w w w . L a w y e r S e r v i c e s . i n



M/s. Himadri Steel Pvt. Ltd. v/s Jharkhand Urja Vikas Nigam Limited


Company & Directors' Information:- JHARKHAND URJA VIKAS NIGAM LIMITED [Active] CIN = U40108JH2013SGC001603

Company & Directors' Information:- S A L STEEL LIMITED [Active] CIN = L29199GJ2003PLC043148

Company & Directors' Information:- M M S STEEL PRIVATE LIMITED [Active] CIN = U27109TZ1996PTC006849

Company & Directors' Information:- G. O. STEEL PRIVATE LIMITED [Active] CIN = U27100PB2007PTC031033

Company & Directors' Information:- J M G STEEL PRIVATE LIMITED [Strike Off] CIN = U27105BR1992PTC004985

Company & Directors' Information:- H L STEEL PVT LTD [Active] CIN = U27107AS1992PTC003726

Company & Directors' Information:- K V M STEEL PRIVATE LIMITED [Active] CIN = U29141DL1988PTC031248

Company & Directors' Information:- K STEEL PRIVATE LIMITED [Strike Off] CIN = U27104JH1973PTC000998

Company & Directors' Information:- R. J. STEEL PRIVATE LIMITED [Active] CIN = U28112MH2009PTC193047

Company & Directors' Information:- M M STEEL PRIVATE LIMITED [Active] CIN = U27107MH2001PTC131270

Company & Directors' Information:- HIMADRI STEEL PRIVATE LIMITED [Active] CIN = U27310WB2005PTC102808

Company & Directors' Information:- B L STEEL PVT LTD [Active] CIN = U51909WB1981PTC034021

Company & Directors' Information:- R K G STEEL PRIVATE LIMITED [Active] CIN = U27109DL2004PTC128852

Company & Directors' Information:- V B STEEL PRIVATE LIMITED [Active] CIN = U28112MH2010PTC211691

Company & Directors' Information:- I B STEEL COMPANY PRIVATE LIMITED [Strike Off] CIN = U28910MH2010PTC211344

Company & Directors' Information:- J S C STEEL PRIVATE LIMITED [Active] CIN = U27106UP2013PTC061568

Company & Directors' Information:- S. M. STEEL PRIVATE LIMITED [Active] CIN = U51101MH2013PTC239811

Company & Directors' Information:- R K P STEEL LTD [Active] CIN = L27109WB1980PLC033206

Company & Directors' Information:- C P STEEL PRIVATE LIMITED [Active] CIN = U27100WB2008PTC127447

Company & Directors' Information:- A. K. J. STEEL PRIVATE LIMITED [Active] CIN = U28112WB2010PTC144880

Company & Directors' Information:- C D STEEL PVT LTD [Under Liquidation] CIN = U27109WB1981PTC034340

Company & Directors' Information:- T M S STEEL PRIVATE LIMITED [Strike Off] CIN = U02710TZ1996PTC007498

Company & Directors' Information:- P M R STEEL PRIVATE LIMITED [Active] CIN = U51102DL2003PTC122675

Company & Directors' Information:- C T STEEL PVT LTD [Active] CIN = U27109WB2005PTC106634

Company & Directors' Information:- P G STEEL PVT LTD [Strike Off] CIN = U24111AS1998PTC005409

Company & Directors' Information:- A AND S STEEL PRIVATE LIMITED [Active] CIN = U63090DL1987PTC027835

Company & Directors' Information:- J S STEEL PRIVATE LIMITED [Active] CIN = U52190CT1978PTC001432

Company & Directors' Information:- U M STEEL PRIVATE LIMITED [Strike Off] CIN = U27209TN1986PTC013670

Company & Directors' Information:- L N STEEL PRIVATE LIMITED [Active] CIN = U27310WB2007PTC118206

Company & Directors' Information:- K. D. W. STEEL PRIVATE LIMITED [Active] CIN = U28910UP2011PTC043976

Company & Directors' Information:- R. N. STEEL PRIVATE LIMITED [Active] CIN = U27100WB2007PTC116588

Company & Directors' Information:- P M STEEL PRIVATE LIMITED [Active] CIN = U27105MP1982PTC001915

Company & Directors' Information:- M R STEEL (INDIA) PRIVATE LIMITED [Active] CIN = U27100TG2013PTC088808

Company & Directors' Information:- C K STEEL PVT LTD [Active] CIN = U29150WB1975PTC030259

Company & Directors' Information:- VIKAS R & D INDIA PRIVATE LIMITED [Active] CIN = U73100DL2012PTC232875

Company & Directors' Information:- K STEEL & COMPANY PVT LTD [Strike Off] CIN = U51909WB1991PTC053960

Company & Directors' Information:- N S STEEL PVT LTD [Strike Off] CIN = U27106PB1980PTC004266

Company & Directors' Information:- NIGAM & NIGAM PVT LTD [Strike Off] CIN = U35921WB1987PTC042595

