Madhya Pradesh High Court
Smt. Ram Kunwar Chouhan vs Chief Managing Director on 30 June, 2025
Author: Vivek Rusia
Bench: Vivek Rusia
NEUTRAL CITATION NO. 2025:MPHC-IND:15984
-1- WA-1598-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE BINOD KUMAR DWIVEDI
WRIT APPEAL No. 1598 of 2025
SMT. RAM KUNWAR CHOUHAN
Versus
CHIEF MANAGING DIRECTOR AND OTHERS
Appearance:
Shri Dilip Singh Panwar - Advocate for the appellant.
Shri Bhavishya Sharma - Advocate for the respondent No.1.
Reserved on : 23.06.2025
Delivered on : 30.06.2025
ORDER
Per: Justice Vivek Rusia
The appellant/petitioner has filed this writ appeal against the order
dated 22.04.2025, whereby the writ petition has been dismissed. The
writ petitioner is an owner of the stone crusher as well as a licensee of
the respondent. On 27.02.2025 a vigilance team of the respondent
company visited the place of stone crusher site and found two extra
cables connected directly from the low tension bushing of the 20 KVA
transformer hence, found the case of ‘Theft’ under Section 135 of the
Electricity Act, 2003.
02. The writ petitioner was served with the panchnama with
provisional assessment notice/order on 27.02.2023 for demanding
Rs.55,67,259/- and disconnection of the supply under sub-section 1(A)
of Section 135 of the Electricity Act, 2003. The writ petitioner submitted
an objection challenging the panchnama as well as the provisional
assessment order. However, the writ petitioner as per direction dated
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SHUKLA
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20.03.2023 has deposited 50% of the provisional assessment amount i.e.
Rs.20,33,637/- and sought restoration of supply. The writ petitioner has
also submitted an undertaking with the respondents for the deposit of the
remaining amount.
03. According to the writ petitioner, this matter was sent to the Zonal
Level Committee, but till date the same has not been decided and no
criminal complaint has been filed till date. The petitioner has
approached this Court by way of a writ petition seeking quashment of
the provisional assessment order dated 27.02.2023 as well as the
panchnama and return of 50% amount of Rs.20,33,637/- with a
direction to decide the pending representation.
04. The respondents have appeared and filed the reply by submitting
that the alleged act of the writ petitioner constituted theft of deposit
under Section 135 of the Electricity Act, 2003. The assessment of
Rs.55,67,259/- was raised for the energy abstracted through the theft as
per Chapter 10 of the Madhya Pradesh Electricity Supply Code, 2021,
and the complaint under Section 135 of the Electricity Act has been filed
before a Special Court.
05. It is further submitted that the petitioner had approached by way
of complaint before the District Consumer Redressal Forum which had
been dismissed on 11.01.2024. Thereafter, the petitioner filed the civil
suit which had also been returned on 22.03.2025 by the First Civil
Judge, Junior Division, Rajgarh. The complaint has been filed under
Section 135 of the Electricity Act, 2003 and read with Sections 140 and
152 for punishment as well as recovery of the remaining amount of
Rs.35,33,622/- is pending before the Special Court. Hence, prayed for
the dismissal of the writ petition.
06. The Writ Court has dismissed the writ petition by observing that
the provisions under Sections 126 and 135 of the Electricity Act, 2003
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SHUKLA
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operate in two different spheres thus, no interference is liable to be
called for. Hence, this writ appeal before this Court.
Submissions of the appellant:
07. Learned counsel for the appellant submits that the respondents
have wrongly issued the provisional assessment under Section 126 of
the Electricity Act, 2003 because it is a case of theft as per the report of
the panchnama. The Hon’ble Apex Court in case of Executive Engineer,
Southern Electricity Supply Company of Orissa Limited (Southco) and
another v/s Sri Seetaram Rice Mill, (2012) 2 Supreme Court Cases 108
has held that consumption of electricity in excess of sanction load or
involving chain of use or category of customer or involving pilferage
not amounting to theft and covered under the expression “unauthorized
use of electricity” under Section 126 explanation-B of the Electricity
Act, 2003. The provisions of Section 126 r/w Section 127 of the
Electricity Act, 2003 are code in themselves. There is a provision for the
initiation of proceedings by conducting an inspection to recover the loss
and the right of appeal before the appellate authority. The Hon’ble Apex
Court has also held that Section 135 of the Electricity Act, 2003 deals
with the offence and theft of electricity, it falls within the criminal
jurisprudence and the mens rea is the consequence of the said offence
whereas Section 126 of the Electricity Act, 2003 falls under civil law
and does not involve mens rea, therefore, the provisional assessment
notice is liable to be quashed.
