Abdul vs Torrent on 14 February, 2011

[Cites 10, Cited by 0]

Gujarat High Court

Abdul vs Torrent on 14 February, 2011

1. The appellants have preferred the two appeals under clause 15 of Letters Patent against the common order dated 26.4.2010 passed by the learned single judge disposing two writ petitions on the ground of alternative remedy before the special court constituted under the provisions of the Electricity Act, 2003 (hereinafter referred to as the "said Act"). The Appeal No.1685 of 2010 arises from SCA No.781 of 2010 whereas the Appeal No.1686 of 2010 arises from SCA No.790 of 2010. Having regard to the facts involved in the Appeals and the submissions of the learned advocates and with the consent of the learned advocate of both sides the Appeals are heard and decided finally at this stage.

2. The facts, relevant to consider and decide the appeals, are as follows:-

2.1 So far as the appellants in LPA No.1685 of 2010 are concerned, they are the owners of the premises described (in the appeal as) 13/A ground floor Sahyog Cooperative Society Ved road Surat where the present respondent No.1 company has, supplied electricity connection for industrial purpose, with sanctioned load of 9 HP. The connection has been released, since 1995. The appellants claim that the respondent No.1 company, which is a "licencee" under the Provision of the said Act has installed two meters, one being single phase meter and the second being a three phase connection/meter.

2.2 It appears that on or around 10.5.2008 a raid/inspection was undertaken by the respondent company in the area where the unit of the appellants (LPA 1685 of 2010) is situate. The raid /inspection was carried out at the appellants' unit as well. An inspection sheet dated 10.5.2008 was prepared. It is the case of the respondent company that the appellants (LPA 1685 of 2010) were found indulging in the act amounting to theft of electricity, which was recorded in the inspection sheet as well as in the "rozkam". It is also claimed that as per the provisions of the Act, the respondent No.1 company filed an FIR on 15.5.2008 against the appellants for the alleged offence of theft of electricity. Subsequently a supplementary bill dated 24.5.2008 in the sum of Rs.9,46,701.87 was raised.

2.3 It appears that upon registration of the FIR the appellants of LPA No.1685 of 2010 approached the respondent company by way of a written request that they were ready and willing for compounding the offence.

The respondent company accepted the request on the condition that the appellants should pay the compounding fees/charges and the supplementary bill, and necessary intimation to that effect was forwarded to the concerned Police Station.

2.4 It comes out that the appellant paid 50% of the amount in question and for the balance amount the appellants tendered post-dated cheques. Upon payment of the 50% payable amount, reconnection of the electricity supply was granted.

2.5 It emerges that subsequently i.e. after having paid 50% amount and having tendered the post-dated cheques the appellants addressed a letter to the respondent company requesting it to not to deposit the said post-dated cheques.

2.6 It transpires that thereafter the appellants approached the Court and applied for, and were granted, anticipatory bail. By this time the respondent company had already conveyed to the concerned Police Station about the appellants' request for compounding of offence and about the payment of 50% amount.

2.7 The appellants, however, after paying certain further amounts, (out of the balance 50% amount which was outstanding) stopped making payments. Therefore, the respondent company again disconnected the power supply. The appellants then filed the writ petition claiming diverse relief/s. The respondent company resisted the petition on various grounds including the fact that the appellants had on their own requested for compounding the offence. Upon considering the rival submissions the learned Single Judge disposed of the petition on the ground of alternative remedy before the Special Court.

3. Now so far as the LPA No.1686 of 2010 is concerned, the appellant has challenged the common order dated 26.4.2010 whereby the learned Single Judge also disposed of the SCA No.790 of 2010.

3.1 It deserves to be noted that the appellant in Appeal No.1686 of 2010 which arises from SCA No.790 of 2010 is also the petitioner and the appellant No.1 in SCA No781 of 2010 and in Appeal No.1685 of 2010 respectively. Thus the appellants in both the Appeals are common and the order challenged in both the appeals is also common and the Counsel, in both the petitions, has raised common and similar contentions. Hence, both the appeals are disposed of by present common order.

