Sanjay Kishan Kaul, J.— The petitioners are all persons who have been charged with theft of electricity and the common question which arises for consideration is the tariff which will be applicable to such cases of theft.
2. In order to appreciate the controversy, it is necessary to consider the history of certain legislations and enactments relating to the supply and distribution of electricity. The first enactment is The Indian Electricity Act, 1910 (hereinafter to be referred to as, ‘the Act of 1910’) which created the basic framework for electric supply in India. Subsequently. The Electricity (Supply) Act, 1948 (hereinafter to be referred to as, ‘The Supply Act of 1948’) was enacted to create the State Electricity Boards, which were responsible for arranging the supply of electricity in the States. The tariffs used to be fixed by these State Electricity Boards, but it was found that there was difficulty in a professional and independent manner of administration and fixation of the tariff specially on account of the cross-subsidies. In order to provide an independent mechanism, the Electricity Regulatory Commissions Act, 1998 (hereinafter to be referred to as, ‘the Act of 1998’) was enacted and in furtherance of this process of reforms, in various States, Electricity Reforms Acts have been enacted. In the present case, the Act is The Delhi Electricity Reforms Act, 2000 (hereinafter to be referred to as, ‘the Reforms Act’).
3. In view of the aforesaid background as also with the object of encouraging participation of the private sector in the process of such distribution of electricity, it was considered necessary to enact a comprehensive Act for regulating the electricity supply industry. Thus, came into being The Electricity Act, 2003 (hereinafter to be referred to as, ‘the said Act’)
4. The aspect of the theft of electricity was dealt with in Section 39 of the Act of 1910, which is as under:
“39. Theft of energy.—Whoever dishonestly abstracts, consumes or uses any energy shall be punishable with imprisonment for a term which may extend to three years, or with fine which shall not be less than one thousand rupees, or with both; and if it is proved that any artificial means or means not authorised by the licensee exist for the abstraction, consumption or use of energy by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of energy has been dishonestly caused by such consumer.”
5. In the said Act, Section 135 deals with the theft of electricity which falls in Part XIV with the heading ‘Offences and Penalties’. The same is as under:
“135. Theft of electricity.—(1) Whoever, dishonestly,—
(a) taps, makes or causes to be made any connection with overhead, underground or underwater 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 or 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, is being, or is likely to be, used unauthorisedly;
(b) search, seize and remove all such devices, instruments, wires and any other facilitator or article which has been, is being, or is likely to be, used for unauthorised use of electricity;
(c) examine or seize any books of 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.
(3) The occupant of the place of search or any person on his behalf shall remain present during the search and a list of all things seized in the course of such search shall be prepared and delivered to such occupant or person who shall sign the list:
Provided that no inspection, search and seizure of any domestic places or domestic premises shall be carried out between sunset and sunrise except in the presence of an adult male member occupying such premises.
(4) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974), relating to search and seizure shall apply, as far as may be, to searches and seizure under this Act.”
6. There was also introduction of Section 126 for assessment, which falls in Part XII with the heading ‘Investigation and Enforcement’ and the same reads 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 benefited 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—
(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.”
7. The Reforms Act came into force on 3.11.2000 and Section 61 of the said Act empowered the Delhi Electricity Regulatory Commission to make regulations consistent with the said Act. In exercise of the said powers, the Delhi Electricity Regulatory Commission (Performance Standards—Marketing & Billing) Regulations, 2002 were enacted (hereinafter to be referred to as, ‘the said Regulations’) which came into force on 19.8.2002 Prior to this under the earlier law, the Tariff for 2001-2002 had been made applicable with effect from 1.6.2001 Regulations 25 and 26 dealt with the aspect of theft/tampering/dishonest abstraction of energy (DAE) and the same are as under:
“25. Procedure for booking a case for pilferage of energy.—(i) The licensee, suo motu or on receipt of reliable information regarding commitment of any offence of theft/tampering/dishonest abstraction of energy (DAE), shall promptly conduct inspection of consumer's premises. The inspection team shall carry a written authority signed by designated officer of the licensee.