Company & Directors' Information:- URJA (INDIA) PRIVATE LIMITED [Active] CIN = U31900MP2010PTC024765

Company & Directors' Information:- R C STEEL PVT LTD [Strike Off] CIN = U28112AS1980PTC001811

Company & Directors' Information:- P D STEEL PRIVATE LIMITED [Strike Off] CIN = U74899DL1989PTC038426

Company & Directors' Information:- A K STEEL PVT LTD [Strike Off] CIN = U99999DL1961PTC003566

Company & Directors' Information:- H S P STEEL PRIVATE LIMITED [Strike Off] CIN = U27100MH2013PTC242983

Company & Directors' Information:- D H STEEL PRIVATE LIMITED [Strike Off] CIN = U27109RJ2012PTC039742

Company & Directors' Information:- R K URJA PRIVATE LIMITED [Active] CIN = U41106MH2004PTC145509

Company & Directors' Information:- R A STEEL PRIVATE LIMITED [Active] CIN = U51909MH2014PTC253625

Company & Directors' Information:- N. V. STEEL PRIVATE LIMITED [Strike Off] CIN = U27310DL2009PTC186541

Company & Directors' Information:- K. D. STEEL PRIVATE LIMITED [Strike Off] CIN = U28939DL2012PTC244467

Company & Directors' Information:- STEEL INDIA PRIVATE LIMITED [Strike Off] CIN = U00349KA1958PTC001309

Company & Directors' Information:- VIKAS PVT LTD [Strike Off] CIN = U99999MH1949PTC007334

    W.P.(C) No. 6054 of 2017

    Decided On, 05 September 2018

    At, High Court of Jharkhand

    By, THE HONOURABLE MR. JUSTICE SHREE CHANDRASHEKHAR

    For the Appellant: Navaniti Prasad Singh, Sr. Advocate, Dhananjay Kr. Pathak, Sweta Rani, Shashi Kant Mishra, Naina Mishra, Advocates. For the Respondent: Ajit Kumar, Advocate-General, Navin Kumar, Sr. S.C, Prabhat Singh, S.C.



Judgment Text


Shree Chandrashekhar, J.

1. Legality of the provisional assessment order dated has been challenged by the petitioner-M/s. Himadri Steel Private Limited. Steel Private Limited.

2. Briefly stated, the petitioner, a company registered under the Companies Act, 1956, has been granted electrical connection under HTSS tariff with contract demand of 3000 KVA, which was energized on 03.07.2006. On account of a massive blast in the cubical metering unit there was electricity break-down in the petitioner's premises which was rectified on 16.06.2017 by a team of the respondent-Nigam's officials and a report was prepared. The report thus prepared records that metering unit chamber was slightly damaged, K-phase CT and all PT were found in proper condition (written as OK), meter reading was correct and there was proper sealing, however, b-phase CT which was totally cracked and damaged was replaced. No evidence of misutilisation or theft of electricity was found. The meter readings for the previous successive several months or after June, 2017 record description of meter chamber and the meter chamber glass and everything seems to be fine till 26.09.2017 when an inspection was carried out at the petitioner's premises; the meter reading report has been prepared by a 5-member team of the Nigam's officials.

3. The inspection report dated 26/27.09.2017 has become centre for controversy in this case.

4. On the basis of a written report of the Assistant Electrical Engineer, Chakulia P.S. Case No. 30 of 2017 under Section 379/420/353 I.P.C and under Section 135/137/138 of the Electricity Act, 2003 was lodged. On 27.09.2017, the petitioner has submitted its written objection to the inspection report dated 26/27.09.2017, however, on 29.09.2017 provisional assessment under section 135 of the Electricity Act, 2003 read with Clause 11.9 of the Jharkhand State Electricity Regulatory Commission (Electricity Supply Code) Regulations, 2015 was passed and the petitioner was directed to pay Rs. 3,23,71,524/-which according to the respondent-Nigam is the amount of loss caused due to theft of electricity by the petitioner. The petitioner has pleaded that during investigation no evidence of theft of electricity was found and accordingly, the police has submitted Final Form No. 39 of 2017 dated 30.11.2017; a protest-cum-complaint to the Final Form submitted by the police, however, has been filed on behalf of the Nigam.

5. In the counter-affidavit, the respondents have asserted that the procedure under the Electricity Supply Code Regulations, 2015 in case of theft of electricity has been followed and the provisional assessment order dated 29.09.2017 has been served upon the petitioner under sub-section (1-A) to Section 135 and that it was not a case of suspected theft rather, there were arrangements made for theft in such a manner that it can be easily made or removed at any time and, thus, cannot be detected in routine inspection. Allegations of non-cooperation during inspection and non-submission of the production chart have been made in the counter-affidavit. These allegations have been denied by the petitioner and it has produced its production chart. The written notes of argument filed on behalf of the respondents reiterates the aforesaid stand taken by the respondents in the counter-affidavit, and a portion of the judgment in "M/s. Shyam Lal Iron and Steel Company Through One of Its Directors Shri Shambhu Lal Shaw vs. Jharkhand State Electricity Board Through Its Chairman, Engineers Bhawan, Dhurwa., Ranchi and Others" reported in 2013 (3) JLJR 435 has been quoted extensively to contend that the remedy for the petitioner on its grievances as projected in the writ petition lies elsewhere and not in a proceeding under Article 226 of the Constitution of India.

