Gujarat High Court
Deputy Engineer, Paschim Gujarat Vij ... vs Jamanbhai Nanajibhai Bhuva on 25 April, 2024
Author: Sunita Agarwal
Bench: Sunita Agarwal
NEUTRAL CITATION
C/LPA/474/2024 ORDER DATED: 25/04/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 474 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 13655 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In
R/LETTERS PATENT APPEAL NO. 474 of 2024
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DEPUTY ENGINEER, PASCHIM GUJARAT VIJ COMPANY LIMITED
(PGVCL) & ANR.
Versus
JAMANBHAI NANAJIBHAI BHUVA
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Appearance:
MS LILU K BHAYA(1705) for the Appellant(s) No. 1,2
for the Respondent(s) No. 1
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 25/04/2024
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)
1. Heard the learned counsel for the appellants and perused the record.
2. The instant appeal is directed against the interim order dated 23.1.2024 passed by the learned Single Judge in granting relief to the petitioner to the extent of deposit of 50% of the demanded amount within the time period mentioned therein and liberty to apply for fresh connection. Besides that, the learned Single Judge has further directed the appellant company to process the application filed by the petitioner, if any, on deposit Page 1 of 22 Downloaded on : Fri May 24 20:32:37 IST 2024 NEUTRAL CITATION C/LPA/474/2024 ORDER DATED: 25/04/2024 undefined of the required amount and provide connection within a period of two weeks. It is further directed that the respondent company shall not delay or reject the application of the petitioner for fresh connection only on the ground that there are arrears standing on the premises in question where the connection is sought.
3. Challenging this interim relief granted by the learned Single Judge, it was argued by the learned counsel for the appellant company that though the order impugned is an interim order, but it amounts to grant of final relief in the shape of providing fresh electricity connection to the petitioner only on deposit of 50% of the amount computed towards the civil liability imposed upon the petitioner in the matter of theft of electricity. From the averments made in the writ petition, it is pointed out that the original petitioner who was having LTMD Type electricity connection, had indulged in the theft of electricity by taking the electricity connection directly from the electric pole. A criminal complaint has, thus, been registered and an FIR has been lodged in the concerned police station. The theft of electricity was detected during the checking / patrolling in the concerned area. An electricity bill of Rs.78,82,179.69 with compounding charges of Rs.9,00,808/-, with total amount of Rs.87,82,987.69 has been raised against the petitioner.
4. The contention in the writ petition has been placed before us to assert that the only ground to challenge the electricity bill on the ground of theft taken in the writ petition was that there Page 2 of 22 Downloaded on : Fri May 24 20:32:37 IST 2024 NEUTRAL CITATION C/LPA/474/2024 ORDER DATED: 25/04/2024 undefined is no legal material with the investigating agency to establish the involvement of the petitioner in connection with the electricity offence. It is submitted by the learned counsel for the appellant that rebutting the assertion made in the writ petition, counter affidavit has been filed on behalf of the appellant on 20.10.2023, to which no rejoinder in reply has been filed by the petitioner. The stand of the appellant in the counter affidavit has not been taken note of by the learned Single Judge while passing the blanket order for grant of fresh electricity connection on the deposit of 50% amount towards the supplementary bill.
5. It is submitted that it is a case of theft of electricity directly from the electricity pole and without successfully challenging the complaint filed by the appellant, no interim relief could have been granted.
6. The disconnection of electricity has been made in terms of Section 135(1A) of the Electricity Act, 2003 ('the Act') and restoration is guided by third proviso to subjection (1A) of Section 135 of the Act, which provides that the electricity connection can be restored only on the deposit of the assessed amount or electricity charges by the assessee.
7. It may be noted that the writ petition challenging the Supplementary Bill dated 01.06.2023 issued under Section 135 of the Electricity Act, 2003 has been allowed by the impugned interim order dated 23.01.2024, passed by the learned Single Page 3 of 22 Downloaded on : Fri May 24 20:32:37 IST 2024 NEUTRAL CITATION C/LPA/474/2024 ORDER DATED: 25/04/2024 undefined Judge, simply relying on the decision of the Division Bench in Letters Patent Appeal No. 1445 of 2023 connected with another decided on 14.12.2023.