3.2 The appellant in LPA No.1686 of 2010 has some how mentioned different addresses (as the address of his residence) in the said two appeals. In Appeal No.1686 of 2010 the appellant has raised grievance in connection with the meter bearing No.71012176 in he said other Appeal, the grievance was regarding meter No.2680859 and 73317018. The other aspects forming the factual background of the two petitions appear to be almost similar inasmuch as in Appeal No. 1686 of 2010 (arising from SCA No.790 of 2010) also it is claimed that inspection of several industrial premises including the premises of the petitioner was carried out in May 2008. The names of the officers who comprised the team in both cases are also common. The inspection-sheet in Appeal No.1686/2010, which was prepared on 10.5.2008 also alleged that the petitioner had indulged in acts amounting to theft of electricity, pursuant to which, the respondent company had lodged FIR with GEB Police Station, Surat which was registered as CR-II No.853 of 2008 (whereas in the other Appeal the FIR was lodged as CR-II No.854 of 2008).

3.3 In Appeal No. 1686 of 2010 also the appellant requested for compounding of offence and paid a sum of Rs.26,000/- on 9.6.2008 towards compounding fees and in view of the said payment, the officer of the respondent company had forwarded communication dated 16.6.2008 to the 7th Additional Civil Judge and Judicial Magistrate First Class abut the appellant's request for compounding of offence.

3.4 Even in respect of Appeal No.1686 of 2010 the appellant, after having paid amount towards compounding fees, applied for and was granted anticipatory bail. Thereafter, the appellant filed the petition being SCA No.790 of 2010 alleging that he was threatened that he would be arrested and that therefore he had paid compounding fees and the sum of Rs.45,000/- and Rs.40,746/- were taken from him towards the supplementary bill and Rs.26,000/- towards compounding fee.

3.5 What emerges from the facts stated by the appellant of Appeal No.1686 of 2010 in his petition being SCA No.790 of 2010 is that after having paid the entire amount of supplementary bill, without raising any dispute with regard to the quantification of the supplementary bill amount, and after having paid amount towards compounding fee and the bill amount as well and after having applied for and granted anticipatory bail, the appellant preferred the petition being SCA No.790 of 2010 praying:-

7(A) This Hon'ble Court may kindly be pleased to issue a writ.... declaring that the subsequent bill issued by the respondents to the petitioner to the tune of Rs.85,746/- and recovering the amount of Rs.26,000/- towards compounding fees is ex-facie illegal, arbitrary, null and void....

(B) This Hon'ble Court may kindly be pleased to issue a writ ....declaring that no theft has been committed by the petitioner by breaking open the seal from the main Meters and therefore, the alleged bills are incorrect and illegal and the subsequent recovery of the amount from the petitioner is illegal.

3.6 The said petition was contested by the respondent by filing reply affidavit contending that it was the petitioner (i.e. the present appellant) who after the FIR was lodged, requested for compounding of offence and had submitted the letter dated 23.5.2008 to the General Manager (Commerce) requesting for settlement/compounding of offence. In its reply affidavit, the respondent-Company asserted that:-

2.3 the petitioner has already paid the assessment amount and has also compounded the offence of theft of electricity under Section 135 of the Electricity Act, 2003 by paying the compounding charges, now, after 19 months the petitioner cannot challenge the assessment and cannot ask for refund of the amount of assessment and compounding charges, and cannot ask for declaration that no theft has been committed by him. The prayers are barred by estoppal, acquiescene, waiver and even otherwise.

3.4 On 15.5.2008 the company's authorized Executive lodged FIR at GEB police station vide FIR No.GEB/II/Cr/853/08.

3.5 Final assessment bill of Rs.85,745/- for the period from 1-5-2007 to 30.4.2008 (one year) was sent to the consumer by Registered Post A.D. 3.8 On 23.5.2008 the consumer gave letter to General Manager (Commerce) of the company requesting for settlement of cases and compounding of the offence in respect of both the services viz. service No. 311068 and 311070 and the consumer deposited cheques as mentioned in the request letter.

3.9 On 26.5.2008 a letter was written to GEB police station to inform about the willingness of the consumer to settle the cases and to compound the offences.

