Bahuchar Stone Industries Prop. ... vs State Of Gujarat
2021 Latest Caselaw 3486 Guj

       C/SCA/20000/2018                                         CAV JUDGMENT




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 20000 of 2018


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI

==========================================================

1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2 To be referred to the Reporter or not ?

3 Whether their Lordships wish to see the fair copy of the judgment ?

4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== BAHUCHAR STONE INDUSTRIES PROP. CONCERN OF DOLATBHAI PRABHUBHAI PATEL Versus STATE OF GUJARAT ========================================================== Appearance:

MR BM MANGUKIYA(437) for the Petitioner(s) No. 1 MR RONAK RAVAL, AGP (1) for the Respondent(s) No. 1 MS LILU K BHAYA(1705) for the Respondent(s) No. 4 NOTICE SERVED BY DS(5) for the Respondent(s) No. 2,3 ==========================================================

CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI

Date : 26/02/2021

CAV JUDGMENT

1. This petition is filed under Article 226 of the Constitution of India in which the

petitioner has prayed that the action of the respondent of issuance of the supplementary bill dated 13.11.2018 of Rs.42,02,967.53 ps. be quashed and set aside.

2. Heard learned advocate Mr.B.M.Mangukiya for the petitioner, learned AGP Mr.Raval for the respondent no.1 and learned advocate Ms.Bhaya for respondent nos.2 and 3.

3. The brief facts leading to filing of the present petition are as under:

3.1 It is the case of the petitioner that the petitioner is running a small industry of stone crushing and the same is established in the year 1983. The petitioner has from time to time changed the machines for the aforesaid purpose. The petitioner has stated about the normal consumption of power in the year 2015-16 to 2017- 18 and placed on record relevant bills for the aforesaid period. It is stated that except the present dispute, there is no allegation levelled against the petitioner in past that the petitioner has committed any malpractice so far as the electric connection is concerned.

3.2 It is further stated that the officers of the respondent had visited the premises of the

petitioner on 3.11.2017 and checking memo was prepared wherein it is stated that seal on the meter box was missing. The other seals were found in order. It is stated that tests were conducted about recording of the consumption of the power by the said officers. The officers suggested that there was error in display and therefore it is stated that immediate replacement of the meter is required. It is stated that despite the suggestions made by the said officers, no steps were taken by the respondents to change the meter at the place of the petitioner. It is further stated that the premises of the petitioner was again visited by the officers of the respondents on 27.10.2018. The said officers informed the petitioner that the complaint has been made against the petitioner in the head office and therefore the said officers were sent with the specific instructions. The checking memo was prepared and the person who was present at the site was asked to sign the memo. It is stated that though the seals were not broken, it was wrongly recorded that the seal was broken. It is further submitted that the meter was sent for testing at Dhrangadhra which was at a distance of about 70 kms. from the place of the petitioner. It is stated that the distance between the site of the petitioner and Limdi town is 30 kms whereas the distance between the site of the

petitioner and Surendranagar town is 22 kms. Though the laboratories were available at Limdi as well as Surendranagar, meter was surprisingly sent for testing to a laboratory situated in a small town. The laboratory test report was thereafter prepared on 13.11.2018 and it is alleged that the petitioner has committed power theft and therefore FIR is lodged at PGVCL police station Surendranagar for the offence punishable under Section 135 of the Indian Electricity Act, 2003 (hereinafter referred to as `the Act'). It is further submitted that power supply was disconnected and supplementary bill for an amount of Rs.42,02,967.53 ps. was issued to the petitioner. The petitioner has, therefore, filed the present petition.

3.3 Learned advocate Mr.Mangukiya for the petitioner has assailed the issuance of the supplementary bill mainly on the ground that on 3.11.2017, while the officers of the respondent have visited the place of the petitioner, they observed that there is no illegality committed in the meter and MMB seal was not available. They have suggested that the meter is to be replaced immediately. Inspite of the said suggestion, the respondent authority has not replaced the meter at the place of the petitioner and thereafter because of the fact that the brother of the

petitioner happens to be the President of different political party than the party in power, the petitioner has been specially selected for the raid. It is further submitted that during the visit of the place of the petitioner on 27.10.2018, when the officers have carried out accucheck test, it was found that the meter was working slow. Thus, the respondent could have issued bill for slowness of the meter and not for committing the theft of the electricity under Section 135 of the Act. Thus, no case of theft can be filed against the petitioner.

