Paschim Gujarat Vij Company Ltd. vs Rohit Hemchandra Shah

Abhilasha Kumari, J.—The challenge in this petition, preferred under Article 226 of the Constitution of India, is to the order dated 15.04.2010 rendered by the Gujarat State Consumer Disputes Redressal Commission ("the Commission" for short) in Appeal No. 201 of 2006, whereby, the order dated 30.08.2005 passed by the District Consumer Disputes Redressal Forum, Jamnagar, ("the Forum" for short) in Complaint No. 169 of 2005, quashing and setting aside the Supplementary Bill, has been confirmed.

Briefly stated, the facts of the case are as follows:

The Petitioner, Paschim Gujarat Vij Company Limited, 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. 87101/58689/9 under L-1 Tariff with connected load 10 HP. The Respondent is engaged in the business of processing brass metal job-work, for which electricity is used. The Petitioner-Company carried out a surprise check of the premises of the Respondent on 09.12.2004, and found that the electricity meter which was provided to supply energy to the consumer, was tampered with. At the time of inspection, it was found that the Respondent was consuming more than 13.75 HP + 400 watts of energy. After conducting the inspection on the spot, a Report (Rojkam) was prepared in the presence of the representative of the Respondent. The existing meter was replaced at the site and tampered meter was removed, wrapped and sealed, as per Rules and prescribed norMs. Subsequently, a Laboratory Inspection of the meter was conducted on 24.12.2004. It was found that the male and female parts of the seals were refitted, screws of "R" phase of meter terminal block were missing, and the pressure link was removed and tampered with. According to the Petitioner-Company, it is a clear case of theft of electrical energy by tampering with the meter. Pursuant to the result of the Laboratory Inspection, a supplementary bill of Rs. 69,660=53 was issued to the Respondent for unauthorized consumption of electricity. The Respondent straightaway preferred a complaint before the Forum vide Consumer Case No. 169 of 2005. The said complaint was decided in favour of the Respondent by order dated 30.08.2005. The Petitioner preferred appeal to the Commission against the above-mentioned order of the Forum. By impugned order dated 15.04.2010, the Commission has partly-allowed the appeal of the Petitioner, though, in effect, the order of the Forum has been confirmed. Aggrieved thereby, the Petitioner has invoked the jurisdiction of this Court by way of the present petition.

Mr. S.P.Hasurkar, learned advocate for the Petitioner, has submitted that the Forum as well as the Commission had No. jurisdiction to entertain the complaint filed by the Respondent in the first place, as the supplementary bill that was challenged by the consumer before the Forum had been issued pursuant to the Laboratory Report, which confirms that the electricity meter was tampered. As such, it is a clear case of theft of electrical energy.

It is further submitted that the Respondent ought to have availed of the alternative remedy provided in the Electricity Act, 2003, itself rather than approaching the Consumer Forum. The Consumer Forum has wrongly entertained the complaint made by the Respondent and passed an order in his favour. It is contended that the Petitioner has taken a specific ground in the appeal filed before the Commission, that as it is a case of theft of electrical energy, the Forum had No. jurisdiction to entertain the appeal. In spite of the same, the Commission has, in effect, confirmed the order of the Forum, while stating in the impugned order that the appeal of the Petitioner has been partly-allowed. It is further contended that by the impugned order, the Commission has set aside the direction of the Forum to the effect that the Petitioner-Company should issue a fresh bill regarding the excess load to the Respondent. However, the decision of the Forum setting aside the Supplementary Bill for Rs. 69,660=53 issued by the Petitioner pursuant to the Laboratory Report, has been confirmed.

The learned advocate for the Petitioner has submitted that the case of the Petitioner is fully covered by judgment dated 21.06.2011 of a Division Bench of this Court rendered in Letters Patent Appeal No. 1759 of 2010, and cognate matters, wherein the Division Bench has held that in a case where the Bill is raised alleging unauthorised use of electricity by a person u/s 126 of the Electricity Act, 2003, or action is taken for an offence u/s 135 thereof, the objections preferred by the consumer are not maintainable before the Consumer Disputes Redressal Forum. It is urged by the learned advocate for the Petitioner that in the present case, the bill has been issued for theft of electricity resulting from tampering of the meter which amounts to unauthorised use of electricity, therefore, the Forum has No. jurisdiction to entertain the complaint of the Respondent and the Commission ought not to have confirmed the decision of the Forum, setting aside the Supplementary Bill issued by the Petitioner.

