Jharkhand High Court
Dayal Steels Ltd. vs State Of Jharkhand And Ors. on 28 March, 2008
Equivalent citations: [2008(2)JCR566(JHR)], AIR 2008 JHARKHAND 105, 2008 (3) AIR JHAR R 76
Author: D.G.R. Patnaik
Bench: M. Karpaga Vinayagam, D.G.R. Patnaik
ORDER D.G.R. Patnaik, J.
1. Challenge in this appeal is against the order of the learned single Judge passed in WP (C) No. 746 of 2008, whereby the writ application was disposed of with certain observations directing the respondents to raise a provisional bill and after considering and deciding upon objection, if any, by the petitioner, to repare and raise the final bill under Section 126 of the Electricity Act and, with a further direction to restore electrical connection to the petitioner's factory premises subject to the petitioner's depositing a sum of Rs. 3.00 crores. The amount so deposited was made subject to final decision that may be taken by the respondents after considering the objections filed by the petitioner against the provisional bill.
2. Prayer in the writ application as made by the appellant/petitioner was for directions to the respondents:
1. To forthwith restore the power supply of the petitioner, which was disconnected by the respondent No. 5/7 on 1.2.2008.
2. To not to take any coercive/penal action against the petitioner pursuant to the FIR lodged against the petitioner.
3. To direct the respondents not to raise /charge any average/guarantee bill upon the petitioner for the disconnection period.
4. To award adequate compensation/cost to the petitioner for the purposed illegal actions of the respondents.
3. Brief facts of the case is that the appellant/petitioner had taken electricity connection from the respondent Damodar Valley Corporation (DVC) (hereinafter referred to as the 'Corporation') for its factory at village Chaha in the district of Ramgarh in the year 2000. The supply of electricity was made through the appellant's own erected supply lines. Initially, the appellant was the only consumer and therefore, single meter was installed by the supplier at its own end. There was no separate meter installed in the premises of the appellant. On account of the considerable distance from the sub-station to its factory premises, the appellant had suffered huge amount of transmission loss to the extent of Rs. 5.00 crores in between January 2001 to October 2004 to which, though respondent supplier had agreed to reimburse the appellant, but later, did not pay any heed in the matter. The appellant filed a writ application vide WP (C) No. 6023 of 2001 before this Court and obtained a direction from the Court vide order dated 29.1.2002 against the DVC authorities to take a final decision in the matter of grant of transmission loss to the appellant within 30 days from the date of receipt of the Court's order after giving reasonable opportunity of hearing to the appellant. A further direction was contained in the Court's order to the respondents to revise all the bills and to refund/adjust the excess paid amount. The respondent DVC failed to comply with the aforesaid order of the Court as a result of which, a sum of Rs. 5.00 crores as claimed by the appellant as excess amount paid by them, remained pending with the respondents.
4. The respondent DVC authorities continued to raise the bills upon the appellant on the basis of the meter, which was installed in the sub-section till October, 2004 whereafter a separate meter was installed within the premises of the appellant. The bills for electric consumption began thereafter to be raised on the basis of the readings in the meter installed within the premises of the appellant and till December 2007 appellant had continued to pay all the monthly bills. However, despite the fact that the feeder line was installed by the appellant at its own cost, the respondent DVC choose to supply electrical energy to two other consumers by the same feeder in July 2006 and in March 2007 through only single meter installed at the sub-station of the DVC, although separate meters were installed in the individual units of the consumers. The appellant claims that under the terms of the agreement, for the supply of electric energy, it is the supplier who has to install the metering equipment and to maintain them. Such meters are supposed to be properly sealed and the seals are not to be interfered with by the consumers or even by the supplier except in the presence of their respective duly authorised representatives.
5. The grievance of the appellant is that on 1.2.2008 the respondents 6, 7 and 8 visited the appellant's factory premises on the plea that they had come for maintenance work of the metering units and thereafter, disconnected the power supply without giving any opportunity to the appellant and despite protest made by the appellant's men who were present. The disconnection was carried out by breaking open the seals of the meter room, meter boxes and junction box.
6. It is alleged that when the appellant's men had wanted to resist, the respondent Executive Engineer had even invited the police to thwart the resistance. It was on the next day, that the appellant received message telephonically followed by FAX message from the respondent No. 8 that electric supply was disconnected under superior orders and on the ground that the electric supply cable was found punctured at several points by some illegal methods and the electrical energy was pilfered by artificial means leading thereby to a wide variation to the extent of 80% in the meter reading recorded at the premises of the appellant. The appellant was also informed that the respondent No. 7 had lodged an FIR against the appellant on the allegation of theft of electrical energy.
