Gunatit Rmc Pvt. Ltd vs Paschim Gujarat Vij Company ...
2022 Latest Caselaw 5782 Guj

     C/SCA/16735/2021                          ORDER DATED: 30/06/2022



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 16735 of 2021
==========================================================
                         GUNATIT RMC PVT. LTD.
                                Versus
                  PASCHIM GUJARAT VIJ COMPANY LIMITED
==========================================================
Appearance:
MR HARSH K RAVAL, ADVOCATE for
MR DIPEN K DAVE(3296) for the Petitioner(s) No. 1
MR RITURAJ M MEENA(3224) for the Respondent(s) No. 1
==========================================================
 CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                  Date : 30/06/2022
                   ORAL ORDER

1. RULE. Learned advocate Mr.Meena, waives service of notice of Rule on behalf of the respondent.

2. In the present writ petition, the petitioner has assailed the supplementary bill dated 15.09.2021, issued by the respondent - PGVCL.

3. At the outset, learned advocate Mr.Harsh K. Raval, appearing learned advocate Mr.Dave, for the petitioner has submitted that the supplementary bill is required to be quashed and set aside, since the same is passed without affording any opportunity of hearing to the petitioner. He has placed reliance on the judgment dated 26.07.2018 passed in Letters Patent Appeal No.616 of 2018. Reliance is also placed by him on the judgment of Supreme Court of India in the case of West Bengal State Electricity Distribution Company Ltd. Vs. Orion mental Pvt. Ltd., [2019 SCC OnLine SC 1077]. It is submitted by him that Section 126 read with Rules 7.6 and 7.7 of the Regulations of 2015 provides for an opportunity of hearing as far as assessment of Civil Liability is concerned. Thus, he has submitted that the supplementary bill (at Annexure-A) dated 15.09.2021, may be set aside.

      C/SCA/16735/2021                                    ORDER DATED: 30/06/2022




4.     In    response   to   the     aforesaid         submissions,           learned
advocate        Mr.Meena,    appearing           for   the   respondent              has

submitted that assuming that the supplementary bill is set aside on the ground of hearing, the same would be futile exercise as he has to again approach the Appellate Authority. Learned advocate Mr.Meena, has submitted that there is an alternative remedy available to the petitioner under the provisions of Section 153 of the Indian Electricity Act, 2003 (for short, "the Act"). In support of his submissions, reliance is placed on the judgment dated 26.02.2021 passed in Special Civil Application No.20000 of 2018. Thus, he has submitted that this petition may not be entertained.

5. I have heard the learned advocates for respective parties. I have also perused the relevant documents.

6. 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 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

C/SCA/16735/2021 ORDER DATED: 30/06/2022

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 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 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.

7. 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 2005.

C/SCA/16735/2021 ORDER DATED: 30/06/2022

8. In the case of Orien Metal Pvt. Ltd. (supra), the Supreme Court also, while examining the analogous issue, has observed thus:-

"16. A perusal of the aforesaid provisions 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 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 forty- eight(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 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

C/SCA/16735/2021 ORDER DATED: 30/06/2022

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 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.

9. The Apex Court has held that ultimately, merely because the Special Court is empowered to determined 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, and also reading the proviso of Section 135(1) of the Act, the Electricity Company has to initially arrived at a provisional assessment to the best of his judgment and thereafter giving an opportunity of filing objection such a provisional assessment, the Assessing officer is empowered to pass final order of the assessment assessing the loss of energy on account of unauthorized used of energy. 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 used of electricity.

10. Thus, in the light of the aforesaid observations of the Division Bench as well as the Supreme Court, the supplementary bill dated 15.01.2021 is hereby quashed and set aside. The matter is remanded to the competent authority to 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

C/SCA/16735/2021 ORDER DATED: 30/06/2022

writ of this order. The petitioner shall fully cooperate with the competent authority.

11. The writ petition is disposed of accordingly. Rule is made absolute to the aforesaid extent.

(A. S. SUPEHIA, J) MAHESH BHATI/13