Gujarat High Court
Dynasty Minerals Pvt. Ltd. ... vs Pashim Gujarat Vij Company Ltd on 29 August, 2022
Bench: Nirzar S. Desai
C/SCA/7679/2022 ORDER DATED: 29/08/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7679 of 2022
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DYNASTY MINERALS PVT. LTD. THROUGH AUTHORISED SIGNATORY
KAMLESH BALUBHAI GODHANIYA
Versus
PASHIM GUJARAT VIJ COMPANY LTD.
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Appearance:
NAMAN H KINKHABWALA(8831) for the Petitioner(s) No. 1
MR VIRAL J DAVE(5751) for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 29/08/2022
ORAL ORDER
1. By way of this petition under Article 226 of the
Constitution of India the petitioner has prayed for
following reliefs:
"A) Be pleased to allow this Petition;
B) Be pleased to issue appropriate writ, order or
direction upon the respondent authority and be
pleased to quash and set aside the action on the
part of Respondent authorities in issuing
supplementary bill dated 15.02.2022 under
section 135 of The Electricity Act, 2003 by which
the petitioner has been directed to pay a sum of
Rs.36,29,713.94/- (Thirty Six Lakh Twenty Nine
Thousand Seven Hundred and Thirteen Rupees
and Ninety Four Paisa) along with compounding
charge of Rs.4,32,000/- (Four Lakh Thirty Two
Thousand Rupees Only).
C/SCA/7679/2022 ORDER DATED: 29/08/2022
C) Be pleased to issue appropriate writ, order or
direction upon the respondent authorities and be
pleased to quash and set aside the supplementary
bill as well as the Assessment Sheet dated
15.02.2022 and further be pleased to direct the
respondent to re-assess the supplementary bill in
accordance with law.
D) Be pleased to issue appropriate writ, order or
direction upon the respondent authorities and be
pleased to direct the respondent to decide the
representation of the petitioner dated 31.03.2022
in accordance with law as expeditiously as
possible.
E) By way of interim order be pleased to issue
appropriate directions upon Respondent and
thereby be pleased to direct the respondent
authorities to reconnect the electric connection of
the petitioner having consumer
No.27743003003426, pending admission, final
hearing and final disposal of the present petition;
F) Be pleased to pass such orders as thought fit
in the interest of justice."
2.1 At the outset, learned advocate Mr.Kinkhabwala
for the petitioner states that in similar set of facts, the
coordinate Bench of this Court has allowed the petition
preferred by the applicant and has remanded back the
matter to the competent authority to reassess and
finalise the supplementary bill as before issuance of
supplementary bill, the petitioner was never heard by
C/SCA/7679/2022 ORDER DATED: 29/08/2022
the authority.
2.2 Learned advocate Mr.Kinkhabwala makes
statement that supplementary bill of an amount of
Rs.36,29,713.94 ps [Rupees Thirty Six Twenty Nine
Thousand Seven Hundred Thirteen and Ninety Four
Paisa Only] has been issued to the petitioner and out
of the aforesaid bill, he has already deposited 50% of
sum of the said bill with the respondent authorities.
2.3 Learned advocate Mr.Kinkhabwala relied upon
the order dated 10.08.2022 passed in Special Civil
Application No.3601 of 2022 and submitted that in
view of the paragraphs nos.8 to 12 of the said order,
the present petition also may be disposed of by
remanding back the matter to the competent authority
for reassessment of the bill and the authorities may be
directed to hear the petitioner and thereafter reassess
and finalise the supplementary bill.
3.1 Learned advocate Mr.Viral Dave appearing for
respondent electricity company could not dispute about
the fact that the petitioner has deposited 50% amount
C/SCA/7679/2022 ORDER DATED: 29/08/2022
of supplementary bill i.e. Rs.36,29,713.94 ps [Rupees
Thirty Six Twenty Nine Thousand Seven Hundred
Thirteen and Ninety Four Paisa Only].
