Section 145 of electricity act
Subroto
(Querist) 06 September 2012
This query is : Resolved
Hi everyone!
Sir, I need to ask a question. Can any person file a SUIT FOR PERMANENT INJUNCTION against the Electricity Department (i.e SDO, UHBVN)?
The person who has filed the suit is taking this measure to escape from the assessment and a possible lodging of FIR against him under Section 126, 136 and 138 of the Electricity Act by the Electricity Department (UHBVN, Distt. Sonepat, Haryana). This person was served two notices by the department to explain his position regarding "ILLEGAL SHIFTING OF ELECTRICITY METER ON A DEFAULTER PREMISES" without the consent of the Elec. Dept.. The Dept. has also specifically mentioned that a possible FIR could be lodged against him as his consumer case file was clearly showing that he was given the connection on a differrent premises.
This whole action was taken by the electricity department on a COMPLAINT made by me. This person has filed a SUIT FOR PERMANENT INJUNCTION against me and is trying to get STAY on a property of ours as soon as possible on the basis of the Electricty Meter which he has shifted/transferred from its original premises to ours. This property (house, which is already defaulter due to non-payment of elec. bills) of ours was vacate since many months and he took advantage of this and shifted his meter there. Moreover, he also started living there. We all came to know about this when we received the summons from the court.
Since then we were trying to get help from Elec. Dept. to look into the matter. They were just a day away from lodging the FIR against him BUT this person filed the SUIT for P.I. against them a day earlier in the CIVIL COURT.
The real thing that I want to know is whether the CIVIL COURTS have the jurisdiction to entertain such suit. The SECTION 145 of the Elec. ACT says they have no jurisdiction. BUT the CIVIL COURTS here are accepting such cases freely and no one (even lawyers here) cares about it. I think the SECTION 126, 136 and 138 of EA 2003 (ammended, 2007) clearly fits on him as:
1. he is indulged in unauthorised use of electricity by the usage of the electricity for the premises or areas other than those for which the supply of electricity was authorized. (SECTION 126)
2. he has dishonestly transferred a meter from a place of installation where it was rightfully installed without the consent of the licensee. (SECTION 136- theft of electric lines & materials)
3. he has unauthorisedly connected the meter on our premises with an electric line through which electricity is supplied by the licensee. (SECTION 138 - interference with meters)
So, respected members what should I do know? I fear he might get stay against the Electricity Department and then my own Case will get weakened. WHAT DO YOU SUGGEST??
ajay sethi
(Expert) 06 September 2012
suit can be filed . the issue is whether reliefs can be granted . take a preliminary objection that suit is not maintanabale under section 145 of electricity act .
ajay sethi
(Expert) 06 September 2012
Punjab-Haryana High Court
U.H.B.V.N., Panipat And Others vs Vinod Kumar
R.S.A.No. 1919 of 2008 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 1919 of 2008 (O&M)
Date of decision: 22, 2009
U.H.B.V.N., Panipat and others
......Appellants
Versus
Vinod Kumar
.......Respondent
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr. B.S.Rana,Advocate,
for the appellants.
Mr.Sandeep Chabra, Advocate,
for the respondent.
****
SABINA, J.