(ii) The inspecting team shall prepare a report giving details such as connected load, condition of seats, working of meter and mention any irregularity noticed (such as, artificial means adopted for dishonest abstraction of energy) as per format prescribed by the licensee.
(iii) The report shall clearly indicate whether conclusive evidence substantiating the fact that energy was being dishonestly abstracted was found or not. The details of such evidence should be recorded in the report and it should be clearly brought out whether the case is being booked for direct theft of DAE.
(iv) No case for DAE shall be booked only on account of one seal on the meter missing or tampered or breakage of glass window, etc. unless corroborated by consumption pattern of consumer as per Regulation 26(ii) given below and such other evidence as may be available.
(v) In case sufficient evidence is found to establish direct theft of energy, the licensee may lodge a report with the local police along with the material evidence including wires/cables, meter, service line, etc. seized from the site, which shall be handed over to police. The licensee shall also assess the energy consumption for past six months as per the Tariff Order and prepare final assessment bill on 5 times the rates as per applicable tariff. The consumer shall be required to make the payment within 2 working days of its proper receipt.
(vi) In case of suspected DAE, the inspection team shall not remove the tampered meter but shall disconnect it from the supply and shall restore the supply through a new meter of appropriate rating. In such cases, the licensee shall check the connected load and consumer's installation, affix a numbered Johnson's paper seal on the tampered meter and shall also record the particulars of the same in the report.
(vii) While the report must be signed by each member of the joint team and the notice, if any, must be signed by an authorised signatory of the licensee and all these must be handed over to the consumer or his/her representative at site immediately under proper receipt. In case of refusal by the consumer or his/her representative to either accept or give a receipt, a copy of each must be pasted at a conspicuous place in/outside the premises. Simultaneously, the joint report, the assessment bill and the notice shall be sent to the consumer under Registered Post.
(viii) The consumer shall be served a 3 days show-cause notice at the site as to why the case of DAE should not be booked against him/her. The notice should clearly state the time, date and place at which the reply has to be submitted and the designation of the person to whom it should be addressed.
26. Personal hearing.—(i) Within 4 working days from the date of submission of consumers’ reply, if made within prescribed period, the licensee shall arrange a personal hearing with the consumer.
(ii) Before the personal hearing, the officer of the licensee, before whom personal hearing has to be given, shall analyse the case after carefully considering all the documents, submissions by the consumer, facts on record and the consumption pattern, wherever available. The licensee shall also assess the energy consumption for past six months as per the Tariff Order. In case of suspected DAE, if consumption pattern for last one year is reasonably uniform and is not less than 75% of the assessed consumption where meter is less than 10 year sold and not less than 65% of the assessed consumption where meter is more than 10 years old, no further proceedings shall be taken and the decision shall be communicated to the consumer under proper receipt within 3 working days and connection shall be restored through original meter.
(iii) During the personal hearing the licensee shall given due consideration to the facts submitted by the consumer and pass, within 15 days, a speaking order as to whether the case of suspected theft/DAE is established or not. In case of the decision that the case of suspected theft/DAE is not established, no further proceedings shall be taken and connection shall be restored through original meter.
(iv) Where it is established that there is a case of DAE, the licensee shall lodge a report with the local police along with the material evidence including wires/cables, meter, service line, etc. seized from the site, which shall be handed over to police. The licensee shall also assess the energy consumption for past six months as per the Tariff Order and prepare final assessment bill on 5 times the rates as per applicable tariff. The consumer shall be required to make the payment within 2 working days of its proper receipt. The licensee may, taking into consideration the financial position and other conditions of the consumer, extend the last date of payment or approve the payment to be made in instalments. The amount, the extended last date and/or time schedule of payment/instalments should be clearly stated in the speaking order. A copy of the speaking order shall be handed over to the consumer under proper receipt on the same day.”
