Engineer & ANR. Vs. M/s Sri Seetaram Rice Mill
J U D G M E N T
Swatanter Kumar, J.
a period of time, it was felt that the performance of the State Electricity
Boards had deteriorated on account of various factors. Amongst others, the inability
on the part of the State Electricity Boards to take decisions on tariffs in a professional
and independent manner was one of the main drawbacks in their functioning. Cross-subsidies
had reached 1unsustainable levels. To address this issue and to provide for distancing
of governments from determination of tariffs, the Electricity Regulatory
Commissions Act, 1998 (hereinafter, `the 1998 Act') was enacted in addition to
the existing statutes like Indian Electricity Act, 1910 (hereinafter, `the 1910
Act') and the Electricity (Supply) Act, 1948 (hereinafter, `the 1948 Act').
For a considerable time,
these three legislations remained in force, governing the electricity supply industry
in India. The Boards created by the 1948 Act and the bodies created under the
1998 Act, as well as the State Governments, were provided distinct roles under
these statutes. There was still overlapping of duties and some uncertainty with
regard to exercise of power under these Acts.
To address the issues
like deterioration in performance of the Boards and the difficulties in achieving
efficient discharge of functions, a better, professional and regulatory regime was
introduced under the Electricity Bill, 2001, with the policy of encouraging private
sector participation in generation, transmission and distribution of electricity
and with the objective of distancing regulatory responsibilities from the Government
by transferring the same to the Regulatory Commissions.
The need for harmonizing
and rationalizing the provisions of the earlier statutes was met by creating a
new, self-contained and comprehensive legislation. Another object was to bring
unity in legislation and eliminate the need for the respective State
Governments to pass any reform Act of their own. This Bill had progressive
features and strived to strike the right balance between the economic profitability
and public purpose given the current realities of the power sector in India. This
Bill was put to great discussion and then emerged the Electricity Act, 2003 (for
short, `the 2003 Act').
The 2003 Act had notably
provided for private sector participation, private transmission licences for rural
and remote areas, stand alone systems for generation and distribution, the constitution
of an Appellate Tribunal, more regulatory powers for the State Electricity
Regulation Commission and provisions relating to theft of electricity. The additional
provisions were introduced in the 2003 Act in relation to misuse of power and punishment
of malpractices such as over-consumption of sanctioned electric 3load which are
not covered by the provisions relating to theft; all of which had significant
bearing upon the revenue focus -intended by the Legislature. This is the
legislative history and objects and reasons for enacting the 2003 Act.
ensure better regulatory, supervisory and revenue recovery system, as expressed
in the objects and reasons of the 2003 Act, there was definite concerted effort
in preventing unauthorized use of electricity on the one hand and theft of electricity
on the other. The present case falls in the former. According to the appellant,
there was breach of the terms and conditions of the Standard Agreement Form for
Supply of Electrical Energy by the Grid Corporation of Orissa Ltd.
(hereinafter, `the Agreement') as the consumer (respondent herein) had consumed
electricity in excess of the contracted load.
may briefly refer to the facts giving rise to the present appeal. Respondent
herein, a partnership firm, claims to be a small scale industrial unit engaged
in the production of 4rice. For carrying on the said business, it had obtained
electric supply under the Agreement. Between the present appellant -No.1 and the
respondent the Agreement dated 9th December, 1997 was executed for supply of power
to the respondent. Keeping in view the contracted load, the respondent was classified
as `medium industry category'.
This category deals
with the contract demand of 99 KVA and above but below 110 KVA. According to
the respondent, since the day of connection of power supply, the meter and all other
associated equipments had been inspected by the appellants. On 10th June, 2009,
the Executive Engineer, Jeypore Electrical Division and SDO, Electrical MRT
Division, Jeypore inspected the business premises of the respondent's unit and
dump was conducted. These officers issued a dump report by noticing as follows:
"Dump of the Meter taken. Calibration of meter done and error found within
limit. If any abnormality detected in Dump, it will be intimated later on."
is the case of the respondent that no intimation was given to it as to finding of
defects if any, in dump. On 25 th July, 2009, provisional assessment order
bearing No.854 was issued by the appellants to the respondent. Intimation
-bearing No.853 had also been issued on the same day which informed the respondent
that there was unauthorized use of electricity falling squarely within the ambit
of provisions of Section 126 of the 2003 Act. In the dump report dated 10 th
June, 2009, it was stated that there was unauthorized use of electricity and Maximum
Demand (hereinafter MD) had been consumed up to 142 KVA. On this basis, the
appellant passed the order of provisional assessment by taking the contracted
demand as that applicable to large industry.
The demand was
raised, assessing the consumer for the period from June 2008 to August 2009 for
a sum of Rs.7,77,300/-. This was computed for 15 months at the rate of Rs.200 per
KVA (i.e., tariff for large industry) multiplied by two times, aggregating to
the claimed amount. Vide the provisional assessment order dated 25th July, 2009,
assessment was made under Section 126(1) of the 2003 Act for unauthorized use
of electricity, the 6respondent was required to file objections, if any, and to
also pay the amount. The relevant part of the said provisional assessment order
reads as under :
"And Whereas you
are entitled to file objections against the aforesaid - provisional assessment order
under Section 126(3) of Electricity Act, 2003, within 30 days from receipt hereof
and further entitled to appear before the undersigned for an opportunity of being
heard on 25.08.2009 during working hours from 11.00 AM to 5.00 PM. And Whereas
you are further entitled u/s 126(4) to deposit the aforesaid amount within 7 days
and upon such deposit being made within 7 days, you shall not be subject to any
further liability or any action by any authority whatsoever.
And Whereas if you fail
to file the objection within 30 days from receipt hereof, the undersigned shall
presume that you have no objection to the provisional assessment and the undersigned
shall proceed to pass final order u/s 126(3) on assessment of electricity
charges payable by you. And Whereas, if you fail to appear before the
undersigned at the aforesaid date and time after filing objections, if any, the
undersigned shall proceed to pass the final order under section 126(3), based
on the objection filed by you and evidence available on record."
respondent did not file its objections/reply but challenged the said provisional
assessment order and the intimation of unauthorized use before the High Court of
Orissa, Cuttack by filing writ petition No.WP(C) No.12175 of -2009 on the grounds
of lack of authority and jurisdiction on the part of the Executive Engineer to frame
the provisional assessment by alleging unauthorized use of electricity since
4th June, 2008. It was also contended that no inspection had been conducted in the
business premises till date of dump, i.e., 10th June, 2009 when unauthorized
use of electricity was found.
The respondent also challenged
the maintainability and sustainability of the order of provisional assessment in
calculating the dump charges for a period of 15 months from June 2008 to August
2009 on the basis of dump charges relating to large industry while the respondent
was classified as medium scale industry. It was also the contention raised by
the respondent before the High Court that the provisions of Section 126 of the
2003 Act were not attracted in the present case at all. This claim of the respondent
was contested by the appellants, as according to them, unauthorized use of electricity
as defined under Section 126 will come into play as per clause (b) of the Explanation
appended to Section 126 of the 2003 Act.
The dump report dated
10th June, 2009 and the intimation dated 25th July, 2009 had been sent showing overdrawal
of MD where, according to the appellants, the respondent had consumed
electricity `by means unauthorized by the licencee (overdrawal of maximum
demand)' and thereby breached the Agreement and, therefore, the provisional
assessment order and the intimation were fully justified.
High Court, vide impugned judgment, accepted the case of the respondent and held
that the words `unauthorized use of electricity' and `means' as provided in
Explanation to Section 126 of the 2003 Act were exhaustive. Overdrawal of MD would
not fall under the scope of `unauthorized use of electricity' as defined under
the 2003 Act, and the appellants had no jurisdiction to issue the intimation in
question and pass the assessment order in terms of Section 126 of the 2003 Act.
