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2011 DIGILAW 2801 (RAJ)

Manoj Sharma v. Jodhpur Vidhyut Vitran Nitam

2011-12-20

GOPAL KRISHAN VYAS

body2011
Hon'ble VYAS, J.—A suit for declaration and injunction was filed by the petitioner-plaintiff before the Addl. Civil Judge (Jr.Div.) and Judicial Magistrate No.2, Bikaner along with an application for temporary injunction against the respondent-defendants, in which, it is pleaded that he has taken shop and house above the shop on rent from respondent No.3, for which, he is regularly making payment of rent as per the rent-deed. There is family dispute in between respondent No.3 and petitioner, therefore, respondent No.3 wants to evict the petitioner from the premises by any means. In the premises in which the petitioner-plaintiff is in possession as tenant, he has obtained electricity connection because he is running diagnostic center in the name of "Jeevanraksha Diagnostic Center" for which licence was obtained in the name of wife of the petitioner, Smt. Anju Sharma. 2. Respondents No.1 and 2 disconnected the electricity connection of the premises of the petitioner in pursuance of the vigilance checking made on 16.7.2007, for which, VCR No.205/43 was made. In pursuance of VCR, a settlement was arrived at in between the parties, under which, the amount was deposited by the petitioner in two equal installments. 3. The grievance of the petitioner is that again a vigilance checking was made on 6.8.2008 in the rented premises of the petitioner and a vigilance check report was prepared, in which, there is no allegation of tampering with the electricity meter and only allegation is with regard to breaking the outer body seal of the meter. A reply to the vigilance report was filed and, thereafter, the matter was compounded and amount of Rs.26,250/- was deposited by the petitioner. The respondent No.3 being landlord wants to evict the petitioner from the premises in question. It is worthwhile to observe that the electricity connection is in the name of respondent No.3 landlord but the petitioner being tenant is regularly depositing the amount, therefore, after second vigilance check for which the matter was compounded, a dispute arose when the provisional assessment was made by the Department and civil liability of Rs. 2,27,797/- was created by the Assistant Engineer against respondents; but, due to non-payment of the said demand electricity supply of the petitioner tenant has been discontinued. 4. In the suit, a temporary injunction application filed by the petitioner-plaintiff, he has challenged the validity of the outstanding civil liability raised by respondents No.1 and 2. 2,27,797/- was created by the Assistant Engineer against respondents; but, due to non-payment of the said demand electricity supply of the petitioner tenant has been discontinued. 4. In the suit, a temporary injunction application filed by the petitioner-plaintiff, he has challenged the validity of the outstanding civil liability raised by respondents No.1 and 2. The trial Court after hearing both the parties granted interim injunction in favour of the petitioner vide order dated 17.8.2011, whereby, specific direction was issued to the respondents to restore the electricity connection in the premises in question of the petitioner-plaintiff tenant. 5. Respondents No.1 and 2 preferred an appeal before the District Judge, Bikaner against the order dated 17.8.2011 passed by the trial Court in the temporary injunction application and, along with appeal, an application for stay was also filed under Order 41 Rule 5, read with Section 151, C.P.C. by defendants No.1 and 2 appellants. 6. Learned appellate Court stayed the order dated 17.8.2011 vide order dated 12.9.2011. The petitioner preferred writ petition before this Court against the stay order dated 12.2.2011 and the said writ petition was registered as S.B. Civil Writ Petition No. 9145/2011, in which, order was passed by this Court on 26.9.2011 to decide the appeal itself on 1.10.2011. 7. The appellate Court decided the appeal filed by respondent No.1 and 2 vide order dated 1.10.2011 whereby the appellate Court quashed the order of the trial Court dated 17.8.2011. In this writ petition, the petitioner-plaintiff is challenging the validity of judgment dated 1.10.2011 passed by the Addl. District Judge No.1, Bikaner in the appeal filed by respondents No.1 and 2. 8. In this writ petition, the petitioner-plaintiff is challenging the validity of judgment dated 1.10.2011 passed by the Addl. District Judge No.1, Bikaner in the appeal filed by respondents No.1 and 2. 8. Learned counsel for the petitioner vehemently argued that the trial Court after taking into consideration entire facts of the case rightly arrived at the finding that there is prima facie case in favour of the petitioner-plaintiff and balance of convenience is also in his favour because the petitioner-plaintiff is running diagnostic center under the name of "Jeevanraksha Diagnostic Center" for the public, therefore, it was specifically ordered by the trial Court to restore the electricity connection; but, the appellate Court below ignored all the facts of the case and while considering notification No.1156 dated 16.8.2007 filed by the respondent No.1 and 2 appellants before the appellate Court, held that petitioner-plaintiff is guilty of theft second time and upon the fact that second time the plaintiff has committed an offence of theft, for which, FIR No.16 was registered against him on 13.3.2010, in which, challan has been filed and the case is pending, therefore, order passed by the trial Court for re-connection of the electricity connection is totally illegal. Further, it is observed in the order that the appellant department is statutory public company and if any citizen has obtained an order against the statutory public body contrary to rules that cannot be treated to be a legal order. 