Rajasthan High Court - Jaipur
Jaipur Vidyut Vitran Nigam Ltd vs Rajendra Prasad And Andanr ... on 29 March, 2023
Author: Sameer Jain
Bench: Sameer Jain
[2023/RJJP/003213]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 352/2008
Jaipur Vidyut Vitran Nigam Limited Through Executive Engineer
O And M, Jaipur Vidyut Vitran Nigam L, Dholpur
----Petitioner
Versus
1. Rajendra Prasad Son Of Kali Charan Sharma, Ghantaghar
Road, Dholpur
2. Permanent Lok Adalat Through Chairman, District And
Session Judge, Dholpur
----Respondents
Connected With
S.B. Civil Writ Petition No. 8827/2008
Jaipur Vidyut Vitran Nigam Limited through Executive Engineer
(O & M), Jaipur Vidyut Vitran Nigam Limited, Dholpur.
--Non applicant/Petitioner
Versus
1. Sherkhan son of Alladin Khan R/o near police station Killa Bari
District Dholpur.
2. Permanent Lok Adalat through Chairman, District & Session
Judge, Dholpur.
----Respondents
For Petitioner(s) : Mr. Bipin Gupta
For Respondent(s) : Mr. Rahul Kamwar
HON'BLE MR. JUSTICE SAMEER JAIN
Order
Reportable
Reserved On: 24/01/2023
Pronounced On: 29/03/2023
1. As common issues are involved in both these writ
petitions, with the consent of the parties, both petitions were
heard together and are decided by way of this common order.
SBCWP No. 352/2008 titled as JVVNL Vs. Rajendra Prasad & Anr is
taken as lead file to peruse the facts.
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2. Petitioners have challenged the awards dated 09.10.2007
and 14.11.2007 passed by Permanent Lok Adalat (in short "PLA"),
Dholpur, in C.M. No. 107/2007 titled as 'Rajendra Prasad Sharma Vs.
Jaipur Vidyut Vitran Nigam Limited'; and award dated 01.02.2008
passed by PLA in Case No. 138/2007 titled as ' Sher Khan vs. Jaipur
Vidyut Vitran Nigam Limited', on the ground that the PLA had no
jurisdiction to entertain an application filed under Section 22C of Legal
Services Authority Act, 1987 (in short "Act of 1987") in a case where
consumer of electricity has been asked to pay for theft of electricity.
3. Learned counsel for the petitioner submits that an
inspection was carried out at the premises of the petitioner on
27.09.2007 in the presence of the respondent and it was observed
that the electricity meter was tampered with, and that the body
seal and terminal seal was found broken. Such tampering
amounted to theft of electricity, as per provisions of Section 135-
138 of The Electricity Act, 2003 (in short "Act of 2003"), and
therefore the inspection team immediately disconnected the
connection and seized the tampered meter in presence of the
respondent and VCR (bearing No. 4793/27) dated 27.09.2007 was
also filed. The inspection team attempted to supply the copy of
the VCR to the respondent but the same was refused by the
respondent. The respondent even refused to sign the VCR. On
27.09.2007, a provisional assessment was also carried out by the
petitioner under Section 126 of the Act of 2003 and civil liability of
Rs. 42,688 was ascertained. Learned counsel for the petitioner
contends that until and unless the said amount is recovered, no re-connection can be ordered, as per Rajasthan Electricity (Downloaded on 11/11/2023 at 04:44:48 PM) [2023/RJJP/003213] (3 of 11) [CW-352/2008] Regulatory Commission (Electricity Supply Code and Connected Matters) Regulation,2004 (in short "Regulations of 2004"). A FIR was also registered for the offence under Sections 135 & 138 of the Act of 2003 on 10.10.2007. Against the VCR dated 27.09.2007, the respondent approached the PLA, which vide impugned interim order dated 09.12.2007 directed that connection be restored provisionally within 3 days upon deposit of Rs. 15,000. The said interim order was confirmed by the PLA vide impugned order dated 14.11.2007 without taking into consideration the fact that the PLA did not have jurisdiction to pass such orders.