8. Ms. Lilu K. Bhaya, learned advocate appearing for the appellant would vehemently submit that this indulgence granted to the petitioner is without taking note of the stand of the appellant in the counter affidavit filed before the learned Single Judge.
9. Coming to the claim of the petitioner before the learned Single Judge, it may be noted that the challenge in the writ petition is to the correctness of the checking-sheet with the assertion that the petitioner is an innocent person and has not committed any offence. The claim of the petitioner about the correctness of the checking report, in our considered opinion, may not be the subject matter for examination before the learned Single Judge within the scope of Article 226 of the Constitution of India as factual inquiry cannot be made by this Court.
10. Special Courts are created under Section 153 of the Electricity Act, 2003, which have to look to the allegations of commission of the offence under Section 135 of the Act, 2003. As per the procedure prescribed in Section 152, it is the Special Courts, which will try the offence referred to in Section 135 in a summary way in accordance with the procedure prescribed in Page 4 of 22 Downloaded on : Fri May 24 20:32:37 IST 2024 NEUTRAL CITATION C/LPA/474/2024 ORDER DATED: 25/04/2024 undefined the Code of Criminal Procedure and the provisions of Section 263 and 265 of the said Code, insofar as may be applied to such trial. The Special Court is also empowered to obtain evidence of any person supposed to have been directly or indirectly concerned or privy to, any offence, tender pardon to such person on condition of his making a full and true disclosure of the circumstances within his knowledge relating to the offence and to every other person concerned whether as a principal or abettor in in the commission there of, and any pardon so tendered shall, for the purposes of Section 308 of the Code of Criminal Procedure, be deemed to have been tendered under Section 307 thereof. The Special Court shall determine the civil liability against the consumer or a person in terms of money, for theft of energy, at the rate prescribed in Sub-Section (5) of Section 154.
11. As regards the supplementary bill in question is concerned, the same has been prepared under the provisions of the Gujarat Electricity Regulatory Commission (Electricity Supply Code and Related Matters) Regulation, 2015, the Clause 7.2 to 7.11 whereof prescribe the procedure for booking a case of theft of electricity in the matter of assessment for consumption of electricity as a result of theft.
12. Clause 7.12 provides that such an assessment is to be made as per the assessment formula given in Annexure - IV of the Electricity Supply Code, 2015. The period of assessment, Page 5 of 22 Downloaded on : Fri May 24 20:32:37 IST 2024 NEUTRAL CITATION C/LPA/474/2024 ORDER DATED: 25/04/2024 undefined however, be arrived at as provided in Clause 7.7 of the Code, which is twice the applicable tariff. Clause 7.12, further, states that the assessment order shall be served to the person under proper receipt. The consumer shall, then, be required to make a payment within the period of seven days and its proper receipt, as per Clause 7.14. Relevant Clauses 7.7 and 7.12 to 7.18 of the Electricity Supply Code be noted hereinunder:
"7.7 The Assessing Officer shall assess the energy consumption as per the assessment formula given in Annexure IV to this Code, for the entire period during which such theft of electricity has taken place. If. however, the period during which such theft of electricity has taken place cannot be ascertained, such period shall be limited to 12 months immediately preceding the date of inspection. The period of assessment may be arrived at after taking into consideration the following guidelines or any combination thereof:
(1) Actual period from the date of commencement of supply to the date of detection of theft;
(2) Actual period from the date of replacement of component of metering system in which the evidence is detected to the date of detection of theft;
Page 6 of 22 Downloaded on : Fri May 24 20:32:37 IST 2024
NEUTRAL CITATION C/LPA/474/2024 ORDER DATED: 25/04/2024 undefined (3) Actual period from the date of previous checking of installation to date of detection of theft;
(4) Meter Reading Instrument (MRI) data should be considered wherever available.
