1. Sri K.N. Tripathi, Senior Advocate and Sri B.C. Rai, Advocate, have argued on behalf of petitioners. Sri Shashi Nandan, Senior Advocate, assisted by Sri Pankaj Shukla, Advocate, have appeared and argued the matter on behalf of respondents no. 1 to 3. Learned Standing Counsel appearing for respondents 4 and 5 adopted the arguments of Sri Shashi Nandan, Senior Advocate and did not add anything.
2. Since pleadings are complete, as requested and agreed by learned counsel for parties, I proceed to decide under the Rules of the Court at this stage.
3. This writ petition involves certain intricate technical aspects relating to electricity supply, apparatus, particularly energy measuring digital meters, computerized data and print outs. On the request of Sri Shashi Nandan, Senior Advocate, two officials of respondent no. 3 were permitted to explain these technical aspects. They are, (1) Sri K.K. Singhal, Superintending Engineer, Circle Amroha; and (2) Sri Krishan Pal, Executive Engineer (Test), Bijnor.
4. At one stage, while explaining technical aspects, Sri K.K. Singhal took a new stand on behalf of respondents and, therefore, his statement was recorded with consent of both the parties. The statement has been duly signed by him and is made part of record.
5. Besides, petitioners filed an earlier writ petition no. 4487 of 2010 challenging assessment order as well as appellate order. The writ petition was allowed and the appellate order was set aside. The matter was remanded to Appellate Authority to re-decide the appeal. Therein some documents were filed by respondents along with their counter affidavit. On the request of parties, record of earlier writ petition was also called. The documents filed by respondents alongwith counter affidavit in earlier writ petition have been referred to frequently during the course of arguments by both the sides and with their consent, I have also looked into those documents. For clarifying the MRI statements, some copies of M.R.Is. (Meter Reading Instruments downloaded statement) were placed by respondents before the Court during course of argument and with consent of parties those documents have also been seen and made part of record of this writ petition.
6. It is too late in the day to imagine a civilized society living without electricity. It has got the status of 'Necessity'. Life without electricity is unimaginable. An electrical establishment is a high capital low intensive unit. Investment is extremely high. Comparative return is much lower. Probably it is for this reason, not only in the State but in the entire Country electricity, basically and mostly had been generated, transmitted and distributed by undertakings, owned or controlled by Government, Central or Provincial. In the State of U.P., it was earlier some local bodies and private companies and thereafter U.P. State Electricity Board (hereinafter referred to as 'UPSEB') which looked after entire work of generation, transmission and distribution for almost four decades and a little more. The electricity constitute part of welfare activity of the Government and, therefore, for political and other reasons, a recurring but huge loss suffered by UPSEB, running in thousands of crore swallowing substantial public fund in the process. More or less this had been the story of all the Electricity Boards in the Country. In post 1990 era, the policy underwent a major review. Participation of private sector in Energy sector was sought to be encouraged. With this view, the old laws namely, The Electricity Act, 1910 and The Electricity (Supply) Act, 1948 ceased journey in 2003. It preceded a five years experimental enactments like Electricity Regulatory Commission Act, 1998, certain provincial enactments like U.P. Electricity Reforms Act, 1999 (hereinafter referred to as "Act 1999") whereby UPSEB was disbanded trifurcating in three Companies, though completely owned by Government but having further scope of privatization. Lastly we had a comprehensive single Parliamentary Legislation in the form of Electricity Act, 2003 (Hereinafter referred to as the Act, 2003).
7. Everybody is agreeable to one aspect that one of the major cause of deterioration of energy sector run by Government suffering huge losses is due to theft/pilferage of electricity.
8. In the State of U.P., line losses were shown to the extent of 30 to 40 per cent. The major share is taken by theft of electrical energy. Time and again various steps were taken by amendments in the existing Statutes but mostly in vain. This Court has no constraints in observing that energy pilferage by illegal means is a menace not only to the power sector but also to public interest in general since it had swallowed a huge public fund which otherwise could have been used for further development of the nation.
9. Cases have frequently come to the Courts of law when action is taken against individuals, legal or natural, alleging theft of electrical energy, on criminal and civil side both, but mostly unscrupulous persons have succeeded and escaped, may be for the weakness of departmental authorities in prosecuting the matter with greater care, efficiency, honesty and bona fide or the loopholes in statutory provisions.
10. In the matter of domestic consumers, one can say that electricity theft may occur due to self driven illegal acts by energy consuming people i.e. direct connection (also called 'Katia') but when we come to consumers like Heavy Industries receiving energy on High Tension line, this Court has no manner of doubt in observing that theft in such matters is not possible at all without connivance of officials of Electrical Undertakings. Having experience of more than two decades in electrical matters at the bar and knowing much technical aspects of the subject, I have no constraint in saying so.
11. The Courts have ordinarily followed a stern view against energy pilferers, but due to direct or indirect help from energy supply undertakings' officials, the judicial efforts have not resulted in making much impact. The disease has continued.
12. I have made these observations for one reason. While considering a case alleging unauthorized user or theft of electricity, Court has to ponder over not only on sheer jurisprudential and statutory principles but also to detect the root of the cause
13. Before labeling a person, energy pilferer or thief, matter needs be enquired from every angle including whether allegation has been established against the individual in a reasonably certain manner or not. In a criminal trial, general principles of criminal law are to be observed but where similar allegations relate to civil liability, i.e. assessment, the principles of criminal law do not apply. The Electrical Undertaking(s) however cannot absolve from its duty of establishing guilt with reasonable certainty. At least the principle of administrative law applicable in departmental inquiries in given facts and circumstances of a case, i.e. a person of ordinary prudence having expertise in subject or at least having appropriate acquaintance, would come to such a conclusion, must be satisfied. Besides, if a procedure has been prescribed in the statute, the same has to be observed in words and spirit. These are some general principles which would guide this Court in adjudication of a dispute like the present one.
14. M/S Mohit Paper Mills Ltd. through its proprietor Sandeep Jain, who himself is also impleaded as petitioner no. 2, has assailed the order dated 11.10.2010 (Annexure 29 to writ petition) passed by Commissioner, Moradabad Division, Moradabad (hereinafter referred to as the "Commissioner") in appeal no. 22 of 2009-2010. The Commissioner has dismissed appeal against order of assessment dated 27.07.2007 passed by Executive Engineer, Electricity Distribution Division, Bijnor (hereinafter referred to as "Assessing Authority") making assessment of Rs. 86,46,221/- against petitioners.
15. The facts in brief, giving rise to the present dispute, are as under.
16. Petitioner no. 1, M/S Mohit Paper Mills Ltd. (hereinafter referred to as "Company") is a public limited company having its factory situated at K.M. Stone, Nagina Road, Bijnor. It has its Registered Office at 15-A/13, Upper Ground Floor, East Patel Nagar, New Delhi. Petitioner no. 2 is a Director of the Company. For running a paper mill, the petitioners entered into an agreement with erstwhile UPSEB for supplying electricity to the quantum of 1500 KVA. This 1500 KVA is the sanctioned and agreed load termed as 'contracted load' under statute. 'Presently Pashimanchal Vidhyut Vitran Nigam Ltd., a company incorporated under Companies Act (hereinafter referred to as 'PVVNL'), a subsidiary company of U.P. Power Corporation Ltd. (hereinafter referred to as 'UPPCL') is looking after distribution of electrical energy in the area in which petitioner's factory is situated.
17. Petitioner no. 1 is receiving electricity through a dedicated line (commonly known as Independent Feeder in Energy Sector) emanating from 33 KV, Peeli Chowki Sub Station end, Bijnor (hereinafter referred to as "33 KV,S/S"). It is not in dispute that the aforesaid sub-station is receiving supply from a 120 KV sub-station at Bijnor. There are five 11 KV feeders at 33 KV, S/S whereby electricity is being distributed to various consumers which included independent feeder supplying electricity to petitioner no. 1 also.
18. Respondents had installed four meters in the line commencing from 33KV, S/S till petitioners' premises (i.e. meter room). Two meters simultaneously in close proximity were installed in the Sub-station itself. One is termed as "Incoming Meter" (hereinafter referred to as SS Meter 'A') and according to respondents it recorded incoming electricity from supply source of 120 KV transmitted through petitioners' Independent Feeder. Another is termed as "Sub-station meter" (hereinafter referred to as SS Meter 'B') which recorded energy supplied from sub-station through independent feeder connecting petitioner's factory. The third meter was installed, though outside the premises of petitioner no. 1, on a "Double Pole" (hereinafter referred to as DP Meter 'C') so as to record energy almost at the end point of petitioner's factory and to detect line loss, if any, and to function as check meter. The last and the forth meter is called "Consumer's meter" (hereinafter referred to as Billing Meter 'D') installed in the premises of petitioner under various seals etc., details whereof I shall discuss later on. For better understanding, a sketch diagram in a simplistic manner may be provided as under:
1. A to E - Five Feeders F - Incoming meter (SS Meter 'A') G - Outgoing meter (SS Meter 'B') H - Double Pole meter (DP Meter 'C') I - Main Billing meter at consumer premises (Billing Meter 'D')
19. On 22.6.2007, petitioner no. 1 sent a letter addressed to Executive Engineer (in short "E.E.") complaining tripping in the line at 7.00 A.M. On checking of meter room, a smell was noticed and informed to staff of 33KV, S/S who opened the line (electric supply disconnected). Copy of letter also sent to Superintending Engineer, Bijnor (in short "S.E."). An endorsement was made by S.E. on 22.6.2007 marking it to E.E., (Distribution) and (Test). It did not yield in any action by respondents. It is said that on 27.6.2007 metering cubical in the meter room at petitioner's premises caught fire resulting in burning of meter. The electric supply to petitioner's factory also stopped immediately. Information was conveyed to E.E. vide letter dated 27.6.2007 with a copy to S.E.. No action yet.
20. On 28.6.2007 a letter sent to E.E. for restoration of electricity and to take immediate action. Simultaneously, another letter sent to Managing Director, PVVNL, Meerut reporting the aforesaid break down. Thereupon only the respondents reacted.
21. Managing Director constituted a team consisting of three Officers. S.E. vide letter dated 29.6.2007 informed E.E., (Distribution) and Assistant Engineer, Distribution Sub-division about three Officers' team's arrival at 10.00 AM on 30.6.2007 to attend break down. He said that probably cubical had burnt, therefore, it might have to be changed, therefore, cubical and indoor cubical box be kept ready and available to Sri Mohammad Yasim, Junior Engineer. The said letter also appended an estimate of Rs. 59,546/- towards cost of replacement of metering cubical, to be paid by consumer (the petitioners).
22. The aforesaid three members team with local officials inspected meter room and metering cubical at petitioner's premises on 30.6.2007. They recorded their inference that consumer has deliberately damaged metering cubical by setting afire resulting in complete burning of meter, therefore, should be prosecuted under Section 138(d) of "Act 2003". The inspection team also recommended that M.R.I. of D.P. Meter 'C' and S.S. Meter 'A' and 'B' be analyzed and only thereafter replacement of metering cubical be made. If on analyzing the conclusion of theft of electricity is drawn, the concerned authority should proceed in accordance with Section 135 (1)(c) of Act 2003. The checking report (Annexure-6 to the writ petition) was signed by eight officers, namely, A.K. Sharma, K.K. Singhal, Rakesh Mohan, Gyan Prakash, O.P. Agarwal, M.C. Garg, Radha Krishna and Alok Gupta. At the bottom of report, before putting his signature, petitioner no. 2 noted certain comments which I would refer later on at appropriate stage, if need be.
23. A First information report was lodged against petitioner under Section 138(d) of Act 2003. On 5.7.2007 petitioner no.2 sent a letter to Chairman, UPPCL complaining about non furnishing of MRI reports of three meters installed at different places on independent feeder of petitioners but outside the factory premises. He requested for supply of MRI reports of all the three meters and also to restore electric supply.
24. The E.E. sent letter dated 5.7.2007 stating that petitioners should make some change in meter room by closing one door out of existing two doors, and also deposit cost of metering cubical and meter for re-connection.
25. Petitioners on 6.7.2002 submitted application under Right to Information Act seeking MRI reports. On 9.7.2007 petitioners conveyed consent for payment of cost of new meter and metering cubical and requested for early restoration of supply. On 11.7.2007, the petitioners also requested E.E. for opening of metering cubical seal so that the work of closing one door may start.
26. On 18.7.2007, a show cause notice was issued by E.E. alleging that analysis of MRI reports show that the petitioners have committed "unauthorized use of electricity". He accordingly proposed assessment of Rs. 9352597.00 for the period 24.4.2007 to 29.6.2007. Petitioners were required to submit reply within 15 days. They submitted reply vide letter dated 23.7.2007 to S.E. as well as Chief Engineer. The said reply was received in the office of respondents on 26.7.2007.
27. Since, electricity connection was not restored, the petitioners came in writ petition no. 32391 of 2007 which was disposed of vide judgment dated 27.7.2007 as under:
"This writ petition has been filed raising the grievance that the meter installed at the establishment of the petitioner has burnt and the application for installation of fresh meter is pending consideration before the respondent no. 5.
Shri H.P. Dubey, learned counsel appearing for the Power Corporation has assured the Court that the grievance of the petitioner for installation of fresh meter shall be considered and decided strictly in accordance with law and will be disposed of by a speaking and reasoned order in accordance with law expeditiously taking into consideration the fact that it should not be a case of electricity theft under Section 135 of the Indian Electricity Act (hereinafter called the Act).
Shri H.P. Dubey, learned counsel appearing for the Power Corporation has stated that considering the instant case of electricity theft, a provincial assessment had already been made again the petitioner under section 126 (3) of the Act, the petitioner may file objection to the same within a period of two weeks and a final assessment order shall be passed by the respondent corporation within a period of two weeks thereafter. In case the petitioner is by any means aggrieved of the final assessment order he may file an appeal under Section 127 of the Act.
However, considering the fact that final assessment may take sometime and in case the petitioner makes payment of ten lakhs and makes an application for supply of the electricity, the respondents Corporation shall restore the supply of the electricity immediately after installation of the new meter at the establishment of the petitioner. However, payment etc shall be subject to the final order passed after considering the objections filed by the petitioner.
In view of the above, the petition stands disposed of."
28. On the same date i.e. 27.07.2007, the E.E. after considering petitioner's representation passed a final assessment order making revenue assessment of Rs. 86,46,221/- for the period 24.4.2007 to 27.6.2007.
29. Assailing aforesaid assessment petitioners filed Writ Petition 35589 of 2007 which was disposed of vide judgment dated 3.8.2007 relegating petitioners to avail alternative remedy of appeal before Commissioner, under Section 127 of the Act 2003. However, with respect to pre-condition of deposit of amount of assessment, this Court observed that since petitioners have already deposited Rs. 10,00,000/- pursuant to Court's earlier order dated 27.7.2007, may further deposit Rs. 33,23,110/- to make total 50% of assessed amount (further divided as 50% cash and 50% bank guarantee), whereupon his appeal, if preferred, shall be considered by the appellate authority.
30. Consequently, petitioners filed appeal vide memo of appeal dated 22.8.2007 (Annexure 17 to the writ petition). A detailed written argument was also filed (Annexure 18 to the writ petition). The appellate authority decided appeal and rejected the same vide order dated 18.1.2010.
31. Petitioner challenged appellate order dated 18.1.2010 as also assessment order in writ petition no. 4487 of 2010. This Court heard the matter and found that Commissioner has not considered the matter in correct perspective. Vide judgment dated 9.2.2010 (Annexure 25 to writ petition) writ petition was allowed and appellate order was set aside.
32. This Court said that Commissioner has not recorded his independent findings, but has mechanically relied upon the opinion of Assessing Authority and departmental authorities. Before accepting the inference drawn by eight members team, the appellate authority has not considered the points raised by petitioners including the fact that in criminal case, no evidence has been adduced. It had also not examined whether an independent exercise was undertaken to get the meter tested to find out reasons of defect or tampering etc. and also the consumption pattern. After burning of meter at consumer's premises, for five days, increase in consumption is a fact taken into account without confronting petitioners and giving opportunity to explain reason for such sudden increase. The Court observed, if new grounds are made foundation of an order, the other side must be given opportunity before relying on such new grounds. The appellate order dated 18.12.2010 thus was set aside and matter remanded to Appellate Authority to re-decide the appeal by a reasoned and speaking order on own assessment of evidence keeping in view the issues pointed out in the judgment.
33. Pursuant thereto the petitioners submitted an application dated 16.4.2010 before Commissioner requesting for re-connection of electric supply. Petitioners also pointed out discrepancies and illegalities committed by E.E. in repeatedly disconnecting electric supply on the ground of non payment of amount of assessment. Besides, petitioners also filed a supplementary affidavit dated 9.5.2010 stating that while making assessment, MRI reports were relied on without supplying their copies and that the authorities did not find any evidence of alleged theft, yet have made assessment which is unsustainable being without any basis. Petitioners contended that assessment of theft of electricity is not permissible on mere vagaries of Assessing Authority. If the statement of one or more Officers of the department is to be relied on, the consumer ought to have been given opportunity of cross examination of such Officer(s). Besides, petitioners also filed written argument dated 2.8.2010. Commissioner, thereupon has passed the impugned order dated 11.10.2010 dismissing the appeal.