3.11 On 16.6.2008 a letter was written to GEB police station and the 7th Additional Civil Judge and JMFC by compounding the offence under Section 152 of the Electricity Act, 2003 to compounding officer to compound the offence on payment of compounding charges of Rs.26,000/-

on 9.6.2008 vide receipt No.BA.330800821.

3.12 Thereafter, after 19 months of making the payment and compounding the offence the present writ petition has been filed by the consumer on 10.2.2010.

3.7 It is also relevant to note that the appellant filed rejoinder affidavit wherein with reference to the specific averment and assertion made by the respondent company in paragraphs 3.8 and 3.9, the respondent, in para 14 of his rejoinder merely claimed that:-

"14.

With reference to para 3.8 and 3.9 of the affidavit in reply, I say that the facts stated therein are assertion of facts which do not call for any comments."

3.8 Thus, what transpires from the record is that the appellant had desired compounding of offence and the said request was accepted by the respondent company and consequently FIR lodged by the respondent company did not culminate into regular and full-fledged proceedings of a criminal case against the appellant. Then, almost 19 months after the request, the appellant preferred the petition being SCA No.790 of 2010 and in background of such facts the learned Single Judge disposed of the said SCA No.790/2010 also only on the ground of alternative remedy. Aggrieved by the said order the appellant has preferred Appeal No.1686 of 2010 on similar contentions The learned Counsel in both the Appeals made common submission in support of the Appeals.

4. Heard Mr. Mangukiya, learned advocate for the appellants and Mr. Pujara, learned advocate for the respondents. We have perused the record.

4.1 The learned Counsel for the appellants submitted that learned Single Judge has erred in disposing the petition on the ground of alternative remedy whereas in view of the fact that the respondent company did not file any criminal case in both the matters the appellants have been deprived of the forum to dispute the civil liability and/or the quantum of civil liability (i.e. the amount quantified by the supplementary bill) though compounding of criminal offence would not mean that the customer cannot dispute the civil liability. He submitted that the learned Single Judge failed to appreciate that if the licencee does not file the case in the special Court then the customer does not have any forum to dispute the civil liability because the customer cannot approach the Special Court in absence of institution of the case by the licencee and therefore, as such, any alternative remedy is not available. He, therefore, submitted that the petition ought not have been disposed off on the ground of alternative remedy.

4.2 Per contra, the learned Counsel for the respondent company submitted that having requested the respondent company for compounding of offence and having accepted to pay the entire amounts of the supplementary bill and towards compounding charges/fees, the appellants now cannot make a retreat and raise dispute against the supplementary bill and/or cannot dispute the factum of theft (i.e. that its act amounting to offence of theft) of electricity, more particularly when the respondent company accepted the appellants' request and even acted on it when the appellant paid the entire amount (in the matter of SCA No.790 of 2010) and paid 50% of the due and payable amount and also tendered post dated cheques for the balance 50% of the due and payable amount (in the matter of SCA No.781 of 2010). He also submitted that in view of the decision by the Division Bench in the case between Torrent Power A.E.C. Limited vs. Gayatri Intermediates (2006(2) GLR 1580) the appellants' contention that they have no alternative remedy and therefore the petition ought not have been disposed of on such ground, is misconceived.

5. When the learned Single Judge has disposed both the petitions on the ground of alternative remedy and without entering into and adjudicating the dispute on merits, we would, ordinarily, not entertain a Letters Patent Appeal (against decision of the learned single judge disposing the petition on ground of alternative remedy).

6. Now, so far as present Appeals are concerned, in both the cases before us we have noticed, from the record and the submissions of the learned advocates of both sides, that, though separately, but in both the matters, the appellants had, by their letters made similar request to the respondent company for compounding of offence (i.e. in respect of subject matters of both F.I.R.s). The said letters are to be found at page 61 of the paper book of Appeal No.1685 of 2010 and at page No.51 in Appeal No.1686 of 2010 respectively. The respondent company has made reference to the said letter in para 3.8 of its reply affidavit filed in SCA No.781 of 2010, which reads thus:-

"3.8 On 3.5.2008 the consumer addressed a letter to General Manager (Commerce) of the Company requesting for settlement of cases and for compounding the offeces in respect of both the services viz. Service No.311068 and 311070 and deposited cheques as mentioned in the request letter."