3.2 Learned advocate Mr.Dave also could not point
out from the record that the petitioner was heard and
after hearing the petitioner supplementary bill was
raised by the respondent electricity company.
3.3 Learned advocate Mr.Dave also could not dispute
about the facts of the case relied upon by the
petitioner i.e. the order dated 10.08.2022 in the case
of Ramjibhai Dayabhai Pansara vs. Paschim Gujarat Vij
Company Ltd. passed in Special Civil Application
No.3601 of 2022 are different from the facts of the
present case.
3.4 Learned advocate Mr.Dave also could not point
out that the aforesaid order has been carried in appeal
or the same has been stayed.
4.1 In view of the aforesaid undisputed position as
also considering the fact that coordinate Bench of this
C/SCA/7679/2022 ORDER DATED: 29/08/2022
Court, while passing the order dated 10.08.2022 in the
case of Ramjibhai Dayabhai Pansara vs. Paschim
Gujarat Vij Company Ltd. (supra), in paras:8 to 12,
observed as under:
"8. The facts, as narrated hereinabove, are not
in dispute that the petitioner has been issued a
supplementary bill under the provisions of
Section 135 of the Act, for the reason that he
has committed theft. The Division Bench of this
Court in the judgment dated 26.07.2018 passed
in Letters Patent Appeal No.616 of 2018, while
examining the analogous issue and the provisions
of Sections 126 and 135 of the Act, has held
thus:-
"[23] As much as Section 126 of the
Electricity Act of 2003 deals with
malpractice other than the cases falling in
the category under Section 135, procedure
is prescribed under Section 126 of the
Electricity Act of 2003. Section 135 of the
Electricity Act deals with offences and
penalties, as such, it has not indicated the
manner and method of assessment of civil
liability in cases of theft of energy.
Electricity Supply Code is notified by the
statutory functionary under Section 50 of
the Electricity Act of 2003. It is expected
that the respondent authorities to follow
such Code before making the assessment. It
is true that there is no express provision for
granting opportunity, but from a reading of
C/SCA/7679/2022 ORDER DATED: 29/08/2022
Regulation 7.6.5 issued by the Gujarat
Electricity Regulatory Commission, it is
clear that at the stage of assessment of civil
liability, notice is required to be given for
the consumer to give opportunity to
produce evidence by the consumer to show
cause why liability is not fastened for a
period of 12 months preceding date of
detection of theft. As much as, said
Regulation empowers the assessment to be
made for a period of 12 months preceding
the date of detection of theft or exact
period of theft whichever is less. In the
Regulation 7.6.5(a), it is specifically
prescribed that exact period can be arrived
at by following guidelines or any other
evidence which may be provided by the
consumer. When the consumer is given
opportunity to produce evidence to show
that theft period cannot be extended to 12
months, he can produce such evidence
which is with him to plead for lesser
period. Such production of evidence will
arise only if the consumer is given
opportunity but not otherwise.
[24] From a reading of Regulation 7.6.5 of
the Regulations of 2005, it is clear that it is
inbuilt, in the regulation itself to provide
opportunity to the consumer before
supplementary bill is raised. In case of theft
of energy, respondent authorities cannot
unilaterally assess loss of energy for a
C/SCA/7679/2022 ORDER DATED: 29/08/2022
maximum period of 12 months in all cases
without giving any opportunity. Further it is
clear that civil liability determined is subject
to orders of the Special Court under Section
154(5) of the Electricity Act. If any amount
is deposited by the consumer which is
excess of civil liability to be determined by
the Special Court, such amount is required
to be refunded to the consumer under
Section 154(6) of the Electricity Act of 2003.