4. In support of his contention that PLA lacked jurisdiction to pass orders in cases of theft of electricity, learned counsel for the petitioner submits that Special Courts, as constituted under Part XV of the Act of 2003, have exclusive jurisdiction to deal with such cases. Further, as per Section 22C (8) of the Act of 1987, the PLA is not empowered to pass any order on merit if the conciliation has failed and the dispute relates to an 'offence'. It is contended that as the matter pertained to the offence of theft of electricity, as defined under Section 135 of Act of 2003, the PLA had no jurisdiction to pass any order.
5. In support of his contentions, learned counsel for the petitioner have placed strong reliance on judgment of Hon'ble Apex Court in United India Insurance Co. Ltd. Vs. Ajay Sinha:
AIR 2008 SC 2398, judgment of the Aurangabad Bench of Bombay High Court in Maharashtra State Electricity (Downloaded on 11/11/2023 at 04:44:48 PM) [2023/RJJP/003213] (4 of 11) [CW-352/2008] Distribution Company Ltd. Vs. Badrinath Pema Rathore. (Writ Petition No. 3425/2019; decided on 14.01.2022), judgment of Punjab & Haryana High Court in Dakshin Haryana Bijli Vitran Nigam Ltd. and Ors. vs. Permanent Lok Adalat, Public Utility Services and Ors. (CWP No. 23193 of 2013; decided on 09.02.2016), judgment of Allahabad High Court in M/s. Torrent Power Ltd. vs. State of U.P. and Ors.: 2014 (1) ADJ 563, and judgment of Delhi High Court in TATA Power Delhi Distribution Limited vs. Rampal (W.P. (C) No. 7749/2016; decided on 30.06.2020).
6. Per contra, learned counsel for the respondent submits that the inspection was not done in the presence of the respondent. Learned counsel submits that PLA were constituted by the Legislature to achieve the goal enshrined under Article 39A of Constitution of India, for providing free legal aid scheme to ensure speedy and fair justice to the marginalized sections of the society. In the case in hand, it is undisputed that the matter relates to a public utility company and as per Section 22A (b) of the Act of 1987, the PLA would have jurisdiction to entertain applications against public utility companies. Learned counsel further contends that the issue involved before the PLA was only pertaining to civil liability and not for any offence, therefore the bar contained in Section 22C(8) of the Act of 1987 would not operate in the present case and therefore the PLA was absolutely within their power to pass an award on merits. Learned counsel for the respondents have also relied upon Hon'ble Apex Court judgment of Bar Council of India vs. Union of India: (2012) 8 SCC 243 (Downloaded on 11/11/2023 at 04:44:48 PM) [2023/RJJP/003213] (5 of 11) [CW-352/2008] to submit that PLAs are in addition to and not in derogation of fora provided under special statues, like the Act of 2003. Learned counsel has also relied upon Allahabad High Court judgment of Executive Engineer, Dakshinanchal Vidyut Vitaran Nigam Limited and Ors. vs. State of U.P. and Ors. (Writ-C No. 15897 of 2022; decided on 04.07.2022), and judgment of Punjab & Haryana High Court in Punjab State Power Corporation Limited vs. Mahinder Singh and Ors. (CWP No. 17964 of 2014; decided on 19.09.2015).
7. Heard the arguments advanced by both the sides, scanned the record of the writ petition and considered the judgments cited at Bar.
8. The limited controversy involved in the present matters pertains to jurisdiction and competence of Permanent Lok Adalat to entertain an application when theft of electricity is involved.
