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The Indian Electricity Act, 1910
The Electricity (Supply) Act, 1948
Section 56 in The Indian Electricity Act, 1910
Section 6 in The Indian Electricity Act, 1910

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Gujarat High Court
Leenaben W/O. Sohanlal Hemandas ... vs Ahmedabad Electricity Co. Ltd. on 10 September, 2004
Equivalent citations: AIR 2005 Guj 40, (2005) 1 GLR 247
Author: D Patel
Bench: D Patel

JUDGMENT

D.N. Patel, J.

1. The present petitions have been preferred under Article 226 of the Constitution of India, whereby the petitioners have challenged the action of the respondent no.1 Company of disconnection of electricity supply and have prayed for a declaration that the respondent no.1 company has no power and authority to disconnect the power supply in absence of express provisions of Act or Rules framed thereunder.

2. The learned counsel for the petitioners submitted that the respondent no.1 has committed breach of section 126 of The Electricity Act, 2003 (hereinafter referred to as "The Act of 2003") as the Assessing Officer has to make inspection of the premises of the petitioner, has to issue notice of hearing and thereafter only, the assessment under section 126 of the Act of 2003 can be made by the respondent no.1 company. It is also submitted by the learned counsel for the petitioners that for the alleged theft of electricity, the respondent no. 1 company has no power of disconnection as per section 56 of the Act of 1956. The respondent no.1 has to give at least 15 days' clear notice in writing. Such notice has not been given and hence the action of the respondent no.1 company of disconnection of electricity is bad in law and deserves to be quashed and set aside and should be held to be illegal and dehors of the provisions of the Act of 2003. It is also submitted by the learned counsel for the petitioners that Electricity Supply Code is not framed by the respondent no. 2 and, therefore, there is no power of disconnection of power supply with the respondent no.1 company. The learned counsel for the petitioners has also submitted that as per section 127 of the Act of 2003, upon payment of 1/3rd of the assessed demand being deposited with the respondent no.1 company, the respondent no. 1 ought to reconnect electricity connection and thereafter, the respondent no.1 can finalise the assessment as per the provisions of section 126 of the Act of 2003. However, no such opportunity has been given by the respondent no.1 company and hence the action of the respondent no.1 of disconnection of electricity supply is illegal, arbitrary and hence violative of Article 14 of the Constitution of India.

3. Upon issuance of the notice, the respondent no.1 company has appeared through their learned advocate, who mainly submitted that the prayer in the petition is only in respect of the challenge of the power or authority to disconnect the power supply by the respondent no.1 in absence of any provisions of the Act or Rules framed thereunder. The petitioner has not prayed for an assessment made by the respondent no.1 company. It is also submitted by the learned counsel for the respondent no.1 company that under the provisions of section 21(2) of the Indian Electricity Act, 1910 (hereinafter referred to as "The Act of 1910"), Conditions of Supply have been framed and the Government of Gujarat has approved conditions of supply vide its notification no. GU-94-19-AEC-1691-4208-K dated 14th October, 1994 and as per clause 22(c) thereof, the licensee (in the present case, respondent no.1) shall be entitled to disconnect the supply of a consumer who has indulged in malpractice. Similarly, under clause 23(b), whenever there is a theft of energy, by any consumer, the licensee (respondent no.1) has all power to disconnect the electricity until the amount so assessed against the theft of energy is paid by the consumer. It is also contended by the learned counsel for the respondent no.1 company that as per Annexure "D", to the Conditions of Supply framed under section 21(2) of the Act of 1910, a format of agreement has been given which is to be signed by the consumer and by the officer of the respondent no.1 and as per clause 7 thereof, the condition of supply framed under section 21(2) of the Act of 1910 is binding upon the present petitioners and, therefore, the aforesaid two clauses 22(b) (theft of energy) and 23(c) (for malpractice) are binding to the petitioners which empower the respondent no.1 company to disconnect electricity supply in case of malpractice as well as theft of energy. In case of theft of electricity, such disconnection shall be continued until the amount assessed against theft of energy is paid by the consumer. In the present case, electricity meter of the petitioner was found tampered with and therefore, electricity connection of the petitioners was disconnected and the meter was taken away by the respondent no.1 by applying seals and for that, inspection report was given, a copy of which is at Annexure "A" to the memo of the petition. It is submitted by the learned counsel for the respondent no.1 that the petitioners have committed theft of electricity as defined under section 135 of the Act of 2003. It is also submitted by him that officers of respondent no.1 have all power to enter, inspect and search the premises of the petitioner, if they have a reason to believe that electricity has been, is being or is likely to be used unauthorisedly as per the order passed by the State of Gujarat, Energy and Petrochemicals Department, Gandhinagar dated 5th June, 2004. Therefore, officers of the respondent no.1 company have been empowered under section 135(2) of the Act of 2003 by the State of Gujarat. The learned counsel for the respondent no.1 has further submitted that the board has inherent power to disconnect the electricity connection in case of malpractice and theft of energy. In support of his this contention, he has placed reliance on the judgments of the Hon'ble Apex Court, reported in AIR 1996, SC, 2258 as well as AIR 1997, SC,1101. He has further submitted that as per section 135(2)(b) of the Act of 2003, the respondent no.1 has all power to remove all such devices which are used for unauthorised use of energy. In the present case, the meter of the petitioners was found tampered with (as per Annexure "A" to the memo of the petition) and, therefore, the same was removed by applying seals. Lastly, it is submitted by the learned counsel for the respondent no. 1 that as per section 185(2) and (3) read with Schedule, Conditions of Supply and Miscellaneous Charges framed under section 21(2) of the Act of 1910, are binding to the petitioner, more so when there is an agreement as per Annexure "D" appended with the Conditions of Supply and hence, the petitioners are bound by the Conditions of Supply and especially condition nos. 22 and 23 thereof, which empower the respondent no.1 to disconnect electricity supply in case of malpractice and theft of energy respectively. The aforesaid contention is also fortified by reading section 185(5) of the Act of 2003 read with section 6 of General Clauses Act, 1896. Thus, the conditions of Supply framed under section 21 of the Act of 1910 are binding upon the petitioners.

