Orissa High Court
M/S. Jindal Resources Pvt. Ltd vs Executive Engineer (Elect.) on 21 August, 2018
Equivalent citations: AIR 2018 ORISSA 176, (2018) 190 ALLINDCAS 524 (ORI), AIRONLINE 2018 ORI 289
Author: S.N. Prasad
Bench: Sujit Narayan Prasad
HIGH COURT OF ORISSA: CUTTACK.
W.P.(C) No.668 of 2011
In the matter of an application under Article 226 and 227 of the Constitution of India.
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M/s. Jindal Resources Pvt. Ltd. ...... Petitioner
- Versus-
Executive Engineer (Elect.),
Western Electricity Supply Camp of Orissa Ltd.,
Rajgangpur Electrical Division,
P.O.-Rajgangpur, District-Sundargarh ...... Opposite Party
For Petitioner : M/s. Biplab Mohanty, A. Patnaik, S. Patnaik &
M.S. Rizvi.
M/s. D.R. Bhokta, R.K. Panigrahi, H.K. Behera &
N. Afreen.
For Opp. Party : M/s. M. Kanungo, Y.S.P. Babu, S.N. Das &
S.K. Mishra.
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PRESENT:
THE HONOURABLE SHRI JUSTICE SUJIT NARAYAN PRASAD
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Date of hearing : 09.08.2018 :: Date of judgment : 21.08.2018
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S. N. Prasad, J. In this writ petition, the following prayers have been made:-
(i) quashing the Inventory Report under Annexure-2;
(ii) further a direction may kindly be issued to the
opposite party for connection of power supply to
the petitioner's premises within a stipulated
period; and
(iii) to pass such other order/orders or to issue such
other writ/writs, as would afford complete relief to
the petitioner.
2
2. The brief fact of the case is that the petitioner-Unit has obtained
electricity connection by virtue of an agreement entered into with opposite
party-WESCO on 12.06.2009 for supply of electrical energy to the premises of
the consumer situated at IDC, Kalunga, P.S.-Brahmanitarang over Plot No.284,
Khata No.27 in the district of Sundargarh for the purpose of manufacturing of
Pencil Ingot.
On 24.12.2010, the authorities of opposite party-WESCO has
inspected the premises of the petitioner's Unit and found that the T.C. Inner
and other seals fixed on the meter was tampered with and also found that meter
was running slow by 28.47%, accordingly, they disconnected the power supply
of petitioner's premises on 24.12.2010.
The opposite party-WESCO has prepared Inventory Report to that
effect and found therein that the consumer has dishonestly tampered the meter
so as to interfere with accurate or proper registration in a manner whereby
electricity is stolen, damage the electric meter so as to interfere with proper
accurate metering of electricity, have used electricity through a tempered meter
and has maliciously injured the meter to prevent from daily registration of
actual consumption. These attract Clauses-135(1) and 138(1) of Electricity Act,
2003 (hereinafter referred to as "the Act, 2003").
Subsequently, the provisional assessment has been made in
exercise of power conferred under Section 126(1) of the Act, 2003. In terms of
the provision of Section-126(3) of the Act, 2003, the petitioner has given its
objection. Thereafter, the final order of assessment was passed in exercise of
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power conferred under Section-126 of the Act, 2003. However, no appeal was
preferred under the provisions of Section-127 of the Act, 2003.
The case of the petitioner is that a criminal case was also instituted
against the petitioner-Unit for the commission of offence under Section-135 of
the Act, 2003, in which, he has been acquitted by the competent court of
criminal jurisdiction. Hence, the provisional or final assessment as has been
made under the provision of Section-126 of the Act, 2003 will of no meaning, as
such, the entire proceeding initiated under the provision of Section-126 of the
Act, 2003 may be quashed.
3. Per contra, the case of the opposite party, as per the stand taken in
the counter affidavit, is that the criminal proceeding initiated for the
commission of offence under Section-135 of the Act, 2003 will have no bearing
upon the proceeding initiated under Section-126 of the Act, 2003, since the
provision as contained under Section-126 of the Act which stipulates regarding
unauthorized use of electricity while Section-135 of the Act, 2003 deals with the
criminal part and even if the consumer is being acquitted in the criminal case,
he cannot be exonerated from the provision of Section-126 of the Act, 2003.