Aggrieved by the judgment of the High Court, the appellants have filed the
present appeal by way of a special leave petition before this Court. 9Questions
for Determination :
a. Wherever the consumer
consumes electricity in excess of the maximum of the contracted load, would the
-provisions of Section 126 of the 2003 Act be attracted on its true scope and
b. Whether the High
Court, in the facts and circumstances of the case, was justified in interfering
with the provisional order of assessment/show cause notice dated 25th July, 2009,
in exercise of its jurisdiction under Article 226 of the Constitution of India?
c. Was the writ petition
before the High Court under Article 226 of the Constitution of India not maintainable
because of a statutory alternative remedy being available under Section 127 of
the 2003 Act?
Discussion on Merits
1. Wherever the consumer
consumes electricity in excess of the maximum of the connected load, would the provisions
of Section 126 of the 2003 Act be attracted on its true scope and
the simple analysis of the facts as pleaded by the parties, it is contended on behalf
of the respondent that the provisions of Section 126 of the 2003 Act are not
attracted and no liability could be imposed upon them by the authorities in
-exercise of their power under that provision. Even if the case advanced by the
appellants against the respondent without prejudice and for the sake of
argument is admitted, even then, at best, the demand could be raised under Regulation
82 of the Orissa Electricity Regulatory Commission Distribution (Condition of Supply)
Regulations, 2004 (for short, `the Regulations'). But recourse to the provisions
of Section 126 was impermissible in law. The contention is that the case of a consumer
consuming the electricity in excess of maximum and the installed load does not
fall within the mischief covered under Section 126 of the 2003 Act. To put it plainly,
the argument is that the appellants lack inherent authority to raise such
demand with reference to the present case on facts and law both.
the contra, submission on behalf of the appellants is that the case of
excessive consumption of power beyond the sanctioned load would be a case falling
within the ambit of Section 126 of the 2003 Act. Section 126 of the 2003 Act is
incapable of an interpretation which would render the said provision otiose in
cases which do not specifically fall under -Section 135 of the 2003 Act. In order
to answer these contentions more precisely, we find it appropriate to examine
the question framed above, under the following sub-headings:(a) Interpretation;(b)
Distinction between Sections 126 and 135 of the 2003 Act;(c) The ambit and
scope of Section 126 with reference to the construction of the words `unauthorised
use' and `means'; and(d) Effect and impact of change in applicability of tariff
upon the power of assessment in accordance with the provisions of the 2003 Act and
the relevant Regulations in the facts of the case. 121(a) Interpretation
and foremost, we have to examine how provisions like Section 126 of the 2003
Act should be construed. From the objects and reasons stated by us in the
beginning of this judgment, it is clear that `revenue focus' was one of the
-principal considerations that weighed with the Legislature while enacting this
law. The regulatory regime under the 2003 Act empowers the Commission to frame
the tariff, which shall be the very basis for raising a demand upon a consumer,
depending upon the category to which such consumer belongs and the purpose for which
the power is sanctioned to such consumer. We are not prepared to accept the contention
on behalf of the respondent that the provisions of Section 126 of the 2003 Act
have to be given a strict and textual construction to the extent that they have
to be read exhaustively in absolute terms.
This is a legislation
which establishes a regulatory regime for the generation and distribution of
power, as well as deals with serious fiscal repercussions of this entire
regime. In our considered view, the two maxims which should be applied for
interpretation of such statutes are ex visceribus actus (construction of the act
as a whole) and ut res magis valeat quam pereat (it is better to validate a thing
than to invalidate it).
It is a settled cannon
of interpretative jurisprudence that the statute should be read as a whole. In
other words, its different provisions may have to be construed together to make
consistent construction of the whole statute relating to the subject matter. A construction
which will improve the workability of the statute, to be more effective and
purposive, should be preferred to any other interpretation which may lead to
is true that fiscal and penal laws are normally construed strictly but this rule
is not free of exceptions. In given situations, this Court may, even in relation
to penal statutes, decide that any narrow and pedantic, literal and lexical construction
may not be given effect to, as the law would have to be interpreted having regard
to the subject matter of the offence and the object that the law seeks to achieve.
The provisions of Section 126, read with Section 127 of the 2003 Act, in fact,
becomes a code in itself. Right from the initiation of the proceedings by
conducting an inspection, to the right to file an appeal before the appellate
authority, all matters are squarely covered under these provisions.
provides the method of computation of the amount that a consumer would be liable
to pay for excessive consumption of the electricity and for the manner of
-conducting assessment proceedings. In other words, Section 126 of the 2003 Act
has a purpose to achieve, i.e., to put an implied restriction on such unauthorized
consumption of electricity. The provisions of the 2003 Act, applicable regulations
and the Agreement executed between the parties at the time of sanction of the load
prohibit consumption of electricity in excess of maximum sanctioned/ installed load.
In the event of default, it also provides for the consequences that a consumer is
likely to face.
It embodies complete process
for assessment, determination and passing of a demand order. This defined legislative
purpose cannot be permitted to be frustrated by interpreting a provision in a
manner not intended in law. This Court would have to apply the principle of purposive
interpretation in preference to 15textual interpretation of the provisions of Section
126 of the 2003 Act. We shall shortly discuss the meaning and scope of the expressions
used by the Legislature under these provisions. At this stage, suffice it to note
that this Court would prefer to adopt purposive interpretation so as to ensure
attainment of the object and purpose of the 2003 Act, particularly, of the
provisions of Section 126 in question.
We may usefully refer
to the judgment of this Court in the case of Balram Kumawat v. Union of India
& Ors. [(2003) 7 SCC 628] wherein this Court discussed various tenets of interpretation
and unambiguously held that these principles could be applied even to the
interpretation of a fiscal or a penal statute. This Court held as under : "20.
Contextual reading is a well-known proposition of interpretation of statute. The
clauses of a statute should be construed with reference to the context vis-a-vis
the other provisions so as to make a consistent enactment of the whole statute relating
to the subject- matter.
The rule of 'ex visceribus
actus' should be resorted to in a situation of this nature. 1621. In State of West
Bengal v. Union of India  1 SCR 371], the learned Chief Justice stated
the law thus : "The Court must ascertain the intention of the Legislature by
directing its attention not merely to the clauses to be construed but to the entire
statute; it must compare the clause with the other parts of the law, and the
setting in which the clause to be interpreted occurs."-
22. The said
principle has been reiterated in R.S. Raghunath v. State of Karnataka and Anr.
[AIR 1992 SC 81].
23. Furthermore, even
in relation to a penal statute any narrow and pedantic, literal and lexical construction
may not always be given effect to. The law would have to be interpreted having regard
to the subject matter of the offence and the object of the law it seeks to
achieve. The purpose of the law is not to allow the offender to sneak out of the
meshes of law. Criminal Jurisprudence does not say so. XXX XXX XXX
25. A statute must be
construed as a workable instrument. Ut res magis valeat quam pereat is a well-known
principle of law. In Tinsukhia Electric Supply Co. Ltd. v. State of Assam [AIR
1990 SC 123], this Court stated the law thus : 17 "118. The courts strongly
lean against any construction, which tends to reduce a statute to a futility. The
provision of a statute must be so construed as to make it effective and operative,
on the principle "ut res magis valeat quam pereat". It is, no doubt,
true that if a statute is absolutely vague and its language wholly intractable and
absolutely meaningless, the statute could be declared void for vagueness.
This is not in judicial
review by testing the law for arbitrariness or unreasonableness under Article
14; but what a court of - construction, dealing with the language of a statute,
does in order to ascertain from, and accord to, the statute the meaning and purpose
which the legislature intended for it. In Manchester Ship Canal Co. v. Manchester
Racecourse Co. (1900) 2 Ch 352, Farwell J. said : (pp. 360- 61) "Unless the
words were so absolutely senseless that I could do nothing at all with them, I should
be bound to find some meaning and not to declare them void for uncertainty."
