Punjab-Haryana High Court
Ishwar Singh vs Dakshin Haryana Bijli Vitran Nigam Ltd … on 15 October, 2024
Neutral Citation No:=2024:PHHC:134511
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
Reserved On : 30.09.2024
CWP
CWP-12825-2016(O&M)
Date of decision: 15.10.2024
Ishwar Singh
...Petitioner
VERSUS
Dakshin Haryana Bijli Vitran Nigam Limited (DHBVNL), Hisar and
others
...Respondents
CORAM : HON'BLE MR. JUSTICE VINOD S. BHARDWAJ
Present :- Dr. (Mr.) Surya Parkash, Advocate (through V.C.) and
Ms.. S.K. Gill, Advocate (present in the Court)
for the petitioner.
Mr. Vipul Sharma, Advocate for the respondents.
*****
VINOD S. BHARDWAJ,
BHARDWAJ J.
1. The effect of compounding under Section 152 of the
Electricity Act, 2003 on the right of consumer to dispute the assessment in
a case under Section 135 (1-A)
(1 A) of the Electricity Act, 2003 is an issue
which comes up for consideration before this Court.
2. Challenge in the present petition is to the memo bearing no.
1867 dated 07.02.2014 (Annexure P–14) whereby demand of Rs.
8,84,671/- was raised against theft of electricity. A further chal
challenge
lenge is
also raised to the memo bearing no. 1868 dated 07.02.2014 (Annexure P–
15) whereby a demand of Rs. 1,80,000/
1,80,000/-raised
raised for compounding of
offence alongwith the permanent disconnection order dated 30.06.2014
(Annexure P-20).
P
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Facts:- (Petitioner
Petitioner)
3. Petitioner is running a factory under the name and style of
M/s Luxmi Tyres in Narwana, District Jind. An electricity connection has
been provided to the petitioner by the respondent distribution licensee
vide account no G-1789-SP.
G On 18.09.2013, a sparkin
sparkingg is claimed to have
taken place in the electricity meter installed at the petitioner’s factory
premises about which he informed respondent no. 4 i.e. SDO, DHBVNL,
Narwana, Dist. Jind vide letter dated 18.09.2013
18.09.2013(Annexure P-1) and
requested for checking of the same.
4. It is further averred the meter of the petitioner got burnt on
28.10.2013 and vide application dated 28.10.2013 (Annexure P-2) he
requested respondent no. 4 to check the same and change the meter. The
employees of the respondent distribution lic
licensee
ensee visited the premises of
the petitioner on 29.10.2013and since the meter was burnt, the lineman
i.e. Sulekh Raj started a direct electricity supply by circumventing the
meter.
5. Petitioner claims to have approached the office of respondent
distribution licensee for installation of new meter at his factory premises
and deposited Rs. 3100/-
3100/ against the receipt no. 285 on 22.11.2013
(Annexure P-4).
P . On deposit of the said charge by the petitioner Meter
Change Order of the even date was prepared (Annexure P-5).
6. On 27.11.2013, a team of the respondent distribution licensee
raided the premises of the petitioner and inspected the electric meter and
made a case of theft of electricity on the ground that during checking, the
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supply was found to be direct and by cir
circumventing
cumventing the meter and a
checking report was prepared (Annexure P
P-6).
7. On 28.11.2013, employees of the respondent distribution
licensee again visited the premises of the petitioner and checked electric
load. Another checking report was prepared in which tthe
he electric load was
shown to be 10.057 KW against the sanctioned load of 17.546 KW
(Annexure P-7).
P
8. Order of assessment for offence of theft of electricity was
issued vide memo no. 1525 dated 05.12.2013 (Annexure P-8) by the
officials of the respondent distribution
distribution licensee whereby the petitioner was
directed to deposit amount of Rs. 8,84,671/
8,84,671/- and memo no. 1526 dated
05.12.2013 (Annexure P-9) for compounding of the offence of theft of
electricity was also issued calling upon the petitioner to deposit an am
amount
ount
of Rs. 2,00,000/-
2,00,000/ qua the same.
9. Petitioner filed an appeal against the abovesaid order of
assessment before respondent no. 2 i.e. Executive Engineer (Operation),
DHBVNL, Narwana, Dist. Jind on 10.12.2013. On 13.01.2014 (Annexure
P-10) vide memo no. SPL-II respondent no. 4 withdrew the above notices
issued for theft of electricity and compounding of the same. Thereafter the
meter of the petitioner was also replaced. An average consumption bill
was issued to the petitioner and subsequent bills were issu
issued
ed on the basis
of actual consumption.
10. However, respondent no. 4 again issued a letter to the
petitioner on 07.02.2014 vide memo no. 1866 (Annexure P-13) whereby
it was informed to him that the earlier letter bearing memo no. SPL
SPL-II
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dated 13.01.2014 withdrawing
withdrawing the memo dated 05.12.2023 was
withdrawn. The same was done without giving any opportunity of hearing
or conveying any reason to the petitioner.
11. Respondent no. 4 again issued an order of assessment for
theft of electricity vide memo no. 1867 dated 07.0
07.02.2014 (Annexure P–
14) giving reference to the checking conducted on 27.11.2013 and asked
the petitioner to deposit an amount of Rs. 8,84,671/
8,84,671/- for theft of electricity
and vide memo no. 1868 (Annexure P-15)
15) dated 07.02.2014 directed the
petitioner to deposit
depo Rs. 1,80,000/- for compounding the offence.
12. Aggrieved against the action of the respondents, the
petitioner instituted Civil Suit before the Civil Judge, Narwana
challenging the Checking Report. Vide order 20.02.2014 (Annexure P–
16) the Civil Judge directed
directed that the Appellate authority should grant
reasonable opportunity of hearing to the petitioner and to consider the
matter afresh and further directed the petitioner to pay full compounding
charges.
