Madhya Pradesh High Court
M/S G.D.Oil & Floor Mill Sabalgarh vs Madhya Pradesh Madhya Kshetra Vidyut on 20 November, 2014
W.P.3938/08 1
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
JUSTICE SUJOY PAUL.
Writ Petition No.3938/08
M/s G.D.Oil and Floor Mill
Vs.
Madhya Pradesh Madhya Kshetra Vidyut Vitran Company Ltd.
& Others
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Shri V.K.Bharadwaj, Sr. Advocate with Shri Anand V. Bhaadwaj,
Advocate for the petitioner.
Shri Vivek Jain, Advocate for the respondents.
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ORDER
( / 11 /2014) This petition filed under Article 226 of the Constitution challenges the order Annexure P-1 whereby the Electricity connection granted to the petitioner was disconnected. It is further prayed that order dated 14.8.2006 whereby the petitioner was required to deposit Rs. 30,00,000/- against supplementary bill be also quashed. In addition, the demand of Rs. 81,66,909/- of the other side is also under challenge. Lastly, it is prayed that the electricity supply of the unit of the petitioner be restored.
2. Shri V.K.Bharadwaj, learned senior counsel at the outset, fairly submits that this matter is squarely covered by the recent judgment of this Court reported in 2014 (3) MPLJ 552 (Hotel Adityaz Ltd. Gwalior Vs. Madhya Pradesh Madhya Kshetra Vidyut Vitran Company Ltd., Bhopal and others). However, he submits that another similar matter like Hotel Adityaz (supra) was decided by Gujarat High Court. It is reported in 2014 AIR CC 497 (GUJ) (Shree Vardhaman Salt Works v. Dakshin Gujarat Vij Co. Ltd. And Anr.). He submits that against the judgment of this Court in Hotel Adityaz Ltd., a writ appeal was filed which has already been dismissed. The Hotel Adityaz has now filed S.P.L. No. 22380/14 which is pending consideration before Supreme Court. It is submitted that against the order of Gujarat High Court aforesaid also, a S.L.P. is pending. Since similar matters are pending before the Supreme Court, this matter be kept in W.P.3938/08 2 abeyance. In support of his submission, reliance is placed on 1970 LJL 34 (Kale Khan Vs. Board of Revenue, M.P. & others). Lastly, it is urged by learned senior counsel that in the event this Court is not agreeing with the aforesaid contention, the Special Court under the Electricity Act be directed to expedite the hearing and till such time the interim protection granted by this Court be continued.
3. Shri Vivek Jain, learned counsel for the respondents submits that the stand of senior counsel is correct that the points involved in this matter are squarely covered by the order of this Court in Hotel Adityaz (supra). However, he submits that the matter decided by Gujarat High Court is based on different facts and circumstances and, therefore, on that ground hearing should not be deferred. He also opposed the prayer for continuing interim order till disposal of matter before the designated court.
4. I have heard the learned counsel for the parties and perused the record.
5. There is a consensus between the parties that the matter is squarely covered by the order of this Court in Hotel Adityaz (supra). In the said case, this Court has considered the distinction between the cases which fall under Section 126 and Section 135 of the Electricity Act, 2003 (in short '2003 Act'). This Court in no uncertain terms opined that in cases where allegation of electricity theft is made will be governed by Section 135 of the 2003 Act. This Court also considered the scope and ambit of Section 126 and 127 of the said Act. This Court opined as under:-
"13. In the aforesaid factual backdrop, the case can be divided into two compartments. The first compartment is regarding the facts of the matter. It is regarding the aspect whether the meter, CT/PT box etc. were found to be in order by the various inspection teams. The rival contentions advanced show that there is a diametrically opposite stand taken by the parties in this regard. Prima facie, Annexure R/5 to R/7 show that there is no certification by the respondents regarding CT/PT and its secondary box. This is a highly disputed question of fact, which can be established by leading evidence. Similarly, stand of petitioner that meter reading was W.P.3938/08 3 done on periodical basis, inspection was carried out and everything was found to be in order, is also specifically disputed. This is also a highly disputed question of fact. Similarly, in view of stand of Shri Jain that 33 KV line was shut down during last one year on many occasions, it is not possible to give any finding whether the alleged manipulation or act of dishonesty was done during this period or otherwise. The location of the poll, in which CT/PT box is installed etc. and whether inspection was carried out in presence of hotel staff and whether signatory of Panchnama and other documents has any relation with hotel are also purely questions of fact which needs to be established by the parties before the court of competent jurisdiction. This is trite in law that disputed questions of fact cannot be gone into and examined in a writ petition.
