Civil liabilities for electricity theft must be determined by a Special Court, and actions based on provisional assessments are invalid post-exoneration.

1.This petition filed under Art.226 of the Constitution is directed against the order Annexure P / 4 whereby respondents have provisionally assessed Rs. 19302/- against the petitioner relating to her alleged act of electricity theft.

2. The case of the petitioner is that she is residing in the residential premises situated in Khurje Wala Mohalla, Lashkar, Gwalior. She occupied the residential premises after the death of her husband. It is urged that a complaint under S.135 of the Electricity Act, 2003 is filed against the petitioner. The said complain was frivolous and therefore, the Special Court in Special Session No. 1083/2012 exonerated the petitioner. It is submitted that after her exoneration respondents are not justified in asking payment from the petitioner which was assessed in provisional assessment order dated 07.10.2011 (Annexure P / 4). It is submitted that petitioner has already discharged her entire civil liabilities by making payment of electricity bills. Copy of bill dated 26.07.2013 is filed as Annexure P / 5.

3. Shri Chandresh Shrivastava, learned counsel for the petitioner submits that electricity is essential amenity in present scenario. Depriving any citizen from electricity means violation of fundamental rights flowing from Art.21 of the Constitution. To bolster his submission he relied on 1987 (II) MPWN SN 67 (Kallo v.. Ratan Devi) and 1989 (II) MPWN SN 54 ( Lallamal Sharma v. Islami Begum ). By relying on 2009 (1) MPLJ 366 ( Sangita v. State of M.P. ) Shri Chandresh Shrivastava submits that respondents have no authority, jurisdiction and competence to press Annexure P / 4 into service after petitioner's exoneration by Special Court.

4. Per Contra, Shri Anil Mishra, learned counsel for the other side supported the order Annexure P / 4. Shri Mishra submits that civil liabilities and duties are prevailing against the petitioner and therefore, action of the respondents is in accordance with law. He heavily relied on the judgment of Supreme Court reported in AIR 2003 SC 1354 (J.M.D. Alloys Ltd. Appellant v. Bihar State Electricity Board and Others) He also relied on the judgment of Allahabad High Court reported in AIR 2010 Allahabad 115 ( Rais Ahmad v. U.P. Power Corporation Ltd. and Others.). By placing reliance on letters dated 12.08.2010 Annexure R / 1 and R / 2 written by Special Judge (Electricity Act) it is urged that this letter of the learned presiding Judge makes it clear that in view of judgment of Supreme Court in JMD Alloys (supra) despite exoneration of the accused in criminal case, civil liability continues and it is open to respondent company to recover the said civil liability.

5. No other point is pressed by learned counsel for the parties.

6. I have bestowed my anxious consideration on the rival contentions of the parties and perused the record.

7. The bone of contention of petitioner is that pursuant to provisional assessment order dated 07.10.2011, a complaint Annexure P / 3 was filed before Special Judge which was registered as Special Session case No. 1083/2012. In para 8 of this complain it was prayed that civil liabilities be determined and recovered from the present petitioner. The Court below dismissed the said complaint on 07.03.2013. Petitioner submits that after adjudication of matter by Special Court and in absence of determining and imposing any civil liability on the petitioner, it is no more open to the respondents to implement Annexure P / 4. Whereas the stand of the respondents is that it can be done in the light of Judgment of Supreme Court and Allahabad