Karnataka High Court
Mahesh Shetty, Proprietor vs The Managing Director Bescom on 1 September, 2023
Author: B M Shyam Prasad
Bench: B M Shyam Prasad
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NC: 2023:KHC:31461
WP No. 9850 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE B M SHYAM PRASAD
WRIT PETITION NO. 9850 OF 2022 (GM-KEB)
BETWEEN:
MAHESH SHETTY, PROPRIETOR
M/S MULTIPLEX BIOTECH PVT LTD
NO.A420 AND A428
PEENYA INDUSTRIAL AREA
1ST STAGE
BANGALORE-560058
...PETITIONER
(BY SRI. SRINIVASA K., ADVOCATE)
AND:
1. THE MANAGING DIRECTOR
BESCOM, K R CIRCLE
Digitally
BANGALORE-560001.
signed by
NARASIMHA
MURTHY 2. THE ASST EXECUTIVE ENGINEER
VANAMALA
BESCOM
Location:
HIGH C O AND M SRS GATE
COURT OF
KARNATAKA PEENYA, BANGALORE-560058.
3. THE POLICE INSPECTOR
BESCOM
VIGILENCE
NO.297 M N R COMPLEX
BASEMENT
SAMPIGE ROAD
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NC: 2023:KHC:31461
WP No. 9850 of 2022
17TH CROSS
MALLESHWARAM
BANGALORE-560003.
...RESPONDENTS
(BY SRI.H.V. DEVARAJU., ADVOCATE FOR R1 TO R3)
THIS WP IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED DRAFT BACK BILLING ORDE DATED
23.03.2021, REGISTERED IN CRIME NO.50/2021
ISSUED BY THE OFFICE OF THE 3RD RESPONDENT
VIDE ANNEXURE-B; DIRECTING THE RESPONDENT
NO.1 TO CONSIDER AND PASS SUITALBLE ORDERS ON
THE REPRESENTATION/COMPLAINT OF THE
PETITIONER DATED 01.07.2021 VIDE ANNEXURE-D TO
THE WP.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioner, who is the owner of a commercial property, has impugned the Draft Back Billing Order dated 23.03.2021 [Annexure-B] issued by the third respondent, and the petitioner has sought for directions to the first respondent to consider its representation as against such Draft -3- NC: 2023:KHC:31461 WP No. 9850 of 2022 Back Billing Order. The petitioner contends that his property consists of two units, and he has availed two separate installations for both these units. In the year 2020 he has filed an application for surrendering installation in RR DP606/6053527000, which relates to one of the units, and by the order dated 19.12.2020 this surrender is accepted. Notwithstanding the fact that the petitioner has used the other connection for the limited purpose of mending the fence to protect the properties in which the closed unit is situated, the third respondent has served the petitioner with Draft Back Billing Order dated 23.03.2021 alleging theft of electricity asserting that the petitioner is running its industrial unit though such activity is stopped way back.
2. Sri K Srinivasa, the learned counsel for the petitioner, submits that though the third respondent could act under Section 135 of the Electricity Act, 2003 [for short, 'the Act'], he could not -4- NC: 2023:KHC:31461 WP No. 9850 of 2022 have assessed Back Billing Charges as such jurisdiction is only with the second respondent, the officer contemplated under Section 126 of the Act. In this regard, Sri K. Srinivasa proposes to rely upon the order of this Court in W.P.No.4423/2020, which is disposed of on 24.03.2021, and he contends that in very similar circumstances this Court has, after referring to the decisions1 of the Hon'ble Supreme Court, has opined that the provisional assessment and further orders will have to be by the second respondent.
3. As against these submissions, Sri H. V. Devaraju submits that the distinction should be made from the decision referred to by Sri K. Srinivasa in the light of the fact that the impugned Draft Back 1 (i) Executive Engineer, Southern Electricity Supply Company of Orissa Limited (Southco) and another v. Sri Seetharam Rice Mill reported in (2012) 2 SCC 108.
(ii) West Bengal State Electricity Distribution Company Limited and Others v. Orion Metal Private Limited and Another - 2019 SCC Online 1077.
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NC: 2023:KHC:31461 WP No. 9850 of 2022 Billing Order is because of the allegation that there is theft of electricity and is by the third respondent, who is authorized as contemplated under Section 135 of the Act to inspect installations and take action in the event of theft of electricity and for initiating penal proceedings as also to assess Back Billing in terms of Clause 42.06 of Conditions of Supply of Electricity of Distribution Licensees in the State of Karnataka notified on 17.06.2006 [for short, 'the Conditions of Supply'].
4. The provisions of Part XII of the Act, which include Section 126, provide for 'Investigation and Penalties', while the provisions of Part XIV of the Act, which include Section 135, provide for 'Offences and Penalties'. The allegations of unauthorized use of electricity are examined under part-III, and the allegations of 'theft of electricity' are examined under Part-XIV. It must be observed that in both the proceedings the concerned officer must initiate -6- NC: 2023:KHC:31461 WP No. 9850 of 2022 proceedings for assessment of the electricity charges, after the provisional assessment to be followed by due opportunity to the consumer, if such officer is of the opinion that there is 'unauthorized use' or 'theft of electricity'. The provisions of Section 126[6][b] of the Act list what constitutes 'unauthorized use', and these provisions read as under:
[b] "unauthorised use of electricity" means the usage of electricity -
(i) by any artificial means; or
(ii) by a means not authorised by the
concerned person or authority or
licensee; or
(iii) through a tampered meter; or
(iv) for the purpose other than for which the usage of electricity was authorised; or
(v) for the premises or areas other than those for which the supply of electricity was authorized."