Similar assertions are made in reply affidavit in SCA No.790 of 2010 as well.

6.1 The respondent company appears to have thereafter informed, in both the cases, the concerned police station about the appellants' request. Reference to the said aspect is made by the company in para 3.9 (page

44) of its affidavit (in Appeal No.1685 of 2010) which reads thus:-

3.9 On 26.5.2008 letter was written to the GEB Police Station to inform about willingness of the consumer to settle the case and to compound the offence.

Similar averments are in the affidavit in Appeal No.1686 of 2010.

6.2 Now, what is pertinent is that having made the request for compounding of offence and having made the payments of the compounding fees and the supplementary bills (as per the details aforesaid) and having successfully avoided the initiation of proceedings of criminal case by requesting the company for compounding of offence, the appellants approached the court by filing petition.

6.3 It is in this context and in light of the aforesaid aspects that the reliefs prayed for by the appellants before the learned Single Judge in SCA No.781 of 2010 deserve to be considered. The appellants prayed that:-

"7(A) ......declaring that the subsequent bill issued by the respondents to the petitioners to the tune of Rs.7 lakhs is illegal, null and void.

(B) .......declaring that no theft has been committed by the petitioners by breaking open the seal from the main meters and therefore, the alleged bills are incorrect and illegal and the subsequent recovery of the amount from the petitioners is illegal.

(C) ......declaring that wrong bill has been issued and wrongful prosecution has been launched against the petitioners and further be pleased to hold and declare that the petitioners have been wrongly arrested and deprived of the power supply, causing in great suffering and mental agony and other loss sustained to the petitioners assessed to the tune of Rs.15 lakhs.

(D) ...... directing the respondents o reconnect the power supply of the connection released in favour of the petitioners bearing service No.311070 forthwith.

(E)........., (F)........., (G).........

The relief(s) prayed for in SCA No.790 of 2010 have been noted earlier.

6.4 Thus, as per the record, after having written the letters requesting for compounding the offence, (in both cases) the appellants disputed (in the petition filed after about 19 months) almost all events and developments including the charge of theft of electricity.

It is the said conduct of the appellants, which is relevant in both the Appeals.

7. As can be seen from the above quoted reliefs prayed for, the appellants shifted their stance in the petition (from the stance taken in the letter requesting for compounding of offence) and not only disputed the bill amounts but also prayed that it may be declared that wrongful prosecution was launched against them. They also claimed compensation.

7.1 After having requested for compounding of offence and after the company informed the concerned police station accordingly and in that view of the matter, the proceedings of the criminal case were not instituted and/or did not commerce. The appellants, thereafter, filed the two petitions seeking above mentioned reliefs. Despite the facts as aforesaid the learned Single Judge, so as to not harm the appellants, disposed off the petition by observing that there is alternative remedy available to the appellants.

8. We would refrain from making any other or further observation about such change in the stand, but we, as bound by facts obtaining on record, must record that the relief(s) prayed for in the petition are contrary to their request of compounding offence. We make it clear that we have not considered and decided the aspect viz. whether such shift in the stand was permissible or not, unjustified or not, but we have only noted the factual position flowing from the record.

8.1 We do not want to say anything further about the petitions which were filed after the respondent company, acted upon the appellants' request (for compounding of offence) and accordingly informed the police station, lest the observations may affect the case of either side in the proceedings which may be taken out by the appellants.

8.2 However, in view of the facts of the two petitions noted above, we are not inclined to entertain the Appeals and to interfere with the common decision of the learned Single Judge (to not to entertain the petitions on the ground of alternative remedy).

8.3 Having regard to and in view of the facts of the two cases, we are not persuaded to and are not inclined to entertain the appeal against the order of the learned Single Judge disposing the two petitions on the ground of alternative statutory remedy before the Special Court.

8.4 Furthermore, even if the appellants' contentions were to be examined, then also in view of the facts involved in the two Appeals, more particularly the fact that (a) it was the appellants who approached (in both the cases) the respondent company with a request for compounding of offence and (b) it was because of the appellants' request for compounding of offence (in both the cases) that the respondent company, after having filed FIR, conveyed the concerned police station and consequently the proceedings of criminal case were not initiated, the relief prayed for by the appellants against prosecution, compensation etc. (e.g. relief prayed for in para 7(B) of the petition being SCA No.781 of 2010 and/or 7(B) of SCA No.790/2010) would not qualify for being entertained considered and granted.

