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SUPREME COURT OF INDIA
R. Banumathi, R. Subhash Reddy, JJ.
West Bengal State Electricity Distribution Company Ltd. & Ors. – Appellants
Versus
M/s. Orion Metal Pvt. Ltd. & Anr. – Respondents
CIVIL APPEAL No.6547 OF 2019 [Arising out of S.L.P.(C) No.22207 of 2018]
Decided On : 21-08-2019
(a) Electricity Act, 2003 – Sections 126 and 135 – Unauthorised use of electricity (Power theft) – Provisional assessment – After inspection of any place or any premises of any consumer, when Assessing Officer comes to conclusion that consumer is indulging in unauthorized use of electricity, provisional assessment to the best of his judgment is to be made in accordance with Section 126(1) of Act – Such provisional assessment shall be served upon person in occupation of premises – After giving opportunity to file objections to provisional assessment, Assessing Officer is empowered to pass final order of assessment assessing loss of energy, on account of unauthorized use of energy. (Para 11)
(b) Electricity Act, 2003 – Sections 126 and 135 – Unauthorised use of electricity (Power theft) – Provisional assessment – Instances of use of energy through a tampered meter is included in definition of unauthorized use of electricity – If that is so, there is no reason, for excluding power of authorities for making assessment under Section 126(1) of Act to assess loss of energy, where electricity is used through a tampered meter – All instances of unauthorized use of energy may not amount to theft of electricity within meaning of Section 135 of Act, but theft of electricity which is covered by Section 135 of Act, will fall within definition of unauthorized use of electricity – Authorities under the Act are empowered to make a provisional and final assessment by invoking power under Section 126(1) of Act, even in cases where electricity is unauthorisedly used by way of theft – When a consumer deposits assessed amount, licensee or supplier has to restore power supply. (Para 12)
(c) Electricity Act, 2003 – Sections 126 and 135 read with Section 154 – Unauthorised use of electricity (Power theft) – Provisional assessment – There is apparent distinction between Section 126 and Section 135 of Act – Special Court is empowered to convict consumer and impose a sentence of imprisonment – Special Court, in cases, where a criminal complaint is lodged, is also empowered to determine civil liability under Section 154(5) of Act – Merely because Special Court is empowered to determine civil liability under Section 154(5) of Act, in cases where complaint is lodged, it cannot be said that there is no power conferred on authorities to make provisional assessment/final assessment under Section 126 of Act – To prove guilt of accused in a criminal proceeding, authorities have to prove case beyond reasonable doubt and element of mens rea is also to be established – On other hand, such strict proof is not necessary for assessing liability under Section 126(1) of Act. (Paras 12 and 14)
Facts of the Case:
Instant civil appeal is filed by appellant- West Bengal State Electricity Distribution Company Limited and others, aggrieved by judgment and order dated 18.12.2017 passed by the High Court of Calcutta in F.M.A. No.520 of 2017 and the corrected order dated 07.02.2018. By impugned order, intra Court appeal preferred by the respondent company was allowed by the Division Bench of High Court.
Findings of Court:
Power conferred on authorities for making assessment under Section 126(1) of the Act and power to determine civil liability under Section 154(5) of the Act, cannot be said to be parallel to each other. In this regard, High Court has committed error in recording a finding that both proceedings cannot operate parallely.
Result : Appeal allowed.
Certainly. Based on the provided legal document, here are the key points:
Power theft, including use of energy through tampered meters, is classified as unauthorized use of electricity under the relevant law (!) (!) .
Authorities are empowered to conduct inspections and make provisional assessments of energy loss when unauthorized use is suspected, including tampering with meters (!) (!) .
The assessment process involves serving a provisional order to the person in occupation of the premises, providing an opportunity to file objections, and then passing a final order of assessment (!) (!) (!) .
Instances of energy use through tampered meters are included within the scope of unauthorized use, and such cases do not necessarily amount to theft, but theft of electricity as defined under the law also falls within this category (!) (!) (!) .
The authorities have the power to make provisional and final assessments even when electricity is used unlawfully through theft, and the deposit of assessed amounts leads to the restoration of power supply (!) (!) .
There is a clear distinction between proceedings under assessment statutes and criminal proceedings for theft; the former do not require proof beyond reasonable doubt or mens rea, whereas the latter do (!) (!) .