9. Further, the appellate Court gave finding in para 15 of the judgment that the trial Court has committed an error while accepting the fact that at the time of executing the rent-deed, the landlord was in dominating position, therefore, the condition for depositing the electricity and water supply charges was incorporated in the rent-deed, therefore, the finding of the trial Court is not sustainable in law. It is also observed by the appellate Court that the petitioner and respondent No.3 both are son and mother and both of them want to act against the public body, therefore, no right is created in favour of either of the two. It is also observed by the appellate Court that the petitioner and respondent No.3 both are son and mother and both of them want to act against the public body, therefore, no right is created in favour of either of the two. The appellate Court set aside the order passed by the trial Court solely on the ground that as per notification dated 16.8.2007 if the offence of theft of electricity is committed second time, then, in the event of issuing civil liability the electricity supply cannot be restored till the incumbent satisfies the civil liability and deposits the amount of the demand raised in the civil liability. 10. Learned counsel for the petitioner submits that the said finding is totally contrary to the Electricity Act, 2003 because the appellate Court has not applied its mind, so also, has completely ignored the provisions of the Act and followed notification dated 16.8.2007 only and, in that, to, there is no such provision incorporated that in the event of registration of second FIR for alleged electricity theft the accused is required to satisfy the civil liability first and, before that, no electricity connection can be restored. Learned counsel for the petitioner invited my attention towards the said notification which is followed by the appellate Court and submits that there is no such provision in exercise; more so, it is provided that in the event of second or subsequent conviction of a person electricity connection cannot be restored; meaning thereby, the appellate Court has totally misdirected itself and without even perusing the provisions of the notification held that the trial Court has committed an error while passing the impugned order. 11. Learned counsel for the petitioner invited my attention towards Sections 126(3) of the Electricity Act, 2003, so also, Section 154(5) of the Act and submits that without any jurisdiction the respondents have illegally determined the civil liability while issuing Annex.7, in which, it is directed that for restoration of the electricity supply, Rs. 2,27,797/- shall be deposited first. 11. Learned counsel for the petitioner invited my attention towards Sections 126(3) of the Electricity Act, 2003, so also, Section 154(5) of the Act and submits that without any jurisdiction the respondents have illegally determined the civil liability while issuing Annex.7, in which, it is directed that for restoration of the electricity supply, Rs. 2,27,797/- shall be deposited first. According to the petitioner, there is no power or jurisdiction left with the respondents No.1 and 2 to determine the amount of civil liability in view of Section 154(5) of the Electricity Act, 2003, therefore, the order passed by the appellate Court is totally whimsical order which is based upon the notification dated 16.8.2007, and, in which no such provision for denial of the electricity connection prior to depositing the amount of civil liability is there. The provision is that in the event of conviction the electricity connection can be withheld, therefore, the appellate Court has committed serious error of law in quashing order passed by the trial Court. Hence, it is prayed that the impugned judgment/order passed by the appellate Court may be set aside. 12. Per contra, learned counsel appearing on behalf of the respondents submits that as per provisions of the Act, the matter can be compounded once; but, illegally, the second time, case for theft was committed by the petitioner-plaintiff, the concerned Assistant Engineer committed wrong while compounding the offence and directing the petitioner-plaintiff to deposit Rs. 26,250/-, therefore, the proceedings of compounding second time theft was totally wrong and it was felt necessary to make provisional assessment for the outstanding and, due to that reason, the assessment was made and petitioner was directed to deposit civil liability of Rs. 2,27,797/- while deducting the earlier deposited amount of Rs. 26,250/-. Therefore, if any proceedings for compounding the offence was made second time by the Assistant Engineer that cannot be termed as legal proceedings. Hence, the appellate Court rightly arrived at the finding that as per notification dated 16.8.2007 the assessment has rightly been made and petitioner-plaintiff is under obligation to pay that amount and without that the electricity connection cannot be restored. With above submission, it is prayed that for the offence of theft second time, it is felt necessary by respondents No. 1 and 2 to make the provisional assessment, under which, civil liability has been raised against the petitioner for depositing the amount of Rs. With above submission, it is prayed that for the offence of theft second time, it is felt necessary by respondents No. 1 and 2 to make the provisional assessment, under which, civil liability has been raised against the petitioner for depositing the amount of Rs. 2,27,797/-, which is perfectly in accordance with law. The petitioner is not entitled for restoration of electricity connection without first depositing the entire amount of civil liability raised after provisional assessment by the Department, therefore, this writ petition may be dismissed. 13. After hearing learned counsel for the parties, I have perused the entire record of the case and provisions of the Electricity Act, 2003. 