3.4 It is further contended that the meter in question was installed at the place of the petitioner before 17 years back. The life of the said meter is seven years, inspite of the same, the meter was not replaced by the respondents. Thus, no fault can be found with the petitioner.

3.5 Learned counsel appearing for the petitioner thereafter contended that even as per the laboratory test report, sign of sparking was found in the wire which can be as a result of short circuit and not a case of tampering with the meter. It is stated that at the most, it can be said to be a case falling under the provisions contained under Section 126 of the Act and not under Section 135 of the Act.

3.6 Learned advocate Mr.Mangukiya thereafter submitted that though it is the case of the respondents in the affidavit- in-reply that the petitioner is having alternative remedy under Section 153 of the Act before the Special Court for the grievances raised in the present petition, the said contention is misconceived. At this stage, learned advocate Mr.Mangukiya has submitted that the respondent has referred the decision rendered by the Division Bench of this Court in the case of Torrent Power AEC Ltd. V/s Gayatri Intermediates, reported in 2006(2) GLR 1580. It is submitted that in the said decision, the Division Bench of this Court has held that there is an alternative remedy available under Section 153 of the Act before the Special Court. At this stage, it is submitted that similar view was taken by Delhi High Court in the case of B.L.Kantroo V/s BSES Rajdhani Power Ltd., reported in 2008 154 DLT 56. It is further submitted at this stage that relying upon the aforesaid decision, the Delhi High Court once again in the case of North Delhi Power Limited V/s Devinder Singh and Another, passed order on 2.2.2016 in CM(M)451/2012 and C.M.No.7032/12 and held that the jurisdiction of the Special Court is not barred under Section 153 of the Act for the cases which are covered under Sections 135 to

139 of the Act.

3.7 Learned advocate Mr.Mangukiya at this stage would further contend that against the order passed by Delhi High Court in the case of North Delhi Power Limited V/s Devinder Singh and others, Civil Appeal No.20842 of 2017 was filed before the Hon'ble Supreme Court and the Hon'ble Supreme Court has held that the Special Electricity Court acts as the Court of Sessions and has been set up to try offences that are committed under the Act. By no stretch of imagination, can it be stated that civil suit would be within the jurisdiction of such court. It is thus contended that the decision rendered by the Division Bench of this Corut in the case of Torrent Power AEC Ltd.(supra) is impliedly overruled. Learned advocate Mr.Mangukiya has placed on record the aforesaid judgments rendered by this Court, Delhi High Court and the Hon'ble Supreme Court.

3.8 Learned advocate Mr.Mangukiya thereafter submitted that the proprietor of the petitioner has expired and therefore now the legal heirs of the original petitioner are brought on record of this petition. It is stated that now the criminal case pending before the Special Court is abated and therefore it is not possible for the

petitioner to agitate about the civil liability of the petitioner before the Special Court and therefore this Court may entertain the present petition on its own merits.

4. On the other hand, learned advocate Ms.Bhaya appearing for the respondent-electricity company has opposed this petition and thereafter referred to the affidavit-in-reply as well as affidavit-in-sur-rejoinder filed by the respondent. At the outset, it is contended that this Court may not entertain the present petition as the petitioner is having alternative remedy before the Special Court under Section 153 of the Act where the civil liability can be adjudicated by the said Court. Learned advocate for the respondent has placed reliance upon the decision rendered by the Division Bench of this court in the case of Torrent Power AEC Ltd.(supra), Executive Engineer, Southern Electricity Supply Company of Orissa Limited (Southco) V.s Sri Seetaram Rice Mill, reported in 2012(2) SCC 108, the order dated 26.4.2011 passed by the Division Bench of this Court in the case of Ranchhodbhai Haribhai Sutaria V/s Union of India through Secretary, passed in Special Civil Application No.13931 of 2009 and allied matters and order dated 14.2.2011 passed by the Division Bench in the case of Abdul Rashid Kapadia and Baba

Hiragal V/s Torrent Power Limited passed in Letters Patent Appeal No.1685 of 2010. Learned advocate, therefore, urged that this Court may not entertain the petition on merits and the petitioner be relegated to the alternative remedy. It is further submitted that there are disputed questions of fact in this petition which cannot be decided by this Court.

