Heard Mr. Purohit, learned advocate for the petitioner, and Mr. Joshi, learned advocate for the respondent – Electricity Company. 2. The petitioner has taken out present petition seeking below mentioned relief/direction:-
“8(A) This Hon'ble Court may be pleased to issue a writ or mandamus or a writ in the nature of mandamus and may be pleased to declare that the demand of Rs.34,13,377.40 paisa raised by the respondent Company is unreasonable, arbitrary, unconstitutional and assessment, which has been carried out by the respondent company for arriving at the impugned demand is also unreasonable, arbitrary and improper;
(B) This Hon'ble Court may be pleased to issue a writ of mandamus or a writ in the nature of mandamus and may be pleased to quash and set aside the bill issued by the respondent company for the month of February, 2012 of Rs.34,13,377.40 paisa and also may be pleased to quash and set aside the assessment made by the respondent company fro issuance of the impugned bill and also may be pleased to permanently restrain the respondent company from raising any demand pursuant to the impugned bill;”
3. The respondent – company has raised demand in the sum of Rs.34,13,377.40 paisa against present petitioner by way of supplementary bill issued for the month of February-2012.
3.1 The said supplementary bill is raised under Section 135 of Electricity Act, 2003 i.e. for alleged theft of electricity.
3.2 The officers of the respondent had visited the premises on 23.1.2012 and it was found that meter was tampered with. Metal meter box was also tampered with.
3.3 Then the notice and bill were issued.
3.4 The petitioner, however, feels aggrieved by the said demand. It is claimed by the petitioner that the industrial unit in respect of which the demand has been raised was previously owned by one Pragati Oil Industry. The petitioner purchased the said undertaking from said Pragati Oil Industry some where in the month of June- 2011. According to the petitioner, at the relevant time, the contractual load was 100 HP i.e. 75 KV. After purchasing the said industrial undertaking, i.e. Pragati Oil Industry, present petitioner requested the Dy. Executive Engineer that the electricity connection may be transferred in the name of the petitioner, i.e. Godavari Industries and the petitioner also applied for extension of loan from 100 HP to 125 HP. The petitioner has claimed that along with the said request/representation, the petitioner also filed necessary application in prescribed form. The petitioner has also claimed that in the application, details of the contracted load was also mentioned and requisite fees were paid. The petitioner has also claimed that the petitioner intended to get the contractual load enhanced from 100 HP to 125 HP and that therefore, appropriate request was made to the respondent company. In pursuance of the said request, the authorized officer of the respondent company visited the premises of the petitioner and checking sheet was prepared. It appears that during the said visit, the authorized officer of the respondent company found that the connected load was 125.5 HP (as per calculation sheet – pg.28) and meter was tampered with. The respondent company therefore, tested the meter. The test was carried out on 18.4.2012 and thereafter, the petitioner has been served with the impugned bill along with the calculation sheet.
4. In present petition, the petitioner has challenged the assessment / quantification by the respondent company and has challenged the bill-demand.
5. Mr. Purohit, learned advocate for the petitioner, has submitted that the respondent company has made the assessment arbitrary and relevant factors have not been taken into consideration. He has submitted that the respondent company erred in not appreciating that the extended load was extended only w.e.f. 23.1.2012 to the extent of 25.5 HP and that therefore, the assessment should have been made on that basis, i.e. w.e.f. 23.1.2012, and not for any period prior to 23.1.2012. However, the respondent Company has made assessment w.e.f. January-2011 and the bill has been raised accordingly which is illegal and arbitrary. The petitioner has claimed that such arbitrary assessment may be set aside.
6. Mr. Joshi, learned advocate for the respondent company, has opposed the petition. He has submitted that the petitioner's case is a case of theft of electricity and therefore falls within purview of Section 135 of the Act.
6.1 The respondent company has also averred in its reply affidavit dated 23.4.2012 that:-
“3. At the outset, I state and submit that the present petition is misconceived and not maintainable because in the present petition, the petitioner has challenged the theft bill issued by the Paschim Gujarat Vij Company Limited for the month of February 2012 for Rs.34,13,377=40 and also made the prayer to set aside the assessment made by the Paschim Gujarat Vij Company Limited for issuance of the impugned bill. At this stage, the Honourable Court may kindly note that the impugned bill is issued towards the theft of electricity under section 135 of the Electricity Act, 2003. Under the provisions of the Act, remedy available with the petitioner is to challenge the same before the Special Court constituted under section 153 of the Act. While issuing notice, the petitioner has relied upon the decision in the case of Torrent Power AEC Limited Vs. Gaytri Intermediates Private Limited, reported in 2006 (2) GLR 1581. I also rely upon the same decision.
