Allowed

Shashi Kala Jha and Anr. v. The Bihar State Power Holding Company Limited and Ors.

Patna HC13 Mar 2014CWJC/17550/2013

Case brief

AI extract

What is this about?

Petitioners, owners of flats in an apartment complex, sought electric connections. The licensee refused, citing alleged theft of electricity by the builder/developer and undetermined civil liability from a pending criminal case. The Court held that theft liability falls only on the accused or registered meter owner until quantified by a Special Court under Section 154, and allowed the applications

What did the court decide?

Directed respondent Company to grant electric connection to four flats belonging to petitioner no. 1 within two weeks; permitted petitioner no. 2 to file a fresh application for her claimed flat.

Shashi Kala Jha and Anr. Vs The Bihar State Power Holding… — Consumer Protection | Patna HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.17550 of 2013

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====================================================== 1. Shashi Kala Jha Wife Of Daya Nand Jha Resident Of 401, Pv Complex, Boring Canal Road, P.S. Srikrishnapuri, Town And District Patna 2. Mrs. Abha Wife Of Rajiv Mishra Resident Of Mahamaya Apartment, In Front Of Bajla Mahila College, Deoghar District Deoghar

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.... .... Petitioner/s Versus 1. The Bihar State Power ( Holding) Company Limited, Vidyut Bhawan, Bailey Road, Patna, Through Its Chairman-Cum-Managing Director 2. The South Bihar Power Distribution Company Limited, Vidyut Bhawan, Bailey Road, Patna, Through Its Managing Director 3. The Electrical Executive Engineer, The South Bihar Power Distribution Company Limited, Electric Supply Sub-Division, Danapur, Patna 4. The Assistant Electrical Engineer, The South Bihar Power Distribution Company Limited, Electric Supply Sub-Division, Danapur, Patna 5. M/S Astha Constructions, A Partnership Firm, At Shivshakti Apartment, Mohalla Vishweshwaraiya Nagar, Bailey Road, P.S. Rupaspur, District Patna, Through Its Partner, Neeraj Kumar, Son Of Mr. Ram Babu Rai Resident Of Road No. 6-D, Gardanibagh, P.S. Gardanibagh, District Patna

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.... .... Respondent/s

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====================================================== CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL ORAL ORDER

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9 13-03-2014 Petitioner no. 1 is the owner of land/property on which the respondent No. 5 constructed apartments under a development agreement (Annexure-1) signed between them. Certain percentage of the built up area, as per agreement, fell in the share of the land holder, the petitioner no. 1. Petitioner no. 2 is daughter of petitioner no. 1 who is said to have purchased one flat in the said apartment/building so constructed by the respondent no. 5. The petitioners have filed the present application seeking a direction upon the Bihar State Power (Holding) Company Ltd (for short “ the Company”) and its officials to grant fresh electric connection

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to the petitioners in pursuance of their applications already filed which has been refused on the ground that the petitioners should first clear the earlier dues. The petitioners also sought a declaration that the dues or liability to pay the dues, if any, cannot be fastened on them and provide a valid ground for refusal of electric connection to the petitioners in those flats.

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The facts of the case are little jumbled. This Court would only note relevant facts which are not much in dispute in the light whereof the contention of the parties shall be considered.

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As noticed above, petitioner no. 1 entered into a development agreement with respondent no. 5 and an agreement to this effect was signed up on 10.12.2012 (Annexure-1). The developer (i.e. Respondent no. 5) is a partnership firm engaged in the business of constructing apartments. After completing the construction of the apartment, the petitioner no. 1 was allotted flat nos. 102, 103, 301 and 304. Although it is disputed, but, according to the petitioners, possession of those flats were handed over to the petitioner no. 1 on 3.3.2011 vide Annexure-2. Insofar as petitioner no. 2 is concerned, the relevant facts with regard to the sale of one of the flats in her favour by the petitioner no. 5 has not been disclosed. After taking possession of the four flats, the petitioner no. 1 applied before the respondent Assistant Electric Engineer,

