THE EXECUTIVE ENGINEER AND ANR. v. M-S SRI SEETARAM RICE MILL

Citation: [2011] 15 S.C.R. 211

Court: Supreme Court of India

Bench: S.H. KAPADIA, K.S. RADHAKRISHNAN, SWATANTER KUMAR

Case summary

THE EXECUTIVE ENGINEER AND ANR. v. M-S SRI SEETARAM RICE MILL.pdf

Judgment text

[2011] 15 (ADDL. ) S. C. R. 211 THE EXECUTIVE ENGINEER AND ANR. v. M/S SRI SEETARAM RICE MILL (Civil Appeal No. 8859 of 2011) OCTOBER 20, 2011 [S. H. KAPADIA, CJI. , K. S. RADHAKRISHNAN AND SWATANTER KUMAR, JJ. ] Electricity Act, 2003: Salient features of the Act - Discussed. Legislative history and object of enactment - Discussed. s. 126 - Applicability of - Held: Consumption of electricity in excess of sanctioned load would be unauthorized use of electricity and would attract applicability of s. 126 of the Act. s. 126 - Scope of, with reference to construction of the words 'unauthorized use' and 'means' - Discussed. s. 126 and s. 135 - Distinction between - Discussed. s. 126 - Assessment and computation under - Manner ·of - Discussed. s. 127 - Appealable order - Held: In view of the language of s. 127 of the Act, only a final order of assessment passed uls. 126(3) is an order appealable uls. 127 and a notice-cumprovisional assessment made uls.

126(2) is not appealable - Thus, the High Court should normally decline to interfere in a final order of assessment passed by the assessing officer in terms of s. 126(3) of the Act in exercise of its jurisdiction under Article 226 of the Constitution of India. s. 127 - Statutory alternative remedy available u/s.

127 of the Act - Writ petition - Scope of interference with provisional 211 ti order of assessment/show cause notice - Held: Keeping in view the functions and expertise of the specialized body constituted under the Act including the assessing officer, it would be proper exercise of jurisdiction, if writ court upon entertaining and deciding the writ petition on a 1urisdictiona/ issue, remand the matter to the competent authority for its adjudication on merits and in accordance with law- If exercise of jurisdiction by the Tribunal ex facie appears to be an exercise ofjurisdiction in futility then it will be permissible for the High Court to interfere in exercise of its jurisdiction - In ·the instant case, the respondents-consumers were required to fife objections as contemplated uls.

126 (3) of the Act against the provisional order of assessment- It was only when a final order of assessment was passed that the respondents could prefer a statutory appeal which, admittedly, was not done in the case in hand - High Court did not commit any error of 0 jurisdiction in entertaining the wn"f petition against the order raising a jurisdictional challenge to the notice/provisional assessment order - However, High Court transgressed its jurisdictional /imitations while travelling into the exclusive domain of the Assessing Officer relating to passing of an order of assessment and determining factual controversy of the case - Constitution ·of India, 1950 - Article 226. Constitution of India, 1950: Article 226 - Scope of interference with tr1e provisional order of assessment/show cause notice - Discussed. Article 226 - Alternative remedy - Maintainability of writ petition - Discussed.

Interpretation of statutes: Purposive interpretation - Held: The statute should be read as a whole - Its different provisions may have to be construed together to make consistent construction of the whole statute relating to the subject matter - A construction . SEETARAM RICE MILL which will improve the workability of the statute, to be more effective and purposive, should be preferred to any other interpretation which may lead to undesirable results. Expression 'means', 'means and includes' and 'does not include' - Held: When the Legislature has used a particular 8 expression out of these three, it must be given its plain meaning while even keeping in mind that the use of other two expressions has not been favoured by the Legislature. Fiscal and penal laws - Interpretation of. Object and reason of enactment - Relevancy of. Discussions of Standing Committee - Relevancy of. Words and phrases: Word 'dishonest', 'authorisation', 'malpractice' - Meaning of.

Word 'means' - Meaning of, in· the context of s. 126 of the Electricity Act, 2003 - Discussed. Expression 'unauthorised use of electricity' - Meaning of, in the context of s. 126 of the Electricity Act, 2003 - Discussed. An agreement was entered into between appellant no. 1 and the respondent for supply of power to the respondent. The respondent was categorized as medium industry category and accordingly accorded the contracted load. This category dealt with the contract demand of 99 KVA and above but below 110 KVA. On 10th June, 2009, the Executive Engineer inspected the business premises of the respondent's unit and issued a dump report. In the dump report, it was stated that there was unauthorized use of electricity and Maximum Demand (MD) had been consumed up to 142 KVA.

On 25th July, 2009, provisional assessment order was issued by the appellants to the respondent by taking the contracted demand as that applicable to large industry and the respondent was required to file objections, if any, and to also pay the amount. On the same day, intimation was also issued to the respondent that there was unauthorized use of electricity falling squarely within the ambit of provisions of Section 126 of the Electricity Act, 2003. The demand was raised assessing the consumer for the period from June 2008 to August 2009 for a sum of Rs. 7,77,300/·. This was computed for 15 months at the rate of Rs. 200 per KVA (i. e.

, tariff for large industry) multiplied by two times, aggregating to the claimed amount The respondent did not file its objections/reply but challenged the said provisional assessment order and the intimation of unauthorized use before the High 0 Court by filing writ petition on the grounds of lack of authority and jurisdiction on the part of the Executive Engineer. Ii was also contended that no inspection was conducted in the business premises till date of dump, i. e. , 10th June, 2009 when alleged unauthorized use of electricity was found. The respondent also challenged the maintainability and sustainability of the order of provisional assessment in calculating the dump charges for a period of 15 months from June 2008 to August 2009 on the basis of dump charges relating to large industry while the respondent was classified as medium scale industry.

The High Court held that the words 'unauthorized use of electricity' and 'means' as provided in Explanation to Section 126 of the 2003 Act were exhaustive; overdrawal of MD would not fall under the scope of 'unauthorized use of electricity' as defined under the 2003 Act, and the appellants had no jurisdiction to issue the intimation and pass the assessment order in terms of Section 126 of the 2003 Act.

SEETARAM RICE MILL In the instant appeal, the questions which arose for consideration were: (1) wherever the consumer consumes electricity in excess of the maximum of the contracted load, would the provisions of Section 126 of the 2003 Act be attracted on its true scope and interpretation; (2) whether the High Court, in the facts and circumstances of the case, was justified in interfering with the provisional order of assessment/show cause notice in exercise of its jurisdiction under Article 226 of the Constitution of India; and (3) was the writ petition before the High Court under A~icle 226 of the Constitution of India not maintainable because of a statutory alternative remedy being available under Section 127 of the 2003 Act. Allowing the appeal, the Court HELD: 1.

To address the issues like deterioration in performance of the Boards and the difficulties in achieving efficient discharge of functions, a better, professional and regulatory regime was introduced under the Electricity Bill, 2001, with the policy of encouraging private sector participation in generation, transmission and distribution of electricity and with the objective of distancing regulatory responsibilities from the Government by transferring the same to the Regulatory Commissions. The need for harmonizing and rationalizing the provisions of the earlier statutes was met by creating a new, self-contained and comprehensive legislation. Another object was to bring unity in legislation and eliminate the need for the respective State Governments to pass any reform Act of their own. This Bill had progressive features and strived to strike the right balance between the economic profitability and public purpose given the current realities of the power sector in India.

This Bill was put to great discussion and then emerged the Electricity Act, 2003 ( 'the 2003 Act'). The 2003 Act had notably provided for private sector participation, private transmission licences for rural and remote areas, stand alone systems for generation and distribution, the constitution of an Appellate Tribunal, more regulatory powers for the State Electricity Regulation Commission and provisions relating to theft of electricity. The additional provisions were introduced in the 2003 Act in relation to misuse of power and punishment of malpractices such as over-consumption of sanctioned electric load which are not covered by the provisions relating to theft; all . of which had significant bearing upon the revenue focus intended by the Legislature. This is the legislative history and objects and reasons for enacting the 2003 Act.

