Electricity Act, 2003: Object and reasons of enactment – Discussed.
Electricity Act, 2003: s.126(6)(b) – Unauthorized use of electricity – Meaning of – Held: Unauthorized use of electricity means, the usage of electricity by any artificial means or by a means not authorized by the concerned person or authority or licensee; or through a tampered meter; or for the purpose other than for which the usage of electricity was authorized; or for the premises or areas other than those for which the supply of electricity was authorized – Thus, use of energy through tampered meter is included in the definition of unauthorized use of electricity. Electricity Act, 2003: s.126(1) – Power of authorities to make assessment under s.126(1) to assess the loss of energy where electricity is used through tampered meter – Held: The authorities under the Act are empowered to make a provisional and final assessment by invoking power under s.126(1) of the Act, even in cases where electricity is unauthorisedly used by way of theft. Electricity Act, 2003: s.126(1) – Criminal complaint of theft of energy – Whether criminal complaint and assessment proceedings under s.126(1) can go simultaneously – Held: Whenever there is allegation of theft of energy committed by the consumer, even after lodging a police complaint for commission of such offence, it is always open for the authorities to make provisional and final assessment to recover loss of energy in exercise of power under s.126(1) of the Act.
Electricity Act, 2003: s.126 and s.135 – Distinction between – Held: s.126 forms part of the scheme which authorizes electricity supplier to ascertain loss in terms of revenue caused to it by the consumer by his act of “unauthorized use of electricity” whereas s.135 deals with offence of theft if he is found to have indulged himself in the acts mentioned in clauses (a) to (e) of sub-section (1) of s.135 of Act.
Electricity Act, 2003: s.126, 135, 154 – Proceedings under s.126(1) and under s.154(5) – Held: Power conferred on authorities for making assessment under s.126(1) of the Act and power to determine civil liability under s.154(5) of the Act, cannot be said to be parallel to each other – In a given case where there is no theft of energy, amounting to unauthorized use of energy, in such cases no complaint of theft can be lodged as contemplated under s.135 of the Act – In such cases for loss of energy, on account of unauthorized use of energy not amounting to theft, it is always open for the authorities to assess the loss of energy by resorting to power under s.126(1) of the Act – In cases where allegation is of unauthorized use of energy amounting to theft, in such cases, apart from assessing the proceedings under s.126(1) of the Act, a complaint also can be lodged alleging theft of energy as defined under s.135(1) of the Act – In such cases, the Special Court is empowered to determine civil liability under s.154(5) of the Act – On such determination of civil liability by the Special Court, the excess amount, if any, deposited by the petitioner, is to be refunded to the consumer – It is a settled principle that to prove the guilt of the accused in a criminal proceeding, authorities have to prove the case beyond reasonable doubt and the element of mens rea is also to be established – On the other hand, such a strict proof is not necessary for assessing the liability under s.126(1) of the Act. Electricity Act, 2003: s.154 – Procedure and power of Special Court – The Special Court is empowered to convict the consumer and impose a sentence of imprisonment – The Special Court, in cases, where a criminal complaint is lodged, is also empowered to determine civil liability under s.154(5) of the Act – As per s. 154(6) of the Act, in case civil liability so determined by the Special Court is less than the amount deposited by the consumer or the person, the excess amount so deposited by the consumer or the person, shall be refunded by the licensee or the concerned person, as the case may be – Merely because the Special Court is empowered to determine civil liability under s.154(5) of the Act, in cases where a complaint is lodged, it cannot be said that there is no power conferred on authorities to make provisional assessment/final assessment under s.126 of the Act.
