Gujarat High Court
Madhya Gujarat Vij Company Ltd vs Ambalal Ranchhodbhai Parmar on 9 March, 2017
Equivalent citations: AIR 2017 GUJARAT 97
Author: C.L.Soni
Bench: C.L. Soni
C/SCA/18695/2011 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 18695 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE C.L. SONI
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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MADHYA GUJARAT VIJ COMPANY LTD. ...Petitioner
Versus
AMBALAL RANCHHODBHAI PARMAR
AND ANR. ...Respondents
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Appearance:
MR DIPAK R DAVE, ADVOCATE for the Petitioner
MS SUDHA R GANGWAR, ADVOCATE for the Respondent No. 1 - Company
MR AMIT BAROT, AGP for the Respondent No. 2 - State
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 09/03/2017
ORAL JUDGMENT
1. The electricity company has filed the present petition Page 1 of 14 HC-NIC Page 1 of 14 Created On Mon Aug 14 07:58:17 IST 2017 C/SCA/18695/2011 JUDGMENT under Article 226 of the Constitution of India challenging the order dated 17.10.2011 passed by the respondent No.2 - Appellate Authority and Electrical Inspector in Appeal No.1 of 2010 - 2011 preferred by the respondent No.1 herein.
2. It appears that pursuant to the checking of electrical installation at the premises of the respondent No.1, the petitioner issued Provisional Assessment Bill for an amount of Rs.1,49,253.37 ps. to the respondent No.1. Since the respondent No.1 raised objection against the provisional bill, after considering his objections he was issued supplementary final bill for the said amount. Against such assessment, the respondent No.1 preferred appeal before the respondent No.2 under Section 127 of the Electricity Act, 2003 ('the Act', for short). The Appellate Authority accepted the appeal and quashed supplementary bill and also ordered refund of Rs.74,630/-, being 50% of the bill deposited by respondent No.1. It is this order of the Appellate Authority which is under challenge in the present petition.
3. Learned advocate Mr.Dave for the petitioner submitted that during the inspection of the electrical installation of the respondent No.1, it was found that the respondent No.1 was drawing electricity in unauthorised way and therefore under the provisions of Section 126 of the Act, the petitioner company issued him supplementary bill by making assessment as per the A,B,C, D formula. He submitted that, since the respondent No.1 took power supply by converting one phase into three phase, which was not permissible, he was rightly charged with supplementary bill, however, for the reasons not germane to decide the question whether converting one phase Page 2 of 14 HC-NIC Page 2 of 14 Created On Mon Aug 14 07:58:17 IST 2017 C/SCA/18695/2011 JUDGMENT into three phase of the respondent No.1 could be said to be unauthorised use of the electricity, the appellate authority allowed the appeal. He submitted that since a view taken by the Appellate Authority could not stand the scrutiny of law in the context of provisions of Section 126 of the Act, the Court may quash the impugned order.
4. Ms.Sudha Gangwar learned advocate appearing for Respondent No.1 submitted that under the Jyoti Gram Yojna, the consumer like the respondent No.1 was otherwise required to be supplied electricity by three phase, however, contrary to the scheme of the Government, the respondent No.1 was given supply only by one phase. She submitted that when three phase was otherwise available under the Scheme, taking of electricity through three phase instead of one phase cannot be said to be unauthorised use of the electricity. She submitted that by alleged conversion of one phase into three phase, the petitioner has not used the electricity beyond the contracted load and it is also not the case that the petitioner has not paid consumption charges for electricity used through three phase. She submitted that the Appellate Authority has rightly held that the alleged act of respondent No.1 of converting one phase into three phase cannot be said to be theft of energy and therefore the Court may not interfere with the impugned order passed by the appellate authority.