(5) Based on the valid document produced by the accused person.
7.12 Where it is established that there is a case of theft of energy, the Assessing Officer shall assess the energy consumption as per the assessment formula given in Annexure IV to this Code. The period of assessment may be arrived at as provided in the Clause 7.7 of this code. The assessment shall be twice the applicable tariff. The assessment order shall be served to the person under proper receipt.
7.13 In case of a regular metered connection, where a case of theft of electricity is detected, units allowed to be recorded in the meter for which bills have been raised by the licensee to the person during the period, for which the assessment is made, shall be duly credited to the consumer.
7.14 The consumer shall be required to make the payment Page 7 of 22 Downloaded on : Fri May 24 20:32:37 IST 2024 NEUTRAL CITATION C/LPA/474/2024 ORDER DATED: 25/04/2024 undefined within 7 days of its proper receipt.
7.15 The licensee or supplier, as the case may be, on deposit or payment of the assessed amount or electricity charges in accordance with the provision of these regulations, shall, without prejudice to the obligation to lodge the complaint as referred to in the second proviso to the clause (1A) of Section 135 of the Electricity (Amendment) Act, 2007, restore the supply line of electricity within forty eight hours of such deposit or payment.
7.16 If the person does not make payment within the stipulated time, the licensee or supplier shall proceed to recover its dues against the assessment order.
7.17 In case of default by the person in payment of assessed amount, the person, in addition to the assessed amount, shall be liable to pay, on expiry of thirty days from the date of order of assessment, an amount of interest at the rate of 16% per annum compounded every 6 months pending adjudication by Appropriate Court.
7.18 In case of default in payment of the assessed amount, the licensee will, after giving a 15 days' notice, in writing, 1 Page 8 of 22 Downloaded on : Fri May 24 20:32:37 IST 2024 NEUTRAL CITATION C/LPA/474/2024 ORDER DATED: 25/04/2024 undefined [take necessary action for recovery of the assessed amount including filing Civil suit etc. as provided under the Electricity Act, 2003."
13. In the judgment and order dated 14.12.2023 passed by the Division Bench in Paschim Gujarat Vij Company Ltd. (supra), it was faced with the question as to whether the petitioners therein / consumer are entitled for opportunity of hearing at the stage of assessment of energy consumption in cases of theft of energy, as computed under the provisions of Clause 7.12 of the Electricity Supply Code. Having examined the provisions of the Electricity Supply Code, Sections 126, 135 and 154 of the Electricity Act, 2003, it was noted that though the Special Courts constituted under Section 153 of the Electricity Act, 2003 are to try the criminal offences in accordance with the provisions of the Act for punishing the accused or pardoning him, in proven cases of theft of electricity, and to determine civil liability in accordance with Sub-Section (5) of Section 153, but the assessment in the matter of consumption of electricity in the case of theft of electricity, is to be made in accordance with the Clause 7.12, as per the assessment formula given in Annexure - IV of the Electricity Code, and the same is independent to the civil liability assessed by the Special Court as per Sub-Section (5) of Section 154 of the Electricity Act, 2003.
14. It was held by reading of the provisions of Electricity Supply Code, 2015 that in case of theft of electricity, the Page 9 of 22 Downloaded on : Fri May 24 20:32:37 IST 2024 NEUTRAL CITATION C/LPA/474/2024 ORDER DATED: 25/04/2024 undefined assessing officer is required to follow the procedure in Clause 7.2 to 7.11 for booking a case of theft of electricity. It was noticed that as per the procedure prescribed therein on inspection, the assessing officer shall prepare a report clearly indicating whether sufficient evidence substantiating the fact that the theft of energy was found or not, is to be prepared by recording details of such evidence. Such report is to be signed by the authorized officer by complying with the conditions stipulated in Clause 7.24 of the Code and each member of inspecting team shall have to be handed over to the consumer. The complaint of theft of electricity can be lodged only in case of theft of electricity is found to be established on sufficient evidence detailed in the report. After such inquiry, the electricity supply is also to be disconnected in accordance with the provisions of Section 135 (1)(a) of the Electricity Act, 2003. The consumer or such person will have a right to contest before the Special Court, which will have to follow the procedure prescribed in Section 154, as noted hereinbefore.
