Gujarat High Court
Madhya Gujarat Vij Company Ltd vs Saberabibi Mahmad Chhunga on 23 August, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SA/209/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 209 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to YES
see 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 NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
5 Circulate this judgment in the subordinate judiciary.
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MADHYA GUJARAT VIJ COMPANY LTD
Versus
SABERABIBI MAHMAD CHHUNGA
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Appearance:
MR SP HASURKAR(345) for the PETITIONER(s) No. 1
RULE SERVED BY DS(65) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 23/08/2018
ORAL JUDGMENT
1. This Second Appeal under Section100 of the Code of Civil Procedure is at the instance of the original plaintiff and is directed against the judgment and order dated 12/05/2016 passed by the 7th Additional District Judge, Panchmahal at Godhra in the Regular Civil Page 1 of 35 C/SA/209/2018 JUDGMENT Appeal No.51 of 2009 arising from the judgment and decree dated 28/07/2009 passed by the Additional Civil Judge and JMFC, Godhra in the Regular Civil Suit No.91 of 2006.
2. The facts giving rise to this Second Appeal can be gathered from the Paragraphs - 1 and 2 of the judgment and order passed by the trial Court. Paragraphs1 and 2 are as under:
1. That the plaintiff company is a body corporate which is established under law and its headoffice is situated at Baroda. That the divisional and subdivisional office of the plaintiff company is situated at Godhra, and hence, this Court has the jurisdiction to hear this matter. That the plaintiff company is supplying electricity to its customers and also collecting the money for the usage of electricity by the customers. That the plaintiff company has come into existence on the basis of the resolution of the Energy and Petrochemics Department of Gujarat Government bearing resolution No.GEB/1104/7318(K) dated 31.12.2004 which was earlier known and running in the name of Gujarat Electricity Board. That all the contracts made by the G.E.B. with its customers have become the responsibility of the plaintiff company. That the plaintiff company has to follow the resolutions, rules, tariff, agreements, conditions for supply of electricity, etc. which had been earlier framed by the G.E.B. That the defendant had attained the customer no.01005/02078/7 from the plaintiff company on dated 25.04.1988 by following the proper rules of the plaintiff company. That the plaintiff company has a subdivision at Godhra and that the said subdivision supplies electricity and accepts the bill of the defendant. That the defendant is bound to pay the bill against the usage of electricity and he is also bound to pay the delay charges if he does not make the payment in Page 2 of 35 C/SA/209/2018 JUDGMENT time. That if the electric connection is temporarily disconnected, the defendant is responsible to make the payment of the fix and minimum charges for the period till the permanent disconnection is executed by the plaintiff company. That the plaintiff in the para (4) of the plaint, has described the faults found in the meter of the defendant, when the checking squad of the plaintiff company had conducted a checking in the presence of the defendant as well as the representative of the defendant on dated 24.07.2003. That as per the said checking the plaintiff company had found that the meter was tampered, and hence, as per the rules the said connection was temporarily and thereafter according to the rules permanently disconnected on dated 24.07.2003. Thereafter, the plaintiff company had calculated the bill of the defendant as per the A.B.C.D. Formula and given a bill of Rs.1,40,977.46 to the defendant. That the defendant was also given a notice on dated 07.07.2005by R.P.A.D. for payment of the said bill, but though the said notice had been served on the defendant, he has not made any payment towards the bill, and hence, a bill of delay payment charges was also raised for Rs.52,353.15, and therefore, the final bill which the defendant has to pay has amounted to Rs.1,93,330.61. The plaintiff company has further mentioned the cause of action in the para.(6) of the plaint. The plaintiff company has further stated that, as the defendant is a resident of Godhra and the office of the plaintiff company is also situated in Godhra, this Court has the jurisdiction to entertain the present suit. Lastly the plaintiff company has prayed relief(s) in terms of para.(9) of the plaint.
2. The defendant was served with the process of the Court and the Ld. Advocate Shri A.Y. Bhatuk has appeared on her behalf and Page 3 of 35 C/SA/209/2018 JUDGMENT produced the written statement vide Exh.13, wherein she has denied the facts of the present suit in toto and stated that the plaintiff does not have any legal right to file such kind of suit. That the plaintiff's suit is barred by time limit. That the plaintiff should prove the facts stated in the para.(1) & (2) by producing documentary evidences. That the plaintiff company has demanded different amount under different heads from the defendant and that the plaintiff company is not entitled to get the same. She has further stated that the plaintiff company has not conducted the checking of the meter of the defendant in his or his representative's presence, but, the defendant, has taken away the meter when there was nobody in the house. The plaintiff company has not taken any consent or signature of the defendant before taking away the meter. She has further denied all the faults found in the meter and that which have been mentioned by the plaintiff company in the para (4) of its plaint. She has further stated that no tampering of the meter had been carried out by the defendant. She has further stated that, no signature of the defendant or his representative had been taken at the time of installation of the meter by the employee's of the plaintiff company, as to whether the seal of the meter had been properly executed by them or not. She has further stated that the seal is in the same condition as the employee's of the plaintiff company had installed it, and that if, the employee's of the plaintiff company had wrongly installed the meter then the defendant cannot be held responsible for the same. The fact that the meter has been tampered or not can only come into light, if the employee's of the plaintiff company had prepared a report after installation of the meter and had it signed by the plaintiff or her representative, but, by mere saying of the plaintiff company it cannot be believed that the meter has been tampered by the defendant. That Page 4 of 35 C/SA/209/2018 JUDGMENT the officer of the plaintiff company have several times checked the meter of the defendant, but, they have never found out any fault or tampering in the meter of the defendant. Moreover, as per the rules of the plaintiff company, in case of theft of electricity, the meter should be tested in the laboratory in presence of the Electric Inspector of the company and his Panch's and the one who is accused of the theft of electricity and his Panch's. The plaintiff company has made wrong allegations and prepared false papers and false case against the defendant, but has not taken care to follow the due procedure. The plaintiff company has not executed any Panchnama and the so called tampered meter has not been checked in any laboratory in the presence of Electrical Inspector or the defendant. She has further contended that, it has only been stated in the plaint that the seal of the meter had been tampered, but, nothing regarding the tampering of the meter has been stated, and only the tampering of the seal cannot be counted as theft of electricity. The consumption of electricity cannot be measured by inspection of the seal, but, it can be only measured by inspecting the meter, and if the meter has not been tampered then it cannot be called a theft of electricity, and therefore, the suit of the plaintiff company is false, innovated and filed in order to harass the defendant. The defendant has further stated that the officers of the plaintiff company take reading of the meter in every 2 months, but, at that time also no tampering of the meter or seal had been noted by them. She has further denied the facts mentioned by the plaintiff company in the para (5) of the plaint. She has further stated that the plaintiff company has levied delay payment charges as Rs.52,353.15 which is unbearable. She has further stated that the plaintiff company has breached the mandatory provisions while carrying out the valuation. She has further stated that no theft of Page 5 of 35 C/SA/209/2018 JUDGMENT electricity has been done by the defendant, but, the plaintiff company by setting aside the rules framed for preparation of bills have innovated a false bill by keeping prejudice towards the defendant. She ha further denied the cause of action of the plaintiff company. Lastly she has stated that the plaintiff company is not entitled to get any relief(s) as prayed for, and hence, the present suit should be dismissed with cost.
