Factual aspects of the case as borne out from the pleadings on either side is briefly as follows; The petitioner is the registered consumer of an electrical connection with Con. No.14831 provided under the 3rd respondent. The connection was provided for the first time on 14-02-2000. The Energy Meters installed at the premises were changed on two occasions, on 29-03-2000 and on 25-04-2000. The 3rd Meter installed on 25-04-2000 was bearing Sl. No.02620684. The said Meter was an Electronic Meter of ABB make, which was purchased by the 1st respondent Board during the year 1998. Subsequently the authorities of the Board found that the Meters purchased from ABB during 1998 were not provided with magnetic shielding and hence any external magnetic shield may affect the reading. Therefore all such meters were dismantled and sent to the manufacturer for providing magnetic shielding. The Electrical Section (Central) Ernakulam, under whom the petitioner was provided with connection, was having 35 such Meters which were taken out from the consumer's premises and sent to the TMR Unit, Pallam, Kottayam. Those meters were sent to the manufacturer from the TMR Division. After providing the magnetic shielding the Meters were again tested by the TMR Division at Pallam. The Meter dismantled from the premises of the petitioner had shown an error, on testing as it was recording only 48% of the energy consumed. When opened and tested it was found that 3 Resistors were seen inserted in the current circuit of the Meter. Therefore it was found that 52% of actual consumption had left not recorded. The matter was intimated to the 2nd respondent from the TMR Division. Based on the intimation the 2nd respondent had directed the 3rd respondent to re-assess charges on the petitioner at a penal rate applying Regulation 43 of the Conditions of Supply of Electrical Energy. Pursuant to that the 3rd respondent had issued Ext.P1 notice and a demand, imposing penalty on the petitioner at 3 times of the tariff applicable with respect to escaped units, computed for the period from 7/02 to 04/03, along with duty applicable at the rate prevalent during that time. Under threat of disconnection, the petitioner submitted Ext.P2 representation against the demand before the Hon'ble Minister for Electricity. The Hon'ble Minister issued a direction to the 2nd respondent to considerExt.P2 as an appeal subject to condition of the petitioner remitting 20% of the bill amount. Accordingly the 2nd respondent had considered the appeal with opportunity of having afforded to the petitioner and passed Ext.P4 order. The petitioner contended that, when the Meter was taken from the premises there was discrepancy noticed and the seals were intact. No mahazer was prepared with respect to dismantling of the Meter and the petitioner was not given any notice with respect to any alleged tampering. When confronted with the variation noticed in the pattern of consumption, the petitioner contended that the fall in consumption was only due to the fact that he was using a Diesel Generator in his shop and the business in Textiles will be less during off-peak months. But the 2nd respondent found that there was sudden decrease in the consumption from 7/02 onwards and that the TMR Division had categorically found that the meter was tampered by inserting 3 Resistors. It was found that the Resistors were provided inside the Meter when the Meter was kept in the premises of the petitioner and there was illegal extraction of electric energy. Holding that the act on the part of the petitioner was punishable under Clause 43 of Conditions of Supply of Electrical Energy, penalty imposed is held as sustainable. It is challenging Ext.P4 order passed by the 2nd respondent, this writ petition is filed.
2. Admittedly no tampering or misuse of energy was detected during the time of inspection or at the time when the Meter was replaced. The respondents have no case that the Meter was not in a sealed condition or that there was any tampering with respect to the sealing of the Meter. At the same time, it is not in dispute that tampering of the Meter which was dismantled from the petitioner premises was detected subsequently, during the testing conducted at the TMR Division. Learned Senior Counsel appearing for the petitioner contended that, detection of the additional Resistors was after a long lapse of time dismantling from the date of the Meter. In fact, after dismantling the Meter was sent from Electrical store at Ernakulam to the TMR Division at Pallam. Thereafter the Meter was sent to the manufacturer for providing the magnetic shield. Again the manufacturer forwarded the Meter to the TMR Division. Then only this discrepancy was detected on calibrating the Meter. Therefore it is vehementally disputed the allegation that the petitioner had done the mischief in tampering the Meter in any manner.
