M/S. Devikrupa Stone Crusher vs Paschim Gujarat Vij Company Limited

Hemant M. Prachchhak, J

RULE returnable forthwith. Mr.Gandhi, learned counsel waives service of notice of rule on behalf of the respondent.

With the consent of learned counsel appearing for the respective parties, the present petition is taken up for final hearing.

Present petition is filed by the petitioner under Article 226 of the Constitution of India seeking the following reliefs:-

(a) Be pleased to admit this petition.

(b) Be pleased to issue writ of mandamus or any other appropriate writ, direction or order, under Art. 226 of the Constitution of India, by quashing and setting aside the supplementary bill No. 12491 dt. 2-3-2023 for Consumer No. 82126-00-214-4 issued by respondent.

(c) Be pleased to direct the respondent to provide an opportunity of hearing as per Rule 26 read with Rule 7.6 and 7.7 of the Gujarat Electricity Regulatory Commission, 2015.

(d) Be pleased to direct respondent authority to decide "civil liability" on the alleged theft of electrical energy, afresh after giving an opportunity of hearing to petitioner.

(e) Be pleased to grant any other and further reliefs as deem just and proper.

Brief facts of the present case are that the petitioner is doing a business of stone crushing and having its factory at Khatia Beraja Village and having industrial electric connection and the petitioner paying the electricity bill regularly. It is the case of the petitioner that the officers visited the factory premises and carried out checking of electrical connection and they found that a wire came to be pass by fixing another cable from main lines and hence alleged theft of electric energy and panchnama was prepared and checking sheet was prepared. It is also the case of the petitioner that on the basis of the checking report, the respondent issued supplementary bill for Rs.1,10,34,710.69 paise and if compounding charges of Rs.18,12,336/- was paid within seven days, the respondent may not file criminal case and thereafter the respondent asked to pay Rs.1,28,47,046.69 paise. It is further the case of the petitioner that criminal complaint was lodged and the petitioner protested the action and with a view to avoid disconnection requested for payment of bill by installments and deposited the said amount. It is the case of the petitioner that the respondent requested the Police Inspector that since amount was paid, offences compounded and no further action may be taken. The petitioner filed this petition for quashing the impugned bill.

Heard Mr.Sandip Shah, learned counsel for the petitioner and Mr.Chinmay Gandhi, learned counsel for the respondent. Perused the material placed on record.

Learned counsel for the petitioner has submitted the same facts which are narrated in the memo of petition and has also submitted that on the basis of the checking report, the respondent - PGVCL issued supplementary bill for Rs.1,10,34,710.69 paise for assessment of presumed consumption of 702021 units during last 365 days for alleged theft under Section 135 of the Electricity Act and informed the petitioner that if compounding charges of Rs.18,12,336/- was paid, criminal complaint would not be filed. He has submitted that in all Rs.1,28,47,046.69 paise was asked to pay by the PGVCL and criminal case was lodged, for which, the petitioner protested the action and with a view to avoid disconnection requested for payment of bill by installments and the PGVCL requested the Police Inspector GUVNL Police Station that since the amount was paid, offences compounded and no further action may be taken by the police authorities. He has submitted that the respondent has committed grave error in misreading and misconstruing the provision of Section 135 of the Act and filed the FIR against the petitioner for theft of electricity.

6.1 In support of his submission, learned counsel has referred and relied upon the provision of Section 154(5) and Section 135 of the Act more particularly the emphasized upon the observations made in paras 22, 23 and 24 by the Division Bench of this Court in Letters Patent Appeal No. 616 of 2018 and has urged that the petition be admitted and interim relief be granted in favour of the petitioner.

On the other hand, Mr.Gandhi, learned counsel for the respondent has submitted that when the supplementary bill issued under Section 135 of the Act, it is the case of the respondent that there was theft of energy and, therefore, the offence was registered against the petitioner and when the offence relating to Section 135 to Section 140 of the Act, the petitioner has to challenge before the Special Court by way of preferring the special civil suit. He has submitted that when the civil liability is arisen, the Special Court is empowered to take action into the matter and petition is not maintainable under Article 226 of the Constitution of India. Mr.Gandhi, learned counsel has referred and relied upon the decision of this Court in the case of Mukeshbhai Laljibhai Nashit Vs. Dakshin Gujarat Vij Company Limited reported in 2020 (0) GUJHC 34870 : 2020 (0) JX(Guj) 622 and submitted that this Court in the said decision has observed that there being statutory remedy available under the Act, the resort to petition invoking extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, could not be entertained, the Special Court has power to determine the civil liability against the consumer or a person in terms of money for theft of energy. He has submitted that under such circumstances, let the petitioner may approach before the appropriate forum by preferring the special suit as provided under Section 154 of the Act. He has submitted that this Court, while deciding Special Civil Application No. 18787 of 2022, has dismissed the petition considering the statutory remedy available to the consumer under the Act. Mr.Gandhi, learned counsel has referred and relied upon the orders passed by this Court in Special Civil Application No.2763 of 2026 and Special Civil Application No.12351 of 2021 and submitted that the petition being meritless deserves to be dismissed.

In view of the settled legal principles pronounced by the Hon'ble Supreme Court in the case of Uttar Pradesh Power Corporation Limited Vs. Anis Ahmad reported in (2013) 8 SCC 491 wherein the Hon'ble Supreme Court had dealt with similar set of facts and ultimately annunciated the principle that when there is implication of Section 135 to Section 140 of the Act, the Special Court can try constituted under Section 153 of the Act.

Under such circumstances, learned counsel for the petitioner seeks permission to withdraw this petition with a view to enable him to take appropriate recourse by preferring appropriate proceedings before the Special Court as provided under the Act.

In view of the above, permission as sought for is granted. The petition stands disposed of as withdrawn with a liberty to the petitioner to file appropriate proceedings before the Special Court constituted under the Act and raise all legal contentions which are raised in the petition permission under the law. The concerned Court shall decide the Special Suit in accordance with law and on merits. Rule is discharged. It is needless to say that this Court has not gone into merits of the matter.