Research › Search › Judgment

Orissa High Court · body

2012 DIGILAW 71 (ORI)

Debendra Kumar Sahoo v. Superintending Engineer-cum-Authorised Officer, Balasore Electricity Circle, Balasore

2012-02-08

S.K.MISHRA

body2012
ORDER 08.02.2012 - Heard learned counsel for the petitioner and learned counsel for the opposite parties. A subtle but interesting question, arises in this writ petition. The petitioner being the owner of an Ambassador Car, bearing No.OR-02-M-6169, has assailed the order passed by the Authorized Officer-cum-Superintending Engineer, Electrical Circle, Balasore, on 18.06.2004 in Confiscation Case No.1/03-04, whereby the vehicle in question has been confiscated to the State. In course of hearing the facts of the case are not disputed. On 21.08.2003 at 3 A.M.., while a team of the police department was performing patrolling duty, they intercepted the aforesaid car and found 4 bundles of Aluminium supply line conductor together with some tools and cutting weapons. They seized the car and initiated a criminal case, bearing Bhadrak P.S. Case No.117 of 2003 for the offence under Section 3 of the Orissa Electric Supply Line Material (Unlawful Possession) Act, 1988, hereinafter referred to as "the Act of 1988" and under Section 136(6) of the Electricity Act, 2003, hereinafter referred to as "the Electricity Act" for brevity Thereafter, the matter was reported to the Authorized Officer under the Electricity Act and a confiscating proceeding was initiated. The confiscation proceeding came for final disposal on 18.06.2004, wherein the Authorized Officer-Cum-Superintending Engineer, Electrical Circle, Balasore ordered that the vehicle bearing No.OR-02-M-6169, Ambassador Car along with the supply line materials and the cutting weapons seized by the Police and handed over for confiscation, are confiscated to the State. In course of hearing, the learned counsel for the petitioner contended that the occurrence took place on 21.08.2003. The Electricity Act has come into force on 10.06.2003. In view of the aforesaid Act, the provisions of the Act, 1988 being repugnant to the Central Statute was not in force, and therefore, any action taken by the Authorized Officer in pursuance of the Section 7 of the Act, 1988 is null and void. The learned counsel for the opposite parties, on the other hand, vehemently challenges the submissions made by learned counsel and submits that as yet the Act, 1988 is in force and the Authorized Officer is competent to order for confiscation for any vehicle, tools, etc. as it has not been specifically repealed under Section 185 of the Electricity Act. In order to appreciate the dispute involved in this writ petition, it shall be profit at He to note the various provisions of the relevant Acts. as it has not been specifically repealed under Section 185 of the Electricity Act. In order to appreciate the dispute involved in this writ petition, it shall be profit at He to note the various provisions of the relevant Acts. Section-7 of the Act, 1988 provides for confiscation of seized articles. At sub-section (1), it provides that where any officer seized electric material or where any such electric supply line material is produced before him or is made over to him by the police, he shall, if satisfied that a offence under the Act has been committed in respect thereof, order the confiscation of the electric supply line material together with tolls, ropes, chains, vehicles, vessels arid any other conveyances used for such committing the offence within the prescribed time. Provided, further, that no order of confiscating any electric supply line material or any tools, ropes, etc used in committing the offence unless the person from whom the property it seized is given, a notice in writing informing the grounds on which it is proposed to confiscate such property, tools, ropes, etc. and an opportunity of making representation in writing within such reasonable time as were specified in the notice against the grounds of confiscation and a reasonable opportunity of being heard in the matters. Sub-section 2 provides for an exception, which is not relevant for the purpose of this case. and an opportunity of making representation in writing within such reasonable time as were specified in the notice against the grounds of confiscation and a reasonable opportunity of being heard in the matters. Sub-section 2 provides for an exception, which is not relevant for the purpose of this case. Section 136 of the Electricity Act provides for theft of electric lines and materials, which reads as follows: "(1) Whoever, dishonestly - (a) cuts or removes or takes away or transfers any electric line, material or meter from a tower, pole, any other installation or place of installation or any other place, or site where it may be rightfully or lawfully stored, deposit, kept, stocked, situated or located, including during transportation, without the consent of the licensee or the owner, as the case may be, whether or not the act is done for profit or gain; or (b) stores, possesses or otherwise keeps in his premise, custody or control, any electric line, material or meter without the consent of the owner, whether or not the act is committed for profit or gain; or (c) loads, carries, or moves from one place to another any electric line, material or meter without the consent of its owner, whether or not the act is done for profit or gain, is said to have committed an offence of theft of electric lines and materials, and shall be punishable with imprisonment for a term which may extend to three years or with fine or with both. (2) If a person, having been convicted of an offence punishable under Sub-section (1) is again guilty of an offence punishable under that sub-section, he shall be punishable for the second or subsequent offence for a term of imprisonment which shall not be less than six months but which may extend to five years and shall also be liable to fine which shall not be less than ten thousand rupees." This provision of Section 136 is comparable to Section 3 of the Act, 1988, which provides for penalty for unlawful possession of electric supply line material. It is not disputed, at this stage, that no provision similar to Section 7 of the Act, 1988 is there in the Electricity Act of 2003. It is not disputed, at this stage, that no provision similar to Section 7 of the Act, 1988 is there in the Electricity Act of 2003. Thus, the question now arises whether the Orissa Electric Supply Line Material (Unlawful Possession) Act 1988 is still in force in pursuance whereupon the Authorized Officer can confiscate the seized materials like the electric supply line, tools vehicles etc. Section 185 of the Electricity Act provides for repeal and saving which reads as follows: "(1) Save as otherwise provided in this Act, the Indian Electricity Act, 1910 (9 of 1910), the Electricity (Supply) Act, 1948 (54 of 1948) and the Electricity Regulatory Commission Act, 1998 (14 of 1998) are hereby repealed. (2) Notwithstanding such repeal, (a) anything done or any action taken or purported to have been done or taken including any rule, notification, inspection, order or notice made or issued or any appointment, confirmation or declaration made or any licence, permission, authorization or exemption granted or any document or instrument executed or any direction given under the repealed laws shall, insofar as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this Act. (b) the provisions contained in Sections 12 to 18 of the Indian Electricity Act, 1910 (9 of 1910), and rules made thereunder shall have effect until the rules under Sections 67 to 69 of this Act are made; (c) the Indian Electricity Rules, 1956 made under Section 37 of the Indian Electricity Act, 1910 (9 of 1910) as it stood before such repeal shall continue to be in force till the regulations under Section 53 of this Act are made. (d) all rules made under Sub-section (1) of Section 69 of the Electricity (Supply) Act, 1948 (54 of 1948) shall continue to have effect until such rules are rescinded or modified, as the case may be; (e) all directives issued, before the commencement of this Act, by a State Government under the enactment specified in the Schedule shall continue to apply for the period for which such directions were issued by the State Government. (3) The provisions of the enactments specified in the Schedule, not inconsistent with the provisions of this Act, shall apply to the States in which such enactment are applicable. (3) The provisions of the enactments specified in the Schedule, not inconsistent with the provisions of this Act, shall apply to the States in which such enactment are applicable. (4) The Central Government may, as and when considered necessary, by notification, amend the Schedule. (5) Save as otherwise provided in Sub-section (2), the mention of particular matters in that Section, shall not be held to prejudice or affect the general application of Section 6 of the General Clauses Act, 1897 (10 of 1897), with regard to the effect of repeals." Thus, it is clear that any Act passed by any legislature, which is not mentioned or listed in the schedule of enactment attached to the Act itself, shall be deemed to have been repealed by necessary implication because of the fact that Section 174 of the Act provides for overriding effect of the Electricity Act. It lays down that save as otherwise provided in Section 173, the provisions of the Act shall have the effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or instrument having effect by virtue of law other than the Act, 2003. The attention of the Court was also drawn to the provision of the Article 254 of the Constitution of India, which provides that whenever there is inconsistency between laws made by the Parliament and the laws made by the legislatures of the State with respect to any entries of the concurrent list then the law made by the Parliament whether passed before or after the law made by the legislature of the State shall prevail and the law made by the legislature shall, to the extent of repugnance, be void. In the aforesaid view of the matter, this Court comes to the conclusion that Section-7 of the Orissa Electric Supply Line Material (U.P.) Act, 1988 is not in force any more as the same is deemed to have been repealed by necessary implications on the passing of the Electricity Act, 2003. As such any proceeding undertaken in pursuance thereof after the passing of the Electricity Act shall be null and void. Hence, this Court comes to the conclusion that the order passed by the learned Authorized Officer-cum-Superintending Engineer, Electrical Circle, Balasore on 18.06.2004 in Annexure-8 is without jurisdiction and the same is, therefore, quashed. As such any proceeding undertaken in pursuance thereof after the passing of the Electricity Act shall be null and void. Hence, this Court comes to the conclusion that the order passed by the learned Authorized Officer-cum-Superintending Engineer, Electrical Circle, Balasore on 18.06.2004 in Annexure-8 is without jurisdiction and the same is, therefore, quashed. The vehicle be immediately released in favour of the petitioner on production of certified copy of this order. The Writ Petition is accordingly disposed of. Requisites be filed for communication of this order within three days. Petition disposed of.