Gujarat High Court
Ranchhodbhai vs Union on 26 April, 2011
Author: S.J.Mukhopadhaya
Bench: S.J. Mukhopadhaya
Gujarat High Court Case Information System
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SCA/13931/2009 26/ 26 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 13931 of 2009
With
SPECIAL
CIVIL APPLICATION No. 13933 of 2009
With
SPECIAL
CIVIL APPLICATION No. 13935 of 2009
With
SPECIAL
CIVIL APPLICATION No. 4388 of 2010
With
SPECIAL
CIVIL APPLICATION No. 13936 of 2009
With
SPECIAL
CIVIL APPLICATION No. 13932 of 2009
With
SPECIAL
CIVIL APPLICATION No. 3356 of 2010
With
SPECIAL
CIVIL APPLICATION No. 4385 of 2010
With
SPECIAL
CIVIL APPLICATION No. 13934 of 2009
With
SPECIAL
CIVIL APPLICATION No. 4386 of 2010
With
SPECIAL
CIVIL APPLICATION No. 4387 of 2010
For
Approval and Signature:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
HONOURABLE
MR.JUSTICE K.M.THAKER
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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RANCHHODBHAI
HARIBHAI SUTARIYA - Petitioner(s)
Versus
UNION
OF INDIA THROUGH SECRETARY & 4 - Respondent(s)
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Appearance
:
MR
BM MANGUKIYA for Petitioner(s) : 1,MS BELA A PRAJAPATI for
Petitioner(s) : 1,
MR PS CHAMPANERI for Respondent(s) : 1,
MR
KB PUJARA for Respondent : 3
MR JK SHAH AGP for Respondent(s) :
2,
MR PREMAL R JOSHI for Respondent(s) :
5,
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CORAM:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
:26/04/2011
COMMON
CAV JUDGMENT
(Per : HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA) In all these cases, as the validity of Secs. 126 and 135 of the Electricity Act, 2003, (hereinafter referred to as the `Act') is under challenge, and other similar reliefs having been sought for, they were heard together and disposed of by this common judgment.
2. On inspection of the premises of the petitioners and after inspection of the equipments, gadgets, machines, devices found connected and used and the assessing officer having come to the conclusion that petitioners are indulging in unauthorized use of electricity, they were provisionally assessed to the best of their judgment for the electricity charges payable by the petitioners, and after hearing them, finally, the orders of assessment were served under Sec.126 of the Act. Many of them were also charged for offences of theft of electricity u/Sec.135 of the Act, and therefore, they preferred writ petitions challenging the aforesaid provisions of law, as also the notifications issued by the State Government conferring power on the assessing officer and/or authorised officer u/Secs. 126 and 135 of the Act. The vires of Secs. 126 and 135 of the Electricity Act, 2003 are not only challenged on the ground of their invalidity and ultravires Article 14 of the Constitution of India, but also the power of the State Government has also been challenged to designate an authorized assessing officer for giving effect to the aforesaid provisions.
3. Petitioners have pleaded their individual cases about consumption of electricity, meter reading, and that they have not committed any theft nor unauthorizedly used electricity, but it is not necessary to discuss all the facts, as the main challenge is to the validity of Secs. 126 and 135 of the Electricity Act, 2003, and the notifications issued by the State Government, designating one or other person as the assessing officer or authorised officer.
4. Brief case of the petitioners is that the Central legislation repealed the Indian Electricity Act, 1910, Electricity (Supply) Act, 1948 and Electricity Regulatory Commission Act, 1988, and with a drastic change enacted the Electricity Act, 2003, as amended by the Electricity (Amendment) Act, 2007. The Gujarat Electricity Regulatory Commission has framed Electricity Supply Code and related matters vide Notification No.11 of 2005, known as `Gujarat Electricity Regulatory Commission (Electricity Supply Code and Related Matters) Regulations 2005'. Clause 6 of the Code makes provision for metering and power supply charges. Clause 6.1.2 provides that information in respect of the same shall be provided by the licensee to the consumer in duplicate. Further, the meter reader is required to check the meter, meter seals and cut out during the meter reading at each billing cycle, and is supposed to notice and report abnormalities or irregularities in meter or meter seals or cut out, and required to communicate the same to the licensee. Clauses 6.1.2 to 6.1.16 provide for dispute resolution in respect of recording of consumption of electricity shown in the meter. Clause 6.1.17 provides for reading of meter. Clause 7 of the Code provides for unauthorized use of electricity as defined under clause 7.1.1.