8. The Tariff Schedule for the year 2003-2004 came into effect on 4.7.2003 under the said Regulations. Para 1.6 dealt with the provisions for assessment of energy and para 1, 6, 1 provided for assessment of energy in cases of theft/pilferage by applying a formula taking into consideration the load, days of pilferage, use of supply hours and load factor. Para 1.6 is as under—
“1.6 Provisions for Assessment of Energy—
The theft, pilferage or unauthorised use of electricity shall be charged as per provisions of the Electricity Act, 2003 and Regulations of the Commission and till such time the subject matter is covered by the regulations the following formula shall be used for assessment of consumption of energy.”
9. It may also be noticed that the said Act came into force on 10.6.2003 prior to the tariffs coming into force.
10. In terms of the new enactments, which have come into force, provisional theft bills were sent to the petitioners in the usual format. The amount payable could be on three basis. The first basis was 6 × 5, which has not been applied in the present case. It may be noticed that the figure of 6 stands for the immediate past period in months and the figure of 5 stands for the tariff multiplier as compared to the normal tariff. This basis has not been applied on account of the fact that as per the Regulations, the assessment of energy consumption is for past six months and the assessment bill is five times a rate as per applicable tariff, but Regulation 43(vi) of the said Regulations, however, stipulates that the Regulations shall not apply to the extent Rationalisation Order or Tariff Order has made specific provisions. The principles of 6 × 3 basis has been applied stating that it is as per the prevailing Tariff Order and 4 × 3 basis is payable as stipulated in case if the consumer is willing to pay. It may be noticed that the format bill makes a distinction between two categories—dishonest abstraction of energy (DAE), which is given code 58 and direct theft (DT), which is given code 59, though the heading is same of ‘Provisional Theft Bill’.
11. The submissions of learned Senior Counsel for the petitioners is really twofold. The first submission is that in view of the provisions of Section 126 of the said Act, the method of the tariff multiplier to be applied has been provided therein itself depending on the nature of user, which is 3 × 1.5 for residential and agricultural and 6 × 1.5 for industrial and commercial. This is on the basis of Sub-section (5) and Subsection (6) of the said Section 126. The contention, thus, is that the bill sent on 6 × 3 basis or 4 × 3 basis has no sanction of law. In this behalf, it has been submitted that the said Act is a Central enactment and must prevail over the State enactment including the Reforms Act or any Regulations and Tariff made thereunder in view of Article 254 of the Constitution of India (hereinafter to be referred to as, ‘the Constitution’), since the matter in question falls under Entry 38 of List III, which is the Concurrent List. Article 254 of the Constitution is as under—
“254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States.—(1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of Clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.
(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State:
Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.”
Entry 38 of the Concurrent List is as under—
“38. Electricity.”
12. Insofar as the provisions of Section 135 of the said Act are concerned, it is submitted that the same falls in Part XIV of the enactment and deals with ‘Offences and Penalties’ while Section 126 is in Part XII deals with ‘Investigation and Enforcement’ and Section 126 is in respect of assessment. It is, thus, submitted that Section 126 of the said Act applies in all cases including theft of electricity and in support of this contention, reference has been given to Explanation to the said section where in Explanation (b) unauthorised use of electricity has been defined to include usage of electricity by artificial means, tampering of meter, means not authorised by concerned person, etc. It is, thus, submitted that in that behalf it is a part of the larger whole and operates in different fields since in matters of unauthorised abstraction of energy, the only ramification is as contained in Section 126, but in case of theft of electricity, penal consequences would also arise as envisaged under Section 135 of the said Act. Section 135 of the said Act has, thus, been pleaded as a sub-set of the larger Section 126.
13. The second and alternative submission is that if at all the Regulations have to apply, then it is the Tariff of 2003-2004 which will prevail in view of Regulation 43(vi) which is as under:
“43. General—
(vi) These Regulations shall not apply to the extent Rationalisation Order or Tariff Order has made specific provisions.”