To ensure better regulatory, supervisory and revenue recovery system, as expressed in the objects and reasons of the 2003 Act, 0 there was definite concerted effort in preventing unauthorized use of electricity on the one hand and theft of electricity on the other. The present case falls in the former. [Paras 2, 3] [238-F-H; 239-A·FJ 2. Question (1) 2. 1. 1 It is clear from the object of enactment of Electricity Act, 2003 that 'revenue focus' was one of the principal consideratle~s that weighed with the Legislature while enacting this law. The regulatory regime under the 2003 Act empowers the Commission to frame the tariff, which shall be the very basis for raising a demand upon a consumer, depending upon the category to which such consumer belongs and the purpose for which the power is sanctioned to such consumer.

The contention on behalf of the respondent cannot be accepted that the provisions of Section 126 of the 2003 Act have to be given a strict and textual construction to the extent that they have to be read exhaustively in absolute terms. This is a legislation which establishes a SEETARAM RICE MILL regulatory regime for the generation and distribution of power, as well as deals with serious fiscal repercussions of this entire regime. The two maxims which should be applied for interpretation of such statutes are ex visceribus actus (construction of the act as a whole) and ut res magis valeat quam pereat (it is better to validate a thing than to invalidate it). It is a settled cannon of interpretative jurisprudence that the statute should be read as a whole. In other words, its different provisions may have to be construed together to make consistent construction of the whole statute relating to the subject matter.

A construction which will improve the workability of the statute, to be more effective and purposive, should be preferred to any other interpretation which may lead to undesirable results. [Para 10] [244-G-H; 245-A-E] 2. 1. 2. It is true that fiscal and penal laws are normally construed strictly but this rule is not free of exceptions. In given situations, this Court may, even in relation to penal statutes, decide that any narrow and pedantic, literal and lexical construction may not be given effect to, as the law would have to be interpreted having regard to the subject matter of the offence and the object that the law seeks to achieve. The provisions of Section 126, read with Section 127 of the 2003 Act, in fact, becomes a code in itself. Right from the initiation of the proceedings by conducting an inspection, to the right to file an appeal before the appellate authority, all matters are squarely covered under these provisions.

It specifically provides the method of computation of the amount that consumer would be liable to pay for excessive consumption of the electricity and for the manner of conducting assessment proceedings. In other words, Section 126 of the 2003 Act has a purpose to achieve, i. e. , to put an implied restriction on such unauthorized consumptic>n of electricity. The provisions of the 2003 Act, applicable regulations and the Agreement executed between the parties at the time of sanction of the load prohibit consumption of electricity in excess of maximum sanctioned/ installed load. In the event of default, it also provides for the consequences that a consumer is likely to face. It embodies complete process for assessment, determination and passing of a demand order. This defined legislative purpose cannot be permitted to be frustrated by interpreting a provision in a manner not intended in law.

This Court would have to apply the principle of purposive interpretation in preference to textual interpretation of the provisions of Section 126 of the 2003 Acl This Court would prefer to adopt purposive interpretation so as to ensure attainment of the object and purpose of the 2003 Act, particularly, of the provisions of Section 126 in question. [Para 11] [245-F-H; 246-A-E] Bairam Kumawat v. Union of India & Ors. (2003) 7 SCC 628; Superintendent and Remembrancer of Legal Affairs to Government of West Bengal v. Abani Maity (1979) 4 SCC 85: 1979 (3) SCR 472 - relied on. 2. 1. 3. The relevancy of objects and reasons for enacting an Act is a relevant consideration for the court while applying various principles of interpretation of statutes. Normally, the court would not go behind these objects and reasons of the Act. The discussion of a Standing Committee to a Bill may not be a very appropriate precept for tracing the legislative intent but in .

given circumstances, it may be of some use to notice some discussion on the legislative intent that is reflected in the substantive provisions of the Act itself. The Standing Committee on Energy, 2001, in its discussion said, 'the Committee feel that there is a 11eed to provide safeguards to check the misuse of these powers by unscrupulous elements'. The provisions of Section 126 of the 2003 Act are self-explanatory, they are intended to covtir situations other than the situations specifically SEETARAM RICE MILL covered under Section 135 of the 2003 Act. This would further be a reason for this Court to adopt an interpretation which would help in attaining the legislative intent. Therefore, 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.

[Paras 13-14] [250-A- E] 2. 2. Distinction between Sections 126 and 135 of the 2003 Act. 2. 2. 1. Upon their plain reading, the mark differences in the contents of Sections 126 and 135 of the 2003 Act are obvious. They are distinct and different provisions which operate in different fields and have no common premise in law. Sections 126 and 127 of the 2003 Act read together constitute a complete code in themselves covering all relevant considerations for passing of an order of assessment in cases which do not fall under Section 135 of the 2003 Act. Section 135 of the 2003 Act falls under Part XIV relating to 'offences and penalties' and title of the Section is 'theft of electricity'.

The Section opens with the words 'whoever, dishonestly' does any or all of the acts specified under clauses (a) to (e) of Subsection (1) of Section 135 of the 2003 Act so as to abstract or consume or use electricity shall be punishable for imprisonment for a term which may extend to three years or with fine or with both. Besides imposition of punishment as specified under these provisions or the proviso thereto, Sub-section (1A) of Section 135 of the 2003 Act provides that without prejudice to the provisions of the 2003 Act, the licensee or supplier, as the case may be, through officer of rank authorized in this behalf by the appropriate commission, may immediately disconnect the supply of electricity and even take other measures enumerated under Sub-sections (2) to (4) of the said Section. 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.

In contradistinction to these provisions, Section 126 of the 2003 Act would be applicable to the cases where there is no theft of electricity but the electricity is being consumed in violation of the terms and conditions of supply leading to malpractices which may squarely fall within the expression 'unauthorized use of electricity'. [Para 15] [250-G-H; 251-A-E] 2. 2. 2. Section 135 of the 2003 Act deals with an offence of theft of electricity and the penalty that can be imposed for such theft. This squarely falls within the dimensions of Criminal Jurisprudence and mens rea is one of the relevant factors for finding a case of theft. On the contrary, Section 126 of the 2003 Act 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.

Thus, the expression 'unauthorized use of electricity' under Section 126 of the 2003 Act deals with cases of unauthorized use, even in absence of intention. These cases would certainly be different from cases where there is dishonest abstraction of electricity by any of the methods enlisted under Section 135 of the 2003 Act. A clear example would be, where a consumer has used excessive load as against the installed load simpliciter and there is violation of the terms and conditions of supply, then, the case would fall under Section 126 of the 2003 Act. On the other hand, where a consumer, by any of the means and methods as specified under Sections 135(a) to 135(e) of the 2003 Act, has abstracted energy with dishonest intention and without authorization, like providing for a direct connection SEETARAM RICE MILL bypassing the installed meter, the case would fall under Section 135 of the Act.

Therefore, there is a clear distinction between the cases that would fall under Section 126 of the 2003 Act on the one hand and Section 135 of the 2003 Act on the other. There is no commonality between them in law. They operate in different and distinct fields. The assessing officer has been vested with the powers to pass provisional and final order of assessment in cases of unauthorized use of electricity and cases of consumption of electricity beyond contracted load will squarely fall under such power. The legislative intention is to cover the cases of malpractices and unauthorized use of electricity and then theft which is governed by the provisions of Section 135 of the 2003 Act. [Paras 16-17) [252-D-H; 253-A-C] 2. 2. 3. Section 135 of the 2003 Act significantly uses the words 'whoever, dishonestly' does any of the listed actions so as to abstract or consume electricity would be punished in accordance with the provisions of the 20(}3 Act.