Opposing the petition, Mr. R.C.Kakkad, learned advocate for the Respondent-consumer, has submitted that if the Petitioner is aggrieved by the impugned decision of the Commission, an alternative remedy is available to it by preferring an appeal before the National Consumer Disputes Redressal Commission u/s 19(1) of the Consumer Protection Act, 1986, therefore, this Court may not entertain the petition. It is further submitted that the Petitioner has not produced any material on record to show that any order has been passed u/s 126 of the Electricity Act, 2003, or proceedings have been initiated u/s 135 thereof, therefore the above-mentioned judgment of the Division Bench will not be applicable in the case of the Petitioner. In support of the above contentions, reliance has been placed by the learned advocate for the Respondent, on the following decisions:

(a) Haryana State Electricity Board Vs. Mam Chand,

(b) Jharkhand State Electricity Board and Anr. v. Anwar Ali - II (2008) CPJ 284 (NC)

On the strength of the above submissions, it is prayed that the petition be dismissed.

I have heard the learned Counsel for the respective parties, perused the averments made in the petition and other documents on record.

There is No. dispute regarding the fact that a surprise check was carried out in the premises of the Respondent on 09.12.2004, pursuant to which a spot Report (Rojkam) was prepared in the presence of the representative of the Respondent. At the time of inspection, it was found that against the contracted load of 10 HP, the connected load was 13.75 HP + 400 watts. The existing meter was replaced at the site of the consumer and subsequently, a Laboratory Inspection of the tampered meter that was removed from the premises of the Petitioner was carried out on 24.12.2004. In the Laboratory Inspector of the meter, it was found that the male and female parts of the seals were refitted, screws of "R" phase of meter terminal block were missing and pressure link was removed tampered with. Pursuant to the Laboratory Report, a Supplementary Bill of Rs. 69,600=53 for unauthorized consumption of electricity was issued to the Respondent. Though it is not specifically mentioned upon the bill that it has been issued under the provisions of Section 126 or 135 of the Electricity Act, 2003, the learned advocate for the Petitioner has submitted that the supplementary bill has been issued on the basis of the "Proposal-cum-Approval for Theft Bill on ABCD Formula" that is resorted to while preparing bills in cases of theft of electrical energy.

At this stage, it would be fruitful to advert to the relevant provisions of the Electricity Act, 2003. Section 126 of the Act reads as under:

"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, is quoted hereinbelow:

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.

Sub-section (1) of Section 126 stipulates that if on an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found connected or used, or of records maintained by any person, the assessing officer comes to the conclusion that such person is indulging in unauthorized use of electricity, he shall provisionally assess the electricity charges payable by such person or any other person benefited by such use. Section 135(1)(b) stipulates that whoever dishonestly 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, 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, subject to certain stipulations. Essentially, the provisions of Section 126 and Section 135 of the Electricity Act, 2003, deal with situations regarding unauthorised use of energy, or theft of electricity. Tampering with an electric meter by a consumer whereby electricity is stolen would fall under the purview of "theft of electricity". A bill issued to the consumer pursuant to the Laboratory Test of the tampered meter, after testing the meter and ascertaining the quantity of consumption of energy would not fall under the definition of "deficiency" in service as per Section 2(1)(g) of the Consumer Protection Act, 1986.

In judgment dated 21.06.2011 rendered in Letters Patent Appeal No. 1759 of 2010 and cognate matters, the Division Bench has taken into consideration all relevant provisions of the Consumer Protection Act, 1986, as well as the judgments cited at the Bar. The decision in Haryana State Electricity Board v. Mam Chand (supra) was cited before the Division Bench and that in the case of Jharkhand State Electricity Board and Anr. v. Anwar Ali (supra), cited by the learned advocate for the Respondent has also been considered. In view of the decision rendered by the Division Bench, the above judgments cited by the learned advocate for the Respondent would not require further consideration. The relevant portion of the judgment dated 21.06.2011 rendered in Letters Patent Appeal No. 1759 of 2010 and cognate matters is reproduced hereinbelow:

"34. We have already noticed the stand taken by the consumers and accepted that the complainant - Appellants fall within the definition of "consumer" as defined u/s 2(1)(d) read with definition of "person" as defined u/s 2(1)(m) and the supply of electrical and other energy fall within the definition of ''service" u/s 2(1)(o) of the Consumer Protection Act, 1986.

In the present cases, the question arises is whether there was any deficiency in service caused by any one or other Electricity Companies for the complainant(s) to move a petition under the Consumer Protection Act, 1986.

The term "deficiency" is defined u/s 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."