34. On behalf of respondents, a detailed counter affidavit has been filed sworn by Sri D.R. Vimlesh, E.E., PVVNL. Electricity Distribution Division, Bijnor. It says that on 30.6.2007, in the presence of Company's representative, a Raid Team opened lock of metering system and came to know that a duplicate key of meter room was in the possession of consumer which must have been with the nefarious intention to commit theft of electricity. The Raid Team found smoke sign over meter room's door and wall. The consumer had tried to wash up evidence knowlingly and with intention of causing disappearance of evidence. The team also found burnt paint below metering cubical. Part of cubical above meter was found intact. All the seals of meter cubical and wire found melt and meter also turned into ash. The proceedings were recorded in video camera. After perusing sub-station record, the Raid Team found that consumer had informed on 28.6.2007 that earth fault occurred on 22.6.2007 resulting in automatic dis-connection of supply but in sub-station record, there was no endorsement of alleged tripping till 26.6.2007. This itself was sufficient to belie consumer's submission about automatic dis-connection on 22.6.2007. On enquiry, respondents found involvement of Sri D.C. Jain S.E., Sri A.K. Chopra, E.E., and Mohd. Ashif, Junior Engineer of sub-station, Peele Chowki, who were suspended on 26.6.2007 due to involvement in theft of electrical energy. Later on, Managing Director constituted a checking team to make inspection at petitioner's premises. Somebody must have warned consumer about the aforesaid raid scheduled to be made on 30th June. Consumer deliberately destroyed evidence of theft, burn meter room. The Field Officer(s) concerned must have helped consumer by receiving letters in back dates, i.e. 22.6.2007, 27.6.2007 and 28.6.2007. The consumer's story stood belied by letter dated 28.6.2007 wherein has referred to a technical fault and not burning of the meter. Similarly in another letter he had mentioned tripping of electricity and burn smell coming out from meter room. In sub-station record, there is no endorsement of tripping of electricity at consumer's premises. As per para 6.8 and 8.1 of U.P. Electricity Code, 2005 (hereinafter referred to as "Code 2005"), the departmental team raided the premises of petitioner, prepared checking report on the spot, conducted videography and all the members of team signed checking report in the presence of petitioner's representative.
35. The counter affidavit also refers to some other matter relating to one Parmarth Iron Pvt. Ltd. Company (nor connected to petitioners), where respondents claimed to have discovered a theft assessed to the tune of Rs. twelve crore as a result whereof some Officers were suspended on 26.6.2007. Final assessment was made after giving fullest opportunity to the consumer on the basis of M.R.Is. reading from 27.10.2006 to 21.6.2007 of 11 K.V. D.P. Meter 'C' and main meter i.e. Billing Meter 'D' analysis . The comparison shows excess consumption of energy in D.P. Meter 'C' than Billing Meter 'D'. This comparison chart has been filed as Anneuxre CA-4. It is also said that in M.R.I. reading, midnight features were not displayed, therefore, officials contacted one Ram Naresh Sharma of Secure Meters Ltd. who informed on E-mail that as per reading data, midnights features were not available in the meter.
36. One more interesting fact, mentioned in the counter affidavit, is that 33/11 KV sub-station Peeli Chowki and petitioners' industry have a common boundary wall. The three meters' details given by respondents show that the D.P. Meter 'C' and Billing Meter 'D' were of same make, i.e. Secure Company's Meters having no. UPE-79207 (DP Meter 'C') and UPE-59262 (Billing Meter 'D'), while incoming and outgoing independent feeder meters are different i.e. switch gear meters. The incoming meter (SS Meter 'A') is numbered as GEC 03043 while outgoing (SS Meter 'B') was GEC 02882. About the consequences of F.I.R., the respondents have said that final report was accepted by Magistrate which was challenged before this Court wherein the same was set aside and matter is now pending before the concerned Magistrate.
37. Petitioners have filed rejoinder affidavit showing discrepancies in the chart of different meters to demolish theory of theft. They have also raised issues about authenticity of M.R.I. reports for the purpose of levelling charge of theft against them. In-depth discussion of these matters I shall make later on at relevant stage.
38. Sri Rai, Learned counsel for petitioners contended that respondents have miserably failed to meet out requirement of Statute i.e. "establishment of theft" on the part of consumer. He submits that once respondents authority failed to do so, the question of making assessment against petitioners would not arise. The theft, even for imposing civil liability, has to be established on the basis of preponderance and, in any case, on the principle that a person of ordinary prudence may have arrived at the same conclusion as has been arrived at by the competent authority but not on sheer conjectures and surmises. Suspicion, howsoever grave, may not replace proof, and unless and until, theft is "established" i.e. proved, no assessment can be made. He further submits that even otherwise in making assessment, procedure prescribed in Statute has not been observed and, therefore, petitioners' right to property has been infringed in a manner not prescribed in law. The impugned assessment and appellate orders are illegal, contrary to the Statute as also Article 300-A of the Constitution.
39. Sri Shashi Nandan, Senior Advocate, on the contrary submitted that sudden increase in consumption after burning of petitioner's meter (Billing Meter 'D') shows that he was indulged in theft of electrical energy. There are some glaring discrepancies in the stand of petitioners at different times showing lack of bona fide and mischief on their part. He submitted that Commissioner, after passing impugned order of assessment, has expressed opinion about collusion of departmental officials and, thereafter, respondent-Corporation is taking action against such Officers. He submitted that in the case in hand, procedure prescribed in Clause 6.8 is not to be seen inasmuch here is a case of theft governed by Section 135 and, therefore, procedure laid down in Clause 8.1 and onwards will have to be followed which actually has been followed.
40. Sri K.K. Bansal, S.E., who was member of the Team who inspected and signed checking report dated 30.6.2007, while clarifying technical aspects of the matter, said that in all four meters, some device was used by consumer so as to influence digital recording of consumption in the said meters which must have been removed before inspection was made by Raid Team on 30.6.2007 and that is how no such device could be detected by the Raid Team. He submitted that the trend shows a clear case of some inconsistency in all the four meters' readings which justify inference of theft of electrical energy by consumer.
41. His statement, made before this Court (partly in Hindi and partly in English), duly signed by him, reads as under:
^^,d ehVfjax flLVe ls nwljs ehVfjax flLVe esa dqN fMQjsUl gksrk gS 1 ijlsUV ds vklikl fMQjsUl gksrk gS ijUrq ;g vUrj vxj ekbZul esa tk;sxk rks ekbul esa gh tk;sxkA lcLVs'ku dh fjfMax dks Hkh fjykbZ dj jgs gSaA fjfMax tks gksrh gS mlds ehVfjax flLVe ds vUnj ;fn dksbZ jksd yxk ns rks de fjfMax 'kks djsxkA lEHkor% ehVj flLVe VSEiMZ gksrk jgk tc pSfdax Vhe us psfdax fd;k rc dksbZ bfDoiesaV ugha feyk fd ftl bfDoiesUV ls ehVj /khjs fd;k x;k FkkA nks ehVjksa esa ,e-vkj-vkbZ- fjfMax esa vUrj ;fn ekbZul esa tk jgk gS rks ekbul esa gh tk;sxk vkSj Iyl esa tk jgk gS rks Iyl esa gh tk;sxkA ,e-vkj-vkbZ jhfMax vFksfUVd gksrk gSA ;gka ij dHkh _.kkRed gS dHkh /kukRedA ehVj flLVe Lyks fdl dkj.k ls gS ;s pht gesa ogka ugha feyhA ;s crkuk pkgrk gwW fd fjfMax dk pkVZ eSuqoy ugha g]S dEI;wVjkbZt gSA ,e-vkj-vkbZ fjfMax DEI;wVjkbZt gksrh gSA tks dEis;j pkVZ cuk gS eSuqoy fjfMax dk ugha gSA fdlh fdlh fnu fofnu fyfeVs'ku (within limitation) fdlh fdlh fnu fofnu fyfeVs'ku (within limitation) ugha gSA fdlh fdlh fnu ;g Hkh feysxk fd ;g vkmV vkQ fyfeVs'ku gks x;k 23 ls 27 rkjh[k rd nks ehVjksa dk VsªUM ,d gS tc ekbZul esa tk jgk gS rks lHkh esa ekbul esa tk jgk gS rFkk dHkh Iyl esa dHkh ekbZul esa ugha tk jgk gS ijUrq 22 rkjh[k ls igys dHkh Iyl esa dHkh ekbul esa tk jgk gSA In the metering systems of all the four meters, there may be some manipulation and that is the reason, the difference is there.
22 rkjh[k ds ckn ls 60 ijlsUV dUtEI'ku c<+k gSA 21 rkjh[k rd pkjks ehVj dk VsªUM ,d tSlk ugh jgk gSA There are four meters. Before 22nd and on 22nd out of all four meters, in any two meters difference of consumption is not same. Either some day it is negative or some day it is positive. Reason for this change is that there might be some device used in metering system of all these meters.
From 22rd to 27th, the meters of the department, which are in healthy condition have shown increase in consumption which is above 60 per cent.
From 23rd to 27th the trend between two meters is constant. If it is minus direction, then it is always in minus direction. This proves that earlier there was some manipulation in all the four metering systems." (emphasis added) This statement had to be recorded for the reason that theory of artificial device in all the four meters came forth for the first time and that too before this Court.
42. Sri Krishan Pal, E.E. (Test), Bijnor, who addressed this Court on the permission sought by Sri Shashi Nandan, Senior Advocate, to explain Line Digram of petitioners' independent feeder and also other supply lines from Sub-Station, admitted that incoming 33/11 KV meter (SS Meter 'A') and outgoing Sub-Station Meter (SS Meter 'B'), both were installed simultaneously and therefore, there should not have been any difference in reading of two but unfortunately it is there which is inexplicable. He also furnished certain diagrams which I keep on record.
43. These diagrams show that 132 KV electric line comes from Sub-Station, Bijnor to 33 KV Peeli Chowki Sub-Station where it is stepped down to 33 KV. This 33 KV is further stepped down to 11 KV and therefrom emanated five 11 KV feeders including one Feeder going to petitioners' premises. This 11 KV line going to petitioners' premises firstly had at Sub-Station itself two meters namely SS Meter Meter 'A' and SS Meter 'B' installed simultaneously. Thereafter near the premises but outside, at Double Pole, another meter is installed which is called "Double Pole Meter" (i.e. DP Meter 'C') and then the line goes to petitioners' premises but before entering the transformer at consumers premises, energy is recorded in another meter installed at petitioner's premises, known as "Consumer's Meter" or the "Main Meter" or the "Billing Meter 'D'".
44. The consumer is receiving, therefore, electricity supply at 11 KV through an independent feeder after stepping down 132 KV line, first at 33 KV, and then at 11 KV. It is an admitted case by respondents that total energy received at the Sub-Station from 132 KV line is not measured by them at a single point. After step down to 33 KV or 11 KV, the collective received energy also is not measured by a common or single meter. Only when it is further stepped down to 11 KV, then in respect to petitioner's independent feeder, two meters have been installed simultaneously. Since both are installed in line (almost in series), there ought not be any difference in readings of these two. Sri Krishan Pal, E.E. (Test), Bijnor, when put this question, admitted before the Court that these meters are simultaneous and in series and there ought not be any difference in electrical energy recorded therein though it is there. He, however, also admitted that there was no system of recording of energy received at 33 KV Sub-Station from 132 KV and, therefore respondents could not monitor total auxiliary or transmission losses after receiving electricity from 132 KV and stepping down to 33 KV or 11 KV; and what remains available for export after stepping down to 11 KV. It is admitted that electricity is supplied to various consumers through five 11 KV feeders lines which included one feeder of the petitioners. This is also admitted by the respondents that the three meters installed as 11 KV feeder at Sub-station and Double Pole are in the exclusive control of the officers of respondents and petitioners cannot have access to those meters unless permitted by respondents officials.
45. It is in this backdrop, three important questions need be answered in this case, would be; (1) whether assessment and appellate orders have been passed in accordance with statute, i.e. procedure prescribed therein; (2) whether there is any illegality in decision making process or not; (3) whether any assessment is permissible on the basis of readings or positions of three meters installed outside the premises of petitioners.
46. Two incidental and ancillary but integral questions would also arise since this would be the foundation for proceeding ahead and to give rise to the above three questions; would be, (1) whether allegation of theft against petitioners has been established as required in law and/or the assessment has been made on proven facts or pure conjectures and surmises going to the extent of suspicion, may be strong, and (2) What would be the nature and extent of proof in a case like the present one where digital apparatus, namely, the meters and metering systems and its data collection are the basic device to find out a case of theft .
47. The real period in controversy is 22nd-30th June 2007. The statutory provisions in Act, 2003, as applicable on that date, obviously have to be considered besides the factual events occurred during this time.
48. Actually there was a major amendment in Act, 2003 with effect from 15.6.2007 and consequential changes in Code, 2005 as well. For the purpose of this matter, I need not go into the legislative history prior to Act, 2003.
49. The Act, 2003 was enacted and published in the Gazette of India dated 2.6.2003. Section 1 (3) provides that the Act shall come into force on such date as the Central Government may by notification appoint. The proviso thereunder also empowers Central Government to enforce different provisions of Act on different dates. The entire Act except Section 121 came into force on 10.6.2003. Section 185 of Act 2003, except to the extent provided therein, repealed Indian Electricity Act, 1910, Electricity (Supply) Act, 1948 and Electricity Regulatory Commissions Act, 1998.
50. The comprehensive enactment, i.e. Act, 2003 runs in 18 parts/chapters. Part relates I relates to definitions; IInd relates to provisions pertaining to national electricity policy and plan; IIIrd to generation of electricity; IVth to licensing; Vth to transmission of electricity, inter-State and intra-State both; VIth to distribution of electricity including distribution licensees, electricity trader, supply generally and consumers protection; VIIth contains provisions relating to tariff, VIIIth relating to works of licensee and of overhead lines; IXth deals with the provisions relating to central electricity authority; Xth relates to Regulatory Commissions, XIth to appellate Tribunal; part XIIth to investigation and enforcement; part XIIIth to re-organisation of Board; XIVth to offences and penalties; part XVth to Special Court; XVIth to dispute resolution; XVIIth to protective clauses and XVIIIth is miscellaneous.
51. In this case we are concerned with provisions contained in parts XII and XIV. To be more precise, for our purposes, relevant provisions are Sections 126, 127, 135 and 138 whereupon the entire case is founded. After initial legislation, Sections 126 and 135 underwent amendment by Act No. 26 of 2007, came into force on 15.6.2007. In order to provide an effective preventive measure curbing theft of electricity etc., legislature has made provisions in twin ways. One by declaring certain acts/omissions as offence i.e. 135 to 142 and another by creating a civil liability compensating licensee i.e revenue assessment. The method of ascertainment and adjudicatory machinery for revenue assessment is provided in Section 126 and 127 while offences and penalties are dealt with from Sections 135 to 152, to be more precise 135 to 142 and rest are incidental provisions. Seven kinds of offences are contemplated which are punishable under Sections 135 to 142.
52. Section 143 deals with power to adjudicate and Section 144 deals with the factors to be taken into account by Adjudicating Officer. Section 145 ousts jurisdiction of Civil Court in respect of matter wherein an Assessing Officer referred to in Section 126, and Appellate Authority referred to in Section 127 or the Adjudicating Officer appointed under Act, 2003 is empowered by or under Act, 2003 and also prohibit injunction by any court or other authority in respect of action taken or to be taken pursuant to power conferred by or under Act 2003.
53. Section 146 provides for punishment for non-compliance of orders or direction given under Act 2003. Section 147 declares that penalties under the Act 2003 shall be in addition to and not in derogation of any liability in respect of payment of compensation or in the case of a licensee, the revocation of his licence which the offender may have incurred. Section 148 extends Act 2003 to the electricity supplied by or of works belong to the Appropriate Government. Section 149 deals with offences by companies; 150 deals with abetment and Sections 151, 151-A and 151-B are procedural, namely, cognizability of offences, power of Police to investigate, and, certain offences, whether cognizable or non-cognizable. Section 152 makes offence of Theft compoundable in the manner provided thereunder.
54. For the purpose of the present case, this Court is concentrating on Sections 126, 127 135, and 138 of Act 2003.
55. There is a major amendment in Sections 126 and 135. For proper understanding of the subject, it would be appropriate to have a glance of these two provisions as stood prior to amendment and thereafter. The amendment was made by Act 26 of 2007 with effect from 15.06.2007.
56. Sections 126 as stood before and after amendment reads as under:
Before amendment After amendment
126. Assessment- (1) If on an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found connected or used, or after inspection of records maintained by any person, the assessing officer comes to the conclusion that such person is indulging in unauthorised use of electricity, he shall provisionally assess to the best of his judgment the electricity charges payable by such person or by any other person benefited by such use.
(2) The order of provisional assessment shall be served upon the person in occupation or possession or in charge of the place or premises in such manner as may be prescribed.
(3) The person, on whom a notice has been served under sub-section (2), shall be entitled to file objections, if any, against the provisional assessment before the assessing officer, who may, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment of the electricity charges payable by such person.
(4) Any person served with the order of provisional assessment may, accept such assessment and deposit the assessed amount with the licensee within seven days of service of such provisional assessment order upon him.
