Delhi High Court
Super Auto Centre vs Bses Rajdhani Power Ltd. on 14 September, 2011
Author: Sanjiv Khanna
Bench: Chief Justice, Sanjiv Khanna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 14th September, 2011
+ RFA (OS) No. 66/2011
SUPER AUTO CENTRE .....APPELLANT
Through: Ms. Radhika Chandrashekhar, Adv.
versus
BSES RAJDHANI POWER LTD .....RESPONDENT
Through: Mr.Deepak Pathak and Mr.Krishnanu Adhikari, Advs. for Mr. Sunil Fernandes, Standing Counsel for BSES, RPL.
CORAM:
HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SANJIV KHANNA
1. Whether reporters of the local papers be allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes CHIEF JUSTICE The present appeal preferred under Section 96 of the Code of Civil Procedure is directed against the judgment and decree dated 2nd February, 2011 in CS(OS) No. 298/2004.
2. The plaintiff/appellant (hereinafter referred to as "the appellant") initiated a civil action seeking for declaration and permanent injunction. The averments basically in the plaint are that the appellant is a registered consumer of the defendant, namely, BSES, Rajdhani Power Ltd. (hereinafter RFA (OS) No. 66/2011 page 1 of 14 referred to as the "Defendant-respondent") in respect of electricity supplied through K. No. 009/0888987 installed at its petrol pump at Ring Road, Sriniwas Puri, New Delhi. On 11th April, 2003, some officials of the respondent company came to the premises of the appellant and took notes about the machines and equipments installed there. As pleaded, on the basis of the inspection, certain irregularities were noticed and a proceeding for fraudulent abstraction of energy was initiated. Accordingly, a bill was issued on 17th June, 2003. The appellant challenged the same in the writ petition forming the subject matter of WP(C) No. 4147/2003. The writ court by an order dated 27th August, 2003 directed that the defendant-respondent shall afford an opportunity of personal hearing to the plaintiff/appellant and pass a speaking order. Thereafter, a speaking order came to be passed on 10th September, 2003 whereby the objections raised by the appellant were rejected.
3. After the rejection of the same, the plaintiff/appellant filed the present suit assailing the speaking order and sought a declaration that the aforesaid order is null and void. Apart from the prayer for declaration, an injunction was sought as a consequential relief. It was stated that a re-inspection was carried out on 30th December, 2003 and at that time the connected load was found to be 48.59 KW which was within the sanctioned load.
RFA (OS) No. 66/2011 page 2 of 14
4. The defendant-respondent entered contest and took a preliminary objection that the suit was not maintainable in view of the provision contained in Section 145 of the Electricity Act, 2003 (for short „2003 Act‟).
That apart, objection was taken with regard to the pecuniary jurisdiction and other defences were also put forth as regards the merits of the case.
5. The learned Single Judge framed as many as seven issues. Issue No.1 reads as follows:
"1. Whether the suit filed by the plaintiff for declaration and permanent injunction is maintainable in view of Section 145 of Electricity Act, 2003?"
6. The learned Single Judge adverted to issue no.1 and came to hold that the suit was not maintainable and, therefore, there was no necessity to give any finding on the other issues. Being of this view, he dismissed the suit as not maintainable and gave liberty to the plaintiff to file an appropriate application under Order VII Rule 10A(2) of the CPC.
7. We have heard Ms.Radhika Chandrashekhar, learned counsel for the appellant and Mr. Deepak Pathak, learned counsel for the respondent.
8. The core issue that emanates for adjudication in this appeal is whether the finding recorded by the learned Single Judge with regard to the maintainability of the suit is tenable. In this context, we may profitably refer to Section 145 of the 2003 Act reads as under:-
RFA (OS) No. 66/2011 page 3 of 14 "Section 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."
9. On a scanning of the aforesaid provision, it is vivid that a civil court‟s jurisdiction has been ousted to entertain any suit or proceeding in respect of any matter which an assessing officer referred to in Sec. 126 or an appellate authority referred to in Sec. 127 or the adjudicating officer appointed under this Act is empowered to determine.
10. Section 126 of the 2003 Act reads as under:-
―Section 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 come 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 on 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, RFA (OS) No. 66/2011 page 4 of 14 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 day 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 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,-
(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) ―unauthorised use of electricity‖ means the usage of electricity--
(i) by any artificial means; or
(ii) by a means not authorized by the concerned person or authority or licensee; or RFA (OS) No. 66/2011 page 5 of 14
(iii) through a tampered meter; or
(iv) for the purpose other than for which the usage of electricity was authorsied; or
(v) for the premises or areas other than those for which the supply of electricity was authorized."