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Danapur on 7.12.2011 for fresh electric connection in those flats in the apartment called Aastha Ashoka Apartment (subsequently known as Shiv Shakti Apartment). Fee(s) for installation of electric connection/meter were also paid vide receipts dated 9.12.2011 (Annexure-4 and 4/A). The respondents did not take steps for installation of electric connection in those flats propelling the petitioner no. 1 to file a representation (Annexure-5). The aforesaid representation got a response from the Assistant Electrical Engineer, Electric Supply Division, Danapur vide letter dated 29.12.2011 (Annexure-6) stating therein that in an inspection carried out in the said apartment on 3.1.2011, it was found that occupants of those flats were engaged in commission of theft of energy for which an F.I.R. was lodged vide Rupaspur P.S. Case No. 1 of 2011 on 3.1.2011 (Annexure-7) and on account thereof, the respondent company had sustained loss which had not been paid/cleared by the petitioner no. 1. Until and unless those dues are cleared, fresh electric connection cannot be installed in those four flats. Insofar as Flat no. 304 which is claimed by respondent no. 2 is concerned, it was said that the petitioner no. 1 may consult with the Junior Engineer for necessary clarification. The petitioners, in such circumstances, have filed the present writ petition for the relief noticed hereinabove.

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Heard Mr. Suraj Sardarshi for the petitioner, Mr. Vinay Kirti Singh for the respondent Bihar State Power (Holding) Company Ltd and Mr. Ashutosh Ranjan Pandey, learned counsel for respondent no. 5. Counter affidavit(s) have been filed by respondent nos. 1 to 4 as well as respondent no. 5. The petitioners have filed rejoinder(s) thereto.

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Learned counsel for the petitioners while supporting the writ application has submitted that as per the F.I.R. (Annexure7), the common electric meter which was installed in the name of Sri Niraj Kumar, one of the partners of respondent no. 5 was bypassed to commit theft of energy and the occupants of Flat No. 102 (Sri Bipin Bihari Upadhyay), Flat No. 3 (Sri Rajiv Kumar), Flat No. 104 (Sri Gyaneshwar Narayan), Flat No. 301 (Sri Dharmendra Kumar) and Flat No. 303 (Sri Ramashish Singh) were found utilizing the energy by such looping of electric connection in an unauthorized/illegal manner. Since the common meter was standing in the name of Niraj Kumar, the F.I.R. was drawn against him. The informant i.e. the Assistant Electrical Engineer also quantified the loss so sustained by the Company on account of such commission of theft of electricity at Rs. 6,24,000/(six lakhs twenty four thousands only ) which was alleged as unlawful gain to the accused namely Niraj Kumar(respondent no.

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5). The charge-sheet in the said case was later submitted against aforesaid Niraj Kumar. In order to help the accused Builder, the Assistant Electrical Engineer by a communication dated 12.1.2011 (Annexure-D to the counter affidavit filed on behalf of respondent no. 5) improved upon the F.I.R. earlier lodged by him on 3.1.2011 by alleging therein that Flat nos. 102, 104, 301 and 303 were in occupation of the petitioner no. 1 whereas Flat No. 103 was sold and as such they should also be impleaded as accused(s) of the present case. In the light of the subsequent clarification/report (Annexure-D), the respondent Assistant Electrical Engineer in connivance with the accused Builder raised a provisional bill of part of loss sustained on account of such commission of theft against Niraj Kumar (respondent no. 5) which was deposited by him. Subsequently, the Assistant Electrical Engineer also permitted and raised a bill for compounding of the offence in the sum of Rs. 10,000/- without obtaining any permission from the higher authorities. The same having been paid by the respondent no. 5 (vide Annexure-3/1 of the counter affidavit of respondent no. 5) was allowed to be compounded. This was done with a view to salvage the respondent no. 5 from the entire liability of loss sustained by the Company on account of commission of theft through the electric meter installed in the name of the respondent

