Punjab-Haryana High Court
Mohinder Pal Kaur vs Punjab State Power Corporation Limited ... on 12 March, 2024
Neutral Citation No:=2024:PHHC:035408
2024:PHHC:035408
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
219
CWP-22862-2018 (O&M)
Date of decision: 12.03.2024
Mohinder Pal Kaur
...Petitioner
VERSUS
The Punjab State Power Corporation Limited and others
...Respondents
CORAM : HON'BLE MR. JUSTICE VINOD S. BHARDWAJ
Present :- Mr. J.S. Jaidka, Advocate with
Mr. Lovepreet Singh, Advocate for the petitioner.
Mr. Nishant, Advocate and
Mr. Nikhil Singh, Advocate for the respondents.
*****
VINOD S. BHARDWAJ, J. (Oral)
1. The present petition has been filed for directing the
respondents-authorities to accept the compounding charges as have been
levied by them on the petitioner vide notice dated 09.08.2018.
2. Learned counsel for the petitioner contends that the petitioner is
a consumer of an electricity connection at her house situated at village
Ramgarh Bhullar, Tehsil Jagraon, District Ludhiana. A notice under Section
135 of The Electricity Act, 2003 (hereinafter referred to as 'the Act of
2003') was served upon the petitioner by the respondent-Distribution
Licensee alleging direct theft of electricity and a demand of Rs. 2,90,698/-
was also raised. Along with the above said notice, an additional demand of
Rs.23,000/- had also been raised as compounding charges to escape the
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criminal liability regarding theft of electricity. He contends that the
petitioner approached the respondent-authorities on numerous occasions for
accepting the compounding charges, however, the same was not being
accepted forcing the petitioner to approach this Court.
3. On notice, reply by way of a short affidavit of Sh. Gurpreet
Singh, XEN, PSPCL, has been filed, wherein it has been stated that the
petitioner approached this Court by suppressing the material facts and by
mis-stating the facts in the writ petition. It is averred the inspection of the
premises of the petitioner was carried out by the Additional Superintending
Engineer (Enforcement), Ludhiana on 08.08.2018 and a clear cut case of
theft of electricity was detected. During the inspection, it was noticed that
illegal direct supply was going to Kariana Shop and to the house of the
petitioner from Ramgarh Bhullar LT Feeder Unit through a 4 meter PVC
size 10 mm square. A letter No.839 dated 09.08.2018 in the nature of a bill-
cum-Show Cause Notice, as per the provisions of Electricity Supply Code,
2014 and Section 135 of the Act of 2003, was thereafter served upon the
petitioner. A separate demand of Rs.2,90,698/-, as per Regulation 37 of the
Electricity Supply Code, 2014, along with the compounding charges of
Rs.23,000/- was raised upon the petitioner. The Distribution Licensee has
given a detailed reference of the calculation and the mode as per the LDHF
Formula approved by the appropriate Commission for assessing the demand.
It is submitted that the compounding charges can only be accepted if the
consumer/person accused of having committed theft of energy deposits the
assessed amount of civil liability. He submits that since the petitioner has
not deposited the civil liability, the compounding charges cannot be
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accepted.
4. Learned counsel for the petitioner contends that the stand of the
respondents is misconceived and has no conformity with the statutory
provisions. He has placed reliance on the judgment dated 07.02.2017 passed
in RSA-4703-2014 titled as 'Dakshin Haryana Bijli Vitran Nigam and
others Vs. Mohd. Qayum Khan and another', wherein this Court noticed
the distinction between the compounding charge and civil liability. It was
held by this Court that the non-acceptance of compounding charges would
cause serious miscarriage of justice. He also placed reliance on the order
dated 15.09.2015 passed by this Court in CRA-S-534-SB of 2015 titled as
'Dr. Karamjit Singh Vs. State of Punjab', wherein direction was issued to
the respondent to accept the compounding fee.
5. Learned counsel for the respondent-Distribution Licensee on
the other hand has placed reliance on Clause of 37 the Electricity Supply
Instruction Manual-2018 which deals with compounding. He contends that
the compounding fee is in addition to the assessed amount/civil liability
which accrues under Clause 37.2.2 or 37.4 and as such, the Distribution
Licensee is justified in non-acceptance of the compounding charges in the
absence of the consumer depositing the civil liability.
6. No other point has been argued or judgment has been relied
upon by either of the sides.
7. I have heard the learned counsel appearing on behalf of the
respective parties and have gone through the documents available on record.
8. Before proceedings further it is essential to refer to the relevant
statutory provisions relied upon the parties:
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"Section 135. (Theft of Electricity): ---
[(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, or
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 -
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(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 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
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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 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
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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 [has been or is being,] used for unauthorized
use of electricity;
(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.
(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
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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.
Section 152. (Compounding of offences): ---
(1) Notwithstanding anything contained in the Code of
Criminal Procedure 1973 (2 of 1974), 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. Agricultural 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.