14. In that position, the Regulations read with Tariff of 2003-2004 would show that as per Clause 1.6 of the Tariff, it is the said Act (the Act of 2003) which has to prevail and, thus, once again the basis would be the same as contained in Section 126 of the said Act or by formula of Clause 1.6.1
15. A reference was made to the provisions of Section 185 of the said Act dealing with ‘Repeals and Savings’ where the non obstante clause contained in Clause (e) of Sub-section (2) of Section 185 stated that provisions of the enactments specified in the Schedule not in consistent with the provisions of the Act would apply to States in which such enactments are applicable. The Schedule inter alia contained the Reforms Act at Serial No. 7. It was, thus, submitted that to the extent there was inconsistency as per Section 126 of the said Act, it is the said Act (the Act of 2003) which would prevail.
16. It may be noticed at this stage that Section 28 of the Reforms Act falling in Part VII provides for ‘Licensee's Revenues and Tariffs’ under which the Tariff of 2003-2004 has been fixed.
17. Learned Senior Counsel for the petitioners referred to the counter affidavit to submit that the defence taken to substantiate the tariff charged wrongly sought to make a distinction between ‘unauthorised use of electricity’, the expression used in Section 126 of the said Act as compared to the expression ‘theft of electricity’ used in Section 125 of the said Act. The stand of the respondent, thus, taken is that an unauthorised use of electricity which is not deliberate and unintentional shall not be regarded as theft and would come within the ambit of Section 126, but where mens rea was involved and the offence of theft was constituted, Section 135 would apply. In this behalf, reliance has been placed on the provisions of Section 147 of the said Act by the respondent to state that these penalties under Section 135 of the said Act are in addition to any other liability. Section 147 of the said Act is as under:
“147. Penalties not to affect other liabilities.—The penalties imposed under this Act shall be in addition to, and not in derogation of, any liability in respect of payment of compensation or, in the case of a licensee, the revocation of his licence which the offender may have incurred.”
18. It may also be noticed that Section 153 of the said Act refers to the constitution of Special Court for purposes of providing speedy trial of offences under Sections 135 to 139 of the said Act and under Sub-section (5) of Section 154, the Special Court also has the power to determine the civil liability against the consumer or a person. The said Sub-section (5) of Section 154 is as under—
“154. Procedure and power of Special Court—
(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 if less and the amount of civil liability so determined shall be recovered as if it were a decree of Civil Court.
19. The second defence taken in the counter affidavit referred to by learned Senior Counsel for the petitioners arises from Section 14 of the said Act, the relevant portion of which is as under—
“14. Grant of licence.—The Appropriate Commission may, on an application made to it under section 15, grant a licence to any person—
(a) to transmit electricity as a transmission licensee; or
(b) to distribute electricity as a distribution licensee; or
(c) to undertake trading in electricity as an electricity trader,
in any area as may be specified in the licence:
Provided that any person engaged in the business of transmission or supply of electricity under the provisions of the repealed laws or any Act specified in the Schedule on or before the appointed date shall be deemed to be a licensee under this Act for such period as may be stipulated in the licence, clearance or approval granted to him under the repealed laws or such Act specified in the Schedule, and the provisions of the repealed laws or such Act specified in the Schedule in respect of such licence shall apply for a period of one year from the date of commencement of this Act or such earlier period as may be specified, at the request of the licensee, by the Appropriate Commission and thereafter the provisions of this Act shall apply to such business;
……………”
20. Learned Senior Counsel for the petitioners submitted that this provision does not support the respondent since the period of one year referred to above was only ‘in respect of such licences’ which referred to the licences issued to the respondent company and this cannot imply that the earlier Acts continue to apply. Learned counsel on instructions also states that now new licences have been issued to the respondent company on 18.3.2004
21. Learned Senior Counsel further submitted that even if Section 61 of the Reforms Act read with the Regulations and Tariff for 2003-2004 are taken into consideration, the proviso of Section 14 of the said Act would only apply to the terms and conditions for determination of the Tariff, but in the absence of any formula for theft cases, it is the formula specified under Section 126 of the said Act which would have force.
