Gujarat High Court
Jayshree Talkies vs Paschim Gujarat Vij Co Ltd on 26 July, 2018
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/LPA/616/2018 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 616 of 2018
In SPECIAL CIVIL APPLICATION NO. 10600 of 2008
With
CIVIL APPLICATION NO. 2 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
=============================================
1 Whether Reporters of Local Papers may be allowed to see Yes
the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India or any
order made thereunder ?
=============================================
JAYSHREE TALKIES
Versus
PASCHIM GUJARAT VIJ CO LTD
=============================================
Appearance:
MR ASHISH M DAGLI(2203) for the PETITIONER(s) No. 1
MR SP HASURKAR(345) for the RESPONDENT(s) No. 1,2
=============================================
CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 26/07/2018
CAV JUDGMENT
Page 1 of 24
C/LPA/616/2018 CAV JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY) [1] This Letters Patent Appeal is filed under clause 15 of the Letters Patent, by the original petitioner, aggrieved by the order dated 19.02.2018 passed by the learned Single Judge in Special Civil Application No.10600 of 2008.
[2] The appellant herein - original petitioner is a proprietorship firm, which is engaged in the business of running motion pictures in the name of 'Jayshree Talkies' situated at Junagadh.
[3] The above Special Civil Application is filed with the prayers
which reads as under :
"25(A) Admit this Special Civil Application.
(B) Allow this Special Civil Application by issuing a writ of
mandamus or any other appropriate writ, direction or order quashing and setting aside the supplementary bill at Annexure issued for consumer No.35101/55001/8 meter No.307031 (air condition plant) as the same is unjust, improper and to restore the connection on any appropriate terms and conditions in the interest of justice.
(C) This Hon'ble Court may be pleased to direct the respondent to restore the electric connection of the petitioner Page 2 of 24 C/LPA/616/2018 CAV JUDGMENT for air condition plant on any appropriate terms and conditions in the interest of justice.
(D) Pending admission and till final disposal of this petition, this Hon'ble Court may be pleased to direct the respondents to restore the electric connection of the petitioner for air condition plant on any appropriate terms and conditions in the interest of justice.
(E) Grant such other and further reliefs as deemed just and proper in the interest of justice."
[4] The learned Single Judge by order dated 19.02.2018 dismissed the petition by vacating earlier interim order passed during the pendency of the petition on 22.09.2008.
[5] The appellant - cinema hall is having electricity supply from the respondent company with three phase industrial connection bearing Consumer No.35101/5500/8. Said connection is being used for the purpose of running theater and also air conditioning plant. On 05.07.2008, a complaint was made by the appellant stating that power supply is not available from the meter, and such complaint was registered as No.10624 on 05.07.2008. The meter was taken out on the same day by carrying out Rojkam. It is the case of the appellant - Page 3 of 24 C/LPA/616/2018 CAV JUDGMENT original petitioner that though the meter itself is defective, alleging that the appellant is indulged in theft of energy, supplementary bill is issued for an amount of Rs.17,18,384.43 ps. It is the allegation of the appellant that there was complaint about meter manufactured by Duke Company and inspite of same, meter is not replaced, and by making false allegations, supplementary bill is raised. Mainly, in the Special Civil Application, it is the case of the original petitioner that no opportunity is given and without conducting proper inquiry, supplementary bill is issued. It is alleged that meter was faulty and inspite of circular of the Board, meter was not replaced, and as such the petitioner cannot be saddled with liability. Mainly, it was the case of the petitioner that no opportunity is given before issuing supplementary bill. [6] In the Special Civil Application, affidavit in reply is filed on behalf of the respondent Company. In the affidavit in reply, while denying various allegations made by the appellant, it is stated that the appellant was provided with three phase electrical connection and on the complaint made by the appellant on 05.07.2008, same was attended on the same day and as per Rojkam, MMB seal fell down on the very first touch. The old MMB and meter were replaced with new meter with new MMB. It is stated that meter was checked in the laboratory on 14.07.2008 in presence of consumer and as the power theft was Page 4 of 24 C/LPA/616/2018 CAV JUDGMENT established, as such, the appellant was served with supplementary bill on ABCD formula, for theft under Section 135 of the Electricity Act of 2003. Further, referring to past incidents, it is pleaded that when supplementary bill was issued, same was finally compromised and settled. Further, it is pleaded that case relates to theft of energy, as such, supplementary bill was issued based on finding of fact, and therefore, no case is made out to interfere.