14. The second compartment is regarding legal and jurisdictional aspect. It is strenuously contended by Shri Katare that in the present case the mandate of Section 126 of the Act is not followed. The exorbitant supplementary bill is prepared, which runs contrary to the Act and Code. The electricity connection is disconnected without authority of law, which hits his fundamental right founded upon Article 19(1)(g) of the Constitution. This aspect needs consideration.
15. By relying on the judgments in Smt. Basanti Bai, Hamidullah Khan and Hotel Utsav (supra), it is urged that a dispute of technical nature can be decided only by technical inspector. In absence of a decision taken by technical inspector, the entire action is bad in law and impermissible. In the opinion of this Court, the aforesaid judgments relied by petitioner are based on erstwhile Electricity Act of 1910. On introduction of 2003 Act, the said Act is no more applicable. The interpretation of this Court in various judgments including in Smt. Basanti Bai (supra) is based on 1910 Act. However, the Apex Court opined as under :-
"If there is an allegation of fraud committed by the consumer in tampering with the meter or manipulating the supply line or breaking the body seal of the meter resulting in not registering the amount of energy supplied to the consumer or the electrical quantity contained in the supply, such a dispute does not fall within the purview of sub-section (6) of section
26. Such a dispute regarding the commission of fraud in tampering with the meter and breaking the body seal is outside the ambit of section 26(6) of the said Act. An Electrical Inspector has, therefore, no jurisdiction to decide such case of fraud."
16. The case of Smt. Basanti Bai (supra) is recently considered by Supreme Court in Civil Appeal No. W.P.3938/08 4 4023/2014 (Western Elect. Supp.Co. Of Orissa vs. M/ s Baba Baijnath Roller & Flour Ltd.), decided on 26.3.2014. The Apex Court opined as under :-
"Section 26 is relevant only when there is any difference or a dispute arises in connection with correctness of a meter, in that case the matter shall be decided, upon being applied by either party, by an Electrical Inspector and in the opinion of the Inspector if it is found that the meter is defective, the Inspector shall estimate the amount of energy supplied to the consumer or the electrical quantity contained in the supply during such time not exceeding six months but if there is a question of fraud in tampering with the meter, in that case there is no question of applicability of Section 26 of the said Act in such a matter.
In two decisions of this Court in M.P.Electricity Board v. Basantibai [1988 (1) SCC 23] and J.M.D. Alloys Ltd. v. Bihar SEB [2003 (5) SCC 226] it has been held that in cases of tampering or theft or pilferage of electricity, the demand raised falls outside the scope of section 26 of the Electricity Act. If that is so, neither the limitation period mentioned in Section 26 of the Electricity Act nor the procedure for raising demand for electricity consumed would arise at all. In this view of the matter, that part of the order of the Division Bench of the High Court, directing that there should be a reference to the Electrical Inspector, shall stand set aside."
In the light of this judgment also, it is clear that Section 26 of 1910 Act and Section 126 of 2003 Act have no application in cases of dishonesty and electricity theft.