7. Claiming that there could not by any possibility of pilfering or stealing energy through pin-holes from the 33 KV load of electric supply cable and further claiming that the allegations in the FIR are totally false, concocted and misleading, the appellant had challenged the very authority of the respondents either to enter into the factory premises of the appellant for any search or seizure or, even to lodge FIR against the appellant under Section 135 of the Electricity Act.
8. The appellant also challenged the authority and jurisdiction of the respondent Nos. 5 and 7 or any of the respondents to disconnect the power supply of the appellant. The appellant has claimed that though, under Section 135(1-A) of the Electricity Act, licensee or supplier may disconnect the electric supply in the event of detection of theft of electricity, but power to enter into the premises and to make inspection, search and to break up seals etc., is vested only with any officer of the licensee or supplier who is authorised in this behalf by the State Government and further, the disconnection of the electric supply can be made only by the Appropriate Commission or any officer of the licensee or supplier who is duly authorised and not by the respondents. It is further claimed that only such officer who is duly authorised, has the power to lodge complaint in writing relating to commission of offence, in the police station, and such power being not vested with the respondent No. 7, the entire acts and deeds of the respondents is totally illegal and the prosecution of the appellant under Section 135 of the Electricity Act is therefore, illegal and against the provisions of law.
9. Shri Binod Kanth, learned Senior Advocate, appearing on behalf of the appellant: while reiterating the same grounds as raised in the writ petition, would argue that the learned single Judge has failed to consider the relevant issues raised by the appellant in the writ petition particularly to the facts that disconnection of electric supply as made by the respondents, was thoroughly illegal and an abuse of the process of law resulting in grave and serious prejudice to the appellant. The grievance of the appellant is that the learned single Judge, even without calling upon the respondents to file counter-affidavit, choose to dispose of the writ application at the stage of admission itself by directing the appellant to deposit a sum of Rs. 3.00 crores as a pre-condition for restoration of power supply, without considering the fact that none of the respondents had authority under the law to proceed against the appellant under Section 126 of the Electricity Act, 2003. It is also argued that the order of the learned single Judge is vague and impractical in as much as, direction to proceed under Section 126 of the Electricity Act cannot be carried out by any of the respondents herein in absence of any Assessing Officer designated as such by the State Government. Thus, the appellant has essentially challenged the authority of the respondents particularly, respondents 5 and 7 in the matter of making entry and search within the premises of the appellant and in the matter of disconnecting the electric supply and also in the matter of lodging the FIR against the appellant.
10. Respondents have not filed any counter-affidavit. However, Mr. M.S. Mittal, learned Counsel appearing for the respondents would refute the entire grounds raised by the appellant and argue that the respondents 6, 7 and 8 being the officers of the respondent Damodar Valley Corporation, are authorised, generally by the corporation to enter into the land and premises of the petitioner at all reasonable times for the purposes of making any survey and examination or investigation, incidental to the exercise of powers or performance of functions by the corporation under Damodar Valley Corporation Act, 1948 and they are also empowered to disconnect the electric supply to the appellant on detecting theft of the power supply by the appellant and its representative. Learned Counsel would explain further that functions and powers of the officers of the Damodar Valley Corporation, are guided under he Damodar Valley Corporation Act, 1948 and the provisions of the Act would have overriding effect over any other law, as per Section 58 of the said Act. It is also argued that the respondent No. 7 being the Executive Engineer, Damodar Valley Corporation, Ramgarh Sub-station, is deemed to be duly authorised, under he provisions of the Damodar Valley Corporation Act, to lodge a complaint before the police against theft of electricity and, under Section 151-A of the Electricity Act, the police has the powers to investigate on receipt of the complaint. Learned Counsel adds further that by the impugned order of the learned single Judge, the main prayer of the appellant for restoration of electric supply, has been allowed. The investigation of the case initiated on the basis of the FIR can not now be interfered with.
11. It may be mentioned here that by supplementary affidavit, appellant has informed that in compliance with the directions of the learned single Judge, as contained in the impugned order, the appellant has deposited a sum of Rs. 3.00 crores, though without prejudice to the appellant's right for adjustment and, subject to final decision, if any, in the matter under dispute and the respondents have also accepted the payment without prejudice to their right to appeal. Learned Counsel for the respondents acknowledges has after receipt of the payment of Rs. 3.00 crores, the electric supply to the appellant has been restored.
