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



Shree Shyam Ispat v/s Assam Power Distribution Company Limited & Others

    Case No. WP(C) 4798 of 2014

    Decided On, 04 June 2019

    At, High Court of Gauhati

    By, THE HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI

    For the Petitioner: S.K. Kejriwal, S. Kejriwal, Advocates. For the Respondent: B.D. Das (Sr. Counsel), H.K. Sharma, Advocate.



Judgment Text

1. The extra-ordinary jurisdiction of this Court under Article 226 of the Constitution of India has been sought to be invoked by the petitioner in the instant case, whereby, challenge has been made to the Final Assessment Order dated 21.01.2014, Final Assessment Bill dated 21.01.2014, Appellate Order dated 08.09.2014, Demand Notice dated 12.09.2014 and bill dated 12.09.2014, issued/passed on the basis of the Inspection Report dated 08.01.2014. A further prayer has been made for a direction to refund the amount of Rs. 1,01,24, 878.75 realised from the petitioner against the bill dated 21.01.2014 together with interest as per Section 62(6) of the Electricity Act.

2. The facts as projected in the writ petition can be culled out in the following manner:

(i). The petitioner is a partnership firm having its business and factory at the Industrial Growth Centre, Chattabari, Chaygaon in the District of Kamrup. The petitioner is into the business of manufacture and sale of Iron Ingot.

(ii). It is the case of the petitioner that petitioner’s electric line was charged w.e.f. 01.10.2013 through Meter No. ASA77936 which was installed outside the factory premises of the petitioner and trial operation in the petitioner’s factory commenced from 08.10.2013. The petitioner claims of having deposited all the electricity dues without any blemish. On 08.01.2014, the electrical meter was inspected by the authorities and as per the petitioner though the percentage of error was found to be within the permissible limit, the Common Meter Reading Instrument (CMRI) was downloaded and the existing meter was taken into custody for further analysis. According to the petitioner no complaint was found against the petitioner, however, a notice dated 09.01.2014 was issued to the petitioner and immediately thereafter, the connection to the premises was discontinued. Thereafter, another letter dated 13.01.2014 was served upon the petitioner along with initial Assessment Bill as well as statement of calculation, directing the petitioner to pay the assessed amount along with the reconnection charges.

(iii). On 21.01.2014 a hearing under Section 126 of the Electricity Act was conducted which however, according to the petitioner was a mere formality to show compliance of the provisions of Section 126 of the Electricity Act. In the said hearing also, no incriminating point was found against the petitioner. However, the respondent No. 3 passed the final assessment order and issued final assessment bill dated 21.01.2014 for Rs. 1,01,24,878.75/-. The petitioner has accordingly deposited a Demand Draft dated 21.01.2014 for an amount of Rs. 50,65,000/- towards 50% of the Final Assessment Bill so that an appeal could be preferred. Further for the purpose of restoration of the electricity power supply together with disconnection and reconnection charges, another amount of Rs. 1,000/- under Section 127 of the Act was deposited by the petitioner.

(iv). It is the case of the petitioner that the appeal was taken up for consideration on 07.03.2014, 12.05.2014 and 15.05.2014 and till then, the Appellate Authorities did not find any materials against the petitioner. However, later with the change in the Appellate Authority, a biased and roving enquiry was sought to be done by the respondents to produce additional evidence of tampering. Thereafter, the Appellate Authority passed the order dated 19.05.2014, regarding the proceedings of 07.03.2014 as well as 15.05.2014 and directed the authority to bring evidence for issuing the final order. On 23.05.2014 in the presence of the petitioner, meter data was once again downloaded though CMRI and photograph of paper and plastic seals and various sides of both the meters were taken. The petitioner contended that nothing abnormal was found in the meter and no remarks were recorded in the minutes.

(v). The appellate authority however, after hearing on 26.08.2014 has passed its final order on 08.09.2014 which according to the petitioner suffers from a number of legal infirmities and is not sustainable in law. It is thereafter, that the present writ petition has been filed.

3. I have heard Shri S. K. Kejriwal, learned counsel for the petitioner assisted by Ms. S. Kejriwal, advocate. I have also heard Shri B. D. Das, learned Sr. counsel assisted by Shri H. K. Sharma, learned counsel for the respondent APDCL.

4. The records in originals which have been produced have been perused.

5. While the petitioner has supplemented the oral argument by a written submission, the APDCL has also submitted certain points extracted from the records and the pleadings.

6. Shri Kejriwal, the learned counsel for the petitioner has firstly submitted that admittedly the meter in question being outside the premises of the petitioner, even in case there is certain tampering, no fault can be attributed to the petitioner. The application to ensure safe custody of the meter would arise only when the meter in question is inside the premises or in place which is within the control of the petitioner consumer.