4. This Court has heard the learned counsel for the petitioner as well
as leaned counsel for the opposite party.
Learned counsel for the petitioner, in support of writ petition, has
raised the following submissions:-
(i) There being an allegation of theft of electricity
against the petitioner and an F.I.R. having been
lodged under Section 135 of the Act, 2003, in
4
which, the petitioner has been acquitted. Hence,
there is no question of civil liability which is
to be assessed under the provision of Section-
126 of the Act, 2003. As such, the entire
proceeding pending under Section-126 of the Act,
2003 is not sustainable in the eye of law; and
(ii) The provision of Section-126 of the Act, 2003 is
not applicable in the cases of theft of electricity
under the provisions of Section-135 of the Act,
2003.
He has placed reliance upon the judgment rendered by Hon'ble the
Apex Court in the case of Executive Engineer, Southern Electricity Supply
Company of Orissa Limited (SOUTHCO) and Another -Vrs.- Sri Seetaram
Rice Mill, reported in (2012) 2 SCC 108.
Mr. Y.S.P. Babu, learned counsel appearing for the opposite party
has taken the ground that provisions of Sections-126 and 135 are altogether
different, consequence is also different and even if the petitioner has been
acquitted from the case of theft of electricity, it does not mean that the
proceeding pending under Section-126 of the Act, 2003 will be held to be
redundant.
The petitioner ought to have filed an appeal as provided under the
provision of Section-127 of the Act, 2003 but since he has not preferred any
appeal which suggests that the provisional assessment as also the final
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assessment done under Section-126 of the Act, 2003 has attained its finality
and as such, the petitioner cannot be escaped from its liability.
5. This Court has considered the submission of the learned counsel
for the parties and perused the record. From the submission made by the
learned counsel parties and pleading on record, the following issues are arises
for consideration in this writ petition:-
(i) Whether in the case where theft of electricity alleges,
Section-135 of the Act, 2003 in which the petitioner has
been acquitted, an assessment under Section-126 of the Act,
2003 can be held to be sustainable?
(ii) Whether assessment under Section-126 of the Act, 2003 is
not applicable with regard to the cases of theft of electricity
under Section-135 of the Act, 2003 and with regard to the
cases of theft of the electricity under Section-135 of the Act,
2003, the civil liability is to be determined only by the
Special Court where the trial is pending?
6. Both the issues are interrelated and as such, are being taken up
together.
Before considering the rival submissions made by the learned
counsel for the parties in support of the above two issues, it is necessary to refer
to the statutory provision in this regard.
6
The Act, 2003 has been enacted to consolidate the laws relating to
generation, transmission, distribution, trading and use of electricity and for
matters connected therewith or incidental thereto.
Part XII of the Act, 2003 bears heading "Investigation and
Enforcement". Section-126 of the Act, 2003 provides for assessment which
is as follows with explanation:-
"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 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.
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(6) The assessment under this section shall be made
at a rate equal to [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
(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."
The definition of "unauthorized use of electricity" with
explanation '(b)' of Section-126 of the Act, 2003 is as follows:-
"(b) "unauthorised 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."
Part XIV of the Act, 2003 deals with "Offences and Penalties". Section-
135 of the Act, 2003 provides theft of electricity which is relevant in the present
case as follows:-
"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
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(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 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
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
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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 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
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.
(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:
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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."
Learned counsel for the petitioner, while elaborating the
submission, has contended that since it is the Special Court which is to
determine the civil liability against the consumer as provided under Section-
154(5) of the Act, 2003, the assessment under Section-126 of the Act, cannot
be made.
He has submitted that Section-126 of the Act, 2003 shall not
apply in the cases where there is allegation of theft of electricity.
He has further submitted that assessment be made under
Section-126 of the Act, 2003 in the cases for theft of electricity also there
was no occasion for empowering the Special Court to determine the civil law.
He has further submitted that in the present case since F.I.R.
under Section-125 of the Act, 2003 has been registered and an allegation of
theft of electricity has been made, in which, he has been acquitted and as
such, the entire proceeding pending under the provision of Section-126 of
the Act, 2003 will be held to be unsustainable.
