1. This case was heard on 12.03.2019 and today is fixed for delivery of order.
2. By filing this application under Article 226 of the Constitution of India, the petitioners pray for quashing of the impugned order dated 14.12.2010 passed by the Appellate Authority for Assam Power Distribution Company Limited (APDCL) in Appeal No.16/2010 with a further direction to the respondents to refund/adjust the amount paid by the petitioners with interest @ 18% per annum.
3. The aforesaid appeal was preferred under Section 127 of the Electricity Act, 2003 (for short, "2003 Act") against the final assessment order made under Section 126 of the 2003 Act passed by the Area Manager, Industrial Revenue Collection Area, Upper Assam Electricity Distribution Company Limited (UAEDCL), (ASEB), Jorhat, whereby an amount of Rs. 13,87,167/- was held to be payable by the petitioners on account of malpractice for which an assessment bill dated 28.08.2010 was raised.
4. The petitioner No.1 is a Partnership Firm of the petitioner Nos.2 & 3 and the petitioners have a Flour Mill situated at Mariani Road, Jorhat, where Atta, Suji and Maida are mainly manufactured. The Mill was established in the year 2001 and the petitioners are consumers of electricity under APDCL with sanctioned load of 210KV.
5. On 27.08.2010, the officials of the Office of the MTI Division, Guwahati, Lower Assam Electricity Distribution Company Limited (LAEDCL), visited the premises of the petitioners and during inspection, evidence of tempering in the metering system was found. Accordingly, electricity connection was disconnected on 27.08.2010 and an assessment bill for Rs. 13,87,167/- was raised. Subsequent thereto, the final order under Section 126 of the 2003 Act was passed on 24.09.2010 as against which the appeal, as noted earlier, was preferred and which also came to be rejected on 14.12.2010.
6. I have heard Mr. S.P. Roy, learned counsel for the petitioners. Also heard Mr. B.D. Das, learned senior standing counsel, APDCL, appearing for all the respondents.
7. Mr. Roy has drawn the attention of the Court to the inspection report (Annexure1 of the writ petition) to contend that when the meter cover seal was found intact, the remarks made in the said inspection report that there was tempering in the metering system is perverse. He further submits that assuming but not admitting that there was any tempering in the metering system, in the circumstances of the case, provisions of Section 135 of the 2003 Act would only be attracted and, therefore, taking recourse to Section 126 of the 2003 Act is clearly erroneous. It is further submitted by him with reference to Annexure-2 that in terms of Section 126(3) of the 2003 Act, no opportunity of hearing was provided and in this context, he also submits that the provisional assessment bill was prepared on the basis of the Indian Electricity Act, 1910 read with Clause 23(e)(1) of the Terms & Conditions of Supply, 1998, both of which were not in force at the relevant time and, therefore, the entire process is vitiated due to non application of mind. It is submitted by him that the appellate authority, without considering all those aspects, mechanically passed the impugned order. In support of his submissions, Mr. Roy has placed reliance on the judgment of the Supreme Court in the cases of (i) Badri Kedar Paper Private Limited -Vs- Uttar Pradesh Electricity Regulatory Commission & Ors., (2009) 3 SCC 754 and (ii) Executive Engineer, Southern Electricity Supply Company of Orissa Limited (SOUTHCO) & Anr. -Vs- Sri Seetaram Rice Mill, (2012) 2 SCC 108.
8. Mr. Das, on the other hand, has submitted that on due consideration of the relevant aspects of the matter, the Appellate Authority had passed the impugned order dated 14.12.2010 and the same cannot be faulted on any account. He has submitted that it is not correct as submitted by Mr. Roy that no opportunity of hearing was granted to the petitioners in terms of Section 126(3) of the 2003 Act and to buttress his contention, he has drawn attention of the Court to the order dated 24.09.2010 passed by the Area Manager, Industrial Revenue Collection Area, UAEDCL, (ASEB), Jorhat. While admitting that in the letter dated 27.08.2010 (Annexure-2 of the writ petition), there is a reference to Indian Electricity Act, 1910 and the Terms & Conditions of Supply, 1998, he, however, contends that no prejudice is caused to the petitioners thereby as in the letter dated 28.08.2010 (Annexure-3 of the writ petition), through which the assessment bill was served upon the petitioners, it was specifically indicated that the same was raised as per Clauses 5.A.3 and 5.A.4 of the Electricity Supply Code & Related Matters Regulations, 2004.