6. The Electricity Act, 2003 is a special legislation and it contains few unique features; one being powers vested in the Special Court constituted under Section 153 to assess civil liability as well. Chapter XII of the Electricity Act, 2003 deals with "unauthorized use of electricity". Section 126 provides that if on an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found connected or used, or after inspection of records maintained by any person, the assessing officer comes to the conclusion that such person is indulging in "unauthorized use of electricity", he shall assess the electricity charges payable by such person or by any other person benefited by such use. Section 127 provides a forum for appeal to any person aggrieved by final order made under Section 126. Section 135 defines "theft of electricity". It provides an exhaustive definition of theft of electricity which includes various acts of interference with meter, tapping of electricity, making or causing to be made any connection with overhead, underground or underwater lines or cables, or service wires, or service facilities of a licensee and tampering of meter, installation or use of tampered meter etc. It also provides punishment for the first offender and subsequent conviction, vests powers in the licensee and the supplier to disconnect electricity, power of search and seizure, examination or seizure of any books of accounts or documents and raising a provisional assessment bill. Various acts of "unauthorized use of electricity" also seem to constitute offence under Part XIV for which sentence and fine are prescribed. Section 126 and Section 135 are distinct and different provisions which operate in different fields and have no common premise in law [refer "Uttar Pradesh Power Corporation Limited and Others vs. Anis Ahmad" reported in (2013) 8 SCC 491]. The cases covered under Section 126 are those in which electricity was consumed in variation of the terms and conditions of supply leading to malpractices and mens rea is not an essential ingredient under Section 126, whereas for finding a case of theft mens rea is one of the relevant factors. Part XIV of the Electricity Act, 2003 provides a complete mechanism how cases of theft of electricity have to be dealt with. Part XIV seems to be a complete code in itself. Section 135 reads as under :

"135. Theft of electricity.-(1) Whoever, dishonestly-

(a) taps, makes or causes to be made any connection with overhead, underground or underwater lines or cables, or service wires, or service facilities of a licensee or supplier, as the case may be; or

(b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or

(c) damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of electricity; or

(d) uses electricity through a tampered meter; or

(e) uses electricity for the purpose other than for which the usage of electricity was authorized,

so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may be extend to three years or with fine or with both;

Provided that in a case where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use-

(i) does not exceed 10kW, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction the fine imposed shall not be less than six times the financial gain on account of such theft of electricity;

(ii) exceeds 10kW, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction, the sentence shall be imprisonment for a term not less than six months, but which may extend to five years and with fine not less than six times the financial gain on account of such theft of electricity:

Provided further that in the event of second and subsequent conviction of a person where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use exceeds 10kW, such person shall also be debarred from getting any supply of electricity for a period which shall not be less than three months but may extend to two years and shall also be debarred, from getting supply of electricity for that period from any other source or generating station:

Provided also that if it is proved that any artificial means not authorized by the Board or licensee or supplier, as the case may be, exist for the abstraction, consumption or use of electricity by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of electricity has been dishonestly caused by such consumer.

(1-A) Without prejudice to the provisions of this Act, the licensee or supplier, as the case may be, may, upon detection of such theft of electricity, immediately disconnect the supply of electricity:

Provided that only such officer of the licensee or supplier, as authorized for the purpose by the appropriate Commission or any other officer of the licensee or supplier, as the case may be, of the rank higher than the rank so authorized shall disconnect the supply line of electricity:

Provided further that only such officer of the licensee or supplier, as the case may be, shall lodge a complaint in writing relating to the commission of such offence in police station having jurisdiction within twenty-four hours from the time of such disconnection:

Provided also that the licensee or supplier, as the case may be, on deposit or payment of the assessed amount or electricity charges in accordance with the provisions of this Act, shall, without prejudice to the obligation to lodge the complaint as referred to in the second proviso to this clause, restore the supply line of electricity within forty-eight hours of such deposit or payment.

(2) Any officer of the licensee or supplier as the case may be, authorized in this behalf by the State Government may-

(a) enter, inspect, break open and search any place or premises in which he has reason to believe that electricity has been or is being used unauthorizedly;

(b) search, seize and remove all such devices, instruments, wires and any other facilitator or article which has been or is being used for unauthorized use of electricity;

(c) examine or seize any books of account or documents which in his opinion shall be useful for or relevant to, any proceedings in respect of the offence under subsection (1) and allow the person from whose custody such books of account or documents are seized to make copies thereof or take extracts therefrom in his presence.

