S.N. Hussain & Ahsanuddin Amanullah, J.J.
This Letters Patent Appeal has been filed against order dated 12.08.2008 by which learned Single Judge of this Court allowed C.W.J.C. No.9309 of 2008 filed by the writ petitioners-respondents and quashed provisional punitive bill dated 11.06.2008 raised by the respondent-Board pursuant to the analysis report dated 06.06.2008 of M/s Secure Meters Limited and directed the authorities to adjust the amounts already deposited against the said bill in the future bills of the petitioners.
2. The aforesaid writ petition bearing C.W.J.C. No.9309 of 2008 was filed by the two writ petitioners, who are respondents in this Letters Patent Appeal, for the following reliefs:-
(i) For issuance of a writ in the nature of a writ of certiorari setting aside and quashing the provisional punitive bill dated 11.06.2008 raised pursuant to FIR lodging by the incharge Assistant Engineer, Electric through memo no.142 dated 10.06.2008 and every other consequential developments and actions pursuant to the said provision punitive bill.
(ii) For issuance of a writ in the nature of a writ of mandamus directing and commanding the respondents to adjust the part payment made by the petitioners pursuant to the provisional punitive bill which was forcibly obtained by the Board, in the future energy bills of the petitioners or to refund the same.
(iii) For holding that the action of the respondent board making and declaring/permitting M/s Secure Meter Ltd. the supplier of the said meters to the Board, a beneficiary of the contract, the judge of his own conduct (supply of faulty or inappropriate meter, to find the reason/type and cause of defects in the said meter is some thing not acceptable in the eyes of law.
(iv) For a direction to the Respondents Board to not to take any coercive action against the petitioner pursuant to the provisional punitive bill and thereafter the forced agreement by the petitioner with the Board to pay the 25% on the punitive bill same day under the threat of disconnection, and to pay the rest in installment, effectively the payment of installments are prayed to be stayed.
(v) For a declaration that the very basis of the provisional punitive bill is an abuse to the criminal jurisprudence.
(vi) For appropriate order(s), writ(s), direction(s) as this Court may deem fit and proper in the facts and circumstances of this case.
3. The undisputed fact of this case is that an electrical meter was installed on 16.03.2007 in the premises of the petitioners for reading the consumption of electrical energy by the Bihar State Electricity Board (hereinafter referred to as ‘the Board’ for the sake of brevity), which got it supplied along with other meters by M/s Secure Meters Limited. However, the said meter did not function and hence the authorities of the Board inspected the same along with representatives of M/s Secure Meters Limited on 16.05.2007 and decided to replace the same, whereafter the defective/non-functional meter was taken away by the authorities of the Board and a new meter was installed in the petitioners’ premises.
4. The claim of petitioners was that much later on 29.05.2008 a letter was sent by the Board stating that the Board was going to send the defective meter to the supplier M/s Secure Meters Limited at Udaipur (Rajsthan) for analysing the type and cause of defect and fixed 06.06.2008 at 11 A.M. for witnessing the analysis and requesting the petitioners to send their representative for the purpose. However, vide letter dated 30.05.2008 the petitioners objected to the analysis of meter by the supplier itself, but the said letter remained unheeded. Thus it was claimed that the said analysis having been done by the interested person, namely the supplier of the meter himself, no authenticity can be placed on it on any analysis made by M/s Secure Meters Limited, specially when the authority of the Board in presence of representatives of M/s Secure Meters Limited had taken away defective meter, without putting it under seal, as was apparent from the records. Even thereafter the meter was kept with the Board for a year before being sent to M/s Secure Meters Limited and hence the petitioners cannot be held guilty for any tampering or damaging of the said meter.