13. In compliance of the above order, petitioner deposite
depositedd the
compounding charges of Rs. 1,80,000/-
1,80,000/- vide receipt no. 080731 on
10.03.2014 (Annexure P-18).. However, even after depositing of the
compounding charges the respondent distribution licensee issued bill no.
138 dated 09.04.2014 (Annexure P-19) for Rs. 99,62,874/- which included
the penalty amount and later on respondent no.4 issued Permanent
Disconnection Order on 30.06.2014 (Annexure P
P-20).
14. Aggrieved thereof, the present petition has been filed.
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Reply:
15. The respondent-Distribution
Distribution Licensee filed its reply whereinit was averred that the lineman never released any direct connection and
that the same was undertaken by the petitioner himself at his own level. A
routine checking was done when theft of electricity was detected in the
presence of an employee
employee namely Satpal, who locked the premises and ranaway on detection of theft of electricity. The same was duly mentioned in
the checking report dated 27.11.2013. The memo Nos.1525 and 1526
dated 05.12.2013
05.12.20 were issued but they were mistakenly withdrawn bby
y the
Executive Engineer (Op.), Dakshin Haryana Bijli Vitran Nigam Limited
through memo No. SPL-II dated 13.01.2014. A revised memo for the same
was issued on detection of mistake and instruction from the office of
Chief General Manager (Commercial) dated 008.01.2014.
2014. It is also stated
that an interim order was initially passed in favour of the petitioner
against which an appeal was filed. The order of status quo was set aside
in appeal. On remand, the Civil Judge (Jr. Divn.), Narwana directing
petitioner to deposit 5% amount but petitioner withdrew the Civil Suit on
18.07.2016. Relevant averments in the reply read thus:
“11. That the contents of Para no. 11 are a matter of
record, however, it is pertinent to mention here that the raid
was conducted in thee presence of the authorized person of
the petitioner named Sh. Satpal which was verified in by the
neighbours present there. Moreover, when the case of
electricity theft was made out said Sh. Satpal locked the
premises and ran away. The said fact has been mentioned
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CWP-12825-2016 (O&M)in the checking report dated 27.11.2013, which is attached
as Annexure R-4.
12. That the contents of Para no. 12 are wrong and
hence denied. It is worthwhile to mention here that burning
of meter doesn’t give any one a right to make a direct
connection of electricity bypassing the meter. The said
Memos no. 1525 and 1526 raising a demand of Rs.
8,84,671/- (towards penalty) and Rs. 1,80,000/
1,80,000/- (towardscompounding) were issued after following the due
procedure and providing reasonable opportunity to the
petitioner to give explanations for the same.
13. That the contents of Para no. 13 are a matter of
record. The said memo no 1525 and 1526 were mistakenly
withdrawn by Executive Engineer (Operation) Div.
DHBVN, Narwana through Memo no SPI
SPI-II dated13.01.2014.
3.01.2014. The revised demand of Rs. 8,84,671/ was made
on 07.02.2014 vide Memo no. 1867 when the instructions
were received from the office of the Chief General Manager
(Commercial) vide Endst No. Ch
Ch-2/SE/C/318-J
J dt08.01.2014. In the said Memo noting was made the Chief
General Manager (Commercial) that the “Return in
Original with the direction that Nigam instruction
regarding theft of energy are very clear, therefore action be
taken accordingly.” And subsequently Deputy General
Manager (Operation) Div.
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CWP-12825-2016 (O&M)DHBVN, Narwana vide Memo no. CH
CH-130/AB-20
20 dated06.02.2014 directed to take immediate action in order to
prevent loss of revenue to Nigam The copies of said Memos
dated 08.01.2014 & 06.02.2014 are attached herewith as
Annexure-R-5 and R-66 respectively.
14. That the contents of Para no. 14 are a matter of
record. It is pertinent to mention here that the average bills
for the period of 01.11.2013 to 30.11.2013 and 30.11.2013 to
30.12.2013 were issued to the petitioner pending the inquiry
regarding the alleged
d theft of electricity by the petitioner.The said inquiry/clarification was made after the memo no
1525 and 1526 were mistakenly withdrawn by Executive
Engineer (Operation) Div. DHBVN, Narwana through
Memo no SPI-II dated 13.01.2014. The revised demand of
Rs. 8,84,671/ was made on 07.02.2014 vide Memo no. 1867
when the instructions were received from the office of the
Chief General Manager (Commercial) vide Endst No. Ch
Ch–
2/SE/C/318-J dt. 08.01.2014. In the said Memo noting was
made the Chief General Manager (Commercial) that the
“Return in Original with the direction that Nigam
instruction regarding theft of energy are very clear,
therefore action be taken accordingly.” And subsequently
Deputy General Manager (Operation) Div. DHBVN,
Narwana vide Memo no. CH
CH-130/AB-20
20 dated 06.02.20147 of 39
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CWP-12825-2016 (O&M)directed to take immediate action in order to prevent loss of
revenue to Nigam.
15. That the contents of Para no. 15 are denied to the
extent that the petitioner was not given any opportunity of
hearing. The said Memo no 1866 da
dated
ted 07.02.2014 wasissued after getting the clarifications and instructions from
the Chief General Manager (Commercial) regarding the
alleged theft of electricity. The petitioner was well versed
with case as his premises were raided by vigilance team in
hiss presence and the load was also checked in his presence
and he was not able to give any satisfactory reason for his
bypassing the meter. Moreover he had earlier made his
representation before the Executive Engineer (Operation)
Div. DHBVN, Narwana, which w
was
as duly given entertainedby the authorities.
xxxxx
22. That the contents of para no 22 are correct. It is
pertinent to mention here that the petitioner filed a suit for
declaration before Civil Judge (Jr. Div.) Narwana and
order for status quo was issued, and electricity was not to be
disconnected for non- payment of the disputed amount.