5. The Court having heard learned advocates for both the sides finds that as observed in the impugned order the electrical installation of the respondent No.1 was checked on 11.03.2011 and as shown in the checking-sheet, copy whereof is annexed at Annexure-B, the respondent No.1 by making Page 3 of 14 HC-NIC Page 3 of 14 Created On Mon Aug 14 07:58:17 IST 2017 C/SCA/18695/2011 JUDGMENT change in the fuse box called ICTP created three phase through capacitor and by using such three phase he was running his flour mill. Based on such inspection-sheet, the respondent No.1 was issued provisional bill and after considering his objections, he was issued final supplementary bill for Rs.1,49,253.37ps. The Appellate Authority, however, came to the conclusion that under the Jyotigram Yojna though it was decided to provide three phase power to the industrial consumer, in the case of respondent No.1, no such arrangement was made which was in breach of principles of natural justice. The Appellate Authority also recorded that by Respondent No.1 converting one phase into three phase no change or difference had taken place in recording of consumption in the meter. The Appellate Authority has further observed that as per Regulation No.8.3.3 of Supply Code, whenever the consumer uses phase converter (Teta) but there is no tampering with the meter, in such circumstances, issuance of the supplementary bill is not contemplated. Thus, the means adopted by respondent No.1 to convert one phase into three phase to draw power supply through his installation is not considered to be unauthorised use of electricity by the appellate authority.
6. Section 126 provides that, on an inspection of any place, or premises of any person, the Assessing Officer comes to the conclusion that such person is indulging in unauthorised use of electricity, he shall be provisionally assess to the best of judgment the electric charges payable by him. After serving with the provisional bill and considering objections, the Assessing Officer shall pass final order of assessment. As stated above, the respondent No.1 was served with the Page 4 of 14 HC-NIC Page 4 of 14 Created On Mon Aug 14 07:58:17 IST 2017 C/SCA/18695/2011 JUDGMENT provisional bill and then after considering the objections he was served with the final assessment bill. The meaning of 'unauthorised use of electricity' is given in explanation to the provisions of Section 126 of the Act, which reads as under:
"126. Assessment.
(1) ... xxx (2) ....
(3) ....
(4) ....
(5) ....
(6) .... xxxx Explanation: For the purpose of this section,
(a) ... xxx
(b) "unauthorised use of electricity"
means the usage of electricity
(i) by any artificial means; or
(ii) by a means not authorised by the concerned person or authority or licensee; or
(iii) through a tampered meter; or [(iv) for the purpose other than for which the usage of electricity was authorised; or
(v) for the premises or areas other than those for which the supply of electricity was authorised.]"
7. As per above clause (ii) in clause (b), use of electricity by means not authorised by the concerned person or authority or licensee would mean unauthorised use of electricity.
8. As mentioned in the checking-sheet, the Respondent No.2 converted one phase into three phase through capacitor and by making change in fuses in ICTP box. Thus, the respondent No.1 derives power supply through three phase instead of one phase allowed by the licensee by adopting Page 5 of 14 HC-NIC Page 5 of 14 Created On Mon Aug 14 07:58:17 IST 2017 C/SCA/18695/2011 JUDGMENT means not authorised or permitted by the licensee. It could thus be said that the respondent No.1 had indulged into unauthorised use of electricity.
Ms.Sudha Gangwar, learned advocate for the respondent however submitted that the respondent No.1 is not alleged to have used extra load nor even less recording of the consumption of electricity was found in the meter and therefore no power theft committed by the respondent No1. The Court however finds that what is provided by section 126 of the Act is to charge the consumer for unauthorised use of electricity. It is not that only when the consumer is found to have used extra load, he can be said to have unauthorisedly used the electricity. The use of extra load is one of the means not authorised for use of electricity, but that is not the only means. By other means also there may be use of electricity in unauthorised way. The contention that the respondent No.1 since did not use extra load and therefore cannot be said to have unauthorisedly used the electricity, cannot be accepted. In the case of Executive Engineer, Southern Electricity Supply Company of Orissa Limited (SOUTHCO) vs. Sri Seetaram Rice Mill reported in (2012) 2 SCC 108, Hon'ble the Supreme Court has held and observed in paras:39 to 41, 43, 44, 45, 50, 51, 52, 61, 67 and 69 as under:
"39. In order to explain these expressions, it will be necessary for us to refer to certain other provisions and the Regulations as well. These expressions have to be understood and given meaning with reference to their background and are incapable of being fairly understood, if examined in isolation. It is always appropriate to examine the words of a statute in their correct perspective and with reference to relevant statutory provisions. The expression "unauthorised Page 6 of 14 HC-NIC Page 6 of 14 Created On Mon Aug 14 07:58:17 IST 2017 C/SCA/18695/2011 JUDGMENT use of electricity" on its plain reading means use of electricity in a manner not authorised by the licensee of the Board. "Authorisation" refers to the permission of the licensee to use of electricity, subject to the terms and conditions for such use and the law governing the subject.