In Fawcett Properties
Ltd. v. Buckingham County Council [(1960) 3 All ER 503] Lord Denning approving the
dictum of Farwell, J. said : 18 "But when a Statute has some meaning, even
though it is obscure, or several meanings, even though it is little to choose
between them, the courts have to say what meaning the statute to bear rather than
reject it as a nullity."It is, therefore, the court's duty to make what it
can of the statute, knowing that the statutes are meant to be operative and not
inept and that nothing short of impossibility should allow a court to declare a
In Whitney v. Inland Revenue
Commissioners [1928 AC 37] Lord Dunedin said : "A statute is designed to be
workable, and the interpretation - thereof by a court should be to secure that object,
unless crucial omission or clear direction makes that end unattainable." XXX
XXX XXX27. The Courts will therefore reject that construction which will defeat
the plain intention of the Legislature even though there may be some inexactitude
in the language used. [See Salmon v. Duncombe (1886) 11 AC 827].
legislation futility shall be avoided and in a case where the intention of the
Legislature cannot be given effect to, the Courts would accept the bolder
construction for the purpose of bringing about an effective result. The Courts,
when rule of purposive construction is gaining momentum, should be very 19 reluctant
to hold that the Parliament has achieved nothing by the language it used when
it is tolerably plain what it seeks to achieve. [See BBC Enterprises v. Hi-Tech
Xtravision Ltd., (1990) 2 All ER 118]."
in the case of Superintendent and Remembrancer of Legal Affairs to Government
of West Bengal v. Abani Maity [(1979) 4 SCC 85], this Court held as under : "Exposition
ex visceribus actus is a long recognised rule of construction. Words in a statute
often take their meaning from the context of the statute as a whole. They are
therefore, not to be construed in isolation. For instance, the use of the - word
"may" would normally indicate that the provision was not mandatory.
But in the context of
a particular statute, this word may connote a legislative imperative, particularly
when its construction in a permissive sense would relegate it to the unenviable
position, as it were, "of an ineffectual angel beating its wings in a luminous
void in vain". If the choice is between two interpretations", said Viscount
Simon L.C. in Nokes v. Doncaster Amalgamated Collieries, Ltd. [(1940) A.C.
1014] : `the narrower of which would fail to achieve the manifest purpose of
the legislation we should avoid a construction which would reduce the
legislation to futility and should rather accept the bolder 20 construction
based on the view that Parliament would legislate only for the purpose of bringing
about an effective result'."
relevancy of objects and reasons for enacting an Act is a relevant consideration
for the court while applying various principles of interpretation of statutes. Normally,
the court would not go behind these objects and reasons of the Act. The
discussion of a Standing Committee to a Bill may not be a very appropriate
precept for tracing the legislative intent but in given circumstances, it may be
of some use to notice some discussion on the legislative intent that is reflected
in the -substantive provisions of the Act itself.
Committee on Energy, 2001, in its discussion said, `the Committee feel that there
is a need to provide safeguards to check the misuse of these powers by
unscrupulous elements'. The provisions of Section 126 of the 2003 Act are self-explanatory,
they are intended to cover situations other than the situations specifically covered
under Section 135 of the 2003 Act. This would further be a reason for this Court
to 21adopt an interpretation which would help in attaining the legislative
applying these principles to the provisions of this case requiring judicial interpretation,
we find no difficulty in stating that the provisions of Section 126 of the 2003
Act should be read with other provisions, the regulations in force and they should
be so interpreted as to achieve the aim of workability of the enactment as a whole
while giving it a purposive interpretation in preference to textual
interpretation.-1(b) Distinction between Sections 126 and 135 of the 2003 Act
their plain reading, the mark differences in the contents of Sections 126 and
135 of the 2003 Act are obvious. They are distinct and different provisions which
operate in different fields and have no common premise in law. We have already noticed
that Sections 126 and 127 of the 2003 Act 22read together constitute a complete
code in themselves covering all relevant considerations for passing of an order
of assessment in cases which do not fall under Section 135 of the 2003 Act. Section
135 of the 2003 Act falls under Part XIV relating to `offences and penalties' and
title of the Section is `theft of electricity'.
The Section opens with
the words `whoever, dishonestly' does any or all of the acts specified under
clauses (a) to (e) of Sub-section (1) of Section 135 of the 2003 Act so as to
abstract or consume or use electricity shall be punishable for imprisonment for
a term which may extend to three years or with fine or with both. Besides
imposition of punishment as specified under these provisions or the proviso
thereto, Sub-section (1A) of Section 135 of the 2003 Act provides that without
prejudice to the provisions of the 2003 -Act, the licensee or supplier, as the case
may be, through officer of rank authorized in this behalf by the appropriate
commission, may immediately disconnect the supply of electricity and even take other
measures enumerated under Sub-sections (2) to (4) of the said Section.
The fine which may be
imposed under Section 135 of the 2003 Act is directly 23proportional to the number
of convictions and is also dependent on the extent of load abstracted. In
contradistinction to these provisions, Section 126 of the 2003 Act would be
applicable to the cases where there is no theft of electricity but the
electricity is being consumed in violation of the terms and conditions of supply
leading to malpractices which may squarely fall within the expression `unauthorized
use of electricity'. This assessment/proceedings would commence with the
inspection of the premises by an assessing officer and recording of a finding that
such consumer is indulging in an `authorized use of electricity'.
Then the assessing officer
shall provisionally assess, to the best of his judgment, the electricity charges
payable by such consumer, as well as pass a provisional assessment order in
terms of -Section 126(2) of the 2003 Act. The officer is also under obligation to
serve a notice in terms of Section 126(3) of the 2003 Act upon any such consumer
requiring him to file his objections, if any, against the provisional
assessment before a final order of assessment is passed within thirty days from
the date of service of such order of provisional assessment.
Thereafter, any person
served with the order of provisional assessment may accept such assessment and deposit
the amount with the licensee within seven days of service of such provisional assessment
order upon him or prefer an appeal against the resultant final order under
Section 127 of the 2003 Act. The order of assessment under Section 126 and the period
for which such order would be passed has to be in terms of Sub-sections (5) and
(6) of Section 126 of the 2003 Act.
The Explanation to Section
126 is of some significance, which we shall deal with shortly hereinafter. Section
126 of the 2003 Act falls under Chapter XII and relates to investigation and enforcement
and empowers the assessing officer to pass an order of assessment. –
135 of the 2003 Act deals with an offence of theft of electricity and the penalty
that can be imposed for such theft. This squarely falls within the dimensions of
Criminal Jurisprudence and mens rea is one of the relevant factors for finding a
case of theft. On the contrary, Section 126 of the 2003 Act does not speak of any
criminal 25intendment and is primarily an action and remedy available under the
civil law. It does not have features or elements which are traceable to the
criminal concept of mens rea.
it would be clear that the expression `unauthorized use of electricity' under
Section 126 of the 2003 Act deals with cases of unauthorized use, even in
absence of intention. These cases would certainly be different from cases where
there is dishonest abstraction of electricity by any of the methods enlisted
under Section 135 of the 2003 Act. A clear example would be, where a consumer
has used excessive load as against the installed load simpliciter and there is
violation of the terms and conditions of supply, then, the case would fall under
Section 126 of the 2003 Act.
On the other hand,
where a consumer, by any of the means and methods as -specified under Sections
135(a) to 135(e) of the 2003 Act, has abstracted energy with dishonest intention
and without authorization, like providing for a direct connection bypassing the
installed meter. 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 26the 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 unauthorized 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 unauthorized use
of electricity and then theft which is governed by the provisions of Section
135 of the 2003 Act.
