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SCA/15772/2010 12/ 12 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 15772 of 2010
For
Approval and Signature:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ? No
2
To be
referred to the Reporter or not ? No
3
Whether
their Lordships wish to see the fair copy of the judgment ? No
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ? No
5
Whether
it is to be circulated to the civil judge ? No
=========================================================
PASCHIM
GUJARAT VIJ COMPANY LTD THROUGH DEPUTY ENGINEER-Petitioner
Versus
KANABHAI
JETHABHAI SOLANKI-Respondent
=========================================================
Appearance
:
MR
DIPAK R DAVE for
Petitioner
MR MITESH L RANGRAS, MR VIJAY M SHUKLA for
Respondent
=========================================================
CORAM
:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
: 08/08/2011
ORAL
JUDGMENT
By filing the present petition
under Article 226 of the Constitution of India, the petitioner has
challenged the order dated 07.05.2010 passed by the Consumer
Disputes Redressal Forum, Jamnagar, in Complaint No.153 of 2009.
The brief facts of the case are
that the petitioner – Paschim Gujarat Vij Company is an
Electricity Company constituted under the provisions of the
Electricity Act. The respondent is a consumer, who was allotted an
electricity connection vide Consumer No.32822/00214/2 for
residential purpose. The petitioner replaced the electricity meter
of the respondent-consumer on 26.01.2006 as the meter reading was
not readable. The spot report (Rojkam) was prepared at the premises
of the respondent and the meter was wrapped, sealed and sent to the
Laboratory for testing. It emerged from the Laboratory Test Report
dated 18.04.2007 that the meter has been tampered with and a theft
of electricity has been committed. A Bill dated 21.04.2007 for
Rs.891=71 ps. was issued to the respondent. However, the petitioner
discovered that there was a mistake in issuing the above bill as it
had not been issued as per the rechecked reading pursuant to the
Laboratory Report. The said mistake was pointed out in the audit,
after which a revised bill was issued on 06.03.2009 for an amount of
Rs.41,364/-. The respondent-Consumer approached the Consumer
Disputes Redressal Forum, Jamnagar (“the Forum” for
short), by filing the abovementioned complaint, which has been
partly-allowed by the impugned order dated 07.05.2010 and the bill
dated 06.03.2009 has been set aside. Further, costs of Rs.1,000/-
have been imposed upon the petitioner-Company. It is in this factual
background that the petitioner has approached this Court by way of
the present petition.
Mr.Dipak R.Dave, learned advocate
for the petitioner, has submitted that the Forum had no jurisdiction
to entertain the complaint made by the respondent as the bill dated
06.03.2009 has been issued for theft of electricity which came to
light after the Laboratory Test Report dated 18.04.2007. It is
further submitted that the bill dated 21.04.2007 for Rs.891=71 was
mistakenly issued as the rechecked reading was not taken into
consideration. The mistake was pointed out in the audit and has been
rectified by issuing bill dated 06.03.2009 for Rs.41,364/-. That it
is a case of theft of electricity resulting from tampering of meter,
as is evident from the Laboratory Test Report, therefore, in view of
law laid down by the Division Bench of this Court vide judgment
dated 21.06.2011 in Letters Patent Appeal No.1759 of 2010 and
cognate matters, the Forum had no jurisdiction to entertain the
complaint. The learned advocate for the petitioner has contended
that as the bill in dispute has been issued on the basis of the
Laboratory Report for theft of energy, it is not a case of
deficiency in service and this aspect has also been clarified by the
Division Bench in the abovementioned judgment. Though there is an
alternative remedy of filing an appeal before the Gujarat State
Consumer Disputes Redressal Commission against the impugned order of
the Forum, the petitioner has approached this Court, as the impugned
order is without jurisdiction and the matter in issue is covered by
the abovementioned judgment.
Mr.Mitesh L. Rangras, learned
advocate for the respondent, has submitted that the complaint has
been filed for deficiency in service, as has been mentioned in the
complaint. Drawing the attention of the Court to the provisions of
sub-section (2) of section 56 of the Electricity Act, 2003 (“the
Act” for short), it is submitted that the bill in question has
been issued after a period of two years and is barred by the
provisions of Section 56(2) of the Act. It is further contended that
the petitioner has already paid the amount of Rs.891=79 ps. as per
bill dated 21.04.2007 which has been issued pursuant to the
Laboratory Test Report dated 18.04.2007, therefore, it cannot be
said that the disputed bill dated 06.03.2009 for Rs.41,364/- has
been issued pursuant to the Laboratory Test Report. The said bill
has rightly been challenged by the respondent by filing a complaint
before the Forum, which has rightly set aside the said bill. It is
further elaborated by the learned advocate for the respondent that
issuance of the second bill dated 06.03.2009, which is barred by the
provisions of Section 56(2) of the Act, amounts to deficiency in
service and does not pertain to theft of electricity, therefore, the
case of the petitioner is not covered by the judgment of the
Division Bench. On the strength of the above submissions, it
is prayed that the petition be dismissed.