9. Drawing attention of the Court to the memo of appeal, which was filed before the Appellate Authority under Section 127 of the 2003 Act, Mr. Das submits that no ground whatsoever was taken that raising of assessment bill under Section 126 of the 2003 Act was not warranted and that the petitioners ought to have been proceeded with under Section 135 of the 2003 Act. As no plea in that regard was raised, he submits that this Court may not go into that aspect of the matter. Even otherwise, it being a clear case of unauthorised use of electricity, there is no merit in the writ petition and accordingly, the same deserves to be dismissed, he submits.
10. I have considered the submissions advanced by the learned counsel appearing for the parties and have also perused the materials on record.
11. In the inspection report dated 27.08.2010 (Annexure-1 of the writ petition) of the MTI Division, Guwahati, it is observed as follows:-
"General remarks On observation of testing/inspection - MRI Reading is taken for computer analysis. Meter parameters are noted. 7-Core armored copper metering cable is checked and found a portion of 8.5 cms cable is covered by M. seal compound near the meter cabinet box. M. seal is removed in presence of consumer representative and found CT wires are shorted by removing insulations and armored wires of the cable which is clear evidence of tampering in metering system. The matter is reported to Sr. Manager, Jorhat Elect. Div-II and he was advised to take necessary follow up action as per T&C of ASEB."
12. Section 126(3) of the 2003 Act provides that the person, on whom an order of provisional assessment has been served under sub-section (2), shall be entitled to file objections, if any, against the provisional assessment before the Assessing Officer, who shall, after affording an reasonable opportunity of hearing to such person, pass a final order of assessment within 30(thirty) days from the date of service of such order of provisional assessment, of the electricity charges payable by such person.
13. A perusal of the order dated 24.09.2010 goes to show that the petitioners were heard on 20.09.2010 and the petitioner No.1 was represented in such hearing by Shri Hari Sharma, Manager and another employee, Shri R. Bharali. Accordingly, the plea advanced by Mr. Roy that the petitioners were not heard before passing the final order under Section 126 of the 2003 Act is found to be without any basis. In fact, no such plea was raised in the appeal preferred under Section 127 of the 2003 Act. The letter dated 28.08.2010 (Annexure3 of the writ petition) having clearly indicated that assessment bill was raised on the basis of Clauses 5.A.3 and 5.A.4 of the Electricity Supply Code & Related Matters Regulations, 2004, reference to the Indian Electricity Act, 1910 and the Terms & Conditions of Supply, 1998 in the notice dated 27.08.2010 (Annexure-2 of the writ petition) did not cause any prejudice to the petitioners.
14. The Appellate Authority in its order dated 14.12.2010 recorded as under:-
"It is noted that the cable leading to the meter was cut and filled with M-seal compound. It is an admitted fact. It is also noted that the respondent has taken action as per laid down procedure of relevant rules and regulations. Though the appellant submitted that the cable was damaged accidentally, they could not prove the same beyond reasonable doubt. It was the duty of the appellant to inform the authority if there was any accidental damage to the cable so that the authority could have rectified the same. Instead they have concealed the same by putting M-seal compound. As such their plea of accidental damage cannot be accepted. Regarding other issues raised by the appellant, the respondent has replied to the satisfaction, as discussed above."
15. "Unauthorised use of electricity" is defined in Explanation (b) of Section 126(6) of the 2003 Act. The same reads as under:-
"(i) by any artificial means; or
(ii) by a means not authorised by the concerned person or authority or licensee; or
(iii) through a tampered meter; or
(iv) for the purpose other than for which the usage of electricity was authorised; or
(v) for the premises or areas other than those for which the supply of electricity was authorised."
16. Interference with the metering system will come within the ambit of "unauthorised use of electricity". A finding had been recorded by the Appellate Authority that the consumer had indulged in malpractice. On the basis of the materials on
Please Login To View The Full Judgment!
record and having regard to the MTI report, it cannot be said that the finding is perverse. When no plea had been set up before any of the authorities that notice under Section 126 of the 2003 Act was incompetent, this aspect of the matter, as raised by Mr. Roy, need not be gone into. As such, a detail discussion on Executive Engineer, Southern Electricity Supply Company of Orissa Limited (SOUTHCO) (supra), wherein the Supreme Court had examined the distinction between the cases that would fall under Section 126 of the 2003 Act and Section 135 of the 2003 Act is not considered necessary. The other judgment, i.e. Badri Kedar Paper Private Limited (supra), cited by Mr. Roy, was primarily in the context of estoppel, acquiescence and waiver and, therefore, in the facts and circumstances of the case, the said decision has no application in the instant case. 17. On a consideration of the materials on record, I am of the considered opinion that no case is made out for interference and accordingly, the writ petition is dismissed. No cost.