Telangana High Court
Mr.Murtuza S.E., And Another vs Union Of India.,Min Of Energy, New Delhi ... on 22 February, 2024
THE HON'BLE THE CHIEF JUSTICE ALOK ARADHE
AND
THE HON'BLE SHRI JUSTICE ANIL KUMAR JUKANTI
WRIT PETITION No.25589 OF 2009
ORDER:
(per the Hon'ble Shri Justice Anil Kumar Jukanti)
Mr. M. Laxminarasimham, learned counsel appears for
the petitioners.
Mr. R. Vinod Reddy, learned Standing Counsel for
Southern Power Distribution Company of Telangana Lmited
appears for respondentNo.3.
Mr. Gadi Praveen Kumar, learned Deputy Solicitor
General of India appearing for respondent No.1.
2. This writ petition is filed praying to grant the following
relief:
"... to issue a Writ, Order or direction, more
particularly in the nature of Mandamus by declaring:
a) the heading in Column (2) of Table in Section 152
(1) of the Electricity Act, 2003 (Act No.36 of 2003),
which prescribes that the application of rate at which
the sum of money for compounding to be collected for
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Low Tension (LT) consumers not basing on contracted
demand, but for High Tension (HT) consumers basing
on contracted demand as arbitrary, illegal and void,
and against the Article 14 of the Constitution of India;
and b) the notice issued by respondent No.3
vide Lr.No.ADE/OP/Jeedimetla/D.No.2731, dated
17.11.2009, as arbitrary, illegal and void; and against
Article 14 of the Constitution of India; and c) pass
such order or other orders as deems fit and proper in
the interest of justice."
3. Brief facts:
The petitioners in their business premises have a Low
Tension (LT) [LT3 (A)] Service Connection bearing
No.019000723 from the year 2002. It was inspected by the
official respondents on 04.11.2009 and on 05.11.2009. The
existing meter was taken and a new meter was fixed in its
place. The old meter was tested in the presence of the
petitioners in M.R.T. Lab on 11.11.2009. Notice was issued to
petitioners and they received the same on 17.11.2009, wherein
it was stated that a criminal case vide Crime No.2451 of 2009
came to be registered on 04.11.2009 for the offence of theft of
electricity and that the petitioners, if willing, could pay a
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compounding fee of Rs.1,50,000/- and an amount of
Rs.3,45,615/- was assessed as liability. A provisional
assessment notice was issued towards consumption of
electricity.
3.1 The contracted load of the petitioners business premises
as per the records is said to be 14,920 watts. The main
grievance of the petitioners is that as per Section 152 (1) of the
Electricity Act, 2003 (for short, 'the Act, 2003') and as per
heading to column (ii) of the said Section, the rate of
compounding fee is fixed based on contracted demand in case
of High Tension (HT) consumers, but in case of LT consumers,
the same was not based on contracted demand and hence,
is discriminatory, arbitrary and violative. According to
petitioners, the LT consumers are penalized more compared to
HT consumers for the same offence i.e., theft of energy. The
further grievance of the petitioners is that as per Section 154
(5) of the Act, 2003, it is only the Special Court which is
competent to determine the civil liability against a consumer
for computation of the amount of theft of energy. It is averred
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that once a compounding fee is paid under Section 152 of the
Act, 2003 in respect of the offence, it would act as a complete
bar for claiming any other amount as civil liability other than
compounding fee. Further grievance of the petitioners appears
to be that as per Section 154 (5) of the Act, 2003, liability
against the consumer in terms of money for theft of energy
shall not be less than an amount equivalent to two times of
tariff rate applicable for a period of 12 months preceding
date of inspection. But, in the petitioners' case, it is made
three times.
3.2 It is submitted by learned counsel appearing on behalf
of petitioners that Section 154 of the Act, 2003 clearly
contemplates that it is the Special Court which has got
the jurisdiction to decide the matter and in violation of Section
154 of the Act, 2003, assessment has been done. The
petitioners were not served with any copy of inspection report,
which is required to be supplied under the General Terms and
Conditions. It is also submitted that no notice was served on
the petitioners for fixing the time for testing the said meter in
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the M.R.T. Lab and that the compounding fee fixed in case of
LT consumers is not based on contracted demand but is based
on connected load, which is discriminatory, whereas the rate of
compounding fixed in case of HT consumers is on the basis of
contracted demand. It is urged that by varying rates of
compounding, the LT consumers are penalized more for the
same offence if committed by HT consumers.
