Gujarat High Court
Mansukhbhai Mohanbhai Shiroya vs Paschim Gujarat Vij Company Limited on 1 August, 2023
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/18787/2022 ORDER DATED: 01/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18787 of 2022
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MANSUKHBHAI MOHANBHAI SHIROYA
Versus
PASCHIM GUJARAT VIJ COMPANY LIMITED
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Appearance:
MR. DHRUVIK K PATEL(7769) for the Petitioner(s) No. 1
MR CHINMAY M GANDHI(3979) for the Respondent(s) No. 1,2
MS NIKITA C GANDHI(11570) for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 01/08/2023
ORAL ORDER
1. By way of the present petition, the petitioner herein has prayed for the following reliefs:
"A. Your Lordships may be pleased to issue a writ of mandamus and / or any other appropriate writ, order or direction in the nature of mandamus directing by quashing and setting aside the notice dated 08.07.2022 (Annexure A) issued by the respondent no.2 as same being arbitrary and illegal;
B. Pending hearing, admission and final hearing of the matter, Your Lordships be pleased to stay execution and implementation of notice dated 08.07.2022 (Annexure A) issued by the respondent no.2.
C. Be pleased to pass such other and further order (s) as may be deemed fit and proper in the interest of justice."Page 1 of 14 Downloaded on : Sat Sep 16 23:50:22 IST 2023
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2. The petitioner herein has approached this Court, wherein, Notice came to be issued to the petitioner herein dated 08.07.2022 by the respondent herein directing the petitioner to pay an amount of Rs.7,81,400/- within a period of 7 days, failing which the petitioner would be debarred as the consumer of the respondent Company.
3.1. Briefly stated that, the petitioner herein is the consumer of Paschim Gujarat Vij Company having consumer No. 81901014797 and the tariff rate applicable is LTMD and the sanctioned load is 45 KW. The connection is given to the petitioner at the business address at near Active Machine Tools, Opp. Old Captain Polyplas at Shapar (hereinafter referred to as 'the property in question' for short).
3.2. The property in question was given on rent to one Nilkhant Metal from 01.06.2020. The said tenant vacated the premises on 21.04.2022. The petitioner herein was approached by new tenant for the property in question, however, his requirement of electricity load was higher than the existing Page 2 of 14 Downloaded on : Sat Sep 16 23:50:22 IST 2023 NEUTRAL CITATION C/SCA/18787/2022 ORDER DATED: 01/08/2023 undefined electricity load at the property in question. In view thereof, the petitioner applied on 27.05.2022 to the respondent no.2 for enhancement of electricity load at the property in question. The said application is duly produced at Annexure-B. 3.3. The respondent company visited the property in question for the load enhancement on 27.06.2022 and it was noticed that the seal of the meter was broken. In view thereof, on 27.06.2022, the meter was removed from the premises and seized by the checking officer of the respondent company for the purpose of further investigation / checking for lab testing. 3.4. On 08.07.2022, the petitioner was called upon to witness the laboratory testing of the defective meter, on that day, the meter was analyzed / checked, the lab report is duly produced at Annexure-D. That F.I.R. came to be registered against the petitioner on 09.07.2022.
3.5. The petitioner herein was supplied with the supplementary bill of Rs.5,40,112/- towards theft of electrical energy and was also issued the bill of compounding charges Page 3 of 14 Downloaded on : Sat Sep 16 23:50:22 IST 2023 NEUTRAL CITATION C/SCA/18787/2022 ORDER DATED: 01/08/2023 undefined amounting to Rs.2,41,288/-, totaling to Rs.7,81,400/-, thereby directed the petitioner to pay the said amount to the respondent company.
3.6. The petitioner apprehended that if the supplementary bill as raised by the respondent company would not be paid by the petitioner, the electric connection would be discontinued / disconnected. In view thereof, the petitioner gave undertaking on 11.07.2022, whereby, the petitioner undertook to pay Rs.2,70,112/- on 12.07.2022, whereas, Rs.2,70,112/- on 12.08.2022 and Rs.2,41,228/- on 12.09.2022 came to be deposited by the petitioner herein by account payee cheque. The said Undertaking is duly produced at Annexure-F. 3.7. The petitioner by communication dated 10.08.2022 requested the respondent no.2 herein to quash the bill issued by the respondent no.2, however, the said request was not considered by the respondent authority.
3.8. The petitioner herein, in view of the aforesaid, has approached this Court with the reliefs as stated herein-above. Page 4 of 14 Downloaded on : Sat Sep 16 23:50:22 IST 2023
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4. Heard Mr. Dhruvik K. Patel, learned advocate appearing for the petitioner and Mr. Chinmay M. Gandhi, learned advocate appearing for the respondents.