4.1 Learned advocate Ms.Bhaya thereafter addressed the court on merits by referring to the checking sheet dated 27.10.2018 and submitted that the connection of the petitioner was checked by the checking squad of six officers. At the time of checking, it was found that there was no seal of the metal meter box. In the meter box, four number of loose seals were found. On checking the meter, it was found that on the `R- phase' voltage was 000.5 V whereas on Y & B phrases, voltage was 213.7 and 213.4 respectively. The seals on the terminal cover were tampered with. On taking the accucheck test of the meter, it was found slowness of 31.76%, therefore, the meter was removed, wrapped, packed and sealed in the presence of the representative of the petitioner and sent to the laboratory for further inspection. On the date of checking, as against contracted load of 42kw, connected load was 72.29 kw. Thereafter, the meter was checked

in the laboratory on 13.11.2018 in presence of the representative of the petitioner. Learned advocate has referred the said report, copy of which is placed on record and from the said report, it was contended that it was the case of theft of electricity and therefore FIR was filed by the petitioner and supplementary bill in question has been issued to the petitioner. Thus, no illegality is committed by the respondent while issuing the supplementary bill in question.

4.2 It is therefore, contended that the observation in the checking sheet dated 3.11.2017 has no relevance qua the checking dated 27.10.2018 in question. The checking sheet and laboratory inspection report are self explanatory. It is also stated that place of laboratory has no relevance and laboratory at Dhrangadhra is well equipped. At this stage, it is further submitted that the laboratory report clearly shows that it is the case of slowness of the meter because of tampering with one phase of meter. Thus, the provisions contained in Section 135 of the Act would be applicable and not under Section 126 of the Act as contended by learned advocate for the petitioner.

4.3 It is further submitted that no officer has any grudge or enmity against the petitioner

and no officer has any interest to act against the petitioner and the petitioner has unnecessarily tried to give political colour to a matter of theft of electricity. Learned advocate Ms.Bhaya has placed reliance on the decision rendered in the case of Smt.M.Varalakshmi and others V/s The Superintending Engineer (Assessments), Eastern Power Distribution Co. of Andhra Pradesh Limited, Vidyt Sakha Compound, Ganjipet Junction, Visakhapatnam and others reported in (1998)4 SCC 470. It is, therefore, urged that this petition be dismissed.

5. Having heard learned advocates appearing for the parties and having gone through the material placed on record, it would emerge that when the officers of the respondent- electricity company have visited the place of the petitioner on 27.10.2018 and when the meter was checked, it was found that there was tampering with the meter and after the said meter was tested in the concerned laboratory, it was found that it is the case of tampering with the meter and therefore FIR is filed against the proprietor of the petitioner and supplementary bill in question has been issued. Thus, as per the case of the respondent, the case is covered under Section 135 of the Act.

"Section 153-Constitution of Special Courts- (1) The State Government may, for the purposes of providing speedy trial of offences referred to in [sections 135 to 140 and section 150], by notification in the Official Gazette, constitute as many Special Courts as may be necessary for such area or areas, as may be specified in the notification.

(2) A Special Court shall consist of a single Judge who shall be appointed by the State Government with the concurrence of the High Court.

(3) A person shall not be qualified for appointment as a Judge of a Special Court unless he was, immediately before such appointment, an Additional District and Sessions Judge.

(4) Where the office of the Judge of a Special Court is vacant, or such Judge is absent from the ordinary place of sitting of such Special Court, or he is incapacitated by illness or otherwise for the performance of his duties, any urgent business in the Special Court shall be disposed of -

(a) by a Judge, if any, exercising jurisdiction in the Special Court;

(b) where there is no such other Judge available, in accordance with the direction of District and Sessions Judge having jurisdiction over the ordinary place of sitting of Special Court, as notified under subsection (1).

Section 154-Procedure and power of Special Court:-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, every offence punishable under [sections 135

to 140 and section 150] shall be triable only by the Special Court within whose jurisdiction such offence has been committed.