[25] In view of aforesaid provision of
Regulation 7.6.5 of the Regulation of 2005
which is issued in exercise of section 50 of
the Electricity Act of 2003 read with Section
154(5) and 154(6) of the Electricity Act of
2003, it makes clear that in cases of theft
of energy, initial assessment power is
conferred on the authorities subject to
provision under Section 154(5) and 154(6) of
the Electricity Act of 2003. Initial
assessment is to be made by the authorities
by following Regulation 7.6.5 of the
Regulations of 2005 notified by the Gujarat
Electricity Regulatory Commission. In that
view of the matter, we are of the view that
aforesaid two judgments relied by the
learned Counsel for the respondent would
not render any assistance in support of their
plea that in the cases of theft of energy, for
assessing civil liability, no opportunity need
be given to the consumer. Said contention
of learned Counsel for the respondent is
C/SCA/7679/2022 ORDER DATED: 29/08/2022
required to be rejected and accordingly, it
is rejected.
[26] As much as, we are of the view that
before issuing supplementary bill, no
procedure is followed in this case as
referred above, the appeal is required to be
allowed by setting aside the supplementary
bill for an amount of Rs.17,18,384.43 ps..
Accordingly, supplementary bill for an
amount of Rs.17,18,384.43 ps. (Annexure --
D in Special Civil Application No.10600 of
2008) is hereby quashed and set aside and
the matter is remanded to competent
authority to take fresh decision by giving
opportunity to the appellant as
contemplated under Regulation 7.6.5 of the
Regulations of 2005.
9. The Division, has set aside the supplementary
bill on the ground of hearing and the matter was
remanded to the competent authority to take a
fresh decision by giving an opportunity to the
concerned appellants, as contemplated under
regulations 7.6.5 of the Regulations of 2015.
10. In the case of West Bengal State Electricity
Distribution Company Ltd. vs. Orien Metal Pvt.
Ltd., [2019 SCC OnLine SC 1077] the Supreme
Court also, while examining the analogous issue,
has observed thus:-
"16. A perusal of the aforesaid provisions
C/SCA/7679/2022 ORDER DATED: 29/08/2022
and on giving a conjoint reading of the
same, it appears to us that after an
inspection of any place or any premises of
any consumer, when Assessing Officer
comes to a conclusion that the consumer is
indulging in unauthorized use of electricity,
the provisional assessment to the best of his
judgment is to be made in accordance with
Section 126(1) of the Act and such
provisional assessment shall be served upon
the person in occupation of the premises.
After giving an opportunity to file
objections to the provisional assessment, the
Assessing Officer is empowered to pass a
final order of the assessment assessing the
loss of energy, on account of unauthorized
use of energy. The unauthorized use of
electricity is defined under Section 126(6)(b)
of the Act. It is clear from the aforesaid
definition that unauthorized use of
electricity means, the usage of electricity by
any artificial means or by a means not
authorized by the concerned person or
authority or licensee; or through a
tampered meter; or for the purpose other
than for which the usage of electricity was
authorized; or for the premises or areas
other than those for which the supply of
electricity was authorized.
17. It is clear from the reading of Section
126 (6)(b)(iii) of the Act that instances of
use of energy through a tampered meter is
C/SCA/7679/2022 ORDER DATED: 29/08/2022
included in the definition of unauthorized
use of electricity. If that is so, there is no
reason, for excluding the power of the
authorities for making assessment under
Section 126(1) of the Act to assess the loss
of energy, where electricity is used through
a tampered meter. All instances of
unauthorized use of energy may not amount
to theft of electricity within the meaning of
Section 135 of the Act, but at the same
time, the theft of electricity which is
covered by Section 135 of the Act, will fall
within the definition of unauthorized use of
electricity. As per Section 135(1A) of the
Act, without prejudice to the other
provisions of the Act, the licensee or
supplier, as the case may be, upon
detection of theft of electricity, is
empowered to disconnect the power supply
immediately. Further, as per the third
proviso to Section 135(1A) of the Act, the
licensee or supplier, as the case may be, on
deposit or payment of assessed amount or
electricity charges, without prejudice to the
obligation to lodge a complaint, can restore
the power supply electricity within
fortyeight(48) hours of deposit /payment of
such amount. Thus, it is clear that the
authorities under the Act are empowered to
make a provisional and final assessment by
invoking power under Section 126(1) of the
Act, even in cases where electricity is
unauthorisedly used by way of theft. When
C/SCA/7679/2022 ORDER DATED: 29/08/2022
a consumer deposits the assessed amount,
the licensee or the supplier has to restore
the power supply. The assessed amount
referred to in the aforesaid proviso, relates
to assessment which is contemplated under
Section 126(1) of the Act only. There is
apparent distinction between Section 126
and Section 135 of the Act. Section 126
forms part of the scheme which authorizes
electricity supplier to ascertain 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 (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 amount
so 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
C/SCA/7679/2022 ORDER DATED: 29/08/2022
empowered to determine civil liability
under Section 154(5) of the Act, in cases
where a complaint is lodged, it cannot be
said that there is no power conferred on
authorities to make provisional
assessment/final assessment under Section
126 of the Act.