9. To answer the question of law involved, it is imperative to analyze the scheme of the Act of 1978 and the Act of 2003. 9.1. We shall start with the relevant provisions of Act of 2003. Section 135 of the Act of 2003 deals with theft of electricity and as per sub-section (1), tampering with the meter would amount to theft of electricity and would attract a punishment of imprisonment of upto three years or/and fine. Sub-section (1A) of Section 135 of the Act of 2003 mandates that upon detection of theft of electricity, supply line has to be disconnected. The third proviso to Section 135(1A) allows provisional restoration of supply line of electricity, only upon deposit of the assessed amount. (Downloaded on 11/11/2023 at 04:44:48 PM)
[2023/RJJP/003213] (6 of 11) [CW-352/2008] Section 126 of the Act of 2003 deals with Assessment and Section 145 of the Act of 2003 specifically bars the jurisdiction of civil courts to entertain any suit/proceedings in respect of any matters covered under Section 126 and 127 of the Act of 2003. Section 152 of the Act of 2003 specifies that 'theft of electricity' is a compoundable offence. Part XV of the Act of 2003 deals with the Special Courts as constituted under the Act of 2003. As per Section 154(1) of the Act of 2003, every offence punishable under Sections 135-140 and 150 of the Act of 2003, shall be triable only by the Special Court having the territorial jurisdiction. As per Section 154(5) of the Act of 2003, the Special Court is empowered to determine the civil liability against a consumer, in terms of money for theft of electricity. Civil liability is explained as loss of damage incurred due to commission of an offence referred to in Sections 135-140 and 150 of the Act of 2003.
9.2. Having considered the scheme of the Act of 2003, it would be apt to analyze the relevant provisions of the Act of 1987. Section 22A sub-section (b) defines 'public utility services' and as per sub-section (b)(iii), power, light and water suppliers are also included under the definition of 'public utility services'. Section 22C of the Act of 1987 reads as under:
"Section 22C - Cognizance of case of Permanent Lok Adalat (1) Any party to a dispute may, before the dispute is brought before any court, make an application to the Permanent Lok Adalat for the settlement of dispute:
Provided that the Permanent Lok Adalat shall not have jurisdiction in respect of any matter relating to an offence not compoundable under any law;
Provided further that the Permanent Lok Adalat shall also not have jurisdiction in the matter where the value of the property in dispute exceeds ten lakh rupees;(Downloaded on 11/11/2023 at 04:44:48 PM)
[2023/RJJP/003213] (7 of 11) [CW-352/2008] Provided also that the Central Government, may, by notification, increase the limit of ten lakh rupees specified in the second proviso in consultation with the Central Authority.
(2) After an application is made under sub-section (1) to the Permanent Lok Adalat, no party to that application shall invoke jurisdiction of any court in the same dispute.
(3) Where an application is made to a Permanent Lok Adalat under sub- section (1), it-
(a) shall direct each party to the application to file before it a written statement, stating therein the facts and nature of dispute under the application, points or issues in such dispute and grounds relied in support of, or in opposition to, such points or issues, as the case may be, and such party may supplement such statement with any document and other evidence which such party deems appropriate in proof of such facts and grounds and shall send a copy of such statement together with a copy of such document and other evidence, if any, to each of the parties to the application;
(b) may require any party to the application to file additional statement before it at any stage of the conciliation proceedings;
(c) shall communicate any document or statement received by it from any party to the application to the other party, to enable such other party to present reply thereto.
(4) When statement, additional statement and reply, if any, have been filed under sub-section (3), to the satisfaction of the Permanent Lok Adalat, it shall conduct conciliation proceedings between the parties to the application in such manner as it thinks appropriate taking into account the circumstances of the dispute.
(5) The Permanent Lok Adalat shall, during conduct of conciliation proceedings under sub-section(4), assist the parties in their attempt to reach an amicable settlement of the dispute in an independent and impartial manner.
(6) It shall be the duty of every party to the application to cooperate in good faith with the Permanent Lok Adalat in conciliation of the dispute relating to the application and to comply with the direction of the Permanent Lok Adalat to produce evidence and other related documents before it.
