A.F.R.
Court No. - 7
Case :- WRIT - C No. - 39082 of 2018 Petitioner :- Pashchimanchal Vidhyut Vitran Nigam Ltd. Respondent :- Permanent Lok Adalat Moradabad And Another Counsel for Petitioner :- Usha Kiran Counsel for Respondent :- R.P.S. Chauhan
Hon'ble Saumitra Dayal Singh,J.
1. Rejoinder affidavit filed today, is taken on record.
2. Heard Ms. Usha Kiran, learned counsel for the petitioner and Sri R.P.S. Chauhan, learned counsel for the private-respondent.
3. The present writ petition has been filed by the Pashchimanchal Vidhyut Vitran Nigam Ltd. against the order dated 29.09.2018 passed by the Permanent Lok Adalat, Moradabad, in Complaint Case No.03 of 2018 (Kunwar Petrol Vs. Pashchimanchal Vidhyut). By that award, the Permanent Lok Adalat has set aside the provisional assessment order made by the petitioner against its consumer namely respondent no.2.
4. Admittedly, the petitioner is a public utility service provider and the respondent no.2 is its consumer. Pursuant to certain complaints received by the petitioner, with respect to 4KW power connection availed by the respondent no.2, an inspection was conducted whereupon an allegation of theft of electricity arose against the respondent no.2. It gave rise to a provisional assessment order dated 05.12.2017, in terms of Section 126(1) of the Electricity Act, 2003 (hereinafter referred to as the Act), creating a demand of Rs. 6,36,553/-. The respondent no. 2 filed an objection to the provisional assessment order on 26.12.2017, whereafter no final assessment order was passed. Those proceedings have remained pending. At the same time, it appears, the respondent no. 2 instituted a proceeding before the Permanent Lok Adalat in January, 2018.
5. The Permanent Lok Adalat has decided the matter by its order dated 29.09.2018. The three members of the Permanent Lok Adalat passed that order upon a difference of opinion. While the Chairman of the Permanent Lok Adalat opined that the claim made before that authority was not maintainable, the other two members held otherwise and set aside the provisional assessment order. The claim petition was thus allowed on a majority opinion.
6. In the present writ petition, at the fresh stage itself, affidavits have been exchanged and the matter is being thus decided finally.
7. Learned counsel for the petitioner submits, by virtue of the clear language of Section 22-C(1), first proviso, read with Section 22-C(8) of the Legal Services Authorities Act, 1987 (hereinafter referred to as the Legal Services Act), the Permanent Lok Adalat had no jurisdiction to entertain the claim petition or to decide the same inasmuch as admittedly, the allegation of theft had been levelled against the respondent no.2 under Section 135 of the Act. She would therefore submit, though the Permanent Lok Adalat may have had jurisdiction to pass an award upon successful conclusion of conciliation proceedings, however, once the conciliation proceedings had failed, the Permanent Lok Adalat had no option but to close the proceedings. Its adjudicatory jurisdiction did not arise in view of the allegation of offence of theft (levelled against the respondent no. 2), in respect to the dispute brought before the Permanent Lok Adalat. The fact that the offence of theft of electricity may have been compoundable was a relevant factor only for the purpose of conferring jurisdiction in the Permanent Lok Adalat in conciliatory jurisdiction but not adjudicatory jurisdiction.
8. In this regard, reliance has been placed on an earlier decision of a learned Single Judge of this Court, in the case of M/S Torrent Power Ltd. Vs. State of U.P. and Others passed in Civil Misc. Writ Petition No. 41139 of 2012, decided on 04.12.2013. Upon consideration of the provisions as also the existing precedent, the learned Single Judge had held as below:
"In the light of the aforesaid provision, an application by a consumer in a matter relating to theft of energy can be filed before the Permanent Lok Adalat. The Permanent Lok Adalat will have jurisdiction to entertain such an application for conciliation and for settlement of the said dispute, in view of first proviso to Section 22-C of the Act.
