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Gujarat High Court
Judgename :Jayant Patel
PLASTO PRECESSORS - Appellant
Versus
GUJARAT ELECTRICITY BOARD - Respondent
S.C.A. 16838 of 2004
Decided On : 03/10/2005
New Electricity Act - Application of - Date appointed - Assessment of electricity charges - Decision by Appellate Committee - Sustainability.
Head Note :
(a) Electricity Act, 2003 - Sections 126, 127, 172(b) and 185(1) - Application of new Act - Repealing of old Act and Regulations - Date appointed - Assessment of electricity charges - Decision by Appellate Committee - Sustainability - The new Act of 2003 came into force on 10.06.2003 and its period of application was postponed for six months upto 10.12.2003 - Therefore, in view of provisions under Section 172(b) of the new Act, the functioning by the Board and Electricity Company under licences and permission under old Act continued upto 10.12.2004 but for no other purpose - This position has been accepted by petitioners by invoking the jurisdiction of Appellate Committee constituted under old supply Act now repealed - Therefore, petitioners cannot be heard to say that the Appellate Committee had no jurisdiction to decide the appeal and matter should be examined and decided under the provisions of Sections 126 and 127 of the new Act for alleged malpractices and thefts.
Held :
All the petitioners before this Court themselves have accepted the position that the conditions of supply as framed under the repealed laws have continued to remain in operation and thus have invoked the jurisdiction of the Appellate Committee constituted under the conditions of supply and therefore, now they can not be heard as sought to be canvassed on behalf of the petitioners that the Appellate Committee had no jurisdiction to decide the appeal, but the matter should have been examined under the provisions of Sections 126 and 127 of the new Act for the purpose of assessment of the electricity charges, may be for alleged malpractices or for alleged thefts. Therefore, Court finds that though the new Act has come into force on 10.12.2003, but for governing the terms and conditions of supply of electricity the assessment of electricity charges, applicability of terms and conditions, recovery of tariff, penal charges, hearing by the Appellate Committee etc. which are integral part of the conditions of supply, the provisions of old Act and old Regulatory Commission Act shall continue to operate upto 10.12.2004 in respect of licences, authorizations, approvals, clearances and permissions granted for generating and for supplying the electricity to the licensing company for supply of electricity to its consumers. [Para 4]
Head Note :
(b) Electricity Act, 2003 - Sections 50, 56, 126 and 127 - Dispute between consumer and licensee - Protection - Availability of - Scope - In case of dispute between the consumer and the licensee other than the unauthorised use of electricity including through tampered meter, consumer would be entitled to protection as provided under Section 56 of the Act - However, in case of theft, for disconnection of electric supply and for restoration the provisions may be specified by the State Commission under Section 50 but until such Electricity Supply Code is framed cases pending shall stand governed by the conditions of supply framed under old Act or under Gujarat Electricity Supply Act as the case may be and assessment made under Sections 126 and 127 would be applicable - It is also made clear that amount deposited under Section 126(4) of the Act would not operate as bar to any criminal liability of the person concerned.
Held :
The scope and ambit of assessment under Sections 126 and 127 of the new Act is applicable in case of unauthorised use of electricity including through tampered meter, which are described as malpractices or theft of electricity in the existing conditions of supply etc. However, the amount deposited under Section 126(4) of the new Act does not operate as bar to any criminal liability or action for committing crime/offence by the consumer person concerned.
In case of dispute between the consumer and the licensee other than the unauthorised use of electricity including through tampered meter which is said as cases of theft, the consumer would be entitled to protection as provided by proviso to Section 56 of the new Act, but in case of uanthorised use of electricity including through tampered meter which is said as the theft case, for disconnection of electric supply and for restoration of electricity supply, the provisions, as may be made in the Electricity Supply Code, which may be specified by the State Commission under Section 50 of new Act would be applicable and until such Electricity Supply Code is framed, such right of the licensee or the consumer for disconnection or restoration of the electricity pending assessment under Section 126 of new Act and the appeal under Section 127 of new Act shall stand governed by the conditions of supply framed under the old Act or under Gujarat Electricity Supply Act as the case may be.
The conditions of supply as existed prior to 10.12.2004 shall continue to apply if they are not inconsistent with the provisions of new Act or in the matters specified under the new Act including the Electricity Supply Code which may be specified by the State Commission under Section 50 of the new Act. However, no matters can be specified under the Electricity Code in contravention to express provisions of the new Act. [Para 28]
Head Note :
(c) Electricity Act, 2003 - Sections 126, 127, 143 and 145 - Exclusion of Civil Court jurisdiction - Scope of - Applicability - Finding of - Under the provisions the jurisdiction of the Civil Court is excluded for entertaining any suit or proceeding in respect of any matter which assessing officer or the appellate authority or adjudicating officer has to decide under the new Act - But after the decision by such authority, as the case may be, is made Civil Court will have the jurisdiction where provisions of the new Act have not been complied with or such authority has not acted in conformity with the principles of judicial procedure - However, Civil Court is not competent to grant injunction in respect of any action taken in pursuance of the powers conferred by or under the new Act.