3. The trial Court framed the following issues vide Exh.14.
1. Whether the plaintiff proves that the checking squad of the plaintiff board had carried out checking on dated 24.07.2003 of the electric connection of the defendant in presence of the defendant/ representative of the defendant?
2. Whether the plaintiff proves that the defendant had tampered the body seal of the meter and carried out electricity theft?
3. Whether the plaintiff proves that the representative of the defendant had refused to sign the Nivedan Aheval prepared on electricity theft done by the defendant, and hence, they had prepared a Rojkam to that effect?
4. Whether the plaintiff proves that the defendant had carried out theft of electricity, and hence, the plaintiff company has prepared a bill by using A.B.C.D. Formula which amounts to Rs.1,40,977.46 and that the plaintiff is entitled for receiving the same?
5. Whether the defendant proves that the plaintiff board has failed to follow the procedure before preparing the case of theft of electricity?
6. Whether the defendant proves that this Court has no jurisdiction to entertain the present suit of the plaintiff?
7. Whether the defendant proves that the plaintiff's suit is barred by limitation of time?
8. Whether the plaintiff is entitled to get the relief(s) as prayed for?
9. What order and decree?
Page 6 of 35C/SA/209/2018 JUDGMENT
4. The issues framed by the trial Court came to be answered as under:
1. Negative
2. Negative
3. Negative
4. Negative
5. Affirmative
6. Negative
7. Affirmative
8. Negative
9. As per final order.
5. The suit filed by the appellant herein for recovery of the amount from the defendant came to be dismissed substantially on two grounds. First, the trial Court disbelieved the case of theft of electricity and secondly, according to the trial Court, the suit filed by the appellant - plaintiff was time barred having regard to the provision of Section56(2) of the Electricity Act, 2003.
6. The trial Court while dismissing the suit filed by the appellant herein held as under:
8. The plaintiff company is a body corporate which is established under law and its headoffice is situated at Baroda. The defendant had attained the customer no.01005/02078/7 from the plaintiff company on dated 25.04.1988 by following the proper rules of the plaintiff company. The plaintiff further stated that they had found out faults in the meter of the defendant, when the checking squad of the plaintiff company had conducted a checking in the presence of the defendant as well as the representative of the defendant on dated 24.07.2003. As per the said checking the plaintiff company had found that the meter was tampered, and hence, as per the rules the said connection was temporarily and thereafter according to the rules permanently disconnected on dated 24.07.2003. Thereafter, the plaintiff company Page 7 of 35 C/SA/209/2018 JUDGMENT had calculated the bill of the defendant as per the A.B.C.D. formula and given a bill of Rs.1,40,977.46 to the defendant. The defendant was also given a notice on dated 07.07.2005 by R.P.A.D. for payment of the said bill, but, though the said notice had been served on the defendant, he has not made any payment towards the bill, and hence, a bill of delay payment charges was also raised for Rs.52,353.15, and therefore, the final bill which the defendant has to pay has amounted to Rs.1,93,330.61.
9. Now, on the other hand the defendant has stated that the plaintiff company has demanded Rs.1,93,330.61 under different heads from the defendant and that the plaintiff company is not entitled to get the same. She has further stated that the plaintiff company has not conducted the checking of the meter of the defendant in her or her representative's presence, but, the defendant, has taken away the meter when there was nobody in the house. She has further stated that no tampering of the meter had been carried out by the defendant. The plaintiff company has made wrong allegations and prepared false papers and false case against the defendant, but, has not taken care to follow the due procedure. She has further stated that the plaintiff company has levied delay payment charges as Rs.52,353.15 which is unbearable. She has further stated that the plaintiff company has breached the mandatory provisions while carrying out the checking. She had further stated that no theft of electricity has been done by the defendant, but, the plaintiff company by setting aside the rules framed for preparation of bills have innovated a false bill by keeping prejudice towards the defendant.
10. Now, by perusing the evidence produced vide Exh.32 by the plaintiff company it transpires that the checking has been held by the squad of the plaintiff company on dated 24.07.2003, but, the defendant vide her deposition affidavit produced at Exh.52 has clearly mentioned that when the checking had been conducted she was not present there and that the house was locked and the officers have without her consent taken away the meter and prepared a one sided Rojkam. She has also stated that after the installation of the meter no panchnama or signature of the defendant had been taken to the effect that the meter was properly installed. The defendant further has stated that the meter is in the same position as the officers of the plaintiff company had left it after installation, and that nobody has tampered the same. She has also stated that the officers who had conducted the checking were not authorized, and hence, the plaintiff company has breached the mandatory provisions for conducting checking. She has also stated that as the house was locked the officers of the checking squad have just estimated the electric equipments inside the house and have prepared a bill which is totally false. It is also pertinent to note that the suit has been filed by Shri Himmatbhai Hargovindbhai Dave Page 8 of 35 C/SA/209/2018 JUDGMENT and the deposition affidavit has been given by Shri Tushar Chandravadan Vyas who is the employee of the plaintiff company, and hence, there is anomaly in the evidence of the plaintiff company. Shri Vyas has also admitted in his crossexamination that he was not a member of the checking squad which had carried out the checking of the meter of the defendant. He has further admitted that it is not in his knowledge that the employees of the plaintiff company who were regularly taking the reading of the meter had reported any tampering in the meter of the defendant. He has also admitted that he is not aware that the officers who had carried out the checking on dated 24.07.2003 had carried out the checking in compliance with the mandatory provisions laid down for such checking. He also had admitted that the acknowledgment receipt of the notice which had been sent to the defendant by R.P.A.D. has not been produced in the present suit. It is also pertinent to note that the meter of the defendant had not been sent to the laboratory which is also admitted by Shri Vyas. He has also admitted that the defendant has not been given the notice of AnnexureG which was compulsorily to be given to the defendant. One Shri Choksi who was the member of the checking squad has also given his examinationinchief vide Exh.42, but, nothing of much help to the plaintiff company has arisen from it. It is clear that the officers of the plaintiff company have breached the mandatory provisions, as no authority letter has been produced by them. The defendant has clearly refused of receiving any notice of the plaintiff company regarding the due payment of the defendant, but still, the plaintiff company has not produced any acknowledgment slip of the notice which had been sent to the defendant by R.P.A.D. It is also pertinent to note that, it has been stated by the officer of the plaintiff company that if the owner is not present while the checking is conducted then a representative is called, but then, the plaintiff is on one hand telling that the defendant was present and on the other hand he is telling that the representative of the defendant Shri Yakub Patel was called upon while the checking was being done. Now, these two statement in itself are contrary to each other.