Nigam filed an appeal against this order before the Court of
District Judge, Jind and the appellate court disposed of the
appeal with the remarks that “Learned lower court has not
disposed of the injunction application on merits” and sent
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CWP-12825-2016 (O&M)back the case file to the lower court for deciding the
injunction application on merits.
23. That the contents of Para No. 23 are wrong and
hence denied. It is after the order of the Learned Court of
Civil Judge (Jr. Div.), Narwana which directed the
petitioner to deposit 50% amount of the penalty that the
petitioner decided to withdraw his case. Subsequently the
suit before the lower court was withdrawn on 18.07.2016. A
copy of the said
id order for allowing withdrawal of the suit isannexed herewith as Annexure R
R-8.
8. The petitioner even
after being acquainted with the procedure chose to bypass
the law as set herein and approached this Hon’ble Court
directly, instead of going to the courts specially setup for
this procedure.”.
16. Even though the above reply was filed in the year 2019 but
no replication disputing or denying the averments of the respondent
respondent–
Distribution Licensee was filed. The reply and its averments thus
remained uncontroverted.
Arguments by the Petitioner: –
17. Learned counsel for the petitioner contends that he is being
penalized for no fault and despite following all the rules and regulations
of the electricity department. He states that the petitioner has been vigilant
and compliant in making payments against the electricity bills and it was
the defective meter that led to the start of ordeal leading him to knock at
the door of this court.
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18. He vehemently contends that the electricity meter was faulty
and as soon as spark erupted
erupted in the meter and deficiency was detected, the
petitioner immediately informed the respondents for getting the same
checked and changed, but no action was taken by them. On 28.10.2013,
when the meter block got burnt, the petitioner again immediately
informed
ormed the respondents and on 29.10.2013. The employees of the
respondent distribution licensee which included one lineman Sulekh Raj
among them visited the premises of the petitioner and when they were
unable to restore electricity through the defective me
meter,
ter, it was
circumvented by them and direct supply of electricity was provided at the
petitioner’s premises for the time being till the meter gets replaced or
restored.
19. He further submits that as per the Sales Circular No.
U/27/2013 dated 24.06.2013 issued by the Chief General
Manager/Commercial, UHBVN, Panchkula, the defective meter was
required to be replaced within 7 days of checking and a burnt meter was to
be replaced within 24 hours of payment of charges by the consumer. In
cases of burnt meter, during
during the defect period, the consumer is to be billed
provisionally on the basis of average consumption of the past six months.
He further contends that it is common practice with the respondents that
when the meter becomes defective or is burnt, they make the supply direct
and issue average consumption bill during the period when the meter was
not replaced. He states that since the respondents were not having the new
meter for replacement within 24 hours, the officials made the electricity
supply directly by circumventing
circumventing the meter.
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20. He contends that when the petitioner did not get any
intimation from the respondents, he visited their office on 22.11.2013 and
also deposited the meter change cost of Rs. 3100/
3100/-.. However, rather than
changing the meter of the petitioner
petitioner the respondent distribution licensee
decided to take out shoddy investigation implicating the petitioner for no
fault of his and conducted checking at the premises of the petitioner on
27.11.2013 and made a case of theft of electricity since the elec
electricity
tricity to
the premises was being supplied directly, he contends that the same was
done by the employees of the respondent distribution licensee itself and
the petitioner was not at fault.
21. Learned Counsel for the petitioner further states that a
demand of Rs. 8,84,671/- and compounding fee of Rs. 2,00,000/
2,00,000/- was
issued by respondent no. 4 for theft of electricity vide memo dated
05.12.2013 which such demand was challenged by the petitioner before
the appellate authority and as soon as the same was challenged
challenged,,
respondent no. 4 withdrew the memo dated 05.12.2013. He contends that
the said action of withdrawal is to be clearly construed that the case of
theft of electricity was an implanted one.
22. It is further argued that as soon as the petitioner thought of
his ordeal to have ended but to his dismay the order of withdrawal passed
by respondent no. 4 was again withdrawn by him and impugned notices
dated 7.02.2014 for payment of Rs. 8,84,671/
8,84,671/- and compounding fee of
Rs. 1,80,000/-
1,80,000/ was again asked from the petitione
petitionerr for theft of electricity.
He vehemently contends that once the earlier notices issued for theft of
electricity and compounding of the same was withdrawn, the respondents
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CWP-12825-2016 (O&M)
could not have again issued the same without granting an opportunity of
hearing to the
t petitioner.
23. That against the impugned notices the petitioner approached
the civil court which was pleased to pass an order dated 20.02.2014 of
maintaining status quo ante qua the supply of electricity and further
directed the petitioner to pay full compounding
compounding charges which was duly
complied by the petitioner. However this did not stop the respondents and
they in violation of the stay orders issued bill amounting to Rs. 9,62,874/
9,62,874/–
which included the penalty amount and the same was disputed by the
petitioner
ner against which in a high-handed
high handed manner and in total disregard of
the law and regulations in place, the respondent authority issued
permanent disconnection order on 30.06.2014.
24. He contends that the case against the petitioner is an
implanted one and the respondent authorities have acted in a high handed;
arbitrary and illegal manner by wrongfully fastening the liability on the
petitioner. The liability of defective meter is being passed along as a theft
of electricity case and it was the employees of the respondent distribution
licensee who circumvented the meter and provided direct supply of
electricity in the premises of the petitioner and he was nowhere at fault.
25. No other argument or judgment has been referred by the
petitioner.