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
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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 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, cross-examination 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
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and the provisions of sections 263 to 265 of the said Code
shall, so far as may be, apply to such trial :
Provided that where in the course of a summary trial
under this subsection, it appears to the Special Court that the
nature of the case is such that it is undesirable to try such
case in summary way, the Special Court shall recall any
witness who may have been examined and proceed to re-hear
the case in the manner provided by the provisions of the said
Code for the trial of such offence:
Provided further that in the case of any conviction in a
summary trial under this section, it shall be lawful for a
Special Court to pass a sentence of imprisonment for a term
not exceeding five years.
(4) A Special Court may, with a view to obtaining the
evidence of any person supposed to have been directly or
indirectly concerned in or privy to, any offence tender pardon
to such person on condition of his making a full and true
disclosure of the circumstances within his knowledge relating
to the offence and to every other person concerned whether as
principal or abettor in the commission thereof, and any
pardon so tendered shall, for the purposes of section 308 of
the Code of Criminal Procedure,1973, be deemed to have been
tendered under section 307 thereof.
(5) The 1[Special Court shall] determine the civil liability
against a consumer or a person in terms of money for theft of
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energy which shall not be less than an amount equivalent to
two times of the tariff rate applicable for a period of twelve
months preceding the date of detection of theft of energy or
the exact period of theft if determined whichever is less and
the amount of civil liability so determined shall be recovered
as if it were a decree of civil court.
(6) In case the civil liability so determined finally by the
Special Court is less than the amount deposited by the
consumer or the person, the excess amount so deposited by
the consumer or the person, to the Board or licensee or the
concerned person, as the case may be, shall be refunded by
the Board or licensee or the concerned person, as the case
may be, within a fortnight from the date of communication of
the order of the Special Court together with interest at the
prevailing Reserve Bank of India prime lending rate for the
period from the date of such deposit till the date of payment.
Explanation. - For the purposes of this section, "civil
liability" means loss or damage incurred by the Board or
licensee or the concerned person, as the case may be, due to
the commission of an offence referred to in sections 135 to
139."
9. Reference is also required to be made to the Clause 102 of the
Electricity Supply Instruction Manual-2018:-
"As per Clause 102 Theft of Electricity under Section
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135 of the Act:
102.1 The cases covered under Section 135 of the Act
shall dealt with in accordance to the provisions of
Regulation-37 of the Supply Code-2014.
Electricity Supply Code
37. Theft Of Electricity:
xxxx.
37.2 Consequences of Theft of Electricity
37.2.1 Disconnection of Premises:
In case theft of electricity by a
consumer/person is prima facie established as per
Section 135 of the Act, then the supply to such
premises shall be immediately disconnected by
the order of an officer of the distribution licensee
as authorized for the purpose by the Commission
(Annexure-11) or any other officer of the
distribution licensee of the rank higher than the
rank of an officer so authorized by the
Commission. In such a case, an officer
authorized to order disconnection of the supply
shall lodge a complaint in writing relating to
commission of such offence, with the police
station having jurisdiction of the area within
twenty four hours from the time of such
disconnection.
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37.2.2 Assessment of Charges
(a) Where theft of electricity in a premises is prima
facie established as per section 135 of the Act, the
Authorized Officer without prejudice to the
criminal proceedings which may be initiated
under Section 135 of the Act shall assess the
electricity charges payable by such
consumer/person as per procedure specified in
Annexure-8. The assessment order shall be
speaking order clearly stating the basis on which
theft of electricity has been established. The
Authorized Officer may, after recording reasons
in writing, suitably reduce the presumptive period
of theft of electricity as specified in Annexure-8 in
case he is satisfied that such theft had actually
occurred for a lesser period. Such an order of
assessment shall be delivered to the concerned
consumer/person within 24 hours of theft of
electricity having been established.
(b) The Authorized Officer under Regulation 37.2.2
shall furnish a copy of the assessment order to the
consumer/person and the distribution licensee.
The distribution licensee shall submit a copy of
the assessment order in the Special Court
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immediately after submission of the challan by the
Police.
37.2.3 Payment of Assessed Amount
(a) A consumer/person shall deposit with the
distribution licensee the assessed amount under
Regulation 37.2.2 within fifteen (15) days of the
assessment.
(b) The distribution licensee may extend the last date
of payment of the assessed amount or allow the
consumer to make payment in installments
subject to payment of interest for the unpaid
amount for the extended period beyond fifteen
(15) days at SBI's Base Rate prevalent on first of
April of the relevant year plus 2%.
(c) After the assessed amount is deposited by the
consumer in full, the distribution licensee shall
restore supply of electricity to the premises within
forty eight (48) hours of such deposit.
37.2.4 After the assessed amount is deposited by a
person who is not an existing consumer, the
connection to his premises may be released
treating it as a case of release of a new
connection. ".