He, referring to the provision of the Act, 2003 especially the
explanation '(b)' of Section-126 of the aforesaid Act, has submitted that
"unauthorised use of electricity" means the usage of electricity (i) by any
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artificial means; or (ii) by a means not authorised by the concerned person
or authority or licensee; or (iii) through a tampered meter; or for the
purpose other than for which the usage of electricity was authorised; or for
the premises or areas other than those for which the supply of electricity was
authorized.
His further argument is that Section-135 of the Act, 2003 since
is coming under Part XIV under the heading "Offences and Penalties" which
deals with the 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, (d) uses electricity through a tampered meter; or (e) uses
electricity for the purpose other than for which the usage of electricity was
authorised,
It is evident from the bare reading of the meaning of theft as per
the provision of Section-135 of the Act, 2003 and the unauthorized use of
electricity as provided under sub-section(b) of Section-126 of the aforesaid
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Act that use of electricity is generous in which instances Section-135(1) of
the Act, 2003 are specifies the theft of electricity is unauthorized
use of electricity done dishonestly. Hence, the assessment under
Section-126 of the Act, 2003 has to follow whenever unauthorized use of
electricity is made by a person as well as a consumer. The said unauthorized
use of electricity becomes with coupled with dishonest intention which
invites imprisonment.
Section-126 of the Act, 2003 does not indicate that the
assessment shall not be made, if the unauthorized use of electricity becomes
a theft.
Section-135 of the Act, 2003 also does not give any indication
that assessment under Section-126 of the Act, 2003 is not to be undertaken,
if there is theft of electricity. The sixth proviso to Section-135 of the Act,
2003 is as follows:-
"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."
The sixth proviso to Section-135 of the Act, 2003 uses the words
"assessed amount" which is nothing but an amount as contemplated by
Section-126 of the Act, 2003.
Learned counsel for the petitioner, to support his submission,
has referred to sub-sections(5) and (6) of Section-154 of the Act, 2003.
13
He submits that the said provision empowers the civil court to
determine the civil liability against the consumer or a person.
Hence, it is only there is Special Court which has jurisdiction to determine
the civil liability. Hence, in theft cases, an assessment under Section-126 of
the Act, 2003 is not contemplated since for determining the civil liability in
two forums shall not be created. For ready reference, sub-sections(5) and (6)
of Section-154 of the Act, 2003 is reproduced herein below:-
"(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."
Civil liability is defined in explanation to Section-154 of the Act,
2003 which is to be the following effect:-
"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 140 and Section 150."
14
Sub-section(6) of Section-154 of the Act, 2003 provides that 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.
The words "deposited by the consumer or the person" in sub-
section(6) of Section-154 of the Act, 2003 are nothing but an amount
deposited by the consumer in accordance with Section-126 of the Act, 2003,
since there is no other provision of the Act, 2003 for deposit of the amount
by a consumer or the person relating to theft of electricity.
Thus, the submission of the learned counsel for the petitioner is
that Section-154 of the Act, 2003 indicates that it is only the Special Court
which shall determined civil liability in terms of money for theft of electricity
cannot be accepted.
7. Learned counsel for the parties have relied upon the judgment of
the Apex Court in the case of Executive Engineer, Southern Electricity Supply
Company of Orissa Limited (SOUTHCO) and Another (supra).
In the said case, Hon'ble the Apex Court has occasioned to
consider the distinction between the unauthorized use of electricity as
15
provided in Section-126 of the Act, 2003 and theft of electricity as provided
under Section-135 of the Act, 2003.
In the said case, the respondent had obtained electricity supply
under an Agreement on 9.12.1997. The premises was inspected on
10.06.2009. On 25.7.2009, a provisional assessment order was issued
raising a demand. The respondent was required to file an objection.
Respondent did not file any objection but file a writ petition being W.P.(C)
No.12175 of 2009 challenging the provisional assessment order before the
High Court.
The plea taken by the respondent that the provision of Section-
126 of the Act, 2003 is not attracted the above case. The High Court held
that overdrawal of maximum demand would not follow under the scope of
"unauthorized use of electricity" and the appellants have no jurisdiction to
issue provisional assessment order against the order of High Court, the
appellants have filed the appeal.
The issues which fall for consideration by the Hon'ble Apex
Court in paragraph-12 of the aforesaid judgment to the following effect:-
"12. 1. Wherever the consumer consumes electricity in
excess of the maximum of the contracted load, would the
provisions of Section 126 of the 2003 Act be attracted on its
true scope and interpretation?