Plaintiff Vinod Kumar filed a suit for declaration challenging the checking dated 30.6.2004 vide which the penalty of Rs.15,13,585/- had been imposed on account of alleged theft of energy and mandatory injunction directing the defendants to refund or adjust Rs.12,10,866/- paid by the plaintiff against receipt No. 160 dated 2.7.2004. The suit of the plaintiff was dismissed by the Additional Civil Judge (Senior Division), Panipat vide judgment and decree dated 27.7.2007. The appeal filed by the plaintiff was partly allowed by the Additional District Judge, Panipat vide judgment and decree dated 18.12.2007 and directed the defendants to make fresh assessment of the amount of penalty only for a period of 15 days in R.S.A.No. 1919 of 2008 (O&M) 2 accordance with procedure prescribed under Section 126 of the Electricity Act, 2003 (for short 'the New Act'). After deducting the amount of penalty of Rs. 12,10,866/- deposited by the plaintiff, remaining amount was ordered to be refunded to him with interest @ 12% per annum from the date of deposit till payment. Hence, the defendants have filed the present appeal. The case of the plaintiff, in brief, is that he was holder of meter account No.R2 1283 LT. He had been making payment of the energy bills issued by defendant No.3. The officials of the defendants came on the premises of the plaintiff and a notice for payment of Rs.15,13,585/- as penalty on account of alleged theft of energy was issued. The said notice dated 30.6.2004 was illegal, null and void. It was averred by the plaintiff that the meter in question had not been tampered with. No alleged checking ever took place either in his presence or his authorised representative. The last checking of M&P staff was held on 14.6.2004 and at that time meter was found in order. As such, if penalty had to be imposed it could only be for a period from 15.6.2004 to 30.6.2004. The plaintiff had deposited 80% of the alleged penalty as demanded vide the notice in order to get restoration of electricity supply and to avoid lodging of an FIR. The plaintiff had also preferred an appeal to XEN/City defendant No.2 on 7.7.2004 but no action action has been taken on his appeal so far. Hence, the suit was filed. The defendants in their written statement took up R.S.A.No. 1919 of 2008 (O&M) 3 preliminary objections that the suit was not maintainable and the plaintiff has no cause of action to file the suit. On merits, it was averred that on 30.6.2004, the premises of the plaintiff had been checked between 7 A.M. to 10.45 P.M. A magnet was found affixed on the right side of MCB and the factory was found in running condition. Thus, the meter was found obstructing power unlawfully to run his factory by making the meter un-functional by placing a magnet on right side of MCB. The penalty was imposed as per the rules. The checking conducted by M&P on 14.6.2004 was periodical checking of the meter. But only on the checking done on 30.6.2004 by the Vigilance staff, it was found that the plaintiff was committing theft of electricity.
On the pleadings of the parties, following issues were framed by the trial Court:-
"1. Whether notice/memo No.3875 imposing penalty of Rs.15,13,585/- is illegal? OPP
2. Whether the plaintiff is entitled to refund of Rs.12,10,686? OPP
3. Whether the suit of the plaintiff is not maintainable? OPD
4. Whether the plaintiff is estopped from filing the present suit by his own act and conduct? OPD
5. Whether the plaintiff has no cause of action? OPD
R.S.A.No. 1919 of 2008 (O&M) 4
6. Relief. "
Learned counsel for the appellants has submitted that in terms of the New Act, the jurisdiction of the Civil Court to try the suit was barred.
Learned counsel for the respondent, on the other hand, has submitted that the Civil Court had the jurisdiction to try the suit. The substantial question of law that arises in this case is " whether the Civil Court has no jurisdiction to try the suit?" Section 145 of the New Act is reproduced herein-below:- "145. Civil Court not to have jurisdiction- 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 this Act is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act."
Section 126 of the New Act is reproduced herein-below:- "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 R.S.A.No. 1919 of 2008 (O&M) 5 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 an order has been served under sub-section (2) shall be entitled to file objections, if any, against the provisional assessment before the assessing officer, who shall, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment within thirty days from the date of service of such order of provisional 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.
5) If the assessing officer reaches to the conclusion that R.S.A.No. 1919 of 2008 (O&M) 6 unauthorised use of electricity has taken place, the assessment shall be made for the entire period during which such unauthorised use of electricity has taken place and if, however, the period during which such unauthorised use of electricity has taken place cannot be ascertained, such period shall be limited to a period of twelve months immediately preceding the date of inspection.
