Punjab-Haryana High Court
Pb State Power Corp Ltd Patiala & ... vs Sub Divisional Magistrate Cum ... on 9 August, 2023
Neutral Citation No:=2023:PHHC:105795
2023:PHHC:105795
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
203
CWP-21355-2015
Date of decision: 09.08.2023
PUNJAB STATE POWER CORPORATION LIMITED, PATIALA
AND OTHERS
......Petitioners
VERSUS
SUB DIVISIONAL MAGISTRATE-CUM-APPELLATE AUTHORITY,
BATALA AND ANOTHER
.......Respondents
CORAM : HON'BLE MR. JUSTICE VINOD S. BHARDWAJ
*****
Present: - Ms. Promila Nain, Advocate
for the petitioners.
Mr. Gagandeep Singh Sirphiki, Advocate
for respondent No.2.
*****
VINOD S. BHARDWAJ, J. (Oral)
Challenge in the present petition is to the order dated
27.04.2015 (Annexure P-1) passed by the Sub Divisional Magistrate,
Appellate Authority, Batala whereby the appeal of the respondent has been
accepted and it has been held that the penalty of Rs. 1,37,356/- levied by the
petitioner-PSPCL is not appropriate and the demand vide letter No. 84 dated
20.01.2015 was without any valid basis.
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2. It has been submitted by the petitioner that an electricity
connection bearing Account No. G-18HF750847A was running in the name
of one Harvinder Singh who was consumer of the petitioner-department and
sole proprietor of the filling station. The said Harvinder Singh passed away
on 21.01.2015, however, no intimation was given to the petitioner-PSPCL
about the date of his death. The electricity connection was checked by the
Sub Divisional Officer alongwith other staff members vide LCR No.
1048/22552 dated 09.09.2013 and it was detected at the spot that both the
ME Lab seals of the meter were broken alongwith both the edges/clamps of
the meter. The meter was checked at heater load and it was found to be
running slow by 75%. Since it was a case of theft of electricity, a report was
prepared by the officials of the petitioner. The Manager of the Filling Station
was present during the inspection, however, he refused to sign the said
report despite being asked.
3. On the next day, the connection was changed vide MCO No.
075/29466 dated 09.09.2013 and the disconnected meter was packed
immediately in a cardboard box at the spot. The consumer was asked to sign
the box and the documents, however, he refused to do so and requested that
meter be checked in the ME Lab. Memo No. 1720 dated 23.04.2014,
Memo No. 1783 dated 16.12.2014, Memo No. 1837 dated 30.05.2014,
Memo No. 1996 dated 23.07.2014 and Memo No. 8 dated 02.01.2015 were
sent to the Consumer and he was to be present in the ME Lab at the time of
inspection of the meter, however, he chose not to appear despite receipt of
the said notices.
4. Having been left with no alternative, the meter was produced in
the ME Lab after preparing the challan, by the Junior Engineer Harbhajan
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Singh on 16.01.2015, where it was inspected by a Committee including
SDO, ME Laboratory Engineer, Additional SE City Division and other
officials. During the external inspection of the meter it was detected that the
seals of meter and side screw was found missing. The ultrasonic welding of
meter was found to be broken. During the internal inspection of the meter, it
was found that the wire leading from CT to Circuit was intercepted and the
meter was found permanently slowed by the consumer by fiddling with the
same and hindering the meter from recording the actual reading. It was thus
concluded to be a case of theft of electricity under Section 135 of the
Electricity Act, 2003. After inspection, the meter was repacked by the ME
Lab and handed over to Junior Engineer, Harbhajan Singh. A penalty notice
bearing Memo No. 84 dated 19.01.2015 for a sum of Rs. 1,37,356/- was
issued to the consumer. However, the same was not paid whereupon another
notice vide Memo No. 84 dated 19.01.2015 was sent to the SHO Anti Power
Theft, Police Station Verka for registration of the FIR for commission of
theft of electricity and Case FIR No. 131 dated 13.02.2015 under Section
135 of the Electricity Act, 2003 was registered against the respondent-
consumer. The said proceedings are stated to be still pending. It is informed
that the consumer died in the meanwhile, however, the amount as assessed
under Section 135 (1A) of the Electricity Act, 2003 has not yet been
deposited.
