High Court
Legal Reasoning
1219.2023WP-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD904 CRIMINAL WRIT PETITION NO. 1219 OF 2023THE SUPERINTENDING ENGINEER, THE MAHARASHTRASTATE ELECTRICITY DISTRIBUTION COMPANY LTD.VERSUSNEWASA TALUKA SAHAKARI DHOOD VYAVASAIK SANGHLTD. SONAI...Mr. Salve Avinash Rangnathrao, Advocate for the petitioner. Mr.V.D. Sapkal, Senior Advocate i/b Mr.S.R. Sapkal, Advocate forRespondent ….. CORAM : SANJAY A. DESHMUKH, J. DATED : 8th FEBRUARY, 2024. PER COURT :- This Writ Petition is directed against the order passed bythe learned Special Judge, Newasa dated 24.05.2023 belowExhibit-5 in Criminal M.A. No.8 of 2023 regarding the payment ofentire amount of assessment bill dated 15.02.2023. 2.Brief facts of the case are as under :-The respondent – institution Newasa Taluka SahakariDhoodh Vyavasaik Sangh Ltd., committed theft of electricity ofRs.1,24,07,937/-. After the crime was registered against therespondent, the electricity was cut, and therefore, the respondentfiled Civil Suit and prayed for injunction. It was withdrawn and 1219.2023WP-2- thereafter Criminal Application No.8 of 2023 was preferred undersection 154(5) of the Electricity Act to determine the civil liability toelectricity bill. The application was heard and decided on merit andfollowing operative order was passed :- “ORDER 1)The Application Exh.5 is allowed as under : a)Applicant shall deposit 40% amount out of total(Rs.1,24,07,937/- One Crore Twenty Four Lac SevenThousand Nine Hundred Thirty Seven only) with respondentswithin one weeks from this order. b)After depositing the above said amount, the respondentsshall restore the electricity supply of consumerNo.148039003497 till decision of the main application. c)After restoration of electricity supply, the applicant shall paythe electricity bill regularly as per meter reading. d)This order is passed without prejudiced to the right of theboth parties. e)The copy of this order be sent to the respondents forinformation and necessary action.”Thus, the respondent was directed to deposit 40% amountout of total amount of Rs.1,24,07,937/- within one week. The saidorder is challenged. 3.The learned advocate for the petitioner is relying upon theauthority in the case of The Executive Engineer and another VsM/s Sri Seetaram Rice Mill in Civil Appeal No.8859 of 2011 arising 1219.2023WP-3- out of S.L.P. (C) No.36166 of 2010. He pointed out the distinctionbetween sections 126 and 135 of the Electricity Act. Para no.15 ofthe said judgment reads as under :-“15.Upon their plain reading, the mark differencesin the contents of Sections 126 and 135 of the 2003 Actare obvious. They are distinct and different provisionswhich operate in different fields and have no commonpremise in law. We have already noticed that Sections126 and 127 of the 2003 Act read together constitute acomplete code in themselves covering all relevantconsiderations for passing of an order of assessment incases which do not fall under Section 135 of the 2003Act. Section 135 of the 2003 Act falls under Part XIVrelating to 'offences and penalties' and title of theSection is 'theft of electricity'. The Section opens withthe words 'whoever, dishonestly' does any or all of theacts specified under Clauses (a) to (e) of Sub-section (1)of Section 135 of the 2003 Act so as to abstract orconsume or use electricity shall be punishable forimprisonment for a term which may extend to threeyears or with fine or with both. Besides imposition ofpunishment as specified under these provisions or theproviso thereto, Sub-section (1A) of Section 135 of the2003 Act provides that without prejudice to theprovisions of the 2003 -Act, the licensee or supplier, asthe case may be, through officer of rank authorized inthis behalf by the appropriate commission, mayimmediately disconnect the supply of electricity andeven take other measures enumerated under Sub-sections (2) to (4) of the said Section. The fine which 1219.2023WP-4- may be imposed under Section 135 of the 2003 Act isdirectly proportional to the number of convictions and isalso dependent on the extent of load abstracted. Incontradistinction to these provisions, Section 126 of the2003 Act would be applicable to the cases where thereis no theft of electricity but the electricity is beingconsumed in violation of the terms and conditions ofsupply leading to malpractices which may squarely fallwithin the expression 'unauthorized use of electricity'.This assessment/proceedings would commence with theinspection of the premises by an assessing officer andrecording of a finding that such consumer is indulging inan 'authorized use of electricity'. Then the assessingofficer shall provisionally assess, to the best of hisjudgment, the electricity charges payable by suchconsumer, as well as pass a provisional assessmentorder in terms of -Section 126(2) of the 2003 Act. Theofficer is also under obligation to serve a notice in termsof Section 126(3) of the 2003 Act upon any suchconsumer requiring him to file his objections, if any,against the provisional assessment before a final orderof assessment is passed within thirty days from the dateof service of such order of provisional assessment.Thereafter, any person served with the order ofprovisional assessment may accept such assessmentand deposit the amount with the licensee within sevendays of service of such provisional assessment orderupon him or prefer an appeal against the resultant finalorder under Section 127 of the 2003 Act. The order ofassessment under Section 126 and the period for whichsuch order would be passed has to be in terms of Sub-
Legal Reasoning
1219.2023WP-5- sections (5) and (6) of Section 126 of the 2003 Act. TheExplanation to Section 126 is of some significance,which we shall deal with shortly hereinafter. Section 126of the 2003 Act falls under Chapter XII and relates toinvestigation and enforcement and empowers theassessing officer to pass an order of assessment.”4.On the contrary, the learned Senior advocate Mr.Sapkalpointed out sub-section (5) of section 154 of the Electricity Act, 2003.Sub-section (5) of section 154 reads as under :-“Section 154(5) :The Special Court shall determine thecivil liability against a consumer or a person in terms ofmoney for theft of energy which shall not be less than anamount equivalent to two times of the tariff rateapplicable for a period of twelve months preceding thedate of detection of theft of energy or the exact period oftheft if determined whichever is less and the amount ofcivil liability so determined shall be recovered as if itwere a decree of civil court.”5.Thus, the Special Court is empowered to determine the civilliability against a consumer or a person in terms of money for theft ofenergy which shall not be less than an amount equivalent to twotimes of the tariff rate applicable for a period of twelve monthspreceding the date of detection of theft of energy or the exact periodof theft if determined whichever is less and the amount of civil liabilityso determined shall be recovered as if it is a decree of civil court. The
Decision
1219.2023WP-6- impugned order is passed under sub-section (5) of the section 154 ofthe Electricity Act, which expressly empowers the Special Court todetermine the civil liability. Therefore, the ratio laid down in theauthority of The Executive Engineer (cited supra) is not helpful forthe petitioners.6.There are several factual aspects, which were raised byboth the sides. However, at this stage, the legality of the impugnedorder is to be considered along with section 154(5). While passingthe impugned order in para no.8, the learned trial Court has observedthat if the electricity supply is not restored then certainly the applicantas well as the farmers in the entire Newasa Taluka have to face lot ofproblems. Therefore, the interim order was passed. Considering thescope and ambit of section 154 and the reasons given by the learnedSpecial Judge, the impugned order is found legal and correct. Noillegality and perversity is pointed out. There is no substance in thegrounds raised in the Writ Petition. The Petition, therefore, deservesto be dismissed. It is dismissed accordingly. (SANJAY A. DESHMUKH, J.) sga