Arguments by the Respondents:
Respond –
26. Learned Counsel appearing on behalf of the respondents
contends that Reply by way of affidavit of Sh. Amit Kumar, SDO ‘OP’
S/Divn., DHBVN, Narwana has been filed on behalf of all the
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respondents whereby all the arguments and contentions raised by tthe
he
petitioner in the present petition has been thwarted and negated. He states
that before going into the merits of the case at the outset he would like to
mention that in compliance of the order dated 27.06.2016 passed by this
court the officials of the respondent
respondent distribution licensee visited the
premises of the petitioner for restoration of electricity but the same was
refused by the petitioner.
27. He vehemently contends that it was the petitioner himself
who started the direct supply of electricity by circ
circumventing
umventing meter into
his premises and not the officials as claimed by him and that there is no
such norm or practice prevalent in the electricity department whereby the
meter is circumvented and direct supply is made.
28. He further contends that the reliance of the petitioner on the
Sales Circular No. U/27/2013 dated 24.06.2013 issued by the Chief
General Manager/Commercial, UHBVN, Panchkula, is misplaced as the
said circular is applicable on UHBVN and not on the respondents i.e.
DHBVN. He also contends that nowhere
nowhere in the said circular it is
mentioned that if meter is burnt then the supply is to be made directly.
29. He contends that the petitioner is trying to take benefit of his
own wrong and is falsely presenting the present case to be of
implantation, rather, the raiding team which checked the premises of the
petitioner was on routine checking when they found and detected the
illegality committed by the petitioner and hence reported the matter. He
contends that the argument of the petitioner that the checking w
was
as
conducted in his absence is also wrong as the raid was conducted in the
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presence of the Authorised representative of the petitioner one Mr. Satpal
which was also verified by the neighbours and the said Authorised
representative ran away by locking the ppremises
remises when the case of
electricity theft was made out which is also mentioned in the checking
report dated 27.11.2013.
30. He further contends that the argument of the petitioner with
regard to withdrawal of first issued memo demanding charges for theft of
electricity
lectricity and compounding of the same proves his innocence is highly
misplaced as the said memo issued was withdrawn due to
miscommunication and mistake between the authorities and later on when
all the facts and records of the case were put before the au
authorities
thorities it was
decided that action be initiated as per DHBVN Sale Instruction No.
24/2010 for theft of electricity.
31. He further contends that the petitioner has not brought in
complete facts of the case and has not come with clean hands as he has
nowhere disclosed that when the Civil Court asked for deposit of 50%
penalty amount, he chose to withdraw and is projecting as if the earlier
interim order of the court iss final order. The appeal of the department
against the interim order was allowed. He contend
contendss that once the
compounding charges are paid by the party accused of theft of electricity
to save themselves from the criminal liability, then the presumption in law
operates against them. He cannot thereafter allege that no theft of
electricity had taken place.
32. He contends that it was not the respondents who are at faultor
can be blamed for the callous attitude of the petitioner. Moreover, the
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petitioners cannot be allowed to blow hot and cold at the same time The
petitioner should have availed remedy given under the electricity act and
the fact that he has bypassed the said provision shows his malafide.
33. No other argument or judgment has been referred by the
respondent.
Consideration: –
34. I have heard the learned counsel for the respective parties
gone through
rough the documents available on record and facts of the case with
their able assistance.
35. The undisputed facts which are established are that there was
a direct supply of electricity to the premises of the petitioner against
which assessment demand under Section
Section 135(1
135(1-A)
A) of the Electricity Act,
2003 and compounding charges under Section 152 of the Electricity Act,
2003 were conveyed. The withdrawal of the demand under a mistake by
the Executive Engineer and re-issuance
re issuance thereof also remain undisputed.
Even though counsel had argued that an appeal had been preferred against
the assessment on which the demand was withdrawn but the said
argument does not seem to hold good, not only for denial of the same, but
also for the reason that the Electricity Act, 2003 did not provide any
remedy of appeal against an assessed demand under Section 135 (1
(1-A)
A) of
the Electricity Act, 2003. The only remedy is determination of civil
liability by the Special Court under Section 154 of the Electricity Act,
2003.
36. It is also not in dispute that the petitioner withdr
withdrew
w his civil
suit and deposited the compounding charges under Section 152 of the
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Electricity Act, 2003 as a result whereof the criminal proceedings were
never initiated.
37. In the said background, the core question which ar
arises
ises for
consideration is whether a consumer can dispute a factum of theft of
electricity once he has deposited the compounding charges and as to
whether a disputed factual aspect can be accepted solely on the basis of
oral claim. The effect of compounding
compounding and whether it act as a waiver
against disputing the offence thus needs to be determined by this Court.
38. The facts of the present case and arguments advanced by the
parties portrays a picture of “your word vs my word”. The counsel for the
petitioner on the one hand contends that the direct supply of electricity
into the premises by circumventing the meter was done by the employees
of the respondent distribution licensee and he is being made a scapegoat,
while the counsel for the respondents,
respondents on the other hand disputes the fact
by negating the same and contesting that the same was done by the
petitioner himself and now he is trying to assign the wrong upon the
employees of the respondent distribution licensee to save his own skin.
39. The arguments advanced by counsel for the petitioner with
regards to the case being one of implantation and there being normal
practice of directly providing electricity supply to the premises in case
meter being not replaced within 24 hours and the applicability of Sales
Circular No. U/27/2013 dated 24.06.2013 are all denied by the
respondents in their written statement filed on 17.08.2019 asserting that
the circular is not applicable to the respondents and that there is no normal
practice of direct supply of electricity by circum
circumventing
venting of meter and
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checking being conducted in the presence of Authorized representative of
the petitioner who ran away as soon as the case of theft was made out. No
replication to the said reply has been filed by the petitioner denying the
same despite the reply being filed in the year 2019 nor any document has
been adduced controverting the stand of the respondents.
