The violation of statutory provisions and principles of natural justice allows for the challenge before the Civil Court, despite the jurisdiction bar under Section 145 of the Act.

JUDGMENT :

SUDHIR MITTAL, J.

1. The plaintiff-respondent filed a suit for declaration that demand made in the electricity bill payable on 13.10.2017, was illegal and thus, was not recoverable. Consequent relief of injunction was also sought. The suit was decreed by the learned trial Court and appeal was dismissed by the learned first appellate Court. A decree has been passed that the amount mentioned in the aforementioned bill, is not recoverable and that memos dated 10.8.2017, are illegal and no recovery can be effected on their basis.

2. On the basis of the respective pleadings, it can be deduced that the premises of the plaintiff-respondent was checked on 8.8.2017 and it was allegedly found that he was consuming more than the connected load. Thus, notices dated 10.8.2017 (Ex. D-4 and D-5) were issued under Section 135 of the Electricity Act, 2003 (hereinafter referred to as the ‘Act’) for alleged theft of electricity. A provisional order of assessment was drawn up, but the same was never communicated to the plaintiff-respondent and the amount so assessed was reflected in the bill payable on 13.10.2017, which led to the filing of the present suit.

3. Learned counsel for the appellants has argued that in view of Section 145 of the Act, the civil Court had no jurisdiction and thus, the impugned judgments are a nullity. He has also submitted that the issue regarding jurisdiction of the Civil Court is pending before a Division Bench of this Court pursuant to reference order dated 21.12.2016 passed in RSA-4181-2016 and RSA-4928-2016. Thus, this matter be also referred to the Division Bench as the Courts below have erroneously rejected the objection of the appellants that the Civil Court had no jurisdiction in this matter.

4. On the basis of the evidence on record, the Courts below have determined as a matter of fact that the inspection done on 8.8.2017 was illegal as the same was not done in the presence of the consumer or any member of his family. Even, no respectable person of the locality was associated. This finding has been reached on the basis of admission of DW-1. Although, the said witness has stated that the neighbor was called at the time of inspection, but the same has been dis-believed as no signature or thumb-impression of the neighbor was found on the checking report (Ex.P-2). It has also been found that the checking so done was violative of the sales circular No.D-43/2007 and consequently, illegal.

5. Learned counsel for the appellants has not been able to show that the aforementioned factual finding was erroneous.

6. It has also been held that provisions of Section 126 of the Act have been violated, which has also resulted in violation of the principles of natural justice. Applicability of the said provision has been found on the basis of judgments of the Hon’ble Supreme Court of India in The Executive Engineer and another Vs. M/s Sri Seetaram Rice Mill 2012 (3) Civil Court Cases 068 (SC), and Orissa State Electricity Board and another Vs. IPI Steel Limited and others, 1995 (4) SCC 328. In the said judgments, it has been held that the consumption of excess load is a mal-practice, which falls within the mischief of ‘unauthorized use’ as mentioned in Section 126 and Section 135 of the Act, is not applicable as the said provision pertains to theft of electricity. Section 126 of the Act is reproduced below for ready reference:-

‘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 th