(7) When a Permanent Lok Adalat, in the aforesaid conciliation proceedings, is of opinion that there exist elements of settlement in such proceedings which may be acceptable to the parties, it may formulate the terms of a possible settlement of the dispute and give to the parties concerned for their observations and in case the parties reach at an agreement on the settlement of the dispute, they shall sign the settlement agreement and the Permanent Lok Adalat shall pass an award in terms thereof and furnish a copy of the same to each of the parties concerned.
(8) Where the parties fail to reach at an agreement under sub-
section(7), the Permanent Lok Adalat shall, if the dispute does not relate to any offence, decide the dispute.
Emphasis supplied"
At this juncture it is important to note that the Hon'ble Apex Court, in the case of Bar Council of India vs. Union of India (supra), has held that the jurisdiction of fora created under the Special Statutes has not been taken away in any manner whatsoever by the Act of 1987 and that PLAs are in addition to (Downloaded on 11/11/2023 at 04:44:48 PM) [2023/RJJP/003213] (8 of 11) [CW-352/2008] and not in derogation of fora provided under Special Statutes.
Therefore, an application against public utility services, like the present petitioner, can be made before PLA by a consumer, like the present respondent. However, the PLA is bound by the provisions of law, especially Section 22C of the Act of 1987. The first proviso to subsection (1) of Section 22C of the Act of 1987 specifically bars the jurisdiction of PLA in cases relating to non- compoundable offences. The second proviso to sub-section (1) of Section 22C of the Act of 1987 specifically bars the jurisdiction of PLA in cases where the value of property in dispute in question is above Rs. 10 lakhs. In the instant case, as the dispute pertains to theft of electricity, which is a compoundable offence and the civil liability is also under Rs. 10 lakhs, the bar on jurisdiction of PLA, as contained in Section 22C(1) of the Act of 1987, would not operate. Sub-section (3) of Section 22C of the Act of 1987 lays out the procedure to be followed by PLA. Sub-section (4), (5), (6) and (7) of Section 22C of the Act of 1987 necessitate that PLA shall initiate conciliation and assist the parties to reach an amicable settlement, and only once the parties fail to reach at an agreement/settlement can the PLA decide the dispute. However, the power of PLA to decide the dispute is further restricted by sub- section (8) of Section 22C of the Act of 1987, which provides that PLA can decide a dispute only if it does not relate to an offence.
10. Upon careful consideration of the provisions of Act of 1987 and the Act of 2003, in cases where the offence of theft of electricity is involved, it is noted that the PLA is only empowered to assist the parties in reaching an amicable settlement and in (Downloaded on 11/11/2023 at 04:44:48 PM) [2023/RJJP/003213] (9 of 11) [CW-352/2008] absence of such settlement, the PLA has no authority to decide the dispute and/or pass any order on merits. While entrusting the resolution of dispute to the Lok Adalats at the pre-litigation stage, the emphasis is on conciliation and settlement. Perusal of the impugned orders, however, reveal that the PLA has completely missed on the said aspect. The matter relating to theft of electricity is an offence under the Act of 2003 and because such offence in compoundable, the PLA has the jurisdiction to entertain the dispute for the limited purpose of conciliation and settlement but upon its failure to do so, the PLA could not proceed to decide the matter on merits.
11. The non-speaking impugned orders reflects that the PLA not only failed to conduct conciliation proceedings, but also went on to adjudicate the dispute, which pertained to an offence punishable under the Act of 2003, despite the specific bar contained in sub-section (8) of Section 22C of the Act of 1987. The PLA, therefore, lacked jurisdiction to pass any award in case of theft of electricity and the impugned orders needs to be quashed and set aside.