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no. 5. It has been contended that Section 135 of the Electricity Act (for short “ the Act”) fastens a criminal liability on a person who was actually found involved in commission of theft. The Respondent no. 5 by his conduct has accepted commission of offence inasmuch as portion of loss sustained on account of such commission of theft has been paid. The F.I.R. clearly alleges the persons who were involved in the Commission of theft. The petitioners herein have not been made accused(s) in the said case in which ultimately charge-sheet was also filed against the respondent no. 5 only in spite of the clarification/improvement sought to be made by the informant. The petitioner no. 1, therefore, cannot be denied electric connection, particularly, in the light of the right so created in her by virtue of Section 43 of the Act.

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Per contra, the official respondents have opposed the writ petition. It is stated that the writ petition does not state relevant facts as about petitioner no. 2. The application (Annexure-9) filed by petitioner no. 2 is in respect of Flat no. 102 although she claims a different flat before this Court. In January, 2011, in course of inspection of the apartment in question, it was found that meter standing in the name of Respondent no. 5 was tampered, by-passed and electric consumption was used illegally

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in the concerned flats by the occupants thereof as stated in the F.I.R. The petitioners were cognizant of the aforesaid fact and as such, immediately thereafter no such application for installation of electric meter was/were filed. Ultimately, such application(s) was/were filed on their behalf in November, 2011. Since there is outstanding dues against the petitioner no. 1 who is owner of those flats and as such, they have been denied electric connection until those dues are cleared/paid.

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Mr. Pandey, learned counsel for the Respondent no. 5 has also opposed the writ petition. It is stated that the building/apartment constructed by the Respondent no. 5 consisted of 12 flats, four of them were for the land owner (petitioner no. 1). The construction of the building was complete in the year 2008 inasmuch as 7 flats falling in the share of the Developer had already been sold. The purchaser(s)/occupier(s) of those flats have applied and granted electric connection since 2010. He referred to in this regard Annexure-A series which are copies of the bills raised by the respondent Company. The flats falling in the share of the petitioner no. 1 were also handed over to her which was being utilized by her tenants or someone on her behalf who had indulged in commission of theft. The documents on which reliance has been placed by the petitioners have been created subsequent to the

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lodging of the F.I.R. in order to lay a claim which is otherwise not maintainable in the eyes of law.

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Before this Court proceeds to consider the rival contentions of the parties, it is vital to note relevant provisions of the Act. Section 43 of the Act casts duty on the licensee to give supply of electricity to the owner or occupier of any premises after receipt of the application requiring such supply. The application, however, has to be complete in all respects in the appropriate format as required by the distribution showing payment of necessary charges/fees. Section 135 of the Act provides the offence of commission of theft of electricity and penalties therefor. The said provision in relevant part is extracted hereinbelow:

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“135 Theft of electricity.- (1) Whoever, dishonestly,-

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(a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables or service wires, or service facilities of a licensee or supplier, as the case may be; or

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(b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or

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(c) damages or destroys an electric meter, apparatus, equipments, or wire or causes or allows any of them to be so damaged or destroyed as to interfere with the proper or accurate

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metering of electricity; or

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(d) uses electricity through a tampered meter; or

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(e) uses electricity for the purpose other than for which the usage of electricity was authorised……………” Sub-section (1-A) of Section 135 of the Act provides for disconnection of the supply of electricity upon detection of such theft of electricity and lodging of complaint within 24 hours from the time of such disconnection.

