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Rajasthan High Court · body

2014 DIGILAW 1168 (RAJ)

Dashmesh Ice & Oil Factory v. Jaipur Vidyut Vitran Nigam Limited

2014-05-19

M.N.BHANDARI

body2014
JUDGMENT With the consent of parties, writ petition is heard finally. Learned counsel for petitioner submits that a case of theft of electricity was detected by the respondents and thereupon FIR was registered. The petitioner has already deposited the compounding charges but connection has not been restored. A direction is thus sought on the respondents to restore the connection. It is moreso when compounding charges were paid in pursuance of direction of this court. The respondents have erroneously taken a plea regarding non-deposition of provisional amount towards civil liability ignoring the fact that theft cases have to be dealt with as per Section 135 read with Section 154 of Indian Electricity Act, 2003 (in short Act, 2003). The determination of civil liability can be made only by the Special Court. The respondents themselves have admitted that Section 126 of the Act, 2003 has no application to the instant case. In view of the above, they were under an obligation to restore the electricity connection on payment of compounding charges and so far as civil liability is concerned, it can be demanded on its determination by the Special Court as given under Section 154 of the Act, 2003. Reference of judgment of this court in the case of Manoj Sharma vs. Jodhpur Vidhyut Vitran Nigam & other, reported in 2012 (2) WLC 290 has been given. Therein, similar controversy was determined and it was held that the provisional assessed amount of civil liability cannot be enforced by the respondents. A direction was given to restore the electricity connection of the petitioner. In view of the above, writ petition may be allowed with the direction to the respondents to restore the electricity connection. Learned counsel for respondents opposed the petition and submitted that theft cases are dealt with under Part XIV of the Act. As per provisions made thereunder, the electricity charges or assessed amount determined by the licensee or supplier is to be deposited to seek restoration of connection. It however remains subject to final determination of civil liability by the Special Court under Section 154 of the Act, 2003. If the amount, so deposited by the consumer as per third proviso to Section 135(1A) is found to be more than final assessment of civil liability by the Special Court, it has to be refunded by the Electricity Board. It however remains subject to final determination of civil liability by the Special Court under Section 154 of the Act, 2003. If the amount, so deposited by the consumer as per third proviso to Section 135(1A) is found to be more than final assessment of civil liability by the Special Court, it has to be refunded by the Electricity Board. To support the arguments and provisions, reference of Supply Code of Rajasthan Electricity Regulatory Commission (RERC) for action in case of theft of electricity has been given wherein method of restoration of electricity connection has been prescribed. It specifies that on provisional determination of electricity charges, the amount has to be deposited by the consumer to seek restoration. In the background, the petitioner is under an obligation to first deposit the amount so determined by the respondents. On deposition of the amount, the connection would be restored immediately. The deposition of amount therein would however remain subject to final determination of civil liability by the Special Court and if amount deposited by the petitioner is found to be more than final civil liability, it would be refunded as per Section 154(6) of the Act, 2003. Learned counsel for respondents further submits that in the case of Manoj Sharma (supra), provisions of Section 154(6) so as the Supply Code was not brought to the notice of the court which are otherwise relevant to give proper interpretation of the provisions of Section 135 and 154 of the Supply Code. In view of the above, this court may determine the issue in reference to the provisions relevant to the case. I have considered the rival submissions made by the parties and perused the record. It is not in dispute that a case of theft has been registered against the petitioner and FIR was lodged. The cases of theft of electricity are dealt with in Part XIV and XV of the Act, 2003. It provides for offence and penalties apart from jurisdiction of the Special Court in the case of theft. Part XV provides about Special Court, etc. Reference of Section 135 and 154 of the Act, 2003 has been given thus are reproduced hereunder for ready reference: “135. It provides for offence and penalties apart from jurisdiction of the Special Court in the case of theft. Part XV provides about Special Court, etc. Reference of Section 135 and 154 of the Act, 2003 has been given thus are reproduced hereunder for ready reference: “135. Theft of electricity – (1) Whoever, dishonestly –– (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 supplier, as the case may be. (b) Tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted. (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. (d) Uses electricity through a tampered meter. (e) Uses electricity for the purpose other than for which the usage of electricity was authorised so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or with both: Provided that in a case where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use –– (i) Does not exceed 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction the fine imposed shall not be less than six times the financial gain on account of such theft of electricity. (ii) Exceeds 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction, the sentence shall be imprisonment for a term not less than six months but which may extend to 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 station: Provided also that if it is proved that any artificial means or means not authorized by the