Punjab-Haryana High Court
M/S Jtg Alloys Private Ltd vs Punjab State Power Corporation Ltd on 17 September, 2013
Equivalent citations: AIR 2014 (NOC) 58 (P. & H.)
Bench: Sanjay Kishan Kaul, Augustine George Masih
L.P.A.No.1900 of 2011 (O&M) {1}
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
L.P.A.No.1900 of 2011
Date of Decision: September 17, 2013
M/s JTG Alloys Private Ltd., Mandi Gobindgarh, District Fatehgarh Sahib
...Appellant
Versus
Punjab State Power Corporation Ltd., Patiala & others
...Respondents
CORAM: HON'BLE MR.JUSTICE SANJAY KISHAN KAUL, CHIEF JUSTICE
HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH, JUDGE
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr.Govind Goel, Advocate with
Mr.Sourabh Goel, Advocate,
for the appellant.
Mr.R.S.Khosla, Advocate and
Mr.Vikas Chatrath, Advocate,
for respondent Nos.1 to 3 and 5 to 9.
*****
SANJAY KISHAN KAUL, CHIEF JUSTICE (ORAL) The Letters Patent Appeal is directed against the impugned order of the learned Single Judge dated 09.09.2011 relegating the appellant to the remedy of an appeal under Section 127(3) of the Electricity Act, 2003 (for short "said Act").
The appellant is a private limited company and was carrying on Kumar Ramesh 2013.09.20 10:36 I attest to the accuracy and integrity of this document High Court Chandigarh L.P.A.No.1900 of 2011 (O&M) {2} its business activity for using electricity supplied by the respondents. The respondents, on inspections, found that a case of alleged theft of electricity was made out against the appellant and raised a demand of `4,33,24,039/-. On failure to pay this amount, disconnection of electricity was directed vide order dated 15.10.2010, which order was assailed in the writ petition. It may be noticed that as per the plea advanced, that was an provisional order of assessment on finding of theft of electricity and post filing of writ petition, the final order of assessment was passed and served on 26.07.2011, but the appellant did not seek to amend the petition as according to it, the final order was nothing else but a repetition of the provisional assessment order.
A preliminary objection was sought to be raised by the respondents based on the remedy of appeal available to the appellant under Section 127(3) of the said Act. It is undisputed that 15.10.2010 is the date of notice under Section 135 of the said Act and the appellant sought to urge before the learned Single Judge that what is contemplated under Section 126 of the said Act is different from theft of electricity as envisaged under Section 135 of the said Act and, thus, the remedy of appeal under Section 127 was not available. This plea has, however, been repelled by the learned Single Judge on the ground that if electricity is obtained through a tampered meter which would constitute a theft of electricity, it would still be an unauthorised use of electricity under Section 126(6) of the said Act, which gave rise to investigation and the final order of assessment and, thus, would be appealable under Section 127 of the said Act. The discussion is contained in one paragraph No.8, which reads as under:-
"8. An use of electricity through a tampered meter which Kumar Ramesh 2013.09.20 10:36 I attest to the accuracy and integrity of this document High Court Chandigarh L.P.A.No.1900 of 2011 (O&M) {3} would constitute a theft of electricity is still an "unauthorized use" of electricity under Section 126(6) which will give rise to an investigation of provisional assessment and a final assessment respectively under Section 126(1)(2) and (3). The final assessment although made on allegation of theft of electricity is definitely appealable under Section 127. The final order of assessment as conveyed in Court is bound to be appealable against, if a person is aggrieved, under Section
127. The writ petition is not an efficacious remedy where the petitioner urges the issues on points of facts."
We may note that even though the learned Single Judge was relegating the appellant to the remedy of appeal, there is a discussion on the merits of the controversy on account of elaborate submissions made before the learned Single Judge contained in paras 9 to 11, which may be construed as favourable to the appellant, but the learned Single Judge was careful enough to notice that he was not going into a further discussion as it may prejudice the findings to be obtained in appeal. In fact, while relegating the appellant to an appeal, cost was granted to the appellant of `25,000/- payable by the respondents.