Allowing the appeal, the Court
HELD : 1.1 Prior to Electricity Act, 2003, generation and supply of electricity was governed by the provisions under Indian Electricity Act, 1910, the Electricity (Supply) Act, 1948 and the Electricity Regulatory Commissions Act, 1998. With the policy of the Government to encourage private sector participation in generation, transmission and distribution of energy and with the objective of distancing regulatory responsibilities from the Government to the Regulatory Commissions, it was felt that there is a need for harmonizing and rationalizing the provisions of the electricity by bringing a new legislation. That is how the Electricity Act, 2003, was enacted and brought into force. In the objects and reasons, a specific reference is made to incorporate provisions relating to theft of electricity, to have a revenue focus. A perusal of Sections 135 and 154 shows that after an inspection of any place or any premises of any consumer, when Assessing Officer comes to a conclusion that the consumer is indulging in unauthorized use of electricity, the provisional assessment to the best of his judgment is to be made in accordance with Section 126(1) of the Act and such provisional assessment shall be served upon the person in occupation of the premises. After giving an opportunity to file objections to the provisional assessment, the Assessing Officer is empowered to pass a final order of the assessment assessing the loss of energy, on account of unauthorized use of energy. The unauthorized use of electricity as defined in Section 126(6)(b) of the Act means, the usage of electricity by any artificial means or by a means not authorized by the concerned person or authority or licensee; or through a tampered meter; or for the purpose other than for which the usage of electricity was authorized; or for the premises or areas other than those for which the supply of electricity was authorized. [Paras 9, 11] [395-A-C; 400-D-G]
1.2 Reading of Section 126 (6)(b)(iii) of the Act shows instances of use of energy through a tampered meter is included in the definition of unauthorized use of electricity. If that is so, there is no reason, for excluding the power of the authorities for making assessment under Section 126(1) of the Act to assess the loss of energy, where electricity is used through a tampered meter. All instances of unauthorized use of energy may not amount to theft of electricity within the meaning of Section 135 of the Act, but at the same time, the theft of electricity which is covered by Section 135 of the Act, will fall within the definition of unauthorized use of electricity. As per Section 135(1A) of the Act, without prejudice to the other provisions of the Act, the licensee or supplier, as the case may be, upon detection of theft of electricity, is empowered to disconnect the power supply immediately. Further, as per the third proviso to Section 135(1A) of the Act, the licensee or supplier, as the case may be, on deposit or payment of assessed amount or electricity charges, without prejudice to the obligation to lodge a complaint, can restore the power supply electricity within 48 hours of deposit /payment of such amount. Thus, it is clear that the authorities under the Act are empowered to make a provisional and final assessment by invoking power under Section 126(1) of the Act, even in cases where electricity is unauthorisedly used by way of theft. When a consumer deposits the assessed amount, the licensee or the supplier has to restore the power supply. The assessed amount referred to in the aforesaid proviso, relates to assessment which is contemplated under Section 126(1) of the Act only. There is apparent distinction between Section 126 and Section 135 of the Act. Section 126 forms part of the scheme which authorizes electricity supplier to ascertain loss in terms of revenue caused to it by the consumer by his act of “unauthorized use of electricity” whereas Section 135 deals with offence of theft if he is found to have indulged himself in the acts mentioned in clauses (a) to (e) of sub-section (1) of Section 135 of Electricity Act. Further, it is also clear from Section 154 of the Act, which prescribes procedure and power of Special Court, that the Special Court is empowered to convict the consumer and impose a sentence of imprisonment. The Special Court, in cases, where a criminal complaint is lodged, is also empowered to determine civil liability under Section 154(5) of the Act. As per Section 154(6) of the Act, in case civil liability so determined by the Special Court is less than the amount deposited by the consumer or the person, the excess amount so deposited by the consumer or the person, shall be refunded by the licensee or the concerned person, as the case may be. Merely because the Special Court is empowered to determine civil liability under Section 154(5) of the Act, in cases where a complaint is lodged, it cannot be said that there is no power conferred on authorities to make provisional assessment/final assessment under Section 126 of the Act.[Para 12] [400-H; 401-A-H; 402-A]
2. From the scheme of the Act, it appears that after inspection team notices unauthorized use of energy by tampering the meter, the authorities can disconnect the power supply immediately and make immediate assessment for loss of energy, by invoking power under Section 126(1) of the Act. The term “unauthorized use of energy” is of wide connotation. There may be cases of unauthorized use of energy, not amounting to theft, which are cases viz. exceeding the sanctioned load or using the electricity in the premises where its use is not authorized etc. But at the same time, when there is an allegation of unauthorized use of energy by tampering the meter, such cases of unauthorized use of energy include ‘theft’ as defined under Section 135 of the Act. The power conferred on authorities for making assessment under Section 126(1) of the Act and power to determine civil liability under Section 154(5) of the Act, cannot be said to be parallel to each other. The High Court has committed an error in recording a finding, that both proceedings cannot operate parallelly. In cases where allegation is of unauthorized use of energy amounting to theft, in such cases, apart from assessing the proceedings under Section 126(1) of the Act, a complaint also can be lodged alleging theft of energy as defined under Section 135(1) of the Act. In such cases, the Special Court is empowered to determine civil liability under Section 154(5) of the Act. [Para 14] [403-B-F]
Executive Engineer Southern Electricity Supply Company of Orissa Limited (SOUTHCO) & Another v. Shi. Seetaram Rice Mill (2012) 2 SCC 108 : [2011]
15 SCR 211 – relied on.
The Hotel Adityaz Limited v. Madhya Pradesh Kshetra Vidyut Vitran Company Limited, Bhopal & others AIR 2016 (NOC) 39 (M.P.) – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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