Hon'ble Pradeep Kumar Singh Baghel,J.
1. Heard Mr. Mayank Agrawal, learned counsel for petitioner at length and Mr. N. Mishra, learned counsel for respondents no. 1 and 2.
2. This writ petition is directed against the order of assessment dated 17.3.2012 passed by Executive Engineer, Pashchimanchal Vidyut Vitran Nigam Ltd., Electricity Distribution Division-I, Ghantaghar, Meerut under Section 126/135 of the Electricity Act, 2003 (hereinafter referred to as the 'Act') read with para 8.1 and 8.2 of Electricity Supply Code, 2005 (hereinafter referred as the 'Code') making assessment on the ground of theft of electrical energy against the petitioner to the tune of Rs. 26,54,671/-.
3. It is not disputed by learned counsel for petitioner that the impugned order of assessment is appealable under Section 127 of the Act, 2003. Since there is a statutory remedy initially we were not inclined to entertain this writ petition. Sri Mayank Agrawal, learned counsel however contended that non-observance of the procedural illegality amounts to lack of jurisdiction and further that unless a theft is proved, the jurisdiction to make assessment would not stand conferred upon the Executive Engineer concerned and, hence, it is a case of lack of jurisdiction. He further submitted that well known exception for entertaining the writ petition without relegating a petitioner to avail alternative remedy is where the action/order impugned is in violation of principles of natural justice or fundamental rights or is without jurisdiction. He contended that the case in hand is covered by third exception and, therefore, he should be heard on merits instead of relegating him to avail remedy.
4. He advanced the submissions at great length and took this Court to various documents including checking report, M.R.I. report and other documents which constitute basis of assessment in the case in hand.
5. Since full length arguments have been advanced virtually covering the entire case on merits taking enough time of the Court, we find it appropriate to consider the submissions on merits to find out whether it can be said that impugned order is wholly without jurisdiction or otherwise patently illegal since this would save further time of the Court and the parties shall also got the matter finalised at this stage. Learned Standing Counsel and Mr. N. Mishra, Advocate, appearing for the respondents no. 1 and 2 have no objection to this course. They also submitted that since the necessary documents are already on record, they may advance oral submissions and therefore do not propose to file counter affidavit.
6. Hence, we proceed accordingly.
7. It is contended that there was no theft of electrical energy and no person in common having parlance knowledge of the subject, on the basis of record can come to the conclusion that the petitioner is guilty of theft of electrical energy, hence the impugned order of assessment is patently illegal and without jurisdiction. The Assessing Officer lacked patent jurisdiction and, therefore, it is liable to be set aside. It is further contended that no notice specifying the charges against petitioner was communicated/served upon him and, therefore, the mandatory procedural requirement has not been complied with. He relied upon a Division Bench judgement of this Court in Ashok Kumar and others vs. State of U.P. and others, [2008 (6) ADJ 660 (DB)]. (Paras 58 to 64)
8. Besides some other authorities are also relied upon which we shall discuss later at the appropriate stage.
9. Facts in brief are as under:
10. The petitioner is an industry engaged in manufacturing of desert coolers. He got an electric connection with the sanctioned load of 25 HP. The electrical meter installed at the premise of the petitioner was checked and resealed on 29.6.2007, (sealing certificate dated 29.6.2007 is annexed as annexure 1 to the writ petition). A surprise checking was made by enforcement squad of respondent no. 1 on 10.12.2007. A copy of the checking report has been filed as annexure 2 to the writ petition. The connected load at petitioner's premises found by the checking team was 95 HP.
11. The discrepancies found are mentioned in the checking report which we may summarize is as under:
1.Seal wire of plastic seal no. 391701 found in broken condition.
2.Continuity not found in holo seal.
3.L.T. Mains on bare conductor is existing on LT bracket fixed at the back side of premises of consumer. (emphasis added.)
12. Considering the above irregularities and also supported by the fact that the demand and consumption of electricity in the past was also very low, the checking team tentatively drew an inference of theft of electrical energy by direct extraction through the naked conductor (base conductor) of L.T. Mains found on back side of the premises of the consumer. The checking team recommended for assessment in accordance with law. The checking team also remarked that certain items having total electrical load of 30 HP were connected with electric supply system, though consumer's representative said that the same were not in use. Taking the aforesaid load, the total connected load therefore was 95 HP. The checking team lodged a report at Police Station Brahmpuri, District Meerut on the same date i.e. 10.12.2007.
13. An assessment bill for Rs. 36,55,454/- was issued on 11.12.2007 for alleged theft of electrical energy making assessment for the preceding 12 months. The petitioner sent legal notice dated 13.12.2007 through Advocate, Mr. D.K. Razdan to the Managing Director of respondent no. 1. On 9.1.2008, the petitioner submitted reply/objection to the assessment bill dated 11.12.2007 as also the objection to the raid conducted by enforcement squad and submitted other documents also. The Assessing Officer passed a final order on 22.2.2008. He partly accepted petitioner's objection regarding determination of amount of assessment and held that the connected load instead of 95 HP should be taken to 65 HP since 30 HP load was not found used. He also reduced supply hours from 18 to the actual period when the supply was available.