So far as the question of time limitation is concerned, by perusing the Section56(2) of the Electricity Act - 2003, it is clear that the suit should be filed before the expiry of two years from the date of permanent disconnection of the electric supply. Now, here the plaintiff has filed the suit after the expiry of 2 years from the date of permanent disconnection which had taken place on dtd.24.07.2003, and hence, also the suit is liable to be dismissed, as the suit has been filed at 20.03.2006 which is after the expiry of 2 years from the date of disconnection of the electricity of the house of the defendant i.e.24.07.2003 and as far as the question of jurisdiction is concerned, this Court has the jurisdiction to entertain the present suit as the incident of checking has taken place on dated 24.07.2003 and the Page 9 of 35 C/SA/209/2018 JUDGMENT Special Court formulated for cases of theft of electricity, the State Electricity Supply Code has been amended with effect from dated 14.12.2005, and hence, the cases of theft of electricity which occur after this date shall have to be tried in the said Special Court.
7. The appellant being dissatisfied with the judgment and decree passed by the trial Court preferred the Regular Civil Appeal No.51 of 2009 in the District Court of Panchmahals at Godhra.
8. The lower appellate Court framed the following points for determination.
(1) Whether the appellants proves that Ld. trial court has committed an error on Issue No.1 to 4 holding that no checking was taken place on 24/07/2003 and plaintiff fails to prove that seal of meter was tempered with and representative of the defendant has refused to sign and no theft of electricity was taken place by the defendant?
(2) Whether the impugned Judgment and decree dated 28/07/2009 is erroneous, capricious and perverse ?
(3) What order ?
9. The findings recorded by the lower appellate Court on the points for determination are as under: (1) Point No.1 : In negative.
(2) Point No.2 : In negative.
(3) Point No.3 : As per final order.
10. The lower appellate Court dismissed the appeal filed by the appellant herein and thereby affirmed the judgment and decree passed by the trial Court while dismissing the suit. The findings recorded by the first appellate Court are as under:
14. Plaintiffs have filed the present suit for recovery of so called Page 10 of 35 C/SA/209/2018 JUDGMENT theft amount. Ld. advocate for the appellantplaintiff has argued that theft of electricity has been duly proved by the plaintiffcompany but Ld. trail court has not believed it.
As against this Ld. Advocate for the respondent has vehemently argued that looking to the admission made by plaintiff witness no procedure have been followed by the plaintiff. Theft has not been proved by the plaintiffcompany and hence Ld. trial court has rightly rejected the contention in respect of theft. When theft is not proved, no question of any tortuous damages arises. Suit of the plaintiff is based upon so called tortuous act, but plaintiff company failed to prove it.
15. Looking to the arguments of both the side on this aspect, deposition of the some witness is required to be taken in to consideration. Plaintiff witness Tushar Chandravadan Vyas has been examined on oath at Ex.27 during his examinationinchief he has produced application form at Ex.28, price list at Ex.29, testing report at Ex.30, checking sheet at Ex.32, forwarding letter at Ex.33, abstract of ledger at Ex. 34 and notice at Ex.35. During his crossexamination he has admitted as follows;
"It is true that I was not in checking squad and therefore, I do not have any personal information of this case. It is true that the checking report at Exh32 has not been prepared in my presence. It is true that the officers have not put their signatures in the said report in my presence. I do not know as to who are the officers and whose signatures are therein the report.
It is true that I cannot state as to whether the officers have followed mandatory provisions of the law or not. It is true that I have not carried out calculations mentioned in the suit. He can't state as to how much load respondent's house had. The difference can be found by comparing old and new meters. It is true that postal receipt of dispatching the notice as well as acknowledgment receipt thereof is not produced in the present case. It is true that copy of sending any such bill or evidence thereof is not produced. It is true that no any bill was issued upon the respondent after disconnecting the electricity connection. It is true that when customer himself is present, it is not required to obtain signature of his representative.
Looking to the admission made by plaintiff witness he has no personal knowledge about the so called checking sheet as well as so called incident. Therefore Ld. trial court has rightly discarded his evidence.
Thereafter Plaintiff has also examined another witness at Ex.42 Dilipkumar Ghanshyam Chowksi, who is said to be witness of incident, Page 11 of 35 C/SA/209/2018 JUDGMENT he has stated in his examinationinchief as follows;
On examining the said meter, no any protection was found on the cover. But, when its wiring was examined, the same appeared proper at that time. The said meter had three (3) body seals but on examining meticulously, it appeared that those seals were tampered and refitted.
further he has narrated about the incidence. During his cross examination he has admitted as follows;
It is true that I took police personnel and G.E.B. staff with me when I went for checking. And as per my say, at that time, Saberabibi and her representative Yakub Ismail Patel were present there. It is true that the respondent lady was alone when I went for checking.
It is true that I did not issue any receipt in connection with the seizing of meter.
I did not have any letter of authority at the time of checking. It is true that the meter can be seized after drawing panchnama in that regard.
Looking to the aforesaid admission corroboration is required, but no any other witness has been examined by the plaintiffcompany to corroborate witness Mr. Chowksi.
Ld. Advocate for the respondent has relied upon unreported judgment of Hon'ble High court. Hon'ble Gujarat High court in First Appeal 69 of 2011 PGVCL V/s. Samat Thariya Ramesh Kankhara observed as under;
"Even if one officer is examined for proving the checking sheet, the fact remains that no corroborative material whatsoever in support of the checking sheet is produced for showing that whether the inspection was genuinely made or not. There is no material as that of the wire or as of any instrument at which electricity power was used. The learned Judge has found that the case appears to have been drawn just to make a show and there is no genuineness in the so called theft as sought to be canvassed."
Looking to the aforesaid admission of both the witness examined by the plaintiffcompany which is on record and in view of the judicial pronouncement by Hon'ble Gujarat High court in First Appeal 69 of 2011 PGVCL V/s. Samat Thariya Ramesh Kankhara, it appears that no independent witness has been examined by the plaintiff about so called raid. When according to the version of the plaintiff, defendant was there why her signature is not taken upon Page 12 of 35 C/SA/209/2018 JUDGMENT checking sheet. It is not the case of the plaintiff that defendant was not present and therefore signature of the representative of the defendant has taken.