5. The respondent No.2 preferred an appeal before the Sub
Divisional Magistrate, Batala against the above assessment to which a reply
was filed by the petitioners on 20.04.2015 raising various objections
including maintainability of the appeal before the said Appellate Authority.
However, notwithstanding the objections taken by the petitioner-PSPCL and
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ignoring the meter investigation report dated 16.01.2015 as well as the
notices issued to the respondent No.2, the appeal was allowed by the
Appellate Authority on the ground that it was necessary for the appellant to
be present at the time of inspection by the Laboratory and that effective
opportunity had not been granted to the respondent. The fine of Rs.
1,37,356/- imposed on the respondent was held to be not legal and the letter
No.84 dated 19.01.2015 was held to be unenforceable. The petitioner-
PSPCL was directed to restore the electricity connection of the respondent
immediately. Aggrieved thereof, the present petition had been filed.
6. Reply on behalf of the contesting respondent No.2 had been
filed wherein it was averred that the metering equipment was installed
outside the premises and at a distance of more than 1100 ft. from the same.
In case the metering equipment is installed outside the premises of a
consumer, Clause 56 of the Electricity Supply Instructions Manual protects
the consumer from any liability on account of damage caused to the meter.
Clause 56 of the Electricity Supply Instructions Manual is extracted as
under:-
"56. CONSUMER'S RESPONSIBILTY FOR LOSS OR
DAMAGE OF METER:
The consumer will be responsible for any loss or damage
to the meter installed in his premises whether caused
maliciously or through culpable negligence or default on
the part of the consumer or any of its employees, and
shall be responsible for paying the cost of the meter
without prejudice to any prosecution/fine under Section
138(d) of the Act or any statutory modifications thereof.
However in case where the meter/metering equipment is
installed outside the premises of a consumer, the
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consumer will not be responsible for the protection of the
meter from the theft or damage. Consumer shall be
responsible for safety of real time display units if
installed inside the consumer premises."
7. It was also averred that the memo was wrongly issued and that
there was no theft of electricity committed by the respondent and that false
report was prepared against him due to factionalism in the village .
8. Counsel for the petitioner has argued that case FIR No. 131
dated 13.02.2015 had been registered against the consumer at Police Station
Verka. The petitioner preferred an appeal before the Sub Divisional
Magistrate, exercising the powers of Appellate Authority under Section 127
of the Electricity Act, 2003. The said appellate powers have been conferred
upon the authority only in case of an assessment under Section 126 of the
Electricity Act, 2003. The demand made in the present case being one under
Section 135 (1A) of the Electricity Act, 2003, the appellate remedy was not
prescribed before the Appellate Authority notified under Section 127 of the
Electricity Act, 2003. Hence, the exercise of jurisdiction, being without any
powers, vitiates the award/order. She further contends that the power of
determination of civil liabilities is on the Special Court and that the challan
already having been filed, final assessment is required to be determined by
the said Special Court in exercise of the powers under Section 154 (5) of the
Electricity Act, 2003 . She contends that the demand in a case of theft of
energy in terms of Section 135 (1A) is technically not an assessment of a
civil liability and is rather in the nature of a demand for restoration of the
electricity supply. The mandate against the distribution licensee, in the event
of the amount being deposited, is to restore the electricity supply to the
premises within a period of 48 hours of such deposit having been made.
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9. Per contra, counsel for the respondent No.2 has vehemently
argued that the consumer cannot be left remediless and that he had
specifically preferred an appeal before the Sub Divisional Magistrate-cum-
Appellate Authority and the demand was found to be unjustified. Reiteration
of the averments noticed above was made and reliance was placed on Clause
56 of the Electricity Supply Instructions Manual to contend that the
electricity meter having been installed outside the premises, hence, the
petitioner cannot be held liable for the damage caused to it. Reliance was
also placed on the judgment of single Bench of this Court in the matter of
"Punjab State Power Corporation Limited versus Ms/ Akal Foods Pvt. Ltd.