135 of the 2003 Act significantly uses the words `whoever, dishonestly' does
any of the listed actions so as to abstract or consume electricity would be punished
in accordance with the provisions of the 2003 Act. `Dishonesty' -is a state of mind
which has to be shown to exist before a person can be punished under the
provisions of that Section.
word `dishonest' in normal parlance means `wanting in honesty'. A person can be
said to have `dishonest intention' if in taking the property it is his
intention to cause gain, by unlawful means, of the property to which the person
so gaining is not legally entitled or to cause loss, by wrongful means, of property
to which the person so losing is legally entitled. `Dishonestly' is an expression
which has been explained by the Courts in terms of Section 24 of the Indian
Penal Code, 1860 as `whoever does anything with the intention of causing wrongful
gain to one person or wrongful loss to another person is said to do that thing
dishonestly'. [The Law Lexicon (2nd Edn. 1997) by P. Ramanatha Aiyar]
Court in the case of Dr. S. Dutt v. State of U.P. [AIR 1966 SC 523] stated that
a person who does anything with the intention to cause wrongful gain to one person
or wrongful loss to another is said to do that dishonestly.-
English Dictionary explains the word `dishonest' as `not honest or fair; deceiving
or fraudulent'. Black's Law Dictionary (Eighth Edition) explains the expression
`dishonest act' as a fraudulent act, `fraudulent act' being a conduct 28involving
bad faith, dishonesty, a lack of integrity or moral turpitude.
these explanations clearly show that dishonesty is a state of mind where a
person does an act with an intent to deceive the other, acts fraudulently and
with a deceptive mind, to cause wrongful loss to the other. The act has to be
of the type stated under Sub-sections (1)(a) to (1)(e) of Section 135 of the 2003
Act. If these acts are committed and that state of mind, mens rea, exists, the person
shall be liable to punishment and payment of penalty as contemplated under the provisions
of the 2003 Act. In contradistinction to this, the intention is not the
foundation for invoking powers of the competent authority and passing of an order
of assessment under Section 126 of the 2003 Act.-1(c) The ambit and scope of
Section 126 with reference to the construction of the words `unauthorised use'
dealt with the principle of interpretation of these provisions and the
distinction between Sections 126 and 135 of the 2003 Act, we shall now discuss
the ambit and scope of Section 126. The provisions of Section 126 contemplate
the following steps to be taken :
a. An assessing officer
is to conduct inspection of a place or premises and the equipments, gadgets, machines,
devices found connected or used in such place.
b. The formation of a conclusion
that such person has indulged in unauthorized use of electricity.
c. The assessing officer
to provisionally assess, to the best of his judgment, the electricity charges
payable by such person.
d. The order of provisional
assessment to be served upon the person concerned in the manner prescribed,
giving -him an opportunity to file objections, if any, against the provisional
e. The assessing officer
has to afford a reasonable opportunity of being heard to such person and pass a
final order of assessment within 30 days from the date of service of such order
of provisional assessment.
f. The person, upon whom
the provisional order of assessment is served, is at liberty to pay the said
amount within seven days of the receipt of such order and where he files such objections,
final order of assessment shall be passed, against which such person has a right
of appeal under Section 127 of the 2003 Act within the prescribed period of
limitation. Assessment and Computation
the assessing officer arrives at the conclusion that unauthorized use of electricity
has taken place, the assessment shall be made for the entire period during which
such unauthorized use of electricity has taken place and if such period cannot be
ascertained, it shall be limited to a - period of 12 months immediately preceding
the date of inspection and the assessment shall be made at the rate equal to twice
the tariff applicable for the relevant category of service specified under
This computation has
to be taken in terms of Sections 126(5), 126(6) and 127 of the 2003 Act. The
complete procedure is provided under these sections. Right from the initiation
of the proceedings till preferring of an appeal against the final order of assessment
and termination thereof, as such, it is a complete code in itself. We have already
indicated that the provisions of Section 126 do not attract the principles of Criminal
Jurisprudence including mens rea. These provisions primarily relate to unauthorized
use of electricity and the charges which would be payable in terms thereof.
determine the controversy in the present case, it will be essential to examine the
implication of the expression `unauthorised use of electricity' as contained in
Explanation (b) of Section 126 of the 2003 Act.
order to explain these expressions, it will be necessary for us to refer to certain
other provisions and the Regulations -as well. These expressions have to be understood
and given meaning with reference to their background and are incapable of being
fairly understood, if examined in isolation. It is always appropriate to
examine the words of a statute in their correct perspective and with reference to
relevant statutory provisions.
expression `unauthorized use of electricity' on its plain reading means use of electricity
in a manner not authorized by the licensee of the Board. `Authorization' refers
to the permission of the licensee to use of electricity', subject to the terms
and conditions for such use and the law governing the subject.
To put it more aptly,
the supply of electricity to a consumer is always subject to the provisions of
the 2003 Act, State Acts, Regulations framed thereunder and the terms and conditions
of supply in the form of a contract or otherwise. Generally, when electricity
is consumed in violation of any or all of these, it would be understood as `unauthorized
use of 33electricity'. But this general view will have to be examined in the
light of the fact that the legislature has opted to explain this term for the
purposes of Section 126 of the 2003 Act.
The said provision,
along with the Explanation, 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
(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 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 twice 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 Authorized; or-(v) for the premises or
areas other than those for which the supply of electricity was
`unauthorized use of electricity' means the usage of electricity by the means
and for the reasons stated in sub-clauses (i) to (v) of clause (b) of
Explanation to Section 126 of the 2003 Act. Some of the illustratively stated
circumstances of `unauthorised use' in the section cannot be construed as exhaustive.
The `unauthorized use of electricity' would mean what is stated under that Explanation,
as well as such other unauthorized user, which is squarely in violation of the
above-mentioned statutory or contractual provisions.
Black's Law Dictionary (Eighth Edition) defines `unauthorized' as `done without
the authority, made without 35actual, implied or apparent authority'. `Unauthorized'
is a concept well-recognized under different statutes, for example, under Section
31A of the Delhi Development Act, 1957 (the `DDA Act') the authority has the power
to seal the `unauthorized' development, if the misuser of the premises would come
within the ambit of unauthorized development. But if such misuse does not come
within the ambit of -`unauthorized development', such power is not available to
the authority. Simplicitor misuse, therefore, may not fall within the ambit of
unauthorized development under the provisions of the DDA Act. In M.C. Mehta v. Union
of India [(2006) 3 SCC 391], this Court held that if the misuse was in
violation of the permission, approval or sanction or in contravention of any
conditions, subject to which the said permission/approval has been granted in
terms of Section 30 of the DDA Act, then it will be `unauthorized use'.
have primarily referred to this case to support the reasoning that `unauthorized
development' is one which is contrary to a master plan or zonal development plan
as was the case under the DDA Act. Just as the right to develop a 36property is
controlled by the restrictions of law as well as the terms and conditions of the
permission granted for that purpose, the use of electricity is similarly controlled
by the statutory provisions and the terms and conditions on which such
permission is granted to use the electricity.
unauthorized use of electricity in the manner as is undisputed on record
clearly brings the respondent `under -liability and in blame' within the ambit and
scope of Section 126 of the 2003 Act. The blame is in relation to excess load
while the liability is to pay on a different tariff for the period prescribed in
law and in terms of an order of assessment passed by the assessing officer by the
powers vested in him under the provisions of Section 126 of the 2003 Act.
expression `means' used in the definition clause of Section 126 of the 2003 Act
can have different connotations depending on the context in which such
expression is used. In terms of Black's Law Dictionary (Eighth Edition) page 1001,
`mean' is - `of or relating to an intermediate point between two points or extremes'
and `meaning' would be `the sense of anything, but esp. of words; that which is
The word ordinarily includes
a mistaken but reasonable understanding of a communication. `Means' by itself
is a restrictive term and when used with the word `includes', it is construed as
exhaustive. In those circumstances, a definition using the term `means' is a
statement of literal connotation of a term and the courts have interpreted `means
and includes' as an expression defining the section exhaustively. It is to be
kept in -mind that while determining whether a provision is exhaustive or merely
illustrative, this will have to depend upon the language of the Section, scheme
of the Act, the object of the Legislature and its intent.
construction' is certainly a cardinal principle of interpretation. Equally true
is that no rule of interpretation should either be over-stated or over-extended.