5. On the other hand, the claim of the Board and its authorities, who were respondents in the writ petition, was that the letter of petitioner dated 30.05.2008 was clearly antedated and an after thought as it was received in the office of the Board on 17.06.2008 i.e. much after 06.06.2008 when the analysis was made by M/s Secure Meters Limited in which it was found that NIC seal of the meter body was tampered, ultrasonic welding side plates were opened and again pasted using glue and the Holographic paper seal on meter body was tampered, which proved that someone had opened the meter. It was also found that the snap of plastic bezel, lock washer, plaster washer and mylar tape of CT housing was melted, which showed that internal circuitry was tampered due to excess external heat applied by someone.
6. It was also claimed by the Board that on the basis of the aforesaid analysis report, Hawai Adda P.S. Case No.52 of 2008 was lodged against the petitioners on 10.06.2008 for offences punishable under section 420 of the Indian Penal Code as well as section 135 and 138 of the Electricity Act, 2003 alleging theft of electrical energy. Immediately thereafter on 11.06.2008 a punitive bill was also sent by the Board to the petitioner assessing Rs.8,04,975.50 as fine under section 135 of the Electricity Act, 2003 and after deducting the payment already made by the petitioners for consumption of energy from 16.03.2007 to 16.05.2007 amounting to Rs.1,67,535.00, the remaining amount of Rs.6,37,440.50 was directed to be paid by the petitioners along with cost of meter and its installation amounting to Rs.30,000.00.
7. It was further averred by the Board that if the petitioners were aggrieved by the aforesaid punitive bill, their remedy was under section 126 and 127 of the Electricity Act, 2003 but instead of resorting to the said remedy they sent letter dated 11.06.2008 to the Board stating that they were ready to pay the said amount out of which 25% they would pay instantly and for the remaining amount they prayed for fixing instalments. The said prayer of the petitioners was allowed on the same date i.e. 11.06.2008 by the authorities of the Board and an agreement was entered into between the parties for payment of the said amount in five monthly installments, whereafter two instalments were paid by the petitioners by 14.07.2008 but thereafter no further instalment was paid by the petitioners and they filed the aforesaid writ petition in July itself.
8. The aforesaid writ petition bearing C.W.J.C. No.9309 of 2008 was heard in detail by learned Single Judge of this Court, who vide order dated 12.08.2008 allowed the writ petition and quashed the provisional punitive bill dated 11.06.2008 raised by the Board, pursuant to the analysis report dated 06.06.2008 of M/s Secure Meters Limited and directed the authorities to adjust the amounts already deposited against the said bill in the future bills of the petitioners. The said order passed in the writ petition has been challenged by the Board and its authorities in the instant Letters Patent Appeal on the following grounds:-
(a) Since the authorities of the Board had a right to test any meter and related apparatus if there was a reasonable doubt about the accuracy of the meter, the consumer was to provide necessary assistance in conducting the test as per clause 8.13 of the Bihar State Electricity Supply Code (hereinafter referred to as ‘the Supply Code’ for the sake of brevity). But learned Single Judge had wrongly relied upon clause 8.14 for the said purpose although it was not applicable in the instant case.
(b) The Board having given at least seven days advance notice to the consumer to be present at the time of testing personally or through a representative and the consumer failing to appear at the date and time of test, clearly showed that he was avoiding to appear to conceal his guilt.
(c) The consumer immediately after receiving punitive bill agreed to pay the amount and only paid for installments according to which an agreement was executed by both the parties for payment in five installments, whereafter it was acted upon by the consumer who paid two installments but before the third installment became due filed the said writ petition.
(d) Learned Single Judge had failed to consider the relevant provisions of law, namely section 126, 127, 135 and 138 of the Electricity Act which provide alternative remedy to the consumer specially no consumer can be legally permitted to consume electricity through a tampered meter.
9. The aforesaid claim of appellants (Board and its authorities) was contested by the respondents of this appeal, who were writ petitioners, on the same grounds on which they had filed the writ petition and had succeeded before learned Single Judge, who had allowed their claim by the impugned order which is under challenge in the instant Letters Patent Appeal.