(2) Where it appears to any court in the course of any inquiry or trial that an offence punishable under [sections 135 to 140 and section 150] in respect of any offence that the case is one which is triable by a Special Court constituted under this Act for the area in which such case has arisen, it shall transfer such case to such Special Court, and thereupon such case shall be tried and disposed of by such Special Court in accordance with the provisions of this Act :

Provided that it shall be lawful for such Special Court to act on the evidence, if any, recorded by any court in the case of presence of the accused before the transfer of the case to any Special Court :

Provided further that if such Special Court is of opinion that further examination, cross-examination and re-examination of any of the witnesses whose evidence has already been recorded, is required in the interest of justice, it may re-summon any such witness and after such further examination, crossexamination or re-examination, if any, as it may permit, the witness shall be discharged.

(3) The Special Court may, notwithstanding anything contained in subsection (1) of section 260 or section 262 of the Code of Criminal Procedure, 1973, try the offence referred to in [sections 135 to 140 and section 150] in a summary way in accordance with the procedure prescribed in the said Code and the provisions of sections 263 to 265 of the said Code shall, so far as may be, apply to such trial :

Provided that where in the course of a summary trial under this subsection, it appears to the Special Court that the nature of the case is such that it is undesirable to try such case in summary way, the Special Court shall recall any witness who may have been examined and proceed to re-hear the case in the manner provided by the provisions of the said Code for the trial of such offence:

Provided further that in the case of any conviction in a summary trial under this section, it shall be lawful for a Special Court to pass a sentence of imprisonment for a term not exceeding five years.

(4) A Special Court may, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to, any offence tender pardon to such person on condition of his making a full and true disclosure of the circumstances within his knowledge relating to the offence and to every other person concerned whether as principal or abettor in the commission thereof, and any pardon so tendered shall, for the purposes of section 308 of the Code of Criminal Procedure,1973, be deemed to have been tendered under section 307 thereof.

(5) The [Special Court shall] determine the civil liability against a consumer or a person in terms of money for theft of energy which shall not be less than an amount equivalent to two times of the tariff rate applicable for a period of twelve months preceding the date of detection of theft of energy or the exact period of theft if determined whichever is less and the amount of civil liability so determined shall be recovered as if it were a decree of civil court.

(6) In case the civil liability so determined

finally by the Special Court is less than the amount deposited by the consumer or the person, the excess amount so deposited by the consumer or the person, to the Board or licensee or the concerned person, as the case may be, shall be refunded by the Board or licensee or the concerned person, as the case may be, within a fortnight from the date of communication of the order of the Special Court together with interest at the prevailing Reserve Bank of India prime lending rate for the period from the date of such deposit till the date of payment.

Explanation. - For the purposes of this section, "civil liability" means loss or damage incurred by the Board or licensee or the concerned person, as the case may be, due to the commission of an offence referred to in [sections 135 to 140 and section 150]."

From the provisions contained in Section 154(5) of the Act, it is clear that the said provision gives the Special Court jurisdiction to determine any dispute regarding the quantum, of civil liability in theft cases, therefore, the consumer intending to challenge the quantum of civil liability in theft cases (whether or not, he disputes the allegations of theft) is still entitled to make such a challenge to the disputed bill to the Special Court.

6. At this stage, this Court would like to refer to the decision rendered by the Division Bench of this Court in the case of Torrent Power AEC Ltd. (supra), wherein this Court has

considered the various provisions contained in the Act and observed and held in paragraph 5.3, 15.3 and 15.7 as under:

"5.3 xxxxx Section 154 provides that the offences punishable under Secs.135 to 139 of the Act shall be triable only by the Special Court within whose jurisdiction such offence has been committed. The offence is to be tried in a summary way. Sub-section (5) of Sec.154 also empowers the Special Court to determine the civil liability against a consumer or a person in terms of money for theft of energy which shall be at least two times the amount as per the tariff rate applicable for a period of twelve months preceding the date of detection of theft of energy or the exact period of theft, if determined, whichever is less. The amount of civil liability so determined shall be recovered as if it were a decree of Civil Court. Sub-section (6) also provides that in case the civil liability so determined finally by the Special Court is less than the amount deposited by the consumer or the person liable, the excess amount so deposited by the consumer or the person liable shall be refunded with interest at the prevailing Bank rate.