Without being over-extended or over-stated, this rule of interpretation can be
applied to the present case. It points to the conclusion that an interpretation
which would attain the object and purpose of the Act has to be given precedence
over 38any other interpretation which may not further the cause of the statute.
The development of law is particularly liberated both from literal and blinkered
interpretation, though to a limited extent.
precepts of interpretation of contractual documents have also undergone a wide
ranged variation in the recent times. The result has been subject to one important
exception to assimilate the way in which such documents are interpreted by
judges on the common sense principle by which any serious utterance would be
interpreted by ordinary life. In other -words, the common sense view relating
to the implication and impact of provisions is the relevant consideration for
interpreting a term of document so as to achieve temporal proximity of the end
similar rule is the rule of practical interpretation. This test can be effectuatedly
applied to the provisions of a statute of the present kind. It must be
understood that an interpretation which upon application of 39the provisions at
the ground reality, would frustrate the very law should not be accepted against
the common sense view which will further such application.
the court decides that it has to take a purposive construction as opposed to textual
construction, then the legislative purpose sought to be achieved by such an
interpretation has to be kept in mind. We have already indicated that keeping in
view the legislative scheme and the provisions of the 2003 Act, it will be
appropriate to adopt the approach of purposive construction on the facts of this
case. We have also indicated above that the provisions of Section 126 of the
2003 Act are intended to cover the cases over and -above the cases which would
be specifically covered under the provisions of Section 135 of the 2003 Act.
other words, the purpose sought to be achieved is to ensure stoppage of
misuse/unauthorized use of the electricity as well as to ensure prevention of revenue
loss. It is in this background that the scope of the expression `means' has to
be construed. If we hold that the expression `means' is exhaustive and cases of
unauthorized use of electricity are restricted to the ones stated under Explanation
(b) of Section 126 alone, then it shall defeat the very purpose of the 2003
Act, inasmuch as the different cases of breach of the terms and conditions of the
contract of supply, regulations and the provisions of the 2003 Act would escape
the liability sought to be imposed upon them by the Legislature under the
provisions of Section 126 of the 2003 Act.
Thus, it will not be
appropriate for the courts to adopt such an approach. The primary object of the
expression `means' is intended to explain the term `unauthorized use of electricity'
which, even from the plain reading of the provisions of the 2003 Act or on a common
sense view cannot be restricted to the examples given in the Explanation. The
-Legislature has intentionally omitted to use the word `includes' and has only used
the word `means' with an intention to explain inter alia what an unauthorized
use of electricity would be.
It must be noticed
that clause (iv) of Explanation (b) and sub-Section (5) of Section 126 of the 2003
Act were both amended/substituted by the same amending Act 26 of 2007, 41with a
purpose and object of preventing unauthorised use of electricity not amounting to
theft of electricity within the meaning of Section 135 of the 2003 Act. This amendment,
therefore, has to be given its due meaning which will fit into the scheme of
the 2003 Act and would achieve its object and purpose.
expression `means' would not always be open to such a strict construction that the
terms mentioned in a definition clause under such expression would have to be
inevitably treated as being exhaustive. There can be a large number of cases and
examples where even the expression `means' can be construed liberally and
treated to be inclusive but not completely exhaustive of the scope of the
definition, of course, depending upon the facts of a given case and the provisions
governing that law. In the case of K.V. Muthu v. Angamuthu Ammal [(1997) 2 SCC
53], this Court was dealing with a case under the Tamil Nadu Rent Act and the
expression `member of his family' as defined under Section 2(6-A) of that Act.
Section 2(6-A) provides
that `member of his family' in relation to a 42landlord means his spouse, son, daughter,
grand-child or dependent parents. If the principle of construction advanced by the
learned counsel appearing for the respondent is to be accepted, then even in that
case, the Court could not have expanded the expression `members of his family'
to include any other person than those specifically mentioned under that
definition. The definition and the expression `means', if construed as exhaustive
would necessarily imply exclusion of all other terms except those stated in that
Section but this Court, while adopting the principle of purposive construction,
came to the conclusion that even a foster son, who is obviously not the real son
or direct descendant of a person, would be included.
This Court, observing
that there was consensus in precedent that the word `family' is a word of great
flexibility and is capable of different meanings, held as under : - "While
interpreting a definition, it has to be borne in mind that the interpretation placed
on it should not only be not repugnant to the context, it should also be such as
would aid the achievement of the purpose which is sought to be served by the
A construction which would
defeat or was likely to defeat the purpose of the Act has to be ignored and not
accepted. Where the definition or expression, as in the instant case, is preceded
by the words "unless the context otherwise requires", the said definition
set out in the section is to be applied and given effect to but this rule, which
is the normal rule may be departed from if there be something in the context to
show that the definition could not be applied."
comparable example of such interpretation by this Court can be traced out in the
case of Union of India v. Prabhakaran Vijaya Kumar & Ors. [(2008) 9 SCC
527] wherein it was dealing with the provisions of Section 123(c) of the Railways
Act, 1989 which read as under : "123 (c) "untoward incident" means--
(1) (i) the commission of a terrorist act within the meaning of sub- section
(1) of section (3) of the Terrorist and Disruptive Activities (Prevention) Act,
1987 ; or - (ii) the making of a violent attack or the commission of robbery or
dacoity; or (iii) the indulging in rioting, shoot out or arson, by any person in
or on any train carrying passengers, or in a waiting hall, cloak room or reservation
44 or booking office or on any platform or in any other place within the precincts
of a railway station; or (2) the accidental falling of any passenger from a train
is obvious from the bare reading of the above provision, the provision used the
expression `untoward incident means' and under clause (2) of that provision
`accidental falling of any passenger from a train carrying passengers' is included.
If it was to be understood as an absolute rule of law that the use of the term `means'
unexceptionally would always require an exhaustive interpretation of what is
stated in or can be construed to that provision, then a person who was climbing
on the train which was carrying passengers and who meets with an accident,
would not be covered. However, this Court, while repelling this contention,
held that by adopting a restrictive meaning to the expression `accidental
falling of a passenger from a train -carrying passengers' in Section 123(c) of the
Railways Act, 1989, this Court would be depriving a large number of railway
passengers from receiving compensation in railway accidents.
Treating the statute
to be a beneficial piece of legislation, this Court applied purposive interpretation,
while observing as under : "No doubt, it is possible that two interpretations
can be given to the expression "accidental falling of a passenger from a train
carrying passengers", the first being that it only applies when a person
has actually got inside the train and thereafter falls down from the train, while
the second being that it includes a situation where a person is trying to board
the train and falls down while trying to do so.
Since the provision for
compensation in the Railways Act is a beneficial piece of legislation, in our opinion,
it should receive a liberal and wider interpretation and not a narrow and technical
one. Hence, in our opinion the latter of the abovementioned two interpretations
i.e. the one which advances the object of the statute and serves its purpose should
be preferred vide Kunal Singh v. Union of India [(2003) 4 SCC 524 para 9], B.D.
Shetty v. Ceat Ltd. [(2002) 1 SCC 193 - para 12) and Transport Corpn. Of India
v. ESI Corpn. [(2000) 1 SCC 332]"-
above judgments clearly support the view that we have taken with reference to the
facts and law of the present 46case. It cannot be stated as an absolute proposition
of law that the expression `means' wherever occurring in a provision would
inevitably render that provision exhaustive and limited. This rule of interpretation
is not without exceptions as there could be statutory provisions whose interpretation
demands somewhat liberal construction and require inclusive construction. An approach
or an interpretation which will destroy the very purpose and object of the
enacted law has to be avoided.
The other expressions
used by the Legislature in various sub-clauses of Explanation (b) of Section 126
of the 2003 Act are also indicative of its intent to make this provision wider and
of greater application. Expressions like `any artificial means', `by a means not
authorised by the licensee' etc. are terms which cannot be exhaustive even linguistically
and are likely to take within their ambit what is not specifically stated. For example,
`any artificial means' is a generic term and so the expression `means' would have
to be construed generally.
