IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH R.S.A. No. 4351 of 2009 (O&M) Date of decision: November 08, 2011 M/s Bharat Auto Care .. Appellant Vs. Punjab State Electricity Board and another .. Respondents Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. Ashok Jindal, Advocate for the appellant. Mr. Ashok Singh Chaudhary, Advocate for the respondents. A.N. Jindal, J The trial court vide its judgment dated 25.2.2008, dismissed the suit of the plaintiff for permanent injunction restraining the Punjab State Electricity Board defendant- respondent No.1 (herein referred as, 'the defendant') from recovering the amount of `1,28,542/- and also for mandatory injunction directing the Board to resume the connection illegally disconnected by them. The appeal preferred by the plaintiff was also dismissed by the Appellate Court vide its judgment dated 4.9.2009. The prime question to be determined in this case is, “whether the civil court has the jurisdiction to try the suit?” The factual matrix, as essential for disposal of this regular second appeal is that electricity connection No.JP-34/0654 NRS is installed in the premises of the plaintiff where he is running a petrol pump in the name and style of M/s Bharat Auto Care Authorised Dealer, Phoos Mandi, Bathinda. The premises of the plaintiff were raided and he was found stealing electricity by the Assessor of the Board i.e. respondent No.2. Ultimately, memo No. 1439 dated 10.9.2002, raising demand for payment of the aforesaid amount was issued. However, the plaintiff challenged the said demand notice in the court. The plaintiff has alleged that the report made by the assessor to the effect that he was using the excess load than sanctioned one indicates that he was stealing the electricity, is not correct. The defendants while putting in appearance denied the allegations and submitted that at the time of raid, the plaintiff was found R.S.A. No. 4351 of 2009 (O&M) -2- *** stealing the electricity. It was also alleged that the meter was checked in the presence of the employees of M/s Indian Oil Corporation in whose premises the plaintiff is running the business. At the time of checking of the meter by senior XEN Enforcement, Bathinda, it was observed that 7.5 KVA load was running at that time against the sanctioned load of 33.610 KW. It was also observed that the meter installed in the premises was tilting towards front side to stop its movement and its disc was found dead stop, but when the meter was pushed back, its disc started moving in the right direction. Thus, the plaintiff had controlled the consumption of the electricity intentionally in order to cause loss to the Board which amounts to theft of energy. On the basis of the aforesaid checking, the demand notice was rightly issued and the connection was disconnected. The raid was conducted in the presence of Gurpreet Singh, Sales Man of the plaintiff. He was also given personal hearing. There was no necessity to get the meter checked from the laboratory of PSEB. Consequently, they prayed for dismissal of the suit. From the pleadings of the parties, the following issues were framed by the trial court :- 1. Whether the plaintiff is entitled to declaration as prayed for?OPP 2. Whether the plaintiff is entitled to permanent injunction as prayed for?OPP 3. Whether the plaintiff is entitled to mandatory injunction as prayed for?OPP 4. Whether the plaintiff has no locus standi or cause of action to file the present suit?OPD 5. Whether the suit is not maintainable in the present form?OPD 6. Whether this court has no jurisdiction to try the present suit?OPD 7. Relief. R.S.A. No. 4351 of 2009 (O&M) -3- *** Both the parties led evidence. As against the oral evidence led by the plaintiff, the Board examined Jaspal Singh Sr. XEN (DW2) who through his affidavit Ex.DW2/A has reiterated the aforesaid allegations as emanating from the inspection report and also further stated that theft of electricity was apparent and there was no requirement to send the electricity meter to M.E. Lab. His testimony could not be challenged by the plaintiff in any manner. There is no dispute that the plaintiff is the owner of the premises where the electricity meter was installed and he is now consumer of the electricity. The excess load could be detected by Jaspal Singh Sr. XEN. (DW) at the time of spot inspection and it was also apparent from the naked eye that the accused had stopped the meter by tilting the same towards front side and it was in a loose position on wooden board and its disc was also found dead stop on load. Jaspal Singh Sr. XEN (DW2) has also made specific observations that when the meter was pushed back its disc started moving in the right direction. All this goes to show that the plaintiff had a control over the consumption intentionally and as such there was no requirement to send the meter to the M.E. Lab for further examination. The learned counsel for the defendant, primarily, has raised the contention that the present case is the case of unauthorised use of the electricity falling within the purview of Section 126 of