Court No. - 7
Case :- WRIT - C No. - 35071 of 2018 Petitioner :- Executive Engineer/ Assessing Authority, Urban Electricity Distribution Division Respondent :- Commissioner Kanpur Region Kanpur/ Appellate Authority And Another Counsel for Petitioner :- Suman Kumar Yadav Counsel for Respondent :- C.S.C.,Manish Kumar Nigam,Raj Kumar Kesari
Hon'ble Saumitra Dayal Singh,J.
1. Heard Mr. Suman Kumar Yadav, learned counsel for the petitioner, Mr. B.C. Rai and Mr. Manish Nigam, Advocates, for the respondents.
2. Present writ petition has been filed against the order passed by the Appellate Authority under Section 127 of the Electricity Act, 2003 (hereinafter referred to as the 'Act') dated 02.08.2018. By that order, the Appellate Authority has partly allowed the appeal filed by respondent no.2 and reduced the final assessment from Rs. 23,59,763/- to Rs. 9,38,142/-.
3. Learned counsel for the petitioner submits that the Appellate Authority has misread the provisions of law and granted unauthorized reduction of the assessment to respondent no.2. In this regard, it has been first submitted that, admittedly, the sanctioned load of the respondent for running a powerloom was 66 HP, i.e. 58 KV. Under the government scheme providing for subsidy, the respondent could have made use of additional 10 percent of that load for ancillary or auxiliary purposes, such as running lights, fans etc. It has been then submitted that in the course of inspection, the respondent was found using electricity in excess of the aforesaid 10 percent limit for auxiliary purposes and, therefore, the respondent was visited with an assessment in terms of Section 126 of the Act read with Clause 6.8 of the Electricity Supply Code, 2005 (hereinafter referred to as the 'Code') read with Annexure 6.3 to that Code. Hence, it has been submitted that the assessment did not suffer from any infirmity. It has also been submitted that, in any case, the Appellate Authority has applied a wrong factor while making computation of the excess consumption by applying power factor 0.5, whereas the power factor 1.0 ought to have been applied.
4. Learned counsel for respondent no.2, on the other hand, has submitted that the Appellate Authority acted wholly in accordance with law, inasmuch as there is no dispute to the fact that the powerloom being run by the respondent was in the category of small and medium power consumer under the rate schedule LMV 6 which is valid for load consumptions up to 100 HP. It is, thus, submitted that even if the excess consumption, as alleged by the petitioner, is taken to be true, the total load utilization by the respondent would be below 66 HP. The fact that the respondent may have used electricity for auxiliary purposes in excess of 10 percent of the sanctioned load would not make any material difference to the nature or status of the connection availed by the respondent. It has further been submitted that, in any case, there is no dispute to the fact that the respondent was found running a powerloom and that the alleged excess consumption may have occurred incidentally or unknowingly in the regular running of the business and that such conduct was not offered by way of a deliberate exercise. In any case, it has been submitted that there is no evidence led by the petitioner at any stage of proceeding to establish any deliberate or dishonest intent on the part of the respondent. Therefore, it has been submitted that the Appellate Authority has rightly made the differentiation and deprived the respondent of the subsidized rate of electricity in respect of the alleged excess consumption of electricity for auxiliary use. Consequently, the respondent has been visited with a demand of Rs. 9,38,142/- with which the said respondent is not aggrieved of and has, in fact, has discharged the same.
5. Further, it has been submitted that, insofar as the power factor is concerned, the submission advanced by learned counsel for the petitioner is misconceived, inasmuch as under Annexure 6.3 to the Code, the formula for unit assessed is LxFxDxH, where 'L' is the connected load; 'F' is the connected load factor; 'D' is the period of unauthorized use, and 'H' is the rate of supply. Load factor has been prescribed as 0.5 for small and medium power consumers.
6. Having considered the arguments so advanced by learned counsel for the parties and having perused the orders passed by the authorities below, it is seen that there is clearly no case of theft made out in the present case and no assessment of theft appears to have been made, inasmuch as the assessment that has been made is referable to Section 126 of the Act and not to Section 135. Even otherwise, from the facts, as has been noted above, no element of theft is made out. Only incidental excess usage of electricity for auxiliary purpose is made out. Looked at from this angle, it thus appears relevant that total load factor availed by respondent being 66 HP, it would not make any change as to its status being that of a small and medium industry to which the rate schedule LMV 6 would continue to apply. That being the case, the connected load factory (F) appearing in the formula for units assessed under Annexure 6.3 to the Code would remain 0.5 for the respondent.
7. The Appellate Authority has found the respondent to be a continuous industry and, therefore, the period of consumption, has been taken as 24 hours a day, which is the maximum factor that may be applied in that regard.
8. Therefore, the findings of fact recorded by the Appellate Authority upon appraisal of due evidence do not appear to suffer from any perversity or non-application of mind or wrong application of principal of law, as may warrant any interference in exercise of jurisdiction under Article 226 of the Constitution, which is limited to judicial review.
9. In matters of best judgement assessment, as has been made under Section 126 of the Act there always is involved a guess work or estimation. So long as the guess work or estimation appears to have been made on existing fact by applying correct principles, the same may not be interfered merely because an alternative offered by the petitioner may lead to a higher or lower assessment.
10. Consequently, the writ petition lacks merit and is, accordingly, dismissed.
Order Date :- 28.11.2018 AHA