and another" bearing CWP No. 389 of 2016 decided on 12.01.2017. While
referring to the above said judgment, it is contended that the said case was
found to be a case of theft of energy and a provisional order of assessment
under Section 135 of the Electricity Act, 2003 was issued whereupon the
demand was raised. A compounding fee under Section 152 (2) of the Act
was also required to be deposited. An appeal was thereafter filed by the
consumer therein against the final order of assessment before the Sub
Divisional Magistrate-cum-Additional Deputy Commissioner, Sangrur
which was accepted vide order dated 15.06.2015. The writ petition filed
against the said order of the Appellate Authority was dismissed by this Court
and the order of the Appellate Authority was affirmed. Consequently, the
remedy cannot be said to be beyond the statue. It is submitted that the
aforesaid judgment was subject matter of challenge in LPA No. 951 of 2017
and the judgment of the Hon'ble Single Judge was affirmed by the Division
Bench vide its judgment dated 10.08.2017 in LPA No. 951 of 2017
reported as 2017 (4) Law Herald 2916.
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10. He further refers to Section 135 (1A) second proviso to contend
that the Officer of the licensee or the supplier was under an obligation to
submit a complaint in writing relating to commission of such offence in
Police Station having jurisdiction within a 24 hours from the time of such
disconnect and that the incident in question having taken place on
09.09.2013, however, the FIR in question was got registered only on
13.02.2015. Hence, the proceedings are vitiated.
11. While rebutting the aforesaid arguments, counsel for the
petitioner has contended that the registration of the FIR was delayed on
account of the fact that the meter in question had to be tested with the ME
Lab. Various notices were issued to the respondent No.2, however, he chose
not to appear and that it was only thereafter that the inspection was
conducted. Upon receipt of the report from the ME Lab, the intimation for
registration of the FIR was sent promptly on 19.01.2015 and the FIR was
thereafter registered by the Police on 13.02.2015. The delay was thus not
attributable to the petitioner Corporation. She further contends that the
argument is even otherwise fallacious inasmuch as the question of validity
of registration of the FIR is distinct and separate from the question of
jurisdiction and authority conferred upon the Appellate Authority and both
of them have to be examined in an independent domain. Assuming for the
sake of the arguments and without conceding to the same, even if the said
contention is to be accepted, the same itself would not confer any authority
or power on the Appellate Authority to pass orders in appeals in cases
relating to Section 135 of the Electricity Act, 2003. She further contends that
insofar as reference to the Single Bench Judgment in the matter of "Punjab
State Power Corporation Limited versus Ms/ Akal Foods Pvt. Ltd. and
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another" reported as AIR 2017 (Punjab) 82 as upheld by the Division
Bench in LPA No. 951 of 2017 (supra) is concerned, the same is not
applicable to the facts of the present case, since the Division Bench had
specifically recorded the finding that it was a case of unauthorized of use of
electricity and that Section 135 of the Electricity Act had been wrongly
mentioned therein. Since, the finding recorded by the Division Bench, was
that the proceedings had been initiated under Section 126 of the Electricity
Act, 2003, and mentioning of Section 135 in the said order of Assessment
was an irregularity, hence, the Sub Divisional Magistrate would be entitled
to hear the appeal under Section 127 of the Electricity Act, 2003.
12. I have heard learned counsel appearing on behalf of the
respective parties and have gone through the documents appended alongwith
the present petition and have also perused the judgments relied upon by the
counsel for the respondent No.2 with their able assistance.
13. For the facility of reference, it would be appropriate to make a
reference to provisions of Section 126, 127, 135, 152 and 154 of the
Electricity Act, 2003. The same are extracted as under:
Section 126: (Assessment): --- (1) If on an inspection of
any place or premises or after inspection of the
equipments, gadgets, machines, devices found connected
or used, or after inspection of records maintained by any
person, the assessing officer comes to the conclusion that
such person is indulging in unauthorized use of
electricity, he shall provisionally assess to the best of his
judgement the electricity charges payable by such person
or by any other person benefited by such use.
(2) The order of provisional assessment shall be served
upon the person in occupation or possession or in charge
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of the place or premises in such manner as may be
prescribed.