'Dishonesty' is a state of mind which has to be shown to exist before a person can be punished under · the provisions of that Section. The word 'dishonest' in normal parlance means 'wanting in honesty'. A person can be said to have 'dishonest intention' if in taking the property it is his intention to cause gain, by unlawful means, of the property to which the person so gaining is not legally entitled or to cause loss, by wrongful means, of property to which the person so losing is legally entitled. 'Dishonestly' is an expression which has been explained by the Courts in terms of Section 24 of the Indian Penal Code, 1860 as 'whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person is said to do that thing dishonestly'. All these explanations clearly show that dishonesty is a state of mind where a person does an act with an intent to deceive the other, acts fraudulently and with.

a deceptive mind, to cause wrongful loss to the other. The act has to be of the type stated under Subsections (1)(a) to (1)(e) of Section 135 of the 2003 Act. If these acts are committed and that state of mind, mens rea, exists, the person shall be liable to punishment and payment of penalty as contemplated under the provisions of the 2003 Act. In contradistinction to this, the 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. [Paras18- 19, 22] [253-D-G; 254-C-D] Dr. S. Dutt v. State of U. P. AIR 1966 SC 523: 1966 SCR 493 - relied on. The Law Lexicon (2nd Edn. 1997) by P. Ramanatha Aiyar; Collins English Dictionary; Black's Law Dictionary (Eighth Edition) - referred to. 2. 3. The ambit and scope of Section 126 with reference to the construction of the words 'unauthorised use' and 'means' 2. 3. 1.

The provisions of Section 126 contemplate the following steps to be taken: (i) An assessing officer is to conduct inspection of a place or premises and the equipments, gadgets, machines, devices found connected or used in such place. (ii) The formation of a conclusion that such person has indulged in unauthorized use of electricity. (iii) The assessing. officer to provisionally assess, to the best of his judgment, the electricity charges payable by such person. (iv) The order of provisional assessment to be served upon the person concerned in the manner prescribed, giving him an opportunity to file objections, if any, against the provisional assessment. (v)The assessing officer has to afford a reasonable opportunity of being heard to such person and pass a final order of assessment within 30 SEETARAM RICE MILL days from the date of service of such order of provisional assessment.

(vi)The person, upon whom the provisional order of assessment is served, is at liberty to pay the said amount within seven days of the receipt of such order and where he files such objections, final order of assessment shall be passed, against which such person has a right of appeal under Section 127 of the 2003 Act within the prescribed period of limitation. [Para 23) [254- ! =-H; 255-A-E] 2. 4. Assessment and Computation 2. 4. 1. Wherever the assessing officer arrives at the conclusion that unauthorized use of electricity has taken place, the assessment shall be made for the entire period during which such unauthorized use of electricity has taken place and if such period cannot be ascertained, it shall be limited to a period of 12 months immediately preceding the date of inspection and the assessment shall be made at the rate equal to twice the tariff applicable for the relevant category of service specified under these provisions.

This computation has to be taken in terms of Sections 126(5), 126(6) and 127 of the 2003 Act. [Para 24) (255-F-G] 2. 4. 2. The expression 'unauthorized use of electricity' on its plain reading means use of electricity in a manner not authorized by the licensee of the Board. 'Authorization' refers to the permission of the licensee to use of electricity', subject to the terms and conditions for such use and the law governing the subject. The supply of electricity to a consumer is always subject to the provisions of the 2003 Act, State Acts, Regulations framed thereunder and the terms and conditions of supply in the form of a contract or otherwise. Generally, when electricity is consumed in violation of any or all of these, it would be understood as 'unauthorized use of electricity'. But this general view will have to be examined in the light of the fact that the legislature has opted to explain this term for the purposes of Section 126 of the 2003 Act.

The 'unauthorized use of electricity' means the usage of electricity by the means and for the reasons stated in sub-clauses (i) to (v) of clause (b) of Explanation to Section 126 of the 2003 Act. Some of the illustratively stated circumstances of 'unauthorised use' in the section cannot be construed as exhaustive. The 'unauthorized use of electricity' would mean what is stated under that Explanation, as well as such other unauthorized user, which is squarely in violation of the statutory or contractual provisions. [Paras 27-28] [256-E-G; 256-F-G] 2. 4. 3. 'Unauthorized' is a concept well-recognized under different statutes, for example, under Section 31A of the Delhi Development Act, 1957 (the 'DOA Act') the authority has the power to seal the 'unauthorized' development, if the misuser of the premises would come within the ambit of unauthorized development. But if such misuse does not come within the ambit of 'unauthorized development', such power is not available to the authority.

Simplicitor misuse, therefore, may not fall within the ambit of unauthorized development under the provisions of the ODA Act. The unautho~ized use of electricity in the manner as is undisputed on record clearly brought the respondent 'under liability and in blame' within the ambit and scope of Section 126 of the 2003 Act. [paras 29, 31] [258-H; 259-A-B; 259-F] M. C. Mehta v. Union of India (2006) 3 SCC 391 - relied on. 2. 4. 4. The expression 'means' used in the definition clause of Section 126 of the 2003 Act can have different connotations depending on the context in which such expression is used. The word ordinarily includes a mistaken but reasonable understanding of a communication. 'Means' by itself is a restrictive term and SEETARAM RICE MILL when used with the word 'includes', it is construed as exhaustive.

In those circumstances, a definition using the term 'means' is a statement of literal connotation of a term and the courts have interpreted 'means and includes' as an expression defining the section exhaustively. While determining whether a provision is exhaustive or merely illustrative, this will have to depend upon the language of the Section, scheme of the Act, the object of the Legislature and its intent. [Para 32] [259-G; 260-A-C] Black's Law Dictionary (Eighth Edition) page 1001 referred to. 2. 4. 5: 'Purposive construction' is certainly a cardinal principle of interpretation. Equally true is that no rule of interpretation should either be over-stated or overextended. This rule of interpretation can be applied to the instant case. It points to the conclusion that an interpretation which would attain the object and purpose of the Act has to be given precedence over any other interpretation which may not further the cause of the statute.

The development of law is particularly liberated ' both from literal and blinkered interpretation, though to a limited extent. The precepts of interpretation of contractual documents have also undergone a wide ranged variation in the recent times. The result has been subject to one important exception to assimilate the way in which such documents are interpreted by judges on the common sense principle by which any serious utterance would be interpreted by ordinary life. In other words, the common sense view relating to the implication and impact of provisions is the relevant consideration for interpreting a term of document so as to achieve temporal proximity of the end result. Another similar rule is the rule of practical interpretation. This test can be effectuatedly applied to the provisions of a statute of the present kind.

It must be understood that an interpretation which upon application of the provisions at the ground reality, would frustrate the very law should not be accepted against the common sense view which will further such application. [paras 33-35) [260-D-H; 261-A- B] 2. 4. 6. Once the court decides that it has to take a purposive construction as opposed to textual construction, then the legislative purpose sought to be achieved by such an interpretation has to be kept in mind. Keeping in view the legislative scheme and the provisions of the 2003 Act, it will be appropriate to adopt the approach of purposive construction on the facts of this case. The provisions of Section 126 of the 2003 Act are intended to cover the cases over and above the cases which would be specifically covered under the provisions of Section 135 of the 2003 Act.

In other words, the purpose sought to be achieved is to ensure stoppage of misuse/unauthorized use of the electricity as well as to ensure prevention of revenue loss. It is in this background that the scope of the expression 'means' has to be construed. If it is held· that the expression 'means' is exhaustive and cases of unauthorized use of electricity are restricted to the ones stated under Explanation (b) of Section 126 alone, then it shall defeat the very purpose of the 2003 Act, inasmuch as the different cases of breach of the terms and conditions of the contract of supply, regulations and the provisions of the 2003 Act would escape the liability sought to be imposed upon them by the Legislature under the provisions of Section 126 of the 2003 Act. Thus, it will not be appropriate for the courts to adopt such an approach.