14. In this case, it is admitted position of the case that the plaintiff-petitioner and defendant No.3 both are tenant and landlord and, in the rented premises of the petitioner-plaintiff, there is electricity connection in the name of defendant Smt. Saroj Sharma. It is also admitted position of the case that a vigilance inspection was made on 16.6.2007, in which, it was observed that offence is punishable under Sec. 135 of the Electricity Act but the matter was compounded and the petitioner deposited the amount as per the outstanding raised by the respondents No.1 and 2, being tenant in the premises. 15 . Thereafter, again, an inspection was made on 6.8.2008 and FIR was filed against the petitioner-plaintiff for theft of electricity, in which, after investigation, challan has been filed and the petitioner-plaintiff is facing trial in the Court. In this case, the precise question is whether during the pendency of the civil suit or without adjudication by the special Court as per provisions of laid down in Section 154 of the Electricity Act, 2003 any civil liability can be determined by the respondent company. Further, whether second time offence can be compounded. 16. In this connection, first of all, I have examined Section 154 of the Act, in which, there is provision for compounding the offence. Further, whether second time offence can be compounded. 16. In this connection, first of all, I have examined Section 154 of the Act, in which, there is provision for compounding the offence. In this section, it is specifically provided in Section 152(4) that compounding an offence under sub-section (1) shall be allowed only once for any person or consumer; meaning thereby, the compounding of offence is not permissible if any offence is committed second time; but, at the same time, there is provision under Section 154 of the Act of 2003, in which, the procedure and power of special Court is provided which reads as under : "Section 154. (Procedure and power of Special Court).—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, every offence punishable under Sections 135 to 140 and Section 150 shall be triable only by the Special Court within whose jurisdiction such offence has been committed. (2) Where it appears to any Court in the course of any inquiry or trial that an offence punishable under Sections 135 to 139 in respect of any offence that the case is one which is triable by a Special Court constituted under this Act for the area in which such case ahs arisen, it shall transfer such case to such Special Court, and thereupon such case shall be tried and disposed of by such Special Court in accordance with the provisions of this Act : Provided that it shall be lawful for such Special Court to act on the evidence, if any, recorded by any court in the case of presence of the accused before the transfer of the case to any Special Court : Provided further that if such Special Court is of opinion that further examination, cross-examination and re-examination of any of the witnesses whose evidence has already been recorded, is required in the interest of justice, it may re-summon any such witness and after such further examination, cross-examination or re-examination, if any, as it may permit, the witness shall be discharged. (3) The Special Court may, notwithstanding anything contained in sub-section (1) of Section 260 or Section 262 of the Code of Criminal Procedure, 1973, try the offence referred to in sections 135 to 139 in a summary way in accordance with the procedure prescribed in the said Code and the provisions of sections 263 to 265 of the said Code shall, so far as may be, apply to such trial : Provided that where in the course of a summary trial under this subsection, it appears to the Special Court that the nature of the case is such that it is undesirable to try such case is summary way, the Special Court shall recall any witness who may have been examined and proceed to re-hear the case in the manner provided by the provisions of the said Code for the trial of such offence : Provided further that in the case of any conviction in a summary trial under this section, it shall be lawful for a Special Court to pass a sentence of imprisonment for a term not exceeding five years. (4) A Special Court may, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to, any offence tender pardon to such person on condition of his making a full and true disclosure of the circumstances within his knowledge relating to the offence and to every other person concerned whether as principal or abettor in the commission thereof, and any pardon so tendered shall, for the purposes of Section 308 of the Code of Criminal Procedure, 1973, be deemed to have been tendered under Section 307 thereof. (5) The Special Court shall determine the civil liability against a consumer or a person in terms of money for theft of energy which shall not be les than an amount equivalent to two times of the tariff rate applicable for a period of twelve months preceding the date of detection of theft of energy or the exact period of theft if determined whichever is less and the amount of civil liability to determined shall be recovered as if it were a decree of civil Court. (6) In case the civil liability so determined finally by the Special Court is less than the amount deposited by the consumer or the person, the excess amount so deposited by the consumer or the person, to the Board or licensee or the concerned person, as the case may be, shall be refunded by the Board or licensee or the concerned person, as the case may be, within a fortnight from the date of communication of the order of the Special Court together with interest at the prevailing Reserve Bank of India prima lending rate for the period from the date of such deposit till the date of payment. Explanation.