Provided that in case the person deposits the assessed amount, he shall not be subjected to any further liability or any action by any authority whatsoever.
(5) If the assessing officer reaches to the conclusion that unauthorised use of electricity has taken place, it shall be presumed that such unauthorised use of electricity was continuing for a period of three months immediately preceding the date of inspection in case of domestic and agricultural services and for a period of six months immediately preceding the date of inspection for all other categories of services unless the onus is rebutted by the person, occupier or possessor of such premises or place.
6. The assessment under this section shall be made at a rate equal to one and half times the tariff applicable for the relevant category of services specified in sub-section (5).
Explanation- For the purposes of this section-
(a) "assessing officer" means an officer of a State Government or Board or licensee, as the case may be, designated as such by the State Government;
(b) "unauthorised use of electricity" means the usage of electricity-
(i) by any artificial means; or
(ii) by a means not authorised by the concerned person or authority or licensee; or
(iii) through a tampered meter; or
(iv) for the purpose other than for which the usage of electricity was authorised.
126. Assessment- (1) If on an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found connected or used, or after inspection of records maintained by any person, the assessing officer comes to the conclusion that such person is indulging in unauthorised use of electricity, he shall provisionally assess to the best of his judgment the electricity charges payable by such person or by any other person benefited by such use.
(2) The order of provisional assessment shall be served upon the person in occupation or possession or in charge of the place or premises in such manner as may be prescribed.
(3) The person, on whom an order has been served under sub-section (2), shall be entitled to file objections, if any, against the provisional assessment before the assessing officer, who shall, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment within thirty days from the date of service of such order of provisional assessment, of the electricity charges payable by such person.] (4) Any person served with the order of provisional assessment may, accept such assessment and deposit the assessed amount with the licensee within seven days of service of such provisional assessment order upon him.
(Proviso omitted) (5) If the assessing officer reaches to the conclusion that unauthorised use of electricity has taken place, the assessment shall be made for the entire period during which such unauthorised use of electricity has taken place and if, however, the period during which such unauthorised use of electricity has taken place cannot be ascertained, such period shall be limited to a period of twelve months immediately preceding the date of inspection.
6. The assessment under this section shall be made at a rate equal to twice the tariff applicable for the relevant category of services specified in sub-section (5).
Explanation- For the purposes of this section-
(a) "assessing officer" means an officer of a State Government or Board or licensee, as the case may be, designated as such by the State Government;
(b) "unauthorised use of electricity" means the usage of electricity-
(i) by any artificial means; or
(ii) by a means not authorised by the concerned person or authority or licensee; or
(iii) through a tampered meter; or
(iv) for the purpose other than for which the usage of electricity was authorised; or
(v) for the premises or areas other than those for which the supply of electricity was authorised.
57. The apparent changes made by Amendment in 2007 are:
(a) The assessing authority has been obliged to pass final order of assessment within a prescribed time, i.e. 30 days.
(b) Opportunity of oral hearing after issuing provisional assessment order and receiving objection has been made mandatory by changing the word "may" to "shall".
(c) The immunity available to defaulter by accepting provisional assessment and paying the amount from any other action has been done away.
(d) The assessment is made more stringent inasmuch as period of assessment is increased and quantum with reference to rate is also increased.
(e) The term "unauthorized use of electricity" is widened covering the cases where electricity is used for a purpose other than authorized one.
58. Similarly, Section 135 as stood pre and post amendment reads as under:
Before amendment After amendment
135. Theft of electricity (1) Whoever, dishonestly,--
(a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee; or
(b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or
(c) damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of electricity, so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or with both:
Provided that in a case where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use--
(i) does not exceed 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction the fine imposed shall not be less than six times the financial gain on account of such theft of electricity;
(ii) exceeds 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction, the sentence shall be imprisonment for a term not less than six months but which may extend to five years and with fine not less than six times the financial gain on account of such theft of electricity:
Provided further that if it is proved that any artificial means or means not authorised by the Board or licensee exist for the abstraction, consumption or use of electricity by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of electricity has been dishonestly caused by such consumer.
(2) Any officer authorised in this behalf by the State Government may--
(a) enter, inspect, break open and search any place or premises in which he has reason to believe that electricity has been or is being, used unauthorisedly;
(b) search, seize and remove all such devices, instruments, wires and any other facilitator or article which has been or is being, used for unauthorised use of electricity;
(c) examine or seize any books of account or documents which in his opinion shall be useful for or relevant to, any proceedings in respect of the offence under sub-section (1) and allow the person from whose custody such books of account or documents are seized to make copies thereof or take extracts therefrom in his presence.
(3) The occupant of the place of search or any person on his behalf shall remain present during the search and a list of all things seized in the course of such search shall be prepared and delivered to such occupant or person who shall sign the list:
Provided that no inspection, search and seizure of any domestic places or domestic premises shall be carried out between sunset and sunrise except in the presence of an adult male member occupying such premises.
(4) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) relating to search and seizure shall apply, as far as may be, to searches and seizure under this Act.
135. Theft of electricity (1) Whoever, dishonestly,--
(a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee; or
(b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or
(c) damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of electricity; or
(d) uses electricity through a tampered meter; or
(e) uses electricity for the purpose other than for which the uses of electricity was authorised, so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or with both:
Provided that in a case where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use--
(i) does not exceed 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction the fine imposed shall not be less than six times the financial gain on account of such theft of electricity;
(ii) exceeds 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction, the sentence shall be imprisonment for a term not less than six months but which may extend to five years and with fine not less than six times the financial gain on account of such theft of electricity:
Provided further that in the event of second and subsequent conviction of a person where the load abstracted, consumed or used or attempted abstraction or attempted consumption or attempted use exceeds 10 kilowatts such person shall also be debarred from getting any supply of electricity for a period which shall not be less than three months but may extend to two years and shall also be debarred from getting supply of electricity for that period from any other source or generating station.
Provided also that if it is proved that any artificial means or means not authorised by the Board or licensee or supplier, as the case may be, exist for the abstraction, consumption or use of electricity by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of electricity has been dishonestly caused by such consumer.
1(A) without prejudice to the provisions of this act, the licensee or supplier, as the case may be, may upon detection of such theft of electricity, immediately disconnect the supply of electricity:
Provided that only such officer of the licensee or supplier, as authorised for the purpose by the Appropriate Commission or any other officer of the licensee or supplier, as the case may be, of the rank higher than the rank so authorised shall disconnect the supply line of electricity:
Provided further that such officer of the licensee or supplier, as the case may be, shall lodge a complaint in writing relating to the commission of such offence in police station having jurisdiction within twenty-four hours from the time of such disconnection:
Provided also that the licensee or supplier, as the case may be, on deposit or payment of the assessed amount or electricity charges in accordance with the provisions of this Act, shall, without prejudice to the obligation to lodge the complaint as referred to in the second proviso to this clause, restore the supply line of electricity within forty-eight hours of such deposit or payment.
(2) Any officer or the licensee or the supplier, as the case may be, authorised in this behalf by the State Government may--
(a) enter, inspect, break open and search any place or premises in which he has reason to believe that electricity has been or is being, used unauthorisedly;
(b) search, seize and remove all such devices, instruments, wires and any other facilitator or article which has been or is being, used for unauthorised use of electricity;
(c) examine or seize any books of account or documents which in his opinion shall be useful for or relevant to, any proceedings in respect of the offence under sub-section (1) and allow the person from whose custody such books of account or documents are seized to make copies thereof or take extracts therefrom in his presence.
(3) The occupant of the place of search or any person on his behalf shall remain present during the search and a list of all things seized in the course of such search shall be prepared and delivered to such occupant or person who shall sign the list:
Provided that no inspection, search and seizure of any domestic places or domestic premises shall be carried out between sunset and sunrise except in the presence of an adult male member occupying such premises.
(4) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) relating to search and seizure shall apply, as far as may be, to searches and seizure under this Act.
59. The apparent changes made by amendment in 2007 in Section 135 are:
(a) The cases of theft of electrical energy are widened by extending to a case of use of electricity for the purpose other than authorised one.
(b) The insertion of Clause (d) in Section 135(1) is more in the nature of clarificatory or to cover up the gap of situation left by Clauses (a), (b) and (c) read together.
(c) Punishment/penalty in case of continuance of default made more stringent.
(d) Registration of first information report in case offence of theft is apprehended or detected made obligatory.
(c) Specific power of disconnection conferred with simultaneous checks imposed thereon i.e. restoration of disconnected supply within a time bound period if the assessed amount or electricity charges are paid by defaulter.
(d) Authorities who can inspect the premises are widened/clarified by extending to licensee or supplier.
60. Though the provision relating to assessment i.e. Section 126 figures in Part XII and Section 135 figures in Part XIV but to some extent there is an overlapping. Section 126 talks of assessment when the competent authority is satisfied that a person is indulging in "unauthorized use of electricity". This term has been defined in Explanation (b). The Court finds that some of the aspects included within the term "unauthorized use of electricity" also constitute 'theft' under section 135, e.g., usage of electricity through a tampered meter constitutes "unauthorized use of electricity" as also the "theft".
61. Clause (V) Explanation (b) did not exist before 15.6.2007 in Section 126 but inserted vide amendment of 2007. Section 135(1)(e) also covers use of electricity for a purpose other than authorized constituting "theft of electricity". This clause has also been inserted with effect from 15.6.2007. Both these provisions i.e. Sections 126 and 135 inserted in 2007 cover an identical situation.
62. Therefore, whenever electricity is used through a "tampered meter" it would constitute "unauthorized use of electricity" for which assessment can be made under Section 126 and simultaneously criminal proceedings can also be initiated, it being an offence under Section 135(1)(d) of Act 2003.
63. Similarly usage of electricity for purposes other than for which the usage of electricity was authorized, constitutes "unauthorized use of electricity" vide Explanation (b)(v) to Section 126 and simultaneously the same also constitutes 'theft of electricity' under section 135(1)(e) clauses (i) and (ii).
64. Explanation (b) (i) and (ii) of Section 126 provide that usage of electricity by any artificial means, or a means not authorized by the concerned person or authority or licensee would constitute "unauthorized use of electricity". Under Section 135(1)(b) any device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted constitutes theft of electrical energy. Here also it is overlapping qua 'means' vis a vis device or method.
65. The terms "artificial means" or "a means" or "device" as such have not been defined in Act, 2003 but, in my view, they constitute a situation where electricity is used/consumed/extracted etc. by a consumer in a manner that it is not correctly or at all recorded by the meter. For something done by the consumer, so as to get electric supply directly or through meter but in a manner not accurately or at all registered by the meter, installed by the licensee.
66. The ordinary dictionary meaning of the term 'device' is:
(1) Oxford Advanced Learner's Dictionary (Seventh Edition) published by Oxford University Press: "an object or a piece of equipment that has been been designed to do a particular job"
(2) Black's Law Dictionary (5th Edition): "An invention or contrivance, any result of design; .... A plan or project; a scheme to trick or deceive, a stratagem or artifice, as in the law relating to fraud and cheating. Also, an emblem, pictorial representation , for distinguishing mark or sign of any kind; as in the laws prohibiting the marking of ballots used in public election with and device.
In patent law, a plan or contrivance, or an application, adjustment, shaping, or combination of materials or members, for the purpose of accomplishing a particular result or serving a particular use, chiefly by mechanical means and usually simple in character or not highly complex, but involving the exercise of the inventive faculty."
(3) Law Lexicon The Encyclopaedic Law Dictionary (2nd Edition Reprint 2007): That which is devised or formed by design; a contrivance; an artificial contrivance. So also the term has been variously defined as meaning an invention; a stratagem; a project; a scheme-often a scheme to deceive; and artifice; also, used to denote hearing or emblematic representation or motto.
(4)The New Lexicon Webster's Dictionary published by Lexicon Publications, Inc., New York : a scheme, trick, stratagem, something designed or adapted for a special purpose, a device for trimming hedges, a heraldic design, a motto to leave someone to his own devices to allow someone to do as he pleases, to have someone to fend for himself.
(5) The Random House Dictionary of the English Language published by Random House/ New York: 1. a thing that is made, usually for a particular working purpose; an invention or contrivance, esp. a mechanical or electrical one. 2. a plan or scheme for effecting a purpose. 3. a crafty scheme, trick. 4. a representation or design used as a heraldic charge or as an emblem, badge, trademark, or the like. 5. a motto. 6. something elaborately or fancifully designed. 7. a particular word pattern, figure or speech, combination of word sounds etc. used in a literary work to evoke a desired effect or arouse a desired reaction in the reader
67. The term "means" has been defined:
(1) Oxford Advanced Learner's Dictionary (Seventh Edition) published by Oxford University Press: "an action, an object or a system by which a result is achieved; a way of achieving or doing (2) Black's Law Dictionary (5th Edition): "That through which, or by the help of which, an end is attained; something tending to an object desired; intermediate agency or measure, necessary condition or co-agent; instrument. ... Resources, available property, money or property, as an available instrumentality for effecting a purpose, furnishing a livelihood, paying a debt, or the like.
(3) The New Lexicon Webster's Dictionary published by Lexicon Publications, Inc., New York : that which enables some purpose to be fulfilled, the method used to achieve a purpose, material resources (income etc.) (4) The Random House Dictionary of the English Language published by Random House/ New York: available resources, riches, considerable financial resources.
68. The meaning of term "artificial" has been defined in various dictionaries as under:
(1) Oxford Advanced Learner's Dictionary (Seventh Edition) published by Oxford University Press: 1. made or produced to copy sth natural; not real 2. created by people, not happening naturally 3. not what it appears to be (2) Black's Law Dictionary (5th Edition): As opposed to "natural", means created or produced by man. Created by art, or by law; existing only by force of or in contemplation of law.
(3) Law Lexicon The Encyclopaedic Law Dictionary (2nd Edition Reprint 2007): Created by art, or by law; existing only by force of or in contemplation of law. Opposite to natural; made by or resulting from art or artifice; made by art in imitation or, or as a substitute for, what is natural or real (4)The New Lexicon Webster's Dictionary published by Lexicon Publications, Inc., New York : man-made (as opposed to natural) (5) The Random House Dictionary of the English Language published by Random House/ New York: 1. made by human skill, produced by man (opposed to natural). 2. made in limitation or as a substitute: not genuine or real; simulated 3. lacking naturalness or spontaneity, forced, contrived; feigned 4. full of affection, affected; stilted 5. made without regard to the particular; conventional; unnatural.
69 The term "artificial means" itself came to be considered by the Apex Court in Jagannath Singh Vs. B. S. Ramaswamy AIR 1966 SC 849, wherein the Court observed that insertion of foreign material inside the meter retarding rotation of the inside disc is included within the term "artificial means". Something used for preventing the meter from due registration of electrical energy supplied to the consumer.
70. In my view, the term "device" or "method" under Section 135(1) (b) would cover and include the term "artificial means" or 'the means' under Explanation (b)(i) and (ii) of Section 126. This would be clear further from third proviso to Section 135(1) which provides that any "artificial means" or "means not authorized by the Board or licensee or supplier", as the case may be, if exists for the abstraction, consumption or use of electricity by the consumer, the presumption would be against the person concerned unless proved otherwise. The term "artificial means" or "means" as such have not been used in Section 135(1) (a), (b), (c), (d) and (e) but mentioned in third proviso and, therefore, if we read the provision harmoniously, this would cover the situation as contemplated in Explanation (b) clauses (i) and (ii) of Section 126.
71. The major difference between Sections 126 and 135 is that to constitute "an offence" for a situation covered by clauses (a) to (e) of sub section (1) of Section 135, the intention of the person has to be proved inasmuch as, it should have been done 'dishonestly'. This is the recognition of the principle of mens rea in the matter of a crime though for the purpose of section 126, intention of the person concerned is not a requirement at all.
72. Another difference evident from Section 126 and 135 is that for the purpose of Section 126, if Assessing Officer even after inspection of record maintained by a person comes to the conclusion that such person is indulged in unauthorized use of electricity, he can proceed to make assessment but then Section 135 would not be attracted. The reason being that it contemplates a positive act with the system of recording of electricity supplied by the licensee/supplier.
73. In case there is no disturbance in the metering system of licensee, which affects the correct recording of electricity received by such person or if the disturbance exist but dishonest intention is not proved, Section 135 would not be resorted to. Clause (a) covers a situation, namely, when a person taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee. Therefore, the connection with the supply system of licensee and incorrect recording of consumption by meter is must to attract Section 135 (1) (a).
74. Similarly to attract Clause (b) of Section 135 (a) the conditions precedent are:
(i) tampering of a meter;
(ii) installation or use of a tampered meter; current reversing transformer, loop connection or any other device or method
75. To attract (ii) above, the further condition precedent is that the tampering, installation, use etc., as said above, must interfere with accurate or proper registration, calibration or metering of electric current or otherwise in a manner whereby electricity is stolen or wasted.
76. In order to attract Section 135 (1) (c), there should be an act of damage or disturbance of an electrical meter, apparatus, equipment or wire. Any cause allowing any of the above items to be damaged or disturbed in a manner which would interfere with the proper or accurate metering of electricity would be covered by Section 135 (1) (c).