40. The petitioner undisputedly opted for Compounding of
offence under section 152 of the Electricity Act, 2003 and deposited the
compounding amount
a of Rs.1,80,000/- with the respondent distribution
licensee.
41. In the Concise Oxford Dictionary in Law, the meaning for the
word “compound” is given as: “(a)
(a) condone a liability or offence in
exchange for money etc., (b) forbear from prosecuting (a fel
felony)
ony) from
private motives, and Law come to terms with a person, for foregoing a
claim etc., for an offence”.
offence . For the expression “compounding” in
Ramanathan Aiyar’s Law Lexicon, the following meaning is given:
‘Arranging,
Arranging, coming to terms; condone for money; arranging with thecreditor to his satisfaction’.
satisfaction . For the expression “compounding felony of
offence”, the meaning given is “Compounding an offence is defined to
be” the offence of taking a reward for forbearing to prosecute a felony; as
where the party robbed
robbed takes his goods again or other amends upon anagreement not to prosecute.” In other words, it means an agreement with
the criminal not to prosecute him. It is also equally well settled that if a
person opts for compounding of an offence or irregularit
irregularity
y it meansaccepting the acquiescence or irregularity committed or the violation of
the statutory provision, and by compounding the offence, the person who
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CWP-12825-2016 (O&M)is seeking permission or is permitted to compound, admits and does not
dispute the irregularity or violation.
v The reason behind seeking such a
compounding cannot be gone into when there is no challenge to the
compounding itself.
itself
42. The decision to seek compounding is thus presumed in law to
be voluntary and wilful. The petitioner has chosen to accept and to act
upon the compounding but is seeking to escape the civil liability.
Ordinarily, a compounding is only an escape from prosecution (in a
criminal matter) and is not an exemption from civil liability, which is an
independent enforceable right of the distribution
distribution licensee.
43. The scheme of the Electricity Act, 2003 envisages different
grievances Redressal forums for different type of disputes
disputes. Where
here a
dispute raised by the consumer is w.r.t. any levy/demand or tariff, the
remedy as per statute, is prescribed
prescribed under Section 42(5) and 42(7) of the
Electricity Act, 2003. Where the dispute is about an unauthorised use,, the
remedy is to be pursued as per Sections 12
126 and 127 of the Electricity Act,
2003. In the case of theft, the assessed demand is technically a claim
under Section 135 (1-A)
(1 A) of the Electricity Act, 2003 which only is a pre
pre–
deposit to be made in case the consumer wants a restoration of the
electricity supply. The civil liability is required to be determined by the
Special Courts under Section 154 of the Electricity Act, 2003. In the
event of pre-deposit
pre deposit exceeding the assessed civil liability by the Special
Court, the excess amount has to be refunded alongwith interest. The said
liability was to be determined only in an event a consumer disputes and
contests the element and allegations of theft. Having opted to seek
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compounding, he agrees not to dispute or contest the allegation/charge
levelled against him. In such a case scenario, there is no occasion to deny
payment of assessed demand by denying
denying the allegation of theft.
44. It would also be necessary to refer to the above referred
provisions of the Electricity Act, 2003:-
2003:
“Section 42
xxxx
(5) Every distribution licensee shall, within six months
from the appointed date or date of grant of licence,
whichever is earlier, establish a forum for redressal
of grievances of the consumers in accordance with
the guidelines as may be specified by the Stat
StateeCommission.
(6) Any consumer, who is aggrieved by non
non-redressal
redressal ofhis grievances under sub
sub-section
section (5), may make arepresentation for the redressal of his grievance to an
authority to be known as Ombudsman to be
appointed or designated by the State Co
Commission.
(7) The Ombudsman shall settle the grievance of the
consumer within such time and in such manner as
may be specified by the State Commission.
Section 126: (Assessment):
(1) If on an inspection of any place or premises or after
inspection of the
he equipments, gadgets, machines,devices found connected or used, or after inspection
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CWP-12825-2016 (O&M)of records maintained by any person, the assessing
officer comes to the conclusion that such person is
indulging in unauthorized use of electricity, he shall
provisionally
ly assess to the best of his judgement theelectricity 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
ace or premises in such manner as
may be prescribed.
1
[(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
person,,
pass a final order of assessment within thirty days
from the date of service of such order of provisional
assessment of the electricity charges payable by such
person.]
(4) Any person served with the order of provisional
assessment, may, accept such as
assessment
sessment and deposit
the assessed amount with the licensee within seven
days of service of such provisional assessment order
upon him:
2
[***]
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[(5) If the assessing officer reaches to the conclusion thatunauthorised use of electricity has taken place, tthe
heassessment shall be made for the entire period during
which such unauthorized 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 li
limited
mited toa period of twelve months immediately preceding the
date of inspection.]
(6) The assessment under this section shall be made at a
rate equal to 1[twice] the tariff rates applicable for the
relevant category of services specified in sub
sub-section
section(5).
Explanation.- For the purposes of this section,
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 usag
usagee
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
2
[(iv) for the purpose other than for which the usage
of electricity was author
authorised; or
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(v) for the premises or areas other than those for
which the supply of electricity was
authorized.”]
Section 127. (Appeal to 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
hority as may be prescribed.
(2) No appeal against an order of assessment under sub
sub–
section (1) shall be entertained unless an amount
equal to 3[half of the assessed amount] is deposited
in cash or by way of bank draft with the licensee and
documentary evidence
vidence of such deposit has been
enclosed along with the appeal.
(3) The appellate authority referred to in sub
sub-section
section (1)
shall dispose of the appeal after hearing the parties
and pass appropriate order and send copy of the
order to the assessing offic
officer and the appellant.
(4) The order of the appellate authority referred to in
sub-section
section (1) passed under sub
sub-section
section (3) shall be
final.
(5) No appeal shall lie to the appellate authority referred
to in sub-section
section (1) against the final order made wit
with
h
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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 ra
rate
te of
sixteen per cent, per annum compounded every six
months.