In the present case, we find that there is No. allegation relating to any deficiency on the part of the Electricity Companies alleged by one or other complainants. There is nothing on record to suggest that any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which was required to be maintained by or under any law or has been undertaken to be performed by the Electricity Company to allege deficiency.

The complainants moved against the bill raised u/s 126 of the Electricity Act, 2003, which relates to indulging in unauthorized use of electricity or against the measures u/s 135, which constituted an offence for which penalties are prescribed. Thus, there was No. deficiency in service on the part of the Electricity Companies.

Therefore, even if it is accepted that in the case of deficiency in service by the Electricity Companies in supply of electricity, the person can file a complaint before the Consumer Dispute Redressal Forum under the Consumer Protection Act, 1986, but in absence of any such allegation, No. such petition is maintainable before the Consumer Disputes Redressal Forum constituted under the Consumer Protection Act, 1986. In a case where the bill is raised alleging indulgence in unauthorizes use of electricity by a person u/s 126 of the Electricity Act, 2003 or the measures or the penal action taken for the offence u/s 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, we hold that the petitions preferred by the consumer - Appellants were not maintainable before the Consumer Disputes Redressal Forum.

In the case of CESC Ltd. v. Smt. Sunita Pal, reported in III (1997) CPJ 116 (NC), the National Consumer Disputes Redressal Commission, New Delhi noticed the prima facie evidence of theft. Taking into consideration the earlier decision in the case of MP Electricity Board v. Babu Lal, reported in II (1995) CPJ 132, the Commission held that where there was tempering with the metering connection by the consumer, it cannot be said that there was any deficiency in service on the part of the Electricity Board so as to warrant the grant of any relief to the consumer in proceedings, under the Consumer Protection Act, 1986. *

[*emphasis in original]

In the said case of Smt. Sunita Pal (Supra), the National Consumer Disputes Redressal Commission, New Delhi also noticed the Supreme Court decision in M.P. Electricity Board, Jabalpur and others Vs. Harsh Wood Products and another, wherein the Supreme Court considered the provisions of Section 24 of the Indian Electricity Act, 1910 Act and held that the Board when it detects that any consumer had committed any malpractice with reference to his use of electric energy including unauthorized alterations, installations, unauthorized extension and use of devices to commit theft of electricity energy, the Board may without prejudice to other rights, disconnect the supply of electricity forthwith and may call upon the consumer to make payment for compensation for the unauthorized use of the electricity.

In the case of Jharkhand State Electricity Board v. Anwar Ali, reported in II (2008) CPJ 284 (NC), the National Consumer Disputes Redressal Commission, New Delhi has noticed, as observed above, that the jurisdiction of the consumer forum to deal with the grievances of the consumer is only in case of deficiency in service by electricity supplier.

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 u/s 42 of the Electricity Act, 2003 in this type of cases u/s 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 u/s 126 of the Electricity Act, 2003 or the measures or the penal action taken for the offence u/s 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.

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 u/s 126 or theft of energy u/s 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)

Viewed in the light of the decision rendered by the Division Bench, it is evident that the case of the Petitioner relates to alleged unauthorized use or theft of electricity. Though it is not specifically stated in the petition, whether the bill was issued pursuant to any proceedings u/s 126 of the Electricity Act, 2003 or u/s 135 thereof, it is evident that the Supplementary Bill for Rs. 69,660=53 has been raised pursuant to the Laboratory Test of the tampered meter that was removed from the premises of the Respondent. The decision of the Division Bench would, therefore, be squarely applicable to the present case.

As regards the submission of the learned advocate for the Respondent that the Petitioner has an alternative remedy by approaching the National Consumer Disputes Redressal Commission instead of this Court, suffice it to say that where the order passed or action challenged is one without jurisdiction, it is open to the Court, in exercise of jurisdiction under Article 226 of the Constitution, to entertain the petition [See: Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Others, This submission, therefore, does not merit acceptance.

In view of the above, the District Consumer Disputes Redressal Forum, Jamnagar, had No. jurisdiction to entertain the complaint filed by the Respondent. Similarly, the Gujarat State Consumer Disputes Redressal Commission could not have confirmed the order dated 30.08.2005 passed by the said Forum, as it had No. jurisdiction to do so.

For the foregoing reasons, the petition is allowed. The impugned order dated 15.04.2010 rendered by the Gujarat State Consumer Disputes Redressal Commission in Appeal No. 201 of 2006 is quashed and set aside. Rule is made absolute. There shall be No. orders as to costs.