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Judgment
Heard Mr. Sachin Kumar, the learned counsel appearing on behalf of the petitioner/Jharkhand Urja Vikas Nigam Ltd. [JUVNL] and Mr. M.S. Mittal, the learned Senior counsel appearing on behalf of the respondent no.1.
Respondent no.2 is appellate authority and it appears that respondent no.2 is not an answering party in this writ petition.
This writ petition has been filed under Article 226 of the Constitution of India for quashing the order dated 17.12.2013 passed in Appeal No. 44/2012-13 by the Senior Electrical Inspector under the Appellate jurisdiction of Section 127 of the Electricity Act, 2003 whereby Senior Electrical Inspector has allowed the appeal.
Mr. Sachin Kumar, the learned counsel appearing on behalf of the petitioner submits that the officer of the petitioner-JUVNL inspected the premises of the respondent no.1/ M/s Khatu Shyam Udyog on 31.01.2012 and submitted an inspection report in which it was found that the connected load of the Petitioner was 344 HP during inspection as against the sanctioned load of 105 HP. The inspecting team further observed that blue color P.V.C. pipe covering 3 core cable and L.T. Terminal of transformer vulnerable for tapping and hooking which clearly exhibits the theft of energy as contained in Annexure-1. He next submits that the inspection team found the respondent no.1 to be involved in theft of electricity, so, First Information Report was registered at Chakulia Police Station under Section 135/138/139 of the Electricity Act, 2003 as contained in Annexure-2. Mr. Sachin Kumar, the learned counsel for the petitioner next submits that the authorized officer after informing the entire details and units consumed by the respondent No.1 made due communication to the Petitioner and as such the provisional bill of Rs. 51,06,041/- was served upon the respondent No.1 and against the provisionally assessed amount of Rs. 51,06,041/- the Respondent No. 1 approached this Hon'ble Court by filling a writ petition being W.P.C. No. 731 of 2012 which has been disposed of with direction upon Respondent No.1 to appear before the assessing authority and file objection and raise all relevant points. By the said order, further direction was made to deposits Rs.5 lacs in one go, and in turn, the Petitioner was directed to restore the electricity connection within two days thereafter. He next submits in view of that, the electricity connection was made in the premises of the respondent no.1 on 27.03.2012 as contained in Annexure-3. He next submits that the respondent no.1 has approached the authorities of the petitioner-Corporation and filed objection under section 126 of the Electricity Act, 2003, and thereafter considering the objections filed by the Respondent No. 1. the Electrical Superintending Engineer, Jamshedpur passed the final order of assessment on 05.11.2012 which came to the tune of Rs. 47,24,568/- as contained in Annexure-4. He next submits that, however, the same was not complied and the respondent no.1 again filed a writ petition being W.P.C. No. 7100 of 2012. He next submits that finally the said writ petition was disposed of by the order dated 03.01.2013 as contained in Annexure-5 directing the Respondent No.1 to deposit Rs. 5 lacs over and above Rs.5 lacs deposited earlier and further the direction was issued to furnish bank guarantee of Rs. 15 lacs. Mr. Sachin Kumar, the learned counsel appearing on behalf of the petitioner-JUVNL submits that respondent no.1 had filed an appeal under section 127 of the Electricity Act, 2003. He next submits that at that time, filing of the appeal itself was not maintainable as the criminal case was pending against the respondent no.1. He next submits that the appellate authority by order dated 17.12.2013 directed the petitioner to issue fresh Bill and modified the assessment order dated 05.01.2012 which is not in accordance with the law. He next submits that now the respondent no.1 has already been acquitted in the trial as in view of section 126 of the Electricity Act, 2003 will apply and in light of the provisions made under the said section the Board/Nigam is competent to assess the demand on respondent no.1. He also submits that once under section 135 of the Electricity Act, 2003, the assessment or punishment is held by the Special court empowers the Electricity Act, 2003, then again section 126 formula to calculate will apply. He next submits that this aspect of the matter is well settled in light of the judgment of Hon’ble Supreme Court in the case of Executive Engineer, Southern Electricity Supply Company of Orissa Limited (SOUTHCO) and Another v. Sri Seetaram Rice Mill reported in (2012) 2 SCC 108 wherein at paragraph nos.30, 62, 64 and 67 of the said judgment it is held as under:
“30.Therefore, there is a clear distinction between the cases that would fall under Section 126 of the 2003 Act on the one hand and Section 135 of the 2003 Act on the other. There is no commonality between them in law. They operate in different and distinct fields. The assessing officer has been vested with the powers to pass provisional and final order of assessment in cases of unauthorised use of electricity and cases of consumption of electricity beyond contracted load will squarely fall under such power. The legislative intention is to cover the cases of malpractices and unauthorised use of electricity and then theft which is governed by the provisions of Section 135 of the 2003 Act.