Further, the Court is of the opinion that where the conciliation fails between the parties and no settlement is arrived at, the Permanent Lok Adalat cannot proceed any further nor can it decide the matter on merits under Section 22-C (viii) of the Act. The reason is not far to see. The adjudicatory role, which the Permanent Lok Adalat is required to follow is only with regard to a dispute, which does not relate to an offence under sub-clause-(viii) The words used are "does relate to an offence" which is totally different and distinct from the words used under the 1st proviso to Section 22-C(1), namely, "matter relating to an offence not compoundable in law".
Thus, where a dispute which is an offence, but is compoundable can be entertained by the Permanent Lok Adalat for the purpose of conciliation and settlement but, upon failure, the Permanent Lok Adalat cannot proceed to decide such matters on merit, if it relates to an offence irrespective of the fact as to whether it is compoundable or not. If the dispute relates to an offence, the Permanent Lok Adalat will have no jurisdiction to decide the matter on merits."
9. Responding to the above, Sri R.P.S. Chauhan, learned counsel for the respondent no.2 submits that the jurisdiction of the Permanent Lok Adalat has not been taken away by the Act inasmuch as by virtue of Section 175 of the Act, the provisions of that Act are only in addition and not in derogation of any other law. Therefore, the jurisdiction of the Permanent Lok Adalat vested under the Legal Services Act stood saved. Then, it has also been submitted, the allegation of theft levelled against the respondent no.2 was wholly compoundable. Therefore, by virtue of the first proviso to Section 22-C(1) of the Legal Services Act, the jurisdiction of the Permanent Lok Adalat was not ousted in view of the allegation of theft arising against the respondent no.2. In this regard, it has been further submitted with great vehemence that the allegation of theft of electricity is only a partial truth inasmuch as though such allegation had been made in the provisional assessment order, no FIR came to be registered against the respondent no.2 and no criminal prosecution had been instituted by the petitioner. Even if that course had been adopted, the proceedings would have fallen within the parameters of Clause 8.2 of the Electricity Supply Code, 2005 which would have, in turn, given rise to the jurisdiction of the Special Court. It has thus been suggested, if such a course had been adopted, the respondent would have had a right to approach an independent Court for protection of its rights and it would not have continued to be harassed by the petitioner in the manner it has been done in passing the provisional assessment order.
10. He has also relied upon various judgments of the Supreme Court in the case of Bar Council of India Vs. Union of India reported in 2012 (8) SCC 243 specifically paragraph nos. 16, 17, 18 and 27. Further reliance has been placed on the decision of another learned Single Judge decision of this Court in the case of Executive Engineer Electricity Distribution Division- II Vs. Chairman, Permanent Lok Adalat and Others reported in 2015 (6) AWC 6087 and another Division Bench decision of this Court in the case of Ashok Kumar and Others Vs. State of U.P. and Others reported in 2008 (6) ADJ 660 (DB), specifically paragraph nos. 59, 60 and 61.
11. Having heard learned counsel for the parties, it is true that the Permanent Lok Adalat had the jurisdiction to entertain the complaint as lodged by the respondent, even though the allegation of offence of theft had been made against it. It would be so because for the conciliatory jurisdiction to be ousted the offence alleged should be non-compoundable. Theft of electricity being a compoundable offence, the conciliatory jurisdiction of the Permanent Lok Adalat would exist.
12. In view of the earlier decision of this Court in the case of M/S Torrent Power Ltd. Vs. State of U.P. and Others (supra), with which I am in full agreement, it has to be held, the jurisdiction that so arose to the Permanent Lok Adalat was confined to the conciliation proceedings only. Had there been a successful conciliation between the parties, then, in view of the fact that a compoundable offence of theft of electricity was involved, would not have given rise to any defect of jurisdiction, in view of the clear language of the first proviso to section 22-C(1) of the Act.