5. Learned counsel submitted that the State Government, in exercise of powers conferred upon it under clause (k) of sub-Sec.(2) of Sec.118 r.w. sub-Sec.(2) of Sec.126 of the Act, issued notification on 5th June 2004, framing `Gujarat Electricity (Manner of Service of Provisional Assessment Order) Rules, 2004'. Another Rule was framed in exercise of powers conferred upon it under clause (n) of sub-Sec.(2) of Sec.118 r.w. sub-Sec.(1) of Sec.171 of the Act known as `Gujarat Electricity (Manner of Service of Notice or Documents) Rules 2004. Subsequently, in exercise of powers conferred upon the State Government u/Sec.126, notification dated 5th June 2004 designating officers mentioned at col.2 of the Schedule appended thereto as the Assessing Officer to exercise power within the areas prescribed against them was issued. Part `C" of the said notification consists designation of officers as assessing officers, whereat 15 officers of different designations of Paschim Gujarat Vij Company Limited and other similar supply companies were appointed as assessing officers.
6. The main contention as advanced by counsel for the petitioners is that it is the respondent electricity companies, which make the allegations, and their officers having been appointed as assessing officers, the electricity companies prove their own allegations by themselves. There is no chance even to say that the bill is incorrect or the charge is incorrect. There is little chance being given to explain the matter. In many cases, electricity company removes meters even without sealing, and if they are sealed, the witnesses are the employees of the company, and no independent evidence is taken. Therefore, the electricity company plays the role of a complainant, investigator, prosecutor and the judge for determination as provided u/Sec.126 of the Act.
7. Learned counsel for the petitioners would contend that the provisions of Secs. 126 and 135 of the Act are ultravires Art.14 of the Constitution of India, unbridled and uncontrolled power having been vested with the electricity supply company. It is submitted that though no person can be a judge of his own cause. The principle that emerges from a well known maxim nemo judex in propria causa sua is that a person cannot be a judge in his own cause, but in the present case, the notifications r.w. Secs.126 and 135 make it clear that electricity supply company is the complainant, it is investigating the case and judges its own case, thereby, the assessing officer decides the issue with bias, and therefore, such provision cannot be upheld.
8. Learned counsel would contend that there is likelihood of bias, and in accordance with the principles of natural justice if there is a likelihood of bias, such person should be incapacitated from sitting on the issue. Therefore, an officer of the company cannot be declared as assessing officer. He emphasized the principle that emerges from another maxim `qui aliquid statuerit parteinaudita alteram actquam licet dixerit, haud acquum facerit', meaning thereby, `who shall decide anything without other side having been heard, although he may have said what is right, will not have been what is right. In other words, it is expressed as `justice not only to be done, but manifestly seen to be done".
9. In support of his contention, learned counsel referred to different decisions of Supreme Court as referred hereunder. In re Art. 143, Constitution of India and Delhi Laws Act (1912) etc. reported in AIR 1951 SC 332 Supreme Court held:
"35.
A fair and close reading and analysis of all these decisions of the Privy Council, the judgments of the Supreme Courts of Canada and Australia without stretching and straining the words and expressions used therein lead me to the conclusion that while a legislature, as a part of its legislative functions, can confer powers to make rules and regulations for carrying the enactment into operation and effect, and while a legislature has power to lay down the policy and principles providing the rule of conduct, and while it may further provide that on certain data or facts being found and ascertained by an executive authority, the operation of the Act can be extended to certain areas or may be brought into force on such determination which is described as conditional legislation, the power to delegate legislative functions generally is not warranted under the Constitution of India at any stage. In cases of emergency, like war where a large latitude has to be necessarily left in the matter of enforcing regulations to the executive, the scope of the power to make regulations is very wide, but even in those cases the suggestion that there was delegation of "legislative functions" has been repudiated. Similarly, varying according to the necessities of the case and the nature of the legislation, the doctrine of conditional legislation or subsidiary legislation or ancillary legislation is equally upheld under all the Constitutions. .... (observation by Kania C.J. as he then was).
"74.The conclusions at which I have arrived so far may now be summed up:(1)
The legislature must normally discharge its primary legislative function itself and not through others. (2) Once it is established that it has sovereign powers within a certain sphere, it must follow as a corollary that it is free to legislate within that sphere in any way which appears to it to be the best way to give effect to its intention and policy in making a particular law, and that it may utilize any outside agency to any extent it finds necessary for doing things which it is unable to do itself or finds it inconvenient to do. In other words, it can do everything which is ancillary to and necessary for the full and effective exercise of its power of legislation. (3) It cannot abdicate its legislative functions, and therefore while entrusting power to an outside agency, it must see that such agency, acts as a subordinate authority and does not become a parallel legislature. (4) The doctrine of separation of powers and the judicial interpretation it has received in America ever since the American Constitution was framed, enables the American courts to check undue and excessive delegation but the courts of this country are not committed to that doctrine and cannot apply it in the same way as it has been applied in America. Therefore, there are only two main checks in this country on the power of the legislature to delegate, these being its good sense and the principle that it should not cross the line beyond which delegation amounts to "abdication and self-effacement. (as observed by Fazal Ali, J. as he then was).