This Court in the
case of Eureka Forbes Ltd. v. - 47Allahabad Bank [(2010) 6 SCC 193], while examining
the interpretation and application of the word `debt', held that it was a
generic term and, thus, of wide amplitude :"50. In this background, let us
read the language of Section 2(g) of the Recovery Act. The plain reading of the
Section suggests that legislature has used a general expression in contra
distinction to specific, restricted or limited expression. This obviously means
that, the legislature intended to give wider meaning to the provisions.
Larger area of
jurisdiction was intended to be covered under this provision so as to ensure
attainment of the legislative object, i.e. expeditious recovery and providing
provisions for taking such measures which would prevent the wastage of
securities available with the banks and financial institutions.51. We may
notice some of the general expressions used by the framers of law in this
provision:a) any liability;b) claim as due from any person;c) during the course
of any business activity undertaken by the Bank;d) where secured or
unsecured;e) and lastly legally recoverable.52. All the above expressions used
in the definition clause clearly suggest that, -expression `debt' has to be
given general and wider meaning, just to illustrate, the word `any liability'
as opposed to the word `determined liability' or `definite liability' or `any
person' in contrast to `from the debtor'.
The expression `any
person' shows that the framers do not wish to restrict the same in its ambit or
application. The legislature has not intended to restrict to the relationship
of a creditor or debtor alone. General terms, therefore, have been used by the
legislature to give the provision a wider and liberal meaning. These are
generic or general terms. Therefore, it will be difficult for the Court, even
on cumulative reading of the provision, to hold that the expression should be
given a narrower or restricted meaning. What will be more in consonance with
the purpose 48and object of the Act is to give this expression a general
meaning on its plain language rather than apply unnecessary emphasis or narrow
the scope and interpretation of these provisions, as they are likely to
frustrate the very object of the Act."
expressions `means', `means and includes' and `does not include' are
expressions of different connotation and significance. When the Legislature has
used a particular expression out of these three, it must be given its plain
meaning while even keeping in mind that the use of other two expressions has
not been favoured by the Legislature.
To put it simply, the
Legislature has favoured non-use of such -expression as opposed to other specific
expression. In the present case, the Explanation to Section 126 has used the
word `means' in contradistinction to `does not include' and/or `means and includes'.
This would lead to one obvious result that even the Legislature did not intend
to completely restrict or limit the scope of this provision.
use of electricity cannot be restricted to the stated clauses under the
explanation but has to be given a wider meaning so as to cover cases of violation
of terms and 49conditions of supply and the regulations and provisions of the 2003
Act governing such supply. `Unauthorised use of electricity' itself is an expression
which would, on its plain reading, take within its scope all the misuse of the
electricity or even malpractices adopted while using electricity.
It is difficult to restrict
this expression and limit its application by the categories stated in the
explanation. It is indisputable that the electricity supply to a consumer is
restricted and controlled by the terms and conditions of supply, the
regulations framed and the provisions of the 2003 Act. 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
Electricity Regulatory Commission, in exercise of its powers under Section
181(2)(t), (v), (w) and (x) read with Part VI of the 2003 Act, Orissa Electricity
Reforms Act, 1995 and all other 50powers 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 `Orissa
Electricity Regulatory Commission Distribution (Conditions of Supply) Code, 2004
(hereinafter referred to as `Conditions of Supply) vide notification dated 21st
May, 2004. The Agreement has been placed on record. This Agreement was
undisputedly executed between the parties. Clause (2) of the Agreement deals
with Conditions of Supply. It states that consumer had -obtained and perused a
copy of the Grid Corporation of Orissa Ltd. (General Conditions of Supply) Regulations,
1995, understood its content and undertook to observe and abide by all the terms
and conditions stipulated therein to the extent they are applicable to him.
The respondent was a consumer
under the `medium industry category'. Clause (A) of the terms and conditions applicable
to medium industry category reads as under : "This tariff rate shall be applicable
to supply of power at a single point for industrial production purposes with contract
demand/connected load of 22 KV and above up to but excluding 110 KVA where power
is generally utilized as a motive force."
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.
VII of the Conditions of Supply classifies the consumers into various categories
and heads. The electricity could be provided for a domestic, LT Industrial, LT/HT
Industrial, Large Industry, Heavy Industries and Power Intensive Industries, etc.
In terms of Regulation 80, the industry would fall under LT/HT category, if it relates
to supply for industrial production with a contract demand of 22 KVA and above
but below 110 KVA.
However, it will
become a `large industry' under Regulation 80(10) if it relates to supply of power
to an industry with a contract demand of 110 KVA and above but below 25,000 KVA.
Once the category stands changed because of excessive consumption of electricity,
the tariff and other conditions would stand automatically changed. The licensee
has a right to reclassify the consumer under Regulation 82 if it is found that
a consumer has been classified in a particular category erroneously or the purpose
of supply as mentioned in the agreement has changed or the -consumption of
power has exceeded the limit of that category etc.
The Conditions of Supply
even places a specific prohibition on consumption of excessive electricity by a
consumer. Regulation 106 of the Conditions of Supply reads as under : "No
consumer shall make use of power in excess of the approved contract demand or
use power for a purpose other than the one for which agreement has been executed
or shall dishonestly abstract power from the licensee's system."
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.
In somewhat similar
circumstances, where the consumer had been found to be drawing electricity in
excess of contracted load and the general 54conditions of supply of electricity
energy by the Board and clause 31(f) of the same empowered the Board to disconnect
supply and even levy higher charges as per the tariff applicable, this Court held
that such higher tariff charges could be recovered. While noticing the prejudice
caused, the Court in the case Bhilai Rerollers & Ors. v. M.P. Electricity Board
& Ors. [(2003) 7 SCC 185], held as under :
"21. The respondent-Board,
therefore, is entitled to raise the demand under challenge since such right has
been specifically provided for and is part of the conditions for supply and particularly
when such drawal of extra load in excess of the contracted load is bound to throw
out of gear the entire supply system undermining its efficiency, efficacy not only
causing stress on the installations of the Board but considerably affect other consumers
who will experience voltage fluctuations. Consequently, we see no merit in the challenge
made on behalf of the appellants. The appeals, therefore, fail and shall stand dismissed
but with no costs."-
view was taken by this Court in the case of Orissa State Electricity Board &
Anr. v. IPI Steel Ltd. & Ors. [(1995) 4 SCC 328].
will also be useful to notice that certain malpractices adopted by the consumer
for consuming electricity in excess of the contracted load could squarely fall within
the ambit and scope of Section 126 of the 2003 Act as it is intended to provide
safeguards against pilferage of energy and malpractices by the consumer. The Regulations
framed in exercise of power of subordinate legislation or terms and conditions
imposed in furtherance of statutory provisions have been held to be valid and
They do not offend
the provisions of the 2003 Act. In fact, the power to impose penal charges or disconnect
electricity has been held not violative even of Article 14 of the Constitution
of India. The expression `malpractices' does not find mention in the provisions
under the 2003 Act but as a term coined by judicial pronouncements. Thus, the
expression `malpractices' has to be construed in its proper perspective and normally
may not amount to theft of electricity as contemplated under Section 135 of the
would fall within the mischief of unauthorized use of electricity as stipulated
under Section 126 56of the 2003 Act. Cases of pilferage of electricity by adopting
malpractices which patently may not be a theft would be the cases that would fall
within the jurisdiction of the Board in furtherance to the terms and conditions
of supply. Reference in this regard can be made to the judgment of this Court
in the case of Hyderabad Vanaspathi Lts. v. A.P. State Electricity Board &
Anr. [(1998) 4 SCC 471].
is another angle from which the present case can be examined and obviously
without prejudice to the other contentions raised. It is a case where, upon inspection,
the officers of the appellant found that respondent was consuming 142 KVA of electricity
which was in excess of the sanctioned load. To the inspection report, the respondent
had not filed any objection before the competent authority as contemplated
under Section 126(3) and had approached the High Court. Limited for the purposes
of these proceedings, excess consumption is not really in dispute.