22. Learned Senior Counsel lastly submitted that the respondent, in fact, realised their mistake and in a proceeding before the Permanent Lok Adalat in Case No. PLA-II/1094/2003 titled ‘Shri Shyam Singh v. NDPL’ and in the order dated 17.9.2003, the factum of the respondent's giving concessions of 25% on the tariff being applied was noticed as also the fact that the result of differential in the tariff applied and as applicable under Section 126 of the said Act is about 35%. It was, thus, submitted that indirectly the benefit was being give by the respondent company.
23. Learned Senior Counsel for the respondents, on the other hand, submitted that Sections 126 and 135 of the said Act are operating in different fields and the introduction of Section 126 of the said Act is to deal with cases of unauthorised use of electricity and not theft of electricity. In this behalf, learned Senior Counsel submitted that the expression used is not ‘dishonest abstraction of energy’, but ‘unauthorised use of electricity’. In this behalf, the explanation was referred to to show that where the expression ‘unauthorised use of electricity’ has been defined, the reference is to usage of electricity by any artificial means or by means not authorised, through a tampered meter or for purposes of other than for which use of electricity was authorised. The contention advanced, thus, is that the word ‘tampered meter’ used in Sections 126 and 135 of the said Act are used in different context as in Section 126, the implication is that there is already existing a tampered meter through which electricity is being obtained while under Section 135 it is the act of tampering with the meter which has been dealt with. Reference is also made to Explanation (b)(iv) of Section 126 to say that this would deal with cases like that of use of domestic electricity connection for commercial purposes. It is, thus, emphasised that Section 135 deliberately uses the word ‘dishonestly’ while dealing with the theft of electricity and is really the re-enactment of Section 39 of the Act of 1910.
24. Learned Senior Counsel submitted that under the Schedule of Section 185 of the said Act, the reform enactments have been mentioned, but even in States where such enactments do not exist, the power has been conferred on the State Commissions to make Regulations under Section 181 of the said Act.
25. On a specific query being raised on the issue as to how the bills in question have been raised on parameters as contained in the Tariff for 2001-2002, learned Senior Counsel for the respondents on instructions fairly conceded that the same was a mistake in provisional bills but that the final bills have been issued on 6 × 5 basis as per the new Tariff. A concession has, however, been made that in view of the stipulation in the provisional bill that in case of payment being made on 4 × 3 basis, the amount shall stand satisfied, in case the consumer has paid on 4 × 3 basis, the issue shall not be re-agitated by the respondents.
26. Learned Senior Counsel has emphasised the fact that in terms of Section 126 of the said Act on the person being found indulging in unauthorised use of electricity, Straightaway provisional assessment has to be made on the best judgment basis unlike the scheme of Section 135 of the said Act. It is, thus, submitted that Section 135(1) of the said Act applies in a case where dishonestly there is abstraction, consumption or use of electricity and Section 135(2) provides for an officer to be authorised by the State Government to carry out the search and seizure operation. Learned Senior Counsel, in order to distinguish the two provisions, referred to Explanation (b) to Section 126 of the said Act which defines the expression ‘unauthorised use of electricity’. To illustrate the example, learned Senior Counsel stated that in case a person gives electricity from his meter to another person, the same would be usage of electricity by an artificial means though the meter would be recording the usage. Similarly, in case a meter has been sealed, but the same is re-connected to utilise the electricity, for which the meter runs, the same would be covered by the expressions used in para (ii) of the Explanation. The basic line of the submission of learned Senior Counsel is that there is an absence of mens rea in cases covered under Section 126 of the said Act.
27. The justification for making this distinction and not providing for an assessment procedure in cases of theft under Section 135 of the said Act by the Legislature is stated to be the historical fact that even under earlier provisions of the said Act, the same was left to be decided by the State Electricity Boards. Thus, the penalty for such theft used to vary since the bill was compensatory in nature. It is, thus, submitted that in the same scheme of things, this aspect has been left to be covered under the Reforms Act read with the Regulations and the Tariff or in the absence of such Reforms Act in certain States, on the State Commissions.