“Section
Section 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
rrent reversing transformer, loop connection orany 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
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(e) uses electricity for the purpose other than for which
the usage of electricity was authorised,
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
ncial gain on account of such theft of electricityand 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 impose
imposed
d on firstconviction 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 eextend
xtend to fiveyears and with fine not less than six times the
financial gain on account of such theft of electricity:
Provided further that in the event of second and
subsequent conviction of a person where the load
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abstracted, consumed, or used or attem
attempted
pted abstraction or
attempted consumption or attempted use exceeds 10
kilowatt, such person shall also be debarred from getting
any supply of electricity for a period which shall not be less
than three months but may extend to two years and shall
also be debarred
ebarred from getting supply of electricity for that
period from any other source or generating station:
Provided also that if it is proved that any artificial
means or means not authorized by the Board or licensee or
supplier, as the case may be, 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.
(1A) Without prejudice to the provisions of this Act, the
licensee or supplier, as the case may be, may, upon
detection of such theft of electricity, immediately disconnect
the supply of electricity:
Provided that only such officer of the licensee or
supplier, as authorized for the ppurpose
urpose by the AppropriateCommission or any other officer of the licensee or supplier,
as the case may be, of the rank higher than the rank so
authorised shall disconnect the supply line of electricity:
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Provided further that such officer of the licensee oorr
supplier, as the case may be, shall lodge a complaint in
writing relating to the commission of such offence in police
station having jurisdiction within twenty four hours from
the time of such disconnection:
Provided also that the licensee or supplier, as the case
may be, on deposit or payment of the assessed amount or
electricity charges in accordance with the provisions of this
Act, shall, without prejudice to the obligation to lodge the
complaint as referred to in the second proviso to this clause,
restore
store the supply line of electricity within forty
forty-eight
eight hoursof such deposit or payment.]
Section 152. (Compounding of offences): —
(1) Notwithstanding anything contained in the Code of
Criminal Procedure 1973 (2 of 1974), the Appropriate
Government or any officer authorized by it in this behalf
may accept from any consumer or person who committed or
who is reasonably suspected of having committed an
offence of theft of electricity punishable under this Act, a
sum of money by way of compounding of the ooffence
ffence asspecified in the Table below:
TABLE
Nature of Service Rate at which the sum of money
for Compounding to be collected
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per Kilowatt(KW)/Horse
Power(HP) or part thereof for
Low Tension (LT) supply and per
Kilo Volt Ampere(KVA) of
contracted demand for High
Tension (HT)
(1) (2)
1. Industrial Service twenty thousand rupees;
2. Commercial Service ten thousand rupees;
3. Agricultural Service two thousand rupees;
4. Other Services four thousand rupees;
Provided that the Appropriate Government may, by
notification in the Official Gazette, amend the rates
specified in the Table above.
(2) On payment of the sum of money in accordance with
sub-section
section (1), any person in custody in connection with
that offence shall be set at liberty and no proceedings shall
be instituted or continued against such consumer or person
in any criminal court.
(3) The acceptance of the sum of money for
compounding an offence in accordance with sub
sub-section
section (1)
by the Appropriate Government or an officer empowered in
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this behalf
lf empowered in this behalf shall be deemed to
amount to an acquittal within the meaning of section 300 of
the Code of Criminal Procedure, 1973.
4) The Compounding of an offence under sub
sub-section
section
(1) shall be allowed only once for any person or consumer.
Section 154. (Procedure and power of Special Court): —
(1) Notwithstanding anything contained in the Code of
Criminal Procedure, 1973, every offence punishable under
[2sections 135 to 140 and section 150] shall be triable only
by the Special Court within
in whose jurisdiction such offence
has been committed.
(2) Where it appears to any court in the course of any
inquiry or trial that an offence punishable under sections
135 to 139 in respect of any offence that the case is one
which is triable by a Specia
Speciall Court constituted under this
Act for the area in which such case has arisen, it shall
transfer such case to such Special Court, and thereupon
such case shall be tried and disposed of by such Special
Court in accordance with the provisions of this Act:
Provided
rovided that it shall be lawful for such SpecialCourt to act on the evidence, if any, recorded by any court
in the case of presence of the accused before the transfer of
the case to any Special Court :
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CWP-12825-2016 (O&M)Provided further that if such Special Court is of
opinion
inion that further examination, cross
cross-examination
examination andre-examination
examination of any of the witnesses whose evidence hasalready been recorded, is required in the interest of justice,
it may re-summon
summon any such witness and after such furtherexamination, cross-examination
nation or re
re-examination,
examination, if any,as it may permit, the witness shall be discharged.
xxxx
(4) A Special Court may, with a view to obtaining the
evidence of any person supposed to have been directly or
indirectly concerned in or privy to, any offence ten
tender
der
pardon to such person on condition of his making a full
and true disclosure of the circumstances within his
knowledge relating to the offence and to every other person
concerned whether as principal or abettor in the
commission thereof, and any pardon so tendered shall, for
the purposes of section 308 of the Code of Criminal
Procedure,1973, be deemed to have been tendered under
section 307 thereof.
(5) The Special Court shall determine the civil liability
against a consumer or a person in terms of mone
moneyy 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
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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.
(6) In case the civil liability so determined finally by the
Special Court is less than the amount deposited by the
consumer or the person, the exce
excess
ss amount so deposited by
the consumer or the person, to the Board or licensee or the
concerned person, as the case may be, shall be refunded by
the Board or licensee or the concerned person, as the case
may be, within a fortnight from the date of communic
communication
ation
of the order of the Special Court together with interest at
the prevailing Reserve Bank of India prime lending rate for
the period from the date of such deposit till the date of
payment.