17. It is profitable to mention here that in Electricity Act 2003, Section 126 finds place in Chapter - Part XII with the heading "Investigation and Enforcement", whereas Section 135 is in Part XIV under the heading "offences and penalties". Upon their plain reading, the marked differences in the contents of Sections 126 and 135 of the 2003 Act are obvious. They are distinct and different provisions which operate in different fields and have no common premise in law. It can be noticed that Sections 126 and 127 of the 2003 Act read together constitute a complete code in themselves covering all relevant considerations for passing of an order of assessment in cases which do not fall under Section 135 of the 2003 Act. Section 135 of the 2003 Act falls under Part XIV relating to "offences and penalties" and title of the section is "theft of electricity". The section opens with the words "whoever, dishonesty" does any or all of the acts specified under clauses (a) to (e) of sub-section (1) of Section 135 of the 2003 Act so as to abstract or consume or use electricity shall be punishable for W.P.3938/08 5 imprisonment for a term which may extend to three years or with fine or with both. Besides imposition of punishment as specified under these provisions or the proviso thereto, sub-section (1-A) of Section 135 of the 2003 Act provides that without prejudice to the provisions of the 2003 Act, the licensee or supplier, as the case may be, through officer of rank authorised in this behalf by the appropriate commission, may immediately disconnect the supply of electricity and even take other measures enumerated under sub- sections (2) to (4) of the said section. Section 126 of the 2003 Act would be applicable to the cases where there is no theft of electricity but the electricity is being consumed in violation of the terms and conditions of supply leading to malpractices which may squarely fall within the expression "unauthorised use of electricity". This assessment/proceedings would commence with the inspection of the premises by an assessing officer and recording of a finding that such consumer is indulging in an "unauthorised use of electricity". Then the assessing officer shall provisionally assess, to the best of his judgment, the electricity charges payable by such consumer, as well as pass a provisional assessment order in terms of Section 126(2) of the 2003 Act. Section 135 of the 2003 Act deals with an offence of theft of electricity and the penalty that can be imposed for such theft. This squarely falls within the dimensions of criminal jurisprudence and mens rea is one of the relevant factors for finding a case of theft. On the contrary, Section 126 of the 2003 Act does not speak of any criminal intendment and is primarily an action and remedy available under the civil law. Thus, it would be clear that the expression "unauthorised use of electricity" under Section 126 of the 2003 Act deals with cases of unauthorised use, even in the 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 with dishonest intention and without authorisation, like providing for a direct connection bypassing the installed meter, the case would fall under Section 135 of the Act. Therefore, there is a clear distinction between the cases that would fall under Section 126 of the 2003 Act on the one hand W.P.3938/08 6 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 unauthorised 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 unauthorised use of electricity and then theft which is governed by the provisions of Section 135 of the 2003 Act. This view is taken by Supreme Court in Southern Electricity Supply Co. of Orissa Ltd. v. Sri Seetaram Rice Mill, (2012) 2 SCC 108.
18. In the present case, it is apparent that the allegations against the petitioner fall within the ambit of Section 135 of the Act. The opening words of Section 135 are that "whoever, dishonestly does any or all of the acts specified under Section 135 of the Act". Since the impugned orders are in the realm of Section 135, Section 126 of the Act has no application in the present case. Thus, reliance on Section 26 of 1910 Act and Section 126 of 2003 Act is misconceived. Apart from this, under Section 135, there is no scope of preferring representation to respondents. Hence, decision on any such representation by Annexure R/11 dated 9.7.2011 is of no consequence. More so, when validity of this rejection is not called in question.
19. The Apex Court in Sri Seetaram Rice Mill (supra) has clarified the distinction between Sections 126 and 135 of 2003 Act. In Part XV of 2003 Act, Special Courts are constituted. Section 153 deals with constitution of Special Courts. Section 154 envisages the procedure and power of Special Courts. Sub- section (5) of Section 154 gives exclusive power to Special Court to determine the "civil liability" against consumer or a person in terms of money for theft of energy, which shall not be less than an amount equivalent to two times of the tariff rate applicable for a period of 12 months preceding the date of detection of theft of energy or the exact period of theft if determined, whichever is less. The said Court needs to determine the amount of 'civil liability' for the purpose of its recovery. Sub-section (6) makes it clear that in the event amount so recovered is less than the determination, the excess amount can be recovered. If amount so recovered is more than the determination, it shall be refunded by the Board or licensee within fortnight. "Civil Liability" is defined in the Explanation appended to sub-section (5) aforesaid. It reads as under :-
"Explanation.- For the purposes of this section, "civil W.P.3938/08 7 liability" means loss or damage incurred by the Board or licensee or the concerned person, as the case may be, due to the commission of an offence referred to in sections 135 to 139."