[7] In earlier hearing, when the matter was heard, a query was raised as to how supplementary bill of Rs.17,18,384.43 ps. is arrived. To answer the query, further affidavit in reply is filed in this appeal by the Deputy Engineer, Pashim Gujarat Vij Company Ltd, Junagadh. In the said reply, it is pleaded that the appellant has indulged in commission of theft of energy and is being subjected to criminal prosecution, and the supplementary bill was issued as per provisions of the Supply Code. It is stated that provisions of the Supply Code provide for method of calculation and supplementary bill is prepared by applying twice the tariff rate.
[8] We have heard learned Counsel Mr. Dagli for the appellant and learned Counsel Mr. Hasurkar for the respondent Company. Page 5 of 24 C/LPA/616/2018 CAV JUDGMENT [9] Learned Single Judge has not heard the appellant on the ground that learned Counsel was not present inspite of refusing request for adjournment and therefore, has proceed to decide the matter based on the pleadings and after hearing the learned Counsel for the other side. During the course of hearing, it is mainly contended by learned Counsel for the appellant that only on the complaint dated 05.07.2008 made by the appellant, the respondents have replaced the meter and the appellant is not at fault. It is further submitted that without rectifying the meter, by making false allegation of theft of energy, the appellant is saddled with huge liability of Rs.17,18,384.43 ps by way of supplementary bill, without giving opportunity. In paragraph No.17 of the petition, specific ground is raised by the original petitioner that supplementary bill is issued without any basis. It is also submitted that even in the assessment proceedings by the respondent company, the respondents have not issued any notice and without supplying copy of lab report and without providing opportunity, supplementary bill is issued illegally, arbitrarily and in violation of principles of natural justice and contrary to the Electricity Code which has statutory force. [10] On the other hand, learned Counsel appearing for the respondent submitted that in cases of theft, no opportunity need be given and concept of principles of natural justice cannot be pressed into Page 6 of 24 C/LPA/616/2018 CAV JUDGMENT service for the cases falling under Section 135 of the Electricity Act of 2003. It is submitted that for the cases falling under Section 126 of the Electricity Act, 2003, there is specific provision to give opportunity, but similarly, there is no such provision in Section 135 of the Electricity Act, 2003. Mainly, it is pleaded that in absence of any specific provision for granting opportunity in assessment proceedings, in cases of theft of energy, covered by Section 135 of the Electricity Act, 2003, there is no need to give any opportunity before assessing the bill. Learned Counsel for the respondent Company has relied on the judgment of this Court in the case of Torrent Power AEC Ltd. v/s. Gayatri Intermediates Pvt. Ltd. reported in 2006 (2) GLH 375 and judgment of the Hon'ble Supreme Court in the case of Executive Engineer, Southern Electricity Supply Company of Orissa Limited v/s. Sri Seetaram Rice Mill reported in 2012 (2) SCC 108.
[11] Learned Counsel for the appellant submitted that aforesaid judgments are not applicable to the facts of the case on hand, as much as, the question, whether in assessment proceedings opportunity is required to be given or not before raising supplementary bill, was not considered in the aforesaid two judgments, relied by the learned Counsel for the respondent.
Page 7 of 24 C/LPA/616/2018 CAV JUDGMENT [12] Before we proceed further, we deem it appropriate to refer to certain relevant provisions of the Electricity Act of 2003. Under section 50 of the Electricity Act of 2003, the State Commission is authorized to specify electricity supply code for recovery of electricity charges etc. Section 50 reads as under : "50. The Electricity Supply Code. The State Commission shall specify an Electricity Supply Code to provide for recovery of electricity charges, intervals for billing of electricity charges, disconnection of supply of electricity for nonpayment thereof, restoration of supply of electricity, measures for preventing tampering, distress or damage to electrical plant or electrical line or meter, entry of distribution licensee or any person acting on his behalf for disconnecting supply and removing the meter, entry for replacing, altering or maintaining electric lines or electrical plants or meter and such other matters." [13] Section 126 of the Electricity Act, 2003 in Part XII, deals with investigation and enforcement and same reads as under : "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 Page 8 of 24 C/LPA/616/2018 CAV JUDGMENT 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 a notice 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 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..