15.3 There is nothing to indicate that the power and jurisdiction conferred on the Special Court under Sub-section(5) of Section 154 is conditional upon the licensee filing a complaint before the Special Court under Section 151 of the new Act. In fact while the provisions relating to offences and penalties from Sections 135 to 139 are to be found in Part XIV of the new Act, and Section 151 in the same Part provides that cognizance of an offence under those sections can be taken only at the instance of the Government, the

Commission or the licensee, the provisions relating to the Special Court are to be found in a separate part being Part XV of the Act. Since the power to try offences punishable under Sections 135 to 139 is conferred exclusively on the Special Court constituted under Section 153 of the Act and the provisions of Sub-section(5) of Section 154 specifically invest the Special Court with the jurisdiction to determine any dispute regarding the quantum of civil liability in theft cases, we are clearly of the view that a consumer intending to challenge the quantum of civil liability in theft cases (whether or not he disputes the allegation of theft) is still entitled to make such a challenge to the disputed bill before the Special Court, even in cases where no criminal complaint is filed against the consumer. The doubt, if any, is removed by Resolution 7.6.7 in the Gujarat Electricity Supply Code.

15.7 Thus, although Sections 153 and 155 and Sub-sections (1) to (4) of Section 154 may give an impression that a Special Court is merely a Criminal Court set up to try offences, the provisions of Sub-sections (5) and (6) of Section 154 and Sections 156 and 157 unmistakably show that the Special Court has adequate powers to do what the Civil Court could normally do in a civil suit that its orders have the same efficacy, recognition and binding effect as the decree of a Civil Court. Thus principle (1) laid down by the Apex Court is satisfied.

Sub-section(5) of Section 154 also creates a special civil liability of the amount equivalent to two times of the tariff rate applicable for a period of twelve months preceding the date of detection of theft of energy. The provisions of appeal, revision and review also satisfy the test laid down by the Apex Court as contained in principle 2

whether remedies normally associated with actions in civil courts are prescribed by the statute or not."

In the aforesaid decision, the Hon'ble Division of this Court has specifically held that the consumer intending to challenge the quantum of civil liability in theft cases (whether or not he disputes the allegation of theft) is still entitled to make such a challenge to the disputed bill before the Special Court, even in cases where no criminal complaint is filed against the consumer.

In the present case, it is contended by learned advocate for the petitioner that the original consumer-petitioner has expired and therefore his legal heirs are brought on record of this petition. The criminal case filed against the original consumer is abated. However, in view of the decision in the case of Torrent Power AEC Ltd.(supra), the legal heirs can also challenge the bill in question before the Special Court and dispute the civil liability. Thus, the contention raised by the learned advocate for the petitioner on this point is misconceived and cannot be accepted.

7. Learned advocate for the petitioner has referred to the decision rendered in the case of North Delhi Power Limited (supra), wherein the

Delhi High Court has held that it is the Special Court alone which will have the jurisdiction to determine any dispute regarding the quantum of civil liability in theft cases whether or not the allegations of theft is disputed is still entitled to make such a challenge to the disputed bill before the Special Court and it was held that jurisdiction of Special Court was not barred. It is the case of the petitioner that the aforesaid decision of Delhi High Court was challenged before the Hon'ble Supreme Court and the Hon'ble Supreme Court has allowed the appeal and thereby the decision rendered by the Division Bench of this Court in the case of Torrent Power AEC Ltd.(supra) is impliedly overruled.

8. If the decision rendered by the Delhi High Court in the case of North Delhi Power Limited(supra), is carefully seen, it is revealed that in the said case, the plaintiff has filed a suit for declaration and permanent injunction. The case of the plaintiff was that he was a consumer of electricity at his residence. It was a domestic connection, notice was received by the said plaintiff under Regulation 49(II) of the DERC Supply Code and the concerned regulation of the electricity company. It is alleged that pursuant to the field inspection, a live connection of the petitioner was found and it was

feeding the area of disconnected connection. The petitioner, therefore, filed the suit before the concerned Special Court. In the course of proceedings, an application under Order VII Rule 10 of CPC was filed by the electricity company stating that the Civil Courts alone which would have jurisdiction to try the suit and not the Special Electricity Court. The said application filed by the electricity company was rejected on the ground that the Special Court has jurisdiction. The said order was challenged by the electricity company before the Delhi High Court. The Delhi High Court has held that jurisdiction of Special Court was not barred. Against that order, SLP was filed before the Hon'ble Supreme Court. The Hon'ble Supreme Court held that the Special Electricity Court acts as a Court of Session and has been set up to try offences that are committed under the Act and by no stretch of imagination can it be said that the civil suit would be within the jurisdiction of the Special Court.