20. A conjoint reading of Section 154 of the Act and clause 10.2.3.2 and 10.2.5 of the Code shows that the respondents are equipped with the power to prepare supplementary bill and determine the amount to be mentioned in the supplementary bill. The special provision is made in the Electricity Act whereby giving power to the Special Court to determine the quantum of "civil liability". The Special Court will determine the actual amount and in the event any excess amount is recovered from the customer, it needs to be refunded. This is settled in law that if a Statute provides that a thing needs to be done in a particular manner, it has to be done in the same manner. Since Section 126 of the Act has no application in the fact situation of this case, the grievance of the petitioner can be taken care of in Part XIV and XV of the aforesaid Act. In Sri Seetaram Rice Mill (supra), the Apex Court opined that writ courts normally should only deal with primary question of jurisdiction or the matter which goes to the very root of the jurisdiction and where the authorities have acted beyond the provisions of the Act. It is made clear in the said judgment that "it should only be for the specialized Tribunal or appellate authorities to examine the merit of assessment or even factual matrix of the case (para 86). In para 57, the Apex Court opined that it would have been proper for the High Court to remand the matter to competent authority for its adjudication on merits in accordance with law. The High Court is not obliged to determine the validity of the demand which squarely fell within the domain of specialized authority. At the cost of repetition, the Apex Court opined that High Court should have remanded the case to the concerned officer with a direction to the consumer to file its objection including non-applicability of the tariff before the assessing authority and for determination in accordance with law.
21. Considering the aforesaid, I am not inclined to enter into the question of determination of amount and deem it proper to leave it for the Special Court to undertake this exercise.
22. Reliance is placed on 1993 MPLJ 901 (Harsh Wood Products Pvt. Ltd. vs. State of Madhya Pradesh and others), to canvass that unless allegations of theft are established, electricity connection cannot be disconnected. In the opinion of this Court, this judgment is also based on certain provisions of Electricity Act (9 of 1910). In 2003 Act, a special provision is made in this regard, which reads W.P.3938/08 8 as under:-
"(1A) 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."
The above quoted provision gives statutory power to the authorities to disconnect the connection in certain circumstances. This power is recognised by Supreme Court in Sri Seetaram Rice Mill (supra). At the time of decision of Harsh Wood Products (supra), 2003 Act did not come into force and there was no such enabling provision like (1A) aforesaid. In view of this enabling provision, I am unable to hold that action of respondent is without authority of law. The earlier judgment is clearly distinguishable.
23. The constitutionality of aforesaid enabling provision is not under challenge. This provision gives power of disconnection. This is settled in law that in absence of challenging the enabling provision, Courts must treat it a valid provision. See, (2000) 4 SCC 285 (Molar Mal (Dead) Through Lrs. vs.Kay Iron Works (P) Ltd.).
24. So far allegation of malafide is concerned, there is no material on record to establish the relation between the incident of Shri Nitin Manglik with the impugned orders/action. Shri Nitin Manglik is not impleaded eo nominae. In absence thereof, the allegation of malafide cannot be entertained. Kindly see, (1995) 2 SCC 570 (State of Punjab and others vs. Chaman Lal Goyal). A Division Bench of this Court in 2011 (3) MPHT 479 (Bhagwat Singh Verma vs. State of MP & others) gave the same opinion.