The Legislature has intentionally omitted to use the word 'includes' and has only used the word 'means' with an intention to explain inter alia what an unauthorized use of electricity would be. It must be noticed that clause (iv) of Explanation (b) and sub-Section (5) of Section 126 of the 2003 Act were SEETARAM RICE MILL both amended/substituted by the same amending Act 26 Ai of 2007, with a purpose and object of preventing unauthorised use of electricity not amounting to theft of electricity within the meaning of Section 135 of the 2003 Act. This amendment, therefore, has to be given its due meaning which will fit into the scheme of the 2003 Act and would achieve its object and purpose. The expression 'means' would not always be open to such a strict construction that the terms mentioned in a definition clause under such expression would have to be inevitably treated as being exha. ustive.

There can be a large number of cases and examples where even the expression 'means' can be construed liberally and treated to be inclusive but not completely exhaustive of the scope of the definition, of course, depending upon the facts of a given case and the provisions governing 0 that law. [Paras 36-38] (261-B-G; 262-A-E] K. V. Muthu v. Angamuthu Ammal (1997) 2 SCC 53: 1996 (10) Suppl. SCR 188; Union of India v. Prabhakaran Vijaya Kumar & Ors. (2008) 9 SCC 527: 2008 (7) SCR 673 - relied on. 2. 4. 7. It cannot be stated as an absolute proposition ·of law that the expression 'means' wherever occurring in a provision would inevitably render that provision exhaustive and limited. This rule of interpretation is not without exceptions as there could be statutory provisions whose interpretation demands somewhat liberal construction and require inclusive construction. An approach or an interpretation which will destroy the very purpose and object of the enacted law has to be avoided.

The other expressions used by the Legislature in various sub-clauses of Explanation (b) of Section 126 of the 2003 Act are also indicative of its intent to make this provision wider and of greater application. Expressions like 'any artificial means', 'by a mearis not authorised by the licensee' etc. are terms which cannot be exhaustive even linguistically and are likely to take within their ambit what is not specifically stated. For example, 'any artificial means' is a generic term and so the expression 'means' would have to be construed generally. The expressions 'means', 'means and includes' and 'does not include' are expressions of different connotation and significance. When the Legislature has used a particular expression out of these three, it must be given its plain meaning while even keeping in mind that the use of other two expressions has not been favoured by the Legislature.

To put it simply, the Legislature has favoured non-use of such expression as opposed to other specific expression. In the instant case, the Explanation to Section 126 has used the word 'means' in contradistinction to 'does not include' and/or 'means and 0 includes'. This would lead to one obvious result that even the Legislature did not intend to completely restrict or limit the scope of this provision. [Paras 41-42] (265-B-E; 267- A-C] Eureka Forbes Ltd. v. Allahabad Bank (2010) 6 SCC 193: 2010 (5) SCR 990 - relied on. 2. 4. 8. Unauthorised use of electricity cannot be restricted to the stated clauses under the explanation but has to be given a wider meaning so as to cover cases of violation of terms and conditions of supply and the regulations and provisions of the 2003 Act governing such supply.

'Unauthorised use of electricity' itself is an expression which would, on its plain reading, take within its scope all the misuse of the electricity or even malpractices adopted while using electricity. It is difficult to restrict this expression and limit its application by the categories stated in the explanation. It is indisputable %~t the electricity supply to a consumer is restricted nd controlled by the terms and conditions of supP,ly, he SEETARAM RICE MILL regulations framed and the provisions of the 2003 Act. The requirement of grant of licence itself suggests that electricity is a controlled commodity and is to be regulated by the regulatory authorities. If a person unauthorisedly consumes electricity, then he can certainly be dealt with in accordance with law and penalties. may be imposed upon him as contemplated under the contractual, regulatory and statutory regime.

The Orissa Electricity Regulatory Commission, in exercise of its powers under Section 181(2)(t), (v), (w) and (x) read with Part VI of the 2003 Act, Orissa Electricity Reforms Act, 1995 and all other powers enabling it in that behalf, made the regulations to govern distribution and supply of electricity and procedure thereof such as system of billing, modality of payment, the powers, functions and applications of the distribution licensees form for supply 0 and/or suppliers and the rights and obligations of the consumers. These were called 'Orissa Electricity Regulatory Commission Distribution (Conditions of Supply) Code, 2004 ('Conditions of Supply) vide notification dated 21st May, 2004. This Agreement was undisputedly executed between the parties. Clause (2) of the Agreement deals with Conditions of Supply. It stated that consumer had obtained and perused a copy of the Grid Corporation of Orissa Ltd. (General Conditions of .

Supply) Regulations, 1995, understood its content and undertook to observe and abide by all the terms and conditions stipulated therein to the extent they are applicable to him. The respondent was a consumer under the 'medium industry category'. [Para 43] [267-D-H; 268- A-D] 2. 4. 9. Minimum energy charges are to be levied with reference to 'contract demand' at the rate prescribed under the terms and conditions. These clauses of the Agreement clearly showed that the charges for consumption of electricity are direct! Y. ,relatable to the sanctioned/connected load and also the load consumed at a given point of time if it is in excess of the sanctioned/ connected load. The respondent could consume electricity up to 110 KVA but if the connected load exceeded that higher limit, the category of the respondent itself could stand changed from 'medium industry' to 'large industry' which will be governed by a higher tariff.

Chapter VII of the Conditions of Supply classified the consumers into various categories and heads. The electricity could be provided for a domestic, LT Industrial, LT/HT Industrial, Large Industry, Heavy Industries and Power Intensive Industries, etc. In terms of Regulation 80, the industry would fall under LT/HT category, if it relates to supply for industrial production with a contract demand of 22 KVA and above but below 110 KVA. However, it will become a 'large industry' under Regulation 80(10) if it relates to supply of power to an industry with a contract demand of 110 KVA and above but below 25,000 KVA. Once the category stands changed because of excessive consumption of electricity, the tariff and other conditions would stand automatically changed.

The licensee has a right to reclassify the consumer under Regulation 82 if it is found that a consumer has been classified in a particular category erroneously or the purpose of supply as mentioned in the agreement has chang id or the consumption of power has exceeded the limit of that category etc. The Conditions of Supply even places a specific prohibition on consumption of excessive electricity by a consumer. The cumulative reading of the terms and conditiops of supply, the contract executed between the parties and the provisions of the 2003 Act showed that consumption of electricity in excess of the sanctioned/ connected load shall be an 'unauthorised use' of electricity in terms of Section 126 of the 2003 Act.

This is for the reason that overdrawal of electricity amounts to breach of the terms and conditions of the SEETARAM RICE MILL contract and the statutory conditions, besides such overdrawal being prejudicial to the public at large, as it is likely to throw out of gear the entire supply system, undermining its efficiency, efficacy and even increasing voltage flur. tuations. In somewhat similar circumstances, where the consumer had been found to be drawing electricity in excess of contracted load and the general conditions of supply of electricity energy by the Board and clause 31(f) of the same empowered the Board to disconnect supply and even levy higher charges as per the tariff applicable, this Court held that such higher tariff charges could be recovered. [Paras 44-46] [268-F-H; 269- A-D, F-H; 270-A-C] Bhilai Rerollers & Ors. v. M. P. Electricity Board & Ors. (2003) 7 SCC 185: 2003 (2) Suppl. SCR 787; Orissa State Electricity Board &Anr. v. IP/ Steel Ltd. & Ors.

(1995) 4 SCC 328 - relied on. 2. 4. 10. Certain malpractices adopted by the consumer for consuming electricity in excess of the contracted load could squarely fall within the ambit and scope of Section 126 of the 2003 Act as it is intended to provide safeguards against pilferage of energy and malpractices by the consumer. The Regulations framed in exercise of power of subordinate legislation or terms and conditions imposed in furtherance of statutory provisions have been held to be valid and enforceable. They do not offend the provisions of the 2003 Act. In fact, the power to impose penal charges or disconnect electricity has been held not violative even of Article 14 of the Constitution of India. The expression 'malpractices' does not find mention in the provisions under the 2003 Act but is a term coined by judicial pronouncements.