28. Learned Senior Counsel referred to Section 45(5) of the said Act which deals with the power to recover charge and provides that the charges fixed by the distribution licensee shall be in accordance with the provisions of the said Act and the Regulations made in this behalf by the concerned State Commission. Section 50 provides for the State Commission to specify the Electricity Supply Code to provide for recovery of electricity charges and for disconnection of supply. Section 64 provides for the procedure for issuance of Tariff Order and in terms of Sub-section (6) of Section 64, the Tariff Order shall remain unless amended or revoked for the period specified in the Tariff Order. Section 61 dealing with Tariff Regulations provides in Sub-section (d) for safeguarding of consumers’ interest and at the same time recovery of the cost of electricity in a reasonable manner. These provisions have been referred to emphasise the concept of providing for the issuance of Regulations and Tariffs.
29. The Supply Act of 1948 was also referred to to emphasise that section 49 of the aid act provided for provision for sale of electricity by the Board to persons other than the licensees which power vested with the Boards and now is vesting with the Commission under Section 45(5) and Section 64(3) of the said Act of 2003. Section 79 of the Supply Act of 1948 in Sub-section (j) provided for the power to make Regulations of the Board on principles governing supply of electricity by the Board to persons other than licensees under Section 49 of the Supply Act of 1948.
30. The aforesaid provisions were sought to be read along with judgment of the Supreme Court in M.P Electricity Board, Jabalpur v. Harsh Wood Products, (1996) 4 SCC 522 : AIR 1996 SC 2258 where in para 6, it was observed that Section 49 read with Section 79 of the Supply Act of 1948 gave power to the Board to determine and revise the tariff from time-to-time and the tariff is determined in terms of the same.
31. Learned Senior Counsel for the respondents emphasised the distinction between theft of electricity and dishonest abstraction of energy by reference to Regulation 25 of the said Regulations and in this behalf referred to sub-para (iv) of the said Regulation which provides for no case of DAE to be booked only on account of one seal on the meter missing or tampered or breakage of glass window, etc. unless corroborated by consumption pattern of consumer as per Regulation 26(ii). In case of direct theft, sub-para (v) of Regulation 25 provides that the licensees may lodge report with the local police.
32. Learned Senior Counsel submitted that all the provisions must be given full effect to and in case any one interpretation makes any provision superfluous, then the Courts must lean in favour of an interpretation which gives meaning to all the provisions of the Act. In this behalf, Section 127 of the said Act was referred to to emphasise that the same provides for an appeal to be filed by an aggrieved person in case of a final order made under Section 126 of the said Act. There is no reference to Section 135 in Section 127 of the said Act. It was, thus, contended that if Section 126 includes the theft, then it would imply that an appeal would lie under Section 127 even in cases of theft. On the other hand, there is a specific provision under Section 154(5) of the said Act, which gives power to the Special Court to determine the civil liability against the consumer. It is, thus, submitted that it cannot be expected that the same subject matter would be dealt with under Section 154(5) as also under Section 127 of the said Act. The basic fact emphasised was that there is no inconsistency in the provisions since they are operating in different fields. Learned Senior Counsel also emphasised that there is a difference between antitheft legislations passed by various States in India and in that behalf relied on a comparative chart of such legislations with specific reference to the amount of compensation awarded. This was to show that in respect of theft, different States have made different provisions since the principle is that the same is compensatory in nature and a small percentage of the amount goes to the licensee.
33. Lastly, learned Senior Counsel referred to judgment of the Supreme Court in J.M.D Alloys Ltd. v. Bihar State Electricity Board, (2003) 5 SCC 226 to emphasise that such bills are compensatory bills which are prepared in accordance with the tariff and should not be interfered with by the Court in exercise of jurisdiction under Article 226 of the Constitution. To the same effect, a reference was also made to the judgment in Hyderabad Vanaspati Ltd. v. Andhra Pradesh State Electricity Board, JT 1998 (3) S.C 84.
34. I have considered the submissions advanced by learned Senior Counsel for the parties at length.
35. As noticed above, it is within the aforesaid parameters that the question has to be considered about the scope of Sections 126 and 135 of the said Act of 2003.