(3) The occupant of the place of search or any person on his behalf shall remain present during the search and a list of all things seized in the course of such search shall be prepared and delivered to such occupant or person who shall sign the list:

Provided that no inspection, search and seizure of any domestic places or domestic premises shall be carried out between sunset and sunrise except in the presence of an adult male member occupying such premises.

(4) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974), relating to search and seizure shall apply as far as may be, to searches and seizure under this Act."

7. Challenge to the provisional assessment order dated 29.09.2017 is founded on two grounds, namely; it is without jurisdiction, and illegal.

8. Powers of the authorized officer to make the provisional assessment order are not hedged with any statutory limitations, though the Electricity Supply Code Regulations, 2015 provide some procedural safeguards. Obviously, challenge to the provisional assessment order on the ground that the authorized officer has no jurisdiction must be grounded on lack of jurisdictional facts. It is now settled that jurisdiction of the Court to entertain a suit or an application depends upon the averments contained in the plaint or the claim application and not on the defence taken by the other party [refer "Sanwarmai Kejriwal vs. Vishwa Co-operative Housing Society Ltd. and Others" reported in (1990) 2 SCC 288]. A jurisdictional fact is one on existence or nonexistence of which depends assumption or refusal to assume jurisdiction by a Court, tribunal or an authority [refer "Shrisht Dhawan (SMT) vs. M/s. Shaw Brothers" reported in (1992) 1 SCC 534]. It has been held that if the jurisdictional facts do not exist the Court or tribunal or the authority cannot act, and if existence of jurisdictional facts has wrongly been assumed, a writ of certiorari would lie.

9. In the context of sub-section (1-A) to section 135 of the Electricity Act, 2003, jurisdictional facts which must appear in the inspection report are those facts which connect the consumer to the theft of electricity.

10. Scheme under sub-section (1-A) seems to run like this: upon detection of theft of electricity supply of electricity is disconnected, a provisional assessment order is made and a First Information Report is lodged and if the consumer deposits the assessed amount, whether a First Information Report has been lodged or not, electricity supply shall be restored within forty-eight hours. Sub-section (1-A) provides that the licensee or supplier, as the case may be, may, upon detection of theft of electricity, immediately disconnect the supply of electricity.

11. Sub-section (1-A) begins with the expression "without prejudice to the provisions of this Act". The expression "without prejudice" has occurred at two places in Section 135 (1-A). What meaning can be assigned to "without prejudice" is a matter of interpretation which is capable of variation according to its uses. But generally it is meant as a declaration that rights and privileges of the party concerned are not waived or lost, except what has been expressly conceded or admitted. The expression "without prejudice" has been used in sub-section (1-A) to carve out an exception, an exception to the duty to supply electricity under Section 43 and not to disconnect supply of electricity if a defaulter deposits an amount equal to the sum claimed from him under Section 56, to immediately disconnect the supply of electricity upon detection of theft of electricity. Sub-section (1-A) is followed by three proviso. It is well known that a "proviso" restricts operation of the main provision. The first proviso to sub-section (1-A) confers a power upon the licensee or supplier or any other officer of the licensee or supplier as authorized by the Appropriate Commission for the purpose of sub-section (1-A) which runs counter to the obligations under Section 43 and Section 56. Power to immediately disconnect the supply of electricity upon detection of theft of electricity is, thus, a special power authorized by law. The first proviso provides that for the purpose of sub-section (1-A) only officer of the licensee or supplier who are authorized by the Appropriate Commission or any other officer of the licensee or supplier, but of the rank higher than the rank so authorized by the Appropriate Commission only can disconnect the supply line of electricity. Under the second proviso officer of the licensee or supplier is under an obligation to lodge a complaint in writing relating to the commission of theft of electricity in the police station having jurisdiction, within twenty-four hours from the time of disconnection of the supply of electricity. The third proviso provides respite to the consumer which has suffered disconnection of the supply of electricity on an allegation of theft of electricity. It again puts an obligation on the licensee or supplier, as the case may be, to restore the supply line of electricity within forty-eight hours of deposit of the provisional assessment bill. The third proviso also finds the expression "without prejudice" in it. It reads as under :

"Provided also that the licensee or supplier, as the case may be, on deposit or payment of the assessed amount or electricity charges in accordance with the provisions of this Act, shall, without prejudice to the obligation to lodge the complaint as referred to in the second proviso to this clause, restore the supply line of electricity within forty-eight hours of such deposit or payment".

12. It is thus apparent that under the scheme of sub-section (1-A) the starting point is inspection. It is the inspection report which would reveal that theft of electricity has been detected in course of inspection. It is therefore necessary that the inspection report must reveal and record the evidences collected during the inspection on the basis of which the authorized officer has recorded its satisfaction that it is a case of theft of electricity. Under Regulation 11.5 the authorized officer is required to prepare a report in which any irregularity, if noticed, such as tampered meter, artificial means adopted for theft of energy, must be recorded. Regulation 11.6 provides that the report shall clearly indicate whether sufficient evidence substantiating the fact that theft of energy was found or not, and the details of such evidences must also be recorded therein.