Board or licensee or supplier, as the case may be, exist for the abstraction, consumption or use of electricity by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of electricity has been dishonestly caused by such consumer. (1A) Without prejudice to the provisions of this Act, the licensee or supplier, as the case may be, may, upon detection of such theft of electricity, immediately disconnect the supply of electricity: Provided that only such officer of the licensee or supplier, as authorised for the purpose by the Appropriate Commission or any other officer of the licensee or supplier, as the case may be, of the rank higher than the rank so authorised shall disconnect the supply line of electricity: Provided further that such officer of the licensee or supplier, as the case may be, shall lodge a complaint in writing relating to the commission of such offence in police station having jurisdiction within twenty four hour from the time of such disconnect: Provided also that the licensee or supplier, as the case may be, on deposit or payment of the assessed amount or electricity charges in accordance with the provisions of this Act, shall, without prejudice to the obligation to lodge the complaint as referred to in the second proviso to this clause, restore the supply line of electricity within forty-eight hours of such deposit or payment. (2) Any officer of the licensee or supplier as the case may be, authorized in this behalf by the State Government may –– (a) Enter, inspect, break open and search any place or premises in which he has reason to believe that electricity has been or is being, used unauthorisedly. (b) Search, seize and remove all such devices, instruments, wires and any other facilitator or article which has been or is being, used for unauthorized use of electricity. (c) Examine or seize any books of account or documents which in his opinion shall be useful for or relevant to, any proceedings in respect of the offence under sub-section (1) and allow the person from whose custody such books of account or documents are seized to make copies thereof or take extracts therefrom in his presence. (c) Examine or seize any books of account or documents which in his opinion shall be useful for or relevant to, any proceedings in respect of the offence under sub-section (1) and allow the person from whose custody such books of account or documents are seized to make copies thereof or take extracts therefrom in his presence. (3) The occupant of the place of search or any person on his behalf shall remain present during the search and a list of all things seized in the course of such search shall be prepared and delivered to such occupant or person who shall sign the list: Provided that no inspection, search and seizure of any domestic places or domestic premises shall be carried out between sunset and sunrise except in the presence of an adult male member occupying such premises. (4) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974), relating to search and seizure shall apply, as far as may be, to searches and seizure under this Act.” “154. Procedure and power of Special Court.-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), 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. Procedure and power of Special Court.-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), 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 140 and section 150 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 has 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 resummon 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 (2 of 1974), try the offence referred to in sections 135 to 140 and section 150 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 sub-section, it appears to the Special Court that the nature of the case is such that it is undesirable to try such case in summary way, the Special Court shall recall any witness who may have been examined and proceed to rehear 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 (2 of 1974), 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 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. (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 prime 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 140 and section 150.” Sub-section (1A) to Section 135 provides that licensee or supplier, as the case may be upon direction, immediately disconnect supply of electricity on its theft. The third proviso of sub-section 1A of Section 135 provides for deposit or payment of assessed amount of electricity charges in accordance with the provisions of the Act and it would be without prejudice to the obligation to lodge complaint as referred to in the second proviso to the clause. It however directs to restore supply of electricity within 48 hours of such deposit or payment. The aforesaid proviso does not make a reference about compounding charges but assessment of electricity charges in accordance to the provisions of the Act, 2003. Section 154(5) no doubt provides for determination of civil liability by the Special Court but sub-section (6) cannot be ignored therein. It provides for refund of amount if deposited by the licensee in excess to the civil liability finally assessed by the Special Court. The use of word finally under Section 154(6) is material. When the question of final civil liability can come. The obvious answer is when earlier provisional determination was made. In a case of theft, disconnection of electricity will take place followed assessment of electricity charges as provided under Section 135(1A) of the Act, 2003. It can be restored if assessed amount is deposited as per third proviso to Section 135(1A) and civil liability would be determined by the Special Court thereupon finally. In a case of theft, disconnection of electricity will take place followed assessment of electricity charges as provided under Section 135(1A) of the Act, 2003. It can be restored if assessed amount is deposited as per third proviso to Section 135(1A) and civil liability would be determined by the