36. If the historical aspect is considered, it be seen that there was a specific provision under the Act of 1910 being Section 39 which dealt with the theft of energy. Thus, Section 135 has once again been incorporated in the said Act of 2003 making it more comprehensive and giving detailed procedure. There was in existence no corresponding provision to Section 126 of the said Act in the earlier enactments. The object clearly seems to be to make a distinction and separate category from theft of electricity by categorizing cases of persons indulging in unauthorised use of electricity on a different plain.
37. The Explanation to Section 126 of the said Act defines the expression ‘unauthorised use of electricity’ and the definition includes four categories as specified in the Sub-para (b) to the Explanation. It has been defined to mean the usage of electricity (i) by any artificial means, (ii) by means not authorised by the concerned person or authority of licensee, (iii) through a tampered meter, and (iv) for the purpose other than for which the usage of electricity was authorised. Thus, Section 126 can apply only in these cases since the same is confined to ‘unauthorised use of electricity’. The expression ‘theft’ has not been used under Section 126 of the said Act of 2003.
38. The expression ‘theft’ has been used in Section 135 of the said Act. Thus, in the same enactment, these two expressions—‘unauthorised use of electricity’ and ‘theft’—have been used separately and, thus, must have their own connotations. They cannot be said to be substitute for one or the other.
39. If the contention of learned Senior Counsel for the petitioners was to be accepted, then theft has to be included as part of ‘unauthorised use of electricity’. However, Sub-para (b) of the Explanation to Section 126 defines the expression ‘unauthorised use of electricity’ to mean only four categories of acts as defined therein.
40. There is no doubt that some of the expressions used in Section 126 of the said Act also appear in Section 135 thereof. An illustration of this was given in respect of tampering of a meter. However, Section 126 uses the expression to include the usage of electricity through a tampered meter, while the expression used in Section 135 is ‘tampers a meter’. If the definitions given of theft of electricity under Section 135 are considered, they are specific in nature. There is dual requirement. Firstly, the act should be done dishonestly. Secondly, it should form part of one of the acts specified in Sub-paras (a) to (c) of Sub-section (1) of Section 135 of the said Act. Thus, specific acts have been given like tapping through overhead, underground or under water lines or cables, tampering of meter, damage or destruction of electric meters and apparatus, to interfere with the proper or accurate metering of electricity. An act to constitute theft of electricity must, thus, satisfy the aforesaid requirements.
41. I am unable to persuade myself to agree with the submission of learned Senior Counsel for the petitioners that Section 126 of the said Act is all encompassing and includes theft of electricity which is only defined under Section 135. There is no doubt that Section 135 falls in Part XIV with the heading of ‘Offences and Penalties’. However, a reading of Sub-section (5) of Section 154 would show that there is a specific provision made in respect of the procedure and power of the Special Court constituted under Section 153 of the said Act. The aforesaid authorises the Special Court to determine even the civil liability against the consumer or a person in terms of money for theft of energy as per the said sub-section. Thus, where cognizance is taken of the act under Section 135 of the said Act, even a Special Court is empowered to determine civil liability. Insofar as the provisions of Section 126 of the said Act are concerned, they fall under the Chapter dealing with ‘Investigation and Enforcement’. Section 126 no doubt refers to an assessment but that assessment is only in respect of unauthorised use of electricity. The result of the aforesaid is that theft of electricity cannot be said to form a part of Section 126 of the said Act and it will have to be seen as to what is the effect of there being no provision for assessment in case of theft of electricity in the said Act of 2003.
42. It is not a position that there is actually no methodology for making such an assessment. This is so as despite the fact that object of the said Act of 2003 was to have a consolidated Act, Section 185 (Repeal and Saving Provision) protects the enactments mentioned in the Schedule. All these enactments are Reforms Acts enacted by different States. The Reforms Act in the present case relates to Delhi and is at serial No. 7. Thus, the said Act of 2003 itself envisages the protection of certain enactments which were of recent nature, as the Reforms Acts were enacted to solve the problem in respect of distribution of electricity. If the object of the said Act of 2003 was to bring all State enactments also to an end, there would be no reason to protect these Reforms Act, which were prior in point of time than the enactment of 2003.