4. In view of the aforesaid submissions of the learned counsel for the respondent no.1, the action of the respondent no.1 cannot be said to be illegal, arbitrary and dehors the Act of 2003. On the contrary, the action of respondent no.1 is absolutely just, proper and in consonance with facts and law.

5. Before I go into the merits of the case, certain provisions of the Act of 2003 are necessary to be referred to for ready reference. Sections 126 and 127 of the Act of 2003 read as under: "126. Assessment (1) If on an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found connected or used, or after inspection of records maintained by any person, the assessing officer comes to the conclusion that such person is indulging in unauthorised use of electricity, he shall provisionally assess to the best of his judgment the electricity charges payable by such person or by any other person benefitted by such use. (2) The order of provisional assessment shall be served upon the person in occupation or possession or in charge of the place or premises in such manner as may be prescribed. (3) The person, on whom a notice has been served under sub-section (2) shall be entitled to file objections, if any, against the provisional assessment before the assessing officer, who may, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment of the electricity charges payable by such person. (4) Any person served with the order of provisional assessment may, accept such assessment and deposit the assessed amount with the licensee within seven days of service of such provisional assessment order upon him: Provided that in case the person deposits the assessed amount, he shall not be subjected to any further liability or any action by any authority whatsoever. (5) If the assessing officer reaches to the conclusion that unauthorised use of electricity has taken place, it shall be presumed that such unauthorised use of electricity was continuing for a period of three months immediately preceding the date of inspection in case of domestic and agricultural services and for a period of six months immediately preceding the date of inspection for all other categories of services, unless the onus is rebutted by the person, occupier or possessor of such premises or place. (6) The assessment under this section shall be made at a rate equal to one and half times the tariff applicable for the relevant category of services specified in sub-section (5). Explanation - For the purposes of this section,-

(a) "assessing officer"means an officer of a State Government or Board or licensee, as the case may be, designated as such by the State Government; (b) "unauthorised use of electricity" means the usage

of electricity-

b (i) by any artificial means; or

(ii) by a means not authorised by the concerned person or authority or licensee; or

(iii) through a tampered meter; or

(iv) for the purpose other than for which the usage of electricity was authorised.

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 as may be prescribed. (2) No appeal against an order of assessment under sub-section (1) shall be entertained unless an amount equal to one third of the assessed amount is deposited in cash or by way of bank draft within the licensee and documentary evidence of such deposit has been enclosed alongwith the appeal. (3) The appellate authority referred to in sub-section (1) shall dispose of the appeal after hearing the parties and pass appropriate order and send copy of the order to the assessing officer and the appellant. (4) The order of the appellate authority referred to in sub-section (1) passed under sub-section (3) shall be final.

