Apex Law Journal
Apex Law Journal
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Editor

Neha Goel, Advocate

Advisory Board

S.C. Khunger, Advocate

Rohit Bansal, Advocate

Varinder Singh Kanwar, Advocate

Hittan Nehra, Advocate

Judgments on Electricity Act, 2003

Saturday, November 12, 2011
Electricity Act, 2003

Electricity Act, 2003 — Section 126 — Wherever the consumer consumes electricity in excess of the maximum of the connected load, would the provisions of Section 126 of the 2003 Act be attracted on its true scope and interpretation? — Held, yes.

 
Electricity Act, 2003

Electricity Act, 2003 — Section 126 — Wherever the consumer commits the breach of the terms of the Agreement, Regulations and the provisions of the Act by consuming electricity in excess of the sanctioned and connected load, such consumer would be ‘in blame and under liability’ within the ambit and scope of Section 126 of the 2003 Act.

 
Electricity Act, 2003

Electricity Act, 2003 — Section 126 — Expression ‘unauthorized use of electricity means’ — Held, the expression ‘unauthorized use of electricity means’ as appearing in Section 126 of the 2003 Act is an expression of wider connotation and has to be construed purposively in contrast to contextual interpretation while keeping in mind the object and purpose of the Act — The cases of excess load consumption than the connected load inter alia would fall under Explanation (b)(iv) to Section 126 of the 2003 Act, besides it being in violation of Regulations 82 and 106 of the Regulations and terms of the Agreement.

 
Electricity Act, 2003

Electricity Act, 2003 — Section 127 — In view of the language of Section 127 of the 2003 Act, only a final order of assessment passed under Section 126(3) is an order appealable under Section 127 and a notice-cum-provisional assessment made under Section 126(2) is not appealable.

 
Electricity Act, 2003

Electricity Act, 2003 — Section 126 — Cases of excess load of consumption — Held,  the cases of excess load of consumption would be squarely covered under Explanation (b)(iv) of Section 126 of - the 2003 Act. Once this factor is established, then the assessing officer has to pass the final order of assessment in terms of Sections 126(3) to 126(6) of the 2003 Act.

 
Electricity Act, 2003

Electricity Act, 2003 — Section 126, Explanation (b)(iv) — Expression  ‘unauthorised use of electricity’ — Under Explanation (b)(iv), ‘unauthorised use of electricity’ means if the electricity was used for a purpose other than for which the usage of electricity was authorised. 

 
Electricity Act, 2003

Electricity Act, 2003 — Section 126 — Intention is not the foundation for invoking powers of the competent authority and passing of an order of assessment under Section 126 of the 2003 Act.

 
Electricity Act, 2003

Electricity Act, 2003 — Section 126 — The provisions of Section 126 of the 2003 Act should be read with other provisions, the regulations in force and they should be so interpreted as to achieve the aim of workability of the enactment as a whole while giving it a purposive interpretation in preference to textual interpretation.

 
Electricity Act, 2003

Electricity Act, 2003 — Section 126 and Section 135 — The provisions of Section 126 of the 2003 Act are selfexplanatory, they are intended to cover situations other than the situations specifically covered under Section 135 of the 2003 Act.

 
Electricity Act, 2003

Electricity Act, 2003 — Section 135 — Imposition of fine — The fine which may be imposed under Section 135 of the 2003 Act is directly proportional to the number of convictions and is also dependent on the extent of load abstracted.

 
Electricity Act, 2003

Electricity Act, 2003 — Section 126 — Provisions of Section 126 do not attract the principles of Criminal Jurisprudence including mens rea.

 
Electricity Act, 2003

Electricity Act, 2003 — Section 135 — ‘Dishonesty’ - is a state of mind which has to be shown to exist before a person can be punished under the provisions of Section 135 — Indian Penal Code, 1860, Section 24.

 
Electricity Act, 2003

Electricity Act, 2003 — Section 126 and Section 135 — Difference between — Held, Section 126 covers cases of malpractices and unauthorized use of electricity. It does not speak of any criminal intendment and is primarily an action and remedy available under the civil law. It does not have features or elements which are traceable to the criminal concept of mens rea — Whereas Section 135 deals with cases where there is dishonest abstraction of electricity by any of the methods enlisted under Section 135 of the 2003 Act. It squarely falls within the dimensions of Criminal Jurisprudence and mens rea is one of the relevant factor to find out whether provisions of Section 135 are attracted or not in a given case.

 
Electricity Act, 2003

Electricity Act, 2003 — Sections 126 and 127 — Whether issuance of a notice or a provisional order of assessment made by the assessing officer in terms of sub-section (1) to sub-section (3) of Section 126 is appealable under Section 127 ? — Held, no — Remedy for the aggrieved party in such a case is to file objections as contemplated under Section 126(3) of the 2003 Act.