62.The requirement of grant of licence itself suggests that electricity is a controlled commodity and is to be regulated by the regulatory authorities. If a person unauthorisedly consumes electricity, then he can certainly be dealt with in accordance with law and penalties may be imposed upon him as contemplated under the contractual, regulatory and statutory regime. The Orissa Electricity Regulatory Commission, in exercise of its powers under Sections 181(2)(t), (v), (w) and (x) read with Part VI of the 2003 Act, the Orissa Electricity Reforms Act, 1995 and all other powers enabling it in that behalf, made the regulations to govern distribution and supply of electricity and procedure thereof such as system of billing, modality of payment, the powers, functions and applications of the distribution licensees, form for supply and/or suppliers and the rights and obligations of the consumers. These were called “the Orissa Electricity Regulatory Commission Distribution (Conditions of Supply) Code, 2004” (hereinafter referred to as “the Conditions of Supply”) vide Notification dated 21-5-2004.
64.Minimum energy charges are to be levied with reference to “contract demand” at the rate prescribed under the terms and conditions. These clauses of the Agreement clearly show that the charges for consumption of electricity are directly relatable to the sanctioned/connected load and also the load consumed at a given point of time if it is in excess of the sanctioned/connected load. The respondent could consume electricity up to 110 kVA but if the connected load exceeded that higher limit, the category of the respondent itself could stand changed from “medium industry” to “large industry” which will be governed by a higher tariff.
67.On the cumulative reading of the terms and conditions of supply, the contract executed between the parties and the provisions of the 2003 Act, we have no hesitation in holding that consumption of electricity in excess of the sanctioned/connected load shall be an “unauthorised use of electricity” in terms of Section 126 of the 2003 Act. This, we also say for the reason that overdrawal of electricity amounts to breach of the terms and conditions of the contract and the statutory conditions, besides such overdrawal being prejudicial to the public at large, as it is likely to throw out of gear the entire supply system, undermining its efficiency, efficacy and even increasing voltage fluctuations.”
Relying on the above judgment, Mr. Sachin Kumar, the learned counsel appearing on behalf of the petitioner/JUVNL submits that in light of this judgment, once the load is found to be over-load by the authorities, the petitioner is entitled to assess. He also submits that in absence of any agreement for sanction of load under H.T. category, the enhanced energy load has been utilized by the respondent no.1 and in view of that also, the order of the appellate court is bad. On these grounds, he submits that this writ petition may kindly be allowed.
On the other hand, Mr. M.S. Mittal, the learned Senior counsel appearing on behalf of the respondent no.1 submits that for the alleged allegation, the FIR being Chakulia P.S. Case No.8 of 2012 was registered under section 135, 138 and 139 of the Electricity Act, 2003 which has been tried by the empowered Special court under the Electricity Act, 2003 and the respondent no.1 has been acquitted by the judgment dated 19.11.2019 in G.R. Case No.44 of 2012, corresponding to Chakulia P.S. Case No.8 of 2012. In this background, he submits that once the respondent no.1 has already been acquitted by the Special court under the said Act, sub sections 5 and 6 of section 154 of the said Act will come into play. By way of referring those two sub-sections of section 154 of the said Act, Mr. Mittal, the learned Senior counsel appearing on behalf of the respondent no.1 submits that Special court is empowered to determine the civil liability against the consumer relating to theft of energy. He next submits in light of sub-section 5, what will be the method of determination of the liability is also described. He next submits that sub-section 6, provides as to how the amount has to be deposited or refunded. He next submits that in light of the provisions made under section 154 of the Electricity Act, 2003, once the petitioner is acquitted, section 126 of the Electricity Act, 2003 has got no role. He next submits that if the allegation of theft is not there and only allegations are made of excess load, then only section 126 of the Electricity Act, 2003, will apply. Mr. Mittal, the learned Senior counsel appearing on behalf of the respondent no.1 further submits that so far as the case of Executive Engineer, Southern Electricity Supply Company of Orissa Limited (SOUTHCO) and Another v. Sri Seetaram Rice Mill (supra) is concerned, in that case only section 126 of the Electricity Act, 2003 was involved. Mr. Mittal, the learned Senior counsel further submits that this aspect of the matter is further more clear in light of the recent judgment of Hon’ble Supreme Court in the case of Dakshin Gujarat VIJ Company Limited and Another v. Vaibhav Metal Crusher along with Another [Civil Appeal arising out of Special Leave to Appeal (C) No.8778 of 2025] in light of the judgment dated 26.10.2026 reported in 2026 INSC 1157. He refers to paragraph nos. 36 and 37 of the said judgment, which reads as under:
36.Thus, the legal position emerging from the aforesaid discussion is that the benefit of the third proviso to sub section (1A) of Section 135 qua restoration of the supply of electricity disconnected under sub-section (1A) of Section 135, in the absence of any specific provision in the Supply Code notified under Section 181(2)(x) read with Section 50 of the 2003 Act, is available on deposit or payment of the amount assessed in accordance with the provisions of Section 126 of the 2003 Act read with the provisions of the Supply Code, as are applicable to cases of unauthorized use of electricity. However, since an appeal is considered as a continuation of the original proceeding, the amount so assessed under Section 126 is subject to the order in an appeal under Section 127. In consequence, the assessed amount determined in the appeal, if any, is final for the limited purpose of seeking restoration of the supply of electricity as contemplated under the third proviso to sub section (1A) of Section 135. However, in cases of theft where a criminal complaint is filed, the determination under Sections 126 and 127, though final for the purpose of seeking restoration of the supply of electricity under the third proviso to sub-section (1A) of Section 135, is subject to the determination of the civil liability by the Special Court under sub-section (5) of Section 154 of the 2003 Act.
37.In view of the discussion above, we summarize our conclusions as under: (i) In cases of electricity theft, for seeking restoration of the supply of electricity disconnected under sub section (1A) of Section 135 of the 2003 Act, the ‘assessed amount’ required to be deposited or paid under the third proviso to sub-section (1A) of Section 135 by the person concerned, in the absence of any specific procedure prescribed under the Supply Code notified under Section 181(2)(x) read with Section 50 of the 2003 Act, is to be determined by adopting the same procedure as is for assessing the electricity charges payable by a person benefiting by the unauthorized use of electricity. (ii) The amount so assessed is subject to the determination in an appeal, if any, filed under Section 127 of the 2003 Act. However, in cases of theft, the determination by the appellate authority is final for the limited purpose of seeking restoration of the supply of electricity in terms of the third proviso to sub-section (1A) of Section 135 of the 2003 Act. Importantly, where a criminal complaint is filed, such determination is not binding on the Special Court which is empowered to determine the civil liability of the person concerned under sub-section (5) of Section 154 of the 2003 Act. (iii) If the amount assessed and deposited under the third proviso to sub-section (1A) of Section 135 exceeds the civil liability determined by the Special Court under sub-section (5) of Section 154, the excess amount is to be refunded in terms envisaged under sub-section (6) of Section 154.”
Relying on the above judgment, Mr. Mittal, the learned Senior counsel appearing on behalf of the respondent no.1 submits that in light of the said judgment, it is crystal clear that sections 126 and 127 of the Electricity Act, 2003 are meant only for calculation of the amount for restoration of the electricity connection. He further submits that respondent no.1, pursuant to order of this Court dated 03.01.2013 in light of the order dated 27.03.2012 passed in W.P.C. No. 731 of 2012 has already deposited Rs.5 lacs and pursuant to that, the restoration of electricity connection was made. He next submits that for moving before the appellate authority, 50% of the assessed amount was required to be deposited before the appellate authority in terms of section 127 of the Electricity Act, 2003. He next submits that since the respondent no.1 was not in a position to deposit the said amount, the respondent no.1 moved before this Court in W.P.(C) No.7100 of 2012 which was disposed of by order dated 03.01.2013 directing the respondent no.1 to deposit further cash of Rs.5 lacs and furnish bank guarantee of Rs.15 lacs before the appellate authority and thereafter the respondent no.1 further deposited Rs.5 lacs. Mr. Mittal, the learned Senior counsel appearing on behalf of the respondent no.1 submits that in light of Annexure-8 dated 07.09.2011, the sanction was already made for enhancement from 105 H.P. to 210 KVA from L.T.I.S to H.T.I.S. He also submits that once the sanction was made and the Board/ Nigam has not entered into the agreement, in view of that, the respondent no.1 has been compelled to file another writ petition before this Court being W.P.(C) No.2307 of 2012, and pursuant to the direction of the High Court, an agreement was entered into and security amount has already been deposited by the respondent no.1 to the tune of Rs.5,67,000/- and he submits that this fact has been stated by the respondent no.1 in paragraph nos.25 and 26 of the counter affidavit filed by the respondent no.1. He submits that in view of the sanction and the agreement, there is no illegality in the order of the appellate authority. He has argued to the extent that in light of acquittal in criminal case, the respondent no.1 is entitled for refund of the deposited amount and in the aforesaid background, Mr. Mittal, the learned Senior counsel submits that in light of the acquittal, there is no requirement of any further proceeding under sections 126 and 127 of the Electricity Act, 2003.