12. For better appreciation of the rival contentions, certain facts, which have been admitted, may be taken notice of. The respondent No. 3 Damodar Valley Corporation (hereinafter referred to as the 'Corporation') was established under the Damodar Valley Corporation Act, 1948. Amongst the main functions of the corporation are, generation and distribution of electric power. The respondents 4 to 8 are the officers of the corporation and authorised inter alia to maintain the supply and distribution of electricity.
13. Since the transaction, distribution and trade in electricity is governed under the provisions of the Electricity Act, such transaction, distribution and trading in electricity can be done only under licence granted by the Appropriate Commission as envisaged under Section 14 of the Electricity Act, 2003.
The fourth proviso to Section 14 of the Electricity Act, which refers to Damodar Valley Corporation, reads as under:
Provided also that the Damodar Valley Corporation, established under Sub-section (1) of Section 3 of the Damodar Valley Corporation Act, 1948 (14 of 1948), shall be deemed to be a licensee under this Act but shall not be required to obtain a licence under this Act and the provisions of the Damodar Valley Corporation Act, 1948 (14 of 1948) insofar as they are not inconsistent with the provisions of this Act, shall continue to apply to that Corporation.
Thus, the status of the Corporation is that of licensee and it is entitled to carry out its functions under the provisions of the Damodar Valley Corporation Act, 1948, though subject to certain regulations as imposed upon the licensee under the Electricity Act, 2003.
Section 58 of the Damodar Valley Corporation Act declares the effect of other laws and reads as follows:
58. Effect of other laws-The provisions of this Act or any rule made thereunder shall have effect notwithstanding anything contained in any enactment other than this Act or any instrument having effect by virtue of any enactment other than this Act.
Section 18 of the Damodar Valley Corporation Act, reserves the exclusive authority of DVC generate and supply electrical energy throughout the area falling within the Damodar Valley and prohibits every other person from indulging in generating, distributing and sale of electrical energy without the permission of the Corporation.
Section 20 of the Damodar Valley Corporation Act, 1948 provides for the charges for supply of electrical energy and authorises the corporation to fix schedule of charges for the supply of electrical energy including the rates for bulk supply and retail distribution and also to specify the manner of recovery of such charges and it also enables the corporation to enter into any contract with any consumer for bulk supply of electrical energy. However, the fixing of schedule of charges for the supply of electrical energy and the manner of recovery of such charges are subject to the provisions of the Electricity Act, 2003 and to the Electricity Supply Code, as specified by the State Commission under the provisions of Section 50 of the Electricity Act, 2003.
Section 50 of the Electricity Supply Code as amended by the Electricity (Removal of Difficulties) Order, 2005, provides amongst others, the methods for recovery of electricity charges, intervals for billing of electricity charges, disconnection of supply of electricity for non-payment thereof, measures for preventing tampering, distress or damage to electrical plant or electric lines or meter, entry of distribution licensee or any person acting on his behalf for disconnecting supply and removing the meter, entry for replacing, altering or maintaining electric lines or electrical plant or meter and such other matters. This section also provides for method of assessment of the electricity charges payable in case of theft of electricity pending adjudication by the appropriate Court. It also provides for disconnection of supply of electricity in case of theft or unauthorised use of electricity and also provides measures to prevent diversion of electricity, theft or unauthorised use of electricity tampering, distress or damage to electrical plant, electric lines or meter. Provisions of the Electricity Supply Code reserve the rights of the licensee under the Act or any other applicable laws to recover the sum due and to protect the assets and interests of the licensee.]
14. In the present case, admittedly, the appellant as a consumer, has entered into a contract with the Corporation for bulk supply of electrical energy to the factory premises of the appellant and the rights and obligations of the parties are guided by the terms and conditions as laid down under the contract. It is in the background of the above stated facts and the provisions of the law, that the questions raised by the appellant needs to be addressed.
15. The first question is, whether the respondents 5 and 7 had authority to enter into the factory premises of the appellant and to make search and seizure and also to disconnect the power supply of the appellant?
The appellant in this context would confine its attention to the provisions of Section 135 Sub-section (1-A) of the Electricity Act, 2003. The appellant also challenged the authority of the respondent No. 7 to lodge the FIR.
16. Section 135 of the Electricity Act, 2003 Part XTV of the Act deals with offences and penalty and defines theft of electricity and also provides for penalty for such offence. The definition of theft includes abstraction, consumption or use of electricity by any artificial means or means not authoriszed by the Board or licensee or supplier as the case may be, and it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of electricity has been dishonesty caused by such consumer.