3.3 It is submitted that once the petitioners have opted for
compounding as per Section 152 of the Act, 2003, it would act
as a complete bar and there would be no other liability other
than the compounding fee. It is contended that no proceeding
shall be instituted once opted for compounding and no
separate assessment can be made for the loss or damage said
to have been sustained for commission of theft of energy. It is
further contended that the provisional assessment order
passed by respondent No.3 vide notice dated 17.11.2009 is
without jurisdiction as the Special Court alone has jurisdiction
to determine the civil liability under Section 154 (5) of the
Act, 2003.
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W.P.No.25589 OF 2009
3.4 It is submitted by learned counsel appearing on behalf
of the official respondents that when the petitioners premises
was inspected on 04.11.2009 at 1145 hours by the Assistant
Divisional Engineer, it was observed that the Meter cover 2No
MRT side seals are not in good condition and the meter was
referred for MRT Lab Testing. The meter was tested on
11.11.2009 and both the meter body side seal bits were in
tampered position and seal bits holes are enlarged. The meter
was tested in the presence of the representative. It was also
noticed that there was no recording of voltage in R&B phases
and the percentage error is -66.08%. The printed circuit board
of the meter has been accessed and disturbed by suppressing
the R&B phase voltages and that the consumer is indulging in
theft of energy dishonestly. It is averred that the past
consumption discloses that the consumption being recorded by
the meter is unduly low, taking into account the connected
load, the number of hours of usage of electricity and the
purpose for which the power has been availed. It is pointed
out that the service connection was disconnected on
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04.11.2009. The consumer was found guilty of theft of
electricity under Section 137 of the Act, 2003. It is contended
that the electricity charges due to the company was
provisionally assessed at Rs.3,45,465/- basing on the
assessment rules and the provisions of general terms and
conditions of supply.
3.5 It is submitted that on payment of 50% of assessed
amount, the petitioners were entitled for reconnection and
could pay the balance 50% in installments.
4. Heard the learned counsels and perused the record.
5. We have considered the rival submissions. It is evident
from the record that the petitioners are guilty of theft of
electricity under Section 135 of the Act, 2003 by indulging in
tampering with the seal bits and by accessing the printed
circuit board of the meter. These facts are evident from the
provisional assessment notice issued to the petitioners on
17.11.2009. As per the provisional assessment order, an
amount of Rs.3,45,465/- has been assessed as civil liability,
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due to the company. The Apex Court in West Bengal State
Electricity Distribution Company Limited and Others v.
M/s. Orion Metal Private Limited and Another 1 has dealt
with the issue elaborately.
6. It is pertinent to extract the gist of the judgment rendered
at various paragraphs by the Hon'ble Apex Court in West
Bengal State Electricity Distribution Company (supra). The
Hon'ble Apex Court, dealing with the contention that when
once a case of alleged theft of energy under Section 135 (1) (a)
of the Act, 2003, is booked, that no assessment is permissible
under Section 126 (1) of the Act, 2003, the Hon'ble Apex Court
in its order at various paragraphs, the summary of which is
extracted, held as under:
"A perusal of Sections 126, 135, 153 and 154 of the
Act, 2003 and a conjoint reading of the same, it
appears that once an inspection of any premises of
any consumer is done and if the officer comes to a
conclusion that the consumer indulges in
unauthorized use of electricity, a provisional
assessment to the best of his judgment is to be made
AIR ONLINE 2019 SC 982
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under Section 126 (1) of the Act, 2003 after following
the due procedure. The Apex Court held that all
instances of unauthorized use of energy may not
amount to theft of electricity within the meaning of
Section 135 of the Act, 2003, but the theft of
electricity as covered by Section 135 will fall within
the definition of unauthorized use of electricity."