4. I state and submit that it appears from the plain reading of the petition that the same is filed on the premises that the impugned bill for consuming electricity above contracted load.
5. I state and submit that I deny that the impugned bill is illegal, arbitrary, unconstitutional and contrary to the provisions of law.
6. I state and submit that, initially, electricity connection was released in the name of Pragati Oil Industries. From the previous owner, the petitioner purchased the industry having contracted loan of 100HP. Accordingly, the petitioner made application to transfer electricity connection in the name of Godavari Industries and accordingly, the petitioner became consumer bearing No.34627/50014/9. I state and submit that as the petitioner intended to extend the loan from 100 HP to 125 HP, the application was made for extension of load.
7. I state and submit that on 23.1.2012, the premises of the petitioner was visited by the Checking Squad. While checking, it was found that the meter which was installed at the petitioner's premises was tampered with. The metal meter box (MMB) was also found tampered with. The videography was also done for the same. I crave leave of the Honourable Court to refer to the photographs taken from the videography at the time of checking by the Checking Squad. Copies of the same are annexed hereto and marked as Annexure -I collectively to this affidavit-in-reply.
8. I state and submit that the petitioner has at page 26 (Annexure-D) to the petition annexed typed copy of the checking sheet. It is to be stated that the said typed copy of the checking sheet is not reflecting correct picture because some of the details are not at all mentioned in the typed copy. Column Nos.H and J at page 28 are kept blank. For kind perusal of the Honourable Court, checking sheet is annexed hereto and marked as Annexure – II to this affidavit-in-reply.
9. I state and submit that after removing and replacing the meter by preparing checking sheet and Rojkam, the same was sent to Labnoratory at Rajkot for inspection. The notice was issued to the petitioner to remain present for joint inspection of the meter at Laboratory. Pursuant to that the representative of the petitioner – Shri Nishit Vallabhbhai Pan remain present at the time of joint inspection of the meter at Laboratory. The copy of the Laboratory report dated 18.2.2012 is annexed herewith and marked as Annexure – III.”
7. It is pertinent to note that the provisions under the Indian Electricity Act, 2003 particularly under Section 153 of the Act provides for alternative remedy before the trial Court.
7.1 Mr. Purohit, learned advocate for the petitioner, has submitted that the petition has been preferred against the demand raised by the respondent company. It is claimed that the bill is raised under Section 135 of the Electricity Act and that therefore, the petitioner has no remedy.
7.2 The said contention is misconceived in light of the provision under Section 153 of the Act which prescribes remedy in matter of falling within the purview of Section 135 of the Act.
7.3 At this stage, it is appropriate and relevant to refer to the decision of the Division Bench in case of Abdul Rashid Kapadia @ Baba Hiragal v. Torrent Power Ltd. [Letters Patent Appeal No.1685 of 2010 and 1686 of 2010 decided on 14.2.2011]. In the said decision, this Court observed thus:-
“9.1 We may again make it clear that we have consciously refrained from making any observations with regard to the relief prayed for against civil liability, because the learned Single Judge has disposed off the petition on ground of alternative remedy.
9.2 If the non-initiation of the “theft-case” in the Special Court by the licencee can be said to be an impediment in disputing the civil liability, as contended by the appellants, then in present case such situation is brought about by the appellants themselves and it is entirely making of the appellants for which they should thank themselves. Having regard to the fact that the appellants had, of their own choice requested for compounding of offence and when after accepting the request, the respondent company acted upon such request and the proceedings of the criminal case was not initiated, we are not inclined to entertain the appeals of the appellants who want to challenge almost everything, after having brought about such situation, on the pretext that they do not have forum to dispute their civil liability.