(3) The person, on whom an order has been served under
sub- section (2) shall be entitled to file objections, if any,
against the provisional assessment before the assessing
officer, who shall, after affording a reasonable
opportunity of hearing to such person, pass a final order
of assessment within thirty days from the date of service
of such order of provisional assessment of the electricity
charges payable by such person.
(4) Any person served with the order of provisional
assessment, may, accept such assessment and deposit the
assessed amount with the licensee within seven days of
service of such provisional assessment order upon him:
(5) If the assessing officer reaches to the conclusion that
unauthorised use of electricity has taken place, the
assessment shall be made for the entire period during
which such unauthorized use of electricity has taken
place and if, however, the period during which such
unauthorised use of electricity has taken place cannot be
ascertained, such period shall be limited to a period of
twelve months immediately preceding the date of
inspection.
(6) The assessment under this section shall be made at a
rate equal to 1[twice] the tariff rates applicable for the
relevant category of services specified in sub-section (5).
Explanation.- For the purposes of this section,-
(a) "assessing officer" means an officer of a State
Government or Board or licensee, as the case may be,
designated as such by the State Government;
(b) "unauthorised use of electricity" means the usage of
electricity -
(i) by any artificial means; or
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(ii) by a means not authorised by the concerned person or
authority or licensee; or
(iii) through a tampered meter; or
(iv) for the purpose other than for which the usage of
electricity was authorised; or
(v) for the premises or areas other than those for which
the supply of electricity was authorized."
Section 127. (Appeal to Appellate Authority): ---
(1) Any person aggrieved by the final order made under
section 126 may, within thirty days of the said order,
prefer an appeal in such form, verified in such manner
and be accompanied by such fee as may be specified by
the State Commission, to an appellate authority as may
be prescribed.
(2) No appeal against an order of assessment under sub-
section (1) shall be entertained unless an amount equal to
3[half of the assessed amount] is deposited in cash or by
way of bank draft with the licensee and documentary
evidence of such deposit has been enclosed along with the
appeal.
(3) The appellate authority referred to in sub-section (1)
shall dispose of the appeal after hearing the parties and
pass appropriate order and send copy of the order to the
assessing officer and the appellant.
(4) The order of the appellate authority referred to in
sub-section (1) passed under sub-section (3) shall be
final.
(5) No appeal shall lie to the appellate authority referred
to in sub-section (1) against the final order made with the
consent of the parties.
(6) When a person defaults in making payment of
assessed amount, he, in addition to the assessed amount
shall be liable to pay, on the expiry of thirty days from the
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date of order of assessment, an amount of interest at the
rate of sixteen per cent, per annum compounded every six
months.
Xxxx xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx xxxx
Section 135. (Theft of Electricity): --- 1[(1) Whoever,
dishonestly, --
(a) taps, makes or causes to be made any connection with
overhead, underground or under water lines or cables, or
service wires, or service facilities of a licensee or
supplier as the case may be; or
(b) tampers a meter, installs or uses a tampered meter,
current reversing transformer, loop connection or any
other device or method which interferes with accurate or
proper registration, calibration or metering of electric
current or otherwise results in a manner whereby
electricity is stolen or wasted; or
(c) damages or destroys an electric meter, apparatus,
equipment, or wire or causes or allows any of them to be
so damaged or destroyed as to interfere with the proper
or accurate metering of electricity,
(d) uses electricity through a tampered meter; or
(e) uses electricity for the purpose other than for which
the usage of electricity was authorised,
so as to abstract or consume or use electricity shall be
punishable with imprisonment for a term which may
extend to three years or with fine or with both:
Provided that in a case where the load abstracted,
consumed, or used or attempted abstraction or attempted
consumption or attempted use -
(i) does not exceed 10 kilowatt, the fine imposed on
first conviction shall not be less than three times the
financial gain on account of such theft of electricity and
in the event of second or subsequent conviction the fine
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imposed shall not be less than six times the financial gain
on account of such theft of electricity;
(ii) exceeds 10 kilowatt, the fine imposed on first
conviction shall not be less than three times the financial
gain on account of such theft of electricity and in the
event of second or subsequent conviction, the sentence
shall be imprisonment for a term not less than six months,
but which may extend to five years and with fine not less
than six times the financial gain on account of such theft
of electricity:
Provided further that in the event of second and
subsequent conviction of a person where the load
abstracted, consumed, or used or attempted abstraction
or attempted consumption or attempted use exceeds 10
kilowatt, such person shall also be debarred from getting
any supply of electricity for a period which shall not be
less than three months but may extend to two years and
shall also be debarred from getting supply of electricity
for that period from any other source or generating
station:
Provided also that if it is proved that any artificial
means or means not authorized by the Board or licensee
or supplier, as the case may be, exist for the abstraction,
consumption or use of electricity by the consumer, it shall
be presumed, until the contrary is proved, that any
abstraction, consumption or use of electricity has been
dishonestly caused by such consumer.