Page 9 of 24 C/LPA/616/2018 CAV JUDGMENT
(6) The assessment under this section shall be made at a rate equal to d [twice] the tariff applicable for the relevant category of services specified in subsection (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 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 authorised."
[14] Offences and penalties are dealt with under Part XIV of the Electricity Act, 2003. Section 135 of the said Act reads as under "135. Theft of electricity (1) Whoever, dishonestly,
(a) taps, makes or causes to be made any connection with overhead, under ground 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 Page 10 of 24 C/LPA/616/2018 CAV JUDGMENT device or method which interfers 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 Page 11 of 24 C/LPA/616/2018 CAV JUDGMENT 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 or subsequent conviction of a person whose 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 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, 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 Page 12 of 24 C/LPA/616/2018 CAV JUDGMENT disconnect the supply 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 supply line of electricity within fortyeight 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 d [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 subsection (1) and allow the person from whose custody such books of account or documents are seized to make copies thereof or take extracts Page 13 of 24 C/LPA/616/2018 CAV JUDGMENT 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."
[15] Part XV of the Electricity Act of 2003 deals with provision relating to Constitution of Special Courts and its power. Constitution of Special Court is under Section 153 and it is given power of Court of Sessions and under Section 154 powers of Special Court is prescribed. Relevant portion of Section 154(5) reads as under : "(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 Page 14 of 24 C/LPA/616/2018 CAV JUDGMENT months preceding the date of detection of theft of energy or the exact period of the 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."
[16] In exercise of powers under Section 50 of the Electricity Act, 2003, Electricity Supply Code and related matter (First Amendment) Regulations, 2005 were brought into force by way of Notification dated 14.12.2005 issued by the Gujarat Electricity Regulatory Commission in proceedings No.GERC/TECHI/2277/2005. Relevant regulation No.7.6.5 which is substituted by amended Regulations of 2005 reads as under : "7.6.5
(a) The Assessment under this section shall be made at the rate equal to two times of the tariff rates applicable subject to pending adjudication by the competent court.
The assessment under this section shall be applicable for a period of 12 months preceding the date of detection of the theft or the exact period of the theft whichever is less. The exact period may be arrived at by following guidelines or any combination thereof or any other evidence which may be provided by the consumer.
(i) Meter reading instrument (MRI) data should be considered wherever available.
(ii) Actual period from the date of commencement of supply to the date of detection of theft.
(iii) Actual period from the date of replacement of component of metering system in which the evidence is Page 15 of 24 C/LPA/616/2018 CAV JUDGMENT detected to the date of detection of theft.
(iv) The actual period from the date of previous checking of installation to date of detection of theft.
(b) The assessment shall be worked out in the manner prescribed in Annexure B of the principal regulations for assessment of Theft as well."
[17] From the reading of Regulation 7.6.5 of the Regulations of 2005, it is clear that in cases of theft, the authorities are empowered to assess loss at the rate equal to two times of the tariff rate subject to adjudication by the Competent Court for a period of 12 months preceding the date of detection of the theft or the exact period of theft whichever is less. The exact period can be arrived at by following guidelines notified in the Regulation. For the purpose of coming to the conclusion that assessment to be calculated for a period of 12 months or less than that, it is open for the consumer to produce evidence to show that he is not liable for assessment for a maximum period of 12 months. In a given case, it may be that meter is replaced by the authority one month prior to detection of theft, in that event, assessment is to be confined to such period. If evidence is available as per Regulations in the Supply Code, it is open to the consumer to prove by way of producing necessary evidence to show that he is not liable to be assessed for a maximum period of 12 months as contemplated in the Regulations of 2005. From the reading of above Regulations of 2005, it makes clear Page 16 of 24 C/LPA/616/2018 CAV JUDGMENT that Assessing Authority is empowered to issue supplementary bill to assess loss for a maximum period of 12 months or less. [18] It is clear from a reading of provision under Regulation 7.6.5 of Regulations of 2005, that in cases of theft of energy, it is not necessary in all cases to make assessment, for a period of 12 months, by applying double rate of normal tariff.
