed.
_____________________________ ALOK ARADHE, CJ ___________________________ ANIL KUMAR JUKANTI, J Date:22.02.2024 KH CJ & JAK, J W.P.No.25589 OF 2009 14 THE HON'BLE THE CHIEF JUSTICE ALOK ARADHE AND THE HON'BLE SHRI JUSTICE ANIL KUMAR JUKANTI WRIT PETITION No.25589 OF 2009 Date:22.02.2024 KH