5.1. Mr. Dhruvik K. Patel, learned advocate appearing for the petitioner vehemently submitted that issuance of the supplementary bill dated 08.07.2022 is required to be quashed and set aside, considering the fact that the said bill is issued without granting opportunity of hearing to the petitioner. 5.2. Mr. Patel, learned advocate has placed reliance on the ratio as laid down by the Hon'ble Division Bench in the case of Jayshree Talkies v/s. Paschim Gujarat Vij Co. Ltd. reported in 2018 (3) GCD 2193. Mr. Patel, learned advocate placing reliance on the same submitted that considering the ratio as laid down by the Hon'ble Division Bench and considering the Regulation-7.6.5 issued by the Gujarat Electricity Regulatory Commission, it was incumbent for the respondent no.2 to grant an opportunity of hearing before issuing the supplementary bill. 5.3. Placing reliance on the aforesaid submissions, it was Page 5 of 14 Downloaded on : Sat Sep 16 23:50:22 IST 2023 NEUTRAL CITATION C/SCA/18787/2022 ORDER DATED: 01/08/2023 undefined submitted that the said bill issued by the respondent authority to the tune of Rs.7,81,400/- be quashed and set aside and the petitioner be granted an opportunity of hearing. 6.1. Per Contra, Mr. Chinmay M. Gandhi, learned advocate appearing for the respondent vehemently opposed the aforesaid contentions raised by the petitioner. Mr. Gandhi, learned advocate submitted that the present petition is not maintainable and the same is required to be dismissed, in view of the fact that, there is an alternative statutory remedy available to the petitioner to challenge the said Notice by preferring an Appeal under Section 154 of the Electricity Act. 6.2. Placing reliance on the same, it was submitted that no interference is called for, in the reliefs as prayed for by the petitioner herein. Mr. Gandhi, learned advocate submitted that the respondent has already filed the FIR No. 4948 of 2022 dated 09.07.2022 before the GUVNL Police Station, Rajkot for the offence under Section 135 of the Indian Electricity Act, 2003, wherein, the respondent has filed a Purshis dated 01.11.2022 to the effect that the petitioner herein has paid all the amount Page 6 of 14 Downloaded on : Sat Sep 16 23:50:22 IST 2023 NEUTRAL CITATION C/SCA/18787/2022 ORDER DATED: 01/08/2023 undefined without raising any grievance and the matter is settled between the parties. The reliance was placed on the said Purshis dated 01.11.2022. Placing reliance on the same, Mr. Gandhi, learned advocate submitted that the present petition having compromised with the respondent authority, has thereafter invoked the present writ jurisdiction.
6.3. Mr. Gandhi, learned advocate also relied on Supply Code, 2015 and submitted that the case of the present petitioner would fall under Section 7 of the Supply Code, 2015 i.e. Theft of Electricity, wherein, the said clauses do not provide for opportunity of hearing before issuance of supplementary bill. 6.4. In view thereof, also this Court may not intervene and relegate the petitioner herein to avail the statutory remedy as available under the Act.
7. Having considered the submissions advanced by the learned advocates appearing for the respective parties, facts being undisputed are not required to be reiterated. The petitioner came to be issued a bill on 08.07.2022 under the provision of Section Page 7 of 14 Downloaded on : Sat Sep 16 23:50:22 IST 2023 NEUTRAL CITATION C/SCA/18787/2022 ORDER DATED: 01/08/2023 undefined 135 of the Electricity Act, 2003. The said bill issued under Section 135 of the Act, 2003 is challenged by the petitioner herein by invoking Article 226 of the Constitution of India and has prayed for a writ to quash and set aside the said bill.
8. At this stage, tt is apposite to refer to Section 135 and Section 154 of the Electricity Act, 2003 and Section 7 of Supply Code, 2015 which read thus:
8.1. 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:
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 Page 8 of 14 Downloaded on : Sat Sep 16 23:50:22 IST 2023 NEUTRAL CITATION C/SCA/18787/2022 ORDER DATED: 01/08/2023 undefined 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 proved that any artificial means or means not authorized 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 authorized 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 hours from the time of such disconnection:
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 Page 9 of 14 Downloaded on : Sat Sep 16 23:50:22 IST 2023 NEUTRAL CITATION C/SCA/18787/2022 ORDER DATED: 01/08/2023 undefined supply line of electricity within forty-eight hours of such deposit or payment.] (2) 1[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 2[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."
8.2. Section 154. (Procedure and power of Special Court): --
"(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, every offence punishable under [2sections 135 to 140 and section 150] shall be triable only by the Special Court within whose jurisdiction such offence has been committed.
(2) Where it appears to any court in the course of any inquiry or trial that an offence punishable under sections 135 to 139 in respect of any offence that the case is one which is triable by a Special Court constituted under this Act for the area in which such case has arisen, it shall transfer such case to such Special Court, and thereupon such case shall be tried and Page 10 of 14 Downloaded on : Sat Sep 16 23:50:22 IST 2023 NEUTRAL CITATION C/SCA/18787/2022 ORDER DATED: 01/08/2023 undefined disposed of by such Special Court in accordance with the provisions of this Act :
Provided that it shall be lawful for such Special Court to act on the evidence, if any, recorded by any court in the case of presence of the accused before the transfer of the case to any Special Court :
Provided further that if such Special Court is of opinion that further examination, cross-examination and re-examination of any of the witnesses whose evidence has already been recorded, is required in the interest of justice, it may re- summon any such witness and after such further examination, crossexamination or re-examination, if any, as it may permit, the witness shall be discharged.