9. It appears that it is, probably, with a view to avoiding or to overcome the eventuality that the appeals against the order disposing the petitions on the ground of statutory alternative remedy may not be entertained, that the appellants have raised the contention to the effect that since the licencee (i.e. the respondent company) has not instituted any case before the Special Court, they do not have any forum to dispute their civil liability. However, it comes out on perusal of the impugned order that the learned Single Judge has, in the impugned common order, drawn support from the decision of the Division Bench in the case of Torrent Power A.E.C. Ltd. (supra) and observed that the alternative statutory remedy before the Special Court is available. The appellants would dispute the said view and contend that the consumer would be able to challenge the civil liability only if there is a theft case i.e. only if the licencee initiates proceedings in the Special Court. It is, however, overlooked that in both the cases which have given rise to present Appeals, it is the appellants who had requested the licencee (the respondent company) for compounding of offence and thereby to not to initiate criminal case. Thus, as noted earlier, even otherwise, it would not be open to the appellants to raise any dispute, at this stage i.e. after requesting for compounding of offence, regarding prosecution/F.I.R.(s).

9.1 We may again make it clear that we have consciously refrained from making any observations with regard to the relief prayed for against civil liability, because the learned Single Judge has disposed off the petition on ground of alternative remedy.

9.2 If the non-initiation of the "theft-case" in the Special Court by the licencee can be said to be an impediment in disputing the civil liability, as contended by the appellants, then in present case such situation is brought about by the appellants themselves and it is entirely making of the appellants for which they should thank themselves. Having regard to the fact that the appellants had, of their own choice requested for compounding of offence and when after accepting the request, the respondent company acted upon such request and the proceedings of the criminal case was not initiated, we are not inclined to entertain the appeals of the appellants who want to challenge almost everything, after having brought about such situation, on the pretext that they do not have forum to dispute their civil liability.

9.3 It is pertinent that after having paid the entire bill amount in case of SCA No. 790 of 2010 alongwith compounding fees and 50% of the amount in case of SCA No.781 of 2010 alongwith (a) compounding fees and (b) post dated cheques for the balance amount, the appellants, now almost more than 1½ years after compounding of the offence, cannot be heard (in the two Appeals) disputing almost everything and every aspect of the matter under the garb of challenging the civil liability. Thus, we are, not inclined to enter into and examine the submissions with regard to the decision of the Division Bench in the case between Torrent Power A.E.C. Limited vs. Gayatri Intermediates (2006(2) GLR 1580) and contention sought to be raised by the appellants.

9.4 While clarifying that it is in view of (i) the facts of present case and (ii) on account of the appellant's conduct that we are not inclined to entertain the appeals and that therefore we have not revisited and examined the earlier decision of the another Division Bench in the aforesaid case, we may take note of the observations made by the Division Bench (while negativing similar contention in paras 15.1 to 15.3 of the said case) that:-

15.1 We may now deal with the submission made by the learned counsel for the petitioner-consumers who contended that in a given case the consumer may or may not dispute the allegation of theft made by the licensee or its officers, but the consumer may still dispute the amount of supplementary bill issued in theft cases. It is submitted that the Act does not provide for any remedy in such cases and that Section 151 allows only licensee or authorities to move the Court with a complaint to take cognizance of an offence, but no provision in the Act provides for an appeal or other proceeding at the instance of the consumer to challenge assessment made by the licensee in a theft case. It is, therefore, submitted that the powers of the Civil Court cannot be treated to have been excluded when there is no remedy provided by the Act in such cases.

15.2 We do not think that a consumer is without remedy in such cases.

Sub-section (5) of Section 154 specifically provides that the Special Court may determine the civil liability against a consumer or a person in terms of money for theft of energy. The next part of sub-section (5) imposes the following restrictions on the power of the Special Court to determine the civil liability -

(i).......

(ii)......

(iii) ....