(1A) Without prejudice to the provisions of this Act,
the licensee or supplier, as the case may be, may, upon
detection of such theft of electricity, immediately
disconnect the supply of electricity:
Provided that only such officer of the licensee or
supplier, as authorized for the purpose by the
Appropriate Commission or any other officer of the
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licensee or supplier, as the case may be, of the rank
higher than the rank so authorised shall disconnect the
supply line of electricity:
Provided further that such officer of the licensee or
supplier, as the case may be, shall lodge a complaint in
writing relating to the commission of such offence in
police station having jurisdiction within twenty four
hours from the time of such disconnection:
Provided also that the licensee or supplier, as the
case may be, on deposit or payment of the assessed
amount or electricity charges in accordance with the
provisions of this Act, shall, without prejudice to the
obligation to lodge the complaint as referred to in the
second proviso to this clause, restore the supply line of
electricity within forty-eight hours of such deposit or
payment.
(2) Any officer of the licensee or supplier as the case may
be,] authorized in this behalf by the State Government
may -
(a) enter, inspect, break open and search any
place or premises in which he has reason to believe
that electricity 2[has been or is being,] used
unauthorisedly;
(b) search, seize and remove all such devices,
instruments, wires and any other facilitator or
article which has been, or is being, used for
unauthorized use of electricity;
(c) examine or seize any books of account or
documents which in his opinion shall be useful for
or relevant to, any proceedings in respect of the
offence under sub-section (1) and allow the person
from whose custody such books of account or
documents are seized to make copies thereof or
take extracts therefrom in his presence.
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(3) The occupant of the place of search or any person on
his behalf shall remain present during the search and a
list of all things seized in the course of such search shall
be prepared and delivered to such occupant or person
who shall sign the list:
Provided that no inspection, search and seizure of
any domestic places or domestic premises shall be
carried out between sunset and sunrise except in the
presence of an adult male member occupying such
premises.
(4) The provisions of the Code of Criminal Procedure,
1973, relating to search and seizure shall apply, as far as
may be, to searches and seizure under this Act.
Xxxxxxxx
Section 152. (Compounding of offences): --- (1)
Notwithstanding anything contained in the Code of
Criminal Procedure 1973, the Appropriate Government
or any officer authorized by it in this behalf may accept
from any consumer or person who committed or who is
reasonably suspected of having committed an offence of
theft of electricity punishable under this Act, a sum of
money by way of compounding of the offence as specified
in the Table below:
Table
Nature of Service Rate at which the sum of
money for compounding to
be collected per Kilowatt
(KW)/Horse Power (HP) or
part thereof for Low
Tension (LT) supply and
per Kilo Volt Ampere
(KVA) of contracted
demand for High Tension
(HT)
(1) (2)
1. Industrial Service Twenty thousand rupees;
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2. Commercial Service Ten thousand rupees;
3. Agriculture Service Two thousand rupees;
4. Other Services Four thousand rupees;
Provided that the Appropriate Government may, by
notification in the Official Gazette, amend the rates
specified in the Table above.
(2) On payment of the sum of money in accordance
with sub-section (1), any person in custody in connection
with that offence shall be set at liberty and no
proceedings shall be instituted or continued against such
consumer or person in any criminal court.
(3) The acceptance of the sum of money for
compounding an offence in accordance with sub-section
(1) by the Appropriate Government or an officer
empowered in this behalf empowered in this behalf shall
be deemed to amount to an acquittal within the meaning
of section 300 of the Code of Criminal Procedure, 1973.