Thus, the expression 'malpractices' has to be construed in its proper perspective and normally may not amount to theft of electricity as contemplated under Section 135 of the 2003 Act. Such acts/malpractices would fall within the mischief of unauthorized use of electricity as stipulated under Section 126 of the 2003 Act. [Para 48] [270-G-H; 271-A-C] Hyderabad Vanaspathi Us. v. A. P. State Electricity Board & Anr. (1998) 4 SCC 471 - relied on. 2. 4. 11. There is another angle from which the instant case can be examined and obviously without prejudice to the other contentions raised. It is a case where, upon inspection, the officers of the appellant found that respondent was consuming 142 KVA of electricity which was in excess of the sanctioned load. To the inspection report, the respondent had not filed any objection before the competent authority as contemplated under Section 126(3) and had approached the High Court.

Limited for 0 the purposes of these proceedings, excess consumption is not re~lly in dispute. The contentions raised by the respondent were to challenge the very jurisdiction of the concerned authorities. Consumption in excess of sanctioned load is violative of the terms and conditions of the agreement as well as of the statutory benefits. 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. Explanation (b)(iv), thus, would also cover the cases where electricity is being consumed in excess of sanctioned load, particularly when it amounts to change of category and tariff. As is clear from the agreement deed, the electric connection was given to the respondent on a contractual stipulation that he would consume the electricity in excess of 22 KVA but not more than 110 KVA. The use of the negative language in the condition itself declares the intent of the partt.

as that there was an implied prohibition in consuming electricity in excess of the maximum load as it would per se be also prejudiced. Not only this, the language of Regulations 82 SEETARAM RICE MILL and 106 also prescribe that the consumer is not expected to make use of power in excess of approved contract demand otherwise it would be change of user falling. within the ambit of 'unauthorised use of electricity'. Again, there is no occasion for this Court to give a restricted meaning to the language of Explanation (b)(iv) of Section 126. The contention that only the actual change in purpose of use of electricity and not change of category that would attract the provisions of Section 126 of the 2003 Act is again without any substance. 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. [Paras 49-50) [271-E-H; 272-A-E; 273-H; 274-A] Association of Industrial Electricity Users v. State of A. P. & Ors. (2002) 3 SCC 711: 2002 (2) SCR 273; Punjab State Electricity Board v. Vishwa Caliber Builders Private Ltd. (2010) 4 sec 539 - relied on. Question No. 2 and 3 3. 1. It is a settled canon of law that the High Court would not normally interfere in exercise of its jurisdiction under Article 226 of the Constitution of India where statutory alternative remedy is available. It is equally settled that this canon of law is not free of exceptions. The courts, including this Court, have taken the view that the statutory remedy, if provided under a specific law, would impliedly oust the jurisdiction of the Civil Courts.

The High Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India can entertain writ or appropriate proceedings despite availability of an alternative remedy. This jurisdiction, the High Court would exercise with some circumspection in exceptional cases, particularly, where the cases involve a pure question of law or vires of an Act are challenged. [para 5~] [275-D-F] 3. 2. It is somewhat difficult to state with absolute clarity any principle governing such exercise of jurisdiction. It always will depend upon the facts of a given 8 case. Interest of administration of justice shall be better subserved if the cases of the present kind are heard by the courts only where it involves primary questions of jurisdiction or the matters which goes to the very root of jurisdiction and where the authorities have acted beyond the provisions of the Act.

However, it should only be for the specialized Tribunal or the appellate authorities to examine the merits of assessment or even factual matrix of the case. The High Court should not decline to exercise its jurisdiction merely for the reason that there is a statutory alternative remedy available even when the case falls in the above-stated class of cases. It is a settled principle that the Courts/Tribunal will not exercise jurisdiction in futility. The law will not itself attempt to do an act which would be vain, lex nil frustra facit, nor to enforce one which would be frivolous-lex neminem cogit ad vana seu inutili~the law will not force any one to do a thing vain and fruitless. In other words, if exercise of jurisdiction by the Tribunal ex facie appears to be an exercise of jurisdiction in futility for any of the stated reasons, then it will be permissible for the High Court to interfere in exercise of its jurisdiction.

Applying these principles to the facts of the present case, it is obvious that no statutory appeal lay against a provisional order of assessment and the respondents herein were required to file objections as contemplated under Section 126 (3) of the 2003 Act. It was only when a final order of assessment was passed that the respondents could prefer a statutory appeal which admittedly was not done in the case in hand. [paras 54, 56] [276-B-F; 279-8-C] Whirlpool Corporation v. Registrar of Trade Marks, SEETARAM RICE MILL Mumbai (1998) 8 SCC 1: 1998 (2) Suppl. SCR 359; Union of India v. State of Haryana (2000) 10 SCC 482 - relied on. 3. 3. In the instant case, the High Court did not fall in error of jurisdiction in entertaining the writ petition but certainly failed to finally exercise the jurisdiction within the prescribed limitations of law for exercise of such jurisdiction.

Keeping in view the functions and expertise of the specialized body constituted under the Act including the assessing officer, it would have been proper exercise of jurisdiction, if the High Court, upon entertaining and deciding the writ petition on a jurisdictional issue, would have remanded the matter to the competent authority for its adjudication on merits and in accordance with law. In the facts of the instant case, the High Court should have answered the question of law relating to lack of jurisdiction and exercise of jurisdiction in futility without travelling into and determining the validity of the demand which squarely fell within the tfomain of the specialized authority. The High Court should have remanded the case to the assessing officer with a direction to the respondent to file its objections including non-applicability of" the tariff before the assessing authority and for determination in accordance with law. [Para 57] [279-D-G] Conclusions: 1.

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. 2. 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 a/ia 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. 3.

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. Thus, the High Court should normally decline to interfere in a final order of assessment passed by the assessing officer in terms of Section 126(3) of the 2003 Act in exercise of its jurisdiction under Article 226 of the Constitution of India. 4. The High Court did not commit any error of jurisdiction in entertaining the writ petition against the order raising a jurisdictional challenge to the notice/provisional assessment order dated 25th July, 2009. However, the High Court transgressed its jurisdictional limitations while travelling into the exclusive domain of the Assessing Officer relating to passing of an order of assessment and determining factual controversy of the case. ·5.

The High Court having dealt with the jurisdictional issue, the appropriate course of action would have been to remand the matter to the Assessing Authority by directing the consumer to file his objections, if any, as contemplated under Section 126(3) and require the Authority to pass a final order of assessment as contemplated under Section 126(5) of SEETARAM RICE MILL the 2003 Act in accordance with law. [Para 58] [279- H; 280-A-H; 281-A-C] 4. The judgment of the High Court is set aside and the matter is remanded to the Assessing Officer to pass a final order of assessment expeditiously, after providing opportunity to the respondent herein to file objections, if any, to the provisional assessment order, as contemplated under Section 126(3) of the 2003 Act. [para 59] [281-D] Case Law Reference: 1979 (3) SCR 472 relied on Para 12 1966 SCR 493 relied on Para 20 (2006) 3 sec 391 relied on Para 29 1996 (10) Suppl.

SCR 188 relied on Para 38 2008 (7) SCR 673 relied on Para 39 2010 (5) SCR 990 referred to Para 41 2003 (2) Suppl. SCR 787 referred to Para 47 (1995) 4 sec 328 referred to Para 47 (1998) 4 sec 471 referred to Para 48 2002 (2) SCR 273 referred to Para 49 (201 O) 4 sec 539 referred to Para 49 1998 (2) Suppl. SCR 359 referred to Para 54 (2000) 1o sec 482 referred to Para 55 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8859 of 2011. From the Judgment & Order dated 25. 10. 2010 of the High Court of Orissa at Cuttack in WP No. 12175 of 2009. Suresh Chandra Tripathy for the Appellants. Huzefa Ahmadi, Farrukh Rasheed, M. Paikray, V. N. Raghupathy for the Respondent. The Judgment of the Court was delivered by SWATANTER KUMAR, J. 1. Leave granted. 2. Over a period of time, it was felt that the performance of the State Electricity Boards had deteriorated on account of various factors.