Section 135(1-A) reads as follows:
135(1-A). Theft of electricity - 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 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.
Section 135(2) of the Electricity Act, 2003 reads as follows:
135. Theft of electricity.-(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. ...
17. The power of the respondents 5, 6 and 7 to enter into the factory premises of the appellant, may be deemed as derived from two sources. The first source being the right vested in the licensee under the Electricity Supply Code specified by the State Commission under which, the licensee or any person acting on his behalf, may enter into the premises of the consumer in order to inspect the electric supply lines and meters and also to prevent tampering or distress or damage to the electric lines or meters. As per Section 135(1-A) of the Electricity Act, without prejudice to the provisions of this Act, the licensee or supplier, as the case may be, may, upon detention of such theft of electricity, immediately disconnect the supply of electricity:
The appellant has laid much stress on the proviso to Sub-section (1-A) of Section 135 of the Electricity Act, to argue that the authority to disconnect the electric supply is vested with only such officer of the licensee who is of the rank higher than the rank of the officer authorised by the Appropriate Commission. In the instant case, the respondents have claimed that disconnection of electric supply to the appellant was made by an authorised officer of the Corporation and in exercise of the rights of Corporation as licensee reserved under the Electricity Supply Code. The issue as to whether the officer authorised by the licensee is of the rank higher than the rank of the officer authorised by the Appropriate Commission would be a matter requiring evidence and proof before Appropriate Authority under the Act.
The second source of the Corporation to make entry into the factory premises of the appellant is derived from the subsisting contract between the Corporation and the appellant as the consumer. Condition as laid down under clause 11 provides that the consumer shall at all times allow any representative of the Corporation to inspect the electrical equipment of the consumer installed for all or any of the purpose connected with the supply of electrical energy to the consumer under this agreement.
18. As explained by the respondents, the occasion to inspect the electrical equipment of the consumer arose on account of the extent of variation up to about 80% in the readings shown in the meter installed in the appellant's premises. The inspection made by the authorised person of the Corporation allegedly led to detection of theft of electricity by artificial means and by such means not authorised by the Corporation. As alleged by the respondents, the use of artificial means for abstraction and consumption of electricity was detected within the premises of the appellant and the presumption under the law therefore, was that such abstraction, consumption or use of electricity has been dishonestly caused by the consumer. On such alleged detection of theft of electricity, the licensee will be deemed to have absolute right to prevent illegal abstraction of electricity and to promptly disconnect the supply of electricity to the consumer.
19. The next question is, whether the respondent No. 7 had the authority to lodge the complaint by way of FIR against the appellant for theft of electricity? On this question also, the appellant lays much stress on the provisions of Section 135(1-A) of the Electricity Act and would argue that it is only such officer of the licensee who is above the rank of the officer authorised by the Appropriate Commission.
20. It may be noted here that as per Section 151-B of the Electricity Act, 2003, the offences punishable under Sections 135 to 140 or Section 150 shall be cognizable and non-bailable.
21. Section 151-A gives power to police to investigate and lays down that the police officer shall have all the powers to investigate all the offences punishable under the Act, as provided in Chapter-XII of the Code of Criminal Procedure, 1973.
22. Rule 12 of the Electricity Rules 2005 provides for cognizance of the offence and reads as under:
12. Cognizance of the offence.-(1) The police shall take cognizance of the offence punishable under the Act on a complaint in writing made to the police by the Appropriate Government or the Appropriate Commission or any of their officer authorised by them in this regard or a Chief Electrical Inspector or an Electrical Inspector or an authorised officer of licensee or a Generating Company, as the case may be.
(Italics supplied) (2) The police shall investigate the complainant in accordance with the general law applicable to the investigation of any complaint. For the purposes of investigation of the complaint the police shall have all the powers as available under the Code of Criminal Procedure, 1973 (2 of 1974).
(3) The police shall, after investigation, forward the report along with the complaint filed under Sub-clause (1) to the Court for trial under the Act.
(4) Notwithstanding anything contained in Sub-clauses (1), (2) and (3) above, the complaint for taking cognizance of an offence punishable under the Act may also be filed by the Appropriate Government or the Appropriate Commission or any of their officer authorised by them or a Chief Electrical Inspector or an Electrical Inspector or an authorised officer of licensee or a Generating company, as the case may be directly in the appropriate Court.
(5) Notwithstanding" anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every special Court may take cognizance of an offence referred to in Sections 135 to 139 of the Act without the accused being committed to it for trial.
(6) The cognizance of the offence under the Act shall not in any way prejudice the actions under the provisions of the Indian Penal Code, (45 of I860).