Moreover plaintiff have not examined other witness to corroborate the version of Mr.Chowksi. It appears that there were five members of the raiding team, but only one witness has been examined by the plaintiff. Thus, in view of the unreported judgment of Hon'ble Gujarat High court, version of the plaintiff is not believable.
Therefore Ld.trial court has rightly disbelieved the story of theft. Ld. trial court in its judgment page No. 10 and 11 have elaborately discussed why case of the plaintiff is not believable and no interference is required by this court.
Limitation;
16. Ld.Advocate Mr. Desai has argued that Ld.trial court has properly considered section 56 (2) of the Electricity Act. Ld. Trial court has misread the section and held that suit is not filed within time.
Mr. Bhatuk for the respondent has stated that Ld. trial court has assigned cogent reasons, suit is not filed within limitation. It is clear that connection was immediately disconnect though 15 days notice is required. No notice has been ever issued by the plaintiff, plaintiff has not produced slightest evidence in respect of issuance of notice or reception of notice. Alternatively as per the submission of Mr. Bhatuk,suit is based upon tortuous act and according to limitation act when suit is based upon tortuous act suit ought to have been filed within one year.
I have given thoughtful consideration upon the arguments of both the sides. Looking to the section 56 of Electricity Act it is as under;
56. Disconnection of supply in default of payment. (1) Where any person neglects to pay any charge for electricity or any sum other than a charge for electricity due from him to a licensee or the generating company in respect of supply, transmission or distribution or wheeling of electricity to him, the licensee or the generating company may, after giving not less than fifteen clear days' notice in writing, to such person and without prejudice to his rights to recover such charge or other sum by suit, cut off the supply of electricity and for that purpose cut or disconnect any electric supply line or other works being the property of such licensee or the generating company through which electricity may have been supplied, transmitted, distributed Page 13 of 35 C/SA/209/2018 JUDGMENT or wheeled and may discontinue the supply until such charge or other sum, together with any expenses incurred by him in cutting off and reconnecting the supply, are paid, but no longer:
PROVIDED that the supply of electricity shall not be cut off if such person deposits, under protest,
(a) an amount equal to the sum claimed from him, or
(b) the electricity charges due from him for each month calculated on the basis of average charge for electricity paid by him during the preceding six months, whichever is less, pending disposal of any dispute between him and the licensee.
(2) Notwithstanding anything contained in any other law for the time being in force, no sum due from any consumer, under this section shall be recoverable after the period of two years from the date when such sum became first due unless such sum has been shown continuously as recoverable as arrear of charges for electricity supplied and the licensee shall not cut off the supply of the electricity.
Looking to the section 56(2) suit ought to have been filed within two years. It is clear from the records that so called checking had taken place on 24/07/2003 and suit has been filed on 27/03/2006, from the two years. It is on records that no proof of sending or receiving of the notice has been produced by the plaintiff. Moreover, looking to the admission made by the plaintiff witness that no bill has been sent after disconnection. Thus, in absence of cogent evidence, limitation starting from the disconnection and therefore after detailed discussions, Ld. trial court has rightly believed that suit of the plaintiff is not filled within stipulated time. Ld. Advocate Mr. Desai has relied upon reported judgment of Hon'ble Gujarat High Court 2006(2) GLH page 375 Torrent power Vs Gayatri intermediates, but as discussed herein above so called checking had taken place on 24/07/2003 and present suit has been filed on 27/03/2006, therefore suit is not filled within two years as per section 56(2) of Electricity Act.
17. More over plaintiff has relied upon notice Ex.35, but looking to the date mentioned in Ex.35 it is overwritten, it appears that 2006 has been written as 2005, and in month column also '7' has been written as '3'. It appears from the records that no proof of sending or receiving of the notice Ex.35 has been produced by the plaintiff. Hence Ld.trial court has rightly held that suit is not filed within stipulated limitation.
18. On perusal of the impugned judgment, in the light of re appreciation of evidence, which is on record, in view of the aforesaid discussions, it is crystal clear that before passing decree, Trial Court has considered the above aspects and documentary evidence, which is Page 14 of 35 C/SA/209/2018 JUDGMENT on record before passing decree against the plaintiffcompany. Therefore Ld. Trial Court has passed said impugned judgment and decree is just and proper required no interference by this court.
19. In view of the above said deep discussions, findings arrived, reasons recorded and observations made, the present appeal is required to be dismissed Hence, following order is passed.
11. Being dissatisfied with the judgment and order passed by the lower appellate Court, the appellant - original plaintiff is here before this Court with this Second Appeal under Section100 of the Code of Civil Procedure.
12. On 25/07/2018, this Second Appeal came to be admitted on the following substantial questions of law.
1. Whether both the Courts below erred in not relying upon Section 14 of the Evidence Act or in other words, both the Courts below erroneously not resorted to Section 14 of the Evidence Act?
2. Whether both the Courts below erred in interpreting Section 56 of the Electricity Act read with the Limitation Act?
13. In this Second Appeal, I only intend to address myself on the question whether the two courts below committed any error in holding that the suit for recovery of money was time barred in view of the provisions of Section56(2) of the Electricity Act, 2003 [for short the Act, 2003]. It appears from the materials on record that the residential premises of the respondent herein was inspected by the officials of the appellant - Company for the purpose of checking the electricity meter. The officials noticed some tampering with the electricity meter and in such circumstances, the power was disconnected and the electricity meter was taken away by the officials for the purpose of testing in the official laboratory.
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14. It appears that thereafter, the appellant issued a notice dated 07/07/2005 by R.P.A.D. to the defendant demanding payment of Rs.1,40,977=46ps. towards the bill for the alleged theft of power and additional amount of Rs.52,353=15ps. was also raised towards the delayed payment charges and that is how in all an amount of Rs.1,93,330=61ps was claimed by the appellant from the respondent - defendant herein. As the defendant failed to make the payment, ultimately, the appellant filed a suit for recovery of the said amount on 27/03/2006. According to the two courts below, the suit should have been filed within two years from the date, the premises of the defendant were inspected and the meter was removed for the purpose of laboratory testing i.e. 24/07/2003. This period of limitation of two years has been calculated by the two courts below on the basis of Section56(2) of the Act, 2003.
15. Section56(2) of the Electricity Act, 2003 reads as under:
56. Disconnection of supply in default of payment(1) Where any person neglects to pay any charge for electricity or any sum other than a charge for electricity due from him to a licensee or the generating company in respect of supply, transmission or distribution or wheeling of electricity to him, the licensee or the generating company may, after giving not less than fifteen clear days notice in writing, to such person and without prejudice to his rights to recover such charge or other sum by suit, cut off the supply of electricity and for that purpose cut or disconnect any electric supply line or other works being the property of such licensee or the generating company though which electricity may have been supplied, transmitted, distributed or wheeled and may discontinue the supply until such charge or other sum, together with any expenses incurred by him in cutting off and reconnecting the supply, are paid, but no longer:
Provided that the supply of electricity shall not be cut off if such person deposits, under protest,
(a) an amount equal to the sum claimed from him, or
(b) the electricity charges due from him for each month calculated on Page 16 of 35 C/SA/209/2018 JUDGMENT the basis of average charge for electricity paid by him during the preceding six months, Whichever is less, pending disposal of any dispute between him and the licensee.