15. Having noticed the above, it was held by the Division Bench that the petitioners therein are entitled for an opportunity of hearing to dispute the assessment made by the assessing officer in the matter of energy consumption as per the assessment formula given in Annexure - IV of the Electricity Supply Code, 2015 as also the period during which, such theft of electricity has taken place, i.e. the computation of period as per Clause 7.7 of the Code. It was then concluded that the Page 10 of 22 Downloaded on : Fri May 24 20:32:37 IST 2024 NEUTRAL CITATION C/LPA/474/2024 ORDER DATED: 25/04/2024 undefined supplementary bill prepared under the aforesaid provisions of the Electricity Supply Code, 2015 shall be treated as provisional assessment and shall be subject to the final assessment to be made after grant of opportunity of hearing to the petitioners therein.
16. Noticing the above, indulgence was granted, in the facts of the case to the petitioner therein to deposit 50% of the assessed amount in the supplementary bill and further direction was given for restoration of electricity connection on the deposit of 5% of the amount of supplementary bill.
17. Noticing the above, we find that the learned Single Judge has simply proceeded to rely on the aforesaid decision of the Division Bench dated 14.12.2023 to pass an interim order, without adverting to the facts of the instant case. Even with the determination of the question of the opportunity of hearing, it was necessary to look to the stand of the appellant - Company, the respondent therein in the counter affidavit already filed in the matter. The grant of electricity connection by the interim order in the matter of theft of electricity in the proceedings under Section 135 of the Electricity Act, 2003, without any reason given in the interim order dated 23.01.2024, is found to be suffering from the apparent error on the face of the record. We are, therefore, of the considered view that the matter is to be relegated to the learned Single Judge for fresh decision on consideration of the stand of the respondent / appellant -
Page 11 of 22 Downloaded on : Fri May 24 20:32:37 IST 2024 NEUTRAL CITATION C/LPA/474/2024 ORDER DATED: 25/04/2024 undefined company herein in the counter affidavit.
18. Moreover, the directions contained in the interim order dated 23.01.2024 to grant electricity connection on payment of 50% towards the supplementary bill, amounts to passing of the final order in the matter of theft of electricity, inasmuch as, restoration of supply line of electricity is guided by the third proviso to Sub-Section (1 A) of Section 135 of the Act 2003, which provides for the deposit of the entire assessed amount or electricity charges in accordance with the provisions of the Act. We, therefore, find it fit and proper in the interest of justice and to stay the operation of the interim order dated 23.01.2024 passed by the learned Single Judge and relegate the matter for fresh consideration on the claim of the petitioner viz.a.viz the respondent - company namely the appellant herein.
19. However, before parting with this order, we would also like to clarify one issue pertaining to the right of the consumer in the case of assessment of electricity charges in the matter of theft of electricity.
20. The further question which we find fit to examine is to whether there is any other statutory remedy before the consumer to challenge the assessment in the matter of theft of electricity. In this regard, we may take note of the decision of the Apex Court in WEST BENGAL STATE ELECTRICITY DISTRIBUTION COMPANY LTD. VS. M/S Page 12 of 22 Downloaded on : Fri May 24 20:32:37 IST 2024 NEUTRAL CITATION C/LPA/474/2024 ORDER DATED: 25/04/2024 undefined ORION METAL PVT. LTD. reported in (2020) 18 SCC 588, wherein the Apex Court was faced with the question as to whether two parallel proceedings, i.e. criminal complaint before the Special Court as also the assessment proceedings in the matter of theft of electricity can go simultaneously or not. It was the case of the consumer therein that once the complaint is filed, alleging theft of electricity under Section 135(1)(a) of the Act, no assessment is permissible under Section 126(1) of the Act. It was held by the High Court therein that when a complaint is lodged alleging theft of energy by consumer and when supply of electricity is disconnected on account of such offence alleged, only in cases where restoration of supply is sought by the consumer, agreeing to deposit the assessed amount of unmetered consumption, provisional assessment can be made under Section 126 of the Act. The High Court has drawn a distinction to exercise power under Section 126 (1) of the Act, in cases where consumers seek restoration after disconnection and in cases where restoration of supply had not been sought for. The High Court has held that only in cases where restoration is sought after disconnection, authorities can resort to make assessment under Section 126(1) of the Act, otherwise, the civil liability can only be determined by the Special Court by following the procedure under Sub-Section (5) of Section 154 of the Act.