25. In nutshell, the stand of the parties shows that there are highly disputed questions of fact involved, which cannot be adjudicated in a writ petition. Section 126 has no application in the present case. Section 135 squarely covers the matter. There are Special Courts established for deciding the cases relating to dishonesty and electricity theft. The petitioner will get full opportunity of defence in those proceedings. The said Special Court will determine the question of "civil liability". Thus, no case is made out for interference by this Court under Article 226 of the Constitution. It is made clear that this Court has not given any finding on the merits of the case. "
6. The judgment of Shree Vardhaman Salt Works (supra) W.P.3938/08 9 shows that the Gujarat High Court was examining the validity of an appellate order passed by the appellate committee. In the said judgment, the question of applicability of Section 126 was not considered. The facts of the said matter are different. The judgment of Hotel Adityaz (supra) is based on various Supreme Court judgments including the judgment reported in (2012) 2 SCC 108 (Southern Electricity Supply Co. of Orissa Ltd. vs. Sri Seetaram Rice Mill). This judgment squarely covers the field. In cases of electricity theft which are taking place in different places of the country, the facts may be similar. However, merely because facts are similar to some extent, it cannot be said that matter is squarely identical. In Shree Vardhaman Salt Works (supra), the appellate committee's order was quashed on the basis of peculiar facts of the said case. It is important to note here that in Shree Vardhaman Salt Works (supra), the High Court examined the correctness of appellate authority's order. The appellate authority dealt with the merits of the matter. Thus, findings on merits given by appellate authority were subject matter of judicial review. In Adityaz's case this Court has not dealt with the merits of the matter at all. This Court in no uncertain terms made it clear that it has not expressed any view on merits. Highly disputed question of facts can be gone into after leading evidence before the specified court (para 13). Thus, it cannot be said that points involved in Hotel Adityaz (supra) and that of Gujarat matter are identical. Apart from this, all the legal questions involved in Hotel Adityaz were not subject matter of adjudication before the Gujarat High Court. For example, the scope of ambit of Section 126, 127 and 135 were not subject matter of adjudication before the Gujarat High Court. In Hotel Adityaz, this Court has considered the scope of said sections and then opined that the present case is covered under Section 135 of the Electricity Act. Thus, the petitioner needs to avail the remedy before the Special Court established under the Electricity Act.
7. As analyzed above, I am unable to hold that the Gujarat High Court's case is squarely identical to that of Hotel Adityaz.W.P.3938/08 10
This is also not shown that Apex Court has clubbed both the matters by treating them as identical matters. Apart from this, in Kale Khan (supra), this Court opined that when a general question of affecting a large number of litigants is pending for consideration before a superior Court, the decision of the superior Court should be awaited. However, a minute reading of the order shows that this judgment is passed by considering the fact that a large number of litigants are involved and they are poor litigants. In the present case, neither the large number of litigants are involved, nor they can be treated as poor. On the basis of aforesaid analysis, in my view, the judgment of Kale Khan (supra) has no application in the facts and circumstances of the present case.
8. So far the prayer for extension of interim relief is concerned, I do not see any merit in the said case. In Hotel Adityaz also, this Court has not granted any interim relief of that nature. The Apex Court in Hotel Adityaz (Annexure A-5) passed an order dated 29.8.2014 and directed the petitioner to deposit Rs. 1,11,30,027/-. If petitioner deposits the requisite amount, he will not suffer any irreparable loss. The Special Court under the Electricity Act is competent to decide the 'civil liability'. If liability so determined is less than the amount deposited by the petitioner, it can be refunded. In cases of allegations of electricity theft which are covered under Section 135 of the Electricity Act, the interim protection cannot be extended as a matter of course.
9. Resultantly, this prayer of petitioner is rejected. However, in the interest of justice, it is directed that the Special Court shall expedite hearing and may endeavour to decide the matter expeditiously, preferably within six months.
10. With aforesaid, petition stands disposed of. No cost.
(Sujoy Paul) Judge vv