(5) No appeal shall lie to the appellate authority referred to in sub-section (1) against the final order made with the consent of the parties. (6) When a person defaults in making payment of assessed amount, he, in addition to the assessed amount, shall be liable to pay, on the expiry of thirty days from the date of order of assessment, an amount of interest at the rate of sixteen per cent per annum compounded every six months." Similarly provisions of section 21(2) of the Act of 1910 read as under:

" 21. Restriction on licensees controlling or interfering with use of energy.

(1) xxx xxx xxx

(2) A licensee may, with the previous sanction of the State Government, given after consulting (the State Electricity Board and also) the local authority, where the licensee is not the local authority, make conditions not inconsistent with this Act or with the licence or with any rules made under this Act to regulate his relations with persons who are or intend to become consumers, and may, with the like sanction given after the like consultation, add to or alter or amend any such conditions; and any conditions made by a licensee without such sanction shall be null and void; Provided that any such conditions made before the 23rd day of January, 1922, shall, if sanctioned by the (State Government) on application made by the licensee before such date as the (State Government) may, by general or special order, fix in this behalf, be deemed to have been made in accordance with the provisions of this sub-section." 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 Licencee'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 consumer (petitioners) and respondent no.1) 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. (d) all rules made under sub-section (1) of section 69 of the Electricity (Supply) Act, 1948 ( 54 of 1948) shall continue to have effect until such rules are rescinded or modified, as the case may be; (e) all directives issued, before the commencement of this Act, by a State Government under the enactments specified in the Schedule shall continue to apply for the period for which such directions were issued by the State Government. (3) The provisions of the enactments specified in the Schedule, not inconsistent with the provisions of this Act, shall apply to the State in which such enactments are applicable. (4) xxx xxx

(5) Save as otherwise provided in sub-section (2), the mention of particular matters in that section, shall not be held to prejudice or affect the general application of section 6 of the General Clauses Act, 1897 (10 of 1897), with regard to the effect of repeals. SCHEDULE

ENACTMENTS

1. xxx xxx

2. xxx xxx

3. xxx xxx

4. xxx xxx

5. xxx xxx

6. xxx xxx

7. xxx xxx

8. xxx xxx

9. The Gujarat Electricity Industry (Reorganisation and Regulation) Act, 2003.( Gujarat Act No. 24 of 2003.)

Looking to the facts and the arguments advanced by the learned counsel appearing for the respective parties, the it seems that the premises of the petitioner was inspected by the officers of respondent no.1 on 13th August, 2004 (as per Annexure "A" to the memo of the petition) and meter of the petitioner was found to be tampered with, a hole found upon the cover of the meter through which reading of the meter can be changed as well as the meter can be stopped. It was also found that as per inspection report at Annexure "A", there are scratch marks upon reading plate of the meter and therefore, as defined under the provisions of section 135(1)(a)(b), theft of electricity has been committed by the petitioners. Section 135(1) 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."

6. Thus, looking to the Annexure "A" and the provisions of section 135(1) of the Act, 2003, whenever a consumer is prima facie found to have committed theft of electricity, the respondent no.1 has all right to disconnect the supply of electrical energy, in view of condition no. 23(b) of the Conditions of Supply, especially when there is an agreement between the parties as per Annexure "D" appended with the Conditions of Supply. It was also contended by the learned counsel for the petitioners that as per the provisions of section 56 of the Act of 2003, at least 15 days' notice ought to be given to the petitioners by respondent no.1. This contention of the learned counsel for the petitioners cannot be accepted. In my opinion, the petitioners are not required to be given any notice of hearing before disconnection of electricity in case of theft of energy. Section 56 of the Act of 2003 will apply in case of non-payment of charges of electricity during regular supply. So far as the case of theft is concerned, in view of the provisions of clause 23(b) of the Conditions of Supply, the respondent no.1 has all power to disconnect forthwith the supply of electrical energy and there is no need of any notice to be given to the petitioner in case of theft of electricity. This is fortified by the judgment delivered by the Hon'ble Supreme Court in the case of Usha Subbarao vs.B.E.Vishveswariah and others reported in AIR 1996, SC, 2258. Paragraphs 8 and 9 of the said judgment read as under: "8. The learned counsel for the respondent placed strong reliance on Section 24 of the Indian Electricity Act, 1910 which contemplates seven days' notice before disconnection. Section 24 does not apply to demand on detection of pilferage. It would apply to a case of regular supply made and prior demand for payment of electricity charges with a notice of seven days to be made and for failure to pay within the given time, after expiry of seven days, the appellant as a licensee would get the right to disconnect the supply of electrical energy. It would thus be seen that disconnection will be in the course of regular supply of electricity for non-payment of the usual bills but not to any case demand after detection of pilferage.