5. In the event of 'theft of electricity', the authorized officer can enter the premises, disconnect electricity and lodge complaint with the concerned for initiating penal proceedings. The provisions of Section 135[1] of the Act mentions the circumstances -7- NC: 2023:KHC:31461 WP No. 9850 of 2022 when there will be thieving of electricity, and these provisions read as under:
"Section 135. (Theft of Electricity): --- 1[(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,
(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:"
Insofar as the assessment of the electricity charges when there is theft of electricity, the provisions of Clause 42.06 of the Conditions of Supply would be -8- NC: 2023:KHC:31461 WP No. 9850 of 2022 relevant, and the relevant part of these provisions read as under:
"42.06 THEFT OF ELECTRICITY2:
(a) (i) Where it is prima-facie established to the satisfaction of the officer authorized by the State Government in this behalf under Section 135 of the Electricity Act 2003 that the person / Consumer or his agent, servant etc.. has committed / is committing theft of Electricity as indicated in Section 135 of the Electricity Act 2003, Authorized officer shall estimate the value of the electricity thus abstracted, used or wasted or diverted, in accordance with the calculation as noted hereunder, for the entire period during which such unauthorized use of electricity has taken place and if, however, the period during which such unauthorized use of electricity has taken place cannot be ascertained, such period shall be limited to a period of 12 months immediately preceding the date of inspection at two times the Tariff applicable to such category of installation and demand and collect the same by including the same in the next bill or in a separate bill pending adjudication by the Special Court.
Before including the said amount in the bill, the Authorized officer shall issue a provisional assessment notice indicating the demand to the concerned person within 3 days from the date of inspection informing such person to file his objections, if any, within 7 days and due opportunity shall be given to such person of being heard.
2 Amended version vide Notification Dated: 1.7.2010 in No. K.E.R.C./COS/D/07/10 and published in Karnataka Gazette dated: 22.7.2010 -9- NC: 2023:KHC:31461 WP No. 9850 of 2022
(ii) This is without prejudice to the criminal proceedings that may be instituted under the provisions of the Electricity Act 2003 for theft of energy."
6. The provisions of Section 135(2), and the other provisions of the Section, will have to be read in consonance with the provisions of Clause 42.06 of the Conditions of Supply. The provisions of Clause 42.06 stipulate that where it is prima facie established to the satisfaction of the officer authorized for the purposes of Section 135 of the Act that a consumer or any other person has committed acts of theft, the officer shall issue a provisional assessment indicating the demand with opportunity to the consumer/person to fie objections, if any. The authorized officer, who should necessarily be the officer contemplated under Section 135(2) of the Act, must also extend an opportunity of hearing. If there is provisional assessment as aforesaid, the adjudication and consequences thereof will be subject to the other provisions.
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NC: 2023:KHC:31461 WP No. 9850 of 2022
7. The Hon'ble Apex Court in 'West Bengal State Electricity Distribution Company Limited and Others v. Orion Metal Private Limited and Another'3 has, while considering the provisions of Sections 126 and 135 of the Act, has held as follows:
In a given case where there is theft of energy not amounting to unauthorized use of energy, in such cases no complaint of theft can be lodged as contemplated under Section 135 of the Act. In cases of loss of energy on account of unauthorized 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 unauthorized 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.
8. In the present case, the question is of jurisdiction to assess the value of abstracted electricity [loss of electricity] because of an alleged 3 [2020] 18 SCC 588
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NC: 2023:KHC:31461 WP No. 9850 of 2022 theft. The petitioner does not contend that the abstraction of electricity must be read as 'authorized use' of electricity and not theft of electricity and canvasses the question of jurisdiction to issue Draft Back Billing. This question must necessarily be examined as aforesaid in the light of the provisions of Section 135 of the Act and Clause 42.06 of the Conditions of Supply which govern the field. The decision of this Court in W.P. No.4423/2020 is where there must be provisional assessment under Clause 42.01, 42.02 and 42.054 of the Conditions of Supply unlike in the present case. When it is undisputed that the third respondent is the authorized Officer for the purposes of these two provisions, the petitioner cannot justifiably rely upon the decision of this Court in the writ petition in W.P. No.4423/2020 where the question whether the proceedings would come under 4 The assessment under these clauses is when there are allegations of 'misuse' or 'unauthorized use'
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NC: 2023:KHC:31461 WP No. 9850 of 2022 the provisions of Section 126 or 136 of the Act is examined.
9. Therefore, this Court cannot interfere with the impugned Draft Back Billing Order dated 23.03.2021 at this stage on the ground of lack of jurisdiction, and the petition must be disposed of with liberty to the petitioner to file his representation calling upon the third respondent to examine the same in the light of the provisions of Clause 42.06 of the Conditions of Supply. As such the following:
ORDER [a] The petition is disposed of reserving liberty to the petitioner to file, within two [2] weeks from the date of receipt of a certified copy of this order, the objections to the proposed assessment in the impugned Draft Back Billing order dated 23.03.2021.
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NC: 2023:KHC:31461 WP No. 9850 of 2022 [b] If such objections are filed, the third respondent shall consider the same after extending an opportunity of hearing as contemplated under Clause 42.06 of the Conditions of Supply within a period of three weeks from the date of such objections.
SD/-
JUDGE SA ct:sr