Question On Jurisdiction of Civil Courts In Respect Of Assessment Orders Under Electricity Act: Supreme Court Issues Notice To Attorney General

The bench comprising Chief Justice N. V. Ramana, Justice A. S. Bopanna & Justice Hrishikesh Roy issued notice to the Attorney General for assistance on the plea impugning the order of the High Court of Punjab and Haryana dismissing the Regular Second Appeal filed by the petitioner challenging the assessment under section 135 read with 152 of Electricity Act.

The High Court had made the observation that under section 145 of Electricity Act, there is a specific bar to the jurisdiction of Civil Court to entertain the suits/proceedings in respect of matters falling under Section 126 of the Act.

Section 145 of the Electricity Act says that no civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter, which an assessing officer referred to in section 126 or an appellate authority referred to in section 127 or the adjudicating officer appointed under the Act is empowered to determine and no injunction shall be granted by any court or other authority in respect of any action taken in pursuance of any power conferred by this Act. Section 126 provides the procedure for assessment in a case of unauthorised use of electricity. Section 135 deals with theft of electricity.

"A bare reading reveals that there is sufficient bar under which the jurisdiction of civil court to entertain suit proceedings in respect of matters falling under Section 126 of the act is expressly barred. Even qua the final assessment order, the civil court has no jurisdiction to deal with the declaration suit pertaining to final assessment done under the provisions of the Electricity Act, 2003", the High Court had ruled, dismissing the appeal. Subsequently, the review was also dismissed.

Before the Supreme Court, the advocate appearing for the Petitioner raised a point that there is specific bar under Section 145 on the civil court to entertain the proceedings assessed under section 126 & 127 of the Act. However, in the cases of theft under section 135 of Electricity Act, there is specific provision under section 154 which has to be followed. Section 154 deals with the Procedure and power of Special Court in respect of offences under sections 135-140 and section 150.

On the Submissions made by Mr. Pushpinder Singh, Advocate, the Supreme Court has sought Attorney General assistance on the plea raised. "Having heard learned counsel appearing for the petitioner and carefully perusing the material available on record, we are of the considered view that the points raised in these Special Leave Petitions require the assistance of Learned Attorney General for India. In view of the above, let notice be issued to the learned Attorney General for India", directed the bench.

The SLP avers that by a memo dated October 25, 2012, Rs. 27,000 was demanded from the petitioner on the basis of assessment by the licensee for theft of electricity and another memo of the same date under sections 135 and 152 of the Electricity Act 2003 demanded Rs.12,000 as compounding amount. "The High Court failed to appreciate that the petitioner has rightly preferred the suit for declaration of illegal memos issued by the respondents before Civil Judge, Ellenabad. It is submitted that the civil court has jurisdiction to entertain the suit for declaration against illegal action taken by the department.On similar facts and circumstances, another suit for declaration filed by the father of the petitioner against the electricity department was decreed by the Civil Judge, Rania and the same has not been challenged by the respondents and therefore, has attained finality. The High Court ought to have considered that the Civil Judge, Ellenabad, while deciding the present matter in respect of jurisdiction, has decided in favour of the petitioner, but failed to allow the suit of the petitioner", it is narrated.

It is submitted that in the cases where the memos were issued under section 135/ 152 of the Electricity Act, where the notice primarily is to be issued for provisional assessment under section 126 and thereafter the consumer is required to submit the objections and then final assessment can be drawn, but in the present case, nothing was done in this regard and a shortcut method was used to create a criminal jurisdiction. It is submitted that it was declared in a joint checking report that seals were tampered and those were re-affixed with some adhesive but the department did not care to go into its chemical examination because adhesive is always a chemical material available on the seal which can be tested in the laboratory by the chemical technical examiner, and hence, the offences under the electricity act does not prove at all.

"The High Court has failed to appreciate that the meter of the petitioner was installed on the electricity pole lying on the road which is not in the control of the petitioner therefore any tampering with the meter does not prima facie out a case against the petitioner. As per the letter issued by the concerned SDO Operation, the electricity metre of the house was installed on the electric pole on public street outside the house of the Petitioner. It was specifically mentioned in the letter that all the domestic electricity meters of a consumer will be installed outside the house of the consumer, upon poles of electricity, and if there is any damage caused to those electricity meters, then the department will be responsible and no amount will be charged from the consumer", it is advanced.

It is stated that the High Court has not applied judicial mind while deciding the present matter that the suit of the petitioner is not maintainable before the civil court according to section 126 of the Electricity Act and the electricity meter has to be checked by inspecting the site to ascertain whether the consumer is indulging of using the unauthorised electricity. "Further, in view of the ingredients of section 135 of the Act, which deals with the offence of theft of electricity, penalty cannot be imposed without establishing the fact that the consumer has consumed the electricity by tampering with the electricity meter. It is submitted that in the present matter, there is no such evidence that the petitioner has committed such offence and used unauthorised electricity", it is submitted.