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IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
Hon’ble Mr. Justice Rajbir Sehrawat
RSA No. 3933 of 2017(O&M)
Dakshin Haryana Bijli Vitran Nigam Ltd. & Ors.
v.
Jaswant @ Jaibir
{Decided on 30/08/2017}
passes an assessment order then jurisdiction of civil court is not barred regarding such demand order.
(A) Electricity Act, 2003, S.145, S.135 & S.126--Jurisdiction of Civil Court--Assessment of Liability--Theft of Electricity--Held;
(1) In case the departments/officers/licensee/supplier is of the opinion that a consumer has committed theft as defined under the Act, and they/he initiate proceedings for theft under Section 135 of the Act, then the assessing officer has no authority to pass any order regarding assessment of liability and penalty against a consumer--If any such order of assessment/penalty is passed and purported to be enforced against a consumer by the department/licensee/supplier then the consumer has every right to avail the remedy of civil suit by challenging such order/demand raised by the department/licensee/supplier--In such a situation, the jurisdiction of the civil court shall not be barred by virtue of Section 145 of the Act.
(2) If an unauthorised order of assessment/penalty is passed by the department/licensee/supplier, despite having alleged and initiated proceedings of theft; then the consumer cannot be said to have alternative remedies under Section 127 of the Act-- Therefore, he cannot be denied the right of filing the civil suit against such an illegal assessment/demand/penalty notice on the ground that he can avail an alternative remedy of appeal under Section 127 of the Act.
(3) Since the Special Court cannot be initiated at the instance of the consumer and the civil liability as determined by the Special Courts has been restricted to be determined only ‘against’ the consumer and only for the loss/damages caused to the department and even without following the procedure of a civil court, therefore, mere existence of the Special Court does not, by implication, exclude the jurisdiction of the civil court, in a case where the assessing officer/licensee/supplier has passed an illegal or unauthorised order of demand despite having referred the matter to the police or the Special Court for determination of the same. (Para 37)
(B) Civil Procedure Code, 1908, S.9--Jurisdiction of Civil Court--Exclusion of--While considering the question of exclusion of the jurisdiction of civil court it has to be kept in mind that presumption would be in favour of the existence of the jurisdiction of civil court; so far as the civil matters are concerned--Secondly, while interpreting a provision excluding the jurisdiction of the civil court; such provision has to be given restrictive interpretation so as to retain the jurisdiction of the civil court in determination of civil rights of the citizens.
Therefore, the Courts are not supposed to interpolate words and phrases into that provision which purportedly excludes the jurisdiction of the civil court. The provision has to be read as it is and to be given a literal meaning, of course, while reading the statute as a whole. Lastly, if the jurisdiction of the civil court is specifically excluded in particular matter, by name, then such provision excluding the jurisdiction of the civil court has to be given primacy. (Para 25)
(C) Electricity Act, 2003, S.135--Theft of Electricity--Men Rea--The element of mens rea is an essential condition for allegation of theft as defined under Section 135 of the Act--And if mens rea is not there then the matter would fall under Section 126 of the Act; even regarding those aspects which are overlapping in these two provisions. (Para 28)
(D) Electricity Act, 2003, S.135--Theft of Electricity--Men Rea--That if the officers of the respondents/licensee/supplier are of the opinion that there is no mens rea or the intention to deceive, then they would proceed in the matter of assessing the amount to be charged from the consumer and then provision of Sections 126 & 127 of the Act would be followed; resulting into exclusion of jurisdiction of civil court under Section 145 of the Act. (Para 28)
(E) Civil Procedure Code, 1908, S.2--Decree--For an order of a court to have full effect of being a civil decree, the essence is the determination of the same through civil procedure and as per the principles of civil law--Any determination through criminal law cannot have the full effect of or exclude the determination through civil law for the simple reason that in criminal determination one of the parties, i.e., the accused is always under threat of punishment, he cannot even raise all his pleas for the fear of prejudice to his defence against prosecution and has a right; even to remain silent--Hence a determination through criminal procedure cannot exclude determination through civil procedure--After all a citizen cannot be forced to be subjected to legal asphysxia. (Para 34)
Mr. Rajbir Sehrawat, J.:- The only question involved in this appeal for consideration by the Court is whether the jurisdiction of the Civil Court is barred under Section 145 of the Indian Electricity Act, in the cases where the demand of the electricity board/department is of the charges based on alleged theft covered under Section 135 of the Electricity Act and further whether the consumer can be suggested the alternate remedy of appeal under Section 127 of the Act in such a case.
2. The facts of this case are that the respondent herein had filed a suit for permanent and mandatory injunction to the effect that defendants be restrained from disconnecting the electricity supply of the meter installed in his premises and they be also restrained from recovering the impugned penalty of Rs. 1,49,200/-; which was imposed by defendant No. 1(appellant herein) vide memo dated 27.01.2006. It was pleaded by the plaintiff/respondent herein that he was having a domestic electricity connection of Atta Chakki bearing no. M-18SP in his premises at village Matarsham Tehsil and District Hisar since 1982. On 15.01.2006 the above said electric meter got fire due to some electric fault/voltage fluctuation and the meter was burnt. The plaintiff’s neighbour Nand Lal had seen the burning of the meter and informed the plaintiff about the same. Number of persons from neighbourhood, even the Sarpanch and Panches of the village also gathered there. The plaintiff went to inform the lineman of the area alongwith his uncle to village Kurri. But the lineman was not available and then another line-man came to the village and he inspected the site and asked the plaintiff to report the matter to the J.E. of the Adampur area. Thereafter, the matter was reported to the said J.E.. On 16.01.2006 in the morning the J.E. had come and inspected the site and an application in writing was given on the same day which was entered in the complaint register of the defendants. Thereafter, the defendants asked the plaintiff to purchase a new meter and the new meter was purchased through a mediator tea vendor who was having a tea stall outside the office of the defendants. An amount of Rs. 2,100/- was charged from him and the new meter was sent to the laboratory for testing the same on 17.01.2006 itself.
3. It was further pleaded in the plaint that Kapoor Singh J.E. told the plaintiff that his connection was operating an Atta Chakki and therefore, the SDO, D.N. Khatkar, Avneet Singh and one Rai Sahab are demanding Rs. 25,000/- from the plaintiff and that if payment is not made by him to them then a case for theft of electricity would be registered against him. The plaintiff requested the above said Kapoor Singh that he was not at fault when meter had been burnt. It was further pleaded that the above said D.N. Khatkar came to the village on 19.01.2006, threatened and demanded Rs. 25,000/- from the plaintiff. Plaintiff became terrified and paid Rs. 12,500/- to Kapoor Singh, J.E. On 19.01.2006, in the presence of Ram Pyara and Munshi Ram and after taking Rs. 12,500/- Kapoor Singh asked the plaintiff to visit Hisar office on 26.01.2006 and there the signature of the plaintiff was obtained on some printed papers. Thereafter, Kapoor Singh threatened that if the balance of Rs. 12,500/- is not paid then he would be helpless as the above said persons were demanding the full amount of bribe. The plaintiff expressed his inability to make more payment. Thereafter, a false report was prepared by the officials that M and P seal of meter were found missing and rivets found tampered. It was claimed by the plaintiff that neither meter was tampered nor seal was tampered by him. The meter was burnt-out due to the electricity supply/voltage fluctuation. On 28.01.2006, the plaintiff received a letter dated 27.01.2006 by which the penalty of Rs. 1,49,200/- had been imposed.
4. It was further pleaded that challenging this illegal demand the plaintiff had moved the District Consumer Dispute R
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