In view of the aforesaid position, it could not be disputed before us that the only controversy to be examined before us is as to whether the remedy qua action under Section 135 of the said Act would be an appeal under Section 127 of the said Act or not.
We may add that the final notice dated 26.07.2011 is also under Section 135 of the said Act. We have, thus, made it clear to the learned Kumar Ramesh 2013.09.20 10:36 I attest to the accuracy and integrity of this document High Court Chandigarh L.P.A.No.1900 of 2011 (O&M) {4} counsel for the parties that we were not going to digress from the sole controversy raised before us as no other aspect formed part of the adjudication before the learned Single Judge.
Learned counsel for the appellant submitted that the aforesaid issue is no more res-integra in view of certain judicial pronouncements. He first sought to rely upon the judgment of the Delhi High Court penned down by one of us (Sanjay Kishan Kaul, J.), i.e., Sohan Lal Versus North Delhi Power Ltd. & Ors., 113 (2004) Delhi Law Times 547.
The same controversy albeit in different factual matrix of the case amongst other issues has been examined in this case. The distinction between 'unauthorised use of electricity' as used in Section 126 of the said Act was sought to be compared with the expression `theft of electricity' used in Section 135 of the said Act. It was sought to be contended by the electricity supplier that unauthorized use of electricity, which is not deliberate and unintentional, shall not be regarded as theft and would come within the ambit of Section 126, but where mens rea was involved, an offence of theft was committed, Section 135 would apply. These provisions were contended to be operating in different fields and it was emphasised that the expression used was not `dishonest abstraction of energy' but `unauthorised use of electricity in Section 126'. The expression `unauthorised use of electricity' had been defined by reference to the usage of electricity by any artificial means or by means not authorised, through a tampered meter or for purposes of other than for which use of electricity was authorised. The word `tampered meter' used in the said two provisions of the Act were pleaded to have been used in different contexts as in Section Kumar Ramesh 2013.09.20 10:36 I attest to the accuracy and integrity of this document High Court Chandigarh L.P.A.No.1900 of 2011 (O&M) {5} 126, the implication is that there is already an existing tampered meter through which electricity is being obtained while under Section 135, it is the act of tampering with the meter, which has been dealt with. Explanation (b)
(iv) of Section 126 was also referred to submit that it would deal with cases like use of domestic electricity connection for commercial purposes. Thus, Section 135 deliberately used the word `dishonestly' while dealing with the theft of electricity and was really the re-enactment of Section 39 of the Act of 1910. These aspects have thereafter been examined in paras 35 to 41, which are as under:-
"35. As noticed above, it is within the aforesaid parameters that the question has to be considered about the scope of Sections 126 and 135 of the said Act of 2003.
36. If the historical aspect is considered, it be seen that there was a specific provision under the Act of 1910 being Section 39 which dealt with the theft of energy. Thus, Section 135 has once again been incorporated in the said Act of 2003 making it more comprehensive and giving detailed procedure. There was in existence no corresponding provision to Section 126 of the said Act in the earlier enactments. The object clearly seems to be to make a distinction and separate category from theft of electricity by categorizing cases of persons indulging in unauthorised use of electricity on a different plain.
37. The Explanation to Section 126 of the said Act defines the expression 'unauthorised use of electricity' and the definition includes four categories as specified in the Sub-para Kumar Ramesh 2013.09.20 10:36 I attest to the accuracy and integrity of this document High Court Chandigarh L.P.A.No.1900 of 2011 (O&M) {6}
(b) to the Explanation. It has been defined to mean the usage of electricity (i) by any artificial means, (ii) by means not authorised by the concerned person or authority of licensee,
(iii) through a tampered meter, and (iv) for the purpose other than for which the usage of electricity was authorised. Thus, Section 126 can apply only in these cases since the same is confined to 'unauthorised use of electricity'. The expression 'theft' has not been used under Section 126 of the said Act of 2003.
38. The expression 'theft' has been used in 'Section 135 of the said Act. Thus, in the same enactment, these two expressions--'unauthorised use of electricity' and 'theft' -- have been used separately and, thus, must have their own connotations. They cannot be said to be substitute for one or the other.