40. To put it more aptly, the supply of electricity to a consumer is always subject to the provisions of the 2003 Act, State Acts, Regulations framed thereunder and the terms and conditions of supply in the form of a contract or otherwise. Generally, when electricity is consumed in violation of any or all of these, it would be understood as "unauthorised use of electricity".
But this general view will have to be examined in the light of the fact that the legislature has opted to explain this term for the purposes of Section 126 of the 2003 Act. The said provision, along with the Explanation, reads as under:
"126. Assessment. (1) If on an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found connected or used, or after inspection of records maintained by any person, the assessing officer comes to the conclusion that such person is indulging in unauthorised use of electricity, he shall provisionally assess to the best of his judgment the electricity charges payable by such person or by any other person benefited by such use.
(2) The order of provisional assessment shall be served upon the person in occupation or possession or in charge of the place or premises in such manner as may be prescribed.
(3) The person, on whom an order has been served under subsection (2), shall be entitled to file objections, if any, against the provisional assessment before the assessing officer, who shall, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment within thirty days Page 7 of 14 HC-NIC Page 7 of 14 Created On Mon Aug 14 07:58:17 IST 2017 C/SCA/18695/2011 JUDGMENT from the date of service of such order of provisional assessment, of the electricity charges payable by such person.
(4) Any person served with the order of provisional assessment may, accept such assessment and deposit the assessed amount with the licensee within seven days of service of such provisional assessment order upon him.
(5) If the assessing officer reaches to the conclusion that unauthorised use of electricity has taken place, the assessment shall be made for the entire period during which such unauthroised use of electricity has taken place and if, however, the period during which such unauthorised use of electricity has taken place cannot be ascertained, such period shall be limited to a period of twelve months immediately preceding the date of inspection.
(6) The assessment under this section shall be made at a rate equal to twice the tariff applicable for the relevant category of services specified in sub section (5) Explanation - For the purposes of this section,
(a) 'assessing officer' means an officer of a State Government or Board or licensee, as the case may be, designated as such by the State Government;
(b) 'unauthorised use of electricity' means the usage of electricity
(i) by any artificial means; or
(ii) by a means not authorised by the concerned person or authority or licensee; or
(iii) through a tampered meter; or
(iv) for the purpose other than for which the usage of electricity was Page 8 of 14 HC-NIC Page 8 of 14 Created On Mon Aug 14 07:58:17 IST 2017 C/SCA/18695/2011 JUDGMENT authorised; or
(v) for the premises or areas other than those for which the supply of electricity was authorised."
41. The "unauthorised use of electricity" means the usage of electricity by the means and for the reasons stated in subclauses (i) to (v) of clause
(b) of the Explanation to Section 126 of the 2003 Act. Some of the illustratively stated circumstances of "unauthorised use" in the section cannot be construed as exhaustive. The "unauthorised use of electricity" would mean what is stated under that Explanation, as well as such other unauthorised user, which is squarely in violation of the abovementioned statutory or contractual provisions.