The law permits simultaneous proceedings for assessment of energy loss and criminal prosecution for theft, as they serve different purposes and have different standards of proof (!) (!) .
The special courts are empowered to determine civil liability for theft of energy and impose civil penalties, which are recoverable as a decree of a civil court (!) (!) .
The legal framework emphasizes that unauthorized use of electricity covers a broad range of malpractices, including but not limited to tampering with meters, exceeding authorized load, or using electricity in unauthorized premises (!) (!) (!) .
The law provides for immediate disconnection of supply upon detection of theft or tampering, along with procedures for inspection, search, seizure, and documentation, ensuring due process (!) (!) (!) .
Provisions also specify that civil liability assessments and criminal proceedings are distinct but can operate concurrently, with the assessment process not being dependent on criminal conviction (!) (!) .
The law aims to facilitate effective enforcement against unauthorized use and theft of electricity, balancing civil assessments with criminal prosecutions, and ensuring that power to assess is not restricted by ongoing criminal proceedings (!) .
Please let me know if you need further clarification or assistance.
JUDGMEN
R. Subhash Reddy, J.
1. Leave granted.
2. This civil appeal is filed by the appellant-West Bengal State Electricity Distribution Company Limited and others, aggrieved by the judgment and order dated 18.12.2017 passed by the High Court of Calcutta in F.M.A. No.520 of 2017 and the corrected order dated 07.02.2018. By the impugned order, the intra Court appeal preferred by the respondent company was allowed by the Division Bench of High Court.
3. Necessary facts, in brief, are as under:
(a) The 1st respondent herein is the consumer of electricity from the appellant-West Bengal State Electricity Distribution Company Limited & Ors. There is a supply agreement entered into between the parties on 22.12.2004. The officials of the appellant company served a notice dated 28.10.2016 upon the 1st respondent, in exercise of power under Class IV of the West Bengal Electricity Regulatory Commission Electricity Supply Code, 2007 for conducting an inspection in the metering system of the respondent. The respondent-company isa centralized bulk high voltage consumer of electricity in the Hooghly region, with a contracted load of 1450 KVA. After service of notice on the 1st respondent on 28.10.2016, inspection was made by the Superintending Engineer, Divisional Engineer, Divisional Engineer (Manager), Assistant Engineer of Chandanangore Division, in the premises of the respondent herein.
(b) During the inspection, it was noticed by the inspecting team that input current is abnormally high from output current at TTB end in respect of the R & B Phase of PT secondary wires. The inspecting team on breaking open the TTB has also found some foreign material inside. In view of such discrepancies found during the inspection, the inspection team was of the view that there was a theft of energy by tampering the meter by the respondent-company. The three-phase meter and the metering equipment was seized by the inspecting team by preparing a seizure list. In view of such discrepancies noticed during inspection, in exercise of power under Section 126(1) of the Electricity Act, 2003 (for short ‘the Act’), provisional assessment for loss of energy by un-metered consumption was made by one Mr. B. Saha, Superintending Engineer/Assessing Officer of the appellant-company. The provisional assessment was made assessing the value of energy which was consumed on account of un-metered consumption at Rs.13,41,17,482-30 paise (Rupees thirteen crores forty one lakhs seventeen thousand four hundred and eighty two only).
(c) After inspection, a criminal complaint was also lodged before the local police by the Superintending Engineer (Commercial), Hooghly region, of the appellant company, complaining theft of energy by the respondent. In the complaint made by the appellant, it was alleged that by inserting a foreign material into the meter, the respondent-company has indulged in theft of energy.
(d) On the basis of criminal complaint made by the Superintending Engineer (Commercial), a criminal case has been registered against the respondent-company and the police have submitted a charge-sheet in the criminal case.
(e) Aggrieved by the provisional assessment and the consequential demand, the respondents have filed writ petition in W.P. No.30449(W) of 2016 before the High Court, questioning the jurisdiction of the Assessing Officer in issuing the provisional assessment and the consequential demand for a sum of Rs.13,41,17,482-30 paise. In the writ petition, one of the grounds was that the Assessing Officer, who prepared the provisional assessment, not being a party to the inspection team, had no authority to make the provisional assessment under Section 126(1) of the Act. In the writ petition, it was alleged that provisional assessment made was not in accordance with Section 126(1) of the Act, as such, such assessment cannot be given effect to.
(f) Learned single Judge of the High Court, on the ground that the appellant-Distribution Company has not produced any material to s
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