SCA/11769/2004 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 11769 of 2004 For Approval and Signature: HONOURABLE MR.JUSTICE ANANT S. DAVE ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= HEMENDRA CHANDULAL SHAH - Petitioner(s) Versus AHMEDABAD ELECTRICITY CO LTD - Respondent(s) ========================================================= Appearance : MR RAMESH K SHAH for Petitioner(s) : 1, MR KB PUJARA for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 15/09/2008 ORAL JUDGMENT 1) By way of the present petition under Articles 226 and 227 of the Constitution of India read with SCA/11769/2004 2/7 JUDGMENT Electricity Act, 2003, the petitioner-consumer of electricity having service No.191773, made the following prayers :- “(A) Admit/allow this writ petition and the respondent-company be directed by an order of this Hon'ble Court to refund the amount of Rs.35,000/- collected by the officers of the respondent on 27.8.2004 for which no pacca receipt is given and the respondent be restrained by an order of permanent injunction of this Hon'ble Court not to encash the three cheques of dated 27.9.2004, 27.10.2004 and 28.12.2004 of Rs.9,043/- each collected in advance from the petitioner or for non-payment of the said amount, the electricity supply of the petitioner under Service No.191773 may not be disconnected by the respondent. (B) Pending the hearing and final disposal of this petition, the respondent-company be directed by an order of interim injunction to refund the amount of Rs.35,000/- collected by the officers of the respondent on 27.8.2004 for which no pacca receipt is given and the respondent be restrained by an order of interim injunction not to encash the said three cheques of dated 27.9.2004, 27.10.2004 and 28.12.2004 of Rs.9,043/- each collected in advance from the petitioner or for non-payment of the said amount, the electricity supply of the petitioner under Service No.191773 may not be disconnected by the respondent”. 2) It is the case of the petitioner that on or about 26.8.2004 the officers of the respondent-electricity company visited the residential premises of the petitioner and threatened to disconnect the electricity supply on the ground that there were some scratches on the body of the meter and prima facie it was because of usage of a magnet so that electricity meter may not record correct reading of SCA/11769/2004 3/7 JUDGMENT consumption of electricity. 3) According to the assessment made by the officer of the respondent, Rs.68,367/- was to be paid by the petitioner and since the petitioner had agreed to pay the amount so that his electricity supply may not be disconnected at his residential premises, initially three cheques dated 27.9.2004, 27.10.2004 and 28.12.2004 of Rs.9,043/- each were issued by the petitioner. 4) Learned counsel for the petitioner contended that the respondent-electricity company is not empowered to disconnect the electricity supply and has to follow the provisions made under Section 126 of the Electricity Act, 2003 (for short, “the Act”) for assessment and thereafter only if the consumer fails to pay the amount, proper action in accordance with law, can be taken. According to learned counsel for the petitioner, no such procedure is followed by the respondent company before arriving at a conclusion of raising demand of the amount of Rs.68,367/-, prayers made in this petition be granted by ordering refund of the amount paid by the petitioner. 5) Mr.K.B.Pujara, learned counsel for the respondent- electricity company, submits that the petitioner herein had tampered with the meter by using a magnet with a view to see that consumption of electricity is not properly recorded. Thereafter, laboratory testing was carried out in the presence of the consumer and it was found that there were scratches of use of permanent magnet on the said meter and it was a case of theft of energy as provided under SCA/11769/2004 4/7 JUDGMENT Section 135 of the Act. Copy of the laboratory testing of the meter was also supplied to the consumer and thus assessment was carried out in accordance with the specified procedure. 6) According to Mr.Pujara, learned counsel for the respondent-electricity company, this petition is nothing but an after-thought and misuse of process of law inasmuch as the petitioner had on his volition entered into compromise with electricity company, gave consent letter dated 27.8.2004 wherein he admitted the malpractice committed by him and requested the electricity company to accept three post-dated cheques towards part payment of the outstanding dues, in three different installments of Rs.9,043/- each, with an assurance that in future such event will not be repeated. Therefore, electricity connection was not disconnected and no further action was taken against the petitioner. Learned counsel for the electricity-company further submits that though offence under Section 135 of the Act for theft was to be registered, but since the petitioner by consent letter admitted the theft and paid the amount, no further action was taken by the respondent-electricity company. 7) Learned counsel for the respondent-electricity further submits that provisions of Section 126 of the Act for assessment operates in different area as held by this Court in a reported decision in the case of Torrent Power AEC Ltd. vs. Gayatri Intermediates Pvt. Ltd. reported in 2006(2) GLH 375, therefore, contention of the learned counsel for the petitioner to go through the gamut of Section SCA/11769/2004 5/7 JUDGMENT 126 of the Act is not warranted in the case of theft and the petition deserves to be rejected. 8) In rejoinder affidavit the petitioner states that the consent letter was signed by the petitioner under duress and the same may be discarded. 9) Having heard learned counsel for the parties and considering the facts and circumstances of the case and relevant provisions of the Act, more particularly sections 126, 127, 135, 151, 152, 153 and 154 of the Act, I am not inclined to accept the submissions of the learned counsel for the petitioner that the respondent herein is duty-bound to follow procedure under Section 126 of the Act with regard to assessment. In para 21(v) and (vi) of the judgment, the Hon'ble Division Bench held as under :- “21(v) Assessment to be made by the distribution licensee in theft cases is not governed by the provisions of Section 126 of the Act, but is governed by the provisions of Section 50 read with Regulation (Section) 7.6.5 of the Gujarat State Electricity Supply Code, 2005 as framed by the Gujarat Electricity Regulatory Commission and amended with effect from 14th December 2005. (vi) Against such assessment, remedy of appeal under Section 127 of the Act is not available of the aggrieved party, but its remedy will be only before the Special Court constituted under Section 153 of the Act which will exercise its jurisdiction in accordance with the provisions of sub -sections (5) and (6) of Section 154 of the Act”. It is clearly held by the Division Bench of this Court in para 21 (v) and (vi) that assessment of SCA/11769/2004 6/7 JUDGMENT theft case is not governed by the provisions of Section 126 of the Act, and therefore, contention of the petitioner that procedure under section 126 of the Act was mandatory to be followed by the respondent, is misconceived and is hereby rejected. 10)This petition under Articles 226 and 227 of the Constitution of India is nothing but an abuse of process of law inasmuch as initially the petitioner on his volition gave consent letter to the respondent-electricity company admitting the malpractice committed by him and requested the electricity company to accept three post-dated cheques towards part payment of the outstanding dues, in three installments of Rs.9,043/- each, with an assurance that in future such event will not be repeated and thereafter filed the present petition with a prayer to refund the amount on the ground that the consent letter was issued under duress, is nothing but a somersault by the petitioner. Nothing transpires from the record that the petitioner had to enter into consent terms due to any duress, threat etc. It is also true that the balance amount is already paid pursuant to the order passed by this Court. Therefore, relief of refund cannot be granted to the petitioner since case of theft under Section 135 of the Act was made out against the petitioner, which was not taken up any further in view of the assurance given by the petitioner to pay the outstanding dues. However, as stated earlier, provisions of Section 126 of the Act are not applicable to the facts of the present case and it is a case of theft of SCA/11769/2004 7/7 JUDGMENT electricity. Therefore, extra-ordinary writ jurisdiction under Article 226 or 227 of the Constitution of India cannot be exercised in favour of the petitioner. 11)In view of the above discussion, this Special Civil Application fails and is hereby dismissed with costs of Rs.10,000/-. Rule discharged. (ANANT S. DAVE, J.) *pvv