In reply, Mr. Sachin Kumar, the learned counsel appearing on behalf of the petitioner/JUVNL submits that Annexure-8 is the letter dated 07.09.2011 by which the respondent no.1 was called upon to furnish certain documents for entering into an agreement and according to him, there is no agreement till date. He further reiterated his argument that even in the case of Dakshin Gujarat VIJ Company Limited and Another v. Vaibhav Metal Crusher along with Another (supra) relied by the learned Senior counsel appearing on behalf of the respondent no.1, Section 126 of the Electricity Act, 2003 is also relevant for assessment. On these grounds, he submits further that the writ petition may kindly be allowed. He also submits that this writ petition is filed by the petitioner Jharkhand Urja Vikas Nigam Limited (JUVNL) and the impugned order has not been challenged by the respondent no.1. and as such, the prayer of refund made by the learned counsel for the respondent no.1 is mis-conceived one.
In view of the above submission of the learned counsels appearing on behalf of the parties, the Court has gone through the materials on record including the judgment relied by both the sides.
Admittedly, the inspection was made on 31.01.2012, and thereafter, the FIR was drawn being Chakulia P.S. Case No.8 of 2012 registered under section 135, 138 and 139 of the Electricity Act, 2003. From the FIR, it is crystal clear that the said case has not been registered under section 126 of the Electricity Act, 2003 and respondent no.1 has faced the trial and he has been acquitted by the judgement dated 19.11.2019 in G.R. Case No.44 of 2012, corresponding to Chakulia P.S. Case No.8 of 2012 and after disconnection of the electricity, the petitioner has approached this Court in W.P.C. No. 731 of 2012 which was disposed of vide order dated 27.03.2012 and pursuant to deposition of Rs.5 lacs, the electricity connection of the respondent no.1 was restored. The respondent no.1 has not been able to file the appeal under section 127 of the Electricity Act, 2003 and in view of that, the respondent no.1 has further approached this Court in W.P.C. No.7100 of 2012 which has been disposed of vide order dated 03.01.2013 directing the respondent no.1 to further deposit Rs.5 lacs and further Rs.15 lacs by way of bank guarantee for entertaining the appeal and thereafter the respondent no.1 has further deposited Rs.5 lacs.
Annexure-8 is the letter dated 07.09.2011 whereby the sanction was granted to convert the line from L.T.I to H.T.I, however, Mr. Sachin Kumar, the learned counsel appearing on behalf of the petitioner/JUVNL has denied to enter into any agreement which has been replied by Mr. M.S. Mittal, the learned Senior counsel appearing on behalf of the respondent no.1 at paragraph nos.25 and 26 of the counter affidavit filed by the respondent no.1 and the statement is made as under:
“25.That in reply to the submissions made in paragraph 17 of the writ petition, the answering respondent submits that the same are an attempt by the petitioner to mislead this Hon'ble Court and present the Respondent No. 1 in a bad light. The truth of the matter is that on 01.08.2011, the Respondent No. 1 applied for an HT connection of 210 KVA before the Petitioner. Pursuant to the application made by Respondent No. 1, the JUVNL authority being Electrical Superintending Engineer vide letter no. 2288 dated 07.09.2011 sanctioned a load of 210 KVA to the respondents.
After hearing both the parties in the writ petition filed by the petitioner (Respondent No. 1 herein) i.e., WPC No. 731 of 2012, vide order dated 27.03.2012, this Hon'ble Court was pleased to restore the electrical connection on the basis of payment of Rs. 5 lacs. Thereafter, upon deposit of Rs. 5 lacs, the electrical connection of the respondent was restored. After restoration of its electrical line, the Respondent No. 1 once again approached the Petitioner to execute the High-Tension agreement for supply of electricity at 11 KVA, but the Petitioner did not respond to the aggrieved respondents requests and kept sitting light over the matter.
The apathetic and arbitrary approach and attitude of the Petitioner is evident from the fact that the aggrieved respondent had to resort to filing a writ petition being WPC No. 2307 of 2012 on 24.04.2014 praying that the Petitioner be directed to forthwith execute a High Tension Agreement for 210 KVA on the basis of the load sanction letter issued by the Electrical Superintending Engineer vide letter no. 2288 dated 07.09.2011, and in respect of which Respondent No. 1 had already deposited a sum of Rs. 5,67,000/- as security money as far back as 22.11.2011. It was only after the order of the Hon'ble High Court that the High-Tension connection was given by the Petitioner.