11. Section 127 of the 2003 Act which provides for an appeal to the Appellate Authority is as follows:-
―127. Appeal to appellate authority.-- (1) Any person aggrieved by the 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 [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.
RFA (OS) No. 66/2011 page 6 of 14 (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."
12. As the factual matrix would show that the inspection had taken place on 11th April, 2003. Section 126 refers to an order of assessment when after inspection irregularities as specified are found and thereafter a bill is issued to the consumer and the sum realizable from him becomes due. Section 126 of the 2003 Act prescribes the procedure to be followed. That is the purpose of Section 126 and nature of assessment. As per the plaint, the appellant/plaintiff had earlier filed WP(C) No.4147/2003 and the writ Court had issued directions for compliance of the procedural requirements.
Compliance has been made.
13. In this context, we may refer with profit to Section 154 of the Act, which deals with procedure and powers of the Special Court.
―154. Procedure and power of Special Court.-- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under [sections 135 to 140 and section 150] shall be triable only 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 140 and section 150] in respect of any offence that the case is one which is triable by a Special Court RFA (OS) No. 66/2011 page 7 of 14 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 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, cross-examination or re- examination, if any, as it may permit, the witness shall be discharged.
(3) The Special Court may, notwithstanding anything contained in sub-section (1) of section 260 or section 262 of the Code of Criminal Procedure, 1973 (2 of 1974), try the offence referred to in [sections 135 to 140 and section 150] 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 sub-section, 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 RFA (OS) No. 66/2011 page 8 of 14 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 office 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 (2 of 1974), be deemed to have been tendered under section 307 thereof.
(5) The [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 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.
Explanation.-- For the purposes of this section, ―civil liability‖ means loss or damage incurred by the Board or licensee or the concerned person, as the case may be, due RFA (OS) No. 66/2011 page 9 of 14 to the commission of an offence referred to in [sections 135 to 140 and section 150].‖
14. In this regard, we may refer with profit to the decision in BSES Rajdhani Power Ltd. vs. State N.C.T. of Delhi & Anr. 2010 AD DEL. 73, wherein it has been held as follows:-
"Section 154 of Electricity Act which prescribes the procedure and power of special court does not say that the special court, while determining civil liability u/s 154(5) of the Act would adopt the procedure prescribed in the Code of Civil Procedure for trial of suits. It does not even say that the special court, while determining civil liability u/s 154(5) of the Act shall be deemed to be a civil court. Use of the words as if it were a decree of the civil court in Section 154 (5) of Electricity Act is a strong indicator of the legislative intent and clearly shows that the determination of civil liability by special court by itself will not be a „decree‟ passed by the civil curt and it is only by fiction of law that such a liability would be recovered as if it were a decree of civil court. Had the intention of the legislature been that the special court while dealing with a request for determination of civil liability, should adopt the procedure prescribed for trial of a civil suit, it would have stated so either expressly or by necessary implication and it would not have merely said that the amount of civil liability shall be recovered as if it were a decree of civil court. The legislature would then have said that the special court while determining such a liability would act as a civil court or that the determination made by it shall be deemed to be the decree of a civil court.
RFA (OS) No. 66/2011 page 10 of 14 In fact, Section 154(5) of Electricity Act casts an obligation upon the special court to determine the civil liability, even if no prayer for determination of such a liability is made by either party. Therefore, even if no request had been made by the petitioner for determination of civil liability, the special court would still have to carry out the legislative mandate given to it u/s 154(5) of the Act.
....Taking into consideration the proposition of law enunciated by the Hon‟ble Supreme Court in the case of Paramjeet Singh Patheja (Supra), special courts cannot be deemed to be civil court, the same having been specially set up u/s 153 of the Special Courts Act primarily for the purpose of trial of offence punishable U/ss 135 to 140 and Section 150 of Electricity Act. These special courts are not regular courts envisaged under Article 136 of the Constitution irrespective of the fact that the person who can be appointed as a Judge of a Special Court needs to be an Additional District & Sessions Judge immediately before his appointment as a Judge of a Special Court. In any case, in the absence of any specific statutory provision to this effect, a court set up primarily for the purpose of trial of the criminal offences cannot be considered to be a civil court within the meaning of Article 1 of Schedule 1 of Court Fee Act.
