Punjab-Haryana High Court
Amar Singh & Anr vs Uttar Hry Bijli Vitran Nigam & Ors on 4 September, 2014
Author: Ritu Bahri
Bench: Ritu Bahri
CWP No. 20970 of 2013 (O&M) -1-
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
CWP No. 20970 of 2013 (O&M)
Date of decision : 04.09.2014
Amar Singh & anr. ....Petitioners
versus
U.H.B.V.N.L and others ..Respondents
CORAM: HON'BLE MS. JUSTICE RITU BAHRI
Present: Mr. Rakesh Nagpal, Advocate
for the petitioners.
Mr. Mohnish Sharma, Advocate
for the respondents.
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
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RITU BAHRI , J.
The petitioner has approached this Court by way of instant writ petition filed under Articles 226/227 of the Constitution of India, seeking a writ in the nature of certiorari for quashing memo dated 13.09.2013 (P-3) vide which penalty of Rs.60,000/- has been imposed by respondent No. 3 and memo dated 13.09.2013 (P-4) vide which notice for compounding the offence of theft of electricity under Sections 135 and 152 of the Electricity Act, 2003 (for short 'the Act') has been initiated by the respondent-Nigam GAURAV 2014.09.18 16:37 I attest to the accuracy and integrity of this document CWP No. 20970 of 2013 (O&M) -2- Sunehra, father of petitioner No. 1 was having an agriculture electric connection bearing No. KD-2-1764 since the year 1992. After the death of Sunehra in the year 2005, the above said connection is being used by petitioner No. 1 and other family members for irrigating their fields. The petitioners are regularly paying the bills on the basis of slab prescribed for horse power i.e meant for all agriculturists using the power supply of bore connection (motor) for irrigating their fields. A copy of the receipts are annexed as Annexure P- 1 and P-2. Thereafter, petitioner No. 2 has received a memo dated 13.09.2013 vide memo No. 962, as it was found that petitioner was making theft of electricity and thus penalty of Rs.60,000/- was imposed upon him. Another memo No. 963 dated 13.09.2013 was also issued to him for compounding the offence of the alleged theft for payment of Rs.30,000/- (P-4). Without issuing notice to the petitioners, the electricity connection of the petitioner has been disconnected.
Learned counsel for the petitioners has referred to the judgment passed by Civil Court on 11.09.2013 and has submitted that there is no remedy to the consumer is available under the Consumer Protection Act in case of notice issued by the Electricity Department under Section 135 of the Act. The similarly situated persons approached tot he Special Court constituted under Section 153 of the Act and GAURAV 2014.09.18 16:37 I attest to the accuracy and integrity of this document CWP No. 20970 of 2013 (O&M) -3- further procedure and power of Special Court under Section 154 of the Act and duly notify by the State of Haryana for constituting of Special Court and filed the petition under Sections 154(5) and (6) of the Act and the learned Addl. Distt. Judge, Kaithal has held that this Special Court does not have any power to entertain the petition under Section 154 of the Act and consumer can avail the remedy by way of filing the writ petition or may file a civil suit.
On notice, a written statement has been filed by respondent Nos. 1 to 3 stating therein an agriculture electric connection is existing bearing NO. KD-2-1764 since the year 1962 and same has been covered with the number X45-0044. The connection is still existing in the name of Sunhera who is late father of petitioner in the record of the Nigam. A notice vide memo No. 962 dated 13.9.2013 (P-3) was served to petitioner No. 2 who was found using the direct supply from L.D System of the Nigam and committed theft of Electricity and another notice dated 13.9.2013 (P-4) was also served to petitioner No. 2 for compounding of the offence. The L.L-1 report was prepared on the spot but petitioner No. 2 refused to come and sign on the report as the electricity connection was shifted by the petitioners themselves without the permission of the Nigam and connected the same with 100 K.V transformer of Mangal Singh with blue colour cable, so the notice was GAURAV 2014.09.18 16:37 I attest to the accuracy and integrity of this document CWP No. 20970 of 2013 (O&M) -4- served in accordance with law. The photocopy of checking report LL-1 is dated 12.09.2013 (R-2/1). Further it has been stated that no application was ever presented or submitted for shifting of the bore by the petitioner, as alleged by them in the petition.
I have gone through the entire facts of the case.