the Electricity Act, 2003 (herein referred as, 'the Act'), therefore, the civil court's jurisdiction is barred. To the contrary, learned counsel for the plaintiff- appellant has countered the argument by saying that the case cannot be said to be of unauthorised use of the electricity so as to be covered by Section 126 of the Act, as such, the civil court has the jurisdiction to entertain the suit. Before I set my hands over the legal proposition it would be relevant to observe that the plaintiff has challenged the assessment made by the assessor and the disconnection of the electricity made by him. The assessor at the time of inspection found the following things : i) There was running load of 7.5 KVA against the sanctioned load of 33.610 KW. ii) The appellant by loosing the wooden board had tilted the R.S.A. No. 4351 of 2009 (O&M) -4- *** electric meter towards the front side so as to make its disc dead stop, as such, though the electricity was being used but the meter was not allowed to work. iii) The assessor when pushed the meter back, then its disc started moving in the right direction. It may further be observed that after making spot inspection, the assessor sent a proposed demand notice inviting objections, but instead of filing of the objection before the assessor, the plaintiff came to challenge the demand notice by way of civil suit. The authority of the assessor has not been challenged. Now coming to the question whether the civil court's jurisdiction is barred, the legislature while enacting the Electricity Act, 2003 added provisions i.e. Section 126 and 135 to the Act which relate to unauthorised use of electricity and theft of electricity. Section 126 of the Act reads as under : “126. Assessment - (1) If on an inspection of any place or premises or after inspection of equipments, gadgets, machines, devices found connected or used, or after inspection of the records maintained by any person, the assessing officer comes to the conclusion that such person is indulging in unauthorised 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 R.S.A. No. 4351 of 2009 (O&M) -5- *** 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 unauthorised 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 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 authorised. On bare reading of the aforesaid section, it transpires that the assessor was given the power for spot inspection and make the assessment with regard to unauthorised use of the electricity and in case he finds it in R.S.A. No. 4351 of 2009 (O&M) -6- *** positive, he was to make the provisional assessment and thereafter send a demand notice upon the consumer calling for filing objections, if any, made by him and thereafter he would pass the final order of assessment of electricity charges payable by such person and it was the choice of the consumer to accept the said final assessment. Thereafter, the act has provided a remedy to the consumer, if aggrieved by such assessment, to move to the authority as provided under Section 127 of the Act, which reads as under :- 127. Appeal or 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 Commission, to an appellate authority as may be prescribed. (2) No appeal against an order of assessment under sub- section (1) shall be entertained unless an amount equal to half of the assessed amount is deposited in cash or by way of bank draft with the licensee and documentary evidence of such deposit has been enclosed along with the appeal. (3) The appellate authority referred to in sub-section (1) shall dispose of the appeal after hearing the parties and pass appropriate order and send copy of the order to the assessing officer and the appellant. (4) The order of the appellate authority referred to in sub- section (1) passed under sub-section (3) shall be final. (5) No appeal shall lie to the appellate authority referred to in sub-section (1) against the final order made with the consent of the parties. (6) When a person defaults in making payment of assessed amount, he, in addition to the assessed amount, shall be liable to pay, on the expiry of thirty days from the date of order of assessment, an amount of interest at the rate of sixteen percent per annum compounded every six months. R.S.A. No. 4351 of 2009 (O&M) -7- *** From the bare reading of the said section, it transpires that the order passed by the Assessing Officer is amenable to appeal. Consequently, in order to curtail the superfluous litigation and taking notice of the fact that the consumer, if aggrieved, could have recourse of the remedy before the appropriate authority as provided under the Act expressly barred the jurisdiction of the civil court. Section 145 of the Act reads as under : 145. Civil Court not to have jurisdiction – No civil court shall have jurisdiction to entertain any suit or proceedings in respect of any matter which as assessing officer referred to in Section 126 or an appellate authority referred to in Section 127 or the adjudicating officer appointed under this Act is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.” A perusal of