Amongst others, the inability on the part of the State Electricity Boards to take decisions on tariffs in a professional and independent manner was one of the main drawbacks in their functioning. Cross-subsidies had reached unsustainable levels. To address this issue and to provide for distancing of governments from determination of tariffs, the Electricity Regulatory Commissions Act, 1998 (hereinafter, 'the 1998 Act') was enacted in addition to the existing statutes like Indian Electricity Act, 1910 (hereinafter, 'the 1910 Act') and the Electricity (Supply) Act, 1948 (hereinafter, 'the 1948 Act'). For a considerable time, these three legislations remained in force, governing the electricity supply industry in India. The Boards created by the 1948 Act and the bodies created under the 1998 Act, as well as the State Governments, were provided distinct roles under these statutes. There was still overlapping of duties and some uncertainty with regard to exercise of power under these Acts.

To address the issues like deterioration in performance of the Boards and the difficulties in achieving efficient discharge of functions, a better, professional and regulatory regime was introduced under the Electricity Bill, 2001, with the policy of encouraging private sector participation in generation, transmission and distribution of electricity and with the objective of distancing regulatory responsibilities from the Government by transferring the same to the Regulatory Commissions. The need for harmonizing and rationalizing the provisions of the earlier statutes was met by creating a new, SEETARAM RICE MILL [SWATANTER KUMAR, J. ] self-contained and comprehensive legislation. Another object was to bring unity in legislation and eliminate the need for the respective State Governments to pass any reform Act of their own.

This Bill had progressive features and strived to strike the right balance between the economic profitability and public purpose given the current realities of the power sector in India. This Bill was put to great discussion and then emerged the Electricity Act, 2003 (for short, 'the 2003 Act'). The 2003 Act had notably provided for private sector participation, private transmission licences for rural and remote areas, stand alone systems for generation and distribution, the constitution of an Appellate Tribunal, more regulatory powers for the State Electricity Regulation Commission and provisions relating to theft of electricity. The additional provisions were introduced in the 2003 Act in relation to misuse of power and punishment of malpractices such as over-consumption of sanctioned electric 0 load which are not covered by the provisions relating to theft; all of which had significant bearing upon the revenue focus intended by the Legislature.

This is the legislative history and objects and reasons for enacting the 2003 Act. 3. To ensure better regulatory, supervisory and revenue recovery system, as expressed in the objects and reasons of the 2003 Act, there was defipite concerted effort in preventing unauthorized use of electricity on the one hand and theft of electricity on the other. The present case falls in the former. According to the appellant, there was breach of the terms and conditions of the Standard Agreement Form for Supply of Electrical Energy by the Grid Corporation of Orissa Ltd. (hereinafter, 'the Agreement') as the consumer (respondent herein) had consumed electricity in excess of the contracted ~~- FACTS 4. We may briefly refer to the facts giving rise to the present appeal. Respondent herein, a partnership firm, claims to be a small scale industrial unit engaged in the production of rice. For carrying on the -;aid business, it had obtained electric supply under the Agreement.

Between the present appellant No. 1 and the respondent the Agreement dated 9th December, 1997 was executed for supply of power to the respondent. Keeping in view the contracted load, the respondent was classified as 'medium industry category'. This category deals with the contract demand of 99 KVA and above but below 110 KVA. According to the respondent, since the day of connection of power supply, the meter and all other associated equipments had been inspected by the appellants. On 10th June, 2009, the Executive Engineer, Jeypore Electrical Division and SDO, Electrical MRT Division, Jeypore inspected the business premises of the respondent's unit and dump was conducted. These officers issued a dump report by noticing as follows: "Dump of the Meter taken. Calibration of meter done and error found within limit. If any abnormality detected in Dump, it will be intimated later on. " 5.

It is the case of the respondent that no intimation was given to it as to finding of defects if any, in dump. On 25th July, 2009, provisional assessment order bearing No. 854 was issued by the appellants to the respondent. Intimation bearing No. 853 had also been issued on the same day which informed the respondent that there was unauthorized use of electricity falling squarely within the ambit of provisions of Section 126 of the 2003 Act. In the dump report dated 10th June, 2009, it was stated that there was unauthorized use of electricity and Maximum Demand (hereinafter MD) had been consumed up to 142 KVA. On this basis, the appellant passed the order of provisional assessment by taking the contracted demand as that applicable to large industry. The demand was raised, assessing the consumer for the period from June 2008 to August 2009 for a sum of Rs. 7,77,300/-. This was computed for 15 months at the rate of Rs. 200 per KVA (i. e.

, tariff for large industry) multiplied by two times, aggregating to the claimed SEETARAM RICE MILL [SWATANTER KUMAR, J. ] amount. Vide the provisional assessment order dated 25th July, 2009, assessment was made under Section 126(1) of the 2003 Act for unauthorized use of electricity, the respondent was required to file objections, if any, and to also pay the amount. The relevant part of the said provisional assessment order reads as under : "And Whereas you are entitled to file objections against the aforesaid provisional assessment order under Section 126(3) of Electricity Act, 2003, within 30 days from receipt hereof and further entitled to appear before the undersigned for an opportunity of being heard on 25. 08. 2009 during working hours from 11. 00 AM to 5. 00 PM.

And Whereas you are further entitled u/s 126(4) to deposit the aforesaid amount within 7 days and upon such deposit being made within 7 days, you shall not be subject to any further liability or any action by any authority whatsoever. And Whereas if you fail to file the objection within 30 days from receipt hereof, the undersigned shall presume that you have no objection to the provisional assessment and the undersigned shall proceed to pass final order u/s 126(3) on assessment of electricity charges payable by you. And Whereas, if you fail to appear before the undersigned at the aforesaid date and time after filing objections, if any, the undersigned shall proceed to pass the final order under section 126(3), based on the objection filed by you and evidence available on record. " 6.

The respondent did not file its objections/reply but challenged the said provisional assessment order and the intimation of unauthorized use before the High Court of Orissa, Cuttack by filing writ petition No. WP(C) No. 12175 of 2009 on the grounds of lack of authority and jurisdiction on the part of the Executive Engineer to frame the provisional assessment by alleging unauthorized use of electricity since 4th June, 2008. It was also contended that no inspection had been conducted in the business premises till date of dump, i. e. , 10th June, 2009 when unauthorized use of electricity was found. The respondent also challenged the maintainability and sustainability of the order of provisional assessment in calculating the dump charges for a period of 15 months from June 2008 to August 2009 on the basis of dump charges relating to large industry while the respondent was classified as medium scale industry.

It was also the contention raised by the respondent before the High Court that the provisions of Section 126 of the 2003 Act were not attracted in the present case at all. This claim of the respondent was contested by the appellants, as according to them, unauthorized use of electricity as defined under Section 126 will come into play as per clause (b) of the Explanation appended to Section 126 of the 2003 Act. The dump report dated 10th June, 2009 and the intimation dated 25th July, 2009 had been sent showing overdrawal of MD where, according to the appellants, the respondent had consumed electricity 'by means unauthorized by the licencee (overdrawal of maximum demand)' and thereby breached the Agreement and, therefore, the provisional assessment order and the intimation were fully justified. 7.

The High Court, vide impugned judgment, accepted the case of the re:;pondent and held that the words 'unauthorized use of electricity' and 'means' as provided in Explanation to Section 126 of the 2003 Act were exhaustive. Overdrawal of MD would not fall under the scope of 'unauthorized use of electricity' as defined under the 2003 Act, and the appellants had no jurisdiction to issue the intimation in question and pass the assessment order in terms of Section 126 of the 2003 Act. Aggrieved by the judgment of the High Court, the appellants have filed the present appeal by way of a special leave petition before this Court. SEETARAM RICE MILL [SWATANTER KUMAR, J. ] Questions for Determination : 1. Wherever the consumer consumes electricity in excess of the maximum of the contracted load, would the provisions of Section 126 of the 2003 Act be attracted on its true scope and interpretation? 8 2.