13. However, it being undisputed that the conciliation proceedings had failed, thereafter, for the adjudicatory jurisdiction to arise the further test of sub-section (8) of section 22-C had to be satisfied. In view of the clear language of Section 22-C(8) of the Act which is in stark contrast to that of the first proviso to section 22-C(1), the adjudicatory jurisdiction would remain ousted so long as the allegation of theft survived even though that offence was compoundable. Unlike the first proviso to section 22-C(1) of the Legal Services Act, under sub- section (8) of section 22-C of that Act, it was wholly irrelevant whether the offence related to the dispute before the Permanent Lok Adalat was compoundable.
14. The fact that no FIR had been lodged against the respondent, also does not lead to the conclusion that there was no allegation of theft against the respondent. That allegation arose under Section 135 of the Act. That provision defines theft in specific terms. Undisputedly, the petitioner had alleged the respondent to have committed that offence under the Act. Although proceedings were initiated against the respondent and a provisional assessment order was also passed, but those proceedings were interjected upon institution of conciliation proceedings by the Permanent Lok Adalat.
15. At the same time, as a consequence of theft alleged, it was not necessary for the petitioner to have lodged an FIR. Upon allegation of theft, both civil and criminal consequences arose against the respondent no. 2 with respect to the theft alleged. Undeniably, theft is an offence under the Act. For the purposes of determination of the adjudicatory jurisdiction of the Permanent Lok Adalat, it was not a necessary that a criminal prosecution must necessarily have been lodged before the jurisdiction of that authority was ousted. So long as the respondent no. 2 was being proceeded against by the petitioner for such theft, even though in civil proceedings only, it had to be said that the dispute brought before the Permanent Lok Adalat related to an offence.
16. For the adjudicatory jurisdiction of the Permanent Lok Adalat to be ousted, the jurisdictional fact was - absence of any offence. Therefore, so long as it cannot be disputed that the theft of electricity is an offence under the Act, that jurisdictional fact did not exist. There is no other statutory indication to restrict the meaning of the phrase "to any offence" appearing in sub-section (8) of section 22-C of the Legal Services Act, to cases involving criminal prosecution already lodged. Therefore, there is no warrant to read that provision restrictively. Clearly, the adjudicatory jurisdiction of the Permanent Lok Adalat, never arose.
17. Consequently, the award passed by the Permanent Lok Adalat in exercise of its adjudicatory jurisdiction is without jurisdiction and it is hereby quashed.
18. It has thereafter been submitted by learned counsel for the respondents that by virtue of the language of Section 22-C(2) of the Legal Services Act, respondent would be rendered remedy less inasmuch as once the conciliation proceedings before the Permanent Lok Adalat had failed and the adjudicatory jurisdiction never arose, the embargo placed on all other Courts and authorities against exercise of their respective jurisdiction during pendency of conciliation proceedings before the Permanent Lok Adalat, stood removed. The restraint placed by sub-section (2) of section 22-C of the Legal Services Act on exercise of jurisdiction by other courts and authorities does not destroy those jurisdictions completely, but it only places a restraint on other jurisdictions during pendency of a valid proceedings before a Permanent Lok Adalat. The restraint so placed would lift once the proceedings before the Permanent Lok Adalat fail.
19. In any case, in the instant case, once the award of the Permanent Lok Adalat had been found to be without jurisdiction, the same is a nullity. It has no effect. Therefore, the interpretation offered by learned counsel for the respondent cannot be accepted and the statute cannot be read in the manner suggested by learned counsel for the respondents, as it may lead to plainly absurd results where, upon failure (for any reason), of a validly initiated proceedings before the Permanent Lok Adalat, the parties may be left remedy less.
20. Consequently, the petitioner's objection that are claimed to have filed in response to the provisional assessment order may be decided by the petitioner authority on their own merits, as expeditiously as possible, preferably within a period of two months from the date of production of a certified copy of this order after affording due opportunity of hearing to the respondents.
21. It is further needless to clarify that all other statutory proceedings and remedies thereto that may have been available to the respective parties, in the facts of the case, shall remain intact and may not be prejudiced by any observations made in this order.
22. Accordingly, the present writ petition is allowed. No order as to costs.
Order Date :- 20.12.2018 Abhilash