REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICITON

CIVIL APPEAL NO.   6618       OF 2008 (Arising out of S.L.P. (C.) No.12698 of 2006)

Haryana Vidyut Parsaran  Nigam Ltd. & Ors. … Appellants

Versus

M/s. Super Star Grit Udyog …Respondent

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of a learned Single Judge

of the Punjab and Haryana High Court dismissing the Second Appeal filed

by the appellants in terms of Section 100 of the Code of Civil Procedure,

1908 (in short the ‘Code’).

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3. Background facts, as projected by the appellants, are as follows:

The respondent was given electric connection bearing No.LLS-42 by

the appellant-Nigam on 11.10.2002.  The premises of the respondent were

checked  by the  officials  of  the  appellant-Nigam.   It  was  found  that  the

respondent was committing theft of electricity by providing bolt under the

CT Chamber of the meter.  On removing the earth strip from the bolt and

isolating  the  bolt  from the  CT  Chamber,  it  was  noticed  that  there  was

disconnection of earth/neutral wire which caused the stoppage of the meter.

Checking Report in this regard was prepared by the officials.  This being a

case of theft  of electricity, the respondent  was charged Rs.11,37,222/- as

penalty.  Challenging  the  aforesaid  demand  by  memo  dated  12.10.2000,

respondent  filed  a  Suit  for  declaration  with  consequential  relief  of

mandatory and permanent injunction before the learned Civil Judge (Junior

Division),  Gurgaon.   The  appellants  filed  written  statement,  inter-alia,

raising preliminary objections as regards the maintainability of the Suit.  It

is  pointed  out  that  the  same  was  not  maintainable  in  view  of  Indian

Electricity  (Haryana  Amendment)  Act,  1998  (in  short  the  ‘Amendment

Act’)  i.e.  Haryana  Act  No.4  of  1998.   Replication  to  the  said  written

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statement was filed by the respondent.  The trial Court framed an issue i.e.

Issue No.3 in this regard but held that the memo was illegal, null and void.

An appeal  was  filed  before  the  learned  District  Judge,  Gurgaon,  before

whom the same plea was taken. But the High Court  only referred to the

submission of the respondent and held that whether theft committed was to

be adjudicated  by reference to  the Electrical  Inspector.  It  was noted that

appellant  no.1  ought  to  have  brought  on  record  the  evidence  of  some

technical person regarding commission of theft and only then it would have

been substantiated.  In the absence of that, the plea relating to theft cannot

be gone into.  The Second appeal was dismissed but it was observed that if

on independent evidence, commission of theft is established, the appellants

are free to proceed to check theft of electricity in accordance with law.

4. In support of the appeal, learned counsel for the appellant submitted

that  the  Trial  Court  came to  the  erroneous  conclusion  that  the  Suit  was

maintainable.  In  appeal,  the  first  appellate  court  came  to  an  abrupt

conclusion that the jurisdiction of the Civil Court existed.  It was stated that

the dispute between the consumer and the Nigam was not barred by any

Statute.  The High Court did not address itself to the fundamental question

as to the maintainability of the suit.  It was also submitted that the courts

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below were  not  justified  in  holding  that  notice  was  required  before  any

action was taken.  It was also pointed out that the reference to the electrical

inspector was not necessary in the case of theft.

5. We find that, all through, the appellants have been taking the stand

about the maintainability of the Suit.  Relevant provisions of the Amending

Act read as follows:

“2. Amendment  of  Section  24  of  Central  Act  9  of 1910:     

In sub-section (1) of Section 24 of the Indian Electricity Act,  1910,  the  following  proviso  shall  be  added, namely:-

“Provided that no Court shall take cognizance of any matter pertaining to the payment of charges due from any  person  to  a  licensee  in  respect  of  the  supply  of energy to him or stay the recovery thereof unless –

(i) he has exhausted all the remedies available to him under the terms and conditions governing the supply of energy to him; and

(ii) he  has  deposited  forty  percent  of  the  amount outstanding against him, with the licensee.”

6. It is the stand of the appellants that the terms and conditions of supply

clearly provide the consequences in case of theft or pilferage of electrical

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energy which read as follows:

“24(A)(i)(3) Theft  or  Pilferage  of  Electrical energy:     

A  consumer  shall  be  guilty  of  theft  of  energy where  he  dishonestly  abstructing,  consumes,  uses  or draws any energy:-

a) Otherwise  than  through  a  meter  referred  to  in condition 14 of the Terms and Conditions of Supply of the  Board  or  Section  26  of  the  Indian  Electricity  Act, 1910.

b) Through  any  artificial  means,  or  means  not authorized by the Board; or

c) By tampering with such meter or its body seals, or an apparatus or circuit;

d) By manipulating such meter indicator or apparatus referred to in sub-section (6) of Section 26 of the Indian Electricity Act, 1910 or;

e) By manipulating  or  abstructing  or  interfering  in the  functioning  of  such  meter  in  any manner  so  as  to prevent  it  from  fully  and/or  correctly  registering  the energy consumed; or

f) by manipulating  change  of  phase  of  the  electric supply lines; or

g) from a disconnected connection; or

h) by any other  means  whatsoever  interfering  with the  said  meter  or  Board’s  supply  system  where  such interference is an offence under Section 44 of the Indian Electricity Act, 1910.”

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7. Unfortunately,  the effect  of the  aforesaid  amendment  has  not  been

considered by either by the trial court or by the first appellate court or the

High Court.  Reference may be made to  a decision of  this  Court  in  M.P.

Electricity  Board,  Jabalpur v.  Harsh  Wood Products (1996  (4)  SCC522)

laying down that in the case of theft notice was not required.  Similarly, in

Sub-Divisional Officer (P) UHBVNL v.  Dharam Pal (2006 (12) SCC 222)

in paragraph 7 to 11, it was observed that reference is not necessary to the

Electrical Inspector in the case of theft.  The applicability and the relevance

of these judgments have not been considered by the High Court.

8. In the circumstances, we set aside the impugned judgment of the High

Court,  remit  the  matter  to  it  for  considering  the  issues  relating  to

maintainability of the Suit as filed by the respondent.

9. We make  it  clear  that  we  have  not  expressed  any opinion  on  the

merits of the case. The appeal is allowed to the aforesaid extent without any

order as to costs.      

……………………………………J. (DR. ARIJIT PASAYAT)

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……………………………….……J. (DR. MUKUNDAKAM SHARMA)

New Delhi: November 11, 2008

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