7. Referring to the inspection report dated 08.01.2014, it is submitted that under head ‘G’ concerning seal particulars, there is a specific finding that the meter T/C and Cabinet Box were found intact. Under the head ‘General Remarks’ on observation of testing/ inspection, the following remarks were made:

“As per telephonic communication of AGM, MED, the installation of M/s Shyam Isapt is visited to check the metering system. On physical inspection of the meter, both the lateral sides of paper seals have been found torn. Also cracks found on the right side of the meter cover. The existing meter is tested on load with H. T. Accu check. P% error found within the limit. CMRI taken for computer analysis. The meter is seized & properly sealed in presence of consumer’s representative & taken to T & C lab for further investigation. The old meter is replaced by a new tested meter. After charging the line, all meter parameters are checked & found O.K. Metering system is sealed by T & C seals as recorded above. New meter security bill is to be raised & served to Consumer.”

It is submitted that when the percentage error was found to be within the limit, there was no requirement of any further test and the same has been done only with an intention to cause prejudice to the petitioner. However, it is seen that paper seals were also found torn.

8. Referring to the communication dated 09.01.2014, it has been submitted that even before a proper enquiry, the involvement of an act of malpractice was already presumed. The fact of disconnection was itself unjustified in view of the remarks made in the first inspection report in which the percentage error was found to be within limits. Referring to the chart of assessment of initial bills of various customers including the petitioner’s at serial No. 13, Shri Kejriwal submits that there was no abnormality in the same.

9. Referring to the proceeding of hearing in the Departmental Appeal, it is submitted that the appeal has been considered in a mechanical manner and none of the grounds raised by the petitioner were properly considered causing immense prejudice. It is the specific case that the appeal was disposed of on irrelevant consideration and relying upon a Demand Curve came to a finding of tampering of the meter. It is submitted that authorities lost sight of the fact that the concerned Sub-Station of 33KV is the source of power to many factories along with the appellant and in the most mechanical manner, the entire responsibility has been saddled with the petitioner. Relying upon the inspection report dated 08.01.2014 and the minutes of testing dated 23.05.2014, it is submitted that the inspection report dated 08.01.2014 states that the Common Meter Reading Instrument (CMRI) was taken for Computer analysis in the minutes, the CMRI of the agency, namely, Secure Meters has been taken into consideration. It is the specific submission that the CMRI which was taken on 08.01.2014 has not been relied upon later and according to the petitioner the reading of the same would have been clinching. It is submitted that the order passed on appeal itself is absolutely unreasonable and the petitioner has been penalized for no fault. Referring to the Electricity Act, 2003, more specifically Section 126, thereof, it is the submission that the preconditions laid down in the said provisions of law are apparently absent referring the assessment a nullity in law.

10. Per-contra, Shri B. D. Das, the learned Sr. counsel firstly submits that the present case involves matters which are highly technical in nature and a Writ Court may not be the proper forum for adjudication of such disputes. It is submitted that this Court is neither an expert nor an Appellate Authority and keeping in view involvement of question of facts which are disputed, there is no scope for entertaining the writ petition.

11. On a specific enquiry regarding the meaning of “unauthorized use of electricity” Shri Das, the learned Sr. counsel has drawn the attention of this Court to Section 126(6)(b) which defines “unauthorized use of electricity” to also mean use of electricity through a tampered meter. Since in the instant case, a tampered meter was involved, the powers vested under Section 126 were rightly exercised. Referring to the affidavit-in-opposition of the Corporation, it is submitted that the test indicates that extra foreign element was connected in the meter in violation of the law. For ready reference, the averments made in paragraph-11 of the affidavitin- opposition dated 21.02.2019 is extracted herein below:

“That with regard to the statements made in paragraphs no. 18, 19 & 20 to the Writ Petition, the deponent respectfully states that for confirmation of tampering of meter bearing SL No. ASA77936 inspection was carried out at T & C Laboratory, Amingaon on 23.05.2014 in presence of the representatives of the petitioner. The downloaded report shows that the meter was opened on 07.10.2013 at 2-26-30 AM i.e. in late night hours. The deponent further respectfully states that the CMRI report was provided to the Writ petitioner and the CMRI downloaded data along with the photograph taken for internal parts of the meter clearly reveals that extra foreign element was connected in the meter in violation of the provisions of law and the same amounts to malpractice under the provisions of the Electricity Act, 2003.”

Shri Das, learned Sr. counsel accordingly submits that the writ petition deserves to be dismissed.

12. Referring to the inspection report dated 08.01.2014, the learned Sr. counsel, Shri Das submits that while the petitioner has given emphasis on the percentage of error, the general remarks would also reveal that the paper seals were tampered. For ready reference, the said part of the general remarks is extracted below:

“….On physical inspection of the meter, both the lateral sides of paper seals have been found torn”

It is accordingly submitted that there is no dispute to the fact that the meter was in fact found tampered.