9. From the aforesaid decision rendered by the Hon'ble Supreme Court in the case of North Delhi Power Limited (supra), it is revealed that in the civil suit filed before the Special Court by the concerned consumer, the electricity company has filed application under Order VII Rule 10 of CPC

contending that only Civil Courts will have jurisdiction to try the suit and not the Special Court. When the said application was dismissed, the petition was filed before the High Court. The High Court also held that the jurisdiction of Special Court was not barred. When the matter was carried to the Hon'ble Supreme Court, it was held that the civil suit would not be within the jurisdiction of Special Court. Thus, it appears that the consumer filed civil suit for declaration and permanent injunction before the Special Court. In that context, it was held that the Special Court has no jurisdiction to decide the civil suit. On the contrary, it was the case of the electricity company that the civil suit should be filed before the concerned civil Court. In the present case, the petitioner has prayed for quashing of the supplementary bill issued by the respondent. Thus, this Court is of the humble view that the aforesaid decision would not be applicable to the facts of the present case.

10. In the case of Executive Engineer, Southern Electricity Supply Company of Orissa Limited (supra), the Hon'ble Supreme Court has held in paragraphs 28,29, 30 and 87 as under:

"28. Section 135 of the 2003 Act deals with an offence of theft of electricity and the penalty that can be imposed for such theft.

This squarely falls within the dimensions of criminal jurisprudence and mens rea is one of the relevant factors for finding a case of theft. On the contrary, Section 126 of the 2003 Act does not speak of any criminal intendment and is primarily an action and remedy available under the civil law. It does not have features or elements which are traceable to the criminal concept of mens rea.

29. Thus, it would be clear that the expression "unauthorised use of electricity" under Section 126 of the 2003 Act deals with cases of unauthorized use, even in the absence of intention. These cases would certainly be different from cases where there is dishonest abstraction of electricity by any of the methods enlisted under Section 135 of the 2003 Act. A clear example would be, where a consumer has used excessive load as against the installed load simpliciter and there is violation of the terms and conditions of supply, then, the case would fall under Section 126 of the 2003 Act. On the other hand, where a consumer, by any of the means and methods as specified under Sections 135(a) to 135(e) of the 2003 Act, has abstracted energy with dishonest intention and without authorisation, like providing for a direct connection bypassing the installed meter, the case would fall under Section 135 of the Act.

30. Therefore, there is a clear distinction between the cases that would fall under Section 126 of the 2003 Act on the one hand and Section 135 of the 2003 Act on the other. There is no commonality between them in law. They operate in different and distinct fields. The assessing officer has been vested with the powers to pass provisional and final

order of assessment in cases of unauthorized use of electricity and cases of consumption of electricity beyond contracted loan will squarely fall under such power. The legislative intention is to cover the cases of malpractices and unauthorized use of electricity and then theft which is governed by the provisions of Section 135 of 2003 Act.

87. Having dealt with and answered determinatively the questions framed in the judgment, we consider it necessary to precisely record the conclusions of our judgment which are as follows:-

1. Wherever the consumer commits the breach of the terms of the Agreement, Regulations and the provisions of the Act by consuming electricity in excess of the sanctioned and connected load, such consumer would be `in blame and under liability' within the ambit and scope of Section 126 of the 2003 Act.

2. The expression `unauthorized use of electricity means' as appearing in Section 126 of the 2003 Act is an expression of wider connotation and has to be construed purposively in contrast to contextual interpretation while keeping in mind the object and purpose of the Act. The cases of excess load consumption than the connected load inter alia would fall under Explanation

(b)(iv) to Section 126 of the 2003 Act, besides it being in violation of Regulations 82 and 106 of the Regulations and terms of the Agreement.