Section 145 of the Act would show that this section operates only in respect of Sections 126 and 127 of the Act. Section 126 is contained in Part XII of the Electricity Act and deals with investigation and enforcement. Section 126 provides that if on an inspection of the premises and after inspection of equipments, gadgets, etc. found connected or used in the premises, the Assessing Officer comes to conclusion that the person was indulging in unauthorized use of electricity, then the Assessing Officer would follow the procedure as provided under Section 126 and issue the demand notice and ultimately pass a final order after hearing the objections. Thereafter, as per Section 127 of the Act, the person aggrieved may appeal within 30 days of the order to the appellate authority, but in view of Section 145 of the Act there would be complete bar of jurisdiction in case of detection of unauthorized use of electricity. The Act not only bars any sort of declaration regarding the legality of the notice, but it specifically provides that no injunction shall be granted by any court R.S.A. No. 4351 of 2009 (O&M) -8- *** or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act. Now coming to the other aspect as to how this unauthorized use of electricity could be distinguished from theft of electricity. Section 135 of the Act relates to the theft of electricity which reads as under :- “135: Theft of Electricity: 1. Whoever, dishonestly, - a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee or supplier, as the case may be; or b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or c) damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of electricity, or d) uses electricity through a tampered meter; or e) uses electricity for the purpose other than for which the usage of electricity was authorized, so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.” Thus, both these provisions are absolutely different from each other and both operate in different fields. Similar observations were made in case Sohan Lal v. North Delhi Power Ltd. And other (per Sanjay R.S.A. No. 4351 of 2009 (O&M) -9- *** KishanKaul, J.) in the decision reported at 2004 VII AD (Delhi) 548 which was later on followed in the judgment delivered by the Delhi High Court in case Sh. B.L. Kantroo vs. BSES Rajdhani Power Ltd. 2009 (1) AD (Delhi) 63. The Delhi High Court in Sohan Lal's case (supra) recorded a fine distinction while observing as under : “37. The Explanation to Section 126 of the said Act defines the expression “unauthorised use of electricity” and the definition includes four categories as specified in the Sub-para (b) to the Explanation. It has been defined to mean the usage of electricity (i) by any artificial means. (ii) by means not authorized by the concerned person or authority of licensee. (iii) through a tampered meter, and (iv) for the purpose other than for which the usage of electricity was authorized. Thus, Section 126 can apply only in these cases since the same is confined to 'unauthorized use of electricity'. The expression 'theft' has not been used under Section 126 of the said Act of 2003, 38. The expression 'theft' has been used in Section 135 of the said Act. Thus, in the same enactment, these two expressions “unauthorized use of electricity” and 'theft' have been used separately and, thus, must have their own connotations. They cannot be said to be substitute for one or the other. 39. XXX 40. There is no doubt that some of the expressions used in Section 126 of the said Act also appear in Section 135 thereof. An illustration of this was given in respect of tampering of a meter. However, Section 126 uses the expression to include the usage of electricity through a tampered meter, while the expression under Section 135 is 'tampers a meter'. If the definitions given of theft of electricity under Section 135 are considered, they are specific in nature. There is dual requirement. Firstly, the act should be done dishonestly. Secondly, it should form part of one of the acts specified in Sub-paras (a) to (c) of Sub-section (1) of Section 135 of the R.S.A. No. 4351 of 2009 (O&M) -10- *** said Act. Thus, specific acts have been given like tapping through overhead, underground or under water lines or cables, tampering of meter, damage or destruction of electric meters and apparatus, to interfere with the proper or accurate metering of electricity. An act to constitute theft of electricity must, thus, satisfy the aforesaid requirements.” In the instant case, excess load was being used than the sanctioned one, as well as the meter was tilted towards the front side so as to make the disc dead stop, therefore, it could be said that the case is covered by both the provisions as provided under the Act. It is also not in dispute that the State Government while exercising the powers under Section 153 of the Act has constituted special courts. The procedure with regard to determination of the compensation/liability for unauthorized use of electricity has been provided under Section 126 of the Act, whereas, in case of theft of electricity, the