(4)The Compounding of an offence under sub-
section (1) shall be allowed only once for any person or
consumer.
Xxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx
Section 154. (Procedure and power of Special Court):
(1) Notwithstanding anything contained in the Code of
Criminal Procedure, 1973, every offence punishable
under [2sections 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 139 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
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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 139 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.
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(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
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may be, due to the commission of an offence referred to
in sections 135 to 139."
(Emphasis Supplied)
14. The scheme of the electricity Act lays down an elaborate
procedure for dealing with the issues relating to unauthorized use of energy
as well as the matters relating to theft of energy. Insofar as the proceedings
for unauthorized use of electricity under Section 126 of the Electricity Act,
2003 are concerned, the appellate remedy has been prescribed Per contra, in
the proceedings relating to Section 135 of the Act is concerned, the demand
raised in terms of Section 135 (1A) third proviso is a charge which is
collected by the distribution licensee which creates an obligation for
restoration of electricity supply to the premises within a period of 48 hours
of such a deposit. The same ipso fact is not an assessment equating to
Section 126 of the Electricity Act, 2003. Section 154 (5) of the Electricity
Act mandates that the civil liability is to be determined by the Special Court
and in the event the deposit made by the consumer is more than the
assessment of civil liability done by the Special Court, the consumer is
entitled under Section 154 (5) and 154 (6) of the Electricity Act, 2003 to
refund of the aforesaid amount alongwith interest. Further, the explanation
clarifies "Civil Liability" in relation to proceedings before the Special Court.
Hence, the power of determination of civil liability cannot be misinterpreted
or misconstrued at par with determination of liability under Section 126 of
the Electricity Act.
15. Scope of both the provisions is different and distinct and the
Appellate power exercises a power conferred by a statute. It cannot usurp
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powers of being an Appellate Authority when the statutory scheme does not
confer any such appellate power in matters relating to theft of electricity.
16. Counsel for the respondent has failed to refer to any provision
under the Electricity Act, 2003 or the Rules and Regulations framed
thereunder, in exercise whereof, the Sub Divisional Magistrate has notified
as an appellate authority for a demand assessed under Section 135 (1A) of
the Electricity Act, 2003. Power of appeal being a statutory power, it must
flow from the statute failing which, the exercise of power would be akin to
an abuse and being a fundamental defect, would render the award/order
illegal and liable to be set aside.
17. Further, insofar as the judgment relied by the counsel for
respondent No.2 are concerned, it is evident that the finding recorded by the
Division Bench was to the effect that it was not a case of theft of energy and
was rather a case of unauthorized use of energy. That being so, the judgment
of the Single Bench merges with the order of the Division Bench in LPA and
it cannot be construed to be a case of theft of energy. The Appellate
Authority would thus be deemed to be exercising powers as conferred under
Section 127 of the Electricity Act, 2003
18. Insofar as reliance on Clause 56 of the Electricity Supply
Instructions Manual is concerned, the argument of the respondent No.2 is
fallacious. The said clauses is applicable only with respect to the damage
caused to the meter and not in relation to granting a protection/immunity
against the events of theft of energy. The language of Clause 56 is very
specific and is clear in this regard. It is specifically stated therein that a
consumer will be responsible for any loss or damage to the meter installed in
his premises and is held liable for paying the cost of meter without prejudice
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to any prosecution/fine under Section 138 of the Act. However, where the
meter equipment is installed outside the premises of a consumer, the
indemnity is that the consumer would not be responsible for the protection
of the meter from theft or damage. The expression "theft or damage" used
under Clause 56 of the Electricity Supply Instructions Manual relates to the
'instrument of meter' and 'not to the theft of energy' that may be committed
by the consumer from the said equipment. Hence, the contention of the
petitioner in this regard is not based on correct interpretation of the clause.