""246.
... The decisions referred to above clearly lay down that the legislature cannot part with its essential legislative function which consists in declaring its policy and making it a binding rule of' conduct. A surrender of this essential function would amount to abdication of legislative powers in the eye of law. 'the policy may be particularised in as few or as many words as the legislature thinks proper and it is enough if an intelligent guidance is given to the subordinate authority. The Court can interfere if no policy is discernible at all or the delegation is of such an indefinite character as to amount to abdication, but as the discretion vests with the legislature in determining whether there is necessity for delegation or not, the exercise of such discretion is not to be disturbed by the court except in clear cases of abuse. These I consider to be the fundamental principles and in respect to the powers of the legislature the constitutional position in India approximates more to the American than to the English pattern. There is a basic difference between the Indian and the British Parliament in this respect. There is no constitutional limitation to restrain the British Parliament from assigning its powers where it will, but the Indian Parliament qua legislative body is lettered by a written constitution and it does not possess the sovereign powers of the British Parliament. The limits of the powers of delegation in India would therefore have to be ascertained as a matter of construction from the provisions of the Constitution itself and as I have said the right of delegation may be implied in the exercise of legislative power only to the extent that it is necessary to make the exercise of the power effective and complete. ... (as observed by Mukherjea J. as he then was)."
10. In the case of Harishankar Bagla v. M.P. State reported in AIR 1954 SC 465, Supreme Court held:
"9.
... In other words, the legislature cannot delegate its function of laying down legislative policy in respect of a measure and its formulation as a rule of conduct. The Legislature must declare the policy of the law and the legal principles which are to control any given cases and must provide a standard to guide the officials or the body in power to execute the law. The essential legislative function consists in the determination or choice of the legislative policy and of formally enacting that policy into a binding rule of conduct. ..."
11. In a decision in Union Carbide Corporation and others Vs. Union of India and others reported in (1991) 4 SCC 584, Supreme Court noticed the essence of doctrine of stifling prosecution, i.e. no private person should be allowed to take the administration of criminal justice out of the hands of the judges and place it in his own hands.
12. In Tansukh Rai Jain v. Nilratan Prasad Shaw and others reported in AIR 1966 SC 1780 wherein Supreme Court observed as follows:-
"9.
Repeal, by implication, is not to be easily inferred. It is to be expected that when Parliament was aware of the provisions of Bihar s. 64A and of Art. 254 of the Constitution and it intended to repeal Bihar s. 64A, it would have expressly stated so. There is nothing in Central s. 64A or in any other provision of the Act which expressly states that Bihar s. 64A is repealed. We are of opinion that the mere fact that Central s. 64A deals with revisions against non-appealable orders of the Regional Transport Authority is not sufficient to conclude that Parliament intended to repeal Bihar s. 64A."
13. Some other decisions of Supreme Court on the same issue in State of Nagaland vs. Ratan Singh, Constable 7878 and others reported in AIR 1967 SC 212, Caltex (India) Ltd. Calcutta v. Presiding Officer, Labour Court, Patna and others reported in AIR 1966 SC 1729 and B. Shama Rao v. Union Territory of Pondicherry reported in AIR 1967 SC 1480 were also relied on.
14. Learned counsel appearing on behalf of the State while contending that the Legislature has not abdicated its power nor any legislative power has been delegated to any of the authority, also contended that no private person has been empowered to take the administration of criminal justice in his hands.
15. To determine the issue as to whether Legislatures have abdicated their power in favour of execution by delegating such legislative power to private persons, and whether a private person has been delegated with the power of administering criminal justice system, it is necessary to notice the relevant provisions of law and the notifications, resolutions and provisions made thereunder.
16. With a view to consolidate the laws relating to generation, transmission, distribution, trading and use of electricity, and generally for taking measures conducive to development of electricity to all areas, rationalization of electricity tariff, ensuring transparent policies regarding subsidies, promotion of efficiency and environmental benign policies, constitution of Central Electricity Authority, Regulatory Commission and establish of Appellate Tribunal and for matters connected therein or incidental thereto, in supercession of earlier Acts, the Electricity Act, 2003 was enacted by the Parliament. This will be evident from the Preamble of the said Act.