6) The assessment under this section shall be made at a rate equal to 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, if 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; or
(v) for the premises or areas other than those for R.S.A.No. 1919 of 2008 (O&M) 7 which the supply of electricity was authorised." The plaintiff has filed the suit to the effect that the demand notice in dispute dated 30.6.2004 issued by the defendant- appellants, on the basis of checking report dated 30.6.2004 to the plaintiff was illegal, null and void.
On the day the checking was done by the vigilance staff of the defendant/appellants, it was found that the plaintiff was committing theft of electricity by placing a magnet on the right side of MCB. The said assessment is to be dealt under Section 126 of the New Act. As per Section 145 of the New Act, jurisdiction of the Civil Court in such an assessment is barred. Since the issue involved in the present case is purely a legal issue, the same can be agitated by the appellants in appeal.
In view of Section 145 of the New Act, present appeal is liable to be allowed as the Civil Court had no jurisdiction to try the suit. Hence, the substantial question of law arising in this appeal is answered accordingly.
Hence, this appeal is allowed. The impugned judgment and decree passed by the lower Appellate Court are set aside and the judgment and decree passed by the trial Court are upheld though for different reasons. Consequently, suit of the plaintiff is dismissed.
(SABINA)
JUDGE
July 22, 2009
anita
Subroto
(Querist) 06 September 2012
Thank you very much Ajay ji for your replies. I have shown this Case Law to the lawyer who is contesting the Elec. Dept. case. I dont know what he is upto. He says the Civil Court doesn't have jurisdiction in the cases of theft of electricity (Section 135 of EA), but they have jurisdiction in cases like unathorised use of elec. (Section 126 of EA). Moreover, the lawyers here say that no one raises the issue of section 145 and the judges used to be in the habit of passing decrees in the favour of plaintiff freely.
My case involves unauthorised use of electricity (section 126) as well as theft of electric lines & materials (section 136) BUT the appointed lawyer by the elec. dept. insist that its just a case of unauthorised use.
What do you say about this? Does the three SECTION of EA I have talked about fits good one that person?
ajay sethi
(Expert) 06 September 2012
The
jurisdiction of the Civil Court has been barred in respect of any matter relating assessment made by the assessing officer u/Sec.126 or against the decision of the appellate authority made u/Sec.127. This will be evident from Sec.145 and quoted hereunder:
"145.
Civil court not to have jurisdiction- 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 this Act is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act."
ajay sethi
(Expert) 06 September 2012
Gujarat High Court
Ranchhodbhai vs Union on 26 April, 2011
Author: Mr.S.J.Mukhopadhaya,&Nbsp;Honourable Mr.Justice K.M.Thaker,&Nbsp;
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Print
SCA/13931/2009 26/ 26 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 13931 of 2009
With
SPECIAL
CIVIL APPLICATION No. 13933 of 2009
With
SPECIAL
CIVIL APPLICATION No. 13935 of 2009
With
SPECIAL
CIVIL APPLICATION No. 4388 of 2010
With
SPECIAL
CIVIL APPLICATION No. 13936 of 2009
With
SPECIAL
CIVIL APPLICATION No. 13932 of 2009
With
SPECIAL
CIVIL APPLICATION No. 3356 of 2010
With
SPECIAL
CIVIL APPLICATION No. 4385 of 2010
With
SPECIAL
CIVIL APPLICATION No. 13934 of 2009
With
SPECIAL
CIVIL APPLICATION No. 4386 of 2010
With
SPECIAL
CIVIL APPLICATION No. 4387 of 2010
For
Approval and Signature: HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA HONOURABLE
MR.JUSTICE K.M.THAKER
=================================================
www.indiankanoon.org/doc/1887229/
Subroto
(Querist) 06 September 2012
Thanks Members....
I will discuss these Case Laws with the Elec. Dept. Lawyer and let you know further what he thinks and suggests.
In case he doesn't take a preliminary objection, can I do something? On first hearing he has taken time to prepare the return statement and doesn't seems in a mood to accept the fact about section 145..Lets see...