77. To attract Section 135 (1) (d), if one uses electricity through a tampered meter, it is sufficient. Lastly Section 135 (1)(e) is a case where proper recording of electricity through meter is not the requirement but if the electricity is being used for a purpose other than that for which it was authorized, it would amount to theft of electrical energy. This is an extension of earlier provisions namely (a) to (d) constituting theft of electrical energy and has been inserted in Section 135 vide amendment made with effect from 15.6.2007. Ordinarily something which otherwise would not have constituted theft has now been included by legislature.
78. Thus, if the correct recording of electrical energy by the meter is not affected by consumer, on mere study of documents maintained by such person if the authorized person comes to the conclusion of something otherwise, he cannot resort to Section 135 though may proceed to make assessment under Section 126. In order to constitute an offence, something grave and serious apparent act or omission on the part of the person concerned is a condition precedent though for the purpose of attracting Section 126, similar view may be formed in a different but less strict manner i.e. mere study of documents. Section 126 thus is wider and everything within its ambit would not constitute an offence under Section 135. The distinction is thin but real.
79. Another apparent distinction between Section 135 and 126 is that former is a part of scheme constituting 'offences' for which penalties are provided simultaneously while the later forms a part of scheme so as to authorize licensee or the Electricity supplier himself to ascertain loss in terms of revenue, caused to it by nefarious persons receiving electricity in a manner so as not to pay its appropriate cost/ price to the supplier/licensee. To make it effectively deterrent and preventive for others, a higher compensatory rate is prescribed than what is applicable to other bona fide consumers.
80. The procedure for assessment at the first instance has been made a hand tool of an Executive Authority notified by State Government and its appeal is provided to another Executive Authority nominated by the Government. From Section 126 Explanation (a) since an "Assessing Officer" has to be either an Officer of State Government or the Board or Licensee, as the case may be, obviously he would be an executive officer or may be a private person, but officer of the licensee, if the licensee happens to be a private undertaking, but in case of Appellate Authority, no such restriction has been placed in Section 127. It simply says that an Appellate Authority should be one as may be 'prescribed'.
81. The power to prescribe appellate authority is contained in Section 176 (2) (u) of Act, 2003. It is vested in the Central Government. It was/is open to the Central Government to prescribe an "Appellate Authority", be it a judicial body or a Court of law. The Central Government, framed Rules under Section 176 (2) (u), i.e. Appeal to the Appellate Authority Rules, 2004 (hereinafter referred to as "2004 Rules") and delegated power to the State Government vide Rules 3, which reads as under:
3. Appellate Authority.- For the purposes of appeal under section 127, the State Government may designate by notification published in the Official Gazette, a person who is Gazetted Officer of the said Government or has been a District Judge or officer of equivalent rank, as appellate authority.
82. The State Government in furtherance, instead of opting to involve a judicial Officer, has notified Commissioner of the Division as Appellate Authority under Rule 3 of 2004 Rules. Judicial notice can be taken of the fact that the post of Commissioner of a Division is a cadre post under Indian Administrative Service (Cadre) Rules, 1954 and, therefore, by necessity, the appellate authority constituted under Section 127 is an Executive Authority, though not an officer of the supplier/ licensee but the State Government. There is nothing per se wrong but the discussion made hereinbelow would also demonstrate as to serious shortcomings in this approach of the Government.
83. Now I proceed for further examination of Section 126. Sub-Section (1) says that before making provisional assessment to the "best of the judgment", the Assessing Officer must come to the "conclusion" that the person concerned is indulging in unauthorized use of electricity. Here the words "comes to the conclusion" provide the key to the process of assessment (provisional). When the provision talks of "coming to the conclusion", meaning thereby that such a conclusion must have arrived at by the process of discussion i.e., in an objective matter. Such conclusion must precede discussion and reasons. The mere possibility of existence of an equipment, gadget, machine, or device would not authorize the Assessing Officer to make a provisional assessment unless existence of the said item(s) satisfy the further conditions which would constitute "unauthorized use of electricity".
84. To arrive at such a conclusion the Assessing Officer may have to consider inspection report of the premises prepared at the time of inspection. He may also take into account other record maintained by such person or the licensee. Thereafter by process of reasoning he must come to the conclusion that an incumbent is indulging in "unauthorized use of electricity" satisfying one or more conditions constituting "unauthorized use of electricity" as defined in Explanation (b) of Section 126. Proviso to Section 135(1) provide that mere existence of an artificial means is sufficient to drew inference of offence of theft unless proved otherwise but this presumption is not available for the purpose of Section 126. However in such a case, existence of an 'artificial means' is a fact which has to be proved. This existence ordinarily cannot be presumptive.
85. How and in what manner inspection should be made for the purpose of Section 126 has not been stated as such in Part XII but if the act or omission comes within the 'offence' under Section 135 (1), the power of inspection/search and seizure has been conferred by Sub-section (2) of Section 135 and Sub-section (4) thereof attracts the provisions of Code of Criminal Procedure, 1973 relating to search and seizure.
86. Here one would notice that Sub-Section (4) of Section 135 though enacted in part XIV dealing with offences, penalties, but the provisions of Code of Criminal Procedure relating to search and seizure have been made applicable to "searches and seizure under the Act, 2003". Therefore, this part of the Statute would apply to all the cases wherein any search and seizure is to be made by the competent authority. This would thus encompass within its ambit Section 126 also. The inspection, therefore, must comply these statutory provisions to generate confidence else the consequential proceeding based solely on defective inspection may also fail.
87. The assessment, provisional or final, is contemplated by the Act, 2003 on the basis of "best judgment assessment" of the Assessing Officer. The term "best judgment assessment" according to which the Assessing Officer has to assess the electricity charges is also not defined in the Act.
88. In Kachwala Gems Vs. Joint Commissioner of Income Tax AIR 2007 SC 487, the Apex Court observed, "It is well settled that in a best judgment assessment there is always a certain degree of guess work. No doubt the authorities concerned should try to make an honest and fair estimate of the income even in a best judgment assessment, and should not act totally arbitrarily, but there is necessarily some amount of guess work involved in a best judgment assessment ..."
89. In Kathyayini Hotel Private Limited Vs. Addl. Commissioner of Commercial Taxes and others (2004) 135 S.T.C. 77 (SC), the Apex Court said, "Even a best judgment assessment must be reasonably made and not on surmises."
90. In Guman Singh Vs. State of Rajasthan and others 1996 (11) SCC 157, the circulars issued by Government providing guidelines to the assessing authorities for making best judgment assessment were commented by Apex Court by observing, "In making the assessment, in particular when best judgment assessment is sought to be made, uniform instructions have been given in the above Circular by the Government to make the best judgment assessment so that there may not be any difference in the procedure to be adopted by different assessing authorities and uniform basis provided is always just, fair and reasonable so that the Assessing Authority will have a uniform and satisfied principle or procedure in that behalf."
91. In Haji Lal Mohd. Biri Works, Allahabad Vs. State of U.P. AIR 1973 SC 2226, the Court said that the assessing authority while making best judgment assessment should arrive at its conclusion without any bias and on a rational basis. This decision has been reiterated and followed in Hindustan Milkfood Manufacturers Limited Vs. Director of Entry Tax, W.B. AIR 1983 SC 586.
92. In State of Kerala Vs. C. Velukutty, [1966] 60 ITR 239 (SC), Hon'ble C. Subbarao, J (as His Lordship then was) speaking for Court observed, "The limits of the power are implicit in the expression 'best of his judgment'. Judgment is a faculty to decide matters with wisdom truly and legally. Judgment does not depend upon the arbitrary caprice of a judge, but on settled and invariable principles of justice. Though there is an element of guesswork in a 'best judgment assessment.' it shall not be a wild one, but shall have a reasonable nexus to the available material and the circumstances of each case."
93. Following the above decision in C. Velukutty (Supra); in Brij Bhushan Lal Parduman Kumar Vs. Commissioner of Income Tax 1979 (3) SCC 14, the Court said, "It will appear clear from what has been said above that the authority making a best judgment assessment must make an honest and fair estimate of the income of the assessee and though arbitrariness cannot be avoided in such estimate the same must not be capricious but should have a reasonable nexus to the available material and the circumstances of the case."
94. For making assessment under Section 126 of Act, 2003, U.P.E.R.C., however, has not allowed assessment solely subjective for the Assessing Officer. It has made provisions laying down the manner in which such assessment shall be made curtailing the scope of guess work to a large extent which I shall discuss a little later.
95. The intention of Legislature that Assessing Officer would have to consider the matter objectively, and even provisional assessment would be made after due application of mind is further fortified from the fact that initially the word "a notice" used in Sub-section (3) has now been replaced by the word "an order" by Act No. 26 of 2007. Further earlier the word 'may' for the purpose of giving reasonable opportunity of hearing has now been replaced by the word 'shall' making "opportunity of personal hearing" mandatory. The provision has been made further stringent on the part of Assessing Officer inasmuch earlier there was no time limit to pass a final order of assessment under Sub-section (3) but now "thirty days time" has been prescribed wherein the Assessing Officer has to pass a final order of assessment. Obviously, this part of thirty days would commence from the date of service of order of provisional assessment which has also been clarified by amended Sub-section (3). This clearly shows intention of legislature that the licensee or Assessing Officer may not show any laxity in such matters by keeping proceedings pending indefinitely or for much longer time so as to cause an added/ unnecessary burden and agony upon the person concerned against whom assessment has been proposed.
96. There is one more important distinction caused by amendment of 2007. Proviso to Sub-section 4 in Section 126 has now been omitted. Earlier the person against whom assessment is made on provisional basis had the discretion of not disputing the same further but to accept by depositing provisionally assessed amount with the licensee within seven days of service of provisional order of assessment whereupon he could get an immunity that he would not be subjected to any further liability or action by any authority whatsoever. In order to make preventive measures more drastic and stringent so as to check unscrupulous persons from indulging in frequent unauthorized use of electricity, the immunity provided earlier has been done away and liability, if any, otherwise under any other provision or statute, as the case may be, now would continue. Such person by merely depositing provisionally assessed amount would not absolve himself from such liability.
97. The quantum of assessment under Section 126 has also undergone certain changes. Sub-section (5) earlier provided period of assessment as three months preceding the date of inspection in case of domestic and agricultural consumers; six months for other categories of consumers, unless a lesser period is proved by Occupier or Possessor against whom such assessment is made. Making the assessment more stringent and logical, amended provision says that it shall be the entire period during which such unauthorized use of electricity has taken place and where it is difficult to ascertain the exact period, it would be 12 months preceding the date of inspection.
98. It shows twin changes in the amended Sub-section (5). Earlier Assessing Officer would have mechanically applied three or six months period for the purpose of assessment, as the case may be, and onus lie upon the consumer to place and prove by adducing evidence that it should have been for a shorter period. Now the initial onus and burden both lie upon supplier, first to find out evidence for the period, unauthorized use of electricity has continued, and make assessment for the same. In case, despite his best efforts, he is not able to ascertain the period, he would make assessment for a maximum period of 12 months preceding the date of inspection. In my view, this amendment has not only shifted burden upon the Assessing Officer about period to be taken for the purpose of assessment and before embarking upon the residual provision which limits the period to 12 months, he will have to apply his mind to find out and prove from cogent evidence as to what would be the period for which the unauthorized use of electricity has taken place. He has to discuss the matter in an appropriate manner. It is only when he finds no such cogent evidence making him incapable of ascertainment of period, he would take recourse to the later part of Sub-section (5) limiting assessment for the period of twelve months. There is another angle. Later clause would be attracted in case the assessing authority is not able to find out the exact period during which unauthorized user of electricity has taken place. The latter clause also provides maximum period beyond which assessment shall not be made but includes also the period lesser than twelve months.
99. The Assessing Officer, further, in making assessment cannot proceed in a mechanical manner. The order of assessment has to show a clear application of mind on his part based on cogent evidence. Any exercise otherwise would vitiate order of provisional assessment which would include even the provisional assessment for the reason that it is only when on the matter of quantum, if the matter is properly considered and discussed, and material on which Assessing Officer intend to rely has been made known to the consumer or the person concerned, only then he (consumer or the person concerned) would be able to make up his mind either to accept provisional assessment order or to object thereto, finding some irregularities or mistake therein. In absence of any discussion, no person can be/is expected to make objection without knowing, what is against him. This view I am taking in the light of well settled principles of administrative law that no person shall be condemned unheard and this principle includes the incidental principle of administrative law that requirement of giving opportunity includes within its ambit disclosure of material which has been or likely to be considered by authority concerned against the person whom notice is issued or opportunity is afforded. The entire Statute and the procedure laid down in Section 126 nowhere gives any inclination or contains a specific provision for taking a different view then what is expressed above. I shall further demonstrate though a bit later, that U.P.E.R.C. and Licensee have also understood the above procedure in the manner I have discussed above, as is evident from procedure laid down in Code, 2005.
100. Section 126 also provides that order of provisional assessment shall be served upon the person in occupation and possession or in charge of the place or premises whereupon such person shall be entitled to file objections. This is an opportunity of filing reply or representation, as the case may be, in the form of objection against the order of provisional assessment.
101. Sub-section (3) of Section 126 says that the Assessing Officer after affording "reasonable opportunity of hearing" to such person shall pass a final order of assessment. Such an order is required to be passed within thirty days from the date of service of order of provisional assessment. Final order of assessment shall provide amount of electricity charges required to be paid by such person. Sub-section (4) gives option to the person served with the provisional assessment order not to dispute the same, if he accepts it, and then to deposit the amount with the licensee within seven days of service of order or provisional assessment upon him.
102. Sub-section (6) of Section 126 provides for quantum of assessment and says that the assessment shall be made at twice the rate of tariff applicable to the relevant category of services specified in sub section (5). The rate on which the assessment is to be made has also been made a little onerous. Earlier it was one and half times of the normal tariff and now it has been made twice thereof.
103. There appears to be some discrepancy in the words "relevant category of services specified in sub-section (5)" for the reason that sub section (5) as it stands substituted w.e.f. 15th June 2007 does not specify any "category of services". In fact, prior to amendment it provided a different treatment for "domestic" and "agricultural services" than the remaining categories. It is in this context that the term "relevant category of services specified in sub-section (5)" was mentioned in sub-section (6). While making amendment by Act No. 26 of 2007 sub-section (5) has been redrafted and substituted in place of old one and in the substituted provision no "category of service" as such has been specified but the corresponding amendment in sub-section (6), it appears, has missed the attention of legislature, and that is why the words "relevant category of service specified in sub section (5)" has continued in sub-section (6), In my view, these words have become redundant and superfluous since irrespective of category of services, for all the categories to which sub-section (5) applies, uniformity has now been made. The same thing therefore, applies for quantum of assessment on the relevant tariff under sub-section (6) and now all the categories will have to be assessed at a rate equal to twice the tariff applicable to the concerned category of consumer. Here "the relevant category of service" would reflect to the applicable tariff to the relevant category, and, reference to sub section (5) is redundant.
104. Section 176 confers power upon the Central Government to make Rules for carrying out provisions of the Act. Certain matters have been specified in sub-section (2) of Section 176. It is not disputed that no Rules in reference to Section 126 and 135 have been framed under Section 176. At least none is placed before this Court. Similarly, Section 177 confers power upon the authority i.e. the Central Electricity Authority [See Section 2(6) of the Act 2003] to make Regulations consistent with the Act and the Rules to carry out the provisions of the Act. Here also no Regulations referable to Section 126 and 135 have been framed and at least none has been placed before the Court. Similar power has been conferred upon the Central Commission, namely, Central Electricity Regulatory Commission [See Section 2(9) of the Act 2003]. They have also not framed any Regulation in respect to the matters covered by Sections 126 to 135. The State Commission namely, State Electricity Regulatory Commission i.e. U.P.E.R.C. [See Section 2(64) of Act 2003] has also similar power under Section 181 but it is nobody's case that any Regulation has been made by U.P.E.R.C. covering this aspect of the matter.
105. Then comes Section 180 which confers power upon the Stage Government to make Rules. Sub-section (2) (k) of Section 180 confers power upon the State Government to make Rules relating to manner of service of order of provisional assessment under sub section (2) of Section 126 of the Act 2003. As already noticed Section 126(2) says that the provisional assessment order shall be served upon the person concerned "in such manner as may be prescribed". The term 'prescribed' has been defined in Section 2(52) which reads as under:
"prescribed" means prescribed by rules made by the Appropriate Government under this Act;"
106. Whether any provision has been made providing the manner of service of provisional assessment order under Section 126 (2) by the appropriate Government has not been placed before this Court.
107. The "best judgment assessment" of the assessing authority has been regulated in this case by provisions made by U.P.E.R.C. in the form of "Electricity Supply Code" under Section 50 of Act 2003.
108. It is interesting to note that Section 50 was also amended by Substitution with effect from 15th June 2007. Before and after amendment it read as under:
Before Amendment After Amendment
50. The Electricity Supply Code- The State Commission shall specify an Electricity Supply Code to provide for recovery of electricity charges, intervals for billing of electricity charges, disconnection of supply of electricity for non-payment thereof, restoration of supply of electricity, tampering, distress or damage to electrical plant, electric lines or meter, entry of distribution licensee or any person acting on his behalf for disconnecting supply and removing the meter, entry for replacing, altering or maintaining electric lines or electrical plant or meter.