17. Part-XII of the Act deals with `investigation and enforcement'. Sec. 126 deals with `assessment' in case a person indulges in unauthorised use of electricity, the same being relevant is quoted hereunder:
"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 unauthorized use of electricity, he shall provisionally assess to the best of his judgement 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 a notice has been served under subsection (2) shall be entitled to file objections, if any, against the provisional assessment before the assessing officer, who may, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment within thirty days 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 unauthorised 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 such 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, -
"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 ;
"unauthorised use of electricity" means the usage of electricity -
by any artificial means; or by a means not authorised by the concerned person or authority or licensee; or through a tampered meter; or iv.
for the purpose other than for which the usage of electricity was authorised.
v. for the premises or areas other than those for which the supply of electricity was authorised."
18. Any person aggrieved by the final order made u/Sec.126 is entitled to prefer appeal to the appellate authority within 30 days u/Sec.127 of the Act, which reads as follows:-
"127.
Appeal to Appellate Authority. - (1) Any person aggrieved by a final order made under section 126 may, within thirty days of the said order, prefer an appeal in such form, verified in such manner and be accompanied by such fee as may be specified by the State Commission, to an appellate authority as may be prescribed.(2)
No appeal against an order of assessment under sub-section (1) shall be entertained unless an amount equal to one third of the assessed amount is deposited in cash or by way of bank draft with the licensee and documentary evidence of such deposit has been enclosed along with the appeal.(3)
The appellate authority referred to in sub-section (1) shall dispose of the appeal after hearing the parties and pass appropriate order and send copy of the order to the assessing officer and the appellant.(4)
The order of the appellate authority referred to in sub-section (1) passed under sub-section (3) shall be final.(5)
No appeal shall lie to the appellate authority referred to in subsection (1) against the final order made with the consent of the parties.(6)
When a person default in making payment of assessed amount, he, in addition to the assessed amount shall be liable to pay, on the expiry of thirty days from the date of order of assessment, an amount of interest at the rate of sixteen per cent per annum compounded every six months."
19. Chapter XIV deals with `Offenses and Penalties'. Theft of electricity and consequential penal action are prescribed under Sec.135, which is under challenge is reproduced as follows:-
"135.
Theft of Electricity.- (1) Whoever, dishonestly, --
(a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee or supplier, as the case may be;
or (b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or
(c) damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of electricity; or
(d) uses electricity through a tampered meter; or
(e) uses electricity for the purpose other than for which the usage of electricity was authorised, so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or with both:
Provided that in a case where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use -
(i) does not exceed 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction the fine imposed shall not be less than six times the financial gain on account of such theft of electricity;
(ii) exceeds 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction, the sentence shall be imprisonment for a term not less than six months but which may extend to five years and with fine not less than six times the financial gain on account of such theft of electricity:
Provided further that in the event of second and subsequent conviction of a person where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use exceeds 10 kilowatt, such person shall also be debarred from getting any supply of electricity for a period which shall not be less than three months but may extend to two years and shall also be debarred from getting supply of electricity for that period from any other source or generating station:
Provided also that if it is provided that any artificial means or means not authorised by the Board or licensee or supplier, as the case may be, exist for the abstraction, consumption or use of electricity by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of electricity has been dishonestly caused by such consumer.
(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:
Provided further that such officer of the licensee or supplier, as the case may be, shall lodge a complaint in writing relating to the commission of such offence in police station having jurisdiction within twenty four hour from the time of such disconnect:
Provided also that the licensee or supplier, as the case may be, on deposit or payment of the assessed amount or electricity charges in accordance with the provisions of this Act, shall, without prejudice to the obligation to lodge the complaint as referred to in the second proviso to this clause, restore the supply line of electricity within forty-eight hours of such deposit or payment;(2)
Any officer of the licensee or supplier as the case may be, authorized in this behalf by the State Government may - -
(a) enter, inspect, break open and search any place or premises in which he has reason to believe that electricity has been or is being, used unauthorisedly;
(b) search, seize and remove all such devices, instruments, wires and any other facilitator or article which has been or is being, used for unauthorized use of electricity;
(c) examine or seize any books of account or documents which in his opinion shall be useful for or relevant to, any proceedings in respect of the offence under sub-section (1) and allow the person from whose custody such books of account or documents are seized to make copies thereof or take extracts therefrom in his presence.(3)
The occupant of the place of search or any person on his behalf shall remain present during the search and a list of all things seized in the course of such search shall be prepared and delivered to such occupant or person who shall sign the list:
Provided that no inspection, search and seizure of any domestic places or domestic premises shall be carried out between sunset and sunrise except in the presence of an adult male member occupying such premises.(4)
The provisions of the Code of Criminal Procedure, 1973, relating to search and seizure shall apply, as far as may be, to searches and seizure under this Act. "
20. Sec.136 while deal with `theft of electric lines and materials, Sec.137 stipulates `punishment for receiving stolen property'. The effect of interference with meters or works of licensee are prescribed u/Sec.138, penal action for negligently breaking or damaging works is prescribed under Sec.139. There are other penal provisions like penalty for intentional injuring works as prescribed u/Sec.140. Sec.141 deals with extinguishing public lamps and Sec.142 stipulates punishment for non-compliance of directions by Appropriate Commission.