In rejoinder, the learned advocate
for the petitioner has submitted that the provisions of Section
56(2) of the Act would not be relevant in this case as the bill
dated 06.03.2009 has been issued within two years from the date of
the Laboratory Test Report, dated 18.04.2007. Even otherwise, the
bill dated 06.03.2009 has been issued pursuant to the mistake
discovered in the audit and would, therefore, fall due on
06.03.2009. It cannot, therefore, be said that the complaint has
been filed before the Forum on the ground of deficiency of service.
No other submissions have been
advanced by the learned counsel for the respective parties.
I
have heard the learned counsel for the respective
parties, perused the averments made in the petition and the
documents on record.
The
first issue that arises for consideration is whether the bill dated
06.03.2009 has been issued for theft of electricity, or not. It is
not in dispute that, pursuant to a spot inspection, the electricity
meter of the respondent-Consumer was removed from his premises on
26.01.2006. A spot report (Rojkam) was prepared and the meter was
wrapped, sealed and sent to the Laboratory for testing. A copy of
the Laboratory Test Report dated 18.04.2007 is available at
Annexure-C to the petition. It indicates several discrepancies that
were found, namely: there was no seal on the body of the meter,
there was no MMB TC seal, in the internal component of the meter,
the CC and PC were burnt, and the disc dial showed marks of
scratches. The result of the Laboratory Test showed that the meter
was burnt and there was theft of energy. Pursuant to the Laboratory
Report, a bill dated 21.04.2007 for an amount of Rs.891=71 ps. was
issued to the respondent, which
was paid by him. An audit took place during which it was realized
that the bill dated 21.04.2007 had been mistakenly issued, and that
it had not been issued on the re-checked reading, pursuant to the
Laboratory Report. Another bill dated 06.03.2009 was issued to the
respondent for an amount of Rs.41,364/-, which is the bill in
question. It is clearly mentioned on the said bill that it has been
issued pursuant to the Laboratory Report. The Laboratory Report
concludes, after inspection of the meter, that the meter has been
burnt and there has been a theft of energy. The bill dated
06.03.2009, has been issued on the re-checked reading which escaped
notice at the time of issuance of the earlier bill dated 21.04.2007
for Rs.891=71 ps. The bill dated 06.03.2009 clearly states that it
has been issued pursuant to the Laboratory Report dated 18.04.2007
which concludes that there has been a theft of energy. It is
apparent that the bill dated 06.03.2009 is for alleged theft/
unauthorized use of energy.
At this stage, it would be
relevant to advert to the relevant provisions of the Electricity
Act, 2003. Section 126 of the Act is reproduced below:
“126. Assessment,-
(1) If on an inspection of any place or premises or after inspection
of the equipments, gadgets, machines, devices found connected or
used, or after inspection of records maintained by any person, the
assessing officer comes to the conclusion that such person is
indulging in unauthorised use of electricity, he shall provisionally
assess to the best of his judgment the electricity charges payable by
such person or by any other person benefited by such use.
(2) The order of
provisional assessment shall be served upon the person in occupation
or possession or in charge of the place or premises in such manner as
may be prescribed.
(3) The person, on whom
an order has been served under sub-section (2), shall be entitled to
file objections, if any, against the provisional assessment before
the assessing officer, who shall, after affording a reasonable
opportunity of hearing to such person, pass a final order of
assessment within thirty days form the date of service of such order
of provisional assessment, of the electricity charges payable by such
person.
(4) Any person served
with the order of provisional assessment may, accept such assessment
and deposit the assessed amount with the licensee within seven days
of service of such provisional assessment order upon him.
(5) If the assessing
officer reaches to the conclusion that unauthorised use of
electricity has taken place, the assessment
shall be made for the entire period during which
such unauthorised use of electricity has taken place and if, however,
the period during which such unauthorised use of electricity has
taken place cannot be ascertained, such period shall be limited to a
period of twelve months immediately preceding the date of inspection.
(6) The assessment
under this section shall be made at a rate equal to twice the tariff
applicable for the relevant category of services specified in
sub-section (3).
Explanation.- For the
purposes of this section-
(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) “unauthorized
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; or
(v) for the premises or
areas other than those for which the supply of electricity was
authorized.”
Section
135 of the Electricity Act, 2003, may now be referred to, which as
under:
“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; or
(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; 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; or
(d) uses electricity
through a tampered meter; or
(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 or
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 time 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 than
in the event of second and subsequent conviction of a person where
the load abstracted, consumed, or use 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 provided 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 authorized 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, authorised 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 unauthorised 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.