9. The only question is whether the consumer is entitled to hearing before disconnection ? In view of the conditions to which the respondents had agreed at the time of installation and also the prima facie conclusion reached by the authorities, it was not necessary to give further hearing to the respondents. The action taken by the appellant is not violative of Article 20(1), 14 of the Constitution and principles of natural justice."

7. Looking to the provisions of section 185(2) read with section (3) of the Act of 1910, read with sub-section (5) with Schedule read with section 6 of the General Clauses Act, 1897, the Conditions of Supply and Miscellaneous Charges framed under the Act of 1910 are binding upon the petitioners. As per section 185(2)(a) of the Act of 1910, the agreement entered into between the consumer and respondent no.1 (which is in the format of Annexure "D" appended with Conditions of Supply framed under the Act of 1910), is binding, especially in view of clause 7 thereof.

8. In case of theft of energy, assessment will be as per clause 23(b) of Conditions of Supply to be read with condition no.11 of part III of the Conditions of Supply and Miscellaneous Charges framed under the Act of 1910 and not under section 126 of the Electricity Act, 2003. and as referred to hereinabove, as per clause 11(1)(iii), energy charges will be leviable at twice the applicable rate. The learned counsel for the petitioners submitted that in the present case, the respondent no.1 company has made assessment by applying penalty factor 2.5 times. (Annexure "C" to the memo of the petition). The learned counsel for the respondent no.1 has drawn my attention to sub-section (5) of section 154 of the Act of 2003 which reads as under: "154: Procedure and power of Special Court- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under sections 135 to 139 shall be triable only by the Special Court within whose jurisdiction such offence has been committed. (2) xxxx xxxx

(3) xxxx xxxx

(4) xxxx xxxx

(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, from the aforesaid provisions, it becomes abundantly clear that in case of theft of electricity, the respondent no.1 has correctly applied the penalty factor 2.5 times for six months (which is less than twice the assessment for twelve months) as per Annexure "C" to the memo of the petition. I am, therefore, in full agreement with the contentions raised by the learned counsel appearing for the respondent no.1 company.

9. It is contended by the learned counsel for the petitioners that as per section 185(2)(b) of the Act of 2003, the Conditions of Supply framed under section 21(2) of the Act of 1910 are not saved and hence are not binding to the petitioners. At the first instance, the aforesaid contention appears to be attractive, but holds no water, especially, in view of section 185(2)(a) of the Act of 2003. The words "any document or instrument" used in clause (a) of sub-clause (2) of section 135 of the Act of 2003 includes an agreement which is appended as Annexure "D" to the Conditions of Supply framed under the Act of 1910. As per clause 7 of the agreement, the Conditions of Supply sanctioned by State of Gujarat, are binding upon the petitioners. Moreover, looking to the provisions of sub-section (3) of section 185 of the Act of 2003, to be read with Schedule which includes Gujarat Electricity Industry (Reorganisation and Regularisation) Act, 2003. The said Act have been saved and as per section 21 of Gujarat Electricity Industry (Reorganisation and Regularisation) Act, 2003, Conditions of Supply framed under section 21(2) of the Act of 1910 are saved. Section 21 of the Gujarat Electricity Industry Act, 2003 reads as under: "21. Power of licensee- (1) Subject to the provisions of this Act, the provisions of Sections 12 to 26 of the Indian Electricity Act, 1910 (9 of 1910), shall have effect as if reference to a licensee in those provisions is a reference to a licensee under this Act. (2)(a) Where-

(i) any person neglects to pay any charge for electricity or any sum other than a charge for electricity due from him to the Board, or a license (hereinafter in this sub-section referred to as " the licensee") in respect of the supply of electricity to him, and (ii) the Board or the licensee to whom such charge or other sum is due is a Government company or a corporation owned or controlled by the State Government, such charge or other sum or the aggregate of such charge and other sum due to the Board or the licensee shall be recoverable as arrears of land revenue. (b) For the purpose of effecting recovery of the charge or sum or both the charge and sum due from a person under clause (1) as the arrears of revenue, such officer as may be appointed by the State Government in this behalf by notification in the Official Gazette, shall have and exercise all the powers and perform all the duties of the Collector under the Bombay Land Revenue Code, 1879 (Bombay V of 1879). (c) No suit or other legal proceeding shall lie in any civil court against the recovery of charge or other sum due as arrears of land revenue unless the person from whom such charge or sum is due deposits the amount of such charge or sum with the Board of the licensee; Provided that the court may, in the case of hardship caused to the person from whom such charge or sum is due, in depositing the whole amount, dispense with deposit of the amount to the extent of not more than twentyfive percent of the amount due."