26.That in reply to the submissions made in paragraph 18 of the writ petition, the answering respondent submits that the same are misconstrued submissions made by the petitioner as is evident from the preceding paragraph that the Respondent No. 1 had to resort to filing WPC No. 2307 of 2012 in order to get an HT agreement executed Hence, there were no latches on the part of the respondent in the delay of the execution of the HT agreement, which finally took place on 25.05.2012 and the unit was energized subsequently on 09.06.2012.”
In view of the above, statement made in the paragraph no.17 it is crystal clear that the agreement was entered into for conversion and security amount has already been deposited. Sub-sections 5 and 6 of Section 154 of Electricity Act, 2003, stipulates as under:
“154. Procedure and power of Special Court.–
“ 1. ………
(5)The Special Court shall 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.
(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 excess 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 orlicensee or the concerned person, as the case may be, within a fortnight from the date of communication 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” 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 135 to 140 and section 150.”
In light of the aforesaid two provisions, the Special Court is empowered to determine the civil liability in terms of the money for theft of energy. In the said sub-sections, how the calculation has to be made, is also prescribed and sub-section-6 is made for deposition and return of the determined amount by the Special court. Thus, in a case of theft, the court which is in seisin with the F.I.R determination, is empowered to opine in the form of civil liability. The fact remains that the respondent no.1 has faced the trial and respondent no.1 has been acquitted under section 126 of the Electricity Act, 2003, stipulates how the calculation has to be made in a case where over utilize of the energy is there in place of sanctioned load. The case against the respondent no.1 is under section 135, 138 and 139 of the Electricity Act, 2003 and this aspect of the matter is crystal clear in light of the recent judgment of the Hon’ble Supreme Court in the case of Dakshin Gujarat VIJ Company Limited and Another v. Vaibhav Metal Crusher along with Another(supra) on which reliance has been made by the learned Senior counsel appearing on behalf of the respondent no.1. There is no doubt that in that judgment, it has also been clarified that if disconnection of electricity under sub section 1(A) of Section 135 of the Electricity Act, 2003 is made, in light of its proviso of Sub section 1(A) of Section 135 of the said Act, for the purpose of assessment for restoration of the electricity connection, the Supply Code Notification is required to be considered, and only to that effect, clarification is made. However, the said judgment is on the point of Section 126, and section 127 of the Act is very clear, whereas, in that case, sub section 5 of Section 154 of the Electricity Act, 2003, was also considered and, thereafter, the said judgment has been passed. In the case relied by Mr. Sachin Kumar, the learned counsel appearing on behalf of the petitioner/JUVNL in the case of Executive Engineer, Southern Electricity Supply Company of Orissa Limited (SOUTHCO) and Another v. Sri Seetaram Rice Mill (supra), only section 126 of the said Act was under consideration. The clarity is also made and distinction has been considered in paragraph no.30 of the said judgment, and in that case, only the load aspect has been considered by the Hon’ble Supreme Court, whereas, the case of the petitioner is otherwise, and as such, the said judgment is not helping the petitioner/JUVNL.
Further, the Court finds from the averments made in the writ petition, that the petitioner-herein/JUVNL itself has stated that the appeal under section 127 of the Electricity Act, 2003 was not maintainable, and the statement is made on the basis of the judgment of the Division Bench of this Court in the case of M/s Shyam Lal Iron & Steel Co. v. J.S.E.B as contained in Annexure-6 to the writ petition which is further contradictory to the argument raised by Mr. Sachin Kumar, the learned counsel appearing on behalf of the petitioner/J.U.V.N.L in support of the writ petition and in para-21 of the said judgment, it has been held as under:
“We find a difference between the procedure prescribed to Section 126 and 135 of the Act. By procedure prescribed under section 126, opportunities are given to the consumers to contest the assessment order which is provisional and when final assessment is made then by preferring an appeal, such procedure is not provided either under section (1A) of the Section 135 or under the relevant sub-clauses of clause 15.8.”
In view of above facts, reasons and analysis, the Court finds that no case of interference is made out, and as such, this writ petition being W.P.(C) No.5166 of 2014 is, hereby, dismissed.
The respondent no.1 has not challenged the impugned order for refund of the amount, and in view of that, in the writ petition filed by the petitioner/JUVNL, that relief cannot be allowed to the respondent no.1.