39. If the contention of learned Senior Counsel for the petitioners was to be accepted, then theft has to be included as part of `unauthorised use of electricity'. However, Sub-para (b) of the Explanation to Section 126 defines the expression `unauthorised use of electricity' to mean only four categories of acts as defined therein.
40. There is no doubt that some of the expressions used in Section 126 of the said Act also appear in Section 135 thereof.
An illustration of this was given in respect of tampering of a meter. However, Section 126 uses the expression to include the Kumar Ramesh 2013.09.20 10:36 I attest to the accuracy and integrity of this document High Court Chandigarh L.P.A.No.1900 of 2011 (O&M) {7} usage of electricity through a tampered meter, while the expression used in Section 135 is tampers a meter. If the definitions given of theft of electricity under Section 135 are considered, they are specific, in mature. There is dual requirement. Firstly, the act should be done dishonestly. Secondly, it should form part of one of the acts specified in Sub-paras (a) to (c) of Sub-section (1) of Section 135 of the said Act. Thus, specific acts have been given like tapping through overhead, underground or under water lines or cables, tampering of meter, damage or destruction of electric meters and apparatus, to interfere with the proper or accurate metering of electricity. An act to constitute theft of electricity must, thus, satisfy the aforesaid requirements.
41. I am unable to persuade myself to agree with the submission of learned Senior Counsel for the petitioners that Section 126 of the said Act is all encompassing and includes theft of electricity which is only defined under Section 135. There is no doubt that Section 135 falls in Part XIV with the heading of 'Offences and Penalties'. However, a reading of Sub-section (5) of Section 154 would show that there is a specific provision made in respect of the procedure and power of the Special Court constituted under Section 153 of the said Act. The aforesaid authorises the Special Court to determine even the civil liability against the consumer or a person in terms of money for theft of energy as per the said sub-section. Kumar Ramesh 2013.09.20 10:36 I attest to the accuracy and integrity of this document High Court Chandigarh
L.P.A.No.1900 of 2011 (O&M) {8} Thus, where cognizance is taken of the act under Section 135 of the said Act, even a Special Court is empowered to determine civil liability. Insofar as the provisions of Section 126 of the said Act are concerned, they fall under the Chapter dealing with 'Investigation and Enforcement'. Section 126 no doubt refers to an assessment but that assessment is only in respect of unauthorised use of electricity. The result of the aforesaid is that theft of electricity cannot be said to form a part of Section 126 of the said Act and it will have to be seen as to what is the effect of there being no provision for assessment in case of theft of electricity in the said Act of 2003." Learned counsel for the appellant further submitted that in view of the contrary view of the learned Single Judge of the same Court, the issue received the attention of the Division Bench of that Court in B.L.Kantroo Versus BSES Rajdhani Power Ltd., 2009(108) DRJ 239 which approved the ratio in Sohan Lal's case (supra) while quoting the same paragraphs as aforesaid. The observations in para 18 of the Division Bench are as under:-
"18. From the abovesaid provisions, it is crystal clear that the assessment under Sections 126 and 135 of the Electricity Act, 2003 are absolutely different from each. Both sections 126 and 135 operate in different fields. This distinction has been made out in a case decided by the High Court of Delhi in Sohan Lal v. North Delhi Power Ltd. and other (per Sanjay Kishan Kaul, J.) in the decision reported at 113 (2004) DLT 547 in Para 37, 38 and 40 of the said judgment reads as under:-
Kumar Ramesh 2013.09.20 10:36 I attest to the accuracy and integrity of this document High Court Chandigarh
L.P.A.No.1900 of 2011 (O&M) {9}
"37 XXX
38. XXX
39. XXX
40. XXX
The aforesaid legal principle is outside the pale of doubt in view of the subsequent judgment of the Hon'ble Supreme Court in Executive Engineer, Southern Electricity Supply Company of Orissa Limited (SOUTHCO) and another Versus Sri Seetaram Rice Mill, (2012) 2 Supreme Court Cases 108, which has construed the provisions in the same manner as in the two judgments of the Delhi High Court. The discussion is contained in the following paragraphs:-
"1(b) Distinction between Sections 126 and 135 of the 2003 Act
24. Upon their plain reading, the marked differences in the contents of Sections 126 and 135 of the 2003 Act are obvious. They are distinct and different provisions which operate in different fields and have no common premise in law. We have already noticed that Sections 126 and 127 of the 2003 Act read together constitute a complete code in themselves covering all relevant considerations for passing of an order of assessment in cases which do not fall under Section 135 of the 2003 Act.