19. Further referring to the contentions advanced on behalf of the
petitioner that a consumer would be left remediless against a demand that is
raised under Section 135 (1-A) of the Electricity Act, 2003, I find that such
an argument is misconceived. Ex facie Section 42 (5) of the Electricity Act,
2003 contemplates constitution of Consumer Grievances Redressal Forum to
look into any dispute/consumer grievance. Assessment as made under
Section 135 (1-A) for the restoration, would not ex facie fall in the nature of
a demand under Section 126 of the Electricity Act, 2003. The submission
that a person aggrieved is entitled to a remedy of appeal cannot be
interpreted to confer the powers on an authority which has restricted powers
as on appellate authority.
20. It has been held by the Hon'ble Supreme Court in the matter
of "Rafique Bibi by LRs versus Sayed Waliuddin by LRs and others", that
no authority can exercise a power not conferred upon it and that in the event
any such power is exercised, the same would go to the root of the matter.
The lapse being fundamental, it would vitiate all consequential proceedings.
The same are extracted as under:
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"6. What is "void" has to be clearly understood. A
decree can be said to be without jurisdiction, and hence a
nullity, if the court passing the decree has usurped a
jurisdiction which it did not have; a mere wrong exercise
of jurisdiction does not result in a nullity. The lack of
jurisdiction in the court passing the decree must be patent
on its face in order to enable the executing court to take
cognizance of such a nullity based on want of
jurisdiction, else the normal rule that an executing court
cannot go behind the decree must prevail.
7. Two things must be clearly borne in mind.
Firstly, "the court will invalidate an order only if the
right remedy is sought by the right person in the right
proceedings and circumstances. The order may be 'a
nullity' and 'void' but these terms have no absolute sense:
their meaning is relative, depending upon the court's
willingness to grant relief in any particular situation. If
this principle of illegal relativity is borne in mind, the law
can be made to operate justly and reasonably in cases
where the doctrine of ultra vires, rigidly applied, would
produce unacceptable results." (Administrative Law,
Wade and Forsyth, 8th Edn., 2000, p. 308.) Secondly,
there is a distinction between mere administrative orders
and the decrees of courts, especially a superior court.
"The order of a superior court such as the High 9 Court,
must always be obeyed no matter what flaws it may be
thought to contain. Thus a party who disobeys a High
Court injunction is punishable for contempt of court even
though it was granted in proceedings deemed to have
been irrevocably abandoned owing to the expiry of a
time-limit." (ibid.,P.312).
8. A distinction exists between a decree passed by a
court having no jurisdiction and consequently being a
nullity and not executable and a decree of the court
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which is merely illegal or not passed in accordance with
the procedure laid down by law. A decree suffering from
illegality or irregularity of procedure, cannot be termed
inexecutable by the executing court; the remedy of a
person aggrieved by such a decree is to have it set aside
in a duly constituted legal proceedings or by a superior
court failing which he must obey the command of the
decree. A decree passed by a court of competent
jurisdiction cannot be denuded of its efficacy by any
collateral attack or in incidental proceedings.
9. In Vasudev Dhanjibhai Modi v. Rajabhai Abdul
Rehman' it has been held: (SCC pp. 672-73, para 7)
When the decree is made by a court which has no
inherent jurisdiction to make it, objection as to its validity
may be raised in an execution proceeding if the objection
appears on the face of the record. But where the
objection as to jurisdiction of the court to pass the decree
does not appear on the face of the record and requires
examination of the questions raised and decided at the
trial or which could have been but have not been raised,
the executing court will have no jurisdiction to entertain
an objection as to the validity of the decree even on the
ground of absence of jurisdiction."
(Emphasis Supplied)
21. In view of the above position in law and failure to establish that
the Sub Divisional Magistrate exercised an appellate authority conferred on
it, the order cannot be protected, the High Court cannot violate exercise of a
jurisdiction not vested. The order thus is illegal, no nest, without authority
and unenforceable and the same is accordingly set aside.
22. Accordingly, the present petition is hereby allowed, the
respondent, may if so advised, take recourse to the appropriate remedies
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available to him in accordance with law. The period during which the
present petition remained pending shall be duly taken into consideration by
such authority for computing limitation.
(VINOD S. BHARDWAJ)
AUGUST 09, 2023 JUDGE
Vishal Sharma
Whether speaking/reasoned : Yes/No
Whether Reportable : Yes/No
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