Explanation. – For the purposes of this section, “civil
liability”
ty” means loss or damage incurred by the Board or
licensee or the concerned person, as the case may be, due to
the commission of an offence referred to in Sections
ections 135 to140 and Section 150.”
45. Evidently, as per the statutory scheme, the determination of
civil
vil liability is incidental to proceedings in the criminal case and once the
consumer seeks compounding of the criminal offence, he closes the
dispute alongwith his right to deny or dispute the charge of theft.
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46. The present case about disputing the liability is not on a
ground that the demand suffers from some error of a factor or calculation
but instead, is based on denial of the occurrence of theft. The said aspect,
in my opinion cannot now be re-agitated
re agitated as th
the compounding by the
petitioner is not by an act of fraud or coercion but is rather a voluntary act..
47. Compounding of a criminal case does not automatically
discharge civil liability arising from the same incident. There has to be a
separate specific settlement
settlement for the same. The scheme of the Electricity
Act, 2003 treats Section 126 and Section 135 on distinct and separate
footing and even both proceedings may run parallel
parallely. While
determination of civil liability under Section 126 of the Electricity Act,
2003
003 is done by the departmental authority, the determination of civil
liability is done by an independent authority i.e. the Special Court. The
same is undertaken in exercise of jurisdiction in proceedings under
Section 154 of the Electricity Act, 2003
2003.. The determination of civil
liability is integrally dependent on the determination of criminal liability
liability..
Further, an
n assessment under Section 126 of the Electricity Act, 2003 is
excluded from the purview
p view of Section 154 of the Electricity Act, 2003.
The deposit demanded under Section 135 (1-A) (proviso) of the
Electricity Act, 2003 uses the expression “”assessed amount”” whereas
Section 126 of the Electricity Act, 2003 takes of “”assessment
assessment of the
electricity charges payable”.
payable” The expression “”assessment of the
electricity charges”
charges is absent in the assessed amount under Section 135
(1-A) (proviso
proviso) and Section 154 (6) of the Electricity Act, 2003 talks ofrefund of the “amount
” deposited”,
“, which is the assessed amount under31 of 39
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CWP-12825-2016 (O&M)Section 135 (1-A) (proviso), as compared
ared to civil liability determinedunder Section 154(5) of the Electricity Act, 2003 read with the
explanation Thus, there are multiple points of differences
explanation. differences” in both thedemands.
48. The entitlement of a refund thus can only be ordered by a
Special Court under Section 154 (6) of the Electricity Act, 2003
2003,,following determination of civil liability.
liability. The statutory provisions not
being under challenge, they need to be interpreted harmoniously. Since,
the
he statutory scheme pre-supposes
pre initiation and institution of criminalproceedings as an essential pre-condition
proceedings, condition for determination of civilliability, it also perceives that where a person seeks compounding of the
theft charge, he does
doe nott dispute the allegations and hence would bedeemed to have waived of seeking determination of civil liability by the
Special Court. Since there is no power vested in the license
licensee to determinethe civil liability,
liability on occurrence of a theft, hence, the same remainsundetermined and the assessed amount under Section 135 (1
(1-A) (proviso))of the Electricity Act, 2003,
2003, on payment, vests a right with the consumerto seek restoration. Hence, interests of both parties get protected and the
matter need not be adjudicated any further.
further.
49. The position in law is also well settled that comp
compounding
ounding ofan offence does not necessarily erase the civil liability. Unless there is an
agreement to the contrary, the licensee/utility may still pursue
enforcement of its civil rights. Compounding thus reduces the legal
consequences but may not exonerate
exonera of all the liabilities. The erosion ofcivil liability, on compounding, thus has to be express.
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50. In addition to the substantive statutory provisions above,
Clause 7 of the Electricity Supply Code also deals with theft of electricity
and provides the procedure to be followed in the case of theft of electricity
in Clause 7.2. Some of the relevant Clause
Clauses read thus:-
“7.2.15 In case on inspection of the premises sufficient
evidence is found to establish that any artificial
means or means not authorized by the licensee or
supplier, as the case may be, exist for the
abstraction, consumption or use of electricity by the
consumer, it shall be presumed, until the contrary is
proved, that abstraction, consumption or use of
electricity has been dishonestly caused by such
consumer.
7.2.16 Whether the seizure under Regulation 7.2.12 results
in disconnection of supply to the consumer oorr not,
the licensee or supplier, as the case may be, upon
detection of such theft of electricity, immediately
disconnect the supply from a point further away from
the connection point as per Section 135 sub
sub-clause
clause(1A) of the Act to ensure that the consume
consumerr does notreconnect the supply and further theft does not take
place.
Provided that the supply shall be disconnected under
the order of an officer of the rank higher than the
rank of authorized officer who carried out the
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inspection and such officer shal
shalll not be below the
rank of SDO.
xxxx
7.6 Compounding of offence
offence:
7.6.1 In case it is a first offence under Section 135 of the
Act, then the person may request the officer
authorized by the State Government under Section
152 of the Act, for compounding of offence in the
prescribed format. The authorized officer shall hear
the person and the assessing officer or his authorized
representative and thereafter, after orders from such
authorized officer, the amount for compounding of
offence shall be deposited by the person with the
State in the same manner as prescribed for depositi
depositing
ngthe fines imposed by the courts.
The charges for compounding of the offence shall be
as mentioned under Section 152 of the Act or as
specified by the State Government.
7.6.2 A person can also deposit the amount of
compounding even after an FIR/compl
FIR/complaint
aint has been
lodged against him for the first offence, after getting
approval from the authorized officer under Section
152 of the Act. In such eventuality, the authorized
officer (under section 152) should accept the amount
of compounding and intimate th
thee same to the
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concerned police station and court regarding
compounding of offence under Section
Section-152
152 of the
Act.