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Section 152 of the Act provides for compounding of offences. Section 154 provides for setting up of Special Court to try offences punishable under Section 135 to 140 and Section 150 of the Act. Sub-section (5) of Section 154 of the Act states that the Special Court shall determine the civil liability against a consumer or person in terms of money for theft of energy which shall not be less than an amount equivalent to 2 times of the tariff rate applicable for a period of twelve months preceding the date of detection of theft of energy or the exact period of theft if determined whichever is less and the amount of civil liability so determined shall be recovered as if it were a decree of Civil Court. Contention of the petitioner is that Section 135 of the Act would be attracted only against the misuser of the energy. It will not extend beyond the individual who were found involved in commission of theft of energy in illegal/unauthorized manner. In

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any view of the matter, until and unless such civil liability is adjudicated and determined by the Court, the respondents should not justifiably insist on payment thereof as a precondition for grant of fresh connection to the owner/occupier of the premises. It is not in dispute that no electric connection was ever provided to those flats on request made in this regard. The electric connection was granted in favour of the Builder which was installed in the said premises for commercial/general purposes. In the F.I.R. lodged as per the provisions of the Act, the allegation of commission of theft was made against person in whose name the said meter was registered i.e. Respondent no. 5. The subsequent clarification of the complainant was purposely made with a view to provide undue benefit to the accused cited in the F.I.R. Once the F.I.R. is lodged, no such clarification/improvement in the complaint would be permissible in law since the role of the complainant ends after filing of such complaint. It is not the case of the respondent(s) that the Investigating Officer in course of investigation found the involvement of the petitioner no. 1 in the commission of the offence. In fact, upon completion of investigation, charge-sheet was submitted only against Respondent no. 5. The official respondents have acted in an arbitrary manner in refusing fresh connection to the petitioner no. 1 even after deposit of the required

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fee and the application(s) in the appropriate format. The respondents have themselves made liable for payment of penalty for having failed to supply the electricity within the period prescribed as provided under sub-section (3) of Section 43 of the Act. The petitioner has relied in this regard on an unreported order passed by Hon’ble Apex Court in Writ Petition(CRL.) No. 103 of 2013 copy whereof has been enclosed as Annexure-10.

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The respondents, per contra, supported the impugned action and the order. It has been submitted that the application raises several dispute/question of fact/relevant facts on which the petitioner no. 2 claims the relief, have not been stated in the application. In support of the order impugned in the application and his contention, he has relied on 2005 (3) P.L.J.R. 709 (M/S Chitra Developers Marketing Pvt. Ltd versus Bihar State Electricity Board and Ors.) .

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The petitioner, in reply, submits that the order passed in M/S Chitra Developers Marketing Pvt. Ltd (supra) was rendered by this Court in entirely different factual background inasmuch as the same was rendered in relation to a person who was found committing theft of energy wherein in the case at hand, on reading of the F.I.R. and the facts appearing from record, it is evident that such allegation is not levelled against the petitioner.

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On a careful consideration of the submissions of the parties and the in the light of the rule/provision, it appears that the petitioner no. 1 is not cited as an accused in the criminal proceeding lodged by the respondents. The F.I.R. cites one of the partners of respondent no. 5 namely Niraj Kumar as an accused. Others who have been named therein are/were the occupants of those flats. There is no allegation in the complaint/F.I.R. (Annexure-7) that those flats during the relevant time was owned and possessed by the petitioner No. 1. The liability both criminal or civil is only in respect of the person who was found engaged in commission of theft of energy. The meter which was found byepassed was registered in the name of one of the partners of respondent No. 5 who has been cited as accused in the case. It further appears that the commission of theft to some extent stands admitted by the accused named in the F.I.R. when he sought compounding of the offence and with a view to relieve him of his entire liability, a communication improving upon the F.I.R./complaint was made by the complainant/informant wherein he tried to bifurcate the liabilities and the loss sustained in this regard. Having done so, the accused of the said case (respondent No. 5) was allowed to compound the offence without obtaining any sanction/approval from the higher authorities. The civil

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liability, if any, has to be finally adjudicated by the Court under the relevant provisions contained in Section 154 of the Act (noticed hereinabove). The word whoever appearing in Section 135 of the Act would prima facie mean and denote the person who was found engaged in commission of theft. It cannot be extended to mean the owner or occupier of the premises. Even if it is presumed that the liability to pay the loss sustained by the respondents can be fastened on the owner or occupier of the premises, in my view, the same cannot be said to be an outstanding dues against the owner or the occupier of the premises until and unless the same is finally determined and quantified by the Court where the prosecution is pending in terms of Section 154(4) of the Act.