[19] The argument of learned Counsel for the respondent Company that in cases falling under Section 135 of the Electricity Act, 2003, no opportunity need be given for the purpose of assessment of civil liability, cannot be accepted. In cases, where it is established that consumer has committed theft of energy, it is always open to the authority to disconnect power supply without waiting for any period and opportunity, but at the same time before fastening civil liability by way of assessment for loss of energy on account of theft, an opportunity is to be given to show that whether assessment is to be made for a period of 12 months or for lesser period as contemplated under Regulation 7.6.5 of the Regulations of 2005. Section 135 of the Electricity Act of 2003 under Part XIV deals with offences and penalties. Page 17 of 24 C/LPA/616/2018 CAV JUDGMENT [20] Judgment of the Hon'ble Supreme Court in the case of Executive Engineer, Southern Electricity Supply Company of Orissa Limited v/s. Sri Seetaram Rice Mill [2012 (2) SCC 108] would not support the case of the respondent. It is true that in the said judgment the Hon'ble Supreme Court has considered distinction of 'unauthorized use of electricity' under Section 126 of the Electricity Act of 2003 and theft of energy under Section 135 of the Electricity Act of 2003. In the aforesaid judgment, it is held that Section 135 deals with 'theft of electricity' and penalty that can be imposed for such theft. This squarely falls within the dimensions of criminal jurisprudence and mensrea is one of the relevant facts for finding a case of theft. On the contrary, section 126 of the Electricity Act of 2003 would be applicable to cases where there is no theft but electricity is being consumed in violation of terms and conditions of supply leading to malpractice which may squarely fall within expression 'unauthorized use of electricity'. In the aforesaid judgment, there was no issue with regard to determination of civil liability in case of theft and the manner and method to be assessed. [21] Further in the case of Torrent Power AEC Ltd. v/s. Gayatri Intermediates Pvt. Ltd. [2006 (2) GLH 375], this Court has considered the scope of provisions under Sections 126, 127 and 135 of the Electricity Act of 2003. Learned Counsel for the respondent Company Page 18 of 24 C/LPA/616/2018 CAV JUDGMENT has placed reliance on paragraphs no.13, 13.1 and 13.2 of the said judgment, which reads as under : "13. Does Assessment in theft cases require compliance with principles of Natural Justice ?
13.1 Mr Tushar Mehta for the petitioners vehemently submitted that assessment under Section 126 embodies the principles of natural justice. The Legislature could not have intended that assessment in theft cases could be made without complying with the principles of natural justice. 13.2 We are unable to accept this contention either. Since such contentions raised under the repealed laws were outright rejected by the Apex Court, we may turn to them. In MP Electricity Board vs. Harsh Wood Products, AIR 1996 SC 2258 = (1996) 4 SCC 522 and in Hyderabad Vanaspathi vs. APSEB, (1998) 4 SCC 470, the Apex Court has laid down that where a consumer is primafacie found by the licensee to have committed theft of electricity, it is not necessary for the licensee to give any notice or an opportunity of hearing before disconnecting electricity supply and that the supply may be restored only if the consumer compensates the licensee or pays off the dues as per the bill which may be prepared by the licensee. The Court held that the action taken by the Electricity Board in exercise of the powers under the Conditions of Supply framed under the Electricity (Supply) Act, 1948 was neither violative of Articles 20(1) and 14 of the Constitution nor violative of the principles of natural justice. The Court further held that the provision for a departmental appeal and judicial review under Article 226 thereafter were Page 19 of 24 C/LPA/616/2018 CAV JUDGMENT sufficient safeguards. Now that the Electricity Act, 2003 itself provides a statutory remedy before the Special Court (presided over by a Judicial Officer in the cadre of District Judges as compared to a Judicial Officer in the lower cadre of Civil Judges presiding over the Civil Court) and further appeal/revision under Section 156 before this Court as discussed in para 15 hereafter, we find that these are sufficient safeguards. Accordingly the contention based on principles of natural justice is also rejected." [21.1] There cannot be any second opinion on the aforesaid view taken by the Division Bench of this Court. We are in complete agreement with the view to the extent that no opportunity be given before disconnecting electricity supply when primafacie it is found that consumer has committed theft.
[22] The short question which arise for consideration in this appeal is whether in case of theft of electricity after disconnecting power, can the respondent authority unilaterally make assessment without giving any notice to the consumer and issue supplementary bill?. In our opinion, it cannot be.