9.3 It is pertinent that after having paid the entire bill amount in case of SCA No. 790 of 2010 alongwith compounding fees and 50% of the amount in case of SCA No.781 of 2010 alongwith (a) compounding fees and (b) post dated cheques for the balance amount, the appellants, now almost more than 1½ years after compounding of the offence, cannot be heard (in the two Appeals) disputing almost everything and every aspect of the matter under the garb of challenging the civil liability. Thus, we are, not inclined to enter into and examine the submissions with regard to the decision of the Division Bench in the case between Torrent Power A.E.C. Limited vs. Gayatri Intermediates (2006(2) GLR 1580) and contention sought to be raised by the appellants.
9.4 While clarifying that it is in view of (i) the facts of present case and (ii) on account of the appellant's conduct that we are not inclined to entertain the appeals and that therefore we have not revisited and examined the earlier decision of the another Division Bench in the aforesaid case, we may take note of the observations made by the Division Bench (while negativing similar contention in paras 15.1 to 15.3 of the said case) that:-
15.1 We may now deal with the submission made by the learned counsel for the petitioner-consumers who contended that in a given case the consumer may or may not dispute the allegation of theft made by the licensee or its officers, but the consumer may still dispute the amount of supplementary bill issued in theft cases. It is submitted that the Act does not provide for any remedy in such cases and that Section 151 allows only licensee or authorities to move the Court with a complaint to take cognizance of an offence, but no provision in the Act provides for an appeal or other proceeding at the instance of the consumer to challenge assessment made by the licensee in a theft case. It is, therefore, submitted that the powers of the Civil Court cannot be treated to have been excluded when there is no remedy provided by the Act in such cases.
15.2 We do not think that a consumer is without remedy in such cases. Sub-section (5) of Section 154 specifically provides that the Special Court may determine the civil liability against a consumer or a person in terms of money for theft of energy. The next part of sub-section (5) imposes the following restrictions on the power of the Special Court to determine the civil liability -
(i). ......
(ii). .....
(iii) ....
15.3 There is nothing to indicate that the power and jurisdiction conferred on the Special Court under sub-section (5) of Section 154 is conditional upon the licensee filing a complaint before the Special Court under Section 151 of the new Act. In fact while the provisions relating to offences and penalties from Sections 135 to 139 are to be found in Part XIV the provisions relating to the Special Court are to be found in a separate part being Part XV of the Act. Since the power to try offences punishable under Sections 135 to 139 is conferred exclusively on the Special Court constituted under Section 153 of the Act and the provisions of sub-section (5) of Section 154 specifically invest the Special Court with the jurisdiction to determine any dispute regarding the quantum of civil liability in theft cases, we are clearly of the view that a consumer intending to challenge the quantum of civil liability in theft cases (whether or not he disputes the allegation of theft) is still entitled to make such a challenge to the disputed bill before the Special Court, even in cases where no criminal complaint is filed against the consumer. The doubt, if any, is removed by Regulation 7.6.7 in the Gujarat Electricity Supply Code (quoted in para 8.1) (emphasis supplied)
9.5 Since, in present case, the learned Single Judge has passed the impugned order disposing present appellants' two petitions on the ground of alternative remedy before the Special Court, the appellants appear to have raised the above noted contention probably in view of the observations in para 15.3 and 15.6 of the judgment that:
“15.3 ..... specifically invest the Special Court with the jurisdiction to determine any dispute regarding the quantum of civil liability in theft cases ”
15.6 ..... not only empowers the Special Court to determine civil liability of the consumer in theft cases ”
8. In view of the aforesaid decision, it becomes clear that remedy under Section 153 is available to the petitioner. In writ proceedings, it cannot be decided as whether the meter and/or metal box were tampered with or not and if the same were tampered whether petitioner was responsible or not, since decision in respect of all these issues would require oral and documentary evidence including cross-examination. In this view of the matter, it appears appropriate to relegate the petitioner to the alternative remedy, i.e. before the trial Court, provided under the statute. Therefore, the petition is disposed of in light of the said decision. The petitioner is relegated to the alternative statutory remedy. It is clarified that this Court has not examined the dispute on merits and has not expressed any opinion whether the assessment was justified and proper or not and whether the action of the petitioner amounts to theft or not. It will be for the learned trial Court to examine the entire case on merits.
With the aforesaid observations and clarification, present petition stands disposed of. Notice is discharged.
(K.M.Thaker, J.) kdc