act also empowered the special courts to determine the civil liability against the consumer or a person in terms of money for theft of energy which shall not be less than the amount equivalent to two times of tariff rate applicable for the period of 12 months preceding the date of detection of theft of energy. The civil liability so determined shall be recoverable as if it was a decree of Civil Court. For this purpose it is essential to re-produce Sub- section (5) of Section 154 of the Act, which reads as under :- “154. Procedure and power of Special Courts - (1) to (4) xx xx xx (5) The Special Court shall determine the civil liability against a consumer or a person in terms of money for theft of energy which shall not be less than an amount equivalent to two times of the tariff rate applicable for a period of twelve months preceding the date of detection of theft of energy or the exact period of theft if determined whichever is less and the amount of civil liability so determined shall be recovered as if R.S.A. No. 4351 of 2009 (O&M) -11- *** it were a decree of civil court (6) xx xx xx” Though the Delhi High Court while elaborating the provisions of Section 135 of the Act distinguished it from the elements as provided under Section 126 of the Act did not expressly bar the jurisdiction of the civil court in case of theft of electricity, yet it left open the remedy to the consumer to challenge the order before the Special Judge dealing with the case of theft of electricity by way of appeal because the order so passed was to be considered as decree passed by the civil court. In para No.22 of the judgment delivered in B.L. Kantroo's case (supra), observed as under :- “22. It is apparent that the cases of theft under section 135(1) involve mens rea. The jurisdiction of civil court is not barred but the power to try offences punishable under section 135 to 139 is conferred exclusively on the Special Court constituted under section 153 of the Act and the provisions of sub-section (5) of section 154 specifically invest Special Court with the jurisdiction to determine any dispute regarding the quantum of civil liability in theft cases whether or not the allegation of theft is disputed, is still entitled to make such a challenge to the disputed bill before the Special Court, even in cases where no criminal complaint is filed against the consumer and the amount of civil liability so determined shall be recovered as if it were a decree of a civil court and it can act as civil court as well as criminal court while conducting before it.” Ultimately, while throwing light over the jurisdiction of the civil Court, the Division Bench of Delhi High Court in B.L. Kantroo's case (supra), in para Nos. 28, 29 and 30 of the judgment observed as under :- “28. It is well-settled that the exclusion of jurisdiction of civil court cannot be readily inferred and the normal rule is that civil courts have jurisdiction to try all suits of a civil nature R.S.A. No. 4351 of 2009 (O&M) -12- *** except those of which cognizance by them is either expressly or impliedly excluded. The scheme of the Electricity Act is complete in itself and thereby the jurisdiction of the civil court to take cognizance of the cases under the Act, by necessary implication, stood barred. The Act provides for the jurisdiction of the Tribunals and/or appropriate forum and also hierarchy of appeals or revisions and gives finality to the orders passed thereunder. This also necessarily implies that the jurisdiction of the civil court to take cognizance of the suit of civil nature covered under Electricity Act stands excluded. Consumer cannot approach civil court without exhausting alternative remedies provided under Electricity Act. 29. It is true that ordinarily, the Civil Court has jurisdiction to go into and try the disputed questions of civil nature, where the fundamental fairness of procedure has been violated. By necessary implications, the cognizance of the civil court has been excluded. As a consequence, in the present case, the Civil Court shall not be justified in entertaining this suit and giving the declaration without directing the party to avail of the remedy provided under the Act. Therefore, by necessary implications, the appropriate competent authority should hear the parties, consider their objections and pass the reasoned order, either accepting or negativing the claim. Of course, it is not like a judgment of a civil court. Civil court has no jurisdiction by necessary implication to entertain suit for declaration and injunction against specially constituted forum in view of the specific provisions found in the Electricity Act. [(1997) 5 SCC 120]. 30. Although there is no specific provision in Section 145 of the Act for exclusion of jurisdiction of Civil Court to entertain any proceeding in respect of any matter which the Special Court is empowered by or under the Act to determine, we are of the view that any dispute about civil liability in theft cases is impliedly excluded from the jurisdiction of civil court in view of R.S.A. No. 4351 of 2009 (O&M) -13- *** the