13. The learned Advocate-General has contended that it is the subjective satisfaction of the authorized officer on the basis of which the provisional assessment order for theft of electricity is made and the Court in the writ jurisdiction would not review subjective satisfaction of the authorized officer.

14. Admittedly, it is the inspection report which forms basis for the provisional assessment order in the case of theft of electricity and while so, subjective satisfaction of the authorized officer must reflect in the inspection report. What the authorized officer has found and what is his opinion must be reduced in writing in the inspection report. It is not like this; that it can be inferred from the inspection report that theft of electricity has occurred and therefore supply line disconnected and a First Information Report lodged. De hors the observations in the inspection report, if a First Information Report is lodged, it would not confer powers and jurisdiction upon the authorized officer to make an order of provisional assessment. This assumes significance also for the reason that the authorized officer who has passed provisional assessment order may not be the one who has carried out the inspection. Section 135 itself creates two separate class of officers of the licensee and the supplier. The officers of the licensee or supplier, as the case may be, who may disconnect the supply of electricity under sub-section (1-A) are those who are authorized for this purpose by the Appropriate Commission (first proviso), whereas officers of the licensee and the supplier who may enter, inspect, break-open, search any place or premises are those who are authorized in this behalf by the State Government (sub-section 2). It may be so, that the officers authorized by the Appropriate Commission are the officers authorized by the State Government also, but then a converse may also occur. If the officer who has conducted inspection of the consumer's premises and prepared the inspection report is not the one who has passed the provisional assessment order, and, if the inspection report does not furnish the details of theft of electricity, it cannot be contemplated in law that, still, the authorized officer would have jurisdiction to proceed to make provisional assessment of loss suffered due to theft of electricity. The fact, that the officer authorized by the Appropriate Commission has disconnected the supply line of electricity and lodged a First Information Report, cannot be read into the inspection report so as to confer jurisdiction upon the authorized officer to pass provisional assessment order.

15. Therefore, it is the inspection report and the inspection report alone which must record the jurisdictional facts so as to clothe the authorized officer with powers and jurisdiction to pass a provisional assessment order. It is not sufficient that under subsection (1-A) the authorized officer has powers and jurisdiction to pass a provisional assessment order and the officer making the assessment order is authorized by law; jurisdictional facts must appear from the inspection report. If it is held that since a First Information Report has been lodged and therefore the authorized officer has powers to make provisional assessment, such an interpretation would lead to uncertainty and would confer unbridled powers upon the officers of the licensee or supplier, as authorized by the Appropriate Commission, to lodge a First Information Report and raise provisional assessment bill. Only if the inspection report records a finding on the theft of electricity and gives details of the evidences collected during the inspection which unerringly disclose theft of electricity, irrespective of the obligation to lodge a First Information Report within twenty-four hours of disconnection of electricity as provided under second proviso to sub-section (1-A), the provisional assessment order can be sustained. A plain reading of the third proviso makes it apparent that a provisional assessment order can be made prior to registration of a First Information Report. Under the Electricity Supply Code Regulations, 2015, however, a provisional assessment order can be made even after registration of a First Information Report, but, that is when the procedure for "suspected case of theft" is adopted.

16. Under the Electricity Act, 2003 against the provisional assessment order passed under sub-section (1-A) no appeal is provided, as in case of an assessment under Section 126. In contra-distinction to the procedure laid down under Section 126, sub-section (1-A) does not provide a right of hearing to the consumer, nor the consumer has an opportunity to object to the provisional assessment order. The first opportunity to a consumer to object to the provisional assessment order arrives when the Special Court under Section 154(5) proceeds to determine the civil liability against a consumer in terms of money for theft of energy. Third proviso to sub-section (1-A), however, makes an offer to the consumer to seek resumption of supply of electricity on payment of the assessed amount. Definition of "theft of electricity" under Section 135 is so wide and expansive that it seems to include every incidence of unauthorized use of electricity. Proviso to subsection (1)(ii) puts a reverse burden on the consumer. Now, in this background of the statutory scheme under Section 135 it cannot be contended that the Courts must keep any challenge to the subjective satisfaction of the authorized officer at bay. Apparently, drastic measures are provided under sub-section (1-A). If such drastic powers -disconnection of supply of electricity, lodging of a First Information Report, provisional assessment order and resumption of supply of electricity only on payment of the assessed amount - are to be exercised by the authorized officer, it must be grounded on relevant considerations.

17. Object behind the drastic measures provided under sub-section (1-A) is to discourage and prevent theft of electricity and, in turn, to minimize revenue loss to the Electricity Boards/Nigams. Section 135 is a penal provision but given the object behind Part XIV as a whole, sub-section (1-A) needs what the Supreme Court calls "a wholesome interpretation", that is to say, a fine balance between literal and purposive construction [refer "State (NCT of Delhi) vs. Brijesh Singh Alias Arun Kumar and Another" reported in (2017) 10 SCC 779]. Keeping in mind the legislative intendment while wide amplitude has to be given to the expression or a provision under Chapter XIV, but at the same time strict compliance of the procedural aspects must be enforced. Raising a bogey of "theft of electricity" if without any evidence and without recording its satisfaction on detection of theft of electricity by the authorized officer a consumer is forced to pay the provisional assessment bill as a condition for resumption of supply of electricity, the basic and fundamental right of a consumer "to know" is denied to him.