Submissions of the respondent:
08. Learned counsel appearing for the respondent refutes that the
provisional assessment notice was issued under Section 10 of M.P.
Electricity Supply Code not under Section 126 of the Electricity Act,
2003. The complaint has been filed against the petitioner before the
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SHUKLA
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competent Court which can examine the civil liability under Section
154(6) of the Electricity Act, 2003 along with criminal conduct against
the petitioner. Hence, no interference is liable to be called for and the
petition is liable to be dismissed.
Appreciations and Conclusion:
09. In the case of Executive Engineer, Southern Electricity Supply
Company of Orissa Limited (Southco) and another (supra), the Apex
Court has held that wherever the consumer commits a breach of the
terms of the agreement, regulation, provision of the act by consuming
electricity in excess of the sanction connected load, such consumption
would be on within the ambit of the scope of Section 126 of the
Electricity Act, 2003. Therefore, on the basis of the type of irregularity
recorded in the panchnama, prima facie, it is a case of electricity theft
for which the petitioner is also admitting that it is a theft however,
without affecting his right of defence in a criminal trial. According to
the petitioner also, since it is a case of electricity theft under Section 135
not under section 126 the Electricity Act. Hence, this provisional
assessment notice has wrongly been issued.
10. In the impugned provisional assessment order, it is mentioned that
it is a case of Section 135 of the Electricity Act, 2003 it nowhere says
that it is a notice of Section 126 of the Electricity Act, 2003. The only
contention of the petitioner is that the respondents have wrongly
assessed the provisional liability under Section 135 of the Electricity
Act, 2003 which is not permissible. The aforesaid contention is not
liable to be accepted. Section 135 of the Electricity Act, 2003 is
reproduced below:
135. Theft of electricity. -(1) Whoever, dishonestly,-
(a) taps, makes or causes to be made any connection with
overhead, underground or under water lines or cables, or serviceSignature Not Verified
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wires, or service facilities of a licensee or supplier, as the case
may be, or
(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
(c) damages or destroys an electric meter, apparatus, equipment,
or wire or causes or allows any of them to be so damaged or
destroyed as to interfere with the proper or accurate metering of
electricity; or
(d) uses electricity through a tampered meter; or
(e) uses electricity for the purpose other than for which the usage
of electricity was authorised,
so as to abstract or consume or use electricity shall be punishable
with imprisonment for a term which may extend to three years or
with fine or with both: Provided that in a case where the load
abstracted, consumed, or used or attempted abstraction or
attempted consumption or attempted use-
(i) does not exceed 10 kilowatt, the fine imposed on first
conviction shall not be less than three times the financial gain on
account of such theft of electricity and in the event of second or
subsequent conviction the fine imposed shall not be less than six
times the financial gain on account of such theft of electricity;
(ii) exceeds 10 Kilowatts, the fine imposed on the first conviction
shall not be less than three times the financial gain on account of
such theft of electricity and in the event of a second or subsequent
conviction, the sentence shall be imprisonment for a term not less
than six months, but which may extend to five years and with fine
not less than six times the financial gain on account of such theft
of electricity:
Provided further that in the event of a second and
subsequent conviction of a person where the load abstracted,
consumed, or used or attempted abstraction or attempted
consumption or attempted use exceeds 10 kilowatts, such person
shall also be debarred from getting any supply of electricity for a
period which shall not be less than three months but may extend
to two years and shall also be debarred from getting supply of
electricity for that period from any other source or generating
station:
Provided also that if it is provided that any artificial means
or means not authorised by the Board or licensee or supplier, as
the case may be, exist for the abstraction, consumption or use of
electricity by the consumer, it shall be presumed, until the
contrary is proved, that any abstraction, consumption or use of
electricity has been dishonestly caused by such consumer.