13. Rejoining his submission, learned counsel for the petitioner has drawn the attention of this Court to the Indian Electricity Rules, 1956 which are made applicable by Section 185(2)(c) of the Act of 2003. Reference has been made to Rule 56 dealing with seal of meters cut-outs, Rule-57 which lays down that the limit of error should not exceed 3% and the penalty prescribed for breaking seal under Rule 138 which is confined to payment of fine of a nominal amount.

14. Referring to the Electricity Supply Code, namely, Code 4.2.1.2.5 it has been specifically laid down that in case the electricity meter was outside the premises of a particular consumer, the responsibility for its safe custody was that of the licensee. Further, in the instant case, since the Cabinet was found intact and sealed, further allegation of tampering cannot be countenanced at all.

15. This submission however, has been refuted by Shri Das, the learned Sr. counsel by contending that these issues were not raised before the assessing authority and therefore, cannot be grounds taken in this writ petition.

16. The learned counsel for the petitioner has relied upon certain case laws, namely:

(i). Order dated 10.09.2018 passed in WP(C)932/2017(Rajshree Tea and Industries P Ltd. Vs. APDCL and 2 Ors.)

(ii). Judgment dated 19.10.2011 of the Allahabad High Court passed in Writ Petition No. 52054 of 2010(M/s Modern Rice Mill Vs Madhyanchal Vidyut Vitaran Nigam Ltd & Anr.)

(iii). 2012 2SSC 108 (The Executive Engineer and Anr. Vs. Sri Seetaram Rice Mill).

(iv). AIR 2007 Calcutta 298 (Narayan Chandra Kundu Vs. State of West Bengal and Ors.).

In the first case of Rajshree Tea and Industries P Ltd. (Supra), this Court has laid down that indulging in unauthorized dues of electricity is a pre-condition of Section 126 and in absence thereof, an assessment under Section 126 could not have been made. The ratio laid down in Rajshree Tea and Industries P Ltd. (Supra) may not be applicable in the instant case as admittedly the meter was found to be tampered which as per the definition in Section 126(6)(b), amounts to unauthorized use of electricity. In the case of M/s Modern Rice Mill (Supra), interference was made by the High Court as it could not be established that the consumer was responsible for theft of electrical energy and that the disconnection was justified. This Court is of the view that apart from the said judgment having only persuasive value the facts and circumstance are distinguishable from the case in hand.

In the case of The Executive Engineer (Supra) reliance has been placed on this case regarding the application of Section 126 and 135 of the Electricity Act, 2003.

However, in the instant case, it is seen that Section 126(6)(b) defines unauthorized use of electricity which includes uses of electricity through a tampered meter and therefore, it cannot be said that the pre-conditions of invoking the powers under Section 126 of the Act are absent.

In the case of Narayan Chandra Kundu (Supra) reliance has been made on the preconditions of invoking Section 126 and 135 of the Act of 2003.

However, it is already noticed in the present case that the pre-condition is fulfilled as unauthorized user of electricity was established in view of the meter found in a tampered stage.

17. A Division Bench of this Court in a recent decision rendered in WA 71/2019 (Punit Kumar Bagaria Vs. ASPDCL and 3 Ors.) vide judgment and order dated 11.03.2019 has upheld the view of the learned Single Judge in not interfering with the findings of fact of the Appellate Authority.

18. From the pleadings and the materials on record it is found that the meter in question was tam

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pered and the Demand Curve shows that only 350KVA of energy was used against a demand of 2880 KVA and that a foreign circuit was installed in the meter and accordingly, penalty was imposed by the assessment authority. While upholding the said penalty, the appellate authority in its judgment dated 08.09.2014 has recorded all the facts and the ground taken in this writ petition were also grounds taken in the appeal which have been duly considered and answered by the Appellate Authority. No glaring irregularity or perversity is found with the said findings, which are findings of fact. A writ court exercising its jurisdiction under Section 226 of the Constitution of India cannot decide matters which involves disputed questions of fact. Further, as rightly contended on behalf of Corporation that matters which are highly technical in nature are involved and it may not be proper on the part of this Court to interfere with such action which requires technical expertise. 19. In view of the aforesaid facts and circumstances, this Court is of the view that the present is not a fit case for interference and accordingly, the writ petition stands dismissed. 20. However liberty is granted to the petitioner to approach the assessing authority with the additional grounds which were urged in the present writ petition, if so advised. In case such approach is made, the assessing authority would decide the matter independently and without being prejudice or influenced by any observation made in this order. 21. Accordingly, the writ petition stand disposed of. 22. The records (in one file) are returned to the learned counsel for the APDCL.
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