42. xxx
43. In M.C. Mehta v. Union of India this Court held that if the misuse was in violation of the permission, approval or sanction or in contravention of any conditions, subject to which the said permission / approval has been granted in terms of Section 30 of the DDA Act, then it will be "unauthorised use". We have primarily referred to this case to support the reasoning that "unauthorised development" is one which is contrary to a master plan or zonal development plan as was the case under the DDA Act. Just as the right to develop a property is controlled by the restrictions of law as well as the terms and conditions of the permission granted for that purpose, the use of electricity is similarly contro0lled by the statutory provisions and the terms and conditions on which such permission is granted to use the electricity.
44. The unauthorised use of electricity in the manner as is undisputed on record clearly brings the respondent "under liability and in blame"
within the ambit and scope of Section 126 of the 2003 Act. The blame is in relation to excess load while the liability is to pay on a different Page 9 of 14 HC-NIC Page 9 of 14 Created On Mon Aug 14 07:58:17 IST 2017 C/SCA/18695/2011 JUDGMENT tariff for the period prescribed in law and in terms of an order of assessment passed by the assessing officer by the powers vested in him under the provisions of Section 126 of the 2003 Act.
45. The expression "means" used in the definition clause of Section 126 of the 2003 Act can have different connotations depending on the context in which such expression is used. In terms of Black's Law Dictionary *8th Edn.) p. 1001, "means" is "of or relating to an intermediate point between two points or extremes" and "meaning" would be "the sense of anything, but esp. of words; that which is conveyed". The word ordinarily includes a mistaken but reasonable understanding of a communication. "Means" by itself is a restrictive term and when used with the word "includes", it is construed as exhaustive. In those circumstances, a definition using the term "means" is a statement of literal connotation of a term and the courts have interpreted "means and includes" as an expression defining the section exhaustively. It is to be kept in mind that while determining whether a provision is exhaustive or merely illustrative, this will have to depend upon the language of the section, scheme of the Act, the object of the legislature and its intent.
46. ....
47. ....
48. ....
49. ....
50. In other words, the purpose sought to be achieved is to ensure stoppage of misuse / unauthorised use of the electricity as well as to ensure prevention of revenue loss. It is in this background that the scope of the expression "means" has to be construed. If we hold that the expression "means" is exhaustive and cases of unauthorised use of electricity are restricted to the ones stated under Explanation (b) of Section 126 alone, then it shall defeat the very purpose of the 2003 Act, inasmuch as the different cases of breach of the terms and conditions of the Page 10 of 14 HC-NIC Page 10 of 14 Created On Mon Aug 14 07:58:17 IST 2017 C/SCA/18695/2011 JUDGMENT contract of supply, Regulations and the provisions of the 2003 Act would escape the liability sought to be imposed upon them by the legislature under the provisions of Section 126 of the 2003 Act. Thus, it will not be appropriate for the courts to adopt such an approach.
51. The primary object of the expression "means" is intended to explain the term "unauthorised use of electricity" which, even from the plain reading of the provisions of the 2003 Act or on a common sense view cannot be restricted to the examples given in the Explanation. The legislature has intentionally omitted to use the word "includes" and has only used the word "means" with an intention to explain inter alia what an unauthorised use of electricity would be. It must be noticed that clause (iv) of Explanation (b) and subsection (5) of Section 126 of the 2003 Act were both amended / substituted by the same amending Act 26 of 2007, with a purpose and object of preventing unauthorised use of electricity not amounting to theft of electricity within the meaning of Section 135 of the 2003 Act. This amendment, therefore, has to be given its due meaning which will fit into the scheme of the 2003 Act and would achieve its object and purpose.
52. The expression "means" would not always be open to such a strict construction that the terms mentioned in a definition clause under such expression would have to be inevitably treated as being exhaustive. There can be a large number of cases and examples where even the expression "means" can be construed liberally and treated to be inclusive but not completely exhaustive of the scope of the definition, of course, depending upon the facts of a given case and the provisions governing that law.
53. .....
....xxxx
61. Unauthorised use of electricity cannot be restricted to the stated clauses under the Explanation but has to be given a wider meaning so Page 11 of 14 HC-NIC Page 11 of 14 Created On Mon Aug 14 07:58:17 IST 2017 C/SCA/18695/2011 JUDGMENT as to cover cases of violation of the terms and conditions of supply and the Regulations and provisions of the 2003 Act governing such supply.