18. Conspectus of the aforesaid statutory provisions reveals that registration of a First Information Repot is a subsequent event, the basic document is the inspection report which must speak the facts. Theft of electricity must be visible on a bare reading of the inspection report. In short, theft of electricity must be apparent. If it requires a strenuous exercise to "infer" that it is a case of theft of electricity, the matter shall be first investigated and then decided in the trial, but, before that for raising a provisional assessment bill the authorized officer cannot raise a presumption, which otherwise cannot be raised in law at this stage, so as to vest in itself a power to pass provisional assessment order. Even if the magic words "theft of electricity has been detected" are missing in the inspection report, with bare eyes one must be able to read that, "yes it is a case of theft of electricity".

19. At the first blush, such an interpretation of sub-section (1-A) may seem incongruous; registration of a First Information Report on the allegation of theft of electricity is a fact which exists either before or after an order of provisional assessment has been made, but once distinction between criminal liability and civil liability is kept in mind things become clear. Any interference with the provisional assessment order is permissible only on the ground that it is without jurisdiction or wholly illegal, whereas considerations for quashment of a First Information Report are different. Of course, it cannot be said with certainty, or in absolute terms, that interference with the provisional assessment order would have no bearing on sustainability of the First Information Report, on an apprehension of prejudice that may be caused to the pending trial, challenge to the provisional assessment order on these limited grounds cannot be wished away. If facts of a case are such that on a similar ground a First Information Report lodged against a consumer on an allegation of theft of electricity can be quashed, the law must take its own course, but then interference with the provisional assessment order should not be confused with quashment of a First Information Report; considerations at this stage are quite different.

20. On the aforesaid premises, it is held that irrespective of registration of a First Information Report for theft of electricity, it is the inspection report prepared on detection of theft of electricity under sub-section (1-A) to section 135 of the Electricity Act, 2003 which alone confers powers and jurisdiction upon the authorized officer to pass an order on provisional assessment of loss suffered by the Board/Nigam on account of theft of electricity.

21. Reverting back to the facts of the case, it is pertinent to record that the inspection report dated 26/27.09.2017 does not record satisfaction of the authorized officer on theft of electricity. The report prepared on the inspection of the petitioner's premises on 26.09.2017 records that all the seals were found intact, however, it takes exception to installation of the cubical metering unit in a metal sheet room covered by metal sheet which makes easy approach to the CT PT of the metering cubical. In this report it was observed that the nut in which GPC seal is used to affix the wires is found welded at midpoint and this weilding enables the removal of the seal to short the CT terminal without disturbing the seals. The inspecting team has also found two holes in the meter chamber and the cover of the meter chamber can be opened easily without breaking the glass. On the inspection report the petitioner's representative has lodged protest that: (i) there is no weilding on the nut, (ii) earlier also there had been blast in the cubical metering, which is very old, and was twice repaired, (iii) door cannot be opened without opening plastic seal, (iv) all plastic seals (paper seal) were found correct, plastic seal may be checked, and (v) joint inspection be made by the officer of Board and the office bearer of Chamber.

22. The procedure provided under the Regulations in case of "theft of electricity" requires the authorized officer to prepare a report under Regulation 11.5 to record details of connected load, condition of meter seals, condition of meter and irregularities, if any, noticed at the time of inspection such as, tempered meter, artificial means adopted for theft of energy. Provisions under Regulation A11 which deal with theft and unauthorized use of electricity read as under:

" All: Theft and Unauthorised Use of Electricity

Theft of Electricity

11.1 Whenever a case of theft of energy is detected, the Authorised Officer shall carry out assessment, in accordance with the procedure as laid down in the sections below:

Procedure for booking a case of theft of electricity

11.2 The Distribution Licensee shall publish the list of the Authorised Officers prominently in all the Offices and the Photo Identity Card issued to such officers shall indicate so.

11.3 An Authorised Officer, suo motu or on receipt of reliable information regarding theft of electricity shall promptly conduct inspection of such premises.

11.4 The inspection team of the Distribution Licensee or supplier, headed by such Authorised Officer shall carry along with them their Photo Identity Cards. Photo Identity Card should be shown to the consumer/consumer representative before entering the premises. Photo Identity Card of the Authorised Officer shall clearly indicate that he has been nominated as Authorised Officer as per provisions of Section 135 of the Act.

11.5 The Authorised Officer shall prepare a report giving details such as connected load, condition of meter seals, working of meter and mention any irregularity noticed (such as tampered meter, artificial means adopted for theft of energy).