50. The Electricity Supply Code- The State Commission shall specify an Electricity Supply Code to provide for recovery of electricity charges, intervals for billing of electricity charges, disconnection of supply of electricity for non-payment thereof, restoration of supply of electricity, measures for preventing tampering, distress or damage to electrical plant or electrical line or meter, entry of distribution licensee or any person acting on his behalf for disconnecting supply and removing the meter, entry for replacing, altering or maintaining electric lines or electrical plants or meter and such other matters.
109. A perusal of Section 50 would show that a Supply Code may contain provisions "besides others" relating to measures for preventing, tampering, distress or damage to electrical plants or electrical line or meter but it does not talk of any provision relating to the manner in which Assessing Officer shall exercise his statutory obligation under Section 126. In other words, the State Commission apparently is not authorized to control the manner in which an Assessing Officer shall make assessment under Section 126 by making provision in Electricity Supply Code. It is true that the term "such other matters" is wide enough to cover various aspects of the matter but one has to be conscious of the fact that power of State Commission to make provisions under Section 50 are not as wide as is the power to make Rules and Regulations conferred under Sections 176 to 181 of Act 2003 which talks of making provisions in general for carrying out the provisions of Act 2003. Of course, such provisions have to be consistent with the Act. The reason is quite evident. The Rules and Regulations have to be placed before the Parliament or State Legislature, as the case may be, by virtue of Section 179 or 182 but no such requirement is made for Electricity Supply Code which is to be made under Section 50 of the Act. However, I am not expressing any final opinion on this aspect since validity of any provision of Electricity Supply Code is not under challenge in this writ petition and leave this question open.
110. Now I proceed further to Section 135 of Act 2003.
111. Sub-section (1) lead with the words "whosoever dishonestly". From a perusal of the aforesaid provision, what appears is that central theme of definition of "theft" under Section 135 of Act 2003 is the element of 'dishonesty'. The intention, which in criminal jurisprudence is called 'mens rea', of the consumer to extract electricity is the condition precedent to attract Section 135. Before levelling a consumer guilty of theft of electrical energy, the intention or mens rea, i.e. dishonesty on his part has to be proved conclusively. This can be done by showing that there is some tamper or tapping or damage or destruction on the part of Consumer by some visible means. If the allegation is about tampering of meter or metering system, there has to be some tangible evidence proving such tampering. In other words, it has to be shown by some visible means. Any external manifestation of alleged tampering without being in existence may only raise a suspicion but no amount of suspicion, howsoever grave can substitute the proof. Such suspicion will have to cross demarcating line implicating the consumer by some tangible evidence of physical 'means' of tampering before raising a presumption that he has tampered the meter. It is true that for purpose of making assessment on the allegation constituting theft to the extent it is covered by Explanation (b) Section 126, the degree of proof, as required in criminal Courts, as such may not be applicable, but, admittedly, it cannot stoop low down to only grave suspicion or presumption.
112. An analysis of consumption pattern of different period may give an occasion of suspicion or some doubt, but would not substitute the requirement of dishonest extraction of energy as contemplated by Section 135 which has to be shown by Electrical Undertaking by something more in the form of tangible evidence. In other words, the consumption pattern may only corroborate the case, if from physical inspection, one can draw inference with certainty that consumer has tampered or employed a device or otherwise dishonestly extracted energy. Mere consumption pattern, in my view, may not be a substitute of requirement of the statute as discussed above unless something more concrete is shown.
113. For the one illustration where consumption pattern may lead against consumers and could be a tangible evidence to prove theft of electrical energy, may be where the incoming and outgoing energy is measured by the licensee in a reliable manner. For example, where at the Sub-Station the incoming meter is installed and sealed in the manner so as not to allow anyone access thereto without information to other side after due testing giving a clear information of energy being received and then to find out whether the energy consumed by the consumer tally thereto. Such case would be where the electricity is supplied through an independent feeder but then the meter at Sub-Station also have to be installed by making Consumer a party to the sealing certificate so that such meters may not be interrupted by any official of the licensee to the prejudiced to consumer. In such a case one has to take care that the two meters installed must be duly tested and certified to be correct meters in the manner prescribed in the Statute otherwise such meters would be difficult to relied on as a evidence against the consumer. The basic purpose is that before condemning a person reliable unbiased and un-tampered evidence has to be considered.
114. There is another aspect which show not only a distinction between the process provided under Section 126 and 135 having some impact on the process of assessment. Earlier there was no obligation on the licensee to initiate criminal proceedings when a person is found indulged in theft of electrical energy but the amendment made by Act 26 of 2007 second proviso to Sub-Section (1) of Section 135 has made the lodging of report to police within 24 hours from the time of disconnection mandatory. While conferring specific power of disconnection when Licensee detect a case of theft of electrical energy, as a part of control as well as stringent prevent, looking into interest of both the parties the legislature has made lodging of report with Police obligatory and that too within 24 hours from the time of such disconnection. The consequences of such criminal proceeding made obligatory were a theft of electrical energy is detected have been contemplated by the amended provision in the Code 2005 which I shall discuss later.
115. It is not in dispute that the UPERC has approved and notified U.P. Electricity Supply Code, 2005 (hereinafter referred to as the "Code 2005") vide notification No. UPERC/Secy.-Supply Code/05-4528, Lucknow, dated 18.02.2005. Under the head 'Billing', para 6.8 commences with the heading "Unauthorized Use of Electricity (UUE), under Section 126 of the Act. It provides a complete procedure in which an assessment shall be made including the payment of assessed amount and situation arising out of deferred/ non payment of assessment amount. The aforesaid clause as initially made, was replaced by Commission's Notification dated 11.8.2006 but after the amendment of Act 2003 by Act No. 26 of 2007 it underwent amendment by notification dated 27.3.2008/14.6.2008 with effect from 14.6.2008. Para 6.8 as stood prior to 11.8.2006 and thereafter and after 14th June 2008 are reproduced as under:
Pre 11.8.2006 w.e.f. 11.8.2006 w.e.f.14.6.2008 (1) (2) (3) 6.8 Un-authorised Use of Electricity (UUE), under section 126 of the Act
(a) Procedure for booking a case for unauthorized use of energy (UUE) 6.8 Procedure for Inspection,Provisional Assessment, Hearing and Final Assessment in case of unauthorized use of electricity (UUE) under Section 126 of the Act:
6.8 Procedure for Inspection,Provisional Assessment, Hearing and Final Assessment in case of unauthorized use of electricity (UUE) under Section 126 of the Act:
1. An assessing officer shall provisionally assess the consumer or any other person for the UUE, if on inspection after due diligence, of any place or premises or after inspection of the equipments, electrical gadgets, meter etc or after inspection of the records, comes to the conclusion that such person is indulging in UUE.
(a) (i). An assessing officer shall suo-moto, or on receipt of reliable information regarding unauthorized use of electricity or on instruction from higher authority, promptly conduct inspection of such premises, exercising due diligence. (Annexure 7.3 (i)) Same as in Column 2
2. The in charge of the inspection team of the Licensee shall handover his business card to the consumer. Photo ID card shall be carried by each team member, and shown to the consumer before entering the premises.
(ii). The Assessing Officer, if required to do so, may handover his business card to the consumer before entering the premises. Photo ID card shall be carried by each team members.
Same as in Column 2
(iii).The access to consumer premises shall be in accordance to clause 4.30 to 4.34. Provided that the occupant of the place of search or any person on his behalf shall remain present during the inspection. A list of all things seized in the course of such search shall be prepared and delivered to such occupant or person who shall sign the list.
Same as in Column 2
3. The assessing officer shall prepare a report giving details of connected load, condition of seals, working of meter and mention any irregularity noticed for the reason of which, unauthorised use of electricity is established as per format given in Annexure 6.4.
(iv). A report shall be prepared at site giving details of connected load, condition and details of old seals and resealing done, working of meter, details of new seals. The report shall mention any irregularity noticed which may lead to an inference of unauthorized use of electricity in the format given in Annexure 6.4. The Inspecting Officer shall carry seals for this purpose.
Same as in Column 2
4. The report shall clearly indicate whether conclusive evidence substantiating the fact that UUE was found or not. The details of such evidence should be recorded in the report.
(v). The report shall clearly indicate whether or not conclusive evidence substantiating the fact that UUE was found. The details of such evidence should be recorded in the report. The report shall be signed by each member of the inspection team and handed over to the consumer or his / her representative at site immediately under proper receipt. In case of refusal by the consumer or his/her representative to either accept or give a receipt, a copy of inspection report shall be pasted at a conspicuous place in/outside the premises and may be photographed. Simult- -aneously, the report shall be sent to the consumer under Registered Post / Speed post on the day or the next day of the inspection.
Same as in Column 2
5. Load and consumption of two or more connections shall not be clubbed unless it is proved that the connections are used to serve/supply the same establishment. Mere presence of common entrance or office etc. shall not make connections liable for clubbing.
6. The reports shall give details of calculation of assessment and the relevant provision as per Act /Supply Code/ or tariff schedule shall be quoted. The report shall be signed by the assessing officer and each member of the inspection team and handed over to the consumer or his/her representative at site immediately under proper receipt. In case of refusal by the consumer or his/her representative to either accept or give a receipt, a copy of inspection report must be pasted at a conspicuous place in/outside the premises and may be photographed. Simultaneously, the report shall be sent to consumer under Registered Post/Speed post.
7. The licensee shall, serve a 7 working days show cause notice, within 3 days of date of inspection, as to why the case of UUE should not be booked against such consumer. The notice shall invite objection, if any under section 126(3), against the assessment from the consumer stating the time, date and place at which the reply has to be submitted and the designation of the person to whom it should be addressed. The Assessing officer, only after affording a reasonable opportunity of hearing to such person, pass a final order of assessment of the electricity charges payable by such person.
(vi). Within 3 working days of the date of inspection, the Assessing Officer shall analyze the case after carefully considering all the evidence including the consumption pattern, wherever available and the report of inspection. If it is concluded that no unauthorized use of electricity has taken place, no further action will be taken.
Same as in Column 2
(b) Submission of consumer's reply:
(i) Within 7 working days from the date of submission of consumer's reply, if made within stipulated time, the Licensee shall analyze the case after carefully considering all the documents, submissions by the consumer, facts on record and the report of inspection on consumer's request. If it is concluded that there is no UUE, the case of UUE shall be dropped immediately and the decision shall be communicated to the consumer under proper receipt within 7 working days from the date of taking the decision.
(ii) If it is concluded that there is UUE, the Licensee shall arrange hearing with the consumer within 15 days from the date of such decision.
(b) Notice to the Consumer and his reply:
(i) If the Assessing Officer suspects that Unauthorized Use of Electricity has taken place (as defined under Explanation to Section 126 of the Act), he will serve a provisional assess- -ment bill alongwith show cause notice to the consumer, giving 15 working days for submission of reply, under proper receipt fixing a date of hearing.
(ii)The notice shall invite objections in writing from the consumer, against the charges and provisional assess- -ment and require presence of the consumer on the date of hearing.
(b) Notice to the Consumer and his reply:
(i) If the Assessing Officer reaches to a conclusion that Unauthorized Use of Electricity has taken place (as defined under Explanation to Section 126 of the Act), he shall serve a provisional assessment bill along with show cause notice to the consumer giving 15 working days for submission of reply under proper receipt fixing a date & time of hearing. The notice shall invite objections in writing from the consumer, against the charges and provisional assessment and require presence of the consumer on the date of hearing.
(ii) If the bill is deposited within 7 days of the service of such provisional assessment order on the consumer, the reply to the notice and subsequent hearing shall not be necessary.
(c) Hearing
(i) Within 7 working days from the date of submission of consumers' reply, if made within prescribed period, the assessing officer shall arrange a hearing with the consumer.
(ii) During the hearing the assessing officer shall give due consideration to the facts submitted by the consumer and pass, within 7 days, a speaking order as to whether the case of UUE is established or not. Speaking order shall contain the brief of inspection report, submissions made by consumer in his written reply and during hearing reasons for acceptance or rejections of the same.
(c) Hearing
(i) On the date of hearing, the Assessing Officer shall hear the consumer. The Assessing Officer shall give due consideration to the facts submitted by the consumer and pass, within 7 working days, a speaking order as to whether the case of UUE is established or not. The order shall contain the brief of inspection report, submissions made by the consumer in his written reply and during hearing.
(c) Hearing
(i) On the date of hearing, the Assessing Officer shall hear the consumer. The Assessing Officer shall give due consideration to the facts submitted by the consumer and pass, within 15 working days, a speaking order as to whether the case of UUE is established or not. The order shall contain the brief of inspection report, submissions made by the consumer in his written reply and during hearing.
(ii) A copy of the order shall be served to the consumer under proper receipt, and in case of refusal to accept the order or in absence of the consumer, shall be served on him under Registered Post / Speed Post. The consumer shall be required to make the payment within 15 days of receipt of final order for assessment.
Same as in Column 2
(iii) In case of the decision that the case of UUE is not established, no further proceedings shall be taken and connection shall be restored through original meter.
(iii) If the Assessing Officer finds that unauthorized use of electricity has taken place( as defined under explanation to section 126 of the electricity Act 2003, it shall be presumed unless contrary is proved, that such unauthorized use of electricity was continuing for either actual period of misuse, if available, or three months immediately preced- -ing the date of inspection in case of domestic and agriculture services and for a period of six months immediately preceding the date of inspection for all other categories of services, and he shall provisionally assess the consumption as per the procedure specified in Annexure 6.3.
(iii) If the assessing officer reaches to the conclusion that unauthorized use of electricity has taken place, the assessment shall be made for the entire period during which such unauthorized use of electricity has taken place and if, however, the period during which such unauthorized use of electricity has taken place cannot be ascertained, such period shall be limited to a period of twelve months immediately preceding the date of inspection for all categories of services, and he shall provisionally assess the consumption as per the procedure specified in Annexure 6.3.
Note: The assessing officer can draw ''conclusions' that unauthorized use of electricity has taken place, based on findings that reveal existence of conditions of "unauthorized use of electricity" given in "Explanation" of clause 6.8, and evidence found suggests that unauthorized use of electricity was not made with ''dishonest' intentions, but due to ignorance of procedure or rules or compulsions that only warrant a suitable assessment commensurate with the Act."
(iv) If the Assessing Officer reaches to the conclusion that unauthorised use of electricity has taken place (as defined under Explanation to Section 126 of the Electricity Act, 2003), it shall be presumed that such unauthorized use of electricity was continuing for a period of three months immediately preceding the date of inspection in case of domestic and agricultural services and for a period of six months immediately preceding the date of inspection for all other categories of services, and he shall be authorised to provisionally assess the consumption as per the procedure specified in Annex-6.3 and serve on the consumer under proper receipt, unless the onus is rebutted by the person, occupier or possessor of such premises or place, a final order shall be passed after hearing..
(a) The assessment shall be made at a rate equal to one-and-half times the tariff rates applicable for the relevant category of services.
(b) The amount billed at this rate (one-and-half times the tariff rate) shall not be taken into consideration for the purpose of computing consumer's liability to pay monthly/annually minimum charges, wherever applicable.
(iv) The assessment under (iii) above shall be made at a rate equal to one-and-a-half times the tariff rates applicable for the relevant category of service. The amount billed at this rate (one-and-a-half times the tariff rates) shall not be taken into consideration for the purpose of computing consumer's liability to pay monthly / annual charges, wherever applicable.
(iv) The assessment under (iii) above shall be made at a rate equal to two times the tariff rates applicable for the relevant category of services. The amount billed at this rate (two times the tariff rates) shall not be taken into consideration for the purpose of computing consumer's liability to pay monthly / annual charges, wherever applicable.
(v) The order of provisional assessment shall be served upon the person in occupation or possession or in charge of the place or premises in such manner as is prescribed by the State Government.
(vi) The consumer shall be required to make the payment within 7 days of its proper receipt. A copy of the speaking order be served to the consumer under proper receipt.
(vii) Any person served with the order of provisional assessment, may, accept such assessment and deposit the assessed amount with the Licensee within seven days of service of such provisional assessment order upon him. Provided that in case the person deposits the assessed amount he shall not be subjected to any further liability or any action by any authority whatsoever.
(d) Appeal
(viii) Any person aggrieved by a final order made under sub clause (c) may, within thirty days of the said order, prefer an appeal to the Appellate Authority prescribed by the State Government in the manner specified in the Annex-6.2.
However, no appeal shall be entertained by the Appellate Authority unless the person deposits one third of the amount assessed by the Assessing Officer, with the Licensee and encloses documentary evidence of such deposit with the appeal.
(d) Appeal:
(i) Any person aggrieved by a final order made under sub clause (c) above, may, within 30 days of the order, prefer an appeal to the Appellate Authority in the manner specified in Annexure 6.2.
(ii) No appeal shall be entertained by the appellate authority unless the person deposits one third of the amount assessed by the Assessing Officer, along with prescribed fee with the concerned division of the licensee and encloses documentary proof of such deposit.
(d) Appeal:
(i) Any person aggrieved by a final order made under sub clause c(i) above, may, within 30 days of the order, prefer an appeal to the Appellate Authority in the manner specified in Annexure 6.2.