7.6.3 On payment of the sum of money in accordance with
Regulations 7.6.1 & 7.6.2, any person in custody in
connection with that offence shall be set at liberty
and no proceedings shall be instituted or continued
against such consumer or person in any criminal
court.
7.6.4 The acceptance of the sum of money for
compounding of offence in accordance with
Regulations 7.6.1 & 7.6.2 by the Appropri
Appropriate
ate
Government or an officer empowered in this behalf
shall be deemed an acquittal within the meaning of
section 300 of the Code of Criminal Procedure, 1973
(2 of 1974).”.
51. Similarly, Section VIII of the Electricity Supply Instruction
Manual (Sales Manual) also deals with theft/unauthorized use of
electricity. A detailed procedure to be followed on detection of theft of
electricity is also provided therein. Clause 8 ((13)) deals with assessment
and procedure. Relevant clauses of the sam
same reads thus:-
“8.13 (IV) Amount of assessment recoverable as arrear of
electricity Consumption Charges
Charges:: The amount due from theperson as a result of the proceedings under these clauses
shall be deemed to be arrears of electricity consumption
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CWP-12825-2016 (O&M)charges, which shall be recoverable along with interest at
the prevailing Reserve Bank of India prime lending rate for
the period of default under Haryana Govt. Electricity
Undertaking (Dues recovery) Act
Act-1970.
(V) Levy of Assessment Charges
Charges: – Levy of compensation
ompensationcharges under these clauses shall be without prejudice to
the Nigam’s right to take any other action provided in these
clauses or in the Electricity Act
Act-2003
2003 or any other lawgoverning the supply of electricity to the consumers.
(VI) Compounding
ing of Offence: – Along with the order ofassessment the consumer shall also be given the offer for
compounding of offence as per the provisions of Section
Section–
152 of the EA-2003
2003 to absolve him from the criminal
liabilities as per the format attached as Annexu
Annexure-VI.
VI. The
concerned SDO ‘Operation’ is authorized as per Haryana
Govt. Gazette Notification No. 1/12/2003
1/12/2003-1
1 Power dated 9th
December 2003 for accepting the amount of compounding
as per the following rates for various categories given in
Section-152 of EA-2003.
Name of Service Rate at which the sum of money for
compounding to be collected per
Kilowatt (KW)/Horse Power (HP) or part
thereof for Low Tension (LT) supply and
per Kilo Volt Ampere (KVA) of
contracted demand for High Tension
(HT)
1. Industrial Service 20,000 per KVA of contract demand
2. Commercial Service 10,000 per KW
3. Agricultural Service 2000 per BHP
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4. Other Services 4000 per KW
The amount of compounding received from the consumers
shall be kept in separate account, which shall be passed on
to the State Govt. However, the compounding of offence is
allowed only once for the offence of theft of electricity.
The acceptance of offer of compounding by the consumer
who is ready to compound offence of theft of energy shall
be taken in the format attached as Annexure
Annexure-VII.”
52. It is evident that levy of assessment is without prejudice to
the right of the utility to take any other action as pe
perr the Act. The Clause
relating to compounding specifically deals with absolving from criminal
liability only and not from any other liability. Hence, only a limited right
is created in favour of a consumer against criminal proceedings and all
other demands
demands remain intact. The legislat
legislature thus did not intend to vest
any further concession, hence, no further indulgence can be claimed.
53. It is further apparent that on depositing of compounding fee,
if the person is arrested, he shall be set at liberty and proceedings shall not
be continued in any criminal Court and it is a deemed acquittal under
Section 300 Cr.P.C. (as it was). Section 152 of the Electricity Act, 2003
does not extend any other benefit or exemption. Such deemed acquittal of
a criminal charge cannot be deemed as assessment of “”Zero
Zero Civil
Liability”” under Section 154(5) of the Electricity Act, 2003 and rendering
the utility liable to refund the entire assessed amount under Section 135
(1-A)
A) of the Electricity Act, 2003.
2003 It rather leads to an inference that the
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consumer never wanted his criminal and civil liability to be determined
and intended the entire dispute to be closed.
54. I am also fortified in my above view since the statute
required determination of civil liability by the Special Court only, hence,
once he gives up initiation of proceedings before Special Court, the
official of the Utility cannot be conferred with a power to determine the
civil liability
liabilit or to examine the same.
55. The statutory scheme converges the power to determine civil
liability, with the Special Court alongwith determining a Criminal
Liability. The same is integrally connected to the same proceeding
proceeding.. The
consumer, having opted not to subject himself to the said proceeding
proceeding,,
would not be entitled to seek a segregation of the cause and to try them
independently by treating the same as independent and distinct. Power on
a Court is conferred by the statute and has to be exercised in the manner
prescribed. It is presumed in law that the petitioner was fully aware of the
legislative scheme and statutory provision and having opted to close the
issue, the entire dispute
disp gets closed and he would be deemed to have
accepted all the terms; liabilities
iabilities as well as obligation
obligations that are
enforceable against him.
56. Any other interpretation is likely to be co
contrary
ntrary to the intent
of the legislature. The compounding charges being nominal,
al, every person
would then be inclined to commit theft of energy and claim himself
spotless and go scot-free
scot by paying compounding charges alone,
e, which
are lower than the penalty for unauthorised use of electricity itself. It
cannot be perceived
p that the legislative intent was to promote theft of
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Neutral Citation No:=2024:PHHC:134511
39
CWP-12825-2016 (O&M)
electricity to avoid payment of bill or not to indemnify the utility for the
electricity consumed. It would amount to giving premium to a violator
and promote breach of law, which no statute can ever be intended or
interpreted to promote.
57. The present writ petition is dismissed accordingly.
(VINOD S. BHARDWAJ)
15.10.2024
.10.2024 JUDGE
Mangal Singh
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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