REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICITON CIVIL APPEAL NO. 6618 OF 2008 (Arising out of S.L.P. (C.) No.12698 of 2006) Haryana Vidyut Parsaran Nigam Ltd. & Ors. … Appellants Versus M/s. Super Star Grit Udyog …Respondent JUDGMENT Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the judgment of a learned Single Judge of the Punjab and Haryana High Court dismissing the Second Appeal filed by the appellants in terms of Section 100 of the Code of Civil Procedure, 1908 (in short the ‘Code’).
3. Background facts, as projected by the appellants, are as follows:
The respondent was given electric connection bearing No.LLS-42 by the appellant-Nigam on 11.10.2002. The premises of the respondent were checked by the officials of the appellant-Nigam. It was found that the respondent was committing theft of electricity by providing bolt under the CT Chamber of the meter. On removing the earth strip from the bolt and isolating the bolt from the CT Chamber, it was noticed that there was disconnection of earth/neutral wire which caused the stoppage of the meter. Checking Report in this regard was prepared by the officials. This being a case of theft of electricity, the respondent was charged Rs.11,37,222/- as penalty. Challenging the aforesaid demand by memo dated 12.10.2000, respondent filed a Suit for declaration with consequential relief of mandatory and permanent injunction before the learned Civil Judge (Junior Division), Gurgaon. The appellants filed written statement, inter-alia, raising preliminary objections as regards the maintainability of the Suit. It is pointed out that the same was not maintainable in view of Indian Electricity (Haryana Amendment) Act, 1998 (in short the ‘Amendment Act’) i.e. Haryana Act No.4 of 1998. Replication to the said written statement was filed by the respondent. The trial Court framed an issue i.e. Issue No.3 in this regard but held that the memo was illegal, null and void. An appeal was filed before the learned District Judge, Gurgaon, before whom the same plea was taken. But the High Court only referred to the submission of the respondent and held that whether theft committed was to be adjudicated by reference to the Electrical Inspector. It was noted that appellant no.1 ought to have brought on record the evidence of some technical person regarding commission of theft and only then it would have been substantiated. In the absence of that, the plea relating to theft cannot be gone into. The Second appeal was dismissed but it was observed that if on independent evidence, commission of theft is established, the appellants are free to proceed to check theft of electricity in accordance with law.
4. In support of the appeal, learned counsel for the appellant submitted that the Trial Court came to the erroneous conclusion that the Suit was maintainable. In appeal, the first appellate court came to an abrupt conclusion that the jurisdiction of the Civil Court existed. It was stated that the dispute between the consumer and the Nigam was not barred by any Statute. The High Court did not address itself to the fundamental question as to the maintainability of the suit. It was also submitted that the courts below were not justified in holding that notice was required before any action was taken. It was also pointed out that the reference to the electrical inspector was not necessary in the case of theft.
5. We find that, all through, the appellants have been taking the stand about the maintainability of the Suit. Relevant provisions of the Amending Act read as follows:
“2. Amendment of Section 24 of Central Act 9 of 1910:
In sub-section (1) of Section 24 of the Indian Electricity Act, 1910, the following proviso shall be added, namely:-
“Provided that no Court shall take cognizance of any matter pertaining to the payment of charges due from any person to a licensee in respect of the supply of energy to him or stay the recovery thereof unless –
(i) he has exhausted all the remedies available to him under the terms and conditions governing the supply of energy to him; and
(ii) he has deposited forty percent of the amount outstanding against him, with the licensee.”
6. It is the stand of the appellants that the terms and conditions of supply clearly provide the consequences in case of theft or pilferage of electrical energy which read as follows:
“24(A)(i)(3) Theft or Pilferage of Electrical energy:
A consumer shall be guilty of theft of energy where he dishonestly abstructing, consumes, uses or draws any energy:-
a) Otherwise than through a meter referred to in condition 14 of the Terms and Conditions of Supply of the Board or Section 26 of the Indian Electricity Act, 1910.
b) Through any artificial means, or means not authorized by the Board; or
c) By tampering with such meter or its body seals, or an apparatus or circuit;
d) By manipulating such meter indicator or apparatus referred to in sub-section (6) of Section 26 of the Indian Electricity Act, 1910 or;
e) By manipulating or abstructing or interfering in the functioning of such meter in any manner so as to prevent it from fully and/or correctly registering the energy consumed; or
f) by manipulating change of phase of the electric supply lines; or
g) from a disconnected connection; or
h) by any other means whatsoever interfering with the said meter or Board’s supply system where such interference is an offence under Section 44 of the Indian Electricity Act, 1910.”
7. Unfortunately, the effect of the aforesaid amendment has not been considered by either by the trial court or by the first appellate court or the High Court. Reference may be made to a decision of this Court in M.P.
Electricity Board, Jabalpur v. Harsh Wood Products (1996 (4) SCC522) laying down that in the case of theft notice was not required. Similarly, in Sub-Divisional Officer (P) UHBVNL v. Dharam Pal (2006 (12) SCC 222) in paragraph 7 to 11, it was observed that reference is not necessary to the Electrical Inspector in the case of theft. The applicability and the relevance of these judgments have not been considered by the High Court.
8. In the circumstances, we set aside the impugned judgment of the High Court, remit the matter to it for considering the issues relating to maintainability of the Suit as filed by the respondent.
9. We make it clear that we have not expressed any opinion on the merits of the case. The appeal is allowed to the aforesaid extent without any order as to costs.
… J.
(DR. ARIJIT PASAYAT) New Delhi: November 11, 2008 … J.
(DR. MUKUNDAKAM SHARMA)