2004 Supreme(Guj) 671

Gujarat High Court
Judgename :D.N.Patel
AHMEDABAD ELECTRICITY COMPANY LIMITED - Appellant
Versus
RAMESH D.DEVNANI - Respondent
S.C.A.8325 of 2004
Decided On : 10/15/2004

Headnote:(a) [Indian] Electricity Act, 1910 (Central Act 9 of 1910) - Section 24 - Notice before disconnection - Applicability - Provisions of notice of seven days before disconnection apply to a case of regular supply made and not on demand on detection of pilferage as in the present case.

       Section 24 does not apply to demand on detection of pilferage. It would apply to a case of regular supply made and prior demand for payment of electricity charges with a notice of seven days to be made and for failure to pay within the given time, after expiry of seven days, the appellant as a licensee would get the right to disconnect the supply of electrical energy. It would thus be seen that disconnection will be in the course of regular supply of electricity for non-payment of the usual bills but not to any case demand after detection of pilferage. [Para 9]

       (b) [Indian] Electricity Act, 1910 (Central Act 9 of 1910) - Sections 185(2) read with 5(3) & (5) and Schedule - General Clauses Act, 1897 (Central Act 10 of 1897) - Section 6 - Agreement in format of Annexure `D appended with conditions of supply - Nature of - It is an agreement between the parties entered into at the time of supply of electric connection - It is a binding agreement between the parties and in view of this agreement it was not necessary to give hearing to respondent before disconnection of supply - The action to disconnect supply of electricity to respondent without hearing is, therefore, not violative of Articles 20(1) & 14 of Constitution.

       The only question is whether the consumer is entitled to hearing before disconnection? In view of the conditions to which the respondents had agreed at the time of installation and also the prima facie conclusion reached by the authorities, it was not necessary to give further hearing to the respondents. The action taken by the appellant is not violative of Article 20(1), 14 of the Constitution and principles of natural justice. [Para 9]

       Looking to the provisions of Section 185(2) read with Section (3) of the Act of 1910, read with Sub-section (5) with Schedule read with Section 6 of the General Clauses Act, 1897, the Conditions of Supply and Miscellaneous Charges framed under the Act of 1910 are binding upon the respondent. As per Section 185(2)(a) of the Act of 1910, the agreement entered into between the consumer and petitioner (which is in the format of Annexure "D" appended with Conditions of Supply framed under the Act of 1910), is binding, especially in view of Clause 7 thereof. [Para 10]

       (c) Electricity Act, 2003 - Sections 126 & 135 - Assessment - Distinction between the two provision - The former is for unauthorised use of electricity whereas the latter one is for theft of electricity - Both provisions operate in different fields - In the instance case of theft of energy assessement made as per Section 135 read with Section 23(b) of Conditions of Supply read with Condition No. 11 of Part III of the Conditions of Supply and misc. charges framed under the Act proper and valid - Further in view of Sub-section (5) of Section 154 of the Act petitioner has correctly applied penalty factor 2.5 times for six months not illegal.

       The assessment under Sections 126 and 135 of The Electricity Act, 2003 are absolutely different from each other. The former is for "unauthorised use of electricity", whereas the latter one is for "theft of electricity", and, therefore, whenever there is an assessment for theft of electricity, it is always assessed under Section 135 of the Act of 2003 and not under Section 126 of the Act of 2003. Both Sections 126 and 135 operate in different fields.

       In the present case, the assessment made by the petitioner-company is under Section 135 of The Electricity Act, 2003 and not under Section 126 of the said Act. [Para 11]

       In case of theft of energy, assessment will be as per Section 135 of the Electricity Act, 2003 read with clause 23(b) of Conditions of Supply to be read with condition No. 11 of part III of the Conditions of Supply and Miscellaneous Charges framed under the Act of 1910 and not under Section 126 of the Electricity Act, 2003, and as referred to hereinabove, as per Clause 11(1)(iii), energy charges will be leviable at twice the applicable rate. The Counsel for the petitioners submitted that in the present case, the respondent No. 1 company has made assessment by applying penalty factor 2.5 times. (Annexure "C" to the memo of the petition). The Counsel for the respondent No. 1 has drawn our attention to Sub-section (5) of Section 154 of the Act of 2003.

       Thus, it becomes abundantly clear that in case of theft of electricity, the petitioner has correctly applied the penalty factor 2.5 times for six months twelve months). Court is, therefore, in full agreement with the contentions raised by the Counsel appearing for the petitioner-company. [Para 12]

       (d) Electricity Act, 2003 - Section 145 read with Section 153 - Bar of jurisdiction - Scope of - It is crystal clear from the provision that jurisdiction of Civil Court is barred by special provisions carved out in the Act - Legislature has further directed that no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under the Act - For the purpose of deciding the dispute under the Act relating to supply of power legislature has provided for constitution of Special Courts under Section 153 of the Act.

       It is crystal clear the jurisdiction of the Civil Court is barred by the special provisions carved out under Section 145 of the Act of 2003. It is also directed by the Legislature that no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act. The aforesaid section is to be read with Section 153 of the Electricity Act, 2003. [Para 6]

       Cases Referred :

       Usha Subbarao vs. B.E. Vishveswariah & Ors., AIR 1996 SC 2258;; M/s. Swastic Industries vs. Maharashtra State Electricity Board, AIR 1997 SC 1101;; Kiran Industries, Mahesana vs. Guj. Electricity Board, Baroda & Anr., 1995 (2) GLH 1.