11.6 The report shall clearly indicate whether sufficient evidence substantiating the fact that theft of energy was found or not. The details of such evidence should be recorded in the report.

11.7 No case for theft shall be booked only on account of seals on the meter missing or tampered or breakage of glass window, unless corroborated by consumption pattern of consumer and such other evidence as may be available.

11.8 In case sufficient evidence is found to establish direct theft of electricity, licensee or Supplier as per Section 135 sub-clause (1A) of the Act shall disconnect the supply and seize all material evidence including wires/cables, meter, service line etc., from the premises and shall lodge a complaint in writing relating to the commission of such offence in police station having jurisdiction within 24 hours from the time of such disconnection. The Authorised Officer of the Distribution Licensee or Supplier shall within 2 days from date of inspection, file a case against the consumer in designated Special Court as per the provisions of Section 135 of the Act.

11.9 The Authorised Officer shall assess the energy consumption as per the assessment formula given in Annexure 19 to these Regulations, for the entire period during which such theft of electricity has taken place. If, however, the period during which such theft of electricity has taken place cannot be ascertained, such period shall be limited to 12 months immediately preceding the date of inspection. The period of assessment may be arrived at after taking into consideration the following guidelines or any combination thereof or any other evidence which may be provided by the consumer:

(a) Actual period from the date of commencement of supply to the date of detection of theft;

(b) Actual period from the date of replacement of component of metering system in which the evidence is detected to the date of detection of theft;

(c) Actual period from the date of previous checking of installation to date of detection of theft;

(d) Meter Reading Instrument (MRI) data or Remote Meter Reading data should be considered wherever available.

11.10 After establishing the duration period of theft, the Authorised Officer shall prepare an assessment order on applicable tariff as per the Electricity (Amendment) Act, 2007 and any subsequent amendments, and serve on the person under proper receipt.

11.11 In case of a regular metered connection, where a case of theft of electricity is detected, units allowed to be recorded in the meter for which bills have been raised by the Distribution Licensee to the person during the period, for which the assessment is made, shall be duly credited to the consumer.

11.12 In case of suspected theft, the Authorised Officer shall remove the old meter under a seizure memo and seal it in the presence of the consumer or his authorised representative and the Authorised Officer and the consumer have to sign on the seal borne on the meter. The Distribution Licensee or supplier shall continue the supply to the consumer with a new meter. The old meter shall be tested in the presence of the consumer and the Authorised Officer at the Distribution Licensee's testing lab which shall give a test report, in writing, which along with photographs/video graphs shall constitute evidence thereof. The Authorised Officer shall record reasons to suspect theft in the premises in his report:

Provided that if consumer insists, the testing of the meter will be carried out at a third party facility approved by the Commission.

11.13 The report shall be signed by the Authorised Officer and each member of the inspection team and the same must be handed over to the consumer or his/her representative at site immediately under proper receipt. In case of refusal by the consumer or his authorised representative to either accept or give a receipt, a copy of the inspection report must be pasted at a conspicuous place in/outside the premises and photographed. Simultaneously, the report shall be sent to the consumer under Registered Post/Speed Post on the day or the next day of the inspection:

Provided that in case of suspected theft, if the consumption pattern for last one year is reasonably uniform and is not less than 75% of the assessed consumption, no further proceedings shall be taken and the decision shall be communicated to the consumer under proper receipt within three days and connection shall be restored through original meter.

11.14 After detailed examination of the evidence and the consumption pattern of the consumer, if the Distribution Licensee or supplier is convinced that a prima-facie case is made out for the abstraction, consumption or use of electricity dishonestly against the consumer, the Distribution Licensee or supplier shall, within 7 days of inspection, serve a provisional assessment order assessed as per clause 11.24 of these Regulations along with show cause notice to the consumer, giving reasons, as to why a case of theft should not be booked against such consumer giving full details for arriving at such decision and points on which reply has to be submitted. The notice should clearly state the time, date and place at which the reply has to be submitted and the designation of the person to whom it should be addressed.

11.15 In case a show-cause notice is not served even after 30 days from date of inspection by the Distribution Licensee or supplier, the case of suspected theft shall be considered as dropped and no further action can be initiated against the consumer."

23. The learned Advocate-General has contended that clause (b) and (c) of sub-section (1) to Section 135 have to be read harmoniously with Regulation 11.8 and even if it is not written in so many words that theft of electricity has been detected, the authorized officer can raise provisional assessment bill.