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The reliance placed by the respondent Company on M/S Chitra Developers Marketing Pvt. Ltd (supra) appears to be inappropriate since the same was rendered in entirely different/distinct factual background.

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The Hon’ble Apex Court in the order enclosed as Annexure-7 having noticed the duty cast on the distribution licensee under Section 43 of the Act, negated the contention of the respondent Company that on account of pendency of criminal case against her for commission of theft of electricity, the

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applicant/appellant/petitioner was not entitled for restoration of electricity. The Hon’ble Apex Court in the said order noted as under in paragraph 6:

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“6. Section 43 of the Electricity Act, 2003, is very clear that it is the duty of every licencee to give supply of electricity to the owner or occupier of any premises within its area. [See Chandu Khamaru v. Nayan Malik Others (2011 12 SCC 314]. In this case, we find that instead of ensuring that electricity is supplied to the occupant of the premises in question in accordance with the provisions of Section 43 of the Electricity Act, 2003, the respondent No. 1 is taking resort to a defence to ensure that electricity is not supplied in accordance with the provisions of the Act. The facts are very clear that there was a meter installed and the supply of electricity was to a registered consumer. If for some reason or the other, the meter is no longer there and the registered consumer is no longer willing for the supply of electricity, the occupier of the premises is entitled as of her own right under Section 43 to supply of electricity and respondent No. 1 should have ensured that such supply was restored to the petitioner after complying with all necessary formalities as provided under the Act and the Rules and Regulations made thereunder.”

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In the case at hand, to repeat, the petitioner No. 1 is not

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cited as an accused in the case. The criminal liability, at best, can be fastened on the person who was found engaged in commission of theft of energy or the registered owner of the electric meter which was allegedly tampered/manually interfered with for extracting electrical energy in illegal/culpable manner. Apart from criminal liability, the Special Court is also required to adjudge and

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fix the civil liability after appreciating the evidence to be led in the said proceeding by the parties. Until and unless such civil liabilities is fixed, the dues on account of such loss suffered by the respondent Company cannot be said to be the dues/outstanding against the petitioner No. 1. In other words, those dues cannot be held to be outstanding against the owner or occupier of those flats now owned/possessed by the petitioner No. 1.

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Taking into account all the facts and circumstances of the case discussed hereinabove, the application is allowed. The respondent Company and its functionaries are directed to grant electric connection to the four flats belonging to the petitioner no. 1 after complying with all necessary formalities as provided under the Act/rules and regulations made thereunder within two weeks from the date of receipt/production of a copy of this order. The petitioner no. 1 will comply with the other necessary formalities, if any, for grant of electric connection to her in those flats.

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Since no relevant details have been furnished with respect to the grievance of the petitioner no. 2 enabling this Court to adjudicate on her claim, this Court would permit the petitioner no. 2 to make a fresh application for grant of electric connection to the flat so claimed/owned by her in the said building/apartment before the Electrical Executive Engineer of the Company

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(respondent No. 3) who shall consider and pass appropriate/reasoned order thereon in accordance with law within two weeks of such filing/presentation. Needless to observe that in the light of the said order, the parties will take appropriate steps.

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There shall be no order as to costs.

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(Kishore Kumar Mandal, J)

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Pankaj/-

Shashi Kala Jha and Anr. v. The Bihar State Power Holding Company Limited and Ors.

Case brief

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Shashi Kala Jha and Anr. v. The Bihar State Power Holding Company Limited and Ors.

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