(ii) No appeal shall be entertained by the appellate authority unless the person deposits one half of the amount assessed by the Assessing Officer, along with prescribed fee with the concerned division of the licensee and encloses documentary proof of such deposit.
(iii) No appeal shall lie to the Appellate Authority against the final order made with the consent in writing of the Assessed person.
Same as in Column 2
(iv) The licensee shall not take any action for recovery of assessed amount for the period of 30 days, mentioned in (i) above, where the assessed person intimates the Assessing Officer, within this period, of his intention of filing an appeal to the appellate authority .
Same as in Column 2
(v) Within 3 days of receipt of appeal, the Appellate Authority shall issue a notice, to the appellant and the Assessing Officer fixing date of hearing within 15 days of the date of notice. The appellate authority shall dispose off the appeal within 30 days by a speaking order and shall send the copy of the order to Assessing Officer and the appellant.
Same as in Column 2
(vi) The order shall contain the brief of inspection report, submissions made by person in his written reply and during personal hearing and reasons for acceptance or rejections of the same.
Same as in Column 2
(vii) The Appellate Authority may, for reasons to be recorded, consider a reduced period of unauthorized use of electricity and assess the amount accordingly.
Same as in Column 2 Note; Section 145 of the Electricity Act provides that no civil court shall have the jurisdiction to entertain any suit or proceeding in respect of any matter, which an assessing officer, or an appellate authority appointed, is empowered to determine, and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken or to be taken in pursuance of any power conferred by or under the Act.
Note: Section 145 of the Electricity Act provides that no civil court shall have the jurisdiction to entertain any suit or proceeding in respect of any matter, which an assessing officer, or an appellate authority, is empowered to determine, and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under the Act. It is also provided that nothing contained in the procedure laid in clause 6.8 shall have effect in so far as it is inconsistent with provisions of section 126, 127 & 145 of the Act.
Same as in Column 2
(d) Default in payment of assessed amount or instalments thereof.
(i) In case of default in payment of the assessed amount, the Licensee shall,after giving a 15 days' notice in writing disconnect the supply of electricity, remove meter and service line.
(ii) In case of default in payment of any of the instalment agreed by the licensee the Licensee shall, after giving a 15 days' notice in writing disconnect the supply of electricity, remove meter and service line. The reconnection shall be carried out as per the provisions of new connection laid down in Chapter IV.
(e) Default in payment of assessed amount or instalments thereof.
(a) In case of default in payment of the assessed amount or any installment granted or agreed by the Licensee, the Licensee shall, after, giving a 15 days notice in writing, disconnect the supply of electricity, by any suitable means such as disconnection from pole/ transformer, removing meter, electric line, electric plant and other apparatus. The reconnection shall be carried out as per the provisions of reconnection laid down in clause 4.39.
Same as in Column 2
(iii) When a person defaults in making payment of assessed amount, he, in addition to the assessed amount shall be liable to pay, on the expiry of 30 days from the date of order of assessment, an amount of interest at the rate of sixteen percent, per annum compounded every six months.
(b) When a person defaults in making payment of assessed amount, he shall be liable to pay an amount of interest at the rate of sixteen percent per annum with effect from thedate of expiry of 30 days from the date of order of assessment, in addition to the assessed amount, compounded every six months.
Same as in Column 2
(iv) The levy of charges on account of UUE shall continue till the cause of levy is removed and verified by the Licensee as per procedure laid down above.
(c) The levy of charges on account of UUE shall continue till the cause of levy is removed and verified by the Licensee.
Same as in Column 2 Explanation:- For the purpose of this clause 6.8, the "unauthorized use of electricity" means the usage of electricity-
(i) by any artificial means, or
(ii) by a means not authorized by the concerned person or authority or licensee, or
(iii) through a tampered meter, or
(iv) for the purpose other than for which the usage of electricity was authorized, or
(v) for the premises or areas other than those for which the supply of electricity was authorized.
116. So far as the procedure of assessment as assigned under Section 126 read with Para 6.8 is concerned, I am not burdening this judgment since it has already been discussed in detail in Ashok Kumar & others v. State of U.P. and others 2008(6)ADJ 660.
117. During the course of argument, reference was made to Chapter 8 Para 8.1 and 8.2 of the Code 2005. Sri Shashi Nandan, Senior Advocate contended that in this case Chapter 8 shall apply and assessment has been made thereunder.
118. The Code 2005 contains para 8.1 under the head "Procedure for booking a case for theft of energy for consumers". Para 8.2 deals with hearing, 8.3 with default in payment of assessed amount or instalments thereof and 8.4 deals with voluntary declaration of tampered meters and lastly comes para 8.5. which is general. Later on Government of India, Ministry of Power issued Notification NO. S.O. 790(E) dated 8.6.2005 with the "title The Electricity (Removal of Difficulties) Order 2005". It directed the State Commission for inclusion of measures to control theft in Electricity Supply Code. The said directions were made part of the Code 2005 as para 8.0 in Chapter 8, and, it reads as under:
"8.0 The Ministry of Power, Govt. of India vide order no. S.O.796 (E) dated 8th June'2005 with title " the Electricity (Removal of Difficulties)" has directed State Commission for inclusion of measures to control theft in Electricity Supply Code as per details given below:
(1) The Electricity supply code as specified by the State Commission under section 50 of the Act shall also include following, namely: -
(i) method of assessment of the electricity charges payable in case of theft of electricity pending adjudication by the appropriate court;
(ii) disconnection of supply of electricity and removing the meter, electric line, electric plant and other apparatus in case of theft or unauthorized use of electricity: and
(iii) measures to prevent diversion of electricity, theft or unauthorized use of electricity or tampering, distress or damage to electrical plant, electric lines or meter.
(2) The above provisions in Electricity Supply Code shall be without prejudice to other rights of the licensee under the Act or any other applicable law to recover sum due and to protect the assets and interests of the licensee.
(3) The Ministry of Power, GOI clarification letter dated 26.10.2005 has also specified that the compounding fees shall go to the credit of the state Government, and the licensee may receive the assessed amount).
(4) The revised clause no 6.8 and clause no. 8.1 & 8.2 provide a procedure to facilitate uniformity in approach adopted by the assessing/authorized officers of different licensees in dealing with inspection and assessment and in cases related to unauthorized use and theft of electricity. It is also provided that nothing contained in the procedure laid in clause 8.1 & 8.2 shall have effect in so far as it is inconsistent with provisions of chapter under " Offences and Penalties" of the Act. The procedure for Inspection, Provisional Assessment Hearing and Final assessment as well as taking cognizance in case of theft of electricity shall apply concurrently, and shall be binding on the assessing/authorized officers, and shall be certified so to that extent.
(5) To protect the interest of consumer as well as the Licensee, It is considered expedient that the Managing Director of the discom shall constitute a committee to oversee that the procedures as provided in clause 6.8, 8.1 & 8.2 of the Code have been correctly followed.
(6) It is also provided that in the matter related to theft, the consumer at his option, can approach M.D. of the discom for restoration of supply, on interim payment of the assessed amount, calculated at 1.0 times of existing tariff, less payment already made by the consumer for the period of assessment subject to final decision by Special Courts. The reconnection in such case shall be not later than seven days after the consumer has made payment."
119. It may be mentioned that sub-clause 6 has been omitted by Commission's notification no. UPERC/Secy/Regulation/Supply Code/08/2165 dated 27th March 2008, published in Gazette dated 14th June 2008 with effect from 14.6.2008.
120. Paras 8.1 and 8.2 of the Code were replaced by notification no. UPERC/Secy/Regulation/Supply Code/08/2165 dated 27th March 2008 published on 14.6.2008 (with effect from 14.6.2008). The aforesaid paragraphs namely, 8.1 and 8.2 as stood prior to 14.6.2008 and thereafter are quoted as under:
Prior to 11.8.2006 After 11.8.2006 and prior to 14.6.2008 After 14.6.2008 (1) (2) (3) 8.1 Procedure for booking a case for theft of energy for consumers.
8.1. (a) Procedure to be adopted by licensee for Inspection, Provisional Assess-ment Hearing and Final assessment in case of theft of electricity under section 135 of the Act.
Same as in Column 2
(i) An authorized officer under section 135 of the Act, suo moto or on receipt of reliable information regarding theft of electricity shall promptly conduct, exercising due diligence, inspection of such premises.
(i) An Officer authorized under section 135 of the Act, suo-moto or on receipt of reliable information regarding theft of electricity, shall promptly conduct, inspection of such premises exercising due diligence. (Annexure-7.3 (ii)).
(i) An Officer of the licensee or supplier as authorised by the State Government from time to time under section 135(2) of the Act, suo-moto or on receipt of reliable information regard- -ing theft of electricity, shall promptly conduct, inspection of such premises exercising due diligence. (Annexure-7.3 (ii) and Annexure 7.2 (iii)).
(ii) The officer incharge of the inspection team of the licensee shall carry his Business card . Photo ID card shall be shown and Business card handed over to the consumer before entering the premises. Other members of the team shall carry photo identity cards.
ii. The Authorized Officer may, if required, handover his business card to the consumer. Photo ID card may be carried by each team member and shown to the consumer, if required, before entering the premises.
Same as in Column 2
(iii) The authorised officer shall prepare a report giving details such as connected load (except in cases when applicable tariff is on demand basis), condition of seals. Working of meter and mention any irregularity noticed (such as artificial means adopted for theft of energy) as per format given in Annexure 6.4.
iii. The access to consumer premises shall be in accordance to clause 4.30 to 4.34 of this Code. The provisions of the Code of Criminal Procedure, 1973, relating to search and seizure shall also apply, as far as may be, to searches and seizure under this Code.
Same as in Column 2
(iv) The report shall clearly indicate whether conclusive evidence substantiating the fact that theft of energy was found or not. The details of such evidence should be recorded in the report.
iv. The occupant of the place of search or any person on his behalf shall remain present during the inspection. A list of all things seized in the course of such search shall be prepared and delivered to such occupant or person present on his behalf who shall sign the list.
Same as in Column 2
(v) In case of suspected theft, the authorized officer shall not remove the tampered meter but shall disconnect it from the supply and shall restore the supply through a new meter of appropriate rating in case of LT Domestic Agriculture and Commercial consumers. In such cases, the Licensee shall check the connected load at the premises, affix a numbered patented paper seal on the tampered meter and shall also record the particulars of the same in the report. In case of HT connection, the supply may be disconnected if there is a conclusive evidence of theft as recorded by photographs/MRI reports for TVM meters, or apprehends removal of evidence by consumer, and report shall be prepared at site. However the hearing and assessment procedure shall continue as described later.
v. In all cases of inspection, a report shall be prepared at site giving details of connected load, condition and details of old seals, working of meter, details of new seals and clearly mention any irregularity noticed which may lead to theft of electricity in the format given in Annexure 6.4. The Authorized Officer shall carry seals for this purpose. Any damage/ destruction to the electric meter, metering equipments, apparatus, line, cable or electrical plant of the licensee caused or allowed to be caused by the person so as to interfere with the proper or accurate metering of electricity or for theft of electricity shall also be duly recorded in the report. The Authorized officer may also prepare a diagram illustrating the arrangements found to have been made for theft of electricity, wherever feasible and such diagram shall form a part of inspection report. The report shall be certified by the authorized officer that the procedure of Supply Code as laid herein had been followed.
Same as in Column 2
(vi) The report shall be signed by the authorized officer and a member of the inspection team and the same must be handed over to the consumer or his/her representative at site immediately under proper receipt. In case of refusal by the consumer or his/her representative to either accept or give a receipt, a copy of inspection report must be pasted at a conspicuous place in/ outside the premises and may be photographed. Simultaneously, the report shall be sent to the consumer under Registered post / speed post.
vi. The report shall clearly indicate whether prima facie a case for theft can be inferred. The report shall be signed by each member of the inspection team and handed over to the consumer or his / her representative at site immediately under proper receipt. In case of refusal by the consumer or his/her representative to either accept or give a receipt, a copy of inspection report shall be pasted at a conspicuous place in/outside the premises and may be photographed. Simult-aneously, the report shall be sent to the consumer under Registered Post / Speed post on the day or the next day of the inspection.
Same as in Column 2
(vii) The Licensee shall serve a show cause notice within 3 days from the date of inspection, as to why the case of theft should not be booked against such consumer. The notice should clearly state the time, date and place at which the reply has to be submitted and the designation of the person to whom it should be addressed.
(Note: Section 152 of the Act which deals with compounding of offences, shall be applicable, where the State Government or any officer authorized by it in this behalf accepts from any consumer or person who committed or who is reasonably suspected of having committed an offence of theft of electricity punishable under this Act, a sum of money by way of compounding of the offence as specified in the Table for the purpose. In such cases, the procedure as laid down here for booking theft, conducting hearing, assessment, and proce- -dure of issuing order, shall not be applicable, and the procedure as laid down in section 152 of the Act shall be applicable).
vii. In case of prima facie evidence of theft by tampering of meter or metering equipment in case of LT consumers, the meter shall be removed, properly sealed and tested in accordance with procedure laid down in clause 5.6. The supply shall be restored through a new meter or metering equipment of appropriate rating. In case of HT connection, the supply may be disconnected if there is a prima facie evidence of theft as recorded by photographs / MRI reports for TVM meters, or where removal of evidence by consumer is apprehended. The report shall be prepared at site as per sub clause (iii) above.
vii. In case of prima facie evidence of theft by tampering of meter or metering equipment in case of LT Light and Fan consumers, the meter shall be removed, properly sealed and tested in accordance with procedure laid down in clause 5.6. The supply shall be restored through a new meter or metering equip- -ment of appropriate rating. In other cases of LT / HT connections, the supply may be disconnected if there is a prima facie evidence of theft as recorded by photographs / MRI reports for TVM meters, or where removal of evidence by consumer is apprehended. The report shall be prepared at site as per sub clause (v) & (vi) above. Where MRI report is the evidence of tampering, a copy of the same shall be sent to the consumer in seven working days:
Provided that only the authorized officer (Annexure 7.3 (iv) Annexure 7.3 (v) & Annexure 7.3(vi)) of the licensee or supplier, or any other officer of the rank higher than the rank so authorized by the Commission from time to time through an order, shall disconnect the supply line of electricity, and on payment or deposit of assessed amount, restore the supply line of electricity within forty eight hours of such deposit or payment."
viii. In cases where the theft of electricity is detected by by-passing the meter or metering equipment and the electrical load, fully or partially, of the person's connection is found connected directly with the lines, cables or electrical plant, electric supply to such premises shall be disconnected forth-with on the spot by the licensee and shall be restored only after the cause of theft is removed to the satisfaction of licensee and the person pays the charges raised as per assessment bill, with due opportunity to him for making representation etc. as per the procedure prescribed for the same in the Code.
Same as in Column 2 ix. In cases of direct theft by tapping the licensee's lines, cables or electrical plant, electric supply to such premises or place shall be disconnected forthwith by the licensee. The licensee may subsequently remove or divert or convert his line, cable or electrical plant to prevent further theft of electricity provided that such action shall not result into any inconvenience in affording quality supply or disruption of supply, to other consumers.
Same as in Column 2 x. In case the premises where the theft of electricity has been detected does not have regular electricity connection, the licensee shall forthwith disconnect the supply to such premises, and the supply shall only be restored after the person has cleared the dues to be paid on account of charges assessed for theft of electricity in full and has availed a regular new connection after completing the required formalities.
Same as in Column 2
(xi) In the matters where prima-facie evidence of theft is found, the authorized officer of the licensee shall lodge an F.I.R within 24 hours of disconnection. In case where the authorized officer of the licensee fails to lodge an F I R within 24 hours of disconnection it shall be construed that the licensee has failed to achieve and maintain the standards of performance, and the aggrieved consumer can directly approach the Commission for the failure of the licensee in discharging its obligation under section 57 of the Act."
8.2 Hearing Within 4 working days from the date of submission of consumers' reply, if made within prescribed period, the Licensee shall arrange a hearing with the consumer.
(b) Hearing
(i) Within 3 working days of the date of inspection, the designated Authorized officer shall analyse the case after carefully considering all the evidences like documents, facts on record, the consumption pattern, wherever available and the report of inspection.
(b) Hearing Same as in Column (2)
(i) Before the hearing, the designated officer of the Licensee who shall be senior to the authorized officer, before whom hearing has to be given, shall analyse the case after carefully considering all the documents, submissions by the consumer, facts on record and the consumption pattern, wherever available. The Licensee shall also assess the energy consumption for past period as per Annexure 6.3(c). In case of suspected theft/, if average monthly consumption pattern for last one year is reasonably uniform and is not less than 75% of the assessed consumption (monthly), no further proceedings shall be taken and the decision shall be communicated to the consumer under proper receipt within 3 working days and connection shall be restored through original meter after proper checking/resealing.
(ii) During the hearing the licensee shall give due consideration to the facts submitted by the consumer and pass, within 15 days, a speaking order as to whether the case of suspected theft is established or not. Speaking order shall contain the brief of inspection report, submissions made by consumer in his written reply and during hearing and reasons for acceptance or rejections of the same.