—For the purposes of this section, "civil liability" means loss or damage incurred by the Board or licensee or the concerned person, as the case may be, due to the commission of an offence referred to in sections 135 to 139." 17. According to Section 154(5), the Special Court having jurisdiction to determine the civil liability against a consumer or a person in terms of money for theft of energy which shall not be less than an amount equivalent to two times of the tariff rate applicable for a period of twelve months preceding the date of detection of theft of energy or the exact period of theft if determined whichever is less and the amount of civil liability so determined shall be recovered as if it were a decree of civil Court; meaning thereby, after filing challan against the incumbent for second offence the special Court, during the trial, can determine the civil liability and this power is vested with the Special Court and none else; but, here, in this case, vide Annex.7, the Assistant Engineer, CSD-IV of the respondent company determined the civil liability for which he has no jurisdiction to do so and, now, respondents No.1 and 2 are compelling the petitioner to deposit the entire amount knowing it well that criminal case is still pending and power is left with the special Court for determination of the civil liability. 18. 18. Under Section 126(3), there is specific provision for provisional assessment, in which, it is provided that a 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. But, here, in this case, ignoring the provisions of Section 126(3), straight away, respondents No.1 and 2 determined the civil liability under the head of "provisional assessment" and they are compelling the petitioner to deposit the entire amount and, in the event of not depositing the said amount, the respondents are not restoring the electricity connection of the petitioner. 19. After perusing above provisions contained in Section 126(3), so also, provisions of Section 154, I am of the opinion that the learned Addl. District Judge No.1, Bikaner has miserably failed to even look into the provisions of the Act and while ignoring the provisions of the Act, straight away, decided the appeal in casual manner. 20. It is also worthwhile to observe that learned Addl. District Judge No.1 has relied upon the notification dated 16.8.2007 but, in that also, following provision is there for not restoring the electricity connection in proviso to para 2(1)(e) which reads as under : "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 find 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 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 and subsequent conviction of a person where 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 section." 21. Upon perusal of the above proviso to para 2(1)(e) in the said notification, it is revealed that such action can be taken in the event of second or subsequent conviction. Here, in this case, still the trial is pending for alleged second theft against the petitioner-plaintiff, therefore, it appears that the order of the appellate Court is in contravention of the notification also. 22. In my opinion, the appellate Court has not only ignored the provisions of the Electricity Act, 2003 but has dared to observe in the order that as per notification dated 16.8.2007 there is provision for not restoring the electricity connection if any FIR is filed for second offence. In fact, the words used in the notification are, "in the event of second or subsequent conviction" and not registration of the FIR, therefore, it is clear from the above discussion that order passed by the Addl. District Judge No.1, Bikaner in appeal No. 14/2011 is not sustainable in law. More so, it is in contravention of the statutory provisions of law. 23. It is also material to observe that the alleged second offence of theft was committed by the petitioner on 6.8.2008, for which, the matter was compounded and Rs. 26,250/- were deposited by the petitioner and electricity connection was restored. Now, while passing an order for provisional assessment and fixing civil liability, the respondents reviewed the matter which was earlier compounded and petitioner was directed to deposit Rs. 26,250/- solely on the ground that as per provisions of the Act second theft is not compoundable. 24. 26,250/- were deposited by the petitioner and electricity connection was restored. Now, while passing an order for provisional assessment and fixing civil liability, the respondents reviewed the matter which was earlier compounded and petitioner was directed to deposit Rs. 26,250/- solely on the ground that as per provisions of the Act second theft is not compoundable. 24. It is very strange that for the purpose of reviewing the matter which was earlier compounded the respondents are taking shelter of the Act; but, for the purpose of determination of civil liability, they completely ignored Section 154(5) of the Act and without waiting for the adjudication of the Special Court and determination of the civil liability by the Court, passed order for depositing Rs. 2,27,797/-, that too, after three years. In my opinion, on this count also, the action of the respondents is not sustainable in law. 25. In this view of the matter, I deem it appropriate to exercise power under Articles 226 and 227 of the Constitution of India and quash order passed by the appellate Court dated 1.10.2011 and restore the order passed by the trial Court dated 17.8.2011. 26. As a result, this writ petition is allowed. Order dated 1.10.2011 passed by the appellate Court in Appeal Order No. 49/2011 is quashed and set aside and order dated 17.8.2011 passed by the Addl. Civil Judge (Jr. Div.) No.2, Bikaner in Civil Misc. Case No. 86/2011 is hereby restored. Further, the respondents are directed to restore the electricity connection in the petitioner's premises forthwith in pursuance of order dated 17.8.2011 passed by the trial Court. No order as to costs.