15.3 There is nothing to indicate that the power and jurisdiction conferred on the Special Court under sub-section (5) of Section 154 is conditional upon the licensee filing a complaint before the Special Court under Section 151 of the new Act. In fact while the provisions relating to offences and penalties from Sections 135 to 139 are to be found in Part XIV.......the provisions relating to the Special Court are to be found in a separate part being Part XV of the Act. Since the power to try offences punishable under Sections 135 to 139 is conferred exclusively on the Special Court constituted under Section 153 of the Act and the provisions of sub-section (5) of Section 154 specifically invest the Special Court with the jurisdiction to determine any dispute regarding the quantum of civil liability in theft cases, we are clearly of the view that a consumer intending to challenge the quantum of civil liability in theft cases (whether or not he disputes the allegation of theft) is still entitled to make such a challenge to the disputed bill before the Special Court, even in cases where no criminal complaint is filed against the consumer.

The doubt, if any, is removed by Regulation 7.6.7 in the Gujarat Electricity Supply Code (quoted in para 8.1) (emphasis supplied) 9.5 Since, in present case, the learned Single Judge has passed the impugned order disposing present appellants' two petitions on the ground of alternative remedy before the Special Court, the appellants appear to have raised the above noted contention probably in view of the observations in para 15.3 and 15.6 of the judgment that:

"15.3 ..... specifically invest the Special Court with the jurisdiction to determine any dispute regarding the quantum of civil liability in theft cases...."

15.6 .....

not only empowers the Special Court to determine civil liability of the consumer in theft cases ....."

10. It appears that the appellants have understood, from the said observations, that the Special Court can determine the civil liability of the consumer only in theft cases i.e. it is only when the "theft case" is instituted that the consumer can dispute the civil liability and not otherwise; and since a consumer cannot institute such case before the Special Court the said liability would not get determined by the Court (in absence of theft-case) and the appellants would be without competent forum.

10.1 However, the appellants seem to have overlooked that the Division Bench also took into consideration the fact that the Central Government, in exercise of power conferred by Section 183 of the Act, brought in force the Electricity(Removal of difficulties) Order 2005 and thereby the Electricity Supply Code came to be framed by Gujarat Electricity Regulatory Commission under Section 50 of the Act. The said code contains regulation Number 7.6.7 which provides thus:-

"7.6.7 In case of any dispute including any dispute about assessment, the matter should be submitted forthwith by licensee for cognizance in the Court (within whose jurisdiction it has arisen) as specified under section 151 of the Act. Any direction needed in connection with such matters shall be obtained from the Court."

10.2 In view of the said provision the Division Bench has in the said judgment held that:-

".....doubt, if any, is removed by Regulation 7.6.7 in the Gujarat Electricity Supply Code".

10.3 The Division Bench, in the said earlier decision also noted that the Regulation 7.6.7 of the said Code contains provision for compounding of offence. It was also noticed that the notification dated 14.02.2005 issued by the Commission provides, inter-alia, for taking into account the Meter Reading Instrument data for deciding dispute regarding assessment.

10.4 The Division Bench, thus, has held, in light of Regulation 7.6.7 that even in cases where the licencee does not institute "theft case" it should submit the dispute about assessment for cognizance in the Court. Meaning thereby, the licencee is obliged to submit, the dispute, if any, about assessment, for cognizance of the Court.

11. In view of the facts leading to and involved in present Appeals, which have been discussed hereinabove at some length, we are not inclined to make any other observations with regard to the submissions made by the appellant's Counsel in light of the decision of the Division Bench in the case of Torrent Power A.E.C. Limited (supra), and we would simply observe that it is in light of the aforesaid observations in para 15.1, 15.3 and 15.6 of the decision by the Division Bench, the learned Single Judge disposed of the petitions. In the facts of the case, the order does not warrant interference.

In present case we shall go only thus far and not beyond.

In light of the facts of present case and for the reasons discussed hereinabove earlier we are not inclined to interfere with the common order passed by the learned Single Judge disposing of the two petitions on the ground of alternative remedy. The appeals are, therefore, not entertained and the same stand disposed off. However there shall be no order as to costs.

(S.J. MUKHOPADHAYA,C.J.) (K.M.THAKER,J.) Suresh* Top

Unlock Advanced Research with PRISMAI

Gujarat High Court