The assessing officer has no authority to pass any order regarding assessment of liability and penalty against a consumer if proceedings for theft under Section 135 of the Electricity Act, 2003 are initiated. The consumer has the right to challenge such orders in a civil suit.

JUDGMENT

G.S. Sandhawalia, J. - The appellants-defendants are in Regular Second Appeal against the concurrent findings of the Civil Court at Kaithal dated 14.10.2019 whereby the suit of the plaintiff-respondent was decreed and against the decision of the Lower Appellate Court dated 19.02.2020 vide which the appeal was also dismissed.

Counsel for the appellants has vehemently submitted that the Courts below were in error in decreeing the suit as the jurisdiction of the Civil Court was barred and the proceedings under Section 135 of the Electricity Act, 2003 (for short, the 'Act') had been initiated against the respondent-consumer.

On a perusal of the record, this Court is of the opinion that no substantial question of law arises for consideration in the present Regular Second Appeal.

**** The facts would go on to show that for checking done on 25.07.2018, the notice had been issued as electricity assessment charges for Rs.26,282/- and Rs.8000/- as compounding fees on the compounding of the alleged theft. Same were challenged by the plaintiff on the ground that no opportunity of hearing was given to him and the meter was installed outside the premises of the plaintiff and he had already installed solar energy equipment in his premises and he was using solar energy.

The defence of the present appellants was that on checking, it was found that the load shown at 'A' was running through the meter and load shown at 'B' was connected directly bypassing the meter and thus, the total connected load of 'A' and 'B' was 3.898 KW against the sanctioned load of 0.500 KW. The plaintiff had refused to put his signatures upon the checking report (LL-1) and resultantly, both demands were issued and letter had also been written to the SHO, I&P, Jind for lodging the FIR against the plaintiff for using the electricity dishonestly by committing direct theft.

On the framing of the issues, the Trial Court very succinctly examined the provisions of the Act to came to the conclusion that Section 126 on one hand and the provisions of Section 135 are distinct and different and operate in different fields and have no common premise in law. Reliance was rightly placed upon the judgment of the Apex Court in The Executive Engineer & another Vs. M/s Sri Seetaram Rice Mills 2012 (3) CCC 68. The relevant portions of the judgment read as under:

“15. Upon their plain reading, the mark differences in the contents of Sections 126 and 135 of the 2003 Act are obvious. They are distinct and different provisions which operate in different fields and have no common premise in law. We have already noticed that Sections 126 and 127 of the 2003 Act read together constitute a complete code in themselves covering all relevant considerations for passing of an order of assessment in cases which do not fall under Section 135 of the 2003 Act. Section 135 of the 2003 Act falls under Part XIV relating to `offences and penalties' and title of the Section is `theft of electricity'. The Section opens with the words `whoever, dishonestly' does any or all of the acts specified under clauses (a) to (e) of Sub-section (1) of Section 135 of the 2003 Act so as to abstract or consume or use electricity shall be punishable for imprisonment for a term which may extend to three years or with fine or with both. Besides imposition of punishment as specified under these provisions or the proviso thereto, Sub-section (1A) of Section 135 of the 2003 Act provides that without prejudice to the provisions of the 2003 Act, the licensee or supplier, as the case may be, through officer of rank authorized in this behalf by the appropriate commission, may immediately disconnect the supply of electricity and even take other measures enumerated under Sub-sections (2) to (4) of the said Section. The fine which may be imposed under Section 135 of the 2003 Act is directly proportional to the number of convictions and is also dependent on the extent of load abstracted. In contradistinction to these provisions, Section 1