(ii) No theft case shall be booked for mere breakage of window glass or old seal of the energy meter. In such cases, if the average monthly consumption pattern for last one year is reasonably uniform as the assessed consumption (monthly), and there is no other prima facie evidence of theft / UUE found at the consumer premises. no further proceedings shall be taken for theft / UUE of electricity and the decision shall be communicated to the consumer under proper receipt within 7 working days of the date of inspection, and connection shall be restored through original meter after proper checking/ resealing. The contents of such report recommending for dropping the case shall be communi- -cated to the Special Court with a copy to the police station where the FIR was lodged.
Same as in Column (2)
(iii) In case of the decision that the case of suspected theft is not established, no further proceedings shall be taken and connection shall be restored through original meter.
(iii) If the Assessing Officer of the licensee suspects that theft of Electricity has taken place (as defined under Section 135 of the Act), he will serve the provisional assessment bill alongwith show cause notice to the consumer for hearing, giving 15 working days, under proper receipt. The notice shall invite objections in writing from the consumer, if any, against the charges and provisional assess- -ment and require the presence of the consumer to answer to all the charges imposed by the licensee.
Same as in Column (2)
(iv) Where it is established that there is a case of theft of energy, the Licensee shall assess the energy consumption for past period as per the assessment formula given in Annexure 6.3(c) and prepare final assessment bill on 3 times the rates as per applicable tariff and serve on the consumer under proper receipt. The consumer shall be required to make the payment within 7 working days of its proper receipt. A copy of the speaking order shall be handed over to the consumer under proper receipt on the same day.
(iv) If, after hearing, the authorized officer finds that a case of theft has been established, the assessment shall be done for the energy consumption for past period as per the assessment formula given in Annexure 6.3 on 1.5 (one and a half) times the rates as per applicable normal tariff to the purpose for which the energy is abstracted, used or consumed or wasted or diverted, whichever is higher and demand and collect the same by including the same in a separate bill. This is in addition to any civil / criminal proceedings that may be instituted as provided by the Act, and described in cl. 8.2(vii).
Same as in Column (2)
(v) A copy of the order shall be served to the consumer under proper receipt and in case of refusal to accept the order or in absence of the consumer, shall be served on him under Registered Post / Speed Post. The Authorized officer may extend the last date of payment or approve the payment to be made in instalments on a consideration of the financial position and other conditions of the licensee. The amount, the extended last date and / or time schedule of payment/ instalments should be clearly stated in the speaking order.
Same as in Column (2)
(c) Default in payment of assessed amount or instalments thereof.
(i) In case of default in payment of the assessed amount or any installment agreed or granted the Authorized Officer shall, after, giving 15 days notice in writing disconnect the supply of electricity, by any suitable means such as by disconnection from pole/ transformer, by removing meter, electric line, electric plant and other apparatus and shall also take penal action against the consumer as per provisions of the Act. The reconnection shall be carried out as per the provisions of reconnection laid down in clause 4.39.
Same as in Column (2)
(ii) When a person defaults in making payment of assessed amount, he shall be liable to pay an amount of interest at the rate of 16% (sixteen percent) per annum on the expiry of 30 days from the date of order of assessment, in addition to the assessed amount, compounded every six months.
Same as in Column (2) 8.2 Procedure for taking cognizance in case of theft of electricity:
i. As per the provisions of the Act and in accordance with the order dated 8.6.2005 of Ministry of Power under Electricity Rules 2005 and power to remove difficulties, the procedure in clause 8.1 above and as provided herein, does not absolve the authorized officer of the licensee, from lodging the complaint in a police station and filing before the Special Court, within 30 days from the date of inspection and on failure to do so, shall restore supply on interim payment of assessed amount, calculated at 1.0 times of existing tariff, less payment already made by the consumer for the period of assessment. The Authorized Officer shall subsequently take action for lodging an FIR / filing before the Special Court.
8.2 Procedure for taking cognizance in case of theft of electricity:
i. As per the provisions of the Act and in accordance with the order dated 8.6.2005 of Ministry of Power under Electricity Rules 2005 issued under power to remove difficulties and Electricity (Amendment) Act 2007, the procedure in clause 8.1 above and as provided herein, does not absolve the authorized officer of the licensee or supplier, from lodging the complaint in a police station within 24 hours from the time of disconnection and filing a case before the Special Court, within 30 days from the date of disconnection.
On failure to file a case before the special court within 30 days of disconnection, it shall be constitute that the licensee has failed to achieve and maintain the standards of performance, and the aggrieved consumer can directly approach the commission for the failure of licensee in discharging its obligation under section 57 of the Act and the authorised officer of licensee or supplier shall restore supply on interim payment of assessed amount calculated at 1.0 times of existing tariff, less payment already made by the consumer for the period of assessment within 48 hours of such deposit or payment. The Authorized Officer shall subsequently take action for lodging an FIR / filing before the Special Court.
ii. The authorized officer can lodge an F.I.R with police station concerned and in addition can file a complaint in writing to the Special Court which is constituted for the purpose of determining the criminal and civil liability, this however has to be done in accordance with procedure laid in sub clause (x) below.
Same as in Column (2) iii. Section 152 of the Act, which deals with compounding of offences, shall be applicable, where the State Government or any officer authorized by it in this behalf accepts from any consumer or person who committed or who is reasonably suspected of having committed an offence of theft of electricity punishable under this Act, a sum of money by way of compounding of the offence based on contracted load as specified in the Act.
Same as in Column (2) iv. The payment of the sum of money by way of compounding can be made with the officers of the licensee or the police Inspector of Vigilance Police station under whose jurisdiction the consumers premises is situated, if specifically empowered by the state government to accept the compounding amount.
Same as in Column (2) v. After making the payments as above, and in accordance with section 152 (1) of the Act, any person if in custody, in connection with that offence, shall be set at liberty and no proceedings shall be instituted or continued against such consumer or person in any criminal court.
Same as in Column (2) vi. Compounding of an offence shall be allowed only once for any consumer or person.
Same as in Column (2) vii. If the compounding charges are accepted from the consumer as per the sum prescribed in the Act, any further charges for assessment of units by the licensee shall be at 1.0 times of existing tariff only.
Same as in Column (2) viii. The supply shall be restored if the Consumer pays the charges demanded (compounding char- -ges / assessment charges if any) and complies with the directions by the Licensee.
Same as in Column (2) ix. Provided that such compounding amount shall be deposited in the State Government account by the above empowered authorit- -ies, and the licensee shall collect and retain the assessed amount if any.
Same as in Column (2) x Cognizance of the offence -
(a) A F.I.R against the consumer or person may be filed by the Appropriate Govern- -ment or the Appropriate Commi- -ssion or any of their officer authorized by them in this regard or a Chief Electrical Inspector or an Electrical Inspector or an authorized officer of Licensee or a Generating Company, as the case may be in the Police Station of that area.
x Cognizance of the offence -
(a) A complaint in writing relating to the commission of such offence shall be lodged against the consumer or person by the Appropriate Government or the Appropriate Commission or any of their authorized officers in this regard or a Chief Electrical Inspector or an Electrical Inspector or an authorized officer of Licensee or a Generating Comp- -any, as the case may be, within 24 hours of disconnection, in the Police Station of that area having jurisdiction."
(b) The police shall investigate the matter in accordance with the general law applicable to the investigation of any offence. For the purposes of investigation of the offence under the Act or this Code, the police shall have all the powers as available under the Code of Criminal Procedure, 1973.
Same as in Column (2)
(c) The police shall, after investigation, forward the report along with the F.I.R. lodged under sub-clause (a) above to the Court for trial under the Act, i.e. a Special Court, or in absence of a Special Court, any other court, for subsequent investigation for taking into cognizance of offence
(c) The police shall, after investigation, forward the report along with the F.I.R. lodged under sub-clause (a) above to the Court for trial under the Act, i.e. a Special Court, or in absence of a Special Court, any other court.
Provided that the court may also take cognizance of an offence punishable under this Act upon a report of a police officer filed under section 173 of the Code of Criminal procedure, 1973."
(d) Notwithstanding anything contained in sub-clauses (a), (b) and (c) above, the complaint for taking cognizance of an offence punishable under the Act may also be filed by the Appropriate Govern- -ment or the Appropriate Comm- -ission or any of their officer authorized by them or a Chief Electrical Inspector or an Electrical Inspector or an authorized officer of Licensee or a Generating Company, as the case may be directly in the appropriate Court.
Same as in Column (2)
(e) Notwithstanding anything contained in the Code of Criminal procedure 1973, every Special Court may take cognizance of an offence referred to in sections 135 to 139 of the Act without the accused being committed to it for trial.
(e) Notwithstand- -ing anything contained in the Code of Criminal procedure 1973, every Special Court, or in absence of a Special Court, any other court, shall take cognizance of an offence referred to in sections 135 to 140 and section 150 of the Act without the accused being committed to it for trial, and such offence shall be cognizable and non-bailable."
(f) The cognizance of the offence under the Act shall not in any way prejudice the actions under the provision of the Indian Penal Code.
Same as in Column (2)
(g) The final assessment done by the licensees assessing officer in case of theft, is also subject to adjudication by the court.
Same as in Column (2)
(h) In case of the decision of the court that theft is not established, the charges levelled and assessment made by the licensee against the consumer or person shall be withdrawn in writing and the connection shall be restored through the original meter.
Same as in Column (2)
121. In our case, the provisions as were applicable after 15.6.2007, i.e. on 30.6.2007 when the inspection was made by raid team would be relevant. In respect to all the cases governed by Section 126, i.e. unauthorized use of electricity, the procedure has been prescribed in para 6.8 of Supply Code, 2005 which can include within itself the cases constituting theft of electrical energy in the light of overlapping provisions defining unauthorized use of electricity in explanation to Section 126 and Section 135 (1) but in respect to cases which constitute theft of electrical energy since a separate provision has been made in para 8.1, to my mind, in case of assessment of theft of electrical energy, it would be governed strictly by the procedure laid down in para 8.1 and onwards and not by para 6.8. Para 6.8 is part of Chapter 4 under the heading 'Billing' while para 8.1 and 8.2 is part of Chapter 8 titled as "Tampering, Distress or Damage to Electrical Plant, Meters etc." Para 6.8 while covers in general all the cases within the ambit of the term "unauthorized use of electricity", the procedure prescribed in para 8.1 deals specifically the cases where the licensee/supplier suspects theft of electrical energy i.e, cases covered under Section 135. It provides the procedure for action when an information to this effect is received by the authorized officer under Section 135 of the Act about likelihood of theft of electrical energy by a person or at a particular premises. The initial part deals with the procedure as to how the inspection shall be made, how the inspection report shall be prepared and what steps shall be taken by the concerned authority with respect to metering equipment or other relevant apparatuses etc. It also contemplates observance of principles of natural justice after the report is received by the concerned officer of the licensee from the inspection team and thereafter the manner in which assessment shall be made. Para 8.2(i) contemplates that disconnecting officer of the licensee in case of assessment under paras 8.1 and 8.2 must be senior to the authorised officer who shall hear the matter, analyse the case including documents, submissions, etc. and thereafter shall asses energy consumption for the past period as per Annexure 6.3(c) of the Code 2005. In the subsequently made provisions stress is upon lodging of FIR/Criminal complain and follow up action and also to deal with the situation arising out of disconnection of supply in case of theft and attempt is that electric supply of the person concerned, if he is otherwise a bona fide consumer but has indulged in theft, electrical energy may not be obstructed for long unnecessarily and, therefore, if he makes payment of assessed amount or compounding charges, as the case may be, he may be restored electric supply which would be subject to result of criminal proceedings. The later addition of making assessment proceedings subject to result in criminal case has been stressed so as to check a probable likelihood of bias on the part of the licensee in making assessment so that they may not be absolute and conclusive judge in their own cause. It is probably with this view of the matter, the legislature has made it obligatory upon the licensee or the supplier to lodge a complaint in writing relating to commission of offence with the police vide second proviso to Sub Section (1-A) of Section 135 amended with effect from 15.6.2007 and para 8.2(x)(g) of the Supply Code 2005 makes assessment of a case of theft subject to adjudication by the Court. Further para 8.2(x)(h) of Supply Code 2005 as has been amended on 11.8.2006 and onwards provides that if the Court finds that theft is not established, charges levelled against the consumer or the person concerned as also assessment made shall be withdrawn in writing and connection shall be restored through the original meter. Both these clauses have continued even after the amendment made in para 8.2 on 14.6.2008.
122. Sri Shashi Nandan, Senior Advocate, has also argued and contended that it is para 8.1 and 8.2 which would apply where an assessment on the allegation of theft of electricity is made and not para 6.8. He also contended that in the present case, assessment of the petitioner has actually been made observing procedure under paras 8.1 and 8.2 of the Supply Code 2005 and, therefore, the arguments advanced by learned counsel for the petitioner relying on para 6.8 is not correct. He also said that the Division Bench Judgment of this Court in Ashok Kumar (Supra) would also not apply to the case in hand since the Court had considered therein the procedure laid down in para 6.8 of the Code, 2005 and not not para 8.1 and 8.2 of the Code.
123. I find substance in the submission of Sri Shashi Nandan in respect to applicability of paras 8.1 and 8.2 in this case. When two provisions are made covering simultaneously same or similar field or having some overlapping on certain aspects, the provision which is specific would prevail over the provision which is general in nature.
124. The maxim Generalia Specialibus non Derogant would in principle apply in this case. Further the legislature has considered all the circumstances and made special provision for a particular case. The presumption is that another provision of general character would not have been intended to interfere with the specific provision. Special provision stands as a special proviso upon the general.
125. Lord Cooke of Thorndon in Effort Shipping Company Vs. Linden Management SA (1998) AC 605 (627) has described the maxim "Commo Sense Rule". The principle is based on a concept that where a state of facts falls within the literal meaning of a wider provision but there is another provision covering restricted field, the effect would be that the provision covering restricted field would apply to the cases covered therein and not the wider provision.
126. In Halsbury's Law of England, 4th Edn., Vol. 44 (1), (London 1995 para 1486) this principle is explained as "Constitution of general and particular enactments ... Whenever there is a general enactment in an Act, which, if taken in its most comprehensive sense, would override a particular enactment in the same Act, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the Act to which it may properly apply."
127. In Murdoch's Dictionary of Irish Law (4th ed.), this principle has been defined as a rule which requires that general things do not derogate other from special things. Initially this principle was applied mostly in the cases where conflict between provision of two separate instruments/statute was noticed but later on it has been applied to a situation covered by two provisions of the same Statute for the reason that the principle is of a common sense doctrine that the general shall not derogate from the particular.
128. The Apex Court in Chandra Prakash Tiwari And Ors. vs Shakuntala Shukla and others, AIR 2002 SC 2322, in para 36 held as under:
"36. On a conspectus of the whole issue, it is thus difficult to comprehend that the General Rule framed under Article 309 should or would also govern the existing special rules concerning the police rules. Admittedly, the guidelines as contained in the Government Order dated 5.11.1965 have been under and in terms of the provisions of the Police Act. There is special conferment of power for framing of Rules dealt with more fully hereinbefore, which would prevail over any other Rule. Since no other rule stands formulated and the Government Order of 1965 being taken as the existing rule pertaining to the subject matter presently under consideration with recent guide-lines as noted above, its applicability cannot be doubted. Unless the General Rule specifically repeal the effectiveness of the special rules, question of the latter rule becoming ineffective or inoperative would not arise. ...."
129. The applicability of general and special provision was discussed in Pearce and Geddes, Statutory Interpretation in Australia, 6th edition, at [7.18]. As O'Connor J. in Goodwin v Phillips (1908) 7 CLR 1 at 14 said:
"Where there is a general provision which, if applied in its entirety, would neutralize a special provision dealing with the same subject matter, the special provision must be read as a proviso to the general provision, and the general provision, in so far as it is inconsistent with the special provision, must be deemed not to apply."
130. Further, in a recent judgment in Gujarat Urja Vikas Nigam Ltd vs. Essar Power Ltd, 2008 4 SCC 755; the Court has observed and held (per Markandey Katju, J.), inter alia, as follows (in paras 28, 33 and 60 ):
"28. Section 86(1)(f) of the Act of 2003 is a special provision and hence will override the general provision in Section 11 of the Arbitration and Conciliation Act, 1996 for arbitration of disputes between the licensee and generating companies. It is well settled that the special law overrides the general law. Hence, in our opinion, Section 11 of the Arbitration and Conciliation Act, 1996 has no application to the question who can adjudicate/arbitrate disputes between licensees and generating companies, and only Section 86(1)(f) shall apply in such a situation.
"33. Section 174 provides that the Electricity Act, 2003 will prevail over anything inconsistent in any other law. In our opinion the inconsistency may be express or implied. Since Section 86(1)(f) is a special provision for adjudicating disputes between licensees and generating companies, in our opinion by implication Section 11 of the Arbitration and Conciliation Act, 1996 will not apply to such disputes i.e. disputes between licensees and generating companies. This is because of the principle that the special law overrides the general law. For adjudication of disputes between the licensees and generating companies there is a special law namely 86(1)(f) of the Electricity Act, 2003. Hence the general law in Section 11 of the Arbitration and Conciliation Act, 1996 will not apply to such disputes.