21. Sec.143 prescribes `power to adjudicate', under which Appropriate Commission can appoint any of its Members to be an adjudicating officer for holding an inquiry for the purpose of imposing any penalty. The said provision is quoted hereunder:
"143.Power to adjudicate.- (1) For the purpose of adjudging under this Act, the Appropriate Commission shall appoint any of its Members to be an adjudicating officer for holding an inquiry in such manner as may be prescribed by the Appropriate Government ,after giving any person concerned a reasonable opportunity of being heard for the purpose of imposing any penalty.(2)
While holding an inquiry, the adjudicating officer shall have power to summon and enforce the attendance of any person acquainted with the facts and circumstances of the case to give evidence or produce any document which in the opinion of the adjudicating officer, may be useful for or relevant to the subject-matter of the inquiry, and if, on such inquiry, he is satisfied that the person has failed to comply with the provisions of section 29 or section 33 or section 43, he may impose such penalty as he thinks fit in accordance with the provisions of any of those sections."
22. The jurisdiction of the Civil Court has been barred in respect of any matter relating assessment made by the assessing officer u/Sec.126 or against the decision of the appellate authority made u/Sec.127. This will be evident from Sec.145 and quoted hereunder:
"145.
Civil court not to have jurisdiction- No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which an assessing officer referred to in section 126 or an appellate authority referred to in section 127 or the adjudicating officer appointed under this Act is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act."
23. Part XV relates to Special Courts. U/Sec.153, the State Government may, for the purposes of providing speedy trial of offences referred to in Secs.135 to 140 and Sec.150 of the Act may constitute Special Courts; as evident from said provisions and quoted hereunder:
"153.
Constitution of Special Courts.- (1) The State Government may, for the purposes of providing speedy trial of offences referred to in sections 135 to 140 and section 150, by notification in the Official Gazette, constitute as many Special Courts as may be necessary for such area or areas, as may be specified in the notification.(2)
A Special Court shall consist of a single Judge who shall be appointed by the State Government with the concurrence of the High Court.(3)
A person shall not be qualified for appointment as a Judge of a Special Court unless he was, immediately before such appointment, an Additional District and Sessions Judge.(4)
Where the office of the Judge of a Special Court is vacant, or such Judge is absent from the ordinary place of sitting of such Special Court, or he is incapacitated by illness or otherwise for the performance of his duties, any urgent business in the Special Court shall be disposed of-
(a) by a Judge, if any, exercising jurisdiction in the Special Court;
(b) where there is no such other Judge available, in accordance with the direction of District and Sessions Judge having jurisdiction over the ordinary place of sitting of Special Court, as notified under sub- section (1)."
Procedures and power of Special Court has been prescribed u/Sec.154.
24. While Sec.155 makes it clear that Special Court to have powers of Court of Sessions, u/Sec.156, appeal and revision lie before the High Court to prevent miscarriage of justice. Special Court has also been empowered to review its decision u/Sec.157.
25. In exercise of powers conferred by Sec.176 of the Act, the Central Government made `Electricity Rules, 2005'. Under Rule 10, while provision was made to appeal to the Appellate Tribunal in terms of sub-Sec. (2) of Sec.111 of the Act, the jurisdiction of the Court other than Special Court was exempted from bar u/sub-Sec.(1) of Sec.154, till the time such Special Court is constituted u/sub-Sec.(1) of Sec.153 of the Act. Police has been empowered to take cognizance of the offence punishable under the Act on a complaint in writing, if made to the police under Rule 12 and quoted hereunder:
"12.
Cognizance of the offence.-
(1) The police shall take cognizance of the offence punishable under the Act on a complaint in writing made to the police by the Appropriate Government or the Appropriate Commission or any of the their officer authorized by them in this regard or a Chief Electrical Inspector or an Electrical Inspector or an authorized officer of Licensee or a generating company, as the case may be.(2)
The police shall investigate the complaint in accordance with the general law applicable to the investigation of any complaint. For the purposes of investigation of the complaint the police shall have all the powers as available under the Code of Criminal Procedure, 1973.