14. Pursuant to the said final assessment order dated 22.2.2008, a revised assessment bill dated 27.2.2008 was issued for Rs. 26,54,706/-. This assessment order was totally non-speaking and thus was challenged in Writ Petition No. 22007 of 2008. It was allowed vide judgement dated 01.5.2008 by a Division Bench in which one of us (Hon'ble Sudhir Agarwal, J.) was also a member. The Assessing Officer was permitted to pass a fresh order after giving opportunity to the petitioner. The respondents preferred Special Leave to Appeal (Civil) No. 14883 of 2008 wherein this Court's order dated 01.05.2008 was initially stayed on 21.7.2008 but the appeal was finally decided by Apex Court on 10.10.2011 confirming the judgement of this Court. The Apex Court declined to interfere with the aforesaid judgement under Article 136 of the Constitution of India. It however, permitted the consumer to appear before Executive Engineer who was directed to pass a fresh order after hearing the consumer. The Court also said that MRI report demanded by consumer shall be supplied by Executive Engineer before hearing. The relevant extract of the judgement dated 10.10.2011 of Apex Court may be reproduced as under:
"After having heard the learned counsel for the parties, we are satisfied that the order impugned in this special leave petition does not call for any interference in our jurisdiction under Article 136 of the Constitution of India.
The respondents shall appear before the Executive Engineer, Electricity Urban Distribution Division-I, Meerut on November 1, 2011. The concerned Executive Engineer shall pass fresh orders after hearing the respondents. The MRI report as demanded by the first respondent vide its communication dated 09.01.2008 shall be supplied before the hearing by the concerned Executive Engineer."
Special leave petition is disposed of accordingly."
15. The MRI report as directed by Apex Court was furnished to petitioner along with Executive Engineer's letter dated 19.10.2011. The petitioner submitted a letter dated 23.10.2011 requiring certain formal informations. The Assessing Authority vide letter dated 17.12.2011, required the petitioner to appear for personal hearing on 06.01.2012. He also permitted the petitioner, if he so desires, to file written objections by 30.12.2011. The petitioner submitted written objection dated 13.1.2012 and thereafter impugned order has been passed on 17.3.2012.
16. Sri Mayank Agarwal, Advocate for the petitioner contended that from the entire checking report read with MRI report, it cannot be said that theft of electrical energy on the part of the petitioner stand proved and, therefore, the Assessing Authority lacked patent jurisdiction for making assessment when the factum of theft itself was not proved. He drew our attention to several documents like checking report, MRI and also the assessment order.
17. The checking team has recorded its observations based on certain facts noticed at petitioner's premise and said that there it was case of electrical theft. We have already referred to observations above. We find that the inference drawn by checking team is well supported by MRI report (at page 14 of supplementary affidavit to the writ petition). The ratio of power factor in different phases therein is very wide and the reason thereof could not be explained by the petitioner. Further phases sequence was found "reverse". Learned counsel for petitioner could not dispute that phase sequence could not have reversed without any extra or manual manipulation. He failed to explain the reason for this reversal. The Assessing Authority in the impugned order has clearly said that naked conductor was found at the petitioner's premise at the Mains LT bracket which show that electricity was/could directly extracted therefrom. The factum of naked conductor at the Mains LT bracket is not disputed. This finding is not shown perverse, incorrect or false. In these circumstances, we are satisfied that the inference drawn by Assessing Authority about theft of electrical energy by extracting electricity directly from distribution mains L.T. Bracket is well founded. In any event, it cannot be said to be without evidence. Moreover, no error in the actual assessment made has been pointed out or even argued. No interference thus is called for in this writ petition.
18. The various authorities cited by the petitioner, in the facts and circumstances of the case, have no application.
19. We may refer the same in brief.
20. The first judgement on which reliance has been placed is Ashok Kumar's case (supra). There the Court considered the procedure to be followed when an allegation of theft against a person is levelled on the ground of tampering with meter etc. In para 58 of the judgement, the Court has observed that Assessing Officer must inform the consumer the way in which he (consumer) has unauthorisedly extracted electricity. In the present case, the requirement is satisfied from the observations made in checking report that naked conductor was found at the Mains LT bracket and therefrom the direct supply could have been extracted by the consumer. It is true that, at the time of checking consumer was not found red handed extracting supply but various supporting facts clearly under the heading 'observations' in the checking report satisfy such requirement as referred to in para 58 of the judgement of Ashok Kumar's case (supra). In case of extraction of energy directly, by-passing the meter, the prima facie satisfaction of Assessing Officer is evident from the mere fact that he has not dissented with the checking report. Mere fact that separately he has not mentioned it in so many words would make no difference. The judgement in Ashok Kumar's case (supra) basically requires that the consumer should know the manner in which he is alleged to have committed theft of electrical energy so that he may explain his case. In the present case, the checking report itself contained facts on the basis whereof this interference was discernible that the petitioner is committing theft of electrical energy by direct extraction from the naked conductor found at LT mains bracket and this aspect has and could not be explained by the petitioner. The aforesaid judgement therefore lends no help to the petitioner.
