The petitioner has taken out present petition seeking below mentioned relief:- “20(B) Your Lordships be pleased to issue a writ of certiorari or writ of mandamus or in nature of mandamus or any other writ, orders or direction against the respondents and be pleased to direct them to reconnect the Electric connection in the residential house of village Dungari, Taluka and District Valsad without implementing the order dated 8.6.2012 to pay Rs.2,41,611.64 ps as additional bill and to pay Rs.9274/- as the charge to compound the offence as the petitioner is totally innocent and has not committed any theft of electric power;
(C) Your Lordships may be pleased to declare sub section (1), (3), (5) and (6) of Section 126 and Sub Section (2) of Section 127 of the Electricity Act, 2003 to void and ultravires of the Article 20, 21 and 14 of the Constitution of India to the extent that, the same are in contravention of the provisions made under the said Articles against the guarantee granted for the fundamental rights of the citizens in light of the case of Maradia Chemicals Limited, 2004 and in the case of Parimal Bhogilal Patel Vs. State of Gujarat reported in 2010 (()) GLHEL-H; 223731;”
2. So far as the relief prayed for in para-20(C) is concerned, the said prayer contains challenge against vires of Section 126 and 127 of the Electricity Act, 2003 [hereinafter referred to as “the Act”]. The Division Bench has rejected the said contention and with below mentioned order, directed that the matter should be placed before the Single Judge where the subject is assigned as per present roster. The said order reads thus:-
“In view of the above observations of the Supreme Court, there is, in our opinion, hardly any further scope of argument that the provisions of pre-deposit as condition precedent for maintaining an appeal is ultra vires the provisions of the Constitution of India.
Since we find that neither Section 126 nor Section 127 of the Electricity Act, 2003 can be branded as ultra vires the Constitution of India, we propose not to entertain this Application. So far as prayers other than those contained in paragraph 20(C) of the petition are concerned, the matter should go before the learned Single Judge having jurisdiction.
We make it clear that apart from prayer 20(C) of this Application, we have not gone into the other portion of the petition and dismissal of this prayer will not stand in the way of the petitioner in seeking appropriate remedy before appropriate forum, in accordance with law.
In view of disposal of prayer (C) of paragraph 20, the further presence of the Union of India is not necessary.”
It is, in view of the said direction, that the matter is placed before this Court.
3. So far as the relief prayed for in para-20(B) is concerned, the petitioner claims that the respondent – electricity company should be directed to reconnect the electricity supply connection “without implementing the order dated 8.6.2012” whereby the petitioner is asked to pay Rs.2,41,611.64 ps. being the amount of supplementary bill.
Meaning thereby, the petitioner wants that the electricity supply connection should be restored without requiring him to pay the amount which are claimed by the electricity company under supplementary bill.
4. So as to consider the relief prayed for by the petitioner, it is necessary to take into account relevant facts, which are as under:-
It appears that a team of officers of the respondent – electricity company had visited and inspected the electricity installation at petitioner's residence.
During the inspection, it was noticed that the petitioner had indulged into act amounting to theft of electricity.
The electricity team found that the installation was tempered with and the petitioner was committing unauthorized consumption of electricity, i.e. theft of power.
It appears that the electricity company forwarded the meter for testing in the laboratory and in the meanwhile, the company raised supplementary bill.
After raising the supplementary bill, a communication dated 8.6.2012 was forwarded to the petitioner intimating the petitioner that appropriate proceedings under Section 135 of the Act will be initiated against the petitioner for having committed theft of electricity, however, should the petitioner want to compound the offence, it being the first offence of the petitioner, the petitioner may make necessary request in writing, which will be considered in accordance with law.
The petitioner has claimed that in response to the said intimation, he offered to make payment of Rs.30,000/-, however, the electricity company found the offer unacceptable.
Therefore, the request for compounding the offence upon payment of Rs.30,000/- has not been accepted by the electricity company.
In this background, the petitioner has taken out present petition and prayed for abovementioned reliefs.
5. Mr. Patel, learned advocate, has appeared for the petitioner and has submitted that the action of the authority is against the provisions contained under Sections 126 and 127 of the Act. He placed reliance on sub-section (5) of Section 126 of the Act. He also submitted that for the petitioner it is not possible to comply the condition requiring pre-deposit before filing the appeal under Section 127 of the Act and therefore, present petition is preferred.
5.1 Mr. Patel, learned advocate for the petitioner, has placed reliance on the decision in the case of Lohia Mandilia & Ors. v.
C.E.S.C. Ltd. & Ors. [AIR 2003 CALCUTTA 233]. The issue involved in the said case was with regard to the provisions contained under Section 20 of the Electricity Act, 1910. Present case is about theft of power and the case falls under Section 135 of the Act of 2003.
Mr. Patel, learned advocate for the petitioner, has relied on the decision in the case of Molay Kumar Acharya v. Chairman- cum-Managing Director, W.B. State Electricity Distribution Co.Ltd. & Ors. [AIR 2008 CALCUTTA 47]. In the said decision, the Court was considering provisions contained under Section 43 of the Act and the claim of the petitioner for electricity supply connection on the ground that he was occupier of the premises in question.
Mr. Patel, learned advocate for the petitioner, then relied on the decision in case of Parimal Bhogilal Patel v. State of Gujarat [2010 (3) GLR 2514]. In the said case, the Court was deciding appeal from the trial concluded before the trial Court in pursuance of the complaint filed under Section 135. The final judgment was under challenge whereas in present case, trial has yet to commence.
In the facts of present case, none of the decisions which have been referred to by the learned advocate for the petitioner would help the petitioner to take his case any further.
6. On perusal of the communication dated 8.6.2012 (Annexure-B Page-35), it is apparent that the electricity company has treated the matter as case of theft and provisions under Section 135 of the Act have been invoked.
Under the circumstances, present petition, at this stage, does not deserve to be entertained.
The petitioner has statutory remedy available under the Act, i.e. the remedy available under Section 135 of the Act wherein the petitioner can contest the proceedings in the Special Court.
6.1 Despite the fact that the electricity company has treated the matter as case of theft and the matter comes within purview of Section 135 of the Act, Mr. Patel, learned advocate for the petitioner, has made submissions on the premise as if petitioner's case is covered under Section 126 r.w. Section 127 of the Act.
Even if the said contentions were to be appreciated then also, in view of the provisions contained under Section 127 of the Act, statutory alternative remedy is available to the petitioner.
Only for the reason that the petitioner may not have to comply with the condition of pre-deposit as contemplated under Section 127(2) of the Act, the petitioner has preferred present petition.
A petition which aims to frustrate statutory provisions (viz. requiring pre-deposit of 50% of bill amount for entertaining the appeal), cannot be entertained.
Since the petitioner has alternative remedy, present petition is not entertained. Furthermore, the petition involves and raises disputed question e.g. whether meter was tempered or not. Therefore also, the petition does not deserve to be entertained.
In view of the foregoing discussion and reasons, the petition is not entertained and it stands disposed of accordingly.
(K.M.Thaker, J.) kdc