As stated above, the contentions
raised by the respondent were to challenge the -very jurisdiction of the
concerned authorities. Consumption in excess of sanctioned load is violative of
the terms and 57conditions of the agreement as well as of the statutory
benefits. Under Explanation (b)(iv), `unauthorised use of electricity' means if
the electricity was used for a purpose other than for which the usage of electricity
thus, would also cover the cases where electricity is being consumed in excess of
sanctioned load, particularly when it amounts to change of category and tariff.
As is clear from the agreement deed, the electric connection was given to the
respondent on a contractual stipulation that he would consume the electricity
in excess of 22 KVA but not more than 110 KVA.
The use of the negative
language in the condition itself declares the intent of the parties that there was
an implied prohibition in consuming electricity in excess of the maximum load
as it would per se be also prejudiced. Not only this, the language of Regulations
82 and 106 also prescribe that the consumer is not expected to make use of power
in excess of approved contract demand otherwise it would be change of user
falling within the ambit of `unauthorised use of - 58electricity'.
Again, there is no
occasion for this Court to give a restricted meaning to the language of Explanation
(b)(iv) of Section 126. According to the learned counsel appearing for the
respondent, it is only the actual change in purpose of use of electricity and
not change of category that would attract the provisions of Section 126 of the 2003
Act. The contention is that where the electricity was provided for a domestic
purpose and is used for industrial purpose or commercial purpose, then alone it
will amount to change of user or purpose.
The cases of excess load
would not fall in this category. This argument is again without any substance
and, in fact, needs to be noticed only to be rejected. We have already
discussed in some detail above that the expressions of the Explanation to
Section 126 are to be given a wider and amplified meaning so as to ensure the implementation
of the provisions in contradistinction to defeating the very object of the 2003
Act. Without being innovative and while predicating, we only state the
principles which have been authoritatively pronounced by this Court in different
In the case of Association
of 59Industrial Electricity Users v. State of A.P. & Ors. [(2002) 3 SCC
-711], this Court, while expressing that fixation of tariff in electricity or allied
matters can hardly be a subject matter of judicial review. The courts would not
venture to examine the tariff on merit and restrict its power of judicial
review only to procedural matters that too where it is ex facie arbitrary.
The Court rejecting
the contention raised before it that Section 126 of the Andhra Pradesh Electricity
Reforms Act does not envisage classification of consumers according to the
purpose for which the electricity is used and held that the supply of electricity
permits differentiation according to the consumer's load factor or power
factor, total consumption of energy during the specified period, the time at which
the supply is required and the need for cross-subsidisation or such tariff as is
just and reasonable and such as to promote economic efficiency in the supply
and consumption of electricity.
The tariff may also
be such as to satisfy all other relevant provisions of the 2003 Act and the
relevant conditions of the Agreement. Thus, there is a direct relation between the
quantum of electricity 60demanded, supplied and tariff rate. The purpose, therefore,
would include by necessary implication, the category under which the
electricity supply is being provided by the licensee to the consumer. Still, in
another case of Punjab State Electricity Board v. Vishwa Caliber Builders Private
Ltd. [(2010) 4 SCC 539], this Court was primarily concerned with the question
whether the ombudsman would have the jurisdiction to issue directions for regularization
of unauthorized electricity. Answering the same in the negative and dealing with
the question of excess load, this Court held as under :
"The fact that the
appellant could not release connection with a load of 2548 KW on account of non-availability
of transformer necessary for transfer of 8 MVA load from 66 KV sub station, G.T.
Road, Ludhiana had no bearing on the issue of consumption of electricity by the
respondent beyond the sanctioned load. Undisputedly, in terms of the request made
by the respondent, the Chief Engineer had sanctioned connection on the existing
system with a load of 1500 KW, but the respondent used excess load to the tune of
481.637 KW and this amounted to unauthorized use of electrical energy."
consistent view of this Court would support the proposition that the cases of
excess load of consumption would be squarely covered under Explanation (b)(iv)
of Section 126 of -the 2003 Act. Once this factor is established, then the
assessing officer has to pass the final order of assessment in terms of
Sections 126(3) to 126(6) of the 2003 Act. Discussion on Question No.2 and 3
the procedure prescribed, the person (the consumer) has to be served with the
notice inviting him to file objections, if any, within the stipulated time in terms
of Section 126(3) and the assessing officer is required to pass a final order within
30 days from the date of service of such order of provisional assessment.
If the consumer does
not pay the provisional assessment amount, as required under Section 126(4) and
file objections under Section 126(3), then after affording opportunity to the consumer,
the assessing officer shall assess the amount and pass an order of final
assessment, as stated in Section 126(5). Section 126(6) contemplates that the assessment
under the Section shall be 62made at a rate equal to twice the tariff applicable
for the relevant category of services specified in Sub-section (5).
The reference to the category
in Section 126(6) fully substantiate the view that we have taken that change of
category by -consumption of excess load will automatically bring the defaulter
within the mischief of Explanation to Section 126(6). Once the order of assessment
is finally passed and is served upon the consumer, he is expected to pay the said
charges unless, being aggrieved from such an order, he prefers an appeal under
Section 127 of the 2003 Act.
The appeal under
Section 127 would lie only against the final order passed under Section 126 that
too within 30 days of the said order. The appeal shall be filed, maintained and
dealt with in accordance with the procedure specified in Section 127 of the
2003 Act. A bare reading of the provisions of Section 127 shows that it is the final
order made under Section 126 which is appealable under Section 127 of the 2003
Act. In other words, issuance of a notice or a provisional order of assessment
as may be made by the assessing officer in terms of sub-section (1) to sub-section
(3) of Section 126 of the 2003 Act would not be the order against which an
appeal would lie.
may be noticed that admittedly the present respondent had not preferred any appeal
against the provisional order of assessment dated 25th July, 2009 and, in fact,
had preferred a -writ petition against the very issuance of a notice issued in terms
of Sub-sections (2) and (3) of Section 126 of the 2003 Act. This brings us to
the question as to what is the scope of jurisdiction under Article 226 of the Constitution
of India in face of the provisions of Section 127 of the 2003 Act.
is a settled canon of law that the High Court would not normally interfere in exercise
of its jurisdiction under Article 226 of the Constitution of India where statutory
alternative remedy is available. It is equally settled that this canon of law is
not free of exceptions. The courts, including this Court, have taken the view that
the statutory remedy, if provided under a specific law, would impliedly oust the
jurisdiction of the Civil Courts.
The High Court in
exercise of 64its extraordinary jurisdiction under Article 226 of the
Constitution of India can entertain writ or appropriate proceedings despite
availability of an alternative remedy. This jurisdiction, the High Court would exercise
with some circumspection in exceptional cases, particularly, where the cases involve
a pure question of law or vires of an Act are challenged.
This class of cases we
are mentioning by way of illustration and should not -be understood to be an
exhaustive exposition of law which, in our opinion, is neither practical nor possible
to state with precision. The availability of alternative statutory or other
remedy by itself may not operate as an absolute bar for exercise of
jurisdiction by the Courts. It will normally depend upon the facts and
circumstances of a given case. The further question that would inevitably come up
for consideration before the Court even in such cases would be as to what
extent the jurisdiction has to be exercised.
the Courts determine on merits of the case or should it preferably answer the preliminary
issue or jurisdictional issue arising in the facts of the case and remit 65the matter
for consideration on merits by the competent authority? Again, it is somewhat difficult
to state with absolute clarity any principle governing such exercise of
jurisdiction. It always will depend upon the facts of a given case.