 
Wednesday, September 21, 2011
Electricity Act, 2003

Electricity Act, 2003 — Section 42(1) and Section 43(1) — A distribution licensee has a statutory duty to supply electricity to an owner or occupier of any premises located in the area of supply of electricity of the distribution licensee, if such owner or occupier of the premises applies for it, and correspondingly every owner or occupier of any premises has a statutory right to apply for and obtain such electric supply from the distribution licensee.

 
Electricity Act, 2003

Electricity Act, 2003 — Sections 42(1), 43(1) r/w Section 67(2) — Distribution licensee, whether could supply electricity to the house of the appellant through the disputed land? — Held, yes — Appellant cannot be denied supply of electricity to his on this ground — Distribution licensee directed to find out whether there is any other way in which electric line can be drawn for supply of electricity to the house of the appellant, other than the disputed passage — If there is no other way to supply electricity to the house of the appellant, the distribution licensee will follow the provisions of sub-section (2) of Section 67 of the Electricity Act, 2003 for carrying out the work for supply of electricity to the house of the appellant — Order of the learned Single Judge as well as the impugned order of the Division Bench set aside — Appeal allowed.

 
Wednesday, April 28, 2010
Electricity Act, 2003

Electricity Act, 2003 — Section 178(1) read with Section 178(2)(ze) — Power of Central Commission to make a regulation on any residuary item under Section 178(1) read with Section 178(2)(ze) — Held, applying the principle of “generality versus enumeration”, it would be open to the Central Commission to make a regulation on any residuary item under Section 178(1) read with Section 178(2)(ze).

 
Electricity Act, 2003

Electricity Act, 2003 — Sections 111 and 178 — Central Electricity Regulatory Commission (Fixation of Trading Margin) Regulations, 2006 — Whether the Appellate Tribunal constituted under the Electricity Act, 2003 has jurisdiction under Section 111 to examine the validity of Central Electricity Regulatory Commission (Fixation of Trading Margin) Regulations, 2006 framed in exercise of power conferred under Section 178 of the 2003 Act? — Held,  no — The Appellate Tribunal for Electricity has no jurisdiction to decide the validity of the Regulations framed by the Central Electricity Regulatory Commission under Section 178 of the Electricity Act, 2003 — The validity of the Regulations may, however, be challenged by seeking judicial review under Article 226 of the Constitution of India — Constitution of India, Article 227.

 
Electricity Act, 2003

Electricity Act, 2003 — Section 121 — Whether Parliament has conferred power of judicial review on the Appellate Tribunal for Electricity under Section 121 of the 2003 Act? — Held, no — The words “orders”, “instructions” or “directions” in Section 121 do not confer power of judicial review in the Appellate Tribunal for Electricity.   

 
Electricity Act, 2003

Electricity Act, 2003 — Sections 121 and 178 — Central Electricity Regulatory Commission (Fixation of Trading Margin) Regulations, 2006 — In the present 2003 Act, the power of judicial review of the validity of the Regulations made under Section 178 is not conferred on the Appellate Tribunal for Electricity.

 
Electricity Act, 2003

Electricity Act, 2003 — Section 178 — Whether capping of trading margins could be done by the CERC (“Central Commission”) by making a Regulation in that regard under Section 178 of the 2003 Act? — Held, yes.

 
Electricity Act, 2003

Electricity Act, 2003 — Sections 178 and 79(1) — Held, in the hierarchy of regulatory powers and functions under the 2003 Act, Section 178, which deals with making of regulations by the Central Commission, under the authority of subordinate legislation, is wider than Section 79(1) of the 2003 Act, which enumerates the regulatory functions of the Central Commission, in specified areas, to be discharged by Orders (decisions).

 
Electricity Act, 2003

Electricity Act, 2003 — Section 178 — A regulation under Section 178, as a part of regulatory framework, intervenes and even overrides the existing contracts between the regulated entities inasmuch as it casts a statutory obligation on the regulated entities to align their existing and future contracts with the said regulations.

 
Electricity Act, 2003

Electricity Act, 2003 — Sections 178 and 111 — A regulation under Section 178 is made under the authority of delegated legislation and consequently its validity can be tested only in judicial review proceedings before the courts and not by way of appeal before the Appellate Tribunal for Electricity under Section 111 of the said Act.

 
Electricity Act, 2003

Electricity Act, 2003 — Sections 178 and 111 — If a dispute arises in adjudication on interpretation of a regulation made under Section 178, an appeal would certainly lie before the Appellate Tribunal under Section 111, however, no appeal to the Appellate Tribunal shall lie on the validity of a regulation made under Section 178.