10. It is evident from a perusal of the Scheme of the Act of 2003
that it stipulates the assessment of civil liability in a matter pertaining to an
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unauthorized use of energy under Section 126 of the Act of 2003, while
cases in relation to the theft of electricity are dealt with under Section 135 of
the Act of 2003. Further, the compounding of an offence under Section 135
of the Act of 2003 is stipulated under Section 152 of the Act of 2003 and
upon deposit of the fee prescribed therein, a criminal offence is liable to be
compounded. As per the Act of 2003, in the event of detection of theft of
energy, the officials are bound to disconnect the electricity supply to the
premises in question without any further delay. The respondent-Distribution
Licensee is required to make an assessment of an amount to be deposited
and in the event of same being deposited by the consumer, the electricity
supply to the premises of the consumer is required to be restored within a
period of 48 hours of such deposit. Hence, the scope of assessment of the
civil liability under Section 135 (1A) of the Act of 2003 has to be read in the
context of the enabling power under which such assessment can be done.
Hence, the only right which accrues in favour of a consumer, on deposit of
the civil liability as determined under Section 135 (1A) of the Act of 2003, is
to seek restoration of the electricity supply to the premises and nothing
more. The provisions of the Act of 2003 do not make it mandatory that an
offence be compounded unless the civil liability as assessed under Section
135 (1A) of the Act 2003 is deposited.
11. I am further fortified in my aforesaid conclusion by relying on
effect of Section 154 of the Act of 2003 which lays down procedure in the
event of occurrence of an offence under Section 135 of the Act of 2003.
Section 154 (5) of the Act of 2003 empowers the Special Court to determine
the civil liability and it also stipulates that in the event, the amount deposited
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by a consumer under Section 135 (1A) of the Act of 2003 is found to be in
excess of the amount of civil liability ascertained by the Special Judge, the
same is liable to be returned to the consumer along with interest as
prescribed therein. Hence, the determination of the civil liability in a case
under Section 135 of the Act of 2003 is cast upon the Special Judge. Merely
because the formula approved for determination of civil liability under
Section 126 of the Act of 2003 has also been approved as a formula of
assessment of demand under Section 135 (1A) of the Act of 2003, it cannot
be the basis to assume that the same is a compensatory provision which
intends to indemnify the department for the loss sustained by it due to the
theft of energy. The only right which accrues on deposit of the said amount
by the consumer is to seek restoration of the connection and it is not
compensatory/indemnificatory by nature or by statutory interpretation. The
determination of civil liability being exclusively within the scope of Special
Judge, hence, the respondents cannot demand the pre-deposit of the said
amount before compounding of the offence.
12. Still further, insofar as the reference to Clause 37 of the
Electricity Code-2014 read with Regulation 102 of the Electricity Supply
Instruction Manual-2018 is concerned, I am of the opinion that the above
said objection raised by the Distribution Licensee is based on the mis-
reading of the provisions. Clause 37 of the Electricity Code-2014 deals with
the theft of electricity and 37.2 thereof deals with the consequences of theft
of electricity. The assessment of charges as prescribed under Clause 37.2.2
is that an assessment is required to be done as per the parameters prescribed
therein and laid down in Annexure 8 of the schedule. The restorative
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obligation of the Distribution Licensee of the electricity connection is dealt
with under Regulation 37.2.3. The matter of compounding is however dealt
with under Regulation 37.3.2 which clearly recognizes the distinction
between the compounding charges as well as the liability of a consumer to
pay the assessed amount/civil liability. Even the said Clause i.e. 37.3.2 does
not in any manner suggest or mandate that both the amounts i.e.
compounding charges as well as assessed civil liability ought to be deposited
rather, the said Regulation itself clarifies the demand towards the assessed
amount/civil liability is distinct from the compounding charges as demanded
under Section 152 of the Act of 2003. The said aspect is also further
supported from the Electricity Supply Instructions Manual-2018 and Clause
102.2 deals with the assessment of amount stipulated under Section 135
(1A) of the Act of 2003, while Clause 102.4 deals with the compounding
charges. Thus, the distinction has been kept alive by the legislation in the
principle statute as well as in the Electricity Code and Electricity Supply
Instructions Manual as well.
13. The statutory scheme has provided for a different mechanism
for determination of a civil liability in cases relating to theft of electricity.
The right to seek compounding of a criminal liability is independent of
meeting a civil liability to the Distribution Licensee. The Distribution
Licensee cannot be claim itself to be entitled to deny receipt of
compounding charges till its dues are paid since the same would amount to
adding a proviso to Section 152 of the Act of 2003 and prescribing an
eligibility condition to the compounding. Since compounding charges are
payable to the Government and law recognizes a separate and independent
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right of the State to compound, the Distribution Licensee may not be
exercising its power currently when it uses the leverage it has Section 152 of
the Act of 2003, as a measure to seek recovery of dues, which it feels
entitled to. Since pre-deposit is a condition for restoration of electricity
connection, hence, the department is entitled to not restore supply till
deposit.
14. The present writ petition is accordingly allowed. The
respondents are directed to accept the compounding charges without
prejudice to their right to seek recovery of the amount due, if any, at an
appropriate stage and in a manner known to law.
(VINOD S. BHARDWAJ)
12.03.2024 JUDGE
Mangal Singh
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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