Holding

The Supreme Court held that the amendment's effect on maintainability must be examined and, in line with prior judgments, notice and reference to an electrical inspector are not required in theft cases, setting aside the High Court order and remitting the case.

Summary

The Haryana Vidyut Parishan Nigam Ltd. demanded a penalty of Rs. 11,37,222 from Super Star Grit Udyog for alleged theft of electricity. The consumer filed a suit for declaration and a permanent injunction, while the board raised a preliminary objection that the suit was not maintainable under the Electricity (Haryana Amendment) Act, 1998, which amended Section 24 of the Electricity Act, 1910. The trial court overruled the objection, deeming the demand memo illegal; the first appellate court and the High Court dismissed the board's appeals, holding that notice and reference to an electrical inspector were required. The Supreme Court held that the lower courts failed to consider the effect of the amendment and that, according to earlier Supreme Court decisions, notice and inspector reference are not required in theft cases. Consequently, the Court set aside the High Court judgment and remitted the matter for a proper determination of the suit's maintainability, without expressing any view on the merits.

Issues considered

Whether a suit for declaration and injunction against an electricity board is maintainable under the Electricity (Haryana Amendment) Act, 1998 which adds a proviso to Section 24 of the Electricity Act, 1910.
Whether notice to the board and reference to an electrical inspector are required in cases of alleged theft of electricity.

Legislation cited

Code of Civil Procedure, 1908s. 100
Electricity Act, 1910s. 24, s. 24A(i)(3)

Subjects

electricity theftpenaltymaintainabilityelectricity amendmentinjunctionconsumer rightscivil procedure

Judgment

[2008] 15 S.C.R. 1045

~-
HARYANA VIDYUT PARSARAN NIGAM LTD. & ORS. A
II.
MIS. SUPER STAR GRIT UDYOG
(Civil Appeal No .. 6618 of 2008)
NOVEMBER 11, 2008
B
[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM
SHARMA, JJ.]

Electricity Act, 1910 - s.24 and 24A(i)(3) - Theft of
electricity - Electricity Board demanded penalty from c
consumer - Consumer filed suit for declaration with_
consequential relief of mandatory and permanent injunction
- Preliminary objection by Electricity Board as regards
maintainability of the suit in view of Haryana Amendment in
the. Electricity Act - Trial Court over-ruled the objection and D
-(
held the demand memo as illegal and void "- First appeal as
well as second appeal dismissed - Held: Though all through,
the Electricity Board was .challenging maintainability of the
suit, the Courts -below did not. consider the effect of the said
·amendment in the Electricity Act - Also High Court did hot E
consider the applicability and relevance of two relevant
decisions of this Court - Hence, matter remitted _back to High
Court - Electricity (Haryana Amf!ndment) Act, 1998.
-~-<OI
Appellant-Electricity Beard demanded penalty from
Respondent•consumer for committing theft of electricify. F
Respondent challenged the said demand and filed suit
for declaration with consequential relief of mandatory and
permanent injunction. Appellants raised preliminary
objection that the suit was not maintainable in view of the
Electricity (Haryana Amendment) Act, 1998whereby s.24 G
of the Electricity Act, 1910 was amended.
_,(

The Trial Court over-ruled the preliminary objection
and held that the demand memo raised was illegal, null
1045 H
1046 SUPREME COURT REPORTS [2008] 15 S.C.R.

A and void. Appeal thereagainst was dismissed by the First
Appellate Court which held that notice was required
before any action was taken and further that reference to
the electrical inspector was necessary; and in absence
of evidence of some technical person regarding
B commission of theft, the plea relating to theft could not
be gone into. Appellants filed second appeal which was
dismissed by the High Court. Hence the present appeal.

Allowing the appeal and remitting the matter to High
C Court, the Court
HELD: Though all through, the ~ppellants have been
taking the stand about the maintainability of the suit, the
effect o_f the said amendment in the Electricity Act, 1910
was not considered either by the trial court or by the first
D appellate court or the High Court. The applicability and
relevance of decisions of this Court, wherein it was held
that in case of theft, notice was not required and
reference to the electrical inspector was not necessary,
were not considered by the High Court. Thus, the order
E of High Court is set aside and matter is remitted back to
High Court for considering issues relating to
maintainability of the suit filed by Respondent. [Paras 5,
7 and 8) (1048-G; 1050-C-E-F]

M.P. Electricity Board, Jaba/pur v. H1:3rsh -Wood Products >---~
F (1996) 4 sec 522 and Sub-Divisional Officer (P) UHBVNL
v. Dharam Pal (2006) 12 SCC 222, referred to~
Case Law Reference:
(1996) 4 sec 522 referred to Para 7
G
(200&) 12 sec 222 referred to Para 7
CIVIL APP ELLATE JURISDICTION : Civil Appeal No.
6618 of 2008.

H From the final Judgment and Order dated 7.3.2005 of the
HARYANA VIDYUT PARSARAN NIGAM LTD. & ORS. v. 1047
SUPER STAR GRIT UDYOG

High Court of Punjab and Haryana at Chandigarh in Regular A
Second Appeal No. 931 of 2005 (O&M).

Neeraj Kumar Jain, Sanjay Singh, Sandeep Chaturvedi
and Ugra Shankar Prasad for the Appellants.

Manoj Swarup, Akshat Goel, Uday Gupta and Kamal B
Mohan Gupta, for the Respondent.

The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J. 1. Leave granted. c
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').
' D
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 E
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
. --1
and isolating the bolt from the CT Chamber, it was noticed that
there was disconnection of earth/neutral wire which caused the F
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 G
consequential relief of mandatory and permanent injunction
.A
before the learned Civil Judge (Junior Division), Gurgaon. The
appellants filed written statement, inter-alla, raising preliminary
objections as regards the maintainability of the Suit. It is pointed
out that the same was not maintainable in view of Indian H
1048 SUPREME COURT REPORTS [2008] 15 S.C.R.

A Electricity (Haryana Amendment) Act, .1998 (in short the
'Amend merit Act') i.e. Haryana Act No.4 of 1998., Replication
to th_e said written 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
·s ~efore 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
·c 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
b theft is established, the appellants are free to proceed to check
)---
' I
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
E 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
F submitted that the courts 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
G 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:

H In sub-section ( 1) of Section 24 of the Indian Electricity Act,
HARYANA VIDYUT PARSARAN NIGAM LTD. & ORS. v. 1049·
SUPER STAR GRIT UDYOG [DR. ARIJIT PASAYAT, J.]
), .
19·10, the following proviso shall be added, namely:- A

"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 - B
(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 c
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 energy which read as follows:
D
"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:- E
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 F
by the Board; or

c) By tampering with such meter or its body seals, or an
apparatus or circt. .• ;

d) By manipulating such meter indicator or apparatus G
....(
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 H
'.,
1050 SUPREME COURT REPORTS [2ooa11s s.c.R'.

~ "..
A it from fully and/or correctly registering the energy ~

consumed; or l
'
f) by manipulating change of phase of the electric supply
'lines; or 1--

'
B g) from a disconnected connection; or

h) by any other means whatsoever interfering with the said
t
I

-1...
meter or Boar~'s supply system where such interference
is an offence under Section 44 of the Indian Electricity Act, '
c 1910." I
J-
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 r
a decision of this Court in M.P. Electricity Board, Jabalpur v.
D Harsh Wood Products (1996 (4) SCC 522) 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 . [
E 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
F 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.
G
B.B.B. Appeal allowed.
)...