REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.3370 OF 2007

Maharashtra State Electricity Distribution Co.Ltd.       ….Appellant(s)

VERSUS

The Appellate Authority & Anr.       …Respondent(s)

WITH

Civil  Appeal  Nos.  3377-3381/2007,  3376/2007 and 3371-3375/2007

J U D G M E N T

Abhay Manohar Sapre, J.

1) These  appeals  are  directed  against  the

common final judgment and order dated 04.05.2007

passed by the High Court of Judicature at Bombay,

Nagpur Bench, Nagpur in Writ Petition Nos.5858 of

2005,  2821,  2705,  2706/2006,  6219/2005,

721/2006,  3737/2005,  3935/2005,  1386,  1389,

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1586  &  2060/2006  whereby  the  High  Court

dismissed the writ  petitions filed by the appellant

herein and partly allowed the writ petitions filed by

respondent-Consumer.

2) The  controversy  involved  in  these  appeals  is

short as it would be clear from the facts mentioned

hereinbelow.

3) For  the  sake  of  convenience,  the  facts

pertaining to C.A. No.3370 of 2007 were taken into

account.   Respondent  No.  2  is  running  Oil  Mill

having  cotton  seeds  crushing  activity  at  Akola

(Maharashtra).   They are consumers of  electricity,

which is supplied to them by the State Electricity

Board - the appellant herein (hereinafter referred to

as “the Board”)

4) On  17.03.2003,  the  sleuths  of  the  Board

visited respondent No.2’s factory and replaced Meter

No.356,  installed in the factory with a new Meter

bearing  No.  MSE  04821.   On  02.08.2003,  the

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sleuths again visited the factory and on inspection

found some tampering with the Meter seals. This led

to  making  of  provisional  assessment  by  the

appellant under Section 126 of the Electricity Act,

2003 (for short “the Act”) for the unauthorized use

of  electricity.  The  Board  accordingly  sent  a

provisional  bill  to  respondent  No.2  followed  by

revised  provisional  bill  dated  16.08.2003  for

Rs.21,38,660/-.  

5) Respondent  No.2,  felt  aggrieved,  filed  a  writ

petition and questioned the legality and correctness

of the provisional bill. During the pendency of the

writ petition, the final assessment order was issued

to respondent No.2 on 24.11.2003.   However,  the

High Court quashed and set aside that order and

remanded the matter to the Authority for giving an

opportunity  to  respondent  No.2  while  passing the

final order.  It was done and accordingly final order

dated  29-30.04.2004  demanding  a  sum  of

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Rs.62,52,632/- was passed by the Authority against

respondent No.2.  

6) The  aforesaid  order  was  challenged  by

respondent No.2 under Section 127 of the Act before

the Appellate Authority.  The Appellate Authority by

order  dated  15.04.2005  disposed  of  the  appeal

giving rise to filing of the writ petition by the Board

as also by the consumer (respondent No.2) in the

High Court of Bombay, Nagpur Bench.  The other

similarly situated consumers also filed writ petitions

before the High Court.

7) By  impugned  common  judgment,  the  High

Court dismissed the writ petitions filed by the Board

whereas partly allowed the writ petitions filed by the

consumers.  While setting aside the Appellate Order,

the High Court remanded the case to the Assessing

Authority and directed the parties to abide by the

provisions of Section 126/127 of the Act.  

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8) It  is  against  this  judgment,  the  Board alone

has felt aggrieved and filed these appeals by way of

special leave in this Court.  

9) Heard  Mr.  A.S.  Bhasme,  learned  counsel  for

the  appellant  and Ms.  V.  Mohana,  learned senior

counsel for the respondents.

10) Having heard learned counsel  for  the parties

and on perusal of the record of the case, we do not

consider it necessary to examine the legal questions

which,  according  to  the  learned  counsel  for  the

Board, arise in these appeals and leave them open

for being decided in appropriate case, if they really

arise and found necessary to decide the lis.

