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2014 Supreme(P&H) 607
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice K. Kannan
CWP No. 12600 of 2011
M/s JTG Alloys Private Ltd.
v.
Punjab State Power Corporation Ltd. & Ors.
{Decided on 16/10/2014}
For the Petitioner:Mr. Govind Goel, Advocate and Mr. Ankit Goel, Advocate.
For the Respondent Nos.1 to 3 & 5 to 9:Mr. Vikas Chatrath, Advocate.
Headnote:Theft of Electricity--Inspected meter was sent to lab after 14 months of retention--No explanation given for such delay--Amounts to serious lapse--Notice and final assessment quashed.
(A) Electricity Act, 2003, S.152--Appeal--Assessment for unauthorised use provides for appeal--But once so-called theft is determined and final assessment has been made, there is no provision to prefer an appeal--Only representation can be made against such assessment. (Para 7)
(B) Electricity Act, 2003, S.154--Theft--Civil Liability--Special Courts--During prosecution for theft of electricity before special Court, the question of civil liability is also to be decided by special Court--However, if criminal liability is not made out then civil liability assessed can be challenged only by writ before High Court. (Paras 8 to 11)
(C) Electricity Act, 2003, S.153--Theft of Electricity--Acquittal--Inspected meter was sent to lab after 14 months of retention--No explanation given for such delay--Amounts to serious lapse--Theft and case of tempering cannot be said to be established--Notice and final assessment quashed--Connection directed to be restored--Petitioner is at liberty to file suit for damages for unjustified result of closing the business operations.
It is obvious that there has been a tampering at the time when the meter was taken to the Lab but the issue is whether such a tampering could be stated to be done by the petitioner and further action could be initiated against the petitioner--If the Regulations stipulate a time line and requires the meter that is seized from the premises to be immediately forwarded to the lab, it is inexplicable how the Corporation could have taken 14 months to dispatch it--At the time when the meter was seized it found to contain no more than a rusted lass wire--At the time when the meter was brought to the lab, on unsealing of the box, it had noticed the breakage of the wire itself--Even on mere physical inspection itself, there had been a serious variation--The breach in this case had been very serious, for, the theft which is attributed has resulted in assessment of over 4 crores--It is important to detail the following important features: (i) The counsel appearing on behalf of the respondent admits that there had been serious lapse on the part of the Power Corporation in not forwarding seized meter immediately and will have no explanation at all to offer as to why 14 months time had been taken. (ii) He has again no answer to why notice had not been immediately given setting out the date when an inspection would be done within a month. (iii) He also has no proof of any notice as having been issued for the meter to be brought back on 31.08.2009 for carrying out the DDL. (iv) There is further no explanation given how a rusted wire kept sealed had been found already broken at the time of opening the seal. (v)The consumption pattern for the period before and after also was significant to reveal that there was no undue advantage that the petitioner could have obtained, for, the meter reading did not show any low consumption as it should have been if it had been tampered--All these factors to be put together, would put a huge burden for the Corporation to explain as to how its lapses could be condoned--The counsel for the Corporation, however, responds in a simplistic way that the departmental action had been taken against the officials who are responsible for the laches on the serious lapse which were pointed out. (Paras 17 to 20)
Mr. K. Kannan, J.: - I. The subject of challenge, a recount of the chequered history
1. The writ petition was originally disposed of on 09.09.2011 and in appeal filed against the judgment in LPA No.1900 of 2011. The Division bench has remitted the mater for fresh consideration in the light of the observations made thereunder.
2. The case has had a chequered career. The petitioner had been served with a notice under Section 135 of the Electricity Act, 2003 (in brief the “Act”) on 15.10.2010 from AEE (Commerce), Sub Division, Punjab State Power Corporation Ltd. imputing that the petitioner had been guilty of tampering with the meter installed in the factory premises and that the petitioner was required to pay Rs.4,33,24,039/-. A FIR No.44 dated 15.10.2010 had been registered at the Police Station Anti Power Theft, Ludhiana against the Directors and the company and it was challenged in CRM-M No.29677 of 2012. The petitioner had challenged the notice which was issued making the assessment and had come by means of a writ petition in CWP No.1455 of 2011 treating the assessment made against the petitioner as one against Section 126 of the Act. The challenge had been to the constitutional vires of Sections 126 and 127 of the Act which provided for the right of appeal and the corresponding Regulation 21 of the Punjab State Electricity Regulatory Commission (Electricity Supply Code and Related Matters) Regulations, 2007. The Court found that there was no merit in the challenge for the vires of the provision and directed to be sent to a Single Judge for decision. It appears that this petition was allowed to be dismissed as withdrawn and the writ petition was filed on an altered contention that the imputation of theft against the petitioner was wrongly made and the assessment made under the Regulations prescribed therefor for assessment in cases of theft were not applicable to the petitioner. This Court had originally taken the view that the assessment made on alleged proof of tampering of the meter would come within the definition of unauthorized use and the assessment made was only an assessment which was amenable for an appeal under Section 127 of the Electricity Act and that a challenge in the writ petition was not permissible. It was this order that was originally passed by this Court on 09.09.2011 that was set aside in appeal by the Division Bench on reference to a judgment of the Supreme Court in Executive Engineer, Southern Electricity Supply Company of Orissa Limited (SOUTHCO) and another Vs. Sri Seetaram Rice Mill, [2012(1) Law Herald (SC) 205] : (2012) 2 SCC 108 that there was a distinction between the assessments made under Section 126 and 135 of the Act and assessment for theft cannot be a subject of appeal under Section 127.
II. Contention of the petitioner in the light of provisions of ‘unauthorised use’, ‘theft’, assessments and special courts
3. Learned counsel appearing on behalf of the petitioner refers to me relevant Regulations that govern the issue relating to theft and points out that unlike a case of assessment for unauthorized use, which could be either willful or not willful and therefore, a right of appeal is provided under Section 127, the assessment made for theft under the relevant Regulations are more stringent and contained no provision for an appeal. On the other hand, the Regulations only contemplate a right of representation against assessment made as per prescribed formula of the Regulations. The provisions of the Electricity Act makes possible prosecution for the offence of theft in a Special Court constituted for the purpose and if such a prosecution is made, the civil liability determined through the assessment with or without consideration of representation made against such assessment will be made independently by the Special Court. The reference to these provisions become essential in view of the preliminary objection that has been taken by the Power Corporation that against the assessmen
