Legal Opinion - Electricity Theft Case
Transcript of Legal Opinion - Electricity Theft Case
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7/28/2019 Legal Opinion - Electricity Theft Case
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To,
Executive Engineer (Legal)
Jodhpur Discom, Jodhpur
Subject : Legal opinion in regard to the recovery of Electricity Duty and Water
Conservation Cess in cases of electricity theft
Dear Sir,
1) With reference to your letter dated 24/04/2013, I am hereby rendering mylegal opinion in regard to the recovery of Electricity Duty (hereafter
referred to as ED) and Water Conservation Cess (hereafter referred to as
WCC) in cases of electricity theft.
2) At the outset, it is incumbent on me to state that the levy of EC and WCC(on all consumers) is compulsory; including those consumers who have
indulged in electricity theft. This proposition is corroborated by sub-
section(2) of Section 3 of the Rajasthan Electricity (Duty) Act [hereafter
referred to as the ED Act]; which enumerates the consumers who shall be
exempted from paying the ED. This list is exhaustive in nature, and it does
not include the consumers who have indulged in electricity theft.
3) The contention that neither the RERC notification dated 20/6/2006 northe ED Act envisage the levy of ED and WCC on consumers who indulge in
electricity theft will produce absurd result(s). It is settled law that in such
cases, where there are competing interpretations, the Court - in order to
effectuate the intention of the legislature/rule-making authority shall
provide purposive interpretation to the impugned provision(s).
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4) A cess/duty is of the same nature as a tax, and therefore, it has to becompulsorily levied on every consumer; apart from those who have been
granted explicit/unambiguous exemptions. Thus, it has to be compulsorily
levied on consumers who indulge in electricity theft.
5) That the Boards Order dated 10/11/2003 categorically states thathenceforth, the element of ED shall be considered as inclusive in the case
of compensation/settlement charges for consumers indulging in electricity
theft. Thus, it becomes abundantly clear that the element of ED is an
integral part of the dues recoverable from a consumer indulging in
electricity theft.
6) Point 5 in paragraph 4/n of your letter states that the Jodhpur Discomought to proceed on the verbatim text of the RERC notification. This is a
flawed assumption, as the notification ought not to be read in isolation; but
conjointly with the ED Act. And, on a conjoint reading of the notification
and the Act, along with the Order of 2003, the conclusion that ED is an
integral element of the provisional liability - to be imposed a consumer
indulging in electricity theft is inescapable.
7) Section 5 of the ED Act enumerates that in the event of non-recovery of EDfrom a consumer, the supplier (in this case, Jodhpur Discom) shall be liable
to pay the amount, along with interest, to the govt. This provision is of
utmost importance, as it clearly demonstrates that the intention of the
legislature is to ensure the procurement of ED, by mandating it as a
compulsory charge on the consumption of electricity.
8) In my considered opinion, since the Order which includes ED as an elementof compensation charges has already been promulgated, it is redundant to
frame any extra set of rules for the levy of ED on consumers who indulge in
electricity theft. This Order (promulgated in 2003) squarely covers the case
of M/s Belim Steels Pvt. Ltd.
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9) However, since no such Order/notification has been promulgated for thelevy of WCC in cases of consumers indulging in electricity theft, it is
submitted that the proper course of action would be to frame rules, or
promulgate an Order, before levying WCC.
10) It is pertinent to note that such rules/Order can be effectuatedretrospectively. In other words, WCC can be imposed on M/s Belim Steels
Pvt. Ltd. even if such an Order was non-existent when the liability arose.
11) Hence, in my considered opinion, the proper course of action onthe part of Jodhpur Discom would be to promulgate a retrospective Order
for the levy of WCC; and subsequently proceed to recover both ED and
WCC from M/s Belim Steels Pvt. Ltd.