Special Court thereupon finally. The use of word finally under Section 154(6), thus cannot be ignored. The determination of final civil liability would be when provisionally liability was assessed and not otherwise. This is only one part of the interpretation. Sub-section (6) of Section 154 further refers to deposition of the amount prior to final determination of civil liability. The question is as to under what provision, the consumer would deposit the amount, as referred, before final determination of civil liability. The aforesaid question could not be answered by learned counsel for petitioner though later on referred towards compounding charges. The distinction has to be made between compounding charges and the civil liability. The compounding charges are towards offence, whereas civil liability is towards electricity charges. The learned counsel could not make distinction between two while giving interpretation to sub-section (6) of Section 154 of the Act, 2003. The composite reading of the provision of Section 154 provides for determination of civil liability by the Special Court under Section 154 (5) and sub-section (6) directs for refund, if excess amount was earlier paid. The amount prior to final determination of civil liability is under Section 135(1A) only. The compounding charges are not refundable as it is in regard to offence and criminal case. The interpretation given aforesaid is fortified by the supply code where method of restoration of electricity connection is provided and for ready reference, relevant provisions are quoted thus: (e) Period of Assessment The Authorized Officer will determine the period of theft, based on the available/seized/ inspection record and the record available with the billing officer of the licensee, the period not exceeding 12 months preceding the date of inspection. However, in case it is not feasible, it will be presumed that such an act was continuing for a period of 12 months immediately preceding the inspection date. However, in case it is not feasible, it will be presumed that such an act was continuing for a period of 12 months immediately preceding the inspection date. (h) Restoration The connection to the consumer for the sanctioned load will be restored only after the receipt of a written intimation from the consumer about discontinuance of such use, to the satisfaction of the licensee and deposition of the amount of civil liability provisionally assessed as above, which will be subject to adjustment of civil liability determined by the Special Court constituted for the purpose.” The provision referred to above clarifies the situation. It makes reference about deposition of the amount as assessed and would be subject to adjustment against final civil liability determined by the Special Court. In the background aforesaid, if interpretation given by the petitioner is accepted, the provision of Section 154(6) so as supply code will loose its significance rather it would became redundant. When Section 154(6) makes reference about deposit and to adjust the amount against civil liability determined by the Special Court finally and is supported by Supply Code, then this court cannot ignore the aforesaid provisions. The view aforesaid has been expressed to give proper interpretation to Section 154(6) read with Section (5). The argument of the learned counsel for petitioner is no doubt true that jurisdiction for determination of civil liability lies with the Special Court but cannot be accepted that prior to it, electricity charges cannot be assessed rather acceptance of the arguments of the petitioner would make Sections 135(1A) and 154(6) to be redundant. The question now comes regarding judgment of this court in the Case of Manjo Sharma (supra). It is no doubt that the issue raised therein was almost similar to what has been raised herein though facts are different. It is unfortunate that counsel appeared therein did not bring Section 154(6) so as supply code to the notice of the court for the interpretation of Section 154 as a whole though provision is quoted in judgment. It is well settled that when a provision is to be given interpretation, it has to be read in totality and not in part. It is also settled law that if judgment has been rendered by the court where reference of relevant provision was not given by the counsel or it makes relevant provision to be redundant, to be treated as percuriam. It is also settled law that if judgment has been rendered by the court where reference of relevant provision was not given by the counsel or it makes relevant provision to be redundant, to be treated as percuriam. The court has powers to declare a provision to be ultra vires, if it offends the Constitution of India but till provision is declared to be unconstitutional, the court is not having jurisdiction to nullify it by its judgment. In the case of Manoj Sharma (supra), Sections 135(1A) and 154(6) were not referred before the court during the course of arguments which otherwise has been referred herein along with Supply Code. The Supply Code clarifies about civil liability and procedure for restoration of electricity. In view of detailed discussion made above, I am of the opinion that action of the respondents in not restoring the electricity connection in absence of payment of amount determined as per third proviso to sub-section (1A) of Section 135, is not illegal. The payment however remains subject to final outcome of civil liability to be determined by the Special Court under Section 154(5) of the Act, 2003 and to be adjusted in the manner provided under sub-section (6) of Section 154 of the Act, 2003. In view of the above, I do not find any merit in the writ petition. It is accordingly dismissed. However, if the petitioner deposits provisional amount determined by the respondents as per third proviso to Section 135 (1A), then the respondents would restore the electricity connection. The deposit aforesaid would remain subject to final outcome of determination of final civil liability by the Special Court.