(2) Notwithstanding anything contained in any other law for the time being in force, no sum due from any consumer, under this section shall be recoverable after the period of two years from the date when such sum became first due unless such sum has been shown continuously as recoverable as arrear of charges for electricity supplied and the licensee shall not cut off the supply of the electricity.
16. What is relevant for the purpose of deciding this Second Appeal is Section56(2) of the Act, 2003 referred to above.
17. Let me give a fair idea about the legislative history of the Indian Electricity Act, 1910 which came to be repealed and the Electricity Act, 2003 came to be enacted.
Legislative History
18. Prior to the enactment of the Electricity Act, 2003 (hereinafter referred to as the "new Act" or "the 2003 Act"), while Sections 39 to 50 of the Indian Electricity Act, 1910 (hereinafter referred to as "the 1910 Act") provided for offences and penalties in prosecutions to be launched at the instance of the Government, State Electricity Board or an Electricity Inspector, neither the 1910 Act nor the Electricity (Supply) Act, 1948 (hereinafter referred to as "the 1948 Act") contained any direct or specific provision indicating as to how the authority or the licensee distributing electricity may make assessment of electricity charges in cases of theft of electricity or unauthorized use of electricity. Section 26(6) of the 1910 Act merely provided that where there was a difference or dispute about correctness of the meter recording consumption of electricity, the meter was required to be referred to the Electrical Inspector, an officer of the State Government, for his decision. In case the meter was found to be not correctly recording electricity Page 17 of 35 C/SA/209/2018 JUDGMENT supply, the Electrical Inspector was to estimate the electricity supplied during such time not exceeding six months when the meter was, in his opinion, not correct. It was held in several cases including the case of Hyderabad Vanaspathi Ltd. 1998 (4) SCC 470 that Section 26(6) only related to dispute about a defect in the meter and was not applicable to cases of malpractice and theft of electricity. Under Section 21(2) of the 1910 Act, a licensee and under Section 49 of the 1948 Act, the GEB (while distributing electricity to persons other than licensee) was empowered to frame terms and conditions for supply of electricity.
18.1 The Gujarat Electricity Board and the Ahmedabad Electricity Company, the two distribution licensees involved in this group, had framed their respective terms and conditions providing the formulae as to how the Board/the licensee was to charge consumers for theft of electricity and also for malpractices and providing an aggrieved consumer with the remedy of filing an appeal against the supplementary bill for recovering the amounts in theft cases. Such appeal would lie before the Appellate Committee of the GEB/AEC, as the case may be.
18.2 In exercise of the powers conferred by Section 49 of the Electricity (Supply) Act, 1948, the Gujarat Electricity Board had framed ?the Conditions and Misc. Charges for Supply of Electrical Energy? containing detailed provisions, inter alia, for assessment in cases of malpractice and theft of energy. Condition 33(A) defined "malpractice" as contravention by the consumer of any provision of the 1910 Act, the 1948 Act or the Rules framed thereunder and contravention of the Conditions and Miscellaneous Charges for Supply of Electrical Energy and, in particular, including the following cases : "(a) The supply of electricity by a consumer to any other person Page 18 of 35 C/SA/209/2018 JUDGMENT whose supply has been disconnected by the Board for any reason.
(b) Exceeding the contracted load by a consumer without the specific permission of the Board.
(c) Unauthorised addition, alteration and/or extension to the consumer's electrical installation without the permission of the Board.
(d) Using supply by a consumer form the service which has been disconnected by the Board for any reason.
(e) Supply of energy to any other person without the permission of the Board."
Condition 33(B) defined "theft of energy" as under : "Any consumer who dishonestly abstracts, consumes or uses any energy shall be deemed to have committed theft within the meaning of the Indian Penal Code and the existence of artificial means for such abstraction shall be prima facie evidence for such dishonest abstraction."
Condition 34 provided for payment for energy dishonestly used or abstracted or maliciously wasted or diverted in the manner specified therein. The condition also provided for remedy of review by the appellate authority on the appellant depositing 30% of the amount of the disputed bill out of which 15% was to be deposited first whereupon reconnection would be granted and another 15% of the amount of supplementary bill was to be paid within 30 days of reconnection and the appeal was to be heard thereafter. This concession was, however, not to be given to a consumer who was found to have committed theft on second or subsequent occasion. Detailed formulas were prescribed for assessment in theft cases depending on whether the consumer was a High Tension consumer or a Low Tension consumer, and also depending on categories such as industrial, residential and also depending on the Page 19 of 35 C/SA/209/2018 JUDGMENT product being manufactured etc..
18.3 Similarly, the AEC (now called Torrent Power Ahmedabad Electricity Co. Ltd.) had framed "Conditions of Supply and Miscellaneous Charges" under Section 21(2) of the 1910 Act. Condition No. 22 thereof defined ?malpractice? more or less in the same terms as condition 33(A) of GEB Conditions of Supply. Condition 23 of the AEC Conditions referred to theft of energy in terms of the relevant provisions of the 1910 Act. Part II of the conditions containing detailed provisions for assessment of charges also provided for appeal against assessment before the appellate authority (an officer not below the rank of a Senior Engineer/Deputy Manager). The appellant was, however, required to deposit 60% of the disputed bill amount for reconnection of electricity supply during pendency of the appeal; otherwise to deposit 20% of the disputed bill amount for the purpose of maintainability of the appeal.
Electricity Act, 2003 - Statutory provisions
19. When the Electricity Act, 2003 came to be enacted by Parliament, as per Section 185(1) thereof, save as otherwise provided in the said Act, the Indian Electricity Act, 1910, the Electricity (Supply) Act, 1948 and the Electricity Regulatory Commissions Act, 1998 came to be repealed.
To appreciate the controversy, it is necessary to consider the scheme of the Act. The Electricity Act, 2003 has been enacted to consolidate the laws relating to generation, transmission, distribution, trading and use of electricity and generally for taking measures conducive to development of electricity industry, promoting competition therein, protecting interests of consumer and supply of electricity to all areas, rationalization of electricity tariff, ... ... constitution of Regulatory Page 20 of 35 C/SA/209/2018 JUDGMENT Commission ... ... and for matters connected therewith or incidental thereto. All the provisions of the Act except Section 121 were brought into force on 10th June 2003 as per the Government of India notification dated 10th June 2003 published in the Gazette of the same date. As far as the State of Gujarat is concerned, the provisions were brought into force with effect from 10th December 2003 (vide the notification dated 10.7.2003 issued by the Government of Gujarat in exercise of the powers under Section 172(d) of the Act.).