Held :
In view of Section 145 of the new Act, the jurisdiction of the Civil Court is excluded for matters where the assessing officer has to decide under Section 126 or the appellate authority has to decide under Section 127 of the Act or the adjudicating officer has to decide under Section 143 of the new Act, but, after the decision is rendered by the assessing officer or the appellate authority or the adjudicating officer, as the case may be, the Civil Court will have the jurisdiction only in those cases where the provisions of the new Act have not been complied with or the assessing officer or the appellate authority have not acted in conformity with the fundamental principles of judicial procedure. In any case, in all cases, the Civil Court shall not grant injunction in respect of any action taken or to be taken in pursuance of the powers conferred by or under the new Act. [Para 28]
Law Laid Down :
Jurisdiction of Civil Court is excluded only for matters to be decided by assessing officer of appellate authority or adjudicating officer but after decision by such authorities Civil Court will have jurisdiction in case where provisions of the Act are not complied or there is violation of principles of judicial procedure.
Cases Law Analysis :
Sohanlal vs. North Delhi Power Ltd & Ors., Writ Petition (C) No. 649/04 and allied matters dated 31.05.2004 [Para 6];; Leenaben, W/o Sohanlal vs Ahmedabad Electricity Company dated 06.09.2004 in Special Civil Application No 10007/04 with SCA No. 10008/04 [Para 6].-Distinguished
Cases Referred :
Ahmedabad Electricity Co. vs. Ramesh D. Devani dated 15.10.2004 SCA No. 8325/2004;; Dhruv Green Field Ltd. vs. Hukam Singh, AIR 2002 SC 2841;; M/s. Ranbaxy Laboratories vs. Punjab State Electricity Board, Patiala & Anr., AIR 2004 P&H 137;; Punjab State Electricity Board & Anr. vs. Ashwinkumar, 1997 (5) SCC 120;; Kiran Industries, Mehsana vs. Gujarat Electricity Board, 1995 (2) GLR 1158;; M.P. Electricity Board, Jabalpur vs. Harsh Wood Products & Ors., AIR 1996 SC 2258.
Civil Application Decided Accordingly
( 1 ) JUDGEMENT in all the group of petitions points for which hearing has taken place, are common and therefore they are being dealt with by this common judgment. The contentions as sought to be raised by the learned counsel appearing on behalf of the respective parties to the extent they are relevant shall be dealt with hereinafter while dealing with the connected point.
( 2 ) IT appears that the Electricity Act, 2003 (hereinafter referred to as "the New Act") has come into force vide notification, dated 10. 6. 2003 of the Govt. of india for the whole of the country. However, in the Act itself there are powers with the State Govt as per section 172 (b) to declare that any or all the provisions contained in the new Act shall not apply in the State for such period not exceeding six months from the appointed day as may be stipulated in the notification. It further appears that in exercise of aforesaid power for Gujarat state notification, dated 4. 6. 2003 has been issued by the state Govt declaring that all the provisions of the new act shall not apply in the State for a period of six months from the appointed day, i. e. 10. 6. 2003. Therefore, accordingly, it can be said for the Gujarat state the new Act was not made applicable upto 10. 12. 2004. As per section 185 (1) of the new Act, the indian Electricity Act, 1910 (hereinafter referred to as "old Act"), the Electricity (Supply) Act, 1948 (hereinafter referred to as "the old Supply Act") and electricity Regulatory Commission Act, 1998 (hereinafter referred to as "the Regulatory Commission Act") are repealed. However, the Ld. counsel appearing for the electricity Board (hereinafter referred to as "the board") Mr. Ramachandran and Ms. Bhaya, Mr. Majmudar and mr. Pujara who normally appears for Ahmedabad Electricity company and was permitted to intervene in the present proceedings contended that as per section 172 (b) all licences, authorisations, approvals, clearances and permissions granted under the provisions of repealed laws shall continue for a period of one year and such licences, authorisations, approvals, clearances and permissions are deemed to be permissions under the Act and therefore it has been contended on behalf of respondent Board and the Electricity Company that the new act would in reality come into force after a period of one year from 10. 12. 2003, i. e. 10. 12. 2004 and not prior thereto. Whereas the learned counsel appearing for the petitioners/consumers contended that the said clause applies to the extent of licences, authorisations, approvals, clearances and permissions granted under the old Act for a period of one year and it can not be construed that the implementation of the Act would not come into effect for a period of one years. Clause (b) of section 172 of the new Act reads as under: "172 (b) all licences, authorisations, approvals, clearances and permissions granted under the provisions of the repealed laws, may for a period not exceeding one year from the appointed date or such earlier period; as may be notified by the appropriate Government, continue to operate as if the repealed laws were in force with respect to such licences, authorisations, approvals, clearances and permissions, as the case may be, and thereafter such licences, authorisations, approvals, clearances and permissions shall be deemed to be licences, authorisations, approvals, clearances and permission under this Act and all provisions of this Act shall apply accordingly to such licences, authorisations, approvals, clearances and permissions. "
( 3 ) ON plain and simple reading of the aforesaid transitory provisions, it appears that all licences, authorisations, approvals, clearances and permissions granted under the provisions of repealed Act may continue for a period not exceeding one year from the appointed date, and such continuation is as if the repealed laws were in force, but such operation of repealed law in force is with respect to such licences, authori
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