25. Section 135 of the 2003 Act falls under Part XIV relating to `offences and penalties' and title of the section is "theft of electricity". The Section opens with the words Kumar Ramesh 2013.09.20 10:36 I attest to the accuracy and integrity of this document High Court Chandigarh L.P.A.No.1900 of 2011 (O&M) { 10 } "whoever, dishonestly" does any or all of the acts specified under clauses (a) to (e) of sub-section (1) of Section 135 of the 2003 Act so as to abstract or consume or use electricity shall be punishable for imprisonment for a term which may extend to three years or with fine or with both. Besides imposition of punishment as specified under these provisions or the proviso thereto, sub-section (1-A) of Section 135 of the 2003 Act provides that without prejudice to the provisions of the 2003 Act, the licensee or supplier, as the case may be, through officer of rank authorised in this behalf by the appropriate commission, may immediately disconnect the supply of electricity and even take other measures enumerated under sub-sections (2) to (4) of the said Section. The fine which may be imposed under Section 135 of the 2003 Act is directly proportional to the number of convictions and is also dependent on the extent of load abstracted.
26. In contradistinction to these provisions, Section 126 of the 2003 Act would be applicable to the cases where there is no theft of electricity but the electricity is being consumed in violation of the terms and conditions of supply leading to malpractices which may squarely fall within the expression "unauthorized use of electricity". This assessment/proceedings would commence with the inspection of the premises by an assessing officer and recording of a finding that such consumer is indulging in an "unauthorized use of electricity". Kumar Ramesh 2013.09.20 10:36 I attest to the accuracy and integrity of this document High Court Chandigarh
L.P.A.No.1900 of 2011 (O&M) { 11 } Then the assessing officer shall provisionally assess, to the best of his judgment, the electricity charges payable by such consumer, as well as pass a provisional assessment order in terms of Section 126(2) of the 2003 Act.
27. The officer is also under obligation to serve a notice in terms of Section 126(3) of the 2003 Act upon any such consumer requiring him to file his objections, if any, against the provisional assessment before a final order of assessment is passed within thirty days from the date of service of such order of provisional assessment. Thereafter, any person served with the order of provisional assessment may accept such assessment and deposit the amount with the licensee within seven days of service of such provisional assessment order upon him or prefer an appeal against the resultant final order under Section 127 of the 2003 Act. The order of assessment under Section 126 and the period for which such order would be passed has to be in terms of sub-sections (5) and (6) of Section 126 of the 2003 Act. The Explanation to Section 126 is of some significance, which we shall deal with shortly hereinafter. Section 126 of the 2003 Act falls under Chapter XII and relates to investigation and enforcement and empowers the assessing officer to pass an order of assessment.
28. Section 135 of the 2003 Act deals with an offence of theft of electricity and the penalty that can be Kumar Ramesh 2013.09.20 10:36 I attest to the accuracy and integrity of this document High Court Chandigarh L.P.A.No.1900 of 2011 (O&M) { 12 } 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 "unauthorized use of electricity" under Section 126 of the 2003 Act deals with cases of unauthorised use, even in 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 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 authorization, like providing for a direct connection by passing the installed meter, the case would fall under Section 135 of the Act.
30. Therefore, there is a clear distinction between the Kumar Ramesh 2013.09.20 10:36 I attest to the accuracy and integrity of this document High Court Chandigarh L.P.A.No.1900 of 2011 (O&M) { 13 } 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 final order of assessment in cases of unauthorised use of electricity and cases of consumption of electricity beyond contracted load will squarely fall under such power. The legislative intention is to cover the cases of malpractices and unauthorised use of electricity and then theft which is governed by the provisions of Section 135 of the 2003 Act.