Part III contains provisions relating to generation of electricity, Part IV contains provisions relating to licensing, Section 14 empowers the Appropriate Commission to grant a license to any person, inter alia, to distribute electricity as a distribution licensee or to undertake trading in electricity as an electricity trader in any area as may be specified in the license. A person already engaged in the business of transmission or supply of electricity under the repealed laws shall be deemed to be a licensee under this Act subject to other provisions of the Act. [The Gujarat Electricity Board succeeded by separate regional Companies in the State of Gujarat and the Ahmedabad Electricity Co. Ltd. now called "Torrent Power AEC Ltd." are accordingly deemed to be distribution licensees under the Act].
20. It is now necessary to refer to the following specific provisions of the new Act : 20.1 In part XII of the new Act dealing with investigation and enforcement, Section 126(1) provides that, if on an inspection of any place or premises or after inspection of the equipments, ... devices found connected or used, or after inspection of the records maintained by any Page 21 of 35 C/SA/209/2018 JUDGMENT 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". Explanation to Section 126 contains the following definitions :
(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."
Subsection (6) of Section 126 provides that the assessment under this section shall be made at a rate equal to oneandhalf times the tariff applicable for the relevant category of services specified in subsection (5) as under: Category of services Presumption regarding the period of unauthorised use Domestic and agricultural 3 months preceding the date of services inspection All other categories of services 6 months preceding the date of inspection Subsections (2) to (4) of Section 126 lay down the procedure for making the assessment, which broadly speaking, provides for compliance Page 22 of 35 C/SA/209/2018 JUDGMENT with the principles of natural justice by requiring the assessing officer to serve the order of provisional assessment upon the person in occupation or possession or in charge of the place or premises where electricity is supplied and giving a right to such person to file objections against the provisional assessment and thereafter a reasonable opportunity of hearing is to be afforded to such person before passing the final order of assessment of electricity charges payable by such person.
Section 127 enables any person aggrieved by the final order under Section 126 to prefer an appeal within thirty days before an appellate authority to be prescribed, but no such appeal shall be entertained unless 1/3rd of the assessed amount is deposited with the licensee. The order of the appellate authority shall be final. The defaulting consumer is also liable to pay interest at the rate of 16% per annum compounded every six months.
20.2 Part XIV of the new Act contains provisions relating to offences and penalties and also ouster of jurisdiction of Civil Court.
Section 135(1)(b) provides that whoever dishonestly
(a) ... ... ... ...
(b) tampers the meter, installs or uses a tampered meter, or uses any device or method which interferes with the proper or accurate meter of electricity or otherwise does an act whereby electricity is stolen or wasted,
(c) ... ... ... ...
so as to abstract or consume or use electricity shall be punishable with imprisonment upto three years or with fine or with both and also provides that the fine shall not be less than three times the financial Page 23 of 35 C/SA/209/2018 JUDGMENT gain on account of such theft of electricity. In case of second/subsequent conviction, more stringent penalties/sentences are provided including fine of not less than six times the financial gain.
The second proviso also raises a presumption against the consumer that if any artificial means or means not authorised by the Board or licensee 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. Clauses (a) and (c) of sub section (1) of Section 135 enumerate the other cases of theft of electricity with the same punitive consequences and read as under :
(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
(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.
Section 145 of the Act ousts the jurisdiction of the Civil Court 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 the Act to determine and no injunction shall be granted by any court or any other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under the Act.
[Section 143 read with Sections 29, 33 and 43 require the distribution licensee and generating Company to comply with certain Page 24 of 35 C/SA/209/2018 JUDGMENT directions in the matter of transmission and supply of electricity. Failure to comply with those directions shall result into imposition of penalty upon the licensee upon adjudication by a Member of the Appropriate Commission appointed as an adjudicating officer under Section 143 of the Act. We are not concerned with this adjudication].
Section 151 provides that no Court shall take cognizance of an offence punishable under the Act except upon a written complaint by the Government, the Commission, their authorized officer or the licensee. Section 152 makes the offence of theft of electricity punishable under the Act as compoundable, but compounding shall be allowed only once for any person or consumer.
20.3 Part XV of the Act contains provisions for constitution, powers and procedure of Special Courts.
Section 153 empowers the State Government to constitute Special Courts for the purposes of providing speedy trial of offences referred to in Sections 135 to 139. A Special Court consists of a single Judge who shall be appointed by the State Government with the concurrence of the High Court and he shall have been an Additional District & Sessions Judge before his appointment as a Judge of the Special Court.
Section 154 provides that the offences punishable under Sections 135 to 139 of the Act shall be triable only by the Special Court within whose jurisdiction such offence has been committed. The offence is to be tried in a summary way. Subsection (5) of Section 154 also empowers the Special Court to determine the civil liability against a consumer or a person in terms of money for theft of energy which shall be at least two times the amount as per the tariff rate applicable for a period of Page 25 of 35 C/SA/209/2018 JUDGMENT twelve months preceding the date of detection of theft of energy or the exact period of theft, if determined, whichever is less. The amount of civil liability so determined shall be recovered as if it were a decree of civil court. Subsection (6) also provides that in case the civil liability so determined finally by the Special Court is less than the amount deposited by the consumer or the person liable, the excess amount so deposited by the consumer or the person liable shall be refunded with interest at the prevailing bank rate.
Section 156 confers on the High Court the powers of appeal and revision against the orders of the Special Court as per the provisions of Chapters XXIX and XXX of Cr PC, as if the Special Court is a District Court, or as the case may be, the Sessions Court trying cases within the territorial jurisdiction of the High Court.
Section 157 confers powers of review on the Special Court on certain grounds.
20.4 Part VI of the New Act contains provisions with respect to distribution of electricity by licensees and recovery of charges.
Section 45(1) confers power on the distribution licensee to recover charges for the supply of electricity in accordance with such tariffs fixed from time to time and conditions of the license. Subsections (2), (3) and (5) read as under: "(2) The charges for electricity supplied by a distribution licensee shall be
(a) fixed in accordance with the methods and the principles as may be specified by the concerned State Commission;
Page 26 of 35 C/SA/209/2018 JUDGMENT
(b) ... .... .... ... ...
(3) The charge for electricity supplied by a distribution licensee may include
(a) a fixed charge in addition to the charge for the actual electricity supplied;
(b) ... ... ... ... ....
(5) The charges fixed by the distribution licensee shall be in accordance with the provisions of this Act and the regulations made in this behalf by the concerned State Commission."