43. There is no doubt that in view of the provisions of Article 254 of the Constitution, electricity falls in the List III, i.e, Concurrent List and the Central Legislation must prevail. This would, however, arise only in case there is a conflict between the said enactment and the Central enactment. In the present case, there is no provision in the Central enactment being the said Act of 2003 in respect of assessment in cases of theft. There seems to be substance in the contention of learned Senior Counsel for the respondents that this has an historical perspective since the States were given a free hand on this aspect even earlier and now the State Commissions have been given the authority to deal with such matters.
44. There is no doubt that in the Reforms Act, there is a provision in section 61 empowering the Delhi Electricity Regulatory Commission to make Regulations consistent with the said Act. It is in exercise of this power that the said Regulations have been enacted. Regulation 25 has dealt with theft, tampering, dishonest abstraction of energy and the methodology to be followed thereafter. Sub-clause (v) of Regulation 25 provides for the formula of 6 × 5 to be applied. The use of the provisions of dishonest abstraction of energy have been restricted in terms of Sub-para (iv) of para 25 so that only on account of one seal missing or tampered with, a case of DAE is not made out unless further corroborated by consumption pattern. A distinction is made in case of direct theft. Regulations 25 and 26, thus, provide the complete scheme.
45. The Tariff Schedule for the year 2003-2004 has come into effect from 4.7.2003 as made under the said Regulations. Para 1.6 of the Tariff makes a provision for assessment of energy in cases of theft/pilferage or unauthorised use as per the provisions of the said Act of 2003 and the said Regulations and till such time as the subject matter is covered by the said Regulations, the formula specified thereafter is to apply. In case of unauthorised use of electricity, the matter would be covered by Section 126 of the said Act and that itself provides the formula to be applied and the formula for theft cases have been provided for in the said Regulations. The only effect of the aforesaid Tariff is that in case there is no provision made for any of these aspects, would the formula stated therein apply. However, formula of 6 × 5 has been provided in the said Regulations themselves in cases of theft. It is, thus, that formula which would be applicable in such cases of theft, which are covered under Section 135 of the said Act.
46. The provisional bills have been sent, however, on a different basis, apparently applying the Tariff of 2001-2002, which could not have been so applied. It is the basis of 6 × 5 which would, thus, be applicable. The concession has, however, already been recorded on the part of the respondents that since they had already raised the bill on 6 × 3 basis and 4 × 3 basis, provisional as it may be, in case a consumer has paid on 4 × 3 basis, the said issue would not be re-agitated, as there was specific stipulation in the provisional bill that on payment of 4 × 3 basis, the demand would stand satisfied.
47. The matter in issue may also be considered from another angle. There is bound to be distinction between cases like that of commercial user of electricity supplied for residential purposes, unauthorised diversion of electricity though being recorded in the meter, electricity being consumed by persons who may have come into possession of premises where the meter was already tampered with as distinguished from cases where a consumer dishonestly steels electricity. Where the mens rea of dishonestly steeling electricity is established, a more severe financial penalty is envisaged. The mere fact that Section 135 of the said Act also provides for certain consequences of prosecution cannot imply that a more severe civil liability would not arise in such a case. If appreciated in this context, it would be apparent as to why the distinction has been made between cases of mere ‘unauthorised use of electricity’ and ‘theft of electricity’.
48. In view of the aforesaid, I am of the considered view that the respondents are entitled to charge for the electricity on 6 × 5 basis and not as per the provisions of Section 126 of the said Act of 2003. Wherever there is any infirmity in this behalf, the respondents can send rectified bills, if not already sent, but as stated above, this would not re-open cases where persons have paid on 4 × 3 basis to settle the matter once and for all.
49. The writ petitions are dismissed leaving the parties to bear their own costs.
Writ Petitions dismissed.
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