IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 8325 of 2004 For Approval and Signature: HON'BLE MR.JUSTICE D.N.PATEL ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : YES of the judgement? 4. Whether this case involves a substantial question : YES of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- AHMEDABAD ELECTRICITY COMPANY LIMITED Versus RAMESH D DEVNANI -------------------------------------------------------------- Appearance: MR PRAFUL N THAKKAR for the Petitioner. MR HIREN P VYAS for the Respondent. MR PM VYAS for the Respondent. -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE D.N.PATEL Date of decision: 15/10/2004 CAV JUDGEMENT The present petition has been preferred under Articles 226 and 227 of the Constitution of India, whereby, the petitioner has challenged the order dated in Civil Suit no. 1917 of 2004 passed by the learned Judge, City Civil Court, Ahmedabad, mainly on the ground that the Ahmedabad City Civil Court has no jurisdiction to entertain the civil suit in view of the provisions of the Electricity Act, 2003, especially in view of section 145 thereof and has also prayed to quash and set aside the order below application exh. 15 in Civil Suit no. 1917 of 2004 passed by the Ahmedabad City Civil Court, Ahmedabad. 2. The learned counsel for the petitioner mainly submitted that the above civil suit has been preferred by the respondent for a declaration that the action of the petitioner of disconnection of electricity of the respondent(original plaintiff) bearing customer service no. 927337 of Naranpura zone, is illegal, unreasonable and violative of principles of natural justice and for getting a direction against the petitioner for immediate reconnection of electricity connection of the respondent-plaintiff. It is also submitted by the learned counsel for the petitioner that a reply was filed to the suit as well as to the injunction application by the petitioner company before City Civil Court, Ahmedabad wherein it was pointed out that the premises of the respondent was checked by the officers of the petitioner company and it was found that there was a theft of electricity in DP box, lead seal simple plyet press and lighting meter terminal cover as well as PVC seal were found disturbed. The terminal was open and it was found in the box that there is an extra black colour wire used for phase to phase link. By the aforesaid irregularity, it is found that the respondent had used "phase to phase link by one additional extra black colour wire so that without getting recorded consumption of electricity in the meter, the petitioner can get uninterrupted supply of electricity. Because of the aforesaid facts, the meter was sealed and was taken to the laboratory. Photographs of the aforesaid meter were also produced alongwith reply of the suit as well as injunction application before the trial court and the same has also been produced before this court at page 48 onwards at Annexure "C" collectively. It is also submitted by the learned counsel for the petitioner that immediately a checking report was issued to the opponent and the same is produced at page 53 of the memo of the petition. In fact, electricity connection has not been given to the respondent. Nonetheless, the respondent is using the electricity connection. It is also submitted by the learned counsel for the petitioner that thereafter assessment of theft of electricity was also given to the respondent which is at Rs 64,962/-. The respondent thereafter, filed a civil suit and the trial court passed the following order: "You the defendant A.E.C. is directed to reconnect the electric supply by plaintiff consumer No. 927337 within reasonable time, subject to plaintiff depositing Rs. 9000/- towards final assessment of their bill at first instance. Amount be accepted this day and necessary direction be given to the concerned staff. Yadi be sent to A.E.C. forthwith." The learned counsel for the petitioner submitted that the aforesaid order was passed on 12th July, 2004 which was served to the petitioner on the same day at 12.00 noon. Thereafter, the petitioner company had filed an application for staying the above order as the City Civil Court has no jurisdiction to entertain the civil suit for the case filed under section 135 of the Electricity Act, 2003 as the same is barred by section 145 of the Electricity Act. The petitioner company has also lodged a complaint being crime register No. II/64/2004 with G.E.B./A.E.C. police station, Sabarmati against the respondent (Annexure "E") on 12th July, 2004 at 16.30 hours. The learned counsel for the petitioner has also relied upon several case laws decided by the Hon'ble Supreme Court and other High Courts which will be discussed at a later stage in this judgment. 