21. Considering the issue, the Apex Court had gone through the objects and reasons of the Electricity Act, 2003 as Page 13 of 22 Downloaded on : Fri May 24 20:32:37 IST 2024 NEUTRAL CITATION C/LPA/474/2024 ORDER DATED: 25/04/2024 undefined also the provisions of Sections 126, 135, 153 and 154 of the Act. It was noted therein that in the objects and reasons of the Act, a specific reference is made to incorporate provisions relating to theft of electricity, to have revenue focus. It was held that on a conjoint reading of the said provisions, it appears that after an inspection of any place or any premises of any consumer, when the assessing officer comes to a conclusion that the consumer has indulged in an unauthorized use of electricity, the provisional assessment to the best of his judgment is to be made in accordance with Section 126(1) of the Act and such provisional assessment shall be served upon the person in occupation of the premises. After giving an opportunity to file objections to the provisional assessment, the assessing officer is empowered to pass a final order of the assessment assessing the loss of energy on account of unauthorized use of electricity.
22. The 'unauthorized use of electricity' is defined under Section 126(6)(b) of the Act. It was held that it is clear from the reading of Section 126(6)(b)(iii) of the Act that all instances of unauthorized use of energy may not amount to theft of electricity within the meaning of Section 135 of the Act, but at the same time, the theft of electricity which is covered by Section 135 of the Act will fall within the definition of ' unauthorized use of electricity '. As per Section 135 (1 A) of the Electricity Act, without prejudice to the other provisions of the Act, the licensee or supplier, as the case may be, upon detection of theft of electricity, is empowered to disconnect the power Page 14 of 22 Downloaded on : Fri May 24 20:32:37 IST 2024 NEUTRAL CITATION C/LPA/474/2024 ORDER DATED: 25/04/2024 undefined supply immediately. Further, as per the third proviso to Section 135 (1 A) of the Electricity Act, the licensee or supplier, as the case may be, on deposit or payment of the assessed amount or electricity charges, without prejudice to the obligation to lodge a complaint, can restore the supply line of electricity within 48 hours of deposit / payment of such amount.
23. It is, thus, clear that the authorities under the Act are empowered to make a provisional and final assessment by invoking the power under Section 126 (1) of the Act, even in cases where electricity is unauthorizedly used by way of theft. When consumer deposits the assessed amount, the licensee or supplier is to restore the power supply. Noticing the distinction between Section 126 and 135 under the scheme of the Act, pertaining to 'unauthorized use of electricity' and 'theft of electricity', it was held by the Apex Court in West Bengal State Electricity Distribution Company Ltd. (supra) that merely because the Special Court is empowered to determine the civil liability under Section 154 (5) of the Act in cases where the complaint of theft is lodged, it cannot be said that there is no power conferred on the authorities to make provisional assessment / final assessment under Section 126 of the Act.
