IN THE HIGH COURT OF KARNATAKA, CIRCUIT BENCH AT GULBARGA

DATED THIS THE 22ND DAY OF JANUARY 2013

BEFORE

THE HON'BLE MR.JUSTICE N.KUMAR

WRIT PETITION No.85853 OF 2012(GM-KEB)

BETWEEN:

CHINNAPPA S/O ANTHONI THOMAS AGED MAJOR, OCC: BUSINESS R/O NEAR BASAPPAN GUDI BALRAM CHOWK, WADI TQ. CHITTAPUR, DIST. GULBARGA ... PETITIONER

(BY SRI SHIVAKUMAR MALIPATIL, ADVOCATE)

AND:

• 1. GESCOM THROUGH ITS EXECUTIVE ENGINEER O & M DIVISION GULBARGA – 585 102
• 2. ASST. EXECUTIVE ENGINEER VIGILENCE SQUAD, GESCOM GULBARGA – 585 102
• 3. SECTION OFFICER GESCOM, SHAHABAD TQ. CHITTAPUR DIST.GULBARGA – 585 102

... RESPONDENTS

(BY SRI RAVINDRA REDDY, ADVOCATE FOR R1 &R3)

THIS WRIT PETITION FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO AN ORDER OF CERTIORARI THEREBY QUASHING G¯É èÃPÀ £ÀA.JEE/«E/QE/«PÀ¦ü/20 – 20 PASSED BY RESPONDENT No.2 THE ANNEXURE-A AND ETC.

THIS PETITION COMING ON FOR FURTHER ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:

ORDER

This writ petition is filed challenging Annexure-A issued by the second respondent demanding a sum of Rs.3,31,078/- as back billing charges of theft of electricity.

2. Petitioner is running a stone polishing and cutting machine. The second respondent has initiated proceedings against the petitioner for committing theft of electricity by tampering the meter. They have also filed a complaint before GESCOM Vigilance Police Station, Gulbarga in Crime No.3603/2011 for the offences punishable under Section 135 of Indian Electricity Act, 2003 (for short, hereinafter referred to as 'the Act') r/w. Section 379 of Indian Penal Code.

3. The second respondent has issued back billing charges showing loss of energy of Rs.3,31,078/-. The grievance of the petitioner is that the said bill is issued in pursuance of condition 42.6 of the Conditions of Supply of Electricity and Distribution framed under the Indian Electricity Act, 2003. Before preparing the said bill, as required under the said regulations, notice is not issued. Therefore, said Annexure-A is illegal and requires to be set aside. The second respondent's Head Office has issued Circular, which is contrary to law and therefore, no reliance could be placed on the said circular and therefore, he submits that the back billing charges is to be quashed on the ground of violation of principles of natural justice.

4. The circular issued by the Head Office of the second respondent dated 29.08.2007 only clarifies the legal position with reference to the statutory provisions as its officers were not properly giving effect to the Act.

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Section 126 of the Act deals with the assessment. If on an inspection, the Assessing Officer comes to the conclusion that a person is indulging in unauthorized use of electricity, after inspection of the equipments, gadgets, machines, devices found connected or used, it provides for back billing. However, Section 135 of the Act deals with theft of Electricity. All that Circular says is, if it is a case of theft, it falls under Section 135 of the Act and if it is a case of unauthorized use of electricity, it falls under Section 126 of the Act. They have also made it very clear in that circular, when the statute provides for meeting a particular contingency and if the conditions of supply of electricity runs counter to the said statute, these conditions have to yield to the statutory provisions. Therefore, in such cases, it is not necessary to look to the conditions of supply of electricity. Now Section 135 is attracted. The person aggrieved has been provided a statutory remedy under Section 154 of the Act. He has been given a right to

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challenge that back billing by approaching the Special Court, which is now vested with the power to decide even the civil liability. All the grounds, which could be urged challenging the said demand would be considered by the Special Court. In that context, after a theft of electricity is detected and the loss of electricity is assessed, the obligation to issue notice to the person by making a provisional assessment is not necessary. Therefore, Annexure-A, which is issued is strictly in accordance with Section 135 of the Act and the aggrieved person has been given the alternative and efficacious right of statutory appeal under Section 154(5) to the Special Court. Therefore, I do not see any invalidity in Annexure-A, which calls for interference by this Court. Hence, I do not see any merit in the petition. Accordingly, the writ petition is dismissed.

However, liberty is given to the petitioner to approach the Special Court. If he approaches the Special Court within 30 days from today, the Special

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Court shall entertain the appeal without going into the question of limitation and hear the appeal on merits and in accordance with law.

Sd/- JUDGE

NB*/sdu