10. Considering the averments made by learned counsel for the parties and the materials on record as well as the specific legal position in that regard, it appears to be an undisputed fact that when non-functional meter was removed from the writ petitioners’ premises by the authorities of the Board along with the representatives of M/s Secure Meters Limited, the meter or its seal was not found to be tampered. It also appears to be an undisputed fact that when non-functional meter was removed from the writ petitioners’ premises on 16.05.2007 it was not kept in any sealed cover by the authorities of the Board and was immediately sent by the authorities of the Board to M/s Secure Meters Limited which is apparent from the certificate issued by the authorities on 16.05.2007 itself.
11. In this regard, the concerned provisions are given in the Supply Code specially Clause 8.8 (2nd proviso), Clause 8.12 (e) and Clause 8.14 (a) (iii) thereof according to which after removal, the non-functional meter should have been sealed and sent to either the Board’s lab or an independent lab as agreed by the consumer for testing the said meter supplied by M/s Secure Meters Limited to the Board along with several other meters for other consumers.
12. From the aforesaid provisions, it is also apparent that the meter was to be tested either in the Board’s lab or an independent lab as agreed by the consumer. But in the instant case neither there is any pleading nor there is any material on behalf of the authorities of the Board to show that the consent of writ petitioners was taken before sending the meter for testing in the laboratory of M/s Secure Meters Limited.
13. Furthermore, the aforesaid clauses do not entitle the authorities of the Board to send the meter for testing to M/s Secure Meters Limited, as being the supplier they were not independent persons rather they themselves might have been the culprit of providing defective meters to the Board specially when a huge number of grievances regarding supply of defective meters had been raised by a number of consumers before the Board. In view of the aforesaid facts, the analysis report of M/s Secure Meters Limited, which was an interested person having supplied the meter in question to the Board, cannot be legally relied upon and on that basis no punitive action could legally be taken against the writ petitioners.
14. In the said circumstances, M/s Secure Meters Limited was a judge on his own cause as the specific claim of petitioners was that the meter sent by the Board to the petitioners was a defective meter supplied by M/s Secure Meters Limited. Hence the Board sending the defective meter to its supplier M/s Secure Meters Limited for testing without putting it under seal cover and the said meter having been kept in that condition with M/s Secure Meters Limited for about a year before its alleged testing on 06.06.2008 was clearly meant to provide M/s Secure Meters Limited opportunity to give a report in its own favour, otherwise it was M/s Secure Meters Limited, which would have become liable to be penalized.
15. It further transpires that only on the basis of the aforesaid analysis report of M/s Secure Meters Limited, which was not legal and proper as has been found above, the authorities of the Board filed a police case against the petitioners and raised a huge punitive bill against them. In the said circumstances, there was a clear threat of disconnection of electricity to the writ petitioners’ factory which would have affected huge loss to them specially when the writ petitioners were not on equal terms with the authorities of the Board in the said matter and hence the claim of writ petitioners that they were forced to sign the letters and agreement dated 11.06.2008 without their free will cannot be disregarded
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specially when the Board is the mighty monopoly supplier of electric energy. 16. These aspects of the matter have been fully thrashed out and considered by learned Single Judge in pages 8 to 11 of his impugned order dated 12.08.2008 passed in C.W.J.C. No.9309 of 2008. This Court finds itself in full agreement with the aforesaid findings of learned Single Judge, who had considered all aspects of the matter very carefully and only after realising the acts of the Board and its supplier against the consumer, had come to clear findings which were quite legal and proper requiring no interference at all. 17. So far the question of alternative remedy available to the writ petitioners as provided in the Electricity Act, 2003 is concerned, it is quite apparent that the writ petition was heard and considered in detail after the pleadings were complete and in the instant case also the Letters Patent Appeal was admitted and the pleadings were also complete and hence there is no occasion for setting aside the impugned order and allowing this appeal on the said ground, specially when learned Single Judge was fully entitled to hear such matters and in fact he had also considered the matter in detail including the pleadings of the parties, the materials on record and the provisions of law attracted in the case. 18. In the aforesaid facts and circumstances, this Court does not find any merit in this Letters Patent Appeal, which is accordingly dismissed.