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2010 (1) GCD 211 (Guj)
Hon’ble Mr. Justice K.A .Puj
Himanshu J. Navdiwala
Versus
Managing Director & Anr.
Special Civil Application No. 3462 of 20091—Decided on 09/04/2009
Electricity Act, 2003 — Sections 19(1)(c), 50, 135 to 139, 145, 150, 153, 154, 156 and 157 — Complaint for theft of electricity and tempering with meter — Allegation of wrong implication with malafide intention — Finding of — Sustainability — There is force in the submission of Learned Advocate for respondents that since the petitioner is alleged to have been indulged in theft of electricity his case is required to be tried by Special Court — The Special Court is empowered to determine the civil liability in terms of money for theft of energy — Section 145 of the Act though not specifically but by implication bars the jurisdiction of civil Court — Court looking to the facts and circumstances of the case and considering the past track record of petitioners observed that filing of the present petitions before this Court and prayer made are nothing but an attempt to cause delay or to drag on the litigation — Court also refused the prayer of petitioners for testing of meter by Forensic Science Laboratory because respondent company has fully equipped laboratory for testing meters and there is doubt or dispute about out come of such testing.
Held :
There is also much force in the submission of Ms. Bhaya that since the petitioner is alleged to have been indulged in theft of electricity his case is required to be tried by the Special Court. Section 135 of the Electricity Act deals with theft of electricity and Section 139 deals with negligently breaking or damaging works, Section 153 of the Act deals with Constitution of Special Courts which says that the State Government may for the purposes of speedy trial of offences referred to in Sections 135 to 139 by Notification in the Official Gazette as many Special Courts as may be necessary for such area or areas, as may be specified in the Notification. Special Courts are already established by the State Government. The procedure and power of Special Court are discussed in Section 154 of the Act. The Special Court is also empowered to determine the Civil liability against a consumer or a person in terms of money for theft of energy. Section 145 of the Act specifically bars the jurisdiction of the Civil Court. While dealing with all these provisions, this Court in Torrent Power AEC Ltd. vs. Gayatri Intermediates Pvt. Ltd., 2006 (2) GLH 375 held that although there is no specific reference in Section 145 of the Act for exclusion of Civil Court to entertain any proceeding in respect of any matter which the Special Court is empowered by the Act to determine or any assessment (other than assessment under Section 126) which the licensee is empowered under the Act to determine, any dispute about the civil liability in theft cases is impliedly excluded from the jurisdiction of Civil Court. In this view of the matter, there is no question of entertaining any of these two petitions. [Para 15]
Looking to the facts and circumstances of the case and considering the past track record of the petitioners, the Court is of the view that filing of the present petitions before this Court and prayers made therein are nothing but is an attempt to cause delay or to drag on the litigations. No case is made out before this Court which requires this Court to refer the matters to the Forensic Science Laboratory for checking. Even otherwise, the Court agrees with the submission of Ms. Bhaya that the respondent Company is having a laboratory full equipped for the purpose of testing and/or checking the meter and there is no reason to doubt or dispute the outcome of such checking or testing. [Para 16]
Law Laid Down :
Suppressing material facts for obtaining favourable order from Court amounts to criminal contempt.
Case Law Analysis :
Bahuman Polytex Ltd. vs. Gujarat Electricity Board & Anr., 1995 (2) GCD 762 (Guj) [Para 9];; Torrent Power AEC Ltd. vs. Gayatri Intermediates Pvt. Ltd., 2006 (2) GLH 375 [Para 10];; Sanjay Ispat Pvt. Ltd. vs. Chairman, Special Civil Application No. 12742 of 2008 decided on 29.12.2008 [Para 11];; Shayona Beverages vs. Madhya Gujarat Vij Company Ltd., (Special Civil Application No. 10014 of 2006 decided on 1.7.2006 [Para 11].—Relied on
Cases Referred :
Dhulabhai vs. State of MP, AIR 1969 SC 78.
K.A.Puj, J.—Leave to amend as per the Draft Amendment.
2. Heard Ms. Megha Jani, the learned Advocate for the petitioner and Ms. L.K. Bhaya, the learned Advocate appearing for the respondent Electricity Company on Caveat. Perused the documents and after having heard the learned advocates and after having considered the documents produced before the Court as well as the legal position, the Court is of the view that the relief prayed for in the present petition cannot be granted. The petition is accordingly dismissed. Detailed reasons would be given later on.
3. Both these petitions were heard together on 9.4.2009 and they were dismissed on the same day. However, detailed reasons for dismissal of the said petitions could not be given for paucity of time. These reasons are, therefore, recorded hereunder;
4. Since the common issue is involved in both the petitions, the same are being disposed of by this common judgment and order. The facts are taken from Special Civil Application No. 3462 of 2009 for the sake of convenience.
5. The petitioner of Special Civil Application No. 3462 of 2009 is a businessman and running a textile unit at Plot No. 2204, GIDC, Sachin Surat. The petitioner has HT connection from Dakshin Gujarat Vij Company Ltd., (DGVCL). The consumer number of the petitioner is 12306/07161/6. Likewise the petitioner of Special Civil Application No. 3463 of 2009 is also a businessman and he is having HT connection from Dakshin Gujarat Vij Company Ltd., and his consumer number is 12306/07341/4.
6. The officers of DGVCL have visited the factory premises on 16.12.2008 and demanded illegal gratification of Rs. 7 lacs and threatened that failure to make such payment would make the petitioner liable to face a false case of theft. The officers of DGVCL have again come to the premises of the factory on 1.1.2009 and while entering the premises they did not reveal their identity and forcibly entered the premises. A complaint came to be filed against the petitioner being CR No. II-32 of 2009 at South Zone Police Station, Surat under Section 135(1) and 150 of the Electricity Act.
7. The petitioners have filed an application on 12.1.2009 under the Right to Information Act. In response to the said application, DGVCL gave a copy of the rojkam, calculation sheet, supplementary bill dated 2.1.2009 and notice dated 2.1.2009 issued under Regulation 50 of the Regulations to the petitioners. Since the Information Officer did not give the information as sought for, the petitioners filed Appeal before the Appellate Authority. The Appellate Authority did not give any decision for a long time. The petitioners, therefore, filed further Appeal No. 1078/08-09 before the Gujarat Information Commission. The Commission vide its order dated 27.3.2009 directed the Appellate Authority to hear the petitioners and the Respondents No. 1 and 2 in the Appeal and decide the same within three weeks from the date of receipt of the order of the Commission. It is also mentioned in the order that the Appellate Authority had also violated provisions of Section 19(1)(c) under which the First Appeal was required to be decided within 45 days from the date of receipt.
8. Ms. Megha Jani, learned Advocate appearing for the petitioners submits that the petitioners have been wrongly implicated in the theft case. The entire case is made out with mala fide intention so as to frame the petitioners in a wrong case. The petitioners have not tampered with the meter and have not committed theft of electricity. The tampering of the meter as recorded in the rojkam is done by or at the behest of the Officers of the DGVCL. She has further submitted that the manner in which the entire case is built up and the treatment meted out to the petitioners clearly establishes prejudice, mala fide and illegal action on the part of the officers of the DGVCL to the petitioners. The officers of the DGVCL have violated the guidelines issued by the DGVCL while issuing supplementary bill in the
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