(3)The police shall, after investigation, forward the report along with the complaint filed under sub-clause (1) to the court for trial under the Act.
(4)Notwithstanding anything contained in sub-clauses (1), (2) and (3) above, the complaint for taking cognizance of an offence punishable under the Act may also be filed by the Appropriate government of the Appropriate Commission or any of their officer authorized by them or a Chief Electrical Inspector or an Electrical Inspector or an authorized officer of Licensee or a generating company, as the case may be directly in the appropriate court.
(5)Notwithstanding anything contained in the Code of Criminal Procedure, 1973, every special court may take cognizance of an offence referred to in sections 135 to 139 of the Act without the accused being committed to it for trial.
(6)The cognizance of the offence under the Act shall not in any way prejudice the actions under the provisions of the Indian Penal Code."
26. Government of Gujarat from its Energy and Petrochemicals Department in exercise of powers conferred by clause (k) of sub-Sec. (2) of Sec.180 r.w. sub-Sec.(2) of Sec.126 of the Act framed the `Gujarat Electricity (Manner of Service of Provisional Assessment Order) Rules, 2004 and notified the same vide notification dated 5th June 2004. The manner in which provisional order has to be served has been shown under Rule 2 and quoted hereunder:
"2.
Manner of service of provisional order of assessment:- (1) The provisional assessment order made by the assessing officer under Section 126 of the Electricity Act, 2003 shall be served upon the person in any of the following manners:-
(a) By hand delivery and acknowledgment taken from the person receiving the provisional assessment order;
(b) By registered post with acknowledgment due; or
(c) By delivery through courier with acknowledgment due;(2)
If there is no person in the said premises to whom it can be served with reasonable diligence or if any such person refuses to accept or evades receiving the provisional assessment order in the above modes, it shall be affixed at the premises in the presence of two witnesses.
(3)The provisional assessment order may also be served by publication in the newspaper having circulation in the place where the premises or place of unauthorised use is situated, where it is not reasonably practicable to serve the provisional assessment order on the person in any of the manner mentioned in sub-rules (1) and (2).
(4)If the person to be served with the provisional assessment order is a consumer of the Distribution Licensee, the order shall be sent to the address of the consumer registered with the Distribution Licensee and in other cases at the place where the person ordinarily resides or works for gain."
27. On the same day, i.e. 5th June 2004, in exercise of powers conferred by clause (n) of sub-Sec.(2) of Sec.171 of the Act, Government of Gujarat from its Energy and Petrochemicals Department issued Notification laying down the `Gujarat Electricity (Manner of service of notice, order or document) Rules, 2004'. By another order dated 5th June 2004 issued from its Energy and Petrochemicals Department, in exercise of powers conferred by Sec.126 of the Act, Government of Gujarat designated certain officers, as mentioned in col.2 of Schedule of the said order as assessing officer to exercise powers within the specified area shown against their name. The said order dated 5th June 2004 is quoted hereunder:
"Order Energy and Petrochemicals Department Sachivalaya, Gandhinagar Dated the 5th June 2004 ELECTRICITY ACT, 2003.
No. GU-2004-(36) -ELA-1103-9539-K: In exercise of the powers conferred by section 126 of the Electricity Act, 2003 (36 of 2003), the Government of Gujarat hereby designate the officers mentioned in column-2 of the Schedule appended hereto to be the Assessing Officer to exercise the powers within the area specified against them in column 3 of the Schedule.
SCHEDULE A. Officers of the Gujarat Electricity Board and its distribution companies, -
(i) Uttar Gujarat Vij Company Limited, (ii) Dakshin Gujarat Vij Company Limited, (iii) Madhya Gujarat Vij Company Limited, and (iv) the Paschim Gujarat Vij Company Limited.
Sr.No. (1) Designation of the officer (2) Area (3)
1. (For all connections except High Tension) Deputy Engineer Operation and Maintenance Sub-division of Gujarat Electricity Board or the person holding equivalent post in Operation and Maintenance Sub-division of the relevant Distribution Company Within his jurisdiction
2. (For High Tension Connections) Executive Engineer, Operation and Maintenance Division of Gujarat Electricity Board or the person holding equivalent post in Operation and Maintenance Division of the relevant Distribution Company Within his jurisdiction.
3. An officer not below the rank of Executive Engineer, Operation and Maintenance Division of the Gujarat Electricity Board or the person holding equivalent post in Operation and Maintenance Division of the relevant Distribution Company as may be authorized by the Gujarat Electricity Board or, as the case may be, relevant Distribution Company in a particular case.