(3) The Special Court may, notwithstanding anything contained in subsection (1) of section 260 or section 262 of the Code of Criminal Procedure, 1973, try the offence referred to in sections 135 to 139 in a summary way in accordance with the procedure prescribed in the said Code and the provisions of sections 263 to 265 of the said Code shall, so far as may be, apply to such trial :
Provided that where in the course of a summary trial under this subsection, it appears to the Special Court that the nature of the case is such that it is undesirable to try such case in summary way, the Special Court shall recall any witness who may have been examined and proceed to re-hear the case in the manner provided by the provisions of the said Code for the trial of such offence:
Provided further that in the case of any conviction in a summary trial under this section, it shall be lawful for a Special Court to pass a sentence of imprisonment for a term not exceeding five years.
(4) A Special Court may, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in 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 principal or abettor in the commission thereof, and any pardon so tendered shall, for the purposes of section 308 of the Code of Criminal Procedure,1973, be deemed to have been tendered under section 307 thereof.
(5) The 1[Special Court shall] determine the civil liability against a consumer or a person in terms of money for theft of energy which shall not be less than an amount equivalent to Page 11 of 14 Downloaded on : Sat Sep 16 23:50:22 IST 2023 NEUTRAL CITATION C/SCA/18787/2022 ORDER DATED: 01/08/2023 undefined two times of the tariff rate applicable for a period of twelve months preceding the date of detection of theft of energy or the exact period of theft if determined whichever is less and the amount of civil liability so determined shall be recovered as if it were a decree of civil court.
(6) In case the civil liability so determined finally by the Special Court is less than the amount deposited by the consumer or the person, the excess amount so deposited by the consumer or the person, to the Board or licensee or the concerned person, as the case may be, shall be refunded by the Board or licensee or the concerned person, as the case may be, within a fortnight from the date of communication of the order of the Special Court together with interest at the prevailing Reserve Bank of India prime lending rate for the period from the date of such deposit till the date of payment."
8.3. Section 7.7 of Supply Code, 2015:
"7. Theft of Electricity.
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;
(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."
8.4. At this stage, it is apposite to refer to the decision in Page 12 of 14 Downloaded on : Sat Sep 16 23:50:22 IST 2023 NEUTRAL CITATION C/SCA/18787/2022 ORDER DATED: 01/08/2023 undefined the case of Varimadugu Obi Reddy v/s. B. Sreenivasulu reported in (2023) 2 SCC 168, relevant para-36 reads thus:
"36. In the instant case, although the respondent borrowers initially approached the Debts Recovery Tribunal by filing an application under Section 17 of the SARFAESI Act, 2002, but the order of the Tribunal indeed was appealable under Section 18 of the Act subject to the compliance of condition of pre-deposit and without exhausting the statutory remedy of appeal, the respondent borrowers approached the High Court by filing the writ application under Article 226 of the Constitution. We deprecate such practice of entertaining the writ application by the High Court in exercise of jurisdiction under Article 226 of the Constitution without exhausting the alternative statutory remedy available under the law. This circuitous route appears to have been adopted to avoid the condition of pre-deposit contemplated under 2 nd proviso to Section 18 of the Act 2002.
9. In the opinion of this Court, for offences punishable under Section 135, remedy lies by filing an Appeal under Section 154 of the Act before the Special Court.
10. In the facts of the present case and the ratio as referred above, the petitioner came to be issued supplementary bill to the tune of Rs. 5,40,112/- towards theft of electricity energy and was also issued the bill of compounding charges amounting to Rs.2,41,288/-, totaling to Rs.7,81,400/-. Undisputedly, the petitioner herein compounded the offence and Page 13 of 14 Downloaded on : Sat Sep 16 23:50:22 IST 2023 NEUTRAL CITATION C/SCA/18787/2022 ORDER DATED: 01/08/2023 undefined also entered into a settlement with the respondent company, this Court has perused the said settlement, thereafter, the petitioner herein has challenged the said supplementary bill.
11. For the aforesaid reason also, no interference is called for to exercise extraordinary jurisdiction under Article 226 of the Constitution of India. Considering the aforesaid provisions of the Act and Supply Code, this Court is not inclined to consider the present petition and this Court is inclined to relegate the present petitioner to avail the statutory remedy, if so desired, by filing appropriate application before the Special Court under Section 154 of the Act. The Section 7.7 of the Supply Code, 2015 also does not stipulate granting of hearing, when the case is that of theft of electricity.
12. For the foregoing reasons, the present petition fails and is dismissed accordingly. Notice is discharged.
(VAIBHAVI D. NANAVATI,J) Pradhyuman Page 14 of 14 Downloaded on : Sat Sep 16 23:50:22 IST 2023