3. Evidently the penalty was seen imposed at 3 times of the consumption alleged to have escaped assessment, by invoking Regulation 43 of the erstwhile Conditions of Supply of Electrical Energy. The assessment was made for the first time on 03-01-2004, that is after enactment of Electricity Act, 2003. Under provisions of the Act, if anybody commits theft within the purview of Section 135, he can be punished with imprisonment or fine as prescribed. Apart from that, penalty can be imposed with respect to unauthorised usage by way of such theft or tampering by resorting to provisions contained under Section 126. With respect to the question as to whether the provisions of Section 126 will prevail over the Regulations contained in the erstwhile Conditions of Supply of Electrical Energy, this court in the decision in KSEB V. Najeeb (2005 (1) KLT 406) held that the Regulation is inconsistent with Section 126 of the Electricity Act, 2003, and hence the latter provision will prevail. Therefore it is held that Regulation 42 (2) is inconsistent with Section 126 (6) and the Board had no power to charge 3 times as provided under Regulation 42 (d), but only at the rate equal to 1½ times the tariff applicable for a period of 6 months, for non-domestic consumers. Regulation 43 of the erstwhile Conditions of Supply of Electrical Energy provides that whenever misuse of energy or dishonest abstraction of energy is detected it is liable to be billed at 3 times of the bills applicable to the respective tariff for a period of 6 months from the date of detection of theft, without prejudice to the rights of the Board to invoke the provisions of Indian Electricity Act, 1910. As observed in Najeeb's case (cited supra) the provisions of Section 126 will prevail over the erstwhile Regulations.
4. But Sri.P. Santhalingam, learned Senior Counsel appearing on behalf of respondents contended that in the case at hand the alleged theft was committed during a period prior to 4/03 and hence the erstwhile Regulations will apply. I am of the considered opinion that there need not be any adjudication on the question as to which is the relevant statute applicable in the billing the consumer. This is because of the fact that, for billing the consumer with imposition of penalty there should be conclusive proof to the effect that the consumer had tampered the Meter and had indulged in unauthorised usage or misuse of energy. Eventhough it is stated in the counter affidavit that the particular Meter in which the tampering detected was dismantled from the premises of the petitioner, nothing is brought out to show that the said Meter was installed for the first time in the premises of the petitioner. It is admitted in the counter affidavit that the Meter was purchased by the Board during 1998. At the same time the Meter in question was installed at the premises of the petitioner only on 25-04-2000. The respondents have not chosen to trace out history of the Meter to verify whether it was installed at any other premises prior to the above said date. Further it is evident that, after dismantling from the premises of the petitioner the Meter was sent to the Central Store at Ernakulam and from there to the TMR Division at Pallam and again to the manufacturer outside the State, and thereafter back to TMR Division at Pallam. The tampering was detected at a later stage. After all these transactions the petitioner can be mulcted with penalty only if there is conclusive evidence to the effect that tampering had occurred at a time when the Meter was installed at the premises of the petitioner. Comparison in the pattern of consumption cannot be adopted to penalise a consumer on the basis of an allegation of theft, tampering or misuse.
5. Imposition of penalty whether under the provisions of Electricity Act, 2003 or under the provisions of erstwhile Conditions of Supply of Electrical Energy, is punitive in nature. Unless convincing or corroborating evidence is there to arrive at a conclusion that the petitioner is had indulged in tampering or misuse, he cannot be penalised. Eventhough the degree of proof with respect to imposition of penalty is not as regress as required for punishment of a criminal case of theft, there should be at least some conclusive proof to the effect that the person concerned had willfully tampered with the energy meter or other apparatus in order to abstract energy from being recorded and billed by the Board. Since no such conclusive proof is available in the case at hand, this court is constrained to observe that the penalty imposed cannot be sustained.
6. However from the facts as enumerated above it is evident that, the Meter installed at the premises of the petitioner was recording only 48% of the actual consumption from 25-04-2000 onwards up to the date of dismantling (13-05-2003), It means that 52% of the actual consumption had escaped recording. This need to be compensated by billing such consumer at the tariff applicable during the relevant period. Therefore the respondents will be perfectly justified in making a back assessment for recouping loss. This court is of the opinion that while setting aside the imposition of penalty the respondent Board can be permitted to make a back assessment as mentioned above.
7. Under the above mentioned circumstances, this writ petition is allowed and Ext.P1 bill which is confirmed by the appellate authority in Ext.P4 order is hereby quashed. The 3rd respondent or any other competent authority under him will be at liberty to make back assessment with respect to the charges of energy escaped billing, as mentioned above, after issuing proper demand. Demand if any in this regard shall be issued at the earliest, at any rate within a period of one month from the date of receipt of a copy of this judgment.
8. Needless to observe that, payments already made by the petitioner against Ext.P1 demand shall be appropriated in accordance with the revised demand. It is further observed that if any balance amount is due from the petitioner, time shall be granted for payment to the extent of 2 weeks from the date of service of such demand. On the other hand, if any amount is found excess in payment, the same shall be refunded/adjusted within a period of 2 months.
AMG Sd/-
C.K. ABDUL REHIM, JUDGE.
True copy P.A. to Judge