The perusal of R-2/1 shows that checking was done from 8.20 A.M to 8.50 .M and direct theft of electricity was found and it has been clearly stated in the report that the petitioner was called by line men but he refused to come and sign. After doing the inspection, notice dated 13.09.2013 (P-3) and notice dated 13.09.2013 (P-4) were sent to the Shaym Lal and a complaint has been lodged in the Police/Special Court/Nigam for taking congnizance of the offence as per the provision of EA-2003. In case, the petitioner wants to compound the matter to absolve from criminal liabilities, he was required to approach before S.D.O (Kaithal) (Name and Designation of compounding officer). The compounding charges were assessed as Rs.30,000/-.
An attempt is being made by the petitioners to make out a case of unauthorised use of electricity and for this purpose, reference has been made to instructions (P-6). Reference has been made to para 12 (a) and (b) of the instructions whereby the procedure has been GAURAV 2014.09.18 16:37 I attest to the accuracy and integrity of this document CWP No. 20970 of 2013 (O&M) -5- given which the department was to follow at the time of checking of the premises. The perusal of the above sections shows that after completing the checking, the department otherwise have to submit all papers, checking report, memorandum of seizure and other relevant details to the concerned assessing officer for issuing the order of assessment by the licensee indicating the amount assessed (loss suffered) by the licensee for the theft of electricity. Thereafter, within 2 working days of the checking of premises, the authorized assessing officer of the Nigam as per clause (II) (13) shall issue the order intimating assessment by the licensee to the consumer as per the provisions of clause-III under proper receipt. In case of refusal by the consumer or his/her representative to either accept or give a receipt, a copy must be pasted at a conspicuous place in/outside the premises in the presence of two witnesses. Simultaneously, the order shall be sent to the consumer under registered post. In a case of theft of electricity by consumer, the service of the consumer shall be disconnected forthwith by the designated officer concerned and entry in this regard shall be made in the Inspection report served to the consumer. The supply of the consumer shall be restored by the licensee of supplier, as the case may be within 48 hours of the deposit of 100% amount of assessed amount.
GAURAV2014.09.18 16:37 I attest to the accuracy and integrity of this document CWP No. 20970 of 2013 (O&M) -6-
In the facts of the present case, the checking report is of dated 12.09.2013 and direct theft of electricity was found from 100 K.V transformer of Mangal Singh with blue colour cable and further petitioner No. 2 refused to sign the checking report. On the very next day, both the notices were issued (P-3 and P-4). Thereafter, the electricity connection of the petitioner was disconnected. In compliance of order passed by this Court on 12.09.2013, the electricity connection of the petitioner was restored.
This is a clear case of theft of electricity as petitioner No. 2 was found using the electricity from the electricity connection in the name of father of the petitioner i.e Sunehra and this name has not been changed till date in the name of legal heirs of Sunehra, as admitted by the petitioners, who are using the electricity connection since 1992. Moreover, notices (P-3 and P-4) have been issued, as per the procedure as contemplated under Section 135 of the Act. It is not a case of unauthorised use of electricity where the procedure as contemplated under Section 126 of the Act has to be followed. In a case of unauthorised use of electricity before passing the final assessment order, notice of 7 days is required to be given to the consumer and after passing the final assessment order, there is a remedy of appeal under Section 127 of the Act.
GAURAV2014.09.18 16:37 I attest to the accuracy and integrity of this document CWP No. 20970 of 2013 (O&M) -7-
Recently, Hon'ble the Supreme Court in a case of the Executive Engineer and another v. M/s Sri Seetaram Rice Mill, 2012(2) SCC 108 had drawn distinction between Sections 126 and 135 of the Act. Section 126 will apply where there is unauthorised use of electricity. In paragraph 17, it has been held as under:-
"17. 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 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 GAURAV 2014.09.18 16:37 I attest to the accuracy and integrity of this document CWP No. 20970 of 2013 (O&M) -8- with dishonest intention and without authorization, like providing for a direct connection bypassing the installed meter. 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. " Moreover, as per Annexure P-8, F.I.R No. 2151 dated 03.10.2013 has been registered against petitioner No. 2, pursuant to notice dated 13.09.2013 (P-4). GAURAV 2014.09.18 16:37 I attest to the accuracy and integrity of this document CWP No. 20970 of 2013 (O&M) -9-
No case for quashing the memo dated 13.09.2013 (P-3) and memo dated 13.09.2013 (P-4) has been made out, as the department has followed the proper procedure.
The writ petition is accordingly dismissed.
(RITU BAHRI) JUDGE 04.09.2014 G Arora GAURAV 2014.09.18 16:37 I attest to the accuracy and integrity of this document