"60. We make it clear that it is only with regard to the authority which can adjudicate or arbitrate disputes that the Electricity Act, 2003 will prevail over Section 11 of the Arbitration and Conciliation Act, 1996. However, as regards, the procedure to be followed by the State Commission (or the arbitrator nominated by it) and other matters related to arbitration (other than appointment of the arbitrator) the Arbitration and Conciliation Act, 1996 will apply (except if there is a conflicting provision in the Act of 2003). In other words, Section 86(1)(f) is only restricted to the authority which is to adjudicate or arbitrate between licensees and generating companies. Procedural and other matters relating to such proceedings will of course be governed by Arbitration and Conciliation Act, 1996, unless there is a conflicting provision in the Act of 2003."
131. Probably this aspect has been appreciated by UPERC also which is evident from para 6.8 (c) (iii) Note where it has clarified that assessment therein is made when the Assessing Officer finds that unauthorized use of electricity was not made with dishonest intention but due to ignorance of procedure or rules or compulsion that only warrant a suitable assessment commensurate with the Act. I may add that this clarification has found mention in para 6.8 of Supply Code, 2005 pursuant to amendment made with effect from 14.6.2008, but to my mind it is a kind of clarification and, therefore, the declaration made as above, in fact, only recognises the situation arises out of the various provision of the Code, 2005 as existing already and not creating new one.
132. I proceed to examine, what is the procedure which has to be followed by Licensee in a case covered by Section 135. Para 8.1 (A) (i to vi) basically lays down procedure of inspection and preparation of inspection report, applying to some extent, provisions of Code of Criminal Procedure, 1973 relating to search and seizure. Whether the inspection was made and report was prepared in accordance with procedure prescribed in para 8.1 (A) (i to vi) shall be seen while considering the inspection report prepared in this matter. One thing may be noticed at this stage that the report shall clearly state whether prima facie case of theft is made. Para 8.1 (A) (i to vi) also says that in case of prima facie evidence of theft by tampering of meter or metering equipment in case of LT consumers, the meter shall be removed, properly sealed and tested in accordance with the procedure laid down in para 5.6 and supply shall be restored through a new meter or metering equipment of appropriate rating. In case of HT connections, (category to which petitioners belong), it says that supply may be disconnected if there is prima facie evidence of theft as recorded by photographs/ M.R.I report for TVM meters or where removal of evidence by consumer is apprehended. Para 8.1 (b) deals with the procedure for hearing. It says that within three days of the date of inspection, the designated authorized officer shall analyse the case after careful considering all the evidences like documents, facts on record, consumption pattern, wherever available and the report of inspection. If from the perusal of above material, he finds that there was a mere breakage of window glass or old seal of energy meter, no case of theft shall be booked.
133. It further says that if the average monthly consumption pattern for last one year is reasonably uniform as the assessed consumption (monthly) and there is no other prima facie evidence of theft/ unauthorized use of electricity found at the consumer's premises, no further action shall be taken for theft/ unauthorized use of electricity and the decision shall be communicated to the consumer under proper receipt within seven working days of the date of inspection and connection shall be restored through original meter after proper checking/resealing. The report, so made and communicated dropping the case, shall be communicated to the Supplier with a copy to the Police Station where F.I.R. was lodged.
134. In case the Assessing Officer suspects that theft of electricity has taken place as defined under Section 135 of the Act, 2003, he will give provisional assessment bill along with show cause notice to the consumer for hearing giving 15 days time under proper receipt. Here for the first time a change is made that the Assessing Officer has to form its opinion in order to make assessment under Para 8.1 that the consumer may have committed theft of electricity as defined under Section 135 of the Act. The Assessing Officer cannot take recourse of Section 126 while initiating proceeding under para 8.1 of Supply Code, 2005 since para 8.1 specifically refers to Section 135 only. The notice shall contain "charge" as also provisional assessment and shall require presence of consumer to answer all the charges imposed by the licensee. Then comes para 8.1 (b) (iv) of Supply Code, 2005 which provides that if the Assessing Officer, i.e. the Authorized Officer finds that a case of theft has been "established", the assessment shall be done for the energy consumption for past period as per assessment formula given in Annexure 6.3, which initially read as under:
Units assessed = L * F * D * H.
where L= is the connected load in kW and in KVA where KVAh rate is applicable H= is the average number of hours per day the supply is made available in the feeder, feeding the consumer for the corresponding months D = 90 days in case of domestic or agriculture consumers and 180 days for all other consumers unless the onus is rebutted by the consumer/person F = for different types of supply as given below:
D = Period during which such unauthorized use of electricity has taken place, and if, however, the period during which such unauthorized sue of electricity has taken place cannot be ascertained, such period shall be limited to a period of 12 months (365 days) immediately preceding the date of inspection.
Note- For determining the 'actual period' of unauthorized use, the assessing officer shall satisfy himself by (i) the report of meter reader/ Junior engineer of the facts reporting first instance of the unauthorized use detected (ii) Further scanning by the assessing officer, by checking previous consumptions, and 'tamper' evidence from meter reading records, MRI reports etc. (iii) Any other record or evidence acquired from the connected premises/ installation or site.
F = Connected load factor different types of supply as given below:
(a) For L & F and domestic power consumers F= 0.30 (b) For non domestic L & F and power consumers F= 0.50 (c) For small and Medium power consumers F= 0.50 (d) For large and heavy power consumer F= 0.75 (e) Agriculture F= 0.30 (f) Categories not covered above F= 0.50
136. The unit assessed according to above formula shall be priced twice the rate as per applicable normal tariff for the category to which the energy is abstracted/consumed/waisted/diverted. The demand of assessment shall be made by raising a separate bill. This assessment is in addition to any civil/ criminal proceeding that may be initiated as provided by Act and described in Clause 8.2 (vii).
137. Here it may be stressed that para 8.2 (vii) now provides that in case of a offence, which is compoundable like Section 135, if the compounding charges are accepted from the consumer as per the sum prescribed in Act, any further charges for assessment of units by licensee shall be at 1.0 times of existing tariff only. Para 8.1 (b) (v) and (c) talks of service of final order of assessment upon the consumer and time within which he ought to pay the amount of assessment. It also provides interest at the rate of 16 per cent per annum on the expiry of 30 days from the date of order or assessment, if the assessed amount is not paid. The interest is compoundable on the assessed amount every six months.
138. Sri Shashi Nandan also stressed upon para 8.2 (g) and (h) which reads as under:
"(g) The final assessment done by the licensee assessing officer in case of theft, is also subject to adjudication by the Court.
(h) In case of the decision of the court that theft is not established, the charges levelled and assessment made by the licencee against the consumer or person shall be withdrawn in writing and the connection shall be restored through the original meter."
139. He submitted that in case a person is not found guilty of an offence by the Court of law, the order of assessment shall be withdrawn in writing since it is subject to adjudication by the Court. Neither there can be any estoppel against law nor mere reference to a wrong provision will make an order bad, if otherwise provision exists and the procedure prescribed thereunder has been followed. In other words, sheer unsubstantial technicalities, this Court may not allow to prevail over substantial justice. If it is found that case of theft or unauthorized use of electricity has been found against the consumer and procedure for establishing such guilt has been followed without leaving any scope thereto to sustain complaint of the consumer like denial of opportunity or non observance of substantial provisions relating to procedure, this Court under Article 226 may not interfere since in a matter which causes serious loss to the public revenue and public interest as well, this Court will not help the guilty on mere technicalities so to benefit an otherwise unscrupulous and nefarious persons.
140. The respondents though in para 14 of the counter affidavit have referred to both the clauses, namely, 6.8 and 8.1 of Supply Code 2005 but later in para 28 of the counter affidavit have specifically stated that the provisional assessment was made under Clause 8.1 of Supply Code 2005. Sri Shashi Nandan, learned Senior Advocate stated at the bar that respondents have followed the procedure laid down in paras 8.1 and 8.2 of the Supply Code 2005 and, therefore, the correctness of impugned order of assessment and appellate order must be judged under the said provision only. In this context he contended that the judgment of Division Bench in Ashok Kumar (supra) which consider para 6.8 of Supply Code 2005 ipso facto would not apply. Though initially learned counsel for petitioner endeavoured to stress upon the procedure laid down in para 6.8 in the present matter but later did not object to the contention of Sri Shashi Nandan, Senior Advocate, that in case of theft of electrical energy, the special and specific provision made shall prevail over the general one and, therefore, para 8.1 and 8.2 may be seen in the case in hand instead of para 6.8. I, therefore, uphold the contention that in case of theft of electrical energy, the procedure in Chapter 8 of Supply Code, 2005 shall apply having overriding effect over para 6.8. Though to some extent the procedure is overlapping but since a specific provision has been made, therefore, it shall be governed by the procedure laid down in para 8.1 and 8.2 of Code, 2005. It is only when the matter is not specifically governed by para 8.1 and 8.2 but there establishes a case of "unauthorized use of electricity" under Section 126, the procedure laid down in para 6.8 shall hold the field.
141. Here the discussion of statutory provision I shall complete by lastly referring to Section 138 which was specifically mentioned by inspection team in the inspection note dated 30.06.2007observing that prima facie the petitioners are guilty of committing offence under Section 138(d). It reads as under:
"138. Interference with meters or works of licensee.- Whoever, -
(a) unauthorisedly connects any meter, indicator or apparatus with any electric line through which electricity is supplied by a licensee or disconnects the same from any such electric line; or
(b) unauthorisedly reconnects any meter, indicator or apparatus with any electric line or other works being the property of a licensee when the said electric line or other works has or have been cut or disconnected; or
(c) lays or causes to be laid, or connects up any works for the purpose of communicating with any other works belonging to a licensee; or
(d) maliciously injures any meter, indicator, or apparatus belonging to a licensee or willfully or fraudulently alters the index of any such meter, indicator or apparatus or prevents any such meter, indicator or apparatus from duly registering, shall be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to ten thousand rupees, or with both, and , in the case of a continuing offence, with a daily fine which may extend to five hundred rupees; and if it is proved that any means exist for making such connection as is referred to in clause (a) or such re-connection as is referred to in clause (b), or such communication as is referred to in clause (c), for causing such alteration or prevention as is referred to in clause (d), and that the meter, indicator or apparatus is under the custody or control of the consumer, whether it is his property or not, it shall be presumed, until the contrary is proved, that such connection, reconnection, communication, alteration, prevention or improper use, as the case may be, has been knowingly and willfully caused by such consumer.
142. Clause (a) of Section 138 deals with the mere act of unauthorized connection of meter, indicator or apparatus with electric line supplying electricity or disconnection of meter, indicator or apparatus from such electric line. The difference between Section 135 and 138 is that in the former, the dishonest act basically stresses upon non recording of electrical energy correctly in the meter but here the mere act of connecting the meter, indicator or apparatus with an electrical line or disconnection thereof would constitute an offence under Clause (a) of Section 138. The terms "meter", "indicator" or "apparatus" have not been defined in the Act. The Supply Code, 2005 out of aforesaid three terms, defines two, namely "apparatus" and "meter" in para 2.2 (c) and (mm) which read as under:
"(c) "Apparatus" means electrical apparatus and includes all machines, fittings, accessories and appliances in which conductors are used."
"(mm) "Meter" means an equipment used for measuring electrical quantities like energy in KWh, and or KVAh maximum demand in KW and or KVA, reacting energy in KVAR hours etc. including accessories like Current Transformers (CT) and Potential Transformers (PT) where used in conjunction with such meter and any enclosure used for housing or fixing such meter or its accessories and any devices like switches or MCB or fuses used for protection and testing purposes. It will include any seal or sealing arrangement provided by the licensee for avoiding unauthorized use of electricity. This shall also include prepayment meters."
143. In Section 138 Clause (b), where the licensesee has already disconnected the electric line or other works but the same has been reconnected unauthorizedly through meter, indicator or apparatus, it would be an offence under Section 138(b). The term "electric line" in used in both the Clauses (a) and (b) of Section 138 while the word "work" has been used only in Clause (b). Both these terms have been defined in Section 2 (22) and (77) and reads as under:
"(20) "electric line" means any line which is used for carrying electricity for any purpose and includes-
(a) any support for any such line, that is to say, any structure, tower, pole or other thing in, on, by for from which any such line is, or any be, supported, carried or suspended, and
(b) any apparatus connected to any such line for the purpose of carrying electricity"
"(77)"works" includes electric line, any building, plant, machinery, apparatus and any other thing of whatever description required to transmit, distribute or supply electricity to the public and to carry into effect the objects of a licence or sanction granted under this Act or any other law for the time being inf force."
144. Clause (c) deals with one work laid or caused to be laid and connected for the purpose of communication with any other works of licensee; it would be an offence. Clause (d) relates to an act on the part of a person by causing damage to meter, indicator or apparatus belonging to a licensee or intentionally altering the index of any such meter, indicator or apparatus or preventing any such meter, indicator or apparatus from duly recording or registering energy. Distinction between Clause (d) of Section 138 and Section 135 is that the former deals with mere damage or alteration and even if there is no actual withdrawal of energy, that would not make any difference while the later deals with the situation where the energy has been abstracted or consumed or used. A case covered under Section 138 is punishable in the manner provided therein but it would not be covered by terms "unauthorized use of electricity" as defined in Explanation (b) of Section 126 and, therefore, the scheme of the Act shows that an offence under Section 138 is such which is not within the mischief of Section 126 and for that purpose the assessment is not permissible.
145. Now I come to relevant documents and material available on record in the present case to find out the answer to the questions formulated above in paras 44 and 45.
146. The Inspection report (Annexure 6 to writ petition) nowhere shows that the procedure laid down in para 8.1 (A) (i to vi) was followed. From the record, it appears that the trouble started on 22.6.2007, Though in the counter affidavit, respondents have taken a stand that no tripping of electricity was recorded in the Sub-Station register on 22.6.2007 and, therefore, the case set up by petitioners that trouble started on 22.6.2007 is not correct, however I find it incorrect. The two officers of respondent-Corporation, who appeared before the Court did admit that registers at Sub-Station are prepared and maintained by Sub-Station staff. Consumer has no role therein. However, giving the benefit of the principle, the official documents which are normally maintained in ordinary course of business may be presumed to have been maintained in such way unless proves otherwise I do not give any benefit to petitioners on this scone. However, I find that M.R.I. reports placed before the Court by Sri K.K. Bansal, S.E., bely the stand of respondents and supports the case of petitioners. In other words, it may be said that at Sub-Station end there may not have been recorded any tripping in independent supply feeder supplying electricity to the petitioner but such tripping has occurred at the level of DP Meter 'C' which is evident from its MRI report of 22.6.2007.
147. At this stage, I may explain, what 'MRI' is. The digital computerized meter manufactured by a company namely, "Secure Meters Limited" was installed at the premises of petitioners. The brand name of such meters, well known throughout the Country amongst the persons dealing in electricity is 'Secure Meter'. The meter manufacturing company is a private company and has its registered office at Udaipur. These meters came to be introduced in the erstwhile UPSEB sometimes in 1997-98 when Electricity Board installed computerized digital meters at first instance at the premises of heavy industrial consumers.
148. A photocopy of brochure of the Secure Meter manufacturing company giving some information about secure meters is on record. The manufacturing Company claim that Secure Meter is not just a solid state replacement for electromechanical Ferrarish Wheel kWH meters but is a comprehensive revolutionary concept that covers all concept of metering, monitoring and load management. It uses a totally new type of measurement system and microprocessor which affords extra ordinary flexibility.
149. The Secure Meter, mainly, comprises of, (1) a Consumer Energy Meter (CEM); (2) a Meter Reading Instrument (MRI); and (3) a Base computer system Software (BCS).
150. CEM is metering device supposed to be heart of the meter. It measures power by use of an analogue-to-digital converter and mathematical processing. The data is stored in the non-volatile memory of CEM which can retain stored data for a very long time without power. Initially the metering company claimed this period upto ten years. The CEM displays various electrical quantities.
151. Then comes MRI. Information from meter can be read by a hand-held "Meter Reading Instrument" called 'MRI'. The 'MRI', a compact device, require a software to access and transfer information as also to ensure data security. The communication is done through an optical link and information like Meter Reading, Tamper information/ Diagnostic etc. can be obtained.
152. The MRI after down loading information from the meter(s) can be connected to IBM compatible computers equipped with the special Base Computer Software (BCS). The computer then receive all readings and other data from MRI on the serial communication port. The information available on computer can be downloaded and maintained for analysis of power consumed, load management, energy auditing and billing etc.
153. The Secure Meters, to start with, were available with three different accuracy classes, i.e. Class 1.0, 0.5 and high precision, i.e. 0.2. The Electrical quantities measured and displayed by such meters included, (1) Real Time; (2) Active energy (kWh/MWh); (3) Reactive energy (kVArh/MVArh), (4) Apparent energy (kVAh/MVAh) (5) Max. Demand (kVA/MVA) or (kW/MW) (6) Max. Demand reset count; (7) Instantaneous Power Factor, etc.
154. The power demand recorded in the meter is integrated over half-an-hour and it continue to record, initially for about 35 days, which has now increased to 50 or 60 days.
155. The Court is informed by the two Engineers that the digital meters are supported with a specially designed software programme. If any new device is sought to be introduced or any alternation is made in the connecting leads disturbing the potential ratio etc., specialized software will record from that moment and onwards a case of tampering with metering system and the Secure Meter MRI