12. The judgments relied upon by learned counsel for the respondents are not on the issue involved and are thus inapplicable. Whereas, in similar facts and circumstances, in the case of Badrinath Pema Rathod (supra) relied upon by the learned counsel for the petitioner, the Bombay High Court observed and held as under:
"14. The said section in the Electricity Act is complete Code and empower the Company to assess the consumer, who is indulging in unauthorized use of electricity. Part XIV of the Electricity Act provide for offences and penalties and Section 135 is a provision, which impose (Downloaded on 11/11/2023 at 04:44:48 PM) [2023/RJJP/003213] (10 of 11) [CW-352/2008] penalty for theft of electricity and the related provision for unauthorised usage of electricity, is set out as under:-
"135. Theft of electricity.-(1) Whoever, dishonestly .......................
(e) uses electricity for the purpose other than for which usage of electricity was authorised, so as to obstruct or consume or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or both."
The aforesaid provision make an act of consumption or use of electricity in an unauthorized manner an offence. The first proviso to Section 22(C)(1) of the 1987 Act, provide that the Permanent Lok Adalat shall not have jurisdiction in respect of any matter relating to an offence not compoundable under any law. Admittedly, the act of the applicant amounts to an offence under Section 135 of the 2003 Act, but the proviso to Section 22(C) direct that, if the matter relate to the offence, which is not compoundable, then the Permanent Lok Adalat will have no jurisdiction. Section 152 of the Electricity Act provide for compounding of offences and the theft of electricity is a compoundable offence and therefore, the Lok Adalat will have jurisdiction to entertain an application in respect of an offence, which is compoundable. However, by further referring to the scheme contained in Section 22(C), it is apparent that where the conciliation failed between the parties and no settlement is arrived at, in that contingency, the Permanent Lok Adalat cannot proceed further to adjudicate dispute between the parties on merits, if the dispute relate to any offence. A distinction is made between the two clauses of Section 22 (C), being the first proviso appended to sub-section (1) of Section 22 (C), and between sub-section 8 of Section 22 (C), which imply the term "if the dispute does not relate to any offence". It is in this case, the Permanent Lok Adalat shall not adjudicate the dispute. Meaningfully read, it convey that, where a dispute brought before the Permanent Lok Adalat amounts to an offence, which is compoundable one, which can be entertained by the Permanent Lok Adalat for the purpose of effecting a conciliation and settlement, but if the conciliation fail, then it is not within the power of the Permanent Lok Adalat to adjudicate the matter on merits, if it relate to an offence, despite the offence being compoundable. The irresistible conclusion, is that on a conciliation or settlement being not arrived at during the proceedings before the Permanent Lok Adalat, if the dispute relates to any offence, then the Permanent Lok Adalat can neither pass an award, in absence of a settlement being arrived at, nor it can adjudicate the said dispute and will have to stop there.
15. In the light of the aforesaid statutory scheme, when the application preferred by the respondent before the Permanent Lok Adalat related to an incident, which resulted in registration of an offence in the Electricity Act, the Permanent Lok Adalat had entertained the dispute for the purpose of conciliation and settlement, but did not attempt any conciliation and in it's absence, proceeded to adjudicate the dispute, despite a bar being imposed under sub-section (8) of Section 22 (C). The Permanent Lok Adalat has, thus, clearly fallen into an error in adjudicating the dispute instituted by the applicant on it's merits, when it could not effect the conciliation/settlement between the parties. The said order, therefore, cannot be sustained." Similar view has been taken by different High Courts in the cases of Dakshin Haryana Bijli Vitran Nigam Ltd. (supra), M/s.
Torrent Power Ltd (supra), and TATA Power Delhi
Distribution Limited (supra).
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12. In light of the aforesaid, both these writ petitions are allowed. The impugned orders dated 09.10.2007 and 14.11.2007 (in S.B. Civil Writ Petition No. 352/2008) and impugned orders dated 01.02.2008 (in S.B. Civil Writ Petition No. 8827/2008) are accordingly quashed and set aside.
13. All pending applications stands disposed of.
(SAMEER JAIN),J Pooja /110-111 (Downloaded on 11/11/2023 at 04:44:48 PM) Powered by TCPDF (www.tcpdf.org)