Punjab-Haryana High Court
Uttar Haryana Bijli Vitran Nigam Ltd. vs Jai Jagdambey Steel Pvt. Ltd. And Anr. on 6 February, 2007
Equivalent citations: (2007)147PLR743, AIR 2007 (NOC) 1229 (P. & H.), 2007 (3) AJHAR (NOC) 1003 (P. & H.)
JUDGMENT Vinod K. Sharma, J.
1. The petitioner by way of present revision petition has challenged the order dated 23.5.2005 passed by the learned Additional District Judge, Panipat, vide which the application moved by the respondent-plaintiff herein under Order 39 Rules 1 and 2 of the Code of Civil Procedure has been accepted by passing the following order:
Keeping in view above discussion, the impugned order passed by the learned trial Court is modified and it is directed that the plaintiff shall deposit an amount of Rs. 15,88,898/- with the defendants within a period of seven days from the date of passing of the order and on deposit of such an amount the defendants shall restore the electrical connection of the plaintiff and that too within a period of two days from the date of deposit of said amount. The appeal stands disposed of accordingly.
2. The plaintiff-respondent has filed a suit seeking a decree of declaration with a consequential relief of permanent injunction with the averments that the plaintiff is a private company and is consumer having electricity connection bearing No. LS 8 with sanctioned load of 999.612 K.Ws. The premises of plaintiff-respondent was checked by ADV along with other staff on 12th of January 2005 from 3.15 a.m. to 8.30 a.m. and the plaintiff-respondent was found committing theft of electric energy by using illegal means. The directions for deposit of Rs. 1,24,71,185/- (Rs. one crore twenty four lacs seventy one thousand one hundred eighty five only) were issued. It is further stated that on deposit of the said amount, electric connection was to be restored.
3. The learned trial Court ordered the restoration of electricity on deposit, of Rs. 80,00,000/- (Rs. Eighty lacs only).
4. In appeal, the order reproduced above was passed.
5. Mr. Girish Agnihotri, learned Counsel appearing on behalf of the petitioner argued that (he order passed by the learned lower Appellate Court was without jurisdiction as the jurisdiction of the civil Court is barred under Section 145 of the Electricity Act, 2003 (hereinafter referred to as the 'Act') Sections 126, 127 and 145 of the Act are reproduced below for ready reference:
126. Assessment.- (1) If on an inspection of any place or premises or after inspection of 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 unauthorized 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 may, after affording a reasonable opportunity of hearing to such person, pass a final order of 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:
Provided that in case the person deposits the assessed amount, he shall not be subjected to any further liability or any action by any authority whatsoever.
(5) If the assessing officer reaches to the conclusion that unauthorized use of electricity has taken place, it shall be presumed that such unauthorized use of electricity was continuing for a period of three months immediately proceeding the date of inspection in case of domestic and agricultural services and fora period of six months immediately preceding the date of inspection for all other categories of services, unless the onus is rebutted by the person, occupier or possessor of such premises or place.
(6) The assessment under this section shall be made at a rate equal to one and half times the tariff applicable for the relevant category of services specified in Sub-section (5).
Explanation.- For the purposes of this section -
(a) "Assessing Office" 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 authorized 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 authorized.
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 one-third 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 percent per annum compounded every six months.
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.
6. Learned Counsel for the plaintiff-respondent relied upon the judgment of the Full Bench of this Court in the case of Ranbaxy Laboratories Ltd. v. Punjab State Electricity Board, Patiala (2004-2)137 P.L.R. 101 to contend that the alternative dispute settlement mechanism provided by the Board cannot affect the jurisdiction of the Civil Court. He also placed reliance on the judgment of the Hon'ble Supreme Court in the case of Dhruv Green Field Ltd. v. Hukam Singh and Ors. contend that the statute which excludes the jurisdiction of the civil Court has to be strictly interpreted by applying mechanism - Maxims - "Ubi jus ibi remedium". There is no force in the contention of the learned Counsel for the respondent. The Full Bench of this Court was considering the instructions issued by the Board providing alternative dispute redressal forums. However, the said judgment has no application to the provisions of the Electricity Act, 2003, as the jurisdiction of the civil Court has been barred by the statute. The reliance by the learned Counsel for the respondent on the judgment of the Hon'ble Supreme Court is also misconceived as in the present case the jurisdiction of the civil Court to deal with the matters falling under Sections 126 and 127 of the Act has been barred. Even if the provisions of Section 145 of the Act are strictly construed, still the matter in dispute is one falling under Section 126 of the Act. Thus the jurisdiction of the civil Court is prima facie barred.
7. In is not in dispute that order of demand was made under Section 126(2) of the Act and the plaintiff-respondent No. 1 did not choose to file any objection against the said order. Thus prima facie the jurisdiction of the civil Court is barred. It is further noticed that the learned lower Appellate Court while disposing of the application has directed the deposit of Rs. 15,88,898/- (Rs. fifteen lacs eighty eight thousand eight hundred ninety eight only) by taking into consideration the fact that the premises of the petitioner was earlier checked on 30th November, 2004 when no malpractice or illegal act was detected. However, it was on 12th of January 2005 that theft of energy was detected. It was also noticed that the last bill payable was of Rs. 1,05,182/-. The amount claimed was highly excessive. The learned lower Appellate Court further noticed that period between the last checking and when the case of theft was detected was only one month and 12 days and thereby calculated the amount payable was Rs. 15,88,898/- (Rs. Fifteen lacs eighty eight thousand eight hundred ninety eight only). This finding prima facie can also not be sustained as under Section 126(5) of the Act, a presumption had to be drawn-that unauthorized use of electricity was continuing for a period of six months as it was a 'LS Connection'. Thus the order passed by the learned lower Appellate Court cannot be sustained.
Accordingly, the revision petition is allowed. The order passed by the learned lower Appellate Court is set aside. However, nothing stated herein should be deemed to be an expression of opinion on the merits of the case.