31. Section 135 of the 2003 Act significantly uses the words "whoever, dishonestly" does any of the listed actions so as to abstract or consume electricity would be punished in accordance with the provisions of the 2003 Act. "Dishonesty" is a state of mind which has to be shown to exist before a person can be punished under the provisions of that Section.
32. The word `dishonest' in normal parlance means "wanting in honesty". A person can be said to have "dishonest intention" if in taking the property it is his intention to cause gain, by unlawful means, of the property to which the person so gaining is not legally entitled or to cause loss, by wrongful means, of property to which the person so losing is legally entitled. "Dishonestly" is an expression which has Kumar Ramesh 2013.09.20 10:36 I attest to the accuracy and integrity of this document High Court Chandigarh L.P.A.No.1900 of 2011 (O&M) { 14 } been explained by the Courts in terms of Section 24 of the Penal Code, 1860 as:
"24. `Dishonestly'.-Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing `dishonestly'. [The Law Lexicon (2nd Edn., 1997) by P. Ramanatha Aiyar]
33.. This Court in the case of S. Dutt v. State of U.P.12 stated that a person who does anything with the intention to cause wrongful gain to one person or wrongful loss to another is said to do that dishonestly. 34 Collins English Dictionary explains the word "dishonest" as "not honest or fair; deceiving or fraudulent". Black's Law Dictionary (8th Edn.) explains the expression "dishonest act" as a fraudulent act, "fraudulent act" being a conduct involving bad faith, dishonesty, a lack of integrity or moral turpitude.
35. All these explanations clearly show that dishonesty is a state of mind where a person does an act with an intent to deceive the other, acts fraudulently and with a deceptive mind, to cause wrongful loss to the other. The act has to be of the type stated under sub-sections (1)(a) to (1)(e) of Section 135 of the 2003 Act. If these acts are committed and that state of mind, mens rea, exists, the person shall be liable to punishment and payment of penalty as contemplated under Kumar Ramesh 2013.09.20 10:36 I attest to the accuracy and integrity of this document High Court Chandigarh L.P.A.No.1900 of 2011 (O&M) { 15 } the provisions of the 2003 Act. In contradistinction to this, the intention is not the foundation for invoking powers of the competent authority and passing of an order of assessment under Section 126 of the 2003 Act."
The aforesaid legal position having been propounded by the Hon'ble Supreme Court, learned counsel for the respondents cannot contend that the impugned judgment can be sustained on this issue as it runs contrary to what has been laid down aforesaid. He, thus, seeks to contend that there are other judgments of this Court, whereby the appropriate remedy for the appellant would not be a writ under Article 226 of the Constitution of India, but that is not the controversy before us nor it has been adjudicated upon by the learned Single Judge.
Result of the aforesaid discussion is that the impugned order to the extent it holds that the remedy of the appellant is by way of an appeal under Section 127 of the said Act is set-aside and the matter is remitted back to the learned Single Judge, to be examined on merits subject to the other objections on merits or otherwise as may be available to the respondents.
The plea sought to be now raised before us by the appellant to amend the writ petition would have to be made before the learned Single Judge in accordance with law.
We may note that the electricity connection was never restored as the appellant failed to comply with the interim order dated 19.10.2011 read with order dated 20.10.2011.
The appeal is accordingly allowed to the aforesaid extent leaving the parties to bear their own costs.
Kumar Ramesh 2013.09.20 10:36 I attest to the accuracy and integrity of this document High Court Chandigarh
L.P.A.No.1900 of 2011 (O&M) { 16 } List Civil Writ Petition No.12600 of 2011 before the learned Single Judge on 09.10.2013.
( SANJAY KISHAN KAUL )
CHIEF JUSTICE
September 17, 2013 ( AUGUSTINE GEORGE MASIH )
ramesh JUDGE
Kumar Ramesh
2013.09.20 10:36
I attest to the accuracy and
integrity of this document
High Court Chandigarh