(emphasis supplied) [Section 82 in Part X provides for constitution of State Electricity Regulatory Commission and also provides that the State Commission shall discharge such other functions as may be assigned to it under the Act. Section 181 in Part XVIII confers powers on the State Commissions to make, after previous publication, regulations consistent with the Act and the Rules generally to carry out the provisions of the Act including the provisions of Electricity Supply Code and also to make regulations for the form and manner of filing the appeal. The regulations to be framed by the State Commission shall be laid before each house of the State legislature].
To continue with Part VI, Section 50 of the Act is important and is required to be quoted verbatim.
"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, tampering, distress or damage to electrical plant, electric lines 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 Page 27 of 35 C/SA/209/2018 JUDGMENT plant or meter." (emphasis supplied) Section 56 empowers the licensee to disconnect electricity supply after giving atleast fifteen clear days' notice in writing and may discontinue the supply until the sums due and payable by the person liable together with any expenses incurred by the licensee in cutting and reconnecting the supply, are paid but no longer provided that the supply of electricity shall not be cut off if such person deposits, under protest, "(a) an amount equal to the sum claimed from him, or
(b) the electricity charges due from him for each month calculated on the basis of average charge for electricity paid by him during the preceding six months, whichever is less, pending disposal of any dispute between him and the licensee. [emphasis supplied] 20.5 Part VII contains provisions relating to tariff. Section 62 empowers the Appropriate Commission (which would be State Electricity Regulatory Commission for the present purposes) to determine the tariff in accordance with the provisions of this Act, inter alia, for retail sale of electricity.
20.6 Section 183 in Part XVIII confers power on the Central Government to remove difficulties within a period of two years from the date of coming into force of the Act.
21. It is not in dispute that the Electricity Act, 2003 [Except Section 121] was brought into force by the Central Government on 10th June 2003, but in the State of Gujarat, its provisions came to be applied with effect from 10th December, 2003.
22. Although the terms of license issued in favour of the AEC and the Page 28 of 35 C/SA/209/2018 JUDGMENT GEB under the Indian Electricity Act, 1910 and Electricity (Supply) Act, 1948 and the Conditions of Supply and Miscellaneous Charges framed by the said licensees under the said Acts continued to be operative till 9/12/2004, thereafter with effect from 10/12/2004, the distribution licenses in favour of those licensees continue to operate subject to their being in accordance with the provisions of the Electricity Act, 2003.
Indisputably, in the case on hand, the bill was raised for the first time on 07/07/2005. The period of limitation should have been calculated from 07/07/2005 onwards. If two years time period is to be calculated from 07/07/2005, then the suit filed by the appellant herein on 27/03/2006 was well within the period of limitation. The interpretation put forward by the two courts below as regards the Section56(2) of the Act is erroneous.
23. The reference to a charge for electricity due from a person to the licensee or, a generation company occurs in two contexts in the provisions of Section 56. The first context is Subsection (1) of Section 56 in which a neglect to pay a charge for electricity due to a licensee or a generating company can form the basis of a disconnection of supply of electricity if a notice of 15 clear days is given. The second context is Sub section (2) of Section 56 in which the recovery of a sum due from the consumer under the section is restricted to a period of two years from the date when such sum first became due. In construing the expression "due" the interpretation that is to be placed must be harmonized so as to be applicable both in the context of Subsection (1) and Subsection (2) of Section 56. A sum cannot be said to be due from the consumer unless a bill for the electricity charges is served upon the consumer. Any other construction would give rise to a rather anomalous or absurd result that a disconnection of supply would be contemplated even without the Page 29 of 35 C/SA/209/2018 JUDGMENT service of a bill. Though the liability of a consumer arises or is occasioned by the consumption of electricity, the payment falls due only upon the service of a bill. Thus, for the purposes of Subsection (1) and Subsection (2) of Section 56, a sum can be regarded as due from the consumer only after a bill on account of the electricity charges is served upon him. In fact, under the later part of Subsection (2) of Section 56 an exception is carved out to the principle that no sum due from the consumer shall be recoverable after a period of two years from the date when such sum became due. The exception is that when such sum is shown continuously as recoverable as arrears of charges for electricity supply. In other words where a bill continues to show the sum recoverable as arrears of charges for electricity supplied, the sum due can fall for recovery even after the expiry of a period of two years.
24. The interpretation which has been placed above on the expression "sum due" has also been accepted in a judgment of a Learned Single Judge of the Delhi High Court in H.D. Shourie's case. Mr. Justice B.N. Kirpal (as the Learned Chief Justice then was) construed the provisions of Section 24(1) of the earlier Electricity Act, 1910 under which an enabling provision was made for disconnection of electricity supply if a person neglected to pay any charge for energy which is due from him. The Learned Judge held that the expression "due" in Section 24 would not refer to the consumption of electricity but as being payable after a valid bill has been sent to the consumer The Court held as follows:
"As I read Section 24 of the Electricity Act and Section 28 of the Corporation Act, it appears to me that the amount of charges would become due and payable only with the submission of the bill and not earlier. As has been mentioned herein above, it is the bill which stipulates the period within which the charges are to be paid. The period which is provided is not less than 15 days after the receipt of the bill. If the word "due" in Section 24 is to mean consumption of electricity, and if the argument of the learned Counsel for the Page 30 of 35 C/SA/209/2018 JUDGMENT petitioner is correct, it would mean that electricity charges would become due and payable the moment electricity is consumed and if charges in respect thereof are not paid then even without a bill being issued a notice of disconnection would be liable to be issued under Section 24. This certainly could not have been the intention of the Legislature. Section 24 gives a right to the licensee to issue not less than 7 days' notice if charges due to it are not paid The word "due" in this context must mean due and payable after a valid bill has been sent to the consumer. It cannot mean 7 days' notice after consumption of the electricity and without submission of the bill. Even though the liability to pay may arise when the electricity is consumed by the petitioner, nevertheless it becomes due and payable only when the liability is quantified and a bill is raised. Till after the issue and receipt of the bill the respondents have no power or jurisdiction to threaten disconnection of the electricity which has already been consumed but for which no bill has been sent".
25. Section50 of the Electricity Act, 2003 empowers the State Commission to 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, restoration of supply and other cognate matters. In exercise of the power conferred by Section 50 the State Commission has framed the Gujarat Electricity Regulatory Commission (Electricity Supply Code and Other Conditions of Supply) Regulations, 2005 Regulation 15 provides for billing. Regulation 15.2 provides for the details of a bill. A bill is inter alia required to provide information of the date of the bill and the due date of payment. The due date of payment is therefore prescribed in the bill itself and obviously it is upon the dispatch of the bill that a due date is expected to occur. The bill is also required to provide for the arrears. The Regulations which were enacted in 2005 provide a clear indicator in respect of the due date for the payment of a bill Clause 15.5.1 provides thus:
15.5.1 The due date for the payment of a bill shall be mentioned on the bill and such due date shall be not less than twentyone days from the Page 31 of 35 C/SA/209/2018 JUDGMENT bill date in the case of residential and agricultural consumers, and not less than fifteen days in the case of other consumers.