 
Electricity Act, 2003

Electricity Act, 2003 — Term “tariff” — Held, the term “tariff” is not defined in the 2003 Act — The term “tariff” includes within its ambit not only the fixation of rates but also the rules and regulations relating to it — If one reads Section 61 with Section 62 of the 2003 Act, it becomes clear that the Appropriate Commission shall determine the actual tariff in accordance with the provisions of the Act, including the terms and conditions which may be specified by the Appropriate Commission under Section 61 of the said Act. 

 
Electricity Act, 2003

Electricity Act, 2003 — Sections 62, 64 and 111 — Under the 2003 Act, if one reads Section 62 with Section 64, it becomes clear that although tariff fixation like price fixation is legislative in character, the same under the Act is made appealable vide Section 111.

 
Electricity Act, 2003

Electricity Act, 2003 — Sections 61, 62 and 64 — These provisions, namely, Sections 61, 62 and 64 indicate the dual nature of functions performed by the Regulatory Commissions, viz, decision-making and specifying terms and conditions for tariff determination.

 
Electricity Act, 2003

Electricity Act, 2003 — On the analysis of various sections of the 2003 Act, it can be said that the decision-making and regulation-making functions are both assigned to CERC.

 
Electricity Act, 2003

Electricity Act, 2003 — Section 79 and Section 178 — Held, Section 79 delineates the functions of the Central Commission broadly into two categories – mandatory functions and advisory functions — Tariff regulation, licensing (including inter-State trading licensing), adjudication upon disputes involving generating companies or transmission licensees fall under the head “mandatory functions” whereas advising Central Government on formulation of National Electricity Policy and tariff policy would fall under the head “advisory functions” — In this sense, the Central Commission is the decision-making authority — Such decision-making under Section 79(1) is not dependant upon making of regulations under Section 178 by the Central Commission — Therefore, functions of Central Commission enumerated in Section 79 are separate and distinct from function of Central Commission under Section 178 — The former is administrative/adjudicatory function whereas the latter is legislative.

 
Electricity Act, 2003

Electricity Act, 2003 — Section 79(1) and Section 178 — Measures which the Central Commission is empowered to take under Section 79(1), have got to be in conformity with the regulations under Section 178, wherever such regulations are applicable — However, making of a regulation under Section 178 is not a pre-condition to the Central Commission taking any steps/measures under Section 79(1) — For example, under Section 79(1)(g) the Central Commission is required to levy fees for the purpose of the 2003 Act. An Order imposing regulatory fees could be passed even in the absence of a regulation under Section 178. If the levy is unreasonable, it could be the subject matter of challenge before the Appellate Authority under Section 111 as the levy is imposed by an Order/decision making process. Making of a regulation under Section 178 is not a pre-condition to passing of an Order levying a regulatory fee under Section 79(1)(g). However, if there is a regulation under Section 178 in that regard then the Order levying fees under Section 79(1)(g) has to be in consonance with such regulation. Similarly, while exercising the power to frame the terms and conditions for determination of tariff under Section 178, the Commission has to be guided by the factors specified in Section 61. It is open to the Central Commission to specify terms and conditions for determination of tariff even in the absence of the regulations under Section 178. However, if a regulation is made under Section 178, then, in that event, framing of terms and conditions for determination of tariff under Section 61 has to be in consonance with the regulation under Section 178.

 
Electricity Act, 2003

Electricity Act, 2003 — Section 111 — Word “order” — Central Electricity Regulatory Commission (Fixation of Trading Margin) Regulations, 2006 — The word “order” in Section 111 of the 2003 Act cannot include the impugned Regulations 2006 made under Section 178 of the 2003 Act.  

 
Tuesday, February 13, 2007
Electricity Act, 2003

Electricity Act, 2003 — Section 135 — Indian Penal Code, 1860, Section 379 — Theft of Electricity — When there is a specific/special law covering the question of theft of electricity i.e. Section 135 of the Act, the general law contained in Section 379 IPC will not be applicable — Any attempt by the police to add offence under Section 379 IPC will be a crude devise by the prosecution to overcome the likely objection from the accused about the filing of the complaint instead of registration of FIR.

 
Electricity Act, 2003

Electricity Act, 2003 — Sections 135, 138 and 151 — Theft of Electricity — No court, held, should take cognizance of offences under sections 135 and 138 of the Act, except upon a complaint in writing made by the Appropriate Government or Appropriate Commission or Chief Electrical Inspector or Electrical Inspector or Licensee.

 
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