[23] As much as Section 126 of the Electricity Act of 2003 deals with malpractice other than the cases falling in the category under Section 135, procedure is prescribed under Section 126 of the Electricity Page 20 of 24 C/LPA/616/2018 CAV JUDGMENT Act of 2003. Section 135 of the Electricity Act deals with offences and penalties, as such, it has not indicated the manner and method of assessment of civil liability in cases of theft of energy. Electricity Supply Code is notified by the statutory functionary under Section 50 of the Electricity Act of 2003. It is expected that the respondent authorities to follow such Code before making the assessment. It is true that there is no express provision for granting opportunity, but from a reading of Regulation 7.6.5 issued by the Gujarat Electricity Regulatory Commission, it is clear that at the stage of assessment of civil liability, notice is required to be given for the consumer to give opportunity to produce evidence by the consumer to show cause why liability is not fastened for a period of 12 months preceding date of detection of theft. As much as, said Regulation empowers the assessment to be made for a period of 12 months preceding the date of detection of theft or exact period of theft whichever is less. In the Regulation 7.6.5(a), it is specifically prescribed that exact period can be arrived at by following guidelines or any other evidence which may be provided by the consumer. When the consumer is given opportunity to produce evidence to show that theft period cannot be extended to 12 months, he can produce such evidence which is with him to plead for lesser period. Such production of evidence will arise only if the consumer is given opportunity but not otherwise.
Page 21 of 24 C/LPA/616/2018 CAV JUDGMENT [24] From a reading of Regulation 7.6.5 of the Regulations of 2005, it is clear that it is inbuilt, in the regulation itself to provide opportunity to the consumer before supplementary bill is raised. In case of theft of energy, respondent authorities cannot unilaterally assess loss of energy for a maximum period of 12 months in all cases without giving any opportunity. Further it is clear that civil liability determined is subject to orders of the Special Court under Section 154(5) of the Electricity Act. If any amount is deposited by the consumer which is excess of civil liability to be determined by the Special Court, such amount is required to be refunded to the consumer under Section 154(6) of the Electricity Act of 2003.
[25] In view of aforesaid provision of Regulation 7.6.5 of the Regulation of 2005 which is issued in exercise of section 50 of the Electricity Act of 2003 read with Section 154(5) and 154(6) of the Electricity Act of 2003, it makes clear that in cases of theft of energy, initial assessment power is conferred on the authorities subject to provision under Section 154(5) and 154(6) of the Electricity Act of 2003. Initial assessment is to be made by the authorities by following Regulation 7.6.5 of the Regulations of 2005 notified by the Gujarat Electricity Regulatory Commission. In that view of the matter, we are of the view that aforesaid two judgments relied by the learned Counsel for Page 22 of 24 C/LPA/616/2018 CAV JUDGMENT the respondent would not render any assistance in support of their plea that in the cases of theft of energy, for assessing civil liability, no opportunity need be given to the consumer. Said contention of learned Counsel for the respondent is required to be rejected and accordingly, it is rejected.
[26] As much as, we are of the view that before issuing supplementary bill, no procedure is followed in this case as referred above, the appeal is required to be allowed by setting aside the supplementary bill for an amount of Rs.17,18,384.43 ps.. Accordingly, supplementary bill for an amount of Rs.17,18,384.43ps (Annexure - D in Special Civil Application No.10600 of 2008) is hereby quashed and set aside and the matter is remanded to competent authority to take fresh decision by giving opportunity to the appellant as contemplated under Regulation 7.6.5 of the Regulations of 2005.
[27] It is brought to our notice that during pendency of Special Civil Application before the learned Single Judge, power supply was restored on payment of Rs.5 lac and now power is disconnected after dismissal of the petition by the learned Single Judge. As we have set aside the supplementary bill, we direct the respondent Company to restore power supply forthwith to the appellant, pending assessment Page 23 of 24 C/LPA/616/2018 CAV JUDGMENT proceedings. It is open for the assessing authority, to pass fresh orders by giving opportunity and by considering evidence, if any, to be produced by the appellant. The assessing authority to give opportunity of hearing to the appellant to produce evidence to disprove liability which is sought to be fastened on the appellant. It is made clear that the deposited amount of Rs.5 lac would be subject to final orders that may be passed by the Assessing authority / respondents.
[28] For the aforesaid reasons, the Letters Patent Appeal is partly allowed to the extent indicated above. The order dated 19.02.2018 passed by the learned Single Judge in Special Civil Application No.10600 of 2008 is modified. No order as to costs. Consequently, Civil Application also stands disposed of.
(R.SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J) SATISH Page 24 of 24