1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No. 6105 of 2008 Jharkhand State Electricity Board through parmeshwar Prasad, Son of Late N. Prasad, Personnel OfficercumLaw Officer, Jharkhand State Electricity Board, Behind Nepal House, P.O. & P.S. Doranda, District Ranchi ... … Petitioner Versus 1. The Chief EngineercumChief Electrical Inspectorcum Appellate Authority, Department of Energy, Govt. of Jharkhand, Nepal House, Doranda, Ranchi 2. M/s Vaishnavi Steel Industries, having its unit at Bandha, Deoghar through its proprietor Santosh Kumar Khetan, son of Late Chedi Lal Khetan, resident of Baijnathpur, P.O. Deoghar, P.S. Mohanpur, DistrictDeoghar 3. The State of Jharkhand through Secretary, Energy Department, Govt. of Jharkhand, Ranchi ... … Respondents CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR For the Petitioner : Mr. Ajit Kumar, Sr. Advocate Mr. Saket Upadhyay, Advocate For the Respondents : Mr. M.S. Mittal, Sr. Advocate Ms. Shilpi John, Advocate Order No. 04 Dated: 30.04.2015 Challenging order dated 15.10.2008 passed in Appeal No. 10 of 2008 whereby, the Appellate Authority has reduced the amount calculated by the Assessing Authority, the present writ petition has been filed. 2. The brief facts of the case are that, electric connection load at the unit of the respondent no. 2 was enhanced from 200 KVA to 500 KVA. On 27.05.2008, the unit of the respondent no. 2 company namely, M/s Vaishnavi Steel Industries was inspected. While changing the Modem installed in the energy meter, when it was noticed that the terminal connection was damaged on further inspection, it was found that two plastic seals of top cover of CTPT Combined Meter Unit was found broken. A copy of the 2 inspection report dated 27.05.2008 was served upon the representative of the respondent no. 2. On the basis of the written report of the Assistant Electric Engineer, Mohanpur P.S. Case No. 94 of 2008 was lodged for the offence under Section 135 of the Electricity Act, 2003. A provisional bill for Rs. 87,62,000/ was issued to the respondent no. 2, to which it submitted its objection and the final assessment order was passed on 15.07.2008 whereby, loss to the petitioner was determined at Rs. 40,31,840/. The respondent no. 2 moved this Court in W.P.(C) No. 2805 of 2008 which was disposed of vide order dated 13.08.2008 directing the respondent no. 2 to deposit 50% of the assessed amount, first and it was directed to deposit the remaining 50% in two installments. The respondent no. 2 thereafter, filed Appeal No. 10 of 2008 which has been allowed by the impugned order dated 15.10.2008. 3. Mr. Ajit Kumar, the learned Senior Counsel for the petitioner submits that registration of the criminal case for theft of energy at the unit of respondent no. 2 is a matter of record still, the Appellate Authority entertained the appeal preferred by the respondent no. 2. It is further submitted that considering the submission raised on behalf of the respondentcompany, W.P.(C) No. 2805 of 2008 was disposed of directing the respondentcompany to deposit the total assessed amount however, order dated 13.08.2008 in W.P.(C) No. 2805 of 2008 cannot be construed as conferring jurisdiction upon the Appellate Authority to entertain the appeal of the respondentcompany which otherwise is not maintainable.
4. Mr. M.S. Mittal, the learned Senior Counsel for the respondent no. 2M/s Vaishnavi Steel Industries supporting the impugned order dated 15.10.2008 in Appeal No. 10 of 2008 submits that in pursuance of order dated 13.08.2008 in W.P.(C) No. 2805 of 2008 the respondent no. 2 preferred the appeal. The 3 Appellate Authority though erred in taking the period of theft of electricity between the period February, 2008 to May, 2008 which should have been only for 25 days, the respondent no. 2 raises a contention that once a provisional bill under Section 126 of the Electricity Act, 2003 has been served upon the consumerrespondent no. 2 and the same has been revised, the consequence of exercise of jurisdiction by the Assessing Authority under Section 126 would be that the consumer is entitled to prefer appeal in terms of Section 127 of the Act. Relying on a decision in “Kamaljeet Singh Vs. Bihar State Electricity”, reported in 2010 (3) PLJR 514 and Supply Code Regulation 15.8.7 the learned Senior counsel for the respondent no. 2 submits that merely because metering seal has been found broken, it would not lead to an inference of theft of electricity. In “M/s Shyam Lal Iron & Steel Company through one of its Directors Shri Shambhu Lal Shaw Vs. Jharkhand State Electricity Board through its Chairman” reported in 2013(3) JBCJ 356(HC), the Hon'ble Division Bench of this Court has also clarified the issue and held that such cases may be cases of unauthorized use of electricity but not the case of theft of electricity. It is stated that the consumption pattern of respondent no. 2company indicates higher consumption in subsequent months which rose upto 17,000/ for the month of May, 2008 and therefore, the allegation of theft of electricity is not correct. It is further submitted that after the police submitted Final Form and the Criminal Court accepted the Final Form, no case remained pending against the respondent no. 2. Thus, in view of the fact that no criminal case is pending against the respondent no. 2company, in view of subsequent development, no interference is required in this matter. 