(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 sing 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.”
After
examining the relevant provisions of law and several judgments, the
Division Bench, in judgment dated 21.06.2011 rendered in Letters
Patent Appeal No.1759 of 2010 and cognate matters, has clearly held
that in a case where the bill is raised alleging indulgence in
unauthorised use of electricity by a person under Section 126 of the
Electricity Act, 2003, or measures or the penal action taken for the
offence under Section 135 of the Electricity Act, 2003, in the
absence of any provisions under the Consumer Protection Act, 1986,
to entertain any complaint on any such action, the petitions
preferred by the consumer are not maintainable before the Consumer
Disputes Redressal Forum. The relevant extract of the judgment of
the Division Bench is quoted hereinbelow:-
“41. In view of
the aforesaid discussion, we summarize our findings as follows :-
(a) The finding of the
learned Single Judge that there is a third forum of appeal under
Section 42 of the Electricity Act, 2003 in this type of cases under
Section 126 or Section 135, is incorrect and does not lay down a
correct law.
(b) The jurisdiction of
the Consumer Court in the matter of deficiency in service on the part
of the Electricity Company is not ousted in view of the provisions of
the Electricity Act, 2003. The finding of the learned Single Judge
to that extent in general that the consumer forum has no jurisdiction
to entertain complaints in respect of the matter pertaining to supply
of electricity against the Electricity Company is incorrect and does
not lay down a correct law.
(c) In a case where
the bill is raised alleging indulgence in unauthorizes use of
electricity by a person under Section 126 of the Electricity Act,
2003 or the measures or the penal action taken for the offence under
Section 135 of the Electricity Act, 2003, in absence of any provision
made under the Consumer Protection Act, 1986 to entertain any
complaint or any such action, the petitions preferred by the consumer
are not maintainable before the Consumer Disputes Redressal Forum.
42. For the reasons
aforesaid, we hold that the Consumer Dispute Redressal
Commission have erred in coming to the conclusion that the Consumer
Disputes Redressal Commission has jurisdiction to try cases against
assessment made under Section 126 or theft of energy under Section
135 and the learned Single Judge rightly interfered with those orders
and set aside the orders. For the reason aforesaid, no interference
is called for against the impugned common judgment rendered by the
learned Single Judge. In absence of any merit, the appeals and the
Civil Applications are dismissed, but there shall be no order as to
costs.”
(emphasis
supplied)
In
order to ascertain whether the case of the respondent pertained to
deficiency in service caused by the petitioner-Company so as to
justify filing of the complainant under the Consumer Protection Act,
1987, it would be fruitful to advert to the definition of
“deficiency” as stated in Section 2(1)(g) of the
Consumer Protection Act, 1986, which reads as follows:
“2(1)(g) “deficiency”
means any fault, imperfection, shortcoming or inadequacy in quality,
nature and manner of performance which is required to be maintained
by or under any law for the time being in force or has been
undertaken to be performed by a person in pursuance of a contract or
otherwise in relation to any service.”
A
copy of the complaint made by the respondent before the Forum is
annexed as Annexure-E to the petition. Though it is stated to be a
complaint regarding deficiency of service, the prayers made by the
respondent clearly reveal that the challenge is to the bill dated
06.03.2009 which has been issued after the consumer has paid the
bill dated 21.04.2007 issued pursuant to the Laboratory Test Report.
As stated earlier, the bill dated 06.03.2009 clearly states that it
has been issued pursuant to the same Laboratory Report. The said
Laboratory Report concludes that there has been a theft of
electricity, therefore, it cannot be said that there is any
deficiency of service in issuing the bill dated 06.03.2009. It is
not the case of the respondent that there is any shortcoming, fault
or inadequacy in the nature and quality of service that is required
to be maintained by the petitioner-Company under the Act. The bill
in question
has clearly been raised alleging that there is theft or unauthorized
use of electricity by the respondent.
In
the above factual background and in view of the principles of law
enunciated by the Division Bench, as reproduced hereinabove, the
Consumer Forum had no jurisdiction to entertain the complaint of the
respondent-Consumer. As the issue is regarding alleged unauthorized
use or theft of electricity, the question whether the bill has been
issued within a period of two years as per the requirement of
Section 56(2) of the Act, would not be relevant insofar as the Forum
is concerned.
For
the aforestated reasons, the petition is allowed. The impugned order
dated 07.05.2010 passed by the District Consumer Disputes Redressal
Forum, Jamnagar, in Complaint No.153 of 2009, is quashed and set
aside. Rule is made absolute. There shall be no orders as to costs.
(Smt.Abhilasha
Kumari, J.)
(sunil)
.
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