3. The learned counsel for the petitioner has vehemently submitted that when there are provisions which oust the jurisdiction of the Civil Court, especially under section 145 of the Electricity Act, the trial court ought not to have passed an order. In view of the aforesaid facts and the clear position of law, it was submitted by the learned counsel for the petitioner that the civil suit filed by the respondent being Regular Civil Suit no. 1907 of 2004 is not tenable at law and hence, the City Civil Court at Ahmedabad has no jurisdiction to entertain the same. 4. Upon issuance of the notice, the respondent has appeared through his learned advocate. The learned counsel for the respondent mainly submitted that the petitioner company has no power and authority to disconnect electricity connection except under section 56 of the Electricity Act, 2003 and as per section 56, 15 days' notice must be given by the petitioner for disconnection of electricity. In the present case, no such notice has ever been given by the petitioner company and without giving an opportunity of being heard, the petitioner company has disconnected the electricity connection. The learned counsel for the respondent submitted that the assessment under section 126 includes the assessment for theft of electricity and, therefore, whenever the assessment is made by the petitioner company towards theft of electricity, procedure envisaged under section 126 of the Act is required to be followed by the petitioner company. In the present case, though the respondent is assessed for the theft of electricity, no such procedure as envisaged under section 126 of the Act has ever been followed and hence, the action of the petitioner company deserves to be quashed and set aside. It is also submitted by the learned counsel for the respondent that the appellate authority as referred to under section 127 of the Act of 2003, has not been appointed so far. Therefore, till the said authority is appointed, City Civil Court, Ahmedabad has jurisdiction to decide the suit filed by the respondent as the same is a civil matter covered by section 9 of the Code of Civil Procedure. It is also averred by the learned counsel for the respondent that as per para-6 of the suit filed by the respondent, the petitioner has no power, jurisdiction and authority to disconnect the electricity connection. It is also contended by the learned counsel for the respondent that as per para-8 of the plaint, it is categorically mentioned that the petitioner has committed breach of the provisions of section 126(1) and 126(2) of the Act of 2003. No assessment has been given by the petitioner to the respondent. The appellate authority has also not been constituted. Therefore, City Civil Court has jurisdiction to try the civil suit filed by the respondent. 5. After hearing learned counsel for both the parties and looking to the provisions of the Electricity Act as well as conditions of Supply approved by the Government of Gujarat vide notification no. GU-94-10-AEC-1691-4209-K dated 14th October, 1994 framed under section 21(2) of the Indian Electricity Act, 1910, City Civil Court at Ahmedabad has no jurisdiction to entertain this civil suit filed by the respondent. Section 145 of the Electricity Act, 2003 reads as under: "145. Civil court not to have jurisdiction- No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which an 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 or 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." 6. From the aforesaid provisions, it is crystal clear the jurisdiction of the Civil Court is barred by the special provisions carved out under section 145 of the Act of 2003. It is also directed by the Legislature that 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. The aforesaid section is to be read with section 153 of the Electricity Act, 2003. Section 153 of Electricity Act, 2003 reads as under: "153. Constitution of Special Courts- (1) The State Government may, for the purposes of providing speedy trial of offences referred to in sections 135 to 139, by notification in the Official Gazette, constitute as many Special Courts as may be necessary for such area or areas, as may be specified in the notification. (2) A Special Court shall consist of a single Judge who shall be appointed by the State Government with the concurrence of the High Court. (3) A person shall not be qualified for appointment as a Judge of a Special Court unless he was, immediately before such appointment, an Additional District and Sessions Judge. (4) Where the office of the Judge of a Special Court is vacant, or such Judge is absent from the ordinary place of sitting of such Special Court, or he is incapacitated by illness or otherwise for the performance of his duties, any urgent business in the Special Court shall be disposed of- (a) by a Judge, if any, exercising jurisdiction in the Special Court; (b) where there is no such other Judge available, in accordance with the direction of District and Sessions Judge having jurisdiction over the ordinary place of sitting of Special Court, as notified under sub-section (1)." 7. From the aforesaid provisions, it is abundantly clear that a special court has to be constituted and in pursuance of section 153(1), a notification has also been published by the Government of Gujarat, Legal Department, Sachivalaya, Gandhinagar vide notification dated 21st June, 2004 which is at Annexure "D" to the memo of the petition, whereby the Government of Gujarat has constituted a special court for different districts, consisting of Additional District and Sessions Judge and for the City of Ahmedabad, consisting of City Civil and Sessions Judge for the purpose of providing speedy trial of offences referred to in sections 135(2) and 139 of the said Act. As per the procedure and the power of the Special Court, referred to in section 154, it is categorically mentioned in sub-paragraph (5) of section 154 that the Special Court may also determine civil liability against the consumer or a person in terms of money, for theft of energy which shall not be less than an amount equivalent to 2 times of