11) Leave  aside  the  legal  questions,  we  find

otherwise  no  reason to  interfere  in  the  impugned

judgment of the High Court which, in our opinion,

is sustainable on facts.

12) Suffice it to say, the High Court while allowing

the consumers’ writ petitions and, in consequence,

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setting aside of  the Appellate Order passed under

Section 127 of  the Act  by the Appellate Authority

rightly  remanded  the  case  to  the  Assessing

Authority  for making provisional assessment under

Section 126 of  the Act  and then to take recourse

under  Section  127  of  the  Act  for  filing  appeal,  if

need arises.  We do not find any reason to disturb

these  directions  which,  in  our  opinion,  are  in

conformity with the scheme of the Act.

13) So far as the applicability of the provisions of

the new Electricity Act, 2003 to the case at hand is

concerned, though some doubts were raised about

its  applicability  but,  in  our  opinion,  it  has  no

substance. In our opinion, the Act 2003 does apply

to the facts of this case because the Act 2003 came

into force on 10.06.2003 whereas the inspection of

the  Meter  installed  in  respondent  No.2's  factory

premises was made by the sleuths of the Board on

02.08.2003.  

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14) It is, therefore, clear that the Board made an

inspection of the Meter after the Act 2003 came into

force.  The cause of action, therefore, accrued to the

Board  after  the  Act  2003  came  into  force  and,

therefore, the case of respondent No.2 was required

to be dealt with in accordance with the procedure

prescribed under the Act of 2003.

15) Since  the  action  was  taken  by  the  Board

against respondent No.2 (consumer) under Section

126 of the Act by raising the provisional/final bill

and,  therefore,  respondent  No.2  was  well  within

their  right  to file  an appeal  against  such demand

under Section 127 of the Act before the Appellate

Authority.  

16) We cannot, therefore, accept the submission of

the learned counsel for the Board that respondent

No.2 had no right of appeal under Section 127 of

the Act to challenge the order/demand raised under

Section 126 of the Act.  In other words, respondent

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No.2 had right of appeal under Section 127 of the

Act to challenge the order passed under Section 126

of the Act.

17) Indeed, once the Act is held applicable to the

controversy in question, a fortiori, all the provisions

of  the  Act  would  then  be  applicable  to  the  case

which  would  obviously  include  a  provision  which

provides a right of appeal to the Appellate Authority.

18) In the scheme of the Act, we find that Section

126 of the Act deals with assessment of electricity

charges  payable  by  such  person  (consumer)  for

unauthorized use of electricity whereas Section 135

deals with the cases of theft of electricity.  

19) In  other  words,  once  the  Board  detects  the

case  of  unauthorized  use  of  electricity  by  any

consumer, in such event, the Board gets a cause of

action  to  proceed  against  such  person/consumer

under Section 126 or/and 135 under the Act. Both

Sections  126  and  135  are  independent  in  all

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respects and provide different kind of liability and

consequences.  One  involves  monetary  liability

(Section  126)  whereas  the  other  involves  criminal

liability (Section 135).  

20) The  Board  is,  therefore,  at  liberty  to  take

recourse  to  the  provisions  of  Section  126 or/and

135 of  the  Act  against  such person/consumer  as

provided therein in accordance with law.   

21) In these circumstances, if  the Board initiates

any action against any person/consumer, then such

action  must  be  brought  to  its  logical  end  in

accordance with the procedure prescribed under the

Act  after  affording  an  opportunity  to  such

person/consumer.  

22) In view of the foregoing discussion and subject

to the observations, we find no merit in the appeals,

which fail and are accordingly dismissed.

23) As  a  consequence  to  the  dismissal  of  the

appeals, the authorities are directed to comply with

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the  directions  of  the  High  Court  and  pass

consequential order under Section 126 of the Act in

accordance  with  law  in  the  case  of  consumers

(respondents) within three months from the date of

this order.      

                  ………...................................J.

[R.K. AGRAWAL]             

                         …...……..................................J.

        [ABHAY MANOHAR SAPRE]

New Delhi; February 15, 2018  

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