3. In view of the    language of Section 127 of
the 2003 Act,        only a final order of
assessment passed    under Section 126(3) is an
order appealable     under Section 127 and a

notice-cum-provisional assessment made under Section 126(2) is not appealable.

4. Thus, the High Court should normally decline to interfere in a final order of assessment passed by the assessing officer in terms of Section 126(3) of the 2003 Act in exercise of its jurisdiction under Article 226 of the Constitution of India.

5. The High Court did not commit any error of jurisdiction in entertaining the writ petition against the order raising a jurisdictional challenge to the notice/provisional assessment order dated 25- 7-2009. However, the High Court transgressed its jurisdictional limitations while travelling into the exclusive domain of the Assessing Officer relating to passing of an order of assessment and determining the factual controversy of the case.

6. The High Court having dealt with the jurisdictional issue, the appropriate course of action would have been to remand the matter to the Assessing Authority by directing the consumer to file his objections, if any, as contemplated under Section 126(3) and require the Authority to pass a final order of assessment as contemplated under Section 126(5) of the 2003 Act in accordance with law. "

11. In the case of Ranchhodbhai Haribhai Sutariya (supra), the Division Bench of this Court has held in paragraphs 35 and 36 as under:

"35. Sec.135 deals with theft of electricity. Thereunder no power has been vested with any

individual to take the administration of criminal justice into his own hands. Sub-Sec. (1) of Sec.135 is a penal provision, which prescribe punishment, as may be imposed, if theft of electricity is detected and proved. The licensee or supplier has been empowered to disconnect the supply of electricity u/Sec.1A. For detection of theft of electricity officers of the licensee or supplier has been empowered u/sub-Sec.(2) to enter, inspect, break open and search any place or premises in which he has reason to believe that electricity has been used or being used unauthorisedly and to search, seize and remove all such devices, instruments, etc., and to examine or seize any books of account or documents, etc. Under sub-Sec.(3) the occupant of the place of search is required to be present during the search and a list of all things so seized in the search be prepared and the occupant's signature is obtained on the list.

36. The officer of the licensee or supplier, whoever may be authorised, has not been empowered to take administration of criminal justice in his hands. For trial of such offence u/Sec.135, the State Government has been empowered to constitute Special Courts u/Sec.153 of the Act. The procedure which is to be adopted by the Special Court has also been prescribed u/Sec.154, which has also been empowered with the power of court of sessions u/Sec.155. Against this decision, appeal and revision is maintainable before High Court u/Sec.156. If the aforesaid provision is read with Rule 12 of the Electricity Rules, 2005, as noticed and quoted in the earlier paragraphs, it will be evident that police is to take cognizance of the offence. The power of investigation is also vested with the police; an officer of the licensee or supplier is merely an informant in the matter of theft of

electricity.

In view of such specific provisions enacted under the law, the allegation as being made by the petitioners that a private party has been allowed to take administration of criminal justice in his hands cannot be accepted. We find no abdication of power by the Legislature in enacting Sec.126 of the Electricity Act, 2003, nor the allegation that u/Sec.135, a private person has been delegated power to administer criminal justice, can be sustained. Consequential notifications, rules issued there under, for the very same reason, cannot be held to be illegal. We uphold Sections 126 and 135 of the Electricity Act, 2003 and the Gujarat Electricity (Manner of Service of Provisional Assessment Order) Rules, 2004 and the Gujarat Electricity (Manner of service of notice, order or document) Rules, 2004 issued by different notifications all dated 5th June 2004. In absence of any merit, all the writ petitions are dismissed, but there shall be no order as to costs. Notice is discharged."

12. Thus, keeping in view the aforesaid decisions rendered by this Court as well as the Hon'ble Supreme Court, if the facts of the present case are carefully examined, this Court is the view that the petitioner has alternative remedy before the Special Court where he can challenge the supplementary bill. However, this Court cannot exercise the powers under Article 226 of the Constitution of India and decide the disputed question of facts. Therefore, this petition is not entertained only on this ground. This Court has not examined the merits of the

case of the petitioner. Thus, as and when the petitioner files proceedings before appropriate Court/forum, the same shall be decided on its own merits.

13. In view of the aforesaid discussion, this petition is dismissed.

(VIPUL M. PANCHOLI, J) SRILATHA