tariff rate applicable for a period of 12 months, preceding the date of detection of theft of energy. The civil liability so determined shall be recoverable as if it were a decree of Civil Court. Section 154(5) of the Electricity Act, 2003 reads as under: "154. Procedure and power of Special Court- (1) xxx xxx xxx (2) xxx xxx xxx (3) xxx xxx xxx (4) xxx xxx xxx (5) The Special Court may 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 it were a decree of civil court." Thus, in the instant case, the theft of electricity has been committed by the respondent as per the checking report given by the officers of the petitioner. The assessment of theft of energy has also been given to the respondent by the petitioner company as per provisions of section 135 of the Electricity Act, 2003 read with clause 23(b) of the Conditions of Supply read with Condition no. 11 of Part III of Conditions of Supply and Miscellaneous Charges framed under Indian Electricity Act, 1910. It is also contended by the learned counsel for the petitioner company that there is a presumption of theft of energy if it is proved that any artificial means or means not authorised by the Board of licensee exists for the abstraction of the consumption or use of electricity by the consumer, it shall be presumed, until contrary is proved that the obstruction, consumption or use of electricity has been dishonestly caused by such consumer. The aforesaid presumption is as per section 135(1) of the Act of 2003. In the present case, the respondent consumer has applied black colour wire for "phase to phase Line" so that there will be use and consumption of electricity but there will not be any recording of the consumption. 8. In pursuance of section 21(2) of the Act of 1910, Conditions of Supply and Miscellaneous Charges have been framed and the same have been approved by the State of Gujarat vide Notification No. GU-94-19-AEC-1691-4208-K dated 14th October, 1994. Clauses 22 and 23 read as under: "22. Malpractice- (a) Malpractice shall mean contravention by the consumer of any of the provisions of the Act, the Electricity (Supply) Act, 1948 or the Indian Electricity Rules, 1956 or of any other law governing the supply and use of electricity and the rules framed thereunder as also contravention of any of the provisions of the Licensee's "Conditions of Supply and Miscellaneous Charges" or any of the terms and conditions of any agreement governing the supply of electricity by the Licensee to the consumer and shall in particular include the following cases- i) Supply of electricity by a consumer without the permission of the licensee to any other person or premises whose supply to service has been disconnected by the Licensee for any reason or for which the service was originally provided by the Licensee and subsequently removed. ii) The drawl of power by the consumer in excess of his contract demand without the specific permission of the Licensee. (iii) Unauthorised addition or alteration of, or extension to the consumer's electrical installation without the permission of the Licensee. iv) The use of Licensee's supply by the consumer under a higher method of charging than that under which the supply was originally made available to the consumer. v) Capacitors once installed when found to have been removed from the installation. (b) In the cases of unauthorised additions, alterations or extensions carried out by low voltage and medium voltage consumers to their electrical installations without the permission of the Licensee, the Licensee shall be entitled to recover from the consumer additional charges retrospectively for such unauthorised additions, alterations or extensions as prescribed under item No.12 of Part II of these Conditions of Supply together with incidental charges. Payment of such charges shall not entitle the consumer to continue to use unauthorised load in future as a matter of right. (c) Without prejudice to the rights of the Licensee to initiate legal proceedings against any person found to be committing any of the malpractices mentioned above, the Licensee shall be entitled to disconnect the supply of such a consumer. The supply shall not however be reconnected unless the consumer has qualified for reconnection by removing the cause of disconnection and settled the charges as per item (b) 23. a) Theft of energy-Malicious wastage or diversion of energy-Interference with meters or Licensee's works. Under the Indian Electricity Act, 1910, the following acts are offences which are punishable with imprisonment or fine or both as prescribed under different sections as follows:- ------------------------------------------------------- Section Description of Punishment of offence -------------------------------------------------------- 39 Theft of energy Imprisonment upto 3 years and/or fine of not less than Rupees One thousand. 40 Malicious wastage Imprisonment upto 2 years or diversion of and/or fine upto Rupees energy one thousand. 