26. Clearly, therefore the Regulations demonstrate that a bill falls due for payment on the date mentioned in the bill which is not to be less than 21 days and 15 days respectively from the bill date in the case of residential and agricultural consumers on one hand and the other consumers on the other hand.
27. Thus, the two courts below therefore were clearly in error in postulating that the claim was barred on the ground that the arrears of consumption became due immediately on the usage of energy.
28. In my view, the suit should not have been dismissed on the ground that the same was time barred.
29. My aforesaid view is forfeited by a Division Bench decision of the Jharkhand High Court in the case of Tata Steel Limited Vs. Jharkhand State Electricity Board And Others reported in 2008 AIR (Jhar) 99, wherein, the Court held as under:
5. According to Mr. Mittal, the learned single Judge has misinterpreted the provision of Subsection 2 of Section 56 of the Electricity Act, 2003. It is submitted that as per Section 56(2) of the Electricity Act, no demand can be raised for the first time after a period of two years from the date when such amount became 'first due' and such amount due, i.e. the arrears must be shown continuously in the current bills. But in the present case the demand raised in the impugned bills are of more than two years and the same were not shown as arrears in the current bills and, therefore, the same is hit by Section 56(2) of the Electricity Act. According to Mr. Mittal, the amount becomes "first due"
on the date when the electrical energy is consumed and the consumer is liable to pay the charges for such consumption.
6. On the other hand Mr. Rajesh Shankar, learned Counsel appearing for the Electricity Board, in support of the impugned judgment of the Page 32 of 35 C/SA/209/2018 JUDGMENT learned single Judge, has submitted that the amount "first due"
becomes not from the date of consumption of the electrical energy but it becomes due only when the demand is made by raising bills for consumption of such electrical energy. In support of his submission he has relied on a decision of the Single Bench of Delhi High Court in the case of H.D. Shourie v. Municipal Corporation of Delhi and Anr. .
7. In the impugned judgment the learned single Judge after discussing the intent and purport of Section 56(2) of the Electricity Act has held that the recovery of amount of the impugned bills cannot be said to be hit by provision of Section 56(2) of the Electricity Act 2003 and it cannot be said to be barred under the said provision of the Act. The learned single Judge has also noticed that Delhi High Court in the case of H.D. Shourie v. Municipal Corporation of Delhi and Anr. has also taken the same view.
8. After going through the impugned judgment, the decision of the Delhi High Court i.e. and after hearing the parties, we are of the view that when the consumer consumes electrical energy, he becomes liable to pay the charges for such consumption but, thereafter, when the Board raises bills as per the tariff, making specific demand from the consumer for payment of the amount for consumption of electrical energy then only amount becomes "first due" for payment of such consumption of electrical energy.
9. In view of the above findings, we further hold that the period of two years as mentioned in Section 56(2) of the Electricity Act, 2003 would run from the date when such demand is made by the Board, raising the bills against consumption of electrical energy. Consequently, we affirm the view the learned single Judge in the impugned judgment and, accordingly, having found no merit, this letters patent appeal is dismissed.
30. Mr. Hasurkar, the learned counsel appearing for the appellant put forward a contention that Section56(2) of the Act, 2003 will otherwise also have no application in the case on hand because the Electricity Act 2003 came into force in the State of Gujarat with effect from 10 th December 2003, whereas, the alleged theft was detected on 24/07/2003. On 24/07/2003, the Act 2003 was not in force. In support of his submission, he has placed reliance on a Division Bench decision of the Kerala High Court in the case of Abdul Nazer Vs. Karnataka State Electricity Board reported in 2006 AIR (Ker) 203, wherein, the Hon'ble Court [Coram: K.S. Radhakrishnan, J - as His Lordship then was] held Page 33 of 35 C/SA/209/2018 JUDGMENT as under:
5. Heard counsel on either side at length. A Division Bench of this Court in Southern India Marine Products Co. v. K.S.E.B. 1995(2) KLT 167 has taken the view that the relationship between the consumer and the Board is governed by the terms and conditions of the supply of electrical energy and therefore there is no question of limitation in reference to the arrears due. Liability to pay energy charges, in our view, is a continuing liability and the consumer cannot escape from that liability on the plea of limitation. The amount of energy charges was due to the Board prior to coming into force of the Indian Electricity Act, 2003. In our view, Section 56(2) of the Act would operate only prospectively. We may extract the said provision for easy reference.
56(2). Notwithstanding anything contained in any other law for the time being in force, no sum due from any consumer, under this section shall be recoverable after the period of two years from the date when such sum became first due unless such sum has been shown continuously as recoverable as arrear of charges for electricity supplied and the licensee shall not cut off the supply of the electricity.
Legislature never wanted that provision to operate retrospectively. Under such circumstance Board is right in its contention that the amount due from the consumer prior to the coming into force of the Electricity Act, 2003 could be recovered by revenue recovery proceedings since no time limit has been prescribed. Section 56(2) of the Act states that no sum due from any consumer under this Section shall be recoverable after the period of two years from the date when such sum became first due unless such sum has been shown continuously as recoverable as arrears of charges for electricity supplied and the licensee shall not cut off the supply of the electricity. Section 56(2) in our view is applicable only to amounts due after commencement of this Act. Under such circumstance we find no infirmity in Ext.P7 order. However, we are of the view, the demand of interest at the rate of 24% is exorbitant. We are therefore inclined to reduce the interest to 12%. The consumer is also not liable to pay collection charges if the amount is recovered otherwise than by revenue recovery proceedings. Rest of the order would stand. Writ Petition is accordingly dismissed, so also, the Writ Appeal.
31. I am not going into this issue for the simple reason that for the purpose of looking into the same, I will have to enter into the arena of facts. I am saying so because the appellant has not been able to clarify as Page 34 of 35 C/SA/209/2018 JUDGMENT to how the amount has been calculated. Is the entire amount claimed in the suit is for the period between 24/07/2003 and 27/03/2006 i.e. the date of institution of the suit? There is no clarity on this question.
32. So far as the question no.1 framed as regards the Section14 of the Evidence Act is concerned, I am of the view that it has nothing to do with the case on hand. Even after holding that the suit was not time barred, this Second Appeal would fail because the appellant has not been able to prove that there was tampering in the electricity meter.
33. In view of the above, this Second Appeal fails and is hereby dismissed.
(J.B.PARDIWALA, J) aruna Page 35 of 35