Within the jurisdiction of the licensing area of the Gujarat Electricity Board or, as the case may be, the respective Distribution Company.
B. Officers of the Ahmedabad Electricity Company Limited;
Sr.No. (1) Designation of the officer (2) Area (3)
1. Assistant General Managers, Managers and Assistant Managers of Zonal Offices, Revenue Protection and Recovery Cell and bulk Supply Department of the Company Within his jurisdiction in the licensing area of the Company C. Officers of the Surat Electricity Company Limited;
Sr.No. (1) Designation of the officer (2) Area (3) 1 Assistant General Manager (Mains) Within his jurisdiction in the licensing area of the company 2 Assistant General Manager (Vigilance and High Tension) Within his jurisdiction in the licensing area of the company 3 Assistant General Manager (Project) Within his jurisdiction in the licensing area of the company 4 Assistant General Manager (Project) Within his jurisdiction in the licensing area of the company 5 Assistant General Manager (Customer Services) Within his jurisdiction in the licensing area of the company 6 Assistant General Manager (Meter) Within his jurisdiction in the licensing area of the company 7 Assistant General Manager (Meter Testing) Within his jurisdiction in the licensing area of the company 8 Assistant General Manager (Vigilance) Within his jurisdiction in the licensing area of the company 9 Assistant General Manager (Mains) Within his jurisdiction in the licensing area of the company 10 Assistant General Manager (High Tension) Within his jurisdiction in the licensing area of the company 11 Assistant General Manager (Customer Services) Within his jurisdiction in the licensing area of the company 12 Assistant General Manager (Mains) Within his jurisdiction in the licensing area of the company 13 Assistant General Manager (Meter) Within his jurisdiction in the licensing area of the company 14 Assistant General Manager (Vigilance) Within his jurisdiction in the licensing area of the company 15 Assistant General Manager (High Value Customer) Within his jurisdiction in the licensing area of the company
28. The Parliament u/Sec.126 (Part-XII - Investigation and Enforcement') has not delegated any power to the State to make inspection of any place or premises to take inspection of equipments, gadgets, machines, devices, etc. On the other hand, such power has been delegated by the Parliament to the assessing officer, who on such inspection may come to the conclusion that such person is indulging in unauthorised use of electricity. The assessing officer has to make a provisional assessment u/sub-Sec.(2), and then, after service of notice upon the person, and hearing the objections, if any, filed and after affording a reasonable opportunity of hearing to such person, he is required to pass final order of assessment u/sub-Sec.(3) of Sec.126. The aggrieved person has a right to prefer appeal to the Appellate Authority u/Sec.127 against the final order, as may be passed u/Sec.126.
29. From the Explanation below Sec.126, it will be evident for the purpose of said Section that `assessing officer' means an officer of State Government or Board or licensee, as the case may be, designated as such by the State Government. The meaning of `unauthorised use of electricity' has also been defined in the said Explanation. Assessment of electricity charges in case a person indulges in unauthorised use of electricity is not a duty of the Legislatures. Therefore, in normal course, it cannot be stated that there is an `abdication' of power or `assessment' in conferring the power to the delegatee. The question is whether the power of assessment has been delegated by the Legislature in favour of the licensee, including any officer of the licensee, i.e., respondent-companies herein. This will be evident from the Explanation below Sec.126, quoted and discussed above, wherein `assessing officer' has been defined to be an officer of the State Government or Board or Licensee, who is to be designated by the State Government.
30. It is a settled law that the Legislature, as a part of its legislative function, can confer powers to make rules and regulations for carrying the enactment into operation and effect. While Legislature exercises such power, it also lays down the policy and principles providing the rule of conduct, and while it may further provide that on certain data or facts being found and ascertained by the Executive or authority, the operation of the Act can be brought into force.
31. In the present case, in exercise of powers conferred u/Sec.126 and in light of Explanation below Sec.126, the Government of Gujarat has designated the officers as assessing officers by order dated 5th June 2004. Such power of assessment being not the power of the Legislature, and as such power can be delegated under the Act, it has been delegated in favour of the assessing officer, but it cannot be alleged that the Legislature has abdicated its power. The question of abdication arises only if the Legislature or a particular authority who is delegated with such power, instead of exercising the same, has sub-delegated such power without any such authority. That question does not arise in the present case.