24. The Apex Court has also considered its previous decision in SOUTHERN ELECTRICITY SUPPLY COMPANY VS. SHRI SITARAM RICE MILLS reported in (2002) 2 SCC 108 wherein, the scope of the explanation to Page 15 of 22 Downloaded on : Fri May 24 20:32:37 IST 2024 NEUTRAL CITATION C/LPA/474/2024 ORDER DATED: 25/04/2024 undefined Section 12(6) (b) (iv) of Electricity Act, 2003, considering the distinction between Section 126 and 135 of the Act, 2003, has been worked out. It was held therein that 'unauthorized use of electricity' cannot be restricted to the stated clauses under the explanation to Section 126 (6) of the Act, but has to be given a wider meaning so as to cover cases of violation of the terms and conditions of supply and the regulations and provisions of the 2003 Act governing supply. "Unauthorized use of electricity"
itself is an expression which would, on its plain reading, takes within its scope all the misuse of the electricity or even malpractices adopted while using the electricity. It was held that it is difficult to restrict this expression and limit its application by the categories stated in the explanation.
25. Considering the above, when we look to the provisions of Clauses 7.1 to 7.14 as contained in Part '7' of the Electricity Supply Code, 2015 under the Electricity Act, 2003,it is evident that the procedure for assessment provided therein is of the assessment of un-metered energy consumption in a case of theft of energy which would fall within the scope of the meaning assigned to 'unauthorized use of electricity' under Section 126 (6) (b) of the Electricity Act, 2003 by the Apex Court in the aforesaid decisions. The result is that any assessment of the energy consumption in the matter of theft of electricity, though, has to be made in accordance with the procedure prescribed in Clauses 7.12 to 7.18, but it would be an assessment of unmetered energy consumption falling under Page 16 of 22 Downloaded on : Fri May 24 20:32:37 IST 2024 NEUTRAL CITATION C/LPA/474/2024 ORDER DATED: 25/04/2024 undefined Section 126 of the Electricity Act, 2003. The result is that in case a consumer is agreeable to the assessment and deposits the assessed amount as per Sub-Section (1 A) of Section 135, his electricity connection is to be restored as per the proviso contained therein. However, in case a consumer is dissatisfied with the computation of assessment made by the assessing authority, he will have a remedy to file an appeal under Section 127 of the Electricity Act, 2003. However, in case of such a dispute, without deposit, the consumer will not get an opportunity to seek restoration of the electricity supply.
26. A balancing act is to be made by the Court, inasmuch as, a person who has indulged in the act of theft of electricity cannot seek restoration of supply, without depositing the assessed un-metered energy consumption. As regards, the claim of such a consumer that he is innocent or there is no theft, it would be open for him to contest the matter before the Special Court.
27. We may further note the observation in Paragraph '15' in West Bengal State Electricity Distribution Company Ltd. (supra), wherein it is held that in cases where allegation is of unauthorized use of energy amounting to theft apart from assessment of energy consumption under Section 126 (1) of the Act, the complaint also has to be lodged alleging theft of energy as defined under Section 135 (1) of the Act. In such cases, the Special Court is empowered to determine civil Page 17 of 22 Downloaded on : Fri May 24 20:32:37 IST 2024 NEUTRAL CITATION C/LPA/474/2024 ORDER DATED: 25/04/2024 undefined liability under Section 154 (5) of the Act. It was, further, noted that sofar as Section 135 is concerned, the guilt of the accused is to be proved by the authorities beyond reasonable ground along with the element of mens rea, whereas such a strict rule is not necessary for assessing the liability under Section 126 (1) of the Act. The relevant Paragraph '15' of West Bengal State Electricity Distribution Company Ltd. (supra) is quoted hereinunder:
"15. We also do not find any valid reason for making a distinction as made by the High Court in applying Section 126 of the Act. From the scheme of the Act, it appears that after inspection team notices unauthorised use of energy by tampering the meter, the authorities can disconnect the power supply immediately and make immediate assessment for loss of energy, by invoking power under Section 126(1) of the Act. The term "unauthorised use of energy" is of wide connotation. There may be cases of unauthorised use of energy, not amounting to theft, which are cases viz. exceeding the sanctioned load or using the electricity in the premises where its use is not authorised, etc. But at the same time, when there is an allegation of unauthorised use of energy by tampering the meter, such cases of unauthorised use of energy include "theft" as Page 18 of 22 Downloaded on : Fri May 24 20:32:37 IST 2024 NEUTRAL CITATION C/LPA/474/2024 ORDER DATED: 25/04/2024 undefined defined under Section 135 of the Act. The power conferred on authorities for making assessment under Section 126(1) of the Act and power to determine civil liability under Section 154(5) of the Act, cannot be said to be parallel to each other. In this regard, we are of the view that the High Court has committed an error in recording a finding, that both proceedings cannot operate parallelly. In a given case where there is no theft of energy, amounting to unauthorised use of energy, in such cases no complaint of theft can be lodged as contemplated under Section 135 of the Act. In such cases for loss of energy, on account of unauthorised use of energy not amounting to theft, it is always open for the authorities to assess the loss of energy by resorting to power under Section 126(1) of the Act. In cases where allegation is of unauthorised use of energy amounting to theft, in such cases, apart from assessing the proceedings under Section 126(1) of the Act, a complaint also can be lodged alleging theft of energy as defined under Section 135(1) of the Act. In such cases, the Special Court is empowered to determine civil liability under Section 154(5) of the Act. On such determination of civil Page 19 of 22 Downloaded on : Fri May 24 20:32:37 IST 2024 NEUTRAL CITATION C/LPA/474/2024 ORDER DATED: 25/04/2024 undefined liability by the Special Court, the excess amount, if any, deposited by the petitioner, is to be refunded to the consumer. It is a settled principle that to prove the guilt of the accused in a criminal proceeding, authorities have to prove the case beyond reasonable doubt and the element of mens rea is also to be established. On the other hand, such a strict proof is not necessary for assessing the liability under Section 126 (1) of the Act."
28. With the above, it is clarified that the learned Single Judge is required to take note of the aforesaid decisions of the Apex Court to see as to whether the consumer is making a complaint about the theft of electricity or is challenging the assessment of unmetered energy consumption, as per clauses 7.12 to 7.14 of the Electricity Supply Code, 2015. In any case, a finding has to be arrived into the claim of the petitioner in seeking restoration of power supply viz.a.viz the stand of the respondent - Company (appellant herein) that the petitioner is not entitled to claim restoration of electricity supply without depositing the entire assessed amount, as it was the case of the theft of energy.
29. In any case, if the petitioner chooses to challenge the assessment made by the competent authority, he has a Page 20 of 22 Downloaded on : Fri May 24 20:32:37 IST 2024 NEUTRAL CITATION C/LPA/474/2024 ORDER DATED: 25/04/2024 undefined remedy of filing appeal under Section 127 of the Act 2003. The question of opportunity of hearing at the stage of provisional assessment of unmetered energy consumption in accordance with the Clause 7.12 to 7.14, has already been settled by the Division Bench in the judgment and order dated 14.12.2023 in Paschim Gujarat Vij Company Ltd. (supra). The learned Single Judge is, therefore, required to take into account all the aforesaid decisions for arriving at its own conclusion.
30. In view of the above, while staying the interim order dated 23.01.2024 passed by the learned Single Judge to the extent of the directions for restoration of electricity supply, the matter is remitted back for fresh consideration.
31. It may be noted that this Court did not find it necessary to issue notice to the respondent / original petitioner for the simple reason that the matter is being relegated without addressing on the merits of the claim of the petitioner, and discussion in this judgment is only on the legal issues. In any case, the learned Single Judge has to conduct a rehearing of the matter so to decide as to whether the petitioner is entitled for any interim or final relief. Any of the observations made by us hereinbefore except on legal points, will not come in the way of the parties in the proceedings before the learned Single Judge.
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32. With the above observations and directions, the Letters Patent Appeal stands disposed of.
(SUNITA AGARWAL, CJ ) (ANIRUDDHA P. MAYEE, J.) OMKAR / ranger Page 22 of 22 Downloaded on : Fri May 24 20:32:37 IST 2024