5. The Electricity Act, 2003 contains several special features engrafted in the Act itself. The Special Court constituted for speedy trial of offences referred to in Sections 135 to 140 and 4 Section 150 of the Act has been conferred power to determine civil liability against a consumer in terms of money for theft of energy besides, power and jurisdiction to try the offences mentioned in Section 153. Generally, the procedure followed is of a summary trial however, if the Special Court finds that the nature of the case is such that it is undesirable to try such case in summary way, the Special Court may recall the witnesses and rehear the case in the manner provided under the Code of Criminal Procedure for the trial of such offences. Section 154(5) provides that the civil liability shall be recovered as if it were a decree of civil court. The Special Court has been conferred upon powers of the Court of Sessions and it has power to review its own order or judgment passed under Section 154 of the Act. Thus, the case of theft of electricity has to be dealt with in an entirely different manner contrary to the cases of unauthorised use of electricity. This distinction is apparent in as much as, the cases of unauthorised use of electricity as covered under section 126 finds place in Chapter XII which deals “investigation and enforcement” whereas, the theft of electricity under Section 135 is in a different Chapter, Part XIV of the Act which deals with “offences and penalties”. The provision under Section 126 and Section 135 are two different and distinct provisions operating in independent fields and have to be dealt with in different manner, is no longer in dispute. It is apparent that in contradistinction to Section 126, in Section 135 under Part XIV, there is no provision for appeal in cases of theft. Third proviso to Section 135(1A) provides that the loss suffered by the licensee or supplier would be assessed in accordance with the provisions of this Act and on payment of assessed amount or electricity charges, the supply line of electricity shall be restored. 6. It is not in dispute that a criminal case has been lodged vide Mohanpur P.S. Case No. 94 of 2008. In terms of third proviso 5 to Section 135 (1A), a provisional bill for the loss sustained by the petitioner was required to be served upon the respondent no. 2. Though, the amount of final bill assessed by the Assessing Officer has been accepted by the petitioner, a plea has been raised on behalf of the respondent no. 2company that once a provisional assessment/final assessment in terms of Section 126 of the Electricity Act, 2003 is made, the natural consequence thereof would be entitlement of the consumer to file an appeal under Section 127. As noticed above, in cases of theft of electricity, against the provisional bill issued under third proviso to Section 135(1A), no appeal lies. Merely because the Assessing Authority has mentioned that the provisional bill/final bill has been issued under Section 126, no appeal under Section 127 would lie in the present case. It cannot be disputed that under third proviso to Section 135(1A) the petitioner is entitled to recover the amount of loss in terms of money, as a condition for restoring electric supply to a consumer. If the provisional bill has been revised in the final assessment from Rs. 87,62,000/ to Rs. 40,31,840/, it has benefited the consumer only. However, the fact that procedure under Section 126 has been followed by the Assessing Officer, a case of theft of electricity cannot be deemed to be converted into a case of unauthorised use of electricity. Order passed by this Court in W.P.(C) No. 5168 of 2014 also would not confer jurisdiction upon the Appellate Authority to entertain Appeal No. 10 of 2008. The learned Senior Counsel for the petitioner has submitted that a plea of nullity can be raised at any stage. The case against the respondent no. 2 is that, it indulged in theft of electricity and thus, I am of the opinion that the Appellate Authority should have adverted to the question of jurisdiction, though not specifically raised before it. A question of jurisdiction goes to the root of the matter and an order passed by a Court/Tribunal/Authority without jurisdiction, is a 6 nullity. Section 127(4) indicates that a finality has been attached to the order passed by the Appellate Authority and therefore, the Appellate Authority was under a duty to examine every aspect of the matter including, the question of jurisdiction.
7. The learned Senior Counsel for the respondent no. 2 has submitted that final form was submitted by the police which was accepted by the criminal court. Per contra, Mr. Ajit Kumar, the learned Senior Counsel for the petitioner submits that against the order accepting the final form, a criminal revision has been filed by the petitioner. From the proceeding in the present writ petition, it is apparent that the criminal case was pending when order dated 15.10.2008 in Appeal No. 10 of 2008 was passed. The learned counsel for the respondent no. 2 refers to Clause 15.8.7 of the Jharkhand Electric Supply Code Regulation and Rule 138 of the Electricity Rules, 1956 and submits that breaking of seal would not amount to theft of electricity and in fact, only penalty for breaking of seal has been provided under the Rules. I am of the opinion that the plea raised on behalf of the respondent no. 2 can be considered by the Court while examining the challenge to registration of the criminal case. In the present proceeding, the respondent no. 2 has not challenged registration of the criminal case. The decisions cited by the learned Senior Counsel for respondent no. 2 do not lend support to the case of the respondentcompany. The issue before this Court is a question of jurisdiction and not the manner of calculation of penalty. 8. Considering the above facts, I am of the opinion that order dated 15.10.2008 passed in Appeal No. 10 of 2008 requires interference by this Court and accordingly, the same is hereby quashed. The writ petition stands allowed, in the above terms. Manish/A.F.R. (Shree Chandrashekhar, J.)