32. We have already noticed that the question of assessment of electricity charges payable by a person indulging in unauthorised use of electricity cannot be made by the Legislature (Parliament in the present case). It will have to utilise any outside agency to the extent it finds it necessary for doing things, which the Legislature is unable to do itself or finds it inconvenient to do. Legislature is supposed to do everything which is ancillary and necessary to the full exercise of its power of legislation. To that extent it cannot abdicate its legislative function. However, while entrusting such power to an outside agency, it has only to see that it acts as a subordinate authority and is guided by norms and rules. In the present case, the manner in which the provisional assessment is to be made has been prescribed in Gujarat Electricity (Manner of Service of Provisional Assessment Order) Rules, 2004 by notification dated 5th June 2004. For service of the final order prescription has also been made under the Gujarat Electricity (Manner of service of notice, order or document) Rules, 2004, and therefore, it cannot be stated that the authorities have been provided with unbridled power, as inspection is made u/Sec.126 in presence of the user of unauthorised electricity and in presence of other witnesses. Before the final assessment, a provisional assessment order is to be made, opportunity of objection and hearing is to be given to the person, and then only, the final order is passed, the legality and propriety of which can be challenged in an appeal u/Sec.127. Foolproof procedure having been laid down under the Act and the Rules framed thereunder, as referred to above, the delegation of such power cannot be held to be arbitrary.
33. So far as Sec.135 is concerned, learned counsel for the petitioners assail the same mainly on the ground that a private person cannot be allowed to take into administration of criminal justice in its hands.
In the case of Union Carbide (supra), Supreme Court observed the essence of doctrine of stifling prosecution, i.e. no private person should be allowed to take the administration of criminal justice out of the hands of the judges and place it in his own hands.
The judgment was based on a Calcutta High Court decision in Rameshwar Marwari v. Upendranath Das Sarkar reported in AIR 1926 CAL 455 and Supreme Court decision in V. Narasimha Raju v. V. Gurumurthy Raju reported in AIR 1963 SC 107 and Ouseph Poulo v. Catholic Union Bank Ltd. reported in AIR 1965 SC 166.
34. We have noticed that in the case of Ouseph Poulo (supra) Supreme Court observed that no Court of law can allow a private party to take administration of law in its own hands and settle the question as to whether a particular offence has been committed or not for itself.
35. Sec.135 deals with theft of electricity. Thereunder no power has been vested with any individual to take the administration of criminal justice into his own hands. Sub-Sec. (1) of Sec.135 is a penal provision, which prescribe punishment, as may be imposed, if theft of electricity is detected and proved. The licensee or supplier has been empowered to disconnect the supply of electricity u/Sec.1A. For detection of theft of electricity officers of the licensee or supplier has been empowered u/sub-Sec.(2) to enter, inspect, break open and search any place or premises in which he has reason to believe that electricity has been used or being used unauthorisedly and to search, seize and remove all such devices, instruments, etc., and to examine or seize any books of account or documents, etc. Under sub-Sec.(3) the occupant of the place of search is required to be present during the search and a list of all things so seized in the search be prepared and the occupant's signature is obtained on the list.
36. The officer of the licensee or supplier, whoever may be authorised, has not been empowered to take administration of criminal justice in his hands. For trial of such offence u/Sec.135, the State Government has been empowered to constitute Special Courts u/Sec.153 of the Act. The procedure which is to be adopted by the Special Court has also been prescribed u/Sec.154, which has also been empowered with the power of court of sessions u/Sec.155. Against this decision, appeal and revision is maintainable before High Court u/Sec.156. If the aforesaid provision is read with Rule 12 of the Electricity Rules, 2005, as noticed and quoted in the earlier paragraphs, it will be evident that police is to take cognizance of the offence. The power of investigation is also vested with the police; an officer of the licensee or supplier is merely an informant in the matter of theft of electricity.
In view of such specific provisions enacted under the law, the allegation as being made by the petitioners that a private party has been allowed to take administration of criminal justice in his hands cannot be accepted. We find no abdication of power by the Legislature in enacting Sec.126 of the Electricity Act, 2003, nor the allegation that u/Sec.135, a private person has been delegated power to administer criminal justice, can be sustained. Consequential notifications, rules issued there under, for the very same reason, cannot be held to be illegal. We uphold Sections 126 and 135 of the Electricity Act, 2003 and the Gujarat Electricity (Manner of Service of Provisional Assessment Order) Rules, 2004 and the Gujarat Electricity (Manner of service of notice, order or document) Rules, 2004 issued by different notifications all dated 5th June 2004. In absence of any merit, all the writ petitions are dismissed, but there shall be no order as to costs.
Notice is discharged.
(S.J. MUKHOPADHAYA, C.J.) (K.M. THAKER, J.) In view of the reasons recorded in the judgement, the oral prayer made by learned counsel for the petitioners for interim relief is rejected.
(S.J. MUKHOPADHAYA, C.J.) (K.M. THAKER, J.) [sn devu] pps Top