"Unauthorised use of electricity" itself is an expression which would, on its plain reading, take within its scope all the misuse of the electricity or even malpractices adopted while using electricity. It is difficult to restrict this expression and limit its application by the categories stated in the Explanation. It is indisputable that the electricity supply to a consumer is restricted and controlled by the terms and conditions of supply, the Regulations framed and the provisions of the 200d Act.
62. .... XXX
67. On the cumulative reading of the terms and conditions of supply, the contract executed between the parties and the provisions of the 2003 Act, we have no hesitation in holding that consumption of electricity in excess of the sanctioned / connected load shall be an "unauthorised use of electricity" in terms of Section 126 of the 2003 Act. This, we also say for the reason that overdrawal of electricity amounts to breach of the terms and conditions of the contract and the statutory conditions, besides such overdrawal being prejudicial to the public at large, as it is likely to throw out of gear the entire supply system, undermining its efficiency, efficacy and even increasing volatge fluctuations.
68. .... xxx
69. It will also be useful to notice that certain malpractices adopted by the consumer for consuming electricity in excess of the contracted load could squarely fall within the ambit and scope of Section 126 of the 2003 Act as it is intended to provide safeguards against pilferage of energy and malpractices by the consumer. The Regulations framed in exercise of power of subordinate legislation or the terms and conditions imposed in furtherance of statutory provisions have been held to be valid and Page 12 of 14 HC-NIC Page 12 of 14 Created On Mon Aug 14 07:58:17 IST 2017 C/SCA/18695/2011 JUDGMENT enforceable. They do not offend the provisions of the 2003 Act. In fact, the power to impose penal charges or disconnect electricity has been held not violative even of Article 14 of the Constitution of India. The expression "malpractices" does not find mention in the provisions under the 2003 Act but as a term coined by judicial pronouncements. Thus, the expression "malpractices" has to be construed in its proper perspective and normally may not amount to theft of electricity as contemplated under Section1 35 of the 2003 Act. Such acts / malpractices would fall within the mischief of unauthorised use of electricity as stipulated under Section 126 of the 2003 Act. Cases of pilferage of electricity adopting malpractices which patently may not be a theft would be the cases that would fall within the jurisdiction of the Board in furtherance to the terms and conditions of supply. Reference in this regard can be made to the judgment of this Court in Hyderabad Vanaspathi Ltv. vs. A.P. SEB [ (1998) 4 SCC 470]."
Thus, in light of above referred judgment and in the facts of the case, the Appellate Authority was not justified in arriving at the conclusion that by converting one phase into three phase, since no change was made in recording the consumption in the meter and the meter was not tampered with, issuance of the supplementary bill was not called for. In such view of the matter, the impugned order is required to be quashed and set aside. However since the Appellate Authority has quashed the supplementary bill, it had no occasion to consider other grounds taken by the respondent No1. as regards the calculation of supplementary bill. The Court therefore finds that the matter is required to be remanded to the Appellate Authority to decide the appeal on the question of calculation of the supplementary bill.
9. In view of the above, the petition is partly allowed. The Page 13 of 14 HC-NIC Page 13 of 14 Created On Mon Aug 14 07:58:17 IST 2017 C/SCA/18695/2011 JUDGMENT impugned order dated 17.10.2011 passed by the respondent No.2 - Appellate Authority, and Electrical Inspector in Appeal No.1 of 2010 - 2011, at Annexure - A, is quashed and set aside. The matter is now remitted to the Appellate Authority to decide the appeal of the respondent No.1 on the question of calculation of the supplementary bill only. The Appellate Authority shall take such decision within a period of three months from the date of receipt of copy of this order. Rule is made absolute to the aforesaid extent. Direct service is permitted.
(C.L.SONI, J.) Amit Page 14 of 14 HC-NIC Page 14 of 14 Created On Mon Aug 14 07:58:17 IST 2017