10. Thus, from the aforesaid provisions of the law, it is clear that Conditions of Supply framed under section 21(2) of the Act of 1910 are binding upon the petitioner and clause 23(b) empowers the respondent no.1 company for the disconnection of electricity supply, without issuance of any notice to the consumer (as per judgment delivered by the Hon'ble Supreme Court and reported in AIR 1996, SC, 2258) and such disconnection may be continued until the amount assessed against theft of energy is paid by the consumer.

11. It has been held by the Hon'ble Supreme Court in the case of M/s. Swastic Industries vs. Maharashtra State Electricity Board reported in AIR 1997, SC,1101, the relevant para-5 reads as under: " 5. It would, thus, be clear that the right to recover the charges is one part of it and right to discontinue supply of electrical energy to the consumer who neglects to pay charges is another part of it. The right to file a suit is a mater of option given to the licensee, the Electricity Board. Therefore, the mere fact that there is a right given to the Board to file the suit and the limitation has been prescribed to file the suit, it does not take away the right conferred on the Board under Section 24 to make demand for payment of the charges and on neglecting to pay the same. They have the power to discontinue the supply or cut off the supply, as the case may be, when the consumer neglects to pay the charges. The intendment appears to be that the obligations are mutual. The Board would supply electrical energy and the consumer is under corresponding duty to pay the sum due towards the electricity consumed. Thus, the Electricity Board, having exercised that power, since admittedly the petitioner had neglected to pay the bill for additional sum was right in disconnecting the supply without recourse to filing of the suit to recover the same. The National Commission, therefore, was right in following the judgment of the Bombay High Court and allowing the appeal setting aside the order of the State Commission. Moreover, there is no deficiency of service in making supplementary demand for escaped billing. There may be negligence or collusion by subordinate staff in not properly recording the reading or allowing pilferage to the consumers. That would be deficiency of service under the Consumer Protection Act. We do not find any illegality warranting interference."

12. The learned counsel for the respondent no.1 has relied on the judgment delivered by this Court in the case of Kiran Industries, Mahesana vs. Gujarat Electricity Board, Baroda and another reported in 1995(2) GLH,1 for not giving any relief against disconnection of electricity supply unless the amount assessed as per Annexure "C" to the memo of the petition is paid, by relying upon para 30 (iii) which reads as under: "30. We think it necessary to summarise our conclusions on the basis of our aforesaid discussion. Our conclusions are :

(i) xxx xxx

(ii) xxx xxx

(ii) Even in a suit questioning the legality and validity of a bill for consumption without higher charges issued by the Board (where Condition No. 34 is not applicable) the proper exercise of discretion for grant of interim relief against disconnection for non-payment of the bill would be to direct the suitor to pay the amount of the bill to Board on condition that the Board would treat it as deposit carrying the commercial rate of interest to be adjusted against future bills after the decision in the suit in case the suitor ultimately succeeds therein. Only in the rarest of rare cases, the Court would grant interim relief against disconnection without payment of the bill in question to the Board but on certain terms and conditions. This can be done only after giving cogent and convincing reasons on the basis of exceptional circumstances brought on record." Thus, as per the judgment delivered by the Division Bench of this Court, the bill amount ought to be ordered to be paid even when legality and validity of the bill is under challenge. At the initial stage, the learned counsel for the petitioners was offered reconnection upon payment of charges referred to in Annexure "C" to the memo of the petitioner, but the learned counsel for the petitioners refused to accept the said offer of payment of charges as per Annexure "C" and had not pressed for ad-interim relief and wanted to argue out the petition finally on the point of non-existence of power of respondent no.1 of disconnection of electricity without giving any notice as per section 56. Section 56 of the Act of 2003 is applicable only where any consumer neglects the payment of charges on regular basis, but whenever there is a theft of energy, the respondent no.1 has power to disconnect electricity connection forthwith without giving any notice of hearing as per Conditions of Supply framed under section 21(2) of the Act of 1910 and as per the judgments of the Hon'ble Apex Court referred to hereinabove, namely AIR 1996,SC,2258 and AIR 1997, SC,1101.

13. Therefore, in view of the aforesaid facts ane circumstances of the case and provisions of law, there is no reason to interfere with the impugned action of the respondent no. 1 company by this Court, in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India. The action of disconnection of electricity connection, of respondent no.1 is legal, correct and in consonance with law. Hence, these petitions fails and are hereby dismissed. Notice is discharged in each petition with no order as to costs.