Whether the High Court, in the facts and circumstances of the case, was justified in · interfering with the provisional order of assessmenV show cause notice dated 25th July, 2009, in exercise of its jurisdiction under Article 226 of the Constitution of India? 3. Was the writ petition before the High Court under Article 226 of the Constitution of India not maintainable because of a statutory alternative remedy being available under Section 127 of the 2003 Act? Discussion on Merits 1. 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? 8. On the simple analysis of the facts as pleaded by the parties, it is contended on behalf of the respondent that the provisions of Section 126 of the 2003 Act are not attracted and no liability could be imposed upon them by the authorities in exercise of their power under that provision.

Even if the case advanced by the appellants against the respondent without prejudice and for the sake of argument is admitted, even then, at best, the demand could be raised under Regulation 82 of the Orissa Electricity Regulatory Commission Distribution (Condition of Supply) Regulations, 2004 (for short, 'the R0gulations'). But recourse to the provisions of Section 126 was impermissible in law. The contention is that the case of a consumer consuming the electricity in excess of maximum and the installed load does not fall within the mischief covered under Section 126 of the 2003 Act. To put it plainly, the argument is that the appellants lack inherent authority to raise such demand with reference to the present case on facts and law both. 9. On the contra, submission on behalf of the appellants is that the case of excessive consumption of power beyond the sanctioned load would be a case falling within the ambit of Section 126 of the 2003 Act.

Section 126 of the 2003 Act is incapable of an interpretation which would render the said provision otiose in cases which do not specifically fall under Section 135 of the 2003 Act. In order to answer these contentions more precisely, we find it appropriate to examin~' the question framed above, under the following sub-headings: (a) Interpretation; (b) Distinction between Sections 126 and 135 of the 2003 Act; (c) The ambit and scope of Section 126 with reference to the construction of the words 'unauthorised use' and 'means'; and (d) Effect and impact of change in applicz 1ility of tariff upon the power of assessment in accordance with the provisions of the 2003 Act and the relevant Regulations in the facts of the case. 1\a) Interpretation 10. First and foremost, we have to examine how provisions like Section 126 of the 2003 Act should be construed.

From the objects and reasons stated by us in the beginning of this judgment, it is clear that 'revenue focus' was one of the principal considerations that weighed with the Legislature while enacting this law. The regulatory regime under the 2003 Act empowers SEETARAM RICE MILL [SWATANTER KUMAR, J. ] the Commission to frame the tariff, which shall be the very basis for raising a demand upon a consumer, depending upon the category to which such consumer belongs and the purpose for which the power is sanctioned to such consumer. We are not prepared to accept the contention on behalf of the respondent that the provisions of Section 126 of the 2003 Act have to be given a strict and textual construction to the extent that they have to be read exhaustively in absolute terms. This is a legislation which establishes a regulatory regime for the generation and distribution of power, as well as deals with serious fiscal repercussions of this entire regime.

In our considered view, the two maxims which should be applied for interpretation of such statutes are ex visceribus actus (construction of the act as a whole) and ut res magis valeat quam pereat (it is better to validate a thing than to invalidate it). It is a settled cannon of interpretative jurisprudence that the statute should be read as 0 a whole. In other words, its different provisions may have to be construed together to make consistent construction of the whole statute relating to the subject matter. A construction which will improve the workability of the statute, to be more effective and purposive, should be preferred to any other interpretation which may lead to undesirable results. 11. It is true that fiscal and penal laws are normally construed strictly but this rule is not free of exceptions.

In given situations, this Court may, even in relation to penal statutes, decide that any njlrrow and pedantic, literal and lexical construction may not be given effect to, as the law would have to be interpreted having regard to the subject matter of the offence and the object that the law seeks to achieve. The provisions of Section 126, read with Section 127 of the 2003 Act, in fact, becomes a code in itself. Right from the initiation of the proceedings by conducting an inspection, to the right to file an appeal before the appellate authority, all matters are squarely covered under these provisions. It specifically provides the method of computation of the amount that a consumer would be liable to pay for excessive consumption of the electricity and .. for the manner of conducting assessment proceedings. In other words, Section 126 of the 2003 Act has a purpose to achieve, i. e. , to put an implied restriction on such unauthorized consumption of electricity.

The provisions of the 2003 Act, applicable regulations and the Agreement executed between the parties at the time of sanction of the load prohibit consumption of electricity in excess of maximum sanctioned/ installed load. In the event of default, it also provides for the consequences that a consumer is likely to face. It embodies complete process for assessment, determination and passing of a demand order. This defined legislative purpose cannot be permitted to be frustrated by interpreting a provision in a manner not intended in law. This Court would have to apply the principle of purposive interpretation in preference to textual interpretation of the provisions of Section 126 of the 2003 Act. We shall shortly discuss the meaning and scope of the 0 expressions used by the Legislature under these provisions.

At this stage, suffice it to note that this Court would prefer to adopt purposive interpretation so as to ensure attainment of the object and purpose of the 2003 Act, particularly, of the provisions of Section 126 in question. We may usefully refer to the judgment of this Court in the case of Bairam Kt mawat v. Union of India & Ors. [(2003) 7 SCC 628] wherein this Court discussed various tenets of interpretation and unambiguously held that these principles could be applied even to the interpretation of a fiscal or a penal statute. This Court held as under : "20. Contextual reading is a well-known proposition of interpretation of statute. The clauses of a statute should be construed with reference to the context vis-a-vis the other provisions so as to make a consistent enactment of the whole statute relating to the subject-matter. The rule of 'ex visceribus actus' should be resorted to in a situation of this nature. 21. In State of West Bengal v.

Union of India [1964] 1 SCR 371], the learned Chief Justice stated the law thus: .. SEETARAM RICE MILL [SWATANTER KUMAR, J. ] "The Court must ascertain the intention of the Legislature by directing its attention not merely to the clauses to be construed but to the entire statute; it must compare the clause with the other parts of the law, and the setting in which the clause to be interpreted occurs. " 22. The said principle has been reiterated in R. S. Raghunath v. State of Kamataka and Anr. [AIR 1992 SC 81). 23. Furthermore, even in relation to a penal statute any narrow and pedantic, literal and lexical construction may not always be given effect to. The law would have to be interpreted having regard to the subject matter of the offence and the object of the law it seeks to achieve. The purpose of the law is not to allow the offender to sneak out of the meshes of law. Criminal Jurisprudence does not say so. xxx xxx xxx 25. A statute must be construed as a workable instrument.

Ut res magis valeat quam pereat is a well-known principle . :if law. In Tinsukhia Electric Supply Co. Ltd. v. State of Assam [AIR 1990 SC 123], this Court stated the law thus "118. The courts strongly lean against any construction, which tends to reduce a statute to a futility. The provision of a statute must be so construed as to make it effective and operative, on the principle "ut res magis valeat quam perear. It is, no doubt, true that if a statute is absolutely vague and its language wholly intractable and absolutely meaningless, the statute could be declared void for vagueness. This is not in judicial review by testing the law for arbitrariness or unreasonableness under Article 14; but what a court of construction, dealing with the language of a statute, does in order to ascertain from, and accord to, the statute the meaning and purpose which the legislature intended for it. In Manchester Ship Canal Co. v. Manchester Racecourse Co. (1900) 2 Ch 352, Farwell J. said : (pp.

360-61) "Unless the words were so absolutely senseless that I could do nothing at all with them, I should be bound to find some meaning and not to declare them void for uncertainty. " In Fawcett Properties Ltd. v. Buckingham County Council [(1960) 3 All ER 503] Lord Denning approving the dictum of Farwell, J. said : "But when a Statute has some meaning, even though it is obscure, or several meanings, even though it is little to choose between them, the courts have to say what meaning the statute to bear rather than reject it as a nullity. " It is, therefore, the court's duty to make what it can of the statute, knowing that the statutes are meant to be operative and not inept and that nothing short of impossibility should allow a court to declare a statute unworkable. In Whitney v.