(1A) Without prejudice to the provisions of this Act, the licensee
or supplier, as the case may be, may, upon detection of such theftSignature Not Verified
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SHUKLA
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of electricity, immediately disconnect the supply of electricity:
Provided that only such officer of the licensee or supplier, as
authorised for the purpose by the Appropriate Commission or any
other officer of the licensee or supplier, as the case may be, of the
rank higher than the rank so authorized shall disconnect the supply
line of electricity:
Provided further that such officer of the licensee or
supplier, as the case may be, shall lodge a complaint in writing
relating to the commission of such offence in the police station
having jurisdiction within twenty-four hours from the time of such
disconnect:
Provided also that the licensee or supplier, as the case may
be, on deposit or payment of the assessed amount or electricity
charges in accordance with the provisions of this Act, shall,
without prejudice to the obligation to lodge the complaint as
referred to in the second proviso to this clause., restore the supply
line of electricity within forty-eight hours of such deposit or
payment;]
(2) Any officer of the licensee or supplier as the case may be,
authorised) in this behalf, the State Government may-
(a) enter, inspect, break open and search any place or premises in
which he has reason to believe that electricity [has been or is
being), used unauthorisedly;
(b) search, seize and remove all such devices, instruments, wires
and any other facilitator or article which has been or is being],
used for unauthorised use of electricity;
(c) examine or seize any books of account or documents which in
his opinion shall be useful for or relevant to, any proceedings in
respect of the offence under sub-section (1) and allow the person
from whose custody such books of account or documents are
seized to make copies thereof or take extracts therefrom in his
presence.
(3) The occupant of the place of search or any person on his
behalf shall remain present during the search and a list of all
things seized in the course of such search shall be prepared and
delivered to such occupant or person who shall sign the list:
Provided that no inspection, search and seizure of any domestic
places or domestic premises shall be carried out between sunset
and sunrise except in the presence of an adult male member
occupying such premises.
(4) The provisions of the Code of Criminal Procedure, 1973 (2 of
1974), relating to search and seizure shall apply, as far as may be,
to searches and seizure under this Act.
(emphasis supplied)
11. In case of electricity theft, as per proviso to sub-section (1) of
Section 135 of the Electricity Act, 2003, there is a provision for
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imposition of fine on first and second conviction under this proviso.
There has to be a calculation of financial gain by the consumer on
account of such theft of electricity. The second proviso to Section 1(A)
says that the licensee or supplier, as the case may be, on deposit of
payment of the assessed amount or electricity charges in accordance
with the provisions of the act shall without prejudice to the obligation to
lodge the complaint as referred, restore the supply line of electricity
within 48 hours of such deposit on payment. Therefore, even for
restoration of the electricity supply, there has to be a calculation of the
amount of electricity charges in accordance with the provisions of the
act so that the licensee can deposit the same in order to get the supply
restored.
12. The respondents while issuing notice under Section 135 have
supplied the provisional assessment calculation based on energy
consumed due to theft, which cannot said to be a contravention of
Section 135. In Section 154(6) of the Electricity Act, 2003, the Special
Court is competent to determine civil liabilities as well as in complaints
filed under Section 135 of the Electricity Act, 2003. In the case at hand,
the respondents have demanded a provisional assessment amount from
the petitioner. The petitioner who is disputing the provision assessment
can challenge before the Special Court and the Special Court shall
decide as per the explanation appended to sub-section (6) of Section 54
of the Electricity Act, 2003. For this Section 154 (6) of the Electricity
Act, 2003, civil liability means loss or damage incurred by the
respondents on the licensee or a concerned person, as the case may be,
due to the commission of the offence under Section 135 to 140 of the
Electricity Act, 2003.
13. The respondents have not issued provisional assessment notice
under Section 126 of the Electricity Act, 2003. The provisional
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assessment of liability in terms of money in case of theft is permissible
under Section 135 of the Electricity Act, 2003 as discussed above.
Hence, no case for interference is made out.
14. Learned counsel appearing on behalf of the respondents submits
that the petitioner has deposited 50% amount.
15. Therefore, if the electricity supply connection is not restored then
the same be restored. The remaining recovery of the amount shall be
subject to the final outcome of Section 135 of the Electricity Act, 2003.
16. With the aforesaid observation, this Writ Appeal is dismissed.
(VIVEK RUSIA) (BINOD KUMAR DWIVEDI)
JUDGE JUDGE
Divyansh
Signature Not Verified
Signed by: DIVYANSH
SHUKLA
Signing time: 30-06-2025
17:47:03