21. The next decision is Transmission Corporation of A.P. Ltd. vs. Sri Rama Krishna Rice Mill, (2006) 3 Supreme Court Cases 74. The Apex Court has observed that material against the consumer sought to be relied for passing an order against him should be disclosed. The Court further observed that the mere taking note of objections filed by the consumer is not sufficient compliance. The Court, however, has said that the principles of natural justice cannot be covered by any strait jacket formula and would depend upon the circumstances involved in each case. No particular procedure can be said to be followed in every case. The proposition of law admits no exception, but, in our view, it has no application to the present case. Here the petitioner has failed to point out as to in what manner adequate opportunity of hearing was not afforded to him. Besides, the objections filed by petitioner have been considered and discussed in the impugned order of assessment.
22. The next decision is Abdul Gani and another vs. State of U.P. and others in Civil Misc. Writ Petition No. 15498 of 2008 in which one of us (Justice Sudhir Agarwal) was also a member. The judgement shows that the Assessing Officer present in the court admits that the assessment was made only on account of the meter sealed alleged to have been tampered but there was nothing to show as to how the seal was tampered or theft of electric energy was done. The judgement has been rendered in its own facts and has no application to the present case.
23. The next decision Ram Chandra Prasad Sharma and others vs. State of Bihar and another, AIR 1967 Supreme Court 349 (V 54 C 66) relates to a case of criminal trial of a person on the allegation of theft of electric energy. It deals with section 39 of the Indian Electricity Act, 1910. The question of mens rea does not come into picture for the purpose of making assessment on the allegation of theft since such an assessment is referable to section 126 of the Act, 2003 where the requirement of criminal intention does not exist. It is so required for prosecution under section 135 of the Act. This distinction has been considered and noticed by this Court in M/s Mohit Paper Mills Ltd. and another Vs. PVVNL and others 2011(9)ADJ 239 and we respectfully are in agreement thereto.
24. The other decisions are in respect to the principle of mala fide etc i.e. Madhya Pradesh State Cooperative Dairy Federation Limited and another vs. Rajnesh Kumar Jamindar and others, (2009) 15 SCC 221, Vice-Chancellor, Banaras Hindu University vs. ShriKant, (2006) 11 SCC 42, and Srinivasa Rice Mills and others vs. ESI Corporation, (2007) 1 SCC 705. These judgements, in our view, are not applicable in the present case at all. To consider the plea of mala fide, we find that none has been impleaded by name. It is well established that the plea of mala fide shall not be entertained by the Court unless the persons against whom the allegations of mala fide made are impleaded eo nominee.
25. In State of Bihar Vs. P.P. Sharma, 1992 Supp (1) SCC 222 in para 55 of the judgment, the Apex Court held: -
"It is a settled law that the person against whom mala fides or bias was imputed should be impleaded eo nominee as a party respondent to the proceedings and given an opportunity to meet those allegations. In his/her absence no enquiry into those allegations would be made. Otherwise it itself is violative of the principles of natural justice as it amounts to condemning a person without an opportunity. Admittedly, both R.K. Singh and G.N. Sharma were not impleaded. On this ground alone the High Court should have stopped enquiry into the allegation of mala fides or bias alleged against them."
26. In J.N. Banavalikar Vs. Municipal Corporation of Delhi AIR 1996 SC 326, in para 21 of the judgment, it has been held as under:
"Further in the absence of impleadment of the..........the person who had allegedly passed mala fide order in order to favour such junior doctor, any contention of mala fide action in fact i.e. malice in fact should not be countenanced by the Court."
27. In A.I.S.B. Officers Federation and others Vs. Union of India and others JT 1996 (8) S.C. 550, in para 23, the Hon'ble Apex Court has said where a person, who has passed the order and against whom the plea of mala fide has been taken has not been impleaded, the petitioner cannot be allowed to raise the allegations of mala fide. The relevant observation of the Apex Court relevant are reproduced as under:
"The person against whom mala fides are alleged must be made a party to the proceeding. Board of Directors of the Bank sought to favour respondents 4 and 5 and, therefore, agreed to the proposal put before it. Neither the Chairman nor the Directors, who were present in the said meeting, have been impleaded as respondents. This being so the petitioners cannot be allowed to raise the allegations of mala fide, which allegations, in fact, are without merit."
28. In Federation of Railway Officers Association Vs. Union of India AIR 2003 SC 1344 it has been held as under:
"That allegations regarding mala fides cannot be vaguely made and it must be specified and clear. In this context, the concerned Minister who is stated to be involved in the formation of new Zone at Hazipur is not made a party who can meet the allegations."
29. In view of above, the plea of mala fide cannot be entertained by this Court in absence of any person impleaded eo nomine.
30. In view of above discussion, we are of the view that impugned order does not suffer any patent error of law or otherwise and there is no error apparent on the face of record warranting interference.
31. Dismissed. No costs.
Order Date :- 14.6.2012 Puspendra