Kamlesh Kumar Yadav vs Collector/District Magistrate ...
2017 Latest Caselaw 7205 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R. 
 
Court No. - 1
 

 
Case :- WRIT - C No. - 37563 of 2016
 

 
Petitioner :- Kamlesh Kumar Yadav
 
Respondent :- Collector/District Magistrate And 4 Others
 
Counsel for Petitioner :- K. Ajit
 
Counsel for Respondent :- C.S.C., Suman Kumar Yadav
 

 
Hon'ble Govind Mathur,J.

Hon'ble Ashok Kumar,J.

This petition for writ is before us to examine the correctness of the demand notice dated 25th May, 2016 issued by the Tehsildar, Sadar Kanpur Nagar to recover a sum of Rs. 56,253/-. The factual matrix necessary to be noticed is that the petitioner is a resident of House No. 369, NSI Gate, G.T. Road, I.T. Kalyanpur, Kanpur Nagar. The electricity connection from the respondent electricity company was installed on 3rd November, 2012. While getting the electricity connection all necessary formalities including deposition of requisite process fee etc. were completed. A notice dated 27th May, 2016 then was served upon the petitioner to deposite the sum referred above being indulged in theft of the electricity.

The grievance of the petitoner is that as a matter of the fact he had electricity connection subsequent to the inspection said to be made and as such the recovery is absolutely ill founded. In alternative, it is also stated that while making the assessment of the dues no assessment in accordance with Section 126 of the aforesaid Act, 2003 was made.

A counter affidavit to the writ petition has been filed with assertion that on 18th October, 2012 the petitioner got the electricity connection after satisfying the formalities. However, prior to that on 18th May, 2012, on inspection of the premises in question the petitioner was found consuming electricity by illegal means and therefore proceedings were initiated under Section 135 of the Electricity Act. According to the respondent electricity company the demand notice was issued on 16th August, 2013 and thereafter a notice under Section 5 of the Uttar Pradesh Government Electrical undertaking (dues) recovery Rules, 1958 was also issued.

It is also stated that before initiating the proceedings a provisional assessment was also made and notice in this regard was served upon the petitioner on 14th June, 2012. In rejoinder to the counter affidavit those facts have been denied. This Court vide order dated 15th September, 2016 directed the respondent electricity company to place original record before the Court. In compliance of the same, learned counsel has shown us the original record relating to entire proceedings conducted under Section 126 of the Act, 2003.

From perusal of the record it reveals that as a matter of fact the proceedings were initiated as per provisions of Section 135 of the Act, 2003 and not as per Section 126. Section 135 of the Act of 2003 relates to criminal liability in the event of the theft of electricity and that reads as follows:-

"135. Theft of electricity.- [(1) Whoever, dishonestly,-

(a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee or supplier, as the case may be; or

(b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or

(c) damages or destroys an electric meter, aparatus, equipment, or wire or causes or allows any of them to be so damagesd or destroyed as to interfere with the proper or accurate metering of electricity; or

(d) uses electricity through a tampered meter; or

(e) uses electricity for the purpose other than for which the usage of electricity was authorised, so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or with both:

Provided that in a case where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use-

(i) does not exceed 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction the fine imposed shall not be less than six times the financial gain on account of such theft of electricity;

(ii) exceeds 10 Kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction, the sentence shall be imprisonment for a term no less than six months, but which may extend to five years and with fine not less than six times the financial gain on account of such theft of electricity:

Provided further that in the event of second and subsequent conviction of a person where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use exceeds 10 Kilowatt, such person shall also be debarred from getting any supply of electricity for a period which shall not be less than three months but may extend to two years and shall also be debarred from getting supply of electricity for that period from any other source or generating station:

Provided also that if it is provided that any artificial means or means not authorised by the Board or license or supplier, as the case may be, exist for the abstraction, consumption or use of electricity by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of electricity has been dishonestly caused by such consumer.

(1A) Without prejudice to the provisions of this Act, the licensee or supplier, as the case may be, may, upon detection of such theft of electricity, immediately disconnect the supply of electricity:

Provided that only such officer of the licensee or supplier, as authorised for the purpose by the Appropriate Commission or any other officer of the licensee or supplier, as the case may be, of the rank higher than the rank so authorised shall disconnect the supply line of electricity:

Provided further that such officer of the licensee or supplier, as the case may be, shall lodge a complaint in writing relating to the commission of such offence in police station having jurisdiction within twenty four hour from the time of such disconnect:

Provided also that the licensee or supplier, as the case may be, on deposit or payment of the assessed amount or electricity charges in accordance with the provisions of this Act, shall, without prejudice to the obligation to lodge the complaint as referred to in the second proviso to this clause., restore the supply line of electricity within forty-eight hours of such deposit or payment;]

(2) [Any officer of the licensee or supplier as the case may be, authorised] in this behalf by the State Government may-

(a) enter, inspect, break open and search any place or premises in which he has reason to believe that electricity [has been or is being], used unauthroisedly;

(b) search, seize and remove all such devices, instruments, wires and any other facilitator or article whcih [has been or is being], used for unauthorised use of electricity;

(c) examine or seize any books of account or documents which in his opinion shall be useful for or relevant to, any proceedings in respect of the offence under sub-section (1) and allow the person from whose custody such books of account or documents are seized to make copies thereof or take extracts therefrom in his presence.