7. The Hon'ble Apex Court further held that,
"Section 126 forms part of the scheme which
authorizes the electricity supplier to ascertain the loss
in terms of revenue caused to it by the consumer by
his act of "unauthorized use of electricity" whereas
Section 135 deals with offence of theft if he is found
to have indulged himself in the acts mentioned in
clauses (a) to 135 (e) of sub-section (1) of Section 135
of Electricity Act. Further, it is also clear from
Section 154 of the Act, which prescribes procedure
and power of Special Court, that the Special Court is
empowered to convict the consumer and impose a
sentence of imprisonment. The Special Court, in
cases, where a criminal complaint is lodged, is also
empowered to determine civil liability under Section
154 (5) of the Act. As per Section 154 (6) of the Act,
in case, civil liability so determined by the Special
Court is less than the amount deposited by the
consumer or the person, the excess so amount
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deposited by the consumer or the person, shall be
refunded by the licensee or the concerned person, as
the case may be. Merely because the Special Court is
empowered to determine the civil liability under
Section 154 (5) of the Act, in case where a complaint
is lodged, it cannot be said that there is no power
conferred on the authorities to make provisional
assessment/final assessment under Section 126 of
the Act."
... ...
"Unauthorized use of electricity cannot be restricted
to clauses under Section 135 (a) to (e), but has to be
given a wider meaning so as to cover cases of
violation of terms and conditions of supply.
"Unauthorized use of electricity" itself is an
expression which would, on its plain reading, take
within its scope all the misuse of the electricity or
even malpractices adopted while using electricity. It
is difficult to restrict this expression and limit its
application by the categories stated in the
explanation.
... ...
"When there is an allegation of unauthorized use of
energy by tampering the meter, such cases of
unauthorized use of energy include 'theft' as defined
under Section 135 of the Act. The power conferred on
authorities for making assessment under Section 126
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(1) of the Act and power to determine civil liability
under Section 154 (5) of the Act, cannot be said to be
parallel to each other. In this regard, we are of the
view that the High Court has committed an error in
recording a finding that both proceedings cannot
operate parallelly."
... ...
"In cases where allegation is of the unauthorized use
of energy amounting to theft, in such cases, apart
from assessing the proceedings under Section 126 (1)
of the Act, 2003, a complaint also can be lodged
alleging theft of energy as defined under Section 135
(1) of the Act. In such cases, the Special Court is
empowered to determine civil liability under Section
154 (5) of the Act. On such determination of civil
liability by the Special Court, the excess amount, if
any, deposited by the petitioner, is to be refunded to
the consumer."
8. We may now deal with grievance of petitioners with
regard to discrimination between LT and HT consumers.
The petitioners' contention that LT consumers are penalized
more compared to HT consumers for the same offence i.e.,
theft of energy is devoid of merits as the HT consumers are a
class of their own and LT consumers are a separate class.
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Article 14 of the Constitution of India would be attracted only if
similarly situate persons are treated differently. HT consumers
form a class different from LT consumers and both by no
stretch of imagination can be said to be similarly situate.
Therefore, the contention is devoid of merits.
9. The challenge that the penalization of LT consumers is on
the higher side compared to HT consumers is violative of
Article 14 of the Constitution of the India is untenable. Such a
classification is a creation of the legislature, and there is a
general presumption of constitutionality, and the burden is on
the petitioners to show that there is violation of Article 14 of
the Constitution of India. The petitioners have failed to
discharge the burden.
10. In the light of the judgments of the Hon'ble Apex Court
(stated supra), we find that the authorities are indeed
empowered to determine the civil liability under Section 126 of
the Act, 2003 and it is only on the determination of the civil
liability by the Special Court, when the issue is on the file of
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the Special Court, excess amounts, if any paid, shall be
refunded to the petitioners.
11. For the foregoing reasons, the writ petition is devoid of
merits and is liable to be dismissed and the same is
accordingly dismissed. There shall be no order as to costs.
Miscellaneous applications pending, if any, shall stand
closed.
_____________________________
ALOK ARADHE, CJ
___________________________
ANIL KUMAR JUKANTI, J
Date:22.02.2024
KH
CJ & JAK, J
W.P.No.25589 OF 2009
THE HON'BLE THE CHIEF JUSTICE ALOK ARADHE
AND
THE HON'BLE SHRI JUSTICE ANIL KUMAR JUKANTI
WRIT PETITION No.25589 OF 2009
Date:22.02.2024
KH