Inland Revenue Commissioners [1928 AC 37] Lord Dunedin said : "A statute is designed to be workable, and the interpretation thereof by a court should be to secure that object, unless crucial omission or clear direction makes that end unattainable. " xxx xxx xxx 27. The Courts will therefore reject that const. uction which will defeat the plain intention of the Legislature even though there may be some inexactitude in the language used. [See Salmon v. Duncombe (1886) 11 AC 827]. Reducing SEETARAM RICE MILL [SWATANTER KUMAR, J. ] the legislation futility shall be avoided and in a case where the intention of the Legislature cannot be given effect to, the Courts would accept the bolder construction for the purpose of bringing about an effective result. The Courts, when rule of purposive construction is gaining momentum, should be very reluctant to hold that the Parliament has achieved nothing by the language it used when it is tolerably plain what it seeks to achieve.

[See BBC Enterprises v. Hi-Tech Xtravision Ltd. , (1990) 2 All ER 118]. " 12. Further, in the case of Superintendent and Remembrancer of Legal Affairs to Government of West Bengal v. Abani Maity [(1979) 4 SCC 85], this Court held as under: "Exposition ex visceribus actus is a long recognised rule of construction. Words in a statute often take their meaning from the context of the statute as a whole. They are therefore, not to be construed in isolation. For instance, the use of the word "may" would normally indicate that the provision was not mandatory. But in the context of a particular statute, this word may connote a legislative imperative, particularly when its construction in a permissive sense would relegate it to the unenviable position, as it were, "of an ineffectual angel beating its wings in a luminous void in vain". If the choice is between two interpretations", said Viscount Simon L. C. in Nokes v. Doncaster Amalgamated Collieries, Ltd. [(1940) A. C.

1014] : 'the narrower of which would fail to achieve the manifest purpose of the legislation we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result'. " 13. The relevancy of objects and reasons for enacting an Act is a relevant consideration for the court while applying various principles of interpretation of statutes. Normally, the court would not go behind these objects and reasons of the Act. The discussion of a Standing Committee to a Bill may not be a very appropriate precept for tracing the legislative intent but in given circumstances, it may be of some use to notice some discussion on the legislative intent that is reflected in the substantive provisions of the Act itself.

The Standing Committee on Energy, 2001, in its discussion said, 'the Committee feel that there is a need to provide safeguards to check the misuse of these powers by unscrupulous elements'. The provisions of Section 126 of the 2003 Act are self-explanatory, they are intended to cover situations other than the situations specifically covered under Section 135 of the 2003 Act. This would further be a reason for this Court to adopt an interpretation which would 0 help in attaining the legislative intent. 14. By applying these principles to the provisions of this case requiring judicial interpretation, we find no difficulty in stating that 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.

1(b) Distinction between Sections 126 and 135 of the 2003 Act 15. Upon their plain reading, the mark differences in the contents of Sections 126 and 135 of the 2003 Act are obvious. They are distinct and different provisions which operate in different fields and have no common premise in law. We have already noticed that Sections 126 and 127 of the 2003 Act read together constitute a complete code in themselves covering all relevant considerations for passing of an order of assessment in cases which do not fall under Section 135 of the 2003 Act. Section 135 of the 2003 Act falls under Part XIV relating to SEETARAM RICE MILL [SWATANTER KUMAR, J. ] 'offences and penalties' and title of the Section is 'theft of electricity'.

The Section opens with the words 'whoever, dishonestly' does any or all of the acts specified under clauses (a) to (e) of Sub-section (1) of Section 135 of the 2003 Act so as to abstract or consume or use electricity shall be punishable for imprisonment for a term which may extend to three years or with fine or with tioth. Besides imposition of punishment as specified under these provisions or the proviso thereto, Subsection (1A) of Section 135 of the 2003 Act provides that without prejudice to the provisions of the 2003 Act, the licensee or supplier, as the case may be, through officer of rank authorized in this behalf by the appropriate commission, may immediately disconnect the supply of electricity and even take other measures enumerated under Sub-sections (2) to (4) of the said Section. The fine which may be imposed under Section 135 of the 2003 Act is directly proportional to the number of 0 convictions and is also dependent on the extent of load abstracted.

In contradistinction to these provisions, Section 126 of the 2003 Act would be applicable to the cases where there is no theft of electricity but the electricity is being consumed in violation of the terms and conditions of supply leading to malpractices which may squarely fall within the expression 'unauthorized use of electricity'. This assessment/proceedings would commence with the inspection of the premises by an assessing officer and recording of a finding that such consumer is indulging in an 'authorized use of electricity'. Then the assessing officer shall provisionally assess, to the best of his judgment, the electricity charges payable by such consumer, as well as pass a provisional assessment order in terms of Section 126(2) of the 2003 Act.

The officer is also under obligation to serve a notice in terms of Section 126(3) of the 2003 Act upon any such consumer requiring him to file his objections, if any, against the provisional assessment before a final order of assessment is passed within thirty days from the date of service of such order of provisional assessment. Thereafter, any person served with the order of provisional assessment may accept such assessment and deposit the amount with the licensee within seven days of service of such provisional assessment order upon him or prefer an appeal against the resultant final order under Section 127 of the 2003 Act. The order of assessment under Section 126 and the period for which such order would be passed has to be in terms of Sub-sections (5) and (6) of Section 126 of the 2003 Act. The Explanation to Section 126 is of some significance, which we shall deal with shortly hereinafter.

Section 126 of the 2003 Act falls under Chapter XII and relates to investigation and enforcement and empowers the assessing officer to pass an order of assessment. 16. Section 135 of the 2003 Act deals with an offence of theft of electricity and the penalty that can be imposed for such theft. This squarely falls within the dimensions of Criminal Jurisprudence and mens rea is one of the relevant factors for finding a case of theft. On the contrary, Section 126 of the 2003 Act 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. 17. Thus, it would be clear that the expression 'unauthorized use of electricity' under Section 126 of the 2003 Act deals with cases of unauthorized use, even in absence of intention.

These cases would certainly be different from cases where there is dishonest abstraction of electricity by any of the methods enlisted under Section 135 of the 2003 Act. A clear example would be, where a consumer has used excessive load as against the installed load simpliciter and there is violation of the terms and conditions of supply, then, the case would fall under Section 126 of the 2003 Act. On the other hand, where consumer, by any of the means and methods as specified under Sections 135(a) to 135(e) of the 2003 Act, has abstracted energy with dishonest intention and without authorization, like providing for a direct connection bypassing the installed meter, the case would fall under Section 135 of the Act. Therefore, SEETARAM RICE MILL [SWATANTER KUMAR, J. ] there is a clear distinction between the cases that would fall under Section 126 of the 2003 Act on the one hand and Section 135 of the 2003 Act on the other. There is no commonality between them in law.

They operate in different and distinct fields. The assessing officer has been vested with the powers to pass provisional and final order of assessment in cases of unauthorized use of electricity and cases of consumption of electricity beyond contracted load will squarely fall under such power. The legislative intention is to cover the cases of malpractices and unauthorized use of electricity and then theft which is governed by the provisions of Section 135 of the 2003 Act. 18. Section 135 of the 2003 Act significantly uses the words 'whoever, dishonestly' does any of the listed actions so as to abstract or consume electricity would be punished in accordance with the provisions of the 2003 Act. 'Dishonesty' is a state of mind which has to be shown to exist before a person can be punished under the provisions of that Section. 19. The word 'dishonest' in normal parlance means 'wanting in honesty'.

A person can be said to have 'dishonest intention' if in taking the property it is his intention to cause gain, by unlawful means, of the property to which the person so gaining is not legally entitled or to cause loss, by wrongful means, of property to which the person so losing is legally entitled. 'Dishonestly' is an expression which has been explained by the Courts in terms of Section 24 of the Indian Penal Code, 1860 as 'whoever does anything with the intention of causing wro