Section 26(2) of Code of Civil Procedure provides that in every plaint, facts shall be proved by affidavit. On the other hand, Section 154 of Electricity Act, 2003 provides that the special court may try the offences referred to in Section 135 to 140 and Section 150 in a summary way in accordance with the procedure prescribed in the Code of Criminal Procedure and the provisions of Section 263 to 265 of RFA (OS) No. 66/2011 page 11 of 14 the Code of Criminal Procedure shall, so far as may be, apply to such trial. It does not prescribe any separate procedure for determination of civil liability. The Electricity Act does not envisage application of two procedures, by special court, one for the purpose of trial of offences referred to in Section 135 to 140 and Section 150 of the Act and the other for determination of civil liability u/s 154(5) of the Act. Had the legislative intent been that for the purpose of determination of civil liability, the special court would adopt the procedure prescribed in the Code of Civil Procedure for trial of a suit, it would have expressly stated so in the Act. In any case this is not the case of the respondents that the Special Courts, are conducting two independent proceedings, one in accordance with the procedure prescribed in Cr.P.C. for trial of the offences of which the complaint has primarily been filed and the other in accordance with the procedure prescribed in CPC for trial of civil suits, for determining civil liability u/s 154(5) of Electricity Act.
The scheme of the Code of Civil Procedure for trial of a suit instituted by presenting a plaint is altogether different from the procedure prescribed in Section 154 of Electricity Act for trial of offences u/s 135 to 140 and 150 of the Act. Order V of the Code of Civil Procedure provides the mode of service of summon in a civil suit. Order VIII provides for filing of a written statement by the defendant within 30 days from the date of service of summons upon him. If the written statement is not filed within the prescribed period, the court is required to pronounce a judgment against the defendant as provided in Rule 10 of Order VIII of the Code of Civil Procedure. Order IX of the Code of RFA (OS) No. 66/2011 page 12 of 14 Civil Procedure for dismissal of a suit, if the plaintiff does not appear when the suit is called on for hearing. Rule 6 of Order IX provides for making an ex-parte against the defendant if he does not appear despite service of summon upon him. A suit dismissed in default under Rule 8 of Order IX precludes the plaintiff from brining a fresh suit on the same cause of action. The final determination of a civil suit results in passing of a decree. No decree, however, is envisaged in Section 154(5) of Electricity Act.
The entire procedure for trial of a civil suit instituted by presentation of a plaint as prescribed in the Code of Civil Procedure is altogether different from the procedure prescribed for dealing with the complaints in respect of the offences referred to in Section 135 to 140 and Section 150 of Electricity Act. Neither adoption of such a procedure has been prescribed by Section 154 of Electricity Act nor is such a procedure otherwise implicit in that Act.
The interpretation given by the Hon‟ble Supreme Court in the case of Gujarat Industrial Finance Corpn. (Supra), followed by this court in Prakash Playing Cards Manufacturing Co. (Supra) equally applies to Section 154 (5) of Electricity Act, 2003. The view being taken by me also finds full support from the decision of the Hon‟ble Supreme Court in, Paramjit Singh Patheja (Supra), interpreting Section 15 of Arbitration Act of 1899 and Section 36 of Arbitration and Conciliation Act, 1996."
15. It is submitted by Ms. Radhika Chandrashekhar, learned counsel for the Appellant that as the Special Court under Section 154 of the Act was not established and functioning till March, 2004, the appellant/plaintiff had filed RFA (OS) No. 66/2011 page 13 of 14 the suit. Absence of a Presiding Officer to man the special court does not confer jurisdiction on the civil court, if it is ousted by a statutory provision.
The only remedy is to invoke the extraordinary and inherent jurisdiction of the Writ Court as no law can curtail the inherent power of the High Court under Article 226 of the Constitution of India as it basically pertains to the basic structure of the Constitution of India. When the language employed under Sections 145 and 154 of the 2003 Act is clear and unambiguous and the judgment of the learned Single Judge to the effect that the suit was not maintainable is absolutely correct. The direction given by the learned Single Judge in the ordering portion also cannot be found fault with. The period consumed in preferring the suit and this appeal shall stand excluded under Section 14 of the Limitation Act.
16. In view of the aforesaid, we do not find any merit in the present appeal and, accordingly, the same stands dismissed leaving the parties to bear their respective costs throughout.
CHIEF JUSTICE
SANJIV KHANNA, J
SEPTEMBER 14, 2011
'raj'
RFA (OS) No. 66/2011 page 14 of 14