Gujarat High Court
Deputy vs Ramesh on 25 August, 2011
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
Gujarat High Court Case Information System
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SCA/10599/2010 15/ 15 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 10599 of 2010
For
Approval and Signature:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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DEPUTY
ENGINEER(O & M) - Petitioner(s)
Versus
RAMESH
KISHANCHAND SAMIYANI - Respondent(s)
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Appearance :
MR
SP HASURKAR for Petitioner(s) : 1,
MS GR VIJAYALAKSHMI for
Respondent(s) :
1,
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CORAM
:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
: 25/08/2011
ORAL
JUDGMENT
1. This petition under Article 226 of the Constitution of India, has been preferred against the judgment and order dated 27-04-2010 passed by the District Consumer Disputes Redressal Forum, Kchchh-Bhuj ("The Forum" for short) in Complaint No.289 of 2008, whereby the Forum quashed and set aside the disputed bill and directed that a revised bill be issued to the respondent Consumer under Section 126 of the Electricity Act, 2003 ("The Act" for short). The Forum further directed the petitioner to refund the surplus amount and restrained the petitioner from disconnecting the power supply until a fresh bill is given. Aggrieved thereby, the petitioner Electricity Company has approached this Court by filing the present petition.
2. The brief facts of the case are that the respondent Consumer was given an electricity connection vide Consumer Connection No.38401/07061/9, for residential purposes. The installation of the respondent Consumer was checked on 23-11-2007 by Officers of the petitioner Electricity Company and it was noticed that the Meter Seal was tampered with. The defective Meter was, therefore, replaced and sent for Laboratory testing. The report of the Laboratory test indicated that it was a case of power theft and according to Section 135 of the Act, the respondent was issued a Supplementary Bill for an amount of Rs.73,403-76 Ps. The respondent Consumer, being aggrieved by the issuance of the Supplementary Bill filed a complaint before the Forum, challenging the assessment under Section 135 of the Act.
3. Mr.S.P.Hasurkar, learned advocate for the petitioner, has submitted that it is a clear case of power theft and the Forum has no jurisdiction to entertain the same in view of the judgment of the Division Bench of this Court in the case of Manoramaben Kansara v. Madhya Gujarat Vij Company Ltd., 2011(2) GLH 563.
4. Ms.G.R.Vijayalakshmi, learned advocate for the respondent has submitted that the Bill was issued without following the necessary procedure under Section 126 of the Act, therefore, the Consumer had approached the Consumer Forum for redressal of his grievances, as it was not a case of theft of electricity.
5. In rejoinder, Mr.S.P.Hasurkar, learned advocate for the petitioner submits that a complaint under Section 135 of the Act has already been filed and as the said Section deals with cases relating to theft of electricity, there is no doubt that the Consumer Forum had no jurisdiction to entertain the case, as has now been laid down by the judgment in Manoramaben Kansara v. Madhya Gujarat Vij Company Ltd. (Supra).
6. I have heard learned advocates for the respective parties, perused the averments made in the petition and the documents on record.
7. There is no dispute regarding the fact that a surprise check was carried out in the residential premises of the respondent during which the Meter Seal was found to be tampered with. The Laboratory testing of the Meter confirmed that there had been theft of electricity. The respondent had been issued a Supplementary Bill under Section 135 of the Act.
8. In light of the above facts, it would be fruitful to advert to the relevant provisions of the Electricity Act, 2003. Section 126 of the Act, reads as under:
"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 unauthorised use of electricity, he shall provisionally assess to the best of his judgment 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 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 form 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 unauthorised 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 twice the tariff applicable for the relevant category of services specified in sub-section (3).
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) "unauthorized use of electricity" means the usage of electricity -
(i) by any artificial means; or
(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."
9. Section 135 of the Electricity Act, 2003, is quoted hereinbelow:
"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 -
(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 or 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 time 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 than in the event of second and subsequent conviction of a person where the load abstracted, consumed, or use 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 provided 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 authorised 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 authorized 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 hour from the time of such disconnect :
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, authorised 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 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 unauthorised 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 sing 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 (2 of 1974), relating to search and seizure shall apply, as far as may be, to searches and seizure under this Act."
10. In Manoramaben Kansara v. Madhya Gujarat Vij Company Ltd. (Supra), the above provisions of the Electricity Act as well as relevant provisions of the Consumer Protection Act,1986 have been taken into consideration. The relevant extracts of the said judgment are reproduced hereinbelow:
41. In view of the aforesaid discussion, we summarize our findings as follows :-
(a) The finding of the learned Single Judge that there is a third forum of appeal under Section 42 of the Electricity Act, 2003 in this type of cases under Section 126 or Section 135, is incorrect and does not lay down a correct law.
(b) The jurisdiction of the Consumer Court in the matter of deficiency in service on the part of the Electricity Company is not ousted in view of the provisions of the Electricity Act, 2003. The finding of the learned Single Judge to that extent in general that the consumer forum has no jurisdiction to entertain complaints in respect of the matter pertaining to supply of electricity against the Electricity Company is incorrect and does not lay down a correct law.
(c) In a case where the bill is raised alleging indulgence in unauthorizes use of electricity by a person under Section 126 of the Electricity Act, 2003 or the measures or the penal action taken for the offence under Section 135 of the Electricity Act, 2003, in absence of any provision made under the Consumer Protection Act, 1986 to entertain any complaint or any such action, the petitions preferred by the consumer are not maintainable before the Consumer Disputes Redressal Forum.
42. For the reasons aforesaid, we hold that the Consumer Dispute Redressal Commission have erred in coming to the conclusion that the Consumer Disputes Redressal Commission has jurisdiction to try cases against assessment made under Section 126 or theft of energy under Section 135 and the learned Single Judge rightly interfered with those orders and set aside the orders. For the reason aforesaid, no interference is called for against the impugned common judgment rendered by the learned Single Judge. In absence of any merit, the appeals and the Civil Applications are dismissed, but there shall be no order as to costs."
(emphasis supplied)
11. Applying the principles of law, reproduced above, to the facts of the present case, it is evident that the case of the respondent involves alleged theft of energy and, as penal action has been taken under Section 135 of the Act, the Consumer Forum had no jurisdiction to entertain the complaint filed by the respondent Consumer. The question whether the procedure under Section 126 was followed or not, would not be relevant, in view of the decision of the Division Bench.
12. For the aforestated reasons, the petition is allowed. The impugned judgment and order dated 27-04-2010 passed by District Consumer Disputes Redressal Forum, Kchchh-Bhuj, in Complaint No.289 of 2008, is quashed and set aside. Rule is made absolute. There shall be no orders as to costs.
(Smt.Abhilasha Kumari,J) arg Top