(3) The occupant of the place of search or any person on his behalf shall remain present during the search and a list of all things seized in the course of such search shall be prepared and delivered to such occupant or person who shall sign the list:

Provided that no inspection, search and seizure of any domestic places or domestic premises shall be carried out between sunset and sunrise except in the presence of an adult male member occupying such premises.

(4) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974), relating to search and seizure shall apply, as far as may be, to searches and seizure under this Act."

So far as Section 126 of the Act, 2003 is concerned that pertains to assessment of the loss, cost and liability of the person who availed the electricity unauthorisedly and that reads as follows:-

"126. Assessment.- (1) If on an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found connected or used, or after inspection of records maintained by any person, the assessing officer comes to the conclusion that such person is indulging in unauthorised use of electricity, he shall provisionally assess to the best of his judgment the electricity charges payable by such person or by any other person benefited by such use.

(2) The order of provisional assessment shall be served upon the person in occupation or possession or in charge of the place or premises in such manner as may be prescribed.

(3) The person, on whom an order has been served under sub-section (2), shall be entitled to file objections, if any, against the provisional assessment before the assessing officer, who shall, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment within thirty days from the date of service of such order of provisional assessment, of the electricity charges payable by such person.

(4) Any person served with the order of provisional assessment may, accept such assessment and deposit the assessed amount with the licensee within seven days of service of such provisional assessment order upon him:

[(5) If the assessing officer reaches to the conclusion that unauthorised use of electricity has taken place, the assessment shall be made for the entire period during which such unauthorised use of electricity has taken place and if, however, the period during which such unauthorised use of electricity has taken place cannot be ascertained, such period shall be limited to a period of twelve months immediately preceding the date of inspection.]

(6) The assessment under this section shall be made at a rate equal to [twice] the tariff applicable for the relevant category of services specified in sub-section (5).

Explanation.- For the purposes of this section,-

(a) "assessing officer" means an officer of a State Government or Board or licensee, as the case may be, designated as such by the State Government;

(b) "unauthorised use of electricity" means the usage of electricity-

(i) by any artificial means; or

(ii) by a means not authorised by the concerned person or authority or licensee or;

(iii) through a tampered meter; or

[(iv) for the purpose other than for which the usage of electricity was authorized ; or

(v) for the premises or areas other than those for which the supply of electricity was authorised.]"

From perusal of the provisions of Sections 135 and 126 of the Act, 2003 it is apparent that a person indulged in theft of the electricity is required to be subjected to civil liability as per provisions of Section 126 and for criminal liability as per Section 135 of the Act, 2003.

In case in hand it is the position admitted that the respondent electricity company though at the first instance referred provisions of Section 135 of the Act, 2003, but, did not choose to proceed against the petitioner to settle the criminal liability. The entire assessment is made in the light of the provisions of Section 126 of the Act, 2003. From perusal of the original record it also relveals that a provisional assessment was made but there is no evidence to substantiate the fact that notice inviting the objection is as per Sub-section 2 of Section 126 of the Act, 2003 was ever served upon the petitioner. The purposes of serving the notice under Sub-section 2 of Section 126 is to have objection as per the provision referred above in the light of Sub-section 3 of Section 126 of the Act, 2003. As already stated, in case in hand there is no material on record to substantiate that the order as per Sub-section 3 was ever served upon the petitioner. In view of that the process initiated against the petitioner is not justifiable as such the same deserves to be set aside.

Accordingly the writ petition is allowed. The order impugned is set aside. As a consequence of the setting aside the order of the assessment the respondent are directed to refund the penalty, if the penalty amount has already been recovered. While parting with the case we would like to mention that the electricity company in case in hand utterly failed to discharge its duties to initiate the proceedings under Section 135(2). If the petitioner was found using the electricity unauthorisedly, the respondent electricity company should have proceeded in accordance with law. In future if any person is found using the electricity unauthorisedly then such person must be subjected to the proceeding under Section 135 in addition to process under Section 126 of the Act of 2003.

Copy of this order be sent to the Electricity Department, the State of Uttar Pradesh and the respondent electricity company for necessary compliance.

Order Date :- 22.11.2017

SK Srivastava

(Ashok Kumar,J.)     (Govind Mathur,J.)