44 Interference with Imprisonment upto 3 years meters or and/or fine upto Rupees Licensee's works five thousand. etc. including prevention of any meter from the correct registration of the 39A Abetment of offences Same punishment for Same punishable abetment as for the under section 39 offence and section 44 of the Act. -------------------------------------------------------- (b) Without prejudice to the Licensee's rights to initiate legal proceedings against any consumer or person found to be committing any of the offences mentioned under sub-item (a) above, the Licensee shall be entitled to disconnect the supply of a consumer or person and to recover from him such charges as are assessed by the Licensee as provided for under item No. 11 of Part II of these Conditions of Supply and Miscellaneous Charges. The Supply to the service will be kept disconnected for a period of 30 days from the date of disconnection on the ground of offences mentioned under sub-item (a) subject to review by Competent Authority or until the amount so assessed against theft of energy is paid by the consumer, whichever is later." Similarly, clause 7 of the agreement between the petitioner and respondent as per Annexure "D" appended with the conditions of Supply reads as under: "7. Agreement subject to other Laws- This agreement shall be read and construed as subject in all respects to the provisions of the Ahmedabad and District Electric Licence, 1944, the Company's Conditions of Supply and to the provisions of the Indian Electricity Act, 1910 and the Rules for the time being in force thereunder and the Bombay Electricity (Special Powers) Act, 1946 and the Electricity (Supply) Act, 1948 insofar as the same may respectively be applicable." Condition no.11 (1)(iii) of Part-II of Conditions of Supply, reads as under: "11 (1) Assessment of value of energy dishonestly abstracted, consumed or used or caused to be maliciously wasted diverted or prevented from being duly registered etc. on High Voltage or Low Tension works. The value of energy deemed to have been dishonestly abstracted, consumed or used by the consumer or person, or caused to be maliciously wasted, diverted or prevented or caused to be prevented from being duly registered by the meter, indicator or apparatus installed by the Licensee at the consumer's premises (which acts are hereinafter referred to as the "offence") shall be assessed by the designated Assessing Authority of the Licensee as follows:- (i) xxx xxx (ii) xxx xxx (iii) Energy Charges will be leviable on the consumption or units assessed as mentioned above and shall be payable therefor by the consumer or person, at twice the applicable rate, taking into account the nature of the use of supply as also the type of premises wherein energy was being used at the time of detection of the offence. Fuel Cost Adjustment will also be payable on these units at the prevailing rates for different billing periods." Provisions of section 135(2) of the Act of 2003 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 (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, 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; Provided that in a case where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use- (i) does not exceed 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction the fine imposed shall not be less than six times the financial gain on account of such theft of electricity; (ii) exceeds 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction, the sentence shall be imprisonment for a term not less than six months but which may extend to five years and with fine not less than six times the financial gain on account of such theft of electricity: Provided further that if it is proved that any artificial means or means not authorised by the Board or licensee exist for the abstraction, consumption or use of electricity by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of electricity has been dishonestly caused by such consumer. (2) Any officer authorised in this behalf by the State Government may- (a) enter, inspect, break open and search any place or premises in which he has reason to believe that electricity (has been or is being) used unauthorisedly; (b) search, seize and remove all such devices instruments, wires and any other facilitator or article which (has been or is being) used for unauthorised use of electricity; (c) examine or seize any books or account or documents which in his opinion shall be useful for or relevant to, any proceedings in respect of the offence under sub-section (1) and allow the person from whose custody such books of account or documents are seized to make copies thereof or take extracts therefrom in his presence. Section 185(2),(3)and sub-section (5) of section 185 with the Schedule read as under: "185. Repeal and saving (1) Save as otherwise provided in this Act, the Indian Electricity Act, 1910 (9 of 1910), the Electricity (Supply) Act, 1948 (54 of 1948) and the Electricity Regulatory Commission Act, 1998 (14 of 1998) are hereby repealed. (2) Notwithstanding such repeal- (a) anything done or any action taken or purported to have been done or taken including any rule, notification, inspection, order or notice made or issued or any appointment, confirmation or declaration made or any licence, permission, authorisation or exemption granted or any document or instrument executed or any direction given under the repealed laws shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this Act; (b) the provisions contained in sections 12 to 18 of the Indian Electricity Act, 1910 (9 of 1910) and rules made thereunder shall have effect until the rules under sections 67 to 69 of this Act are made. (c) the Indian Electricity Rules, 1956 made under section 37 of the Indian Electricity Act, 1910 ( 9 of 1910) as it stood before such repeal shall continue to be in force till the regulations under section 53 of this Act are made.