24. In the first place, there is no inconsistency between the main provision under the Act and the Regulations and, in any case, it does not call for any harmonious construction. Secondly, if the contention raised on behalf of the respondent-Nigam is accepted, except in a case of indisputed wrong calculation, the consumer is rendered remediless. The apprehension raised by the learned Advocate-General, that it may open up a pandora's box and all cases of theft of electricity may fail, is not a plea in law. In so far as loss of revenue is concerned, the consumer also suffers a similar loss. After all, at the stage of Section 154 (5) when the Special Court assesses the civil liability of the consumer for the loss caused on account of theft of electricity, the Nigam stands compensated. In a case of this nature in which the inspection report does not record the jurisdictional facts and now the police has filed a Final Form, plea on revenue loss to the respondent-Nigam cannot be countenanced in law. What may happen during the trial, in the event the Special Court takes cognizance of the offence on the complaint-cum-protest petition filed on behalf of the Nigam, is a matter in the realm of speculation. Theft may be proved by direct or circumstantial evidence. Existence of the unauthorized means for abstraction may be a prima-facie evidence of dishonest abstraction by some person, however, to prove dishonest abstraction of electricity the prosecution must prove aliunde that the accused has made the abstraction. And, existence of mens rea is an essential ingredient for constituting the offence under section 135 of the Electricity Act, 2003. This Court, in the above facts, cannot proceed in the matter on a speculation and accept the plea of revenue loss to the Nigam.

25. Neither the inspection report nor the written report, on the basis of which First Information Report has been lodged on an allegation of theft of electricity, records satisfaction of the authorized officer that sufficient evidence of theft of energy has been found. Under Regulation 11.8 all material evidences including, wires, cables and meters, service line are required to be seized. Enclosures to the written report dated 27.09.2017 are the calculation-sheet for loss of revenue and the inspection report. Again, neither the inspection report nor the First Information Report would disclose that any material from premises of the consumer has been seized; no seizure list finds mention in the inspection report or the First Information Report. Now, in this state o

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f affairs which unerringly disclose absence of jurisdictional facts in the inspection report so as to authorize the authorized officer to make a provisional assessment order, on a plea that it can be inferred on a meaningful reading of the inspection report read along with clause (b) and (c) of the sub-section (1) to Section 135 that it is a case of theft of electricity, the provisional assessment order cannot be sustained. 26. An alternative plea for challenging the provisional assessment order dated 29.09.2017 has been raised by Mr. Navaniti Prasad Singh, the learned Senior counsel for the petitioner. It is contended that the respondents themselves have recorded in the inspection report and also in the written report that it is a case of suspected theft and therefore the procedure under Regulation 11.12 onwards should have been followed by them and since the procedure prescribed under the Electricity Supply Code Regulations, 2015 has not been followed, fall out of the same is that the provisional assessment order must go. To fortify this contention the learned Senior counsel for the petitioner has relied on decision in "Hukam Chand Shyam Lal vs. Union of India and Others." reported in (1976) 2 SCC 128. On calculation of the loss caused to the Nigam on account of theft of electricity, the learned Senior counsel for the petitioner has referred to Regulation 11.9 (c) to demonstrate that on account of serious error in the method of calculation the provisional assessment order dated 29.09.2017 warrants interference. 27. Stand taken by the respondent-Nigam is that the consumer like the petitioner on its own cannot decide that it is a case of suspected theft. 28. Whether it is a case of theft or a case of suspected theft of electricity, at this stage a finding on this issue cannot be recorded by this Court. The expression used in the inspection report and the written report certainly leaves it open to an interpretation that the respondents themselves thought that it is a case of suspected theft, but then they have lodged a First Information Report on the allegation of theft of electricity. In fact, under the Electricity Act, 2003 there can be only two situations; unauthorized use of electricity or theft of electricity. Under the Electricity Supply Code Regulations, 2015, however, a third kind of situation has been conceived. It contemplates also a situation where the materials found in course of the inspection do not, with certainty, disclose direct theft of electricity. Case pleaded by the respondents in the counter-affidavit is that the case against the petitioner is of direct theft of electricity. In the aforesaid facts, any opinion or finding on merits of the rival contentions on this issue would amount to prejudging the issue. 29. On error of calculation in the provisional assessment order, all that is required to be recorded is that previous to the inspection carried on 26.09.2017 petitioner's premises were inspected on 04.09.2017 and on that day theft of electricity was not detected by the Nigam's officials. Under Regulation 11.9(c) assessment of loss according to the assessment formula vide Annexure-19 to the Regulations shall be for the actual period from the date of previous checking of installation to the date of detection of theft, however, a provisional assessment bill has been raised for the period between 16.06.2017 to 26.09.2017, which on the face of the records must be held wrong. 30. To summerise, the inspection report dated 26/27.09.2017 does not record the jurisdictional facts so as to authorize the authorized officer to make the provisional assessment order dated 29.09.2017, and resultantly the provisional assessment order dated 29.09.2017 is held void and illegal. There is serious error also in calculation of the provisional assessment of loss caused to the Nigam. Accordingly, the provisional assessment order dated 29.09.2017 is quashed. 31. By an interim order dated 14.03.2018, the respondent-Nigam was directed to resume supply of electricity at the petitioner's premises on deposit of Rs. 25 Lacs (Rupees Twenty Five Lacs). The amount so deposited by the petitioner shall be adjusted against the future bill(s) raised by the Nigam, in terms of the Regulations. 32. The writ petition is allowed, in the aforesaid terms.
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