We are of the considered
view that interest of administration of justice shall be better subserved if
the cases of the present kind are heard by the courts only where it involves
primary questions of jurisdiction or the matters which -goes to the very root
of jurisdiction and where the authorities have acted beyond the provisions of the
Act. However, it should only be for the specialized Tribunal or the appellate
authorities to examine the merits of assessment or even factual matrix of the case.
It is argued and to some
extent correctly that the High Court should not decline to exercise its jurisdiction
merely for the reason that there is a statutory alternative remedy available even
when the case falls in the above-stated class of cases. It is a settled principle
that the Courts/Tribunal will not exercise jurisdiction in futility. The law
will not itself attempt to do an act which would be vain, lex 66nil frustra
facit, nor to enforce one which would be frivolous-lex neminem cogit ad vana seu
inutilia--the law will not force any one to do a thing vain and fruitless. In other
words, if exercise of jurisdiction by the Tribunal ex facie appears to be an exercise
of jurisdiction in futility for any of the stated reasons, then it will be permissible
for the High Court to interfere in exercise of its jurisdiction.
This issue is no longer
res integra and has been settled by a catena of judgments of this Court, which
we find entirely unnecessary to refer to in -detail. Suffices it to make a
reference to the judgment of this Court in the case of Whirlpool Corporation v.
Registrar of Trade Marks, Mumbai [(1998) 8 SCC 1] where this Court was
concerned with the powers of the Registrar of Trade Marks and the Tribunal under
the Trade and Merchandise Marks Act, 1958 and exercise of jurisdiction by the
High Court in face of availability of a remedy under the Act. This Court while
referring to various judgments of this Court and specifying the cases where the
alternative remedy would not bar the exercise of jurisdiction by the Court,
held as under: - 67"14.
The power to issue prerogative
writs under Article 226 of the Constitution is plenary in nature and is not
limited by any other provision of the Constitution This power can be exercised
by the High Court not only for issuing writs in the nature of Habeas Corpus, Mandamus,
prohibition, Qua Warranto and Certiorari for the enforcement of any of the Fundamental
Rights contained in Part III of the Constitution but also for "any other
purpose".15. Under Article 226 of the Constitution, the High Court, having
regard to the facts of the case, has a discretion to entertain or not to entertain
a writ petition.
But the High Court
has imposed upon itself certain restrictions one of which is that if an
effective and efficacious remedy is -available, the High Court would not
normally exercise its jurisdiction. But the alternative remedy has been consistently
held by this Court not to operate as a bar in at least three contingencies, namely,
where the writ petition has been filed for the enforcement of any of the
Fundamental Rights or where there has been a violation of the principle of
natural justice or where the order or proceedings are wholly without jurisdiction
or the vires of an Act is challenged. There is a plethora of case law on this point
but to cut down this circle of forensic whirlpool we would rely on some old decisions
of the evolutionary era of the constitutional law as they still hold the field.
XXX XXX XXX 68
19. Another Constitution
Bench decision in Calcutta Discount Co. Ltd. v. ITO Companies Distt :  41
ITR 191 (SC) laid down : "Though the writ of prohibition or certiorari will
not issue against an executive authority, the High Courts have power to issue in
a fit case an order prohibiting an executive authority from acting without jurisdiction.
Where such action of an executive authority acting without jurisdiction subjects
or is likely to subject a person to lengthy proceedings and unnecessary harassment,
the High Court will issue appropriate orders or directions to prevent such consequences.
Writ of certiorari and prohibition can issue - against Income Tax Officer acting
without jurisdiction Under Section 34 Income Tax Act."
20. Much water has
since flown under the bridge, but there has been no corrosive effect on these decisions
which command though old, continue to hold the field with the result that law
as to the jurisdiction of the High Court in entertaining a writ petition under Article
226 of the Constitution, in spite of the alternative statutory remedies, is not
affected, specially in a case where the authority against whom the writ is
filed is shown to have had no jurisdiction or had purported to usurp jurisdiction
without any legal foundation.
21. That being so,
the High Court was not justified in dismissing the writ petition at the initial
stage without examining the contention that the show cause notice issued to the
appellant was wholly without jurisdiction and that the Registrar, in the circumstances
of the case, was not justified in acting as the `Tribunal'."
in the case of Union of India v. State of Haryana [(2000) 10 SCC 482], this
Court took the view that the question raised was a legal one which required determination
as to whether provision of telephone connections and instruments amounted to sale
and why the Union of India should not be exempted from payment of sales tax
under the respective -statutes. Holding that the question was fundamental in
character and need not even be put through the mill of statutory appeals in
hierarchy, this Court remitted the matter to the High Court for determination of
the questions of law involved in that case.
these principles to the facts of the present case, it is obvious that no statutory
appeal lay against a provisional order of assessment and the respondents herein
were required to file objections as contemplated under Section 70126 (3) of the
2003 Act. It was only when a final order of assessment was passed that the respondents
could prefer a statutory appeal which admittedly was not done in the case in
the present case, the High Court did not fall in error of jurisdiction in entertaining
the writ petition but certainly failed to finally exercise the jurisdiction within
the prescribed limitations of law for exercise of such jurisdiction. Keeping in
view the functions and expertise of the specialized body constituted under the Act
including the assessing officer, it would have been proper exercise of jurisdiction,
if the High Court, upon entertaining and deciding the writ petition on a
-jurisdictional issue, would have remanded the matter to the competent authority
for its adjudication on merits and in accordance with law.
In the facts of the
present case, the High Court should have answered the question of law relating to
lack of jurisdiction and exercise of jurisdiction in futility without travelling
into and determining the validity of the demand which squarely fell within the domain
of the specialized authority. The High Court should have remanded the case to the
assessing officer with a direction to the respondent to file its objections including
non-applicability of the tariff before the assessing authority and for
determination in accordance with law.
dealt with and answered determinatively the questions framed in the judgment,
we consider it necessary to precisely record the conclusions of our judgment
which are as follows:-
a. Wherever the consumer
commits the breach of the terms of the Agreement, Regulations and the provisions
of the Act by consuming electricity in excess of the sanctioned and connected
load, such consumer would be `in blame –
b. and under liability'
within the ambit and scope of Section 126 of the 2003 Act.
c. The expression
`unauthorized use of electricity means' as appearing in Section 126 of the 2003
Act is an expression of wider connotation and has to be construed purposively in
contrast to contextual interpretation while keeping in mind the object and purpose
of the Act. The cases of 72 excess load consumption than the connected load inter
alia would fall under Explanation (b)(iv) to Section 126 of the 2003 Act,
besides it being in violation of Regulations 82 and 106 of the Regulations and terms
of the Agreement.
d. In view of the language
of Section 127 of the 2003 Act, only a final order of assessment passed under Section
126(3) is an order appealable under Section 127 and a notice-cum-provisional assessment
made under Section 126(2) is not appealable.
e. Thus, the High Court
should normally decline to interfere in a final order of assessment passed by
the assessing –
f. officer in terms of Section
126(3) of the 2003 Act in exercise of its jurisdiction under Article 226 of the
Constitution of India.
g. The High Court did not
commit any error of jurisdiction in entertaining the writ petition against the
order raising a jurisdictional challenge to the notice/provisional assessment order
dated 25th July, 2009. However, the 73 High Court transgressed its jurisdictional
limitations while travelling into the exclusive domain of the Assessing Officer
relating to passing of an order of assessment and determining factual controversy
of the case.
h. The High Court having
dealt with the jurisdictional issue, the appropriate course of action would have
been to remand the matter to the Assessing Authority by directing the consumer to
file his objections, if any, as contemplated under Section 126(3) and require the
Authority to pass a final order of assessment as contemplated under Section 126(5)
of the 2003 Act in accordance with law.-
the reasons afore-recorded, the judgment of the High Court is set aside and the
matter is remanded to the Assessing Officer to pass a final order of assessment
expeditiously, after providing opportunity to the respondent herein to file
objections, if any, to the provisional assessment order, as contemplated under
Section 126(3) of the 2003 Act.
appeal is allowed in the above terms, while leaving the parties to bear their