Gujarat High Court
Paschim vs Mayur on 28 September, 2011
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
Gujarat High Court Case Information System
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SCA/10516/2011 13/ 13 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 10516 of 2011
For
Approval and Signature:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ? No
2
To be
referred to the Reporter or not ? No
3
Whether
their Lordships wish to see the fair copy of the judgment ? No
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 ? No
5
Whether
it is to be circulated to the civil judge ? No
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PASCHIM
GUJARAT VIJ CO.LTD - Petitioner(s)
Versus
MAYUR
JETHALAL DADHANIA - Respondent(s)
=========================================================
Appearance
:
MR
MD RANA for
Petitioner
MR RC KAKKAD for
Respondent
=========================================================
CORAM
:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
: 28/09/2011
ORAL
JUDGMENT
Rule. Mr.R.C.Kakkad, learned advocate, waives service of notice of Rule on behalf of the respondent. On the facts, and in the circumstances of the case, and with the consent of the learned advocates for the respective parties, the petition is being heard and decided finally.
The challenge in this petition, preferred under Article 226 of the Constitution of India, is to the order dated 14.05.2010, passed by the District Consumer Grievances Redressal Forum, Jamnagar ("the Forum" for short), in Complaint No.276 of 2008, whereby, the Supplementary Bill issued by the petitioner - Paschim Gujarat Vij Company Limited, has been quashed and the petitioner has been directed to refund the amount, if any, paid by the respondent-Consumer pursuant to the said Supplementary Bill, along with interest at the rate of 6% from the date on which the amount was deposited. The petitioner is further aggrieved by the direction of the Forum directing it to pay an amount of Rs.2,000/ - towards mental agony caused to the respondent-Consumer, in addition to the amount of Rs.1,500/- as costs of litigation.
Briefly stated, the facts of the case are as follows:
The petitioner is an Electricity Company registered under the Companies Act and is an autonomous statutory body recognized under the Electricity Act, 2003. The respondent is a consumer of electricity. On 12.06.2008, a raid was carried out on the premises of the respondent by the Electricity Company. The old meter was seized and substituted by a new meter. The seized meter was sent for Laboratory check, as the Report of the Inspection contained an observation that the said meter had been tampered with. The Laboratory Report indicated that the meter seized from the premises of the respondent was tampered with. Accordingly, a Supplementary Bill for payment of Rs.1,23,613=25 ps. was issued to the respondent on 15.07.2008, under the provisions of Section 126 of the Electricity Act, 2003. It is the case of the petitioner that instead of availing of the alternative statutory remedy, the respondent approached the District Consumer Grievances Redressal Forum, Jamnagar, by filing a complaint for deficiency in service, which has been partly-allowed by the impugned order. Hence, the petition.
Mr.M.D.Rana, learned advocate for the petitioner - Electricity Company has submitted that the Forum had no jurisdiction to entertain the complaint filed by the respondent-Consumer in the first place, as the Supplementary Bill that was challenged by the respondent had been issued pursuant to the Laboratory Report, which confirmed that the electricity meter was tampered with. As such, it is a clear case of theft of electrical energy. It is further submitted that the respondent ought to have availed of the alternative remedy provided in the Electricity Act, 2003, rather than approaching the Forum. The Consumer Forum has erred in entertaining the complaint filed by the respondent and passing an order in his favour, though no jurisdiction is vested in it to entertain a complaint regarding theft of electricity. The learned advocate for the petitioner has contended that not only has the Forum passed an order without jurisdiction, but has proceeded to award compensation of Rs.2,000/- and costs of Rs.1,500/- to the respondent-Consumer, when it could not have entertained the complaint itself. Reliance has been placed by the learned advocate for the petitioner on a judgment of the Division Bench of this Court in Manoramaben Kansara Wd/o. Balkrishna Kansara v. Madhya Gujarat Vij Company Limited and Ors. reported in 2011(2) GLH 563 and a judgment of this Court dated 08.08.2011, in Paschim Gujarat Vij Company Ltd. v. Rohit Hemchandra Shah - Special Civil Application No.103 of 2011.
Mr.R.C.Kakkad, learned advocate for the respondent-Consumer, has submitted that in view of the judgment of the Division Bench in Manoramaben Kansara Wd/o. Balkrishna Kansara v. Madhya Gujarat Vij Company Limited and Ors. (supra) and the judgment dated 08.08.2011 of this Court in Paschim Gujarat Vij Company Ltd. v. Rohit Hemchandra Shah (supra), appropriate orders may be passed.
I have heard the learned advocates for the respective parties, perused the averments made in the petition and other documents on record.
There is no dispute regarding the fact that a surprise check was carried out in the premises of the respondent on 12.06.2008, during which, the electricity meter on the premises of the respondent-Consumer was seized and was replaced with a new meter. On a Laboratory Test being conducted on the seized meter, it was found to have been tampered with.
The petitioner-Electricity Company has issued a Supplementary Bill of Rs.1,23,613=25 ps. under the provisions of section 126 of the Electricity Act, 2003. It may be relevant to revert to the said provision of law, which is reproduced hereinbelow:
"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 unauthorised use of electricity, he shall provisionally assess to the best of his judgment 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 an order has been served under sub-section (2), shall be entitled to file objections, if any, against the provisional assessment before the assessing officer, who shall, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment within thirty days form 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 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 (3).