2. Whether the High Court, in the facts and
circumstances of the case, was justified in interfering with
the provisional order of assessment/show-cause notice
dated 25.7.2009, in exercise of its jurisdiction under Article
226 of the Constitution of India?
3. Was the writ petition before the High Court
under Article 226 of the Constitution of India not
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maintainable because of a statutory alternative remedy
being available under Section 127 of the 2003 Act?"
In the above context, the Hon'ble Apex Court has considered
the provision of Sections-126 and 135 of the Act, 2003. The Hon'ble Apex
Court held that the provisions of Sections-126 and 135 of the Act, 2003
work in different fields.
The following was laid down in paragraphs 24 to 30 of the
aforesaid judgment pointing out the distinction between the unauthorized
use of electricity and theft of electricity which are quoted herein below:-
"24. Upon their plain reading, the mark 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
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 (1A) 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 authorized 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.
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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
"authorized use of electricity". 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 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 unauthorized use, even in
absence of intention. These cases would certainly be
different from cases where there is dishonest abstraction of
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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
bypassing the installed meter, the case would fall under
Section 135 of the Act.
30. Therefore, there is a clear distinction between the
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 unauthorized 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 unauthorized use of electricity and then theft which is
governed by the provisions of Section 135 of the 2003 Act."
In paragraph-29 of the aforesaid judgment, it would be clear
that the expression "unauthorized use of electricity" under Section-126 of
the 2003 Act deals with cases of unauthorized use, even in the absence of
intention. The words "even in absence of intention" does mean that if
there is any intention to steal the electricity, admittedly it will come under
the fold of Section-135 of the Act, 2003 but even when there is absence of
intention, it will be treated as unauthorized use of electricity so that the
same will come under the fold of Section-126 of the Act, 2003, meaning
thereby, the word which is to be taken into consideration is of unauthorized
use of electricity and if there is an intention to steal the electricity along with
the provision of Section-126 of the Act, 2003 to make a provisional/final
19
assessment, a case is also to be registered under the provision of Section-
135 of the Act for inflicting punishment as per the aforesaid provision.
Simultaneously, for recovering the revenue due to the unauthorized use of
electricity by initiating a proceeding under the provision of Section-126 of
the Act, 2003.
In paragraph-49 of the aforesaid judgment, the Hon'ble Apex
Court further held that the provisions of Section-126 of the 2003 Act are
intended to cover the cases over and above the cases which would be
specifically covered under the provisions of Section-135 of the 2003 Act. The
said paragraph is quoted herein below:-
49. Once the court decides that it has to take a purposive
construction as opposed to textual construction, then the
legislative purpose sought to be achieved by such an
interpretation has to be kept in mind. We have already
indicated that keeping in view the legislative scheme and
the provisions of the 2003 Act, it will be appropriate to
adopt the approach of purposive construction on the facts of
this case. We have also indicated above that the provisions
of Section 126 of the 2003 Act are intended to cover the
cases over and above the cases which would be
specifically covered under the provisions of Section 135 of
the 2003 Act."
The Apex Court has observed in the said judgment that the
expression of explanation under Section-126 of the Act, 2003 is to be given
wider amplified manner. Conclusions have been recorded in the
paragraph-87 which is quoted herein below:
"87. Having dealt with and answered determinatively the
questions framed in the judgment, we consider it necessary
to precisely record the conclusions of our judgment which
are as follows:-
20
1. Wherever the consumer commits the breach of the terms
of the Agreement, Regulations and the provisions of the Act
by consuming electricity in excess of the sanctioned and
connected load, such consumer would be "in blame and
under liability" within the ambit and scope of Section
126 of the 2003 Act.
2. The expression "unauthorized use of electricity means"
as appearing in Section 126 of the 2003 Act is an
expression of wider connotation and has to be construed
purposively in contrast to contextual interpretation while
keeping in mind the object and purpose of the Act. The
cases of excess load consumption than the connected load
inter alia would fall under Explanation (b)(iv) to Section
126 of the 2003 Act, besides it being in violation of
Regulations 82 and 106 of the Regulations and terms of the
Agreement.