11. The Apex Court has held that ultimately,
merely because the Special Court is empowered
to determine civil liability under Section 154(5)
of the Act in cases 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. The Supreme Court has also observed
that for the unauthorized used of electricity, as
defined in Section 126(6)(b) of the Act, the
Electricity Company has to initially arrive at a
provisional assessment to the best of his
judgment and thereafter an opportunity of filing
objection to such a provisional assessment is
required to be given. The Supreme Court has
encompassed the theft of electricity, as envisaged
under the provisions of Section 135 of the Act,
within the meaning of unauthorized use of
electricity.
12. Thus, in the light of the aforesaid
observations of the Division Bench as well as the
Supreme Court, the supplementary bill dated
08.12.2021 is hereby quashed and set aside. The
matter is remanded to the competent authority to
C/SCA/7679/2022 ORDER DATED: 29/08/2022
reassess and finalize the supplementary bill, after
affording an opportunity of hearing to the
petitioner. The entire exercise shall be undertaken
and final supplementary bill shall be issued
within a period of one month from the date of
receipt of writ of this order. The petitioner shall
fully cooperate with the competent authority. The
amount, which is deposited by the petitioner
pursuant to the interim order dated 22.02.2022,
shall be subject to the final orders passed by the
respondent authority."
4.2 Considering the fact that in the instant case also
the supplementary bill has been issued by the
respondent company to the petitioner without affording
any opportunity of hearing and thereby has violated
principles of natural justice and also considering the
fact that petitioner has already deposited 50% of the
supplementary bill amount to the respondent electricity
company, as also taking into consideration the ratio
laid down by the Division Bench vide judgment dated
26.07.2018 passed in Letters Patent Appeal No.616 of
2018 in respect of provisions of Sections 126 and 135
of the Electricity Act as also taking into consideration
the ratio of decision of the Hon'ble Supreme Court in
the case of West Bengal State Electricity Distribution
C/SCA/7679/2022 ORDER DATED: 29/08/2022
Company Ltd. vs. Orien Metal Pvt. Ltd. reported in
(2019) SCC Online SC 1077, the interest of justice
would be served if the supplementary bill dated
15.02.2022 is quashed and set aside and competent
authority of the respondent company is directed to
hear the present petitioner and then decide his case by
following due procedures of Law and thereafter to
reassess and finalise the supplementary bill.
5. In view of above, present petition is disposed of
with following directions:
5.1 the impugned supplementary bill dated 15.02.2022
is hereby quashed and set aside;
5.2 respondent authority is directed to issue fresh
Show Cause Notice to the present petitioner in respect
of violation of Section 135 of the Electricity Act and
thereafter is directed to hear the petitioner and
thereafter only pass necessary orders;
5.3 50% amount of supplementary bill which the
petitioner has already deposited shall be subject to the
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final outcome of the final orders that the Respondent
Company may pass;
5.4 it is clarified that this Court has not gone into
merits of the matter and the aforesaid order is passed
and directions are issued only for the reasons that
principles of natural justice were not served by the
respondent company while passing the impugned order
dated 15.02.2022
6. With the above observations and directions, the
present petition is disposed of. Notice is discharged.
Direct service is permitted.
(NIRZAR S. DESAI,J)
MISHRA AMIT V.