Explanation.- For the purposes of this section-
(a) "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;
(b) "unauthorized 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."
The said provision of law stipulates that if on an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found connected or used, or of records maintained by any person, the assessing officer comes to the conclusion that such person is indulging in unauthorized use of electricity, a provisional assessment can be made of the electricity charges payable by such person or other person benefited by such use. As per sub-section (2) of Section 126, order making a provisional assessment can be served upon the person concerned who is in occupation of the premises which was inspected. As per sub-section (3) of Section 126, the person upon whom an order of provisional assessment has been served, is entitled to file objections against the provisional assessment which shall be decided after affording reasonable opportunity of hearing to him within a period of thirty days from the date of service of order of provisional assessment of the electricity charges payable by such person. If the person upon whom the order of provisional assessment has been served accepts the assessment, he is to deposit the assessed amount with the Licencee within a period of seven days from the date of service of the provisional assessment order, as per sub-section (4) of Section
126. Thereafter, the Assessing Officer is empowered to make the final assessment, as per the procedure prescribed under sub-sections (5) and (6) of Section 126.
A person who is aggrieved by the final order made under Section 126 has a statutory remedy of appeal to the Appellate Authority, as envisaged by Section 127 of the Electricity Act, 2003, which is reproduced hereinbelow:
"127. Appeal to appellate authority,-
(1) Any person aggrieved by the final order made under section 126 may, within thirty day 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 half 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 sub-section (1) against the final order made with the consent of the parties.
(6) When a person defaults 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."
It is clear from the above provisions of law that the respondent-Consumer has an alternative statutory remedy, which he did not avail of but, instead, approached the Consumer Forum by filing the complaint.
Section 135 of the Electricity Act, 2003, pertains to theft of electricity and reads as below:
"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 or 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 time 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 than in the event of second and subsequent conviction of a person where the load abstracted, consumed, or use 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 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 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 authorized 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, authorised 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 unauthorised 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 sing 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 (2 of 1974), relating to search and seizure shall apply, as far as may be, to searches and seizure under this Act."
After taking into consideration several judgments of the High Courts and the Supreme Court, the Division Bench of this Court, in Manoramaben Kansara Wd/o. Balkrishna Kansara v. Madhya Gujarat Vij Company Limited and Ors. (supra), has held as below:
"41. In view of the aforesaid discussion, we summarize our findings as follows :-
(a) The finding of the learned Single Judge that there is a third forum of appeal under Section 42 of the Electricity Act, 2003 in this type of cases under Section 126 or Section 135, is incorrect and does not lay down a correct law.
(b) The jurisdiction of the Consumer Court in the matter of deficiency in service on the part of the Electricity Company is not ousted in view of the provisions of the Electricity Act, 2003. The finding of the learned Single Judge to that extent in general that the consumer forum has no jurisdiction to entertain complaints in respect of the matter pertaining to supply of electricity against the Electricity Company is incorrect and does not lay down a correct law.
(c) In a case where the bill is raised alleging indulgence in unauthorizes use of electricity by a person under Section 126 of the Electricity Act, 2003 or the measures or the penal action taken for the offence under Section 135 of the Electricity Act, 2003, in absence of any provision made under the Consumer Protection Act, 1986 to entertain any complaint or any such action, the petitions preferred by the consumer are not maintainable before the Consumer Disputes Redressal Forum.
42. For the reasons aforesaid, we hold that the Consumer Dispute Redressal Commission have erred in coming to the conclusion that the Consumer Disputes Redressal Commission has jurisdiction to try cases against assessment made under Section 126 or theft of energy under Section 135 and the learned Single Judge rightly interfered with those orders and set aside the orders. For the reason aforesaid, no interference is called for against the impugned common judgment rendered by the learned Single Judge. In absence of any merit, the appeals and the Civil Applications are dismissed, but there shall be no order as to costs."
(emphasis supplied) This Court, in Paschim Gujarat Vij Company Ltd. v. Rohit Hemchandra Shah (supra), relying upon the judgment of the Division Bench in Manoramaben Kansara Wd/o. Balkrishna Kansara v. Madhya Gujarat Vij Company Limited and Ors. (supra), has also taken a similar view.
The principles of law laid down in the above-quoted judgment would be directly applicable to the facts of the present case. As it is not disputed that the provisional bill has been issued to the respondent under Section 126 of the Electricity Act, 2003, after inspection of the premises of the respondent, the District Consumer Grievances Redressal Forum, Jamnagar, has no jurisdiction to try cases against an assessment made under Section 126 of the Electricity Act, 2003, as held by the Division Bench. In this view of the matter, the impugned order passed by the Forum is without jurisdiction and deserves to be quashed and set aside.
However, it is open to the respondent-Consumer to approach the appropriate forum, as permissible by law.
For the aforestated reasons, the petition is allowed. The impugned order dated 14.05.2010, passed by the District Consumer Grievances Redressal Forum, Jamnagar, in Complaint No.276 of 2008, is quashed and set aside. Rule is made absolute. There shall be no orders as to costs.
(Smt. Abhilasha Kumari, J.) (sunil) .
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