Section 151 of the Electricity Act, 2003 provides for cognizance of the offences and reads as under:
151. Cognizance of offence.-No Court shall take cognizance of an offence punishable under this Act except upon a complaint in writing made by Appropriate Government or Appropriate Commission or any of their officer authorised by them or a Chief Electrical Inspector or an Electrical Inspector or licensee or the generating company, as the case may be, for this purpose.
Provided that the Court may also take cognizance of an offence punishable under this Act upon a report of a police officer filed under Section 173 of the Code of Criminal Procedure, 1973 (2 of 1974):
Provided further that a Special Court constituted under Section 153 shall be competent to take cognizance of an offence without the accused being committed to it for trial.
23. From a conjunctive reading of the above noted provisions of law, it would be manifest that a complaint may be lodged with the police by an authorised officer of the licensee or a generating company and that cognizance of the offences can be taken by the Court upon a complaint in writing made either by any officer authorised by the Appropriate Government or Appropriate Commission or by a Chief Electrical Inspector or an Electrical Inspector or licensee or the generating company, as the case may be. The Court can also take cognizance of the offences punishable under the Act upon a report of the police officer filed under Section 173 of the Code of Criminal Procedure, 1973. The Act lays down for constitution of Special Courts by the State Government for the trial of offences referred to in Sections 135 to 140 and Section 150 of the Act. However, Rule 11 of the Electricity Rules, 2005 provides the jurisdiction of the Courts other than the Special Courts and lays down that jurisdiction of such Courts shall not be barred till such time the Special Court is constituted under Sub-section (1) of Section 153 of the Act.
24. Since the Act and Rules thereunder provide for the power of Courts to take cognizance of the offences punishable under the Act upon a written complaint made by the licensee or any representative of the licensee and also upon police report submitted under Section 173 of the Cr PC, it cannot be said therefore that the FIR lodged by the respondent No. 7 in his capacity of being a representative of the licensee namely the Corporation, is without authority. Information relating to a cognizable offence can certainly be lodged with the police in order to set the law into motion. As to whether the respondent No. 7 being the authorised representative of the corporation is an officer of the rank higher than the rank of such officer authorised by the Appropriate Commission, it would again be a matter of evidence and proof which may be considered by the Appropriate Court at the time of taking cognizance of the offences. The investigation into the allegation made in the FIR does not call for interference at this stage.
25. Referring once again to the ground pleaded by the appellant in this appeal, the main grievance of the appellant was against the abrupt disconnection of the electric supply to the appellant's factory premises. The learned single Judge has adequately redressed the grievance of the appellant by directing the respondents to restore the electric connection to the appellant and such direction has been complied with by the respondents. The direction given to the appellant to deposit a sum of Rs. 3.00 crores for the restoration of the electric supply is endorsed with a rider that the amount so deposited shall be subject to final decision that may be taken by the authorities after considering the objection that may be filed by the petitioner/appellant against the provisional bill. While issuing the aforesaid directions, the learned single Judge was conscious of the fact that disconnection of the electricity to the appellant was made on the alleged ground of pilferage of the electricity and for which, an FIR has also been lodged against the appellant. The direction given to the appellant to deposit the sum of Rs. 3.00 crores for the restoration of electric supply is, in our opinion, in consonance with the demand of equity and we do not find any reason to differ from the decision taken by the learned single Judge in the matter.
26. As regards the direction of the learned single Judge to the respondents to raise provisional bill as per the provisions of Section 126 of the Electricity Act against the petitioner/appellant, the same is also in consonance with the provisions of Section 126 of the Act. The direction reserves the right of the petitioner/appellant to file objection against the provisional bill so raised and also to avail remedy of appeal under Section 127 of the Act against the decision of the respondent taken on the objection filed by the petitioner/appellant and the mere fact that the direction of the learned single Judge to raise provisional bill in terms of Section 126 of the Electricity Act cannot be promptly carried out in absence of an "Assessing Officer", does not render the direction as vague and impractical. If no officer of the Corporation has been designated as yet by the State Government to act as an Assessing Officer, the Corporation can move the State Government in this regard and the direction of the learned single Judge can thereafter be carried out as and when such an officer is designated. Till such time, the delay in making the assessment and raising the provisional bill in itself, does not cause any detriment to the appellant since after the restoration of electric supply.
27. In the light of the discussions made above, we do not find any merit in this appeal. This appeal is accordingly dismissed.
M. Karpaga Vinayagam, C.J.
28. I agree.