3. In view of the language of Section 127 of the 2003 Act,
only a final order of assessment passed under Section
126(3) is an order appealable under Section 127 and a
notice-cum-provisional assessment made under Section
126(2) is not appealable.
4. Thus, the High Court should normally decline to interfere
in a final order of assessment passed by the assessing
officer in terms of Section 126(3) of the 2003 Act in exercise
of its jurisdiction under Article 226 of the Constitution of
India.
5. The High Court did not commit any error of jurisdiction in
entertaining the writ petition against the order raising a
jurisdictional challenge to the notice/provisional
assessment order dated 25.7.2009. However, the High
Court transgressed its jurisdictional limitations while
travelling into the exclusive domain of the assessing officer
relating to passing of an order of assessment and
determining the factual controversy of the case.
6. The High Court having dealt with the jurisdictional issue,
the appropriate course of action would have been to
remand the matter to the assessing authority by directing
the consumer to file his objections, if any, as contemplated
under Section 126(3) and require the authority to pass a
final order of assessment as contemplated under Section
126(5) of the 2003 Act in accordance with law.
From the issues which falls for consideration by the Hon'ble
Apex Court in paragraph-12 and conclusions have been recorded in
paragraph-87 of the aforesaid judgment, it does not indicate that the Hon'ble
21
Apex Court has considered the issues that assessment is not to be made
under Section-126 of the Act, 2003 in the cases falling under Section-
135 of the Act, 2003 nor any such ratio laid down by the Hon'ble Apex Court
in the aforesaid judgment.
From the facts of the case as noted above, the writ petition has
been filed in the High Court challenging the assessment notice. The main
issue for consideration before the High Court was that wherever the
consumer consumes electricity in excess of consumption of the contracted
load, would the provision of Section-126 of the Act, 2003 be attracted.
In the said judgment, no such ratio has been laid down which
may support the petitioner's case that in the cases of theft of electricity
under Section-135 of the Act, 2003, no assessment can be undertaken
under Section-126 of the Act, 2003.
Provision of Section-135 of the Act, 2003 has to be interpreted in
the manner so as to give effect to the object or the purpose of the Act, 2003.
Interpretation of both the provisions has to be made in
harmonious manner to advance the object and to make both the provisions
to approve and effective.
Here it is relevant to refer the judgment rendered by
Constitution Bench of Hon'ble the Apex Court in the case of Tinsukhia
Electricity Supply Co. Ltd. -Vrs.- State of Assam and Others, reported
in (1989) 3 SCC 709 where it has been laid down that the provision of a
statute must be so construed as to make it effective and operative.
22
Paragarphs-118 and 120 of the said judgment are quoted herein
below:-
"118. The courts strongly lean against any construction
which tends to reduce a statute to futility. The provision of
a statute must be so construed as to make it effective and
operative, on the principle "ut res magis valeat quam
pereat". It is, no doubt, true that if a statute is absolutely
vague and its language wholly intractable and absolutely
meaningless, the statute could be declared void for
vagueness. This is not in judicial review by testing the law
for arbitrariness or unreasonableness under Article 14; but
what a court of construction, dealing with the language of a
statute, does in order to ascertain from, and accord to, the
statute the meaning and purpose which the legislature
intended for it."
"Unless the words were so absolutely senseless that
I could do nothing at all with them, I should be bound to
find some meaning and not to declare them void for
uncertainty."
"120. It is, therefore, the court's duty to make what it can
of the statute, knowing that the statutes are meant to be
operative and not inept and the nothing short of
impossibility should allow a court to declare a statute
unworkable."
8. The fact of the case in hand is that the F.I.R. has been instituted
which culminated into acquittal by the judgment rendered by the competent
court as per the statute.
The submission advanced by the learned counsel for the
petitioner that since the petitioner has been acquitted in the criminal case
and as such, there is no liability upon him to make any payment as per the
assessment made under the provisions of Section-126 of the Act, 2003.
As has been stated hereinabove that the proceeding to be
initiated under Sections-126 and 135 of the Act, 2003, but both are in
different fields having no bearing to each other.
23
9. In view of such legal position, now it is to be examined by this
Court whether after acquittal in the criminal case, the petitioner can be
given any benefit in a proceeding initiated under the provision of Section-126
of the Act, 2003?
It is evident from the judgment as has been annexed by the
petitioner by way of rejoinder affidavit that the trial court has taken into
consideration the deposition of P.W.1 given in paragraph-5 to the effect that
the meter situated outside the factory is accessible to the public and it can
be tampered by anybody desiring to do so. The statement of P.W.12 has also
been taken note as has been recorded in paragraph-4 of the deposition that
audio meter situating outside is guarded by a WESCO employee and they
had not received any report regarding any tampering from him.
Further it has been revealed from the evident of P.Ws.10 and 12
that a dump report was prepared by WESCO every month which discloses
actual reading of audit meter and main meter but the dump copy had not
been handed over to police during investigation which would have clarified
the actual energy consumption, and if the meters would have been
tampered, then there would certainly have been discrepant readings of audit
meter and dump copy reading.
Further it has been taken note of the seized article marked as
Ext.2 which was seized on 5.6.2011 that was after about six months of
lodging of the F.I.R. but without any explanation by the I.O. and thereby
acquitted the petitioner from the criminal case.
24
This Court is of the view after going across the aforesaid
judgment that the same is not clean acquittal rather on technicality, the
benefit of doubt has been given and thereby the petitioner has been
acquitted.
However, this Court is not making any comment upon the
legality and propriety of the judgment, since that is not the issue before this
Court.
This Court, after reiterating the legal settled position as has
been discussed in the preceding paragraphs, is of the view that since
proceeding is initiated under the provision of Section-135 of the Act, 2003
will have no bearing upon the proceeding initiated under Section-126 of the
Act, 2003 that will also applicable even in case of acquittal in the criminal
case for offence committed under Section-135 of the Act, 2003.
One further point is to be referred herein that the petitioner has
not chosen to file appeal under the provisions of Section-127 of the Act,
2003 against the final assessment order made by the authority under the
provision of Section-126 of the Act, 2003 and as such, the final assessment
has attained its finality. Hence, the petitioner's Unit is liable to make
payment of the amount as has been assessed finally by the authority under
the provision of Section-126 of the Act, 2003.
It is also relevant to refer herein a Letter No.42/2/2005-R&R
dated 12th November, 2007 issued by the Director (R&R), Government of
India, Ministry of Power to the Principal Secretary/Secretary (Energy) of all
25
the States and the Secretaries to all SERCs referring the subject therein
applicability of provisions of Section 126 and 135 of the Electricity Act,
2003 whereby and whereunder the decision taken by the Ministry of Power,
Government of India that the assessment made under Section 126 of the
Act, 2003 of the charges for unauthorized use of electricity would be
applicable to those cases where action is taken for offences under Section
135 and the situation of alleged commitment of offence is covered under the
provisions of Section-126. For ready reference, the content of the said letter
is being quoted herein below:-
"No.42/2/2005-R&R
Government of India
Ministry of Power
Shram Shakti Bhawan,
Rafi Marg,
New Delhi
The 12th November, 2007.
To
The Principal Secretary/Secretary (Energy) of all the States.
The Secretary of all SERCs.
Sub: Applicability of Provisions of Section 126 and 135 of the
Electricity Act, 2003.
Sir,
Subsequent to the enactment to the Electricity (Amendment)
Act, 2007 references have been received from the M.P. Electricity
Regulatory Commission and the U.P. Electricity Regulatory
Commission seeking clarification regarding applicability of the
provisions of Section 126 and 135 of the Electricity Act. The matter
has been examined in consultation with the Deptt. of Legal Affairs
and accordingly following is clarified :
(i) Key difference between the two provisions of Sections 126
and 135 is that dishonest intention as mentioned u/s. 135 is the
necessary ingredient for the offence of theft of electricity.
(ii) For prosecuting someone u/s. 135 a complaint or a report by
police to the Court is necessary u/s. 151.
(iii) Section 126 is for assessment of the charges for
unauthorised use of electricity. This provision would also be
applicable to those cases where action is taken for offences under
Section 135 and the situation of alleged commitment of offence is
covered under the provisions of Section 126.
Yours faithfully,
Sd/-
(Alok Kumar)
Director (R&R)"
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10. In view of the discussion made in detail hereinabove, both the
issues are answered.
Accordingly the writ petition fails and it is dismissed.
........................
S.N. Prasad, J.
Orissa High Court, Cuttack, Dated the 21st August, 2018/D. Aech