Kamlaben Manohar Bishnoi vs Dakshin Gujarat Vij Company Ltd
2023 Latest Caselaw 467 Guj

     C/SCA/13616/2021                                    ORDER DATED: 16/01/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 13616 of 2021

==========================================================
                       KAMLABEN MANOHAR BISHNOI
                                 Versus
                    DAKSHIN GUJARAT VIJ COMPANY LTD.
==========================================================
Appearance:
MR GAURAV D NANAVATI(8651) for the Petitioner(s) No. 1
MS KHYATI A CHUGH(10132) for the Petitioner(s) No. 1
MR. PARTH H BHATT(6381) for the Petitioner(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 2
MR DIPAK R DAVE(1232) for the Respondent(s) No. 1
==========================================================

 CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                                Date : 16/01/2023

                                 ORAL ORDER

1. Heard learned counsel for the respective parties.

2. By way of this petition under Article 226 of the

Constitution of India, the petitioner has prayed to quash

and set aside the notice dated 13.08.2021 along with

supplementary bills amounting to Rs.1,18,83,571.70

issued by respondent no. 2 under the provisions of

Electricity Act, 2003.

3. It is the case of the petitioner that she is the

C/SCA/13616/2021 ORDER DATED: 16/01/2023

proprietor of M/s. Chetak Industries which is engaged in

manufacturing of PVC garden and suction pipes and that

on 07.08.2021, the officer of respondent no. 1 visited the

premises of the petitioner to inspect the meter and

prepared a checking sheet stating that the meter was

running slow. Thereafter a joint laboratory testing was

done and on 13.08.2021, the respondent authorities

disconnected the power supply of the petitioner's

company and a checking sheet was prepared again

wherein in the first part it is stated that the meter was

running slow based on which the impugned

supplementary bill was issued under the provisions of

Section 135 of the Electricity Act.

4. Ms. Khyati Chugh, learned advocate appearing for

the petitioner would submit that when the forensic

inspection of the meter was done, it was clearly

concluded that there is no tampering with the device

meter in any manner. She submitted that the respondent

authorities have failed to follow the provisions of the

C/SCA/13616/2021 ORDER DATED: 16/01/2023

Electricity Act and therefore the impugned action of the

respondent authorities is bad. She has relied on a

decision of this Court rendered in Special Civil

Application No. 20000 of 2018 on 26.02.2021 in support

of her submissions.

5. This court in Special Civil Application No. 20000 of

2018 has observed as under:

"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

C/SCA/13616/2021 ORDER DATED: 16/01/2023

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

C/SCA/13616/2021 ORDER DATED: 16/01/2023

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,

C/SCA/13616/2021 ORDER DATED: 16/01/2023

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

C/SCA/13616/2021 ORDER DATED: 16/01/2023

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.

C/SCA/13616/2021 ORDER DATED: 16/01/2023

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

C/SCA/13616/2021 ORDER DATED: 16/01/2023

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

C/SCA/13616/2021 ORDER DATED: 16/01/2023

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

C/SCA/13616/2021 ORDER DATED: 16/01/2023

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

C/SCA/13616/2021 ORDER DATED: 16/01/2023

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

C/SCA/13616/2021 ORDER DATED: 16/01/2023

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,

C/SCA/13616/2021 ORDER DATED: 16/01/2023

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

C/SCA/13616/2021 ORDER DATED: 16/01/2023

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 finalorder 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

C/SCA/13616/2021 ORDER DATED: 16/01/2023

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

C/SCA/13616/2021 ORDER DATED: 16/01/2023

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

C/SCA/13616/2021 ORDER DATED: 16/01/2023

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,

C/SCA/13616/2021 ORDER DATED: 16/01/2023

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

C/SCA/13616/2021 ORDER DATED: 16/01/2023

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."

6. In view of the above, considering the provisions of

the Act and the decision cited hereinabove, particularly

considering the fact that this court has already held that

petitioner has alternative remedy before the Special

Court where he can challenge the supplementary bill, this

petition is not entertained 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

C/SCA/13616/2021 ORDER DATED: 16/01/2023

appropriate Court/forum, the same shall be decided on its

own merits. Petition is accordingly dismissed. Notice is

discharged.

(BIREN VAISHNAV, J) DIVYA