Back
2018 Supreme(P&H) 909
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RAKESH KUMAR JAIN, J.
M/s Motia Constructions Ltd. – Petitioner
Versus
Sub Divisional Magistrate, Derabassi and others – Respondents
CWP No. 21579 of 2013
Decided On : 24-01-2018
For the Petitioner:Mr. Pankaj Jain, Advocate
For the Respondent:Mr. H.S. Sitta, AAG, Punjab, Mr. Vinod S. Bhardwaj, Advocate
The main legal point established in the judgment is that the proceedings must be initiated under the correct section of the Act, and the appellate authority must pass a speaking order considering the issues raised by the petitioner.
Headnote:
Electricity Act - Unauthorized Use of Electricity - Sections 126, 127, 135, 151, 154
Fact of the Case:
The petitioner, a builder/developer, was alleged to have committed theft of electricity. The respondents served a notice for theft of electricity and subsequently filed an FIR. The petitioner objected to the notice, and the respondents passed a final assessment order reducing the liability. The petitioner filed an appeal under Section 127 of the Act, which was dismissed. The petitioner challenged the orders, arguing that the proceedings were initiated under the wrong section and that the appellate authority's decision was non-speaking.
Finding of the Court:
The court found that the proceedings were initiated under Section 126 of the Act for unauthorized use of electricity, as evidenced by the provisional assessment and the final assessment order. The court also found that the appellate authority's decision was non-speaking and did not consider the issues raised by the petitioner.
Issues: The issues were whether the proceedings were initiated under the correct section of the Act and whether the appellate authority's decision was valid.
Ratio Decidendi: The court held that the proceedings were initiated under Section 126 for unauthorized use of electricity, and the petitioner rightly filed the appeal under Section 127. The court also held that the appellate authority's decision was non-speaking and remanded the matter for a fresh decision.
Final Decision: The petition was allowed, the impugned order was set aside, and the matter was remanded back to the appellate authority for a fresh decision.
RAKESH KUMAR JAIN, J.
1. Before I delve into the facts of this case it would be apt to refer to the provisions of the Electricity Act, 2003 [for short ‘the Act’] which are invoked by both the sides. The Act envisages penalty upon a consumer in two circumstances, namely, unauthorized use of electricity [for short ‘the UUE’] and theft of electricity. Part XII of the Act deals with the ‘Investigation and Enforcement’ which also includes the provisions regarding UUE and Part XIV of the Act deals with the ‘Offences and Penalties’ in respect of theft of electricity.
2. In the case of UUE, provisions of Sections 126 & 127 of the Act are invoked both by the licensee and the consumer and in case of theft of electricity Sections 135 & 151 of the Act are invoked. Part XV of the Act deals with the ‘Special Courts’ providing a remedy to the consumer, who is saddled with the liability of having committed a criminal offence of committing theft of electricity, to approach the Special Court constituted under Section 153 of the Act for which the procedure is provided under Section 154 of the Act. The relevant provisions of the Act for the decision of this case are reproduced as under:-
“Section 126: (Assessment) --
(1) If on an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found connected or used, or after inspection of records maintained by any person, the assessing officer comes to the conclusion that such person is indulging in unauthorized use of electricity, he shall provisionally assess to the best of his judgment the electricity charges payable by such person or by any other person benefited by such use.
(2) The order of provisional assessment shall be served upon the person in occupation or possession or in charge of the place or premises in such manner as may be prescribed.
(3) The person, on whom an order has been served under sub- section (2) shall be entitled to file objections, if any, against the provisional assessment before the assessing officer, who shall, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment within thirty days from the date of service of such order of provisional assessment of the electricity charges payable by such person.
(4) Any person served with the order of provisional assessment, may, accept such assessment and deposit the assessed amount with the licensee within seven days of service of such provisional assessment order upon him.
(5) If the assessing officer reaches to the conclusion that unauthorised use of electricity has taken place, the assessment shall be made for the entire period during which such unauthorized use of electricity has taken place and if, however, the period during which such unauthorised use of electricity has taken place cannot be ascertained, such period shall be limited to a period of twelve months immediately preceding the date of inspection.
(6) The assessment under this section shall be made at a rate equal to twice the tariff rates applicable for the relevant category of services specified in sub-section (5).
Explanation.- For the purposes of this section,-
(a) “assessing officer” means an officer of a State Government or Board or licensee, as the case may be, designated as such by the State Government;
(b) “unauthorised use of electricity” means the usage of electricity –
(i) by any artificial means; or
(ii) by a means not authorised by the concerned person or authority or licensee; or
(iii) through a tampered meter; or
(iv) for the purpose other than for which the usage of electricity was authorised; or
(v) for the premises or areas other than those for which the supply of electricity was authorized.”
Section 127. (Appeal to Appellate Authority): ---
(1) Any person aggrieved by the final order made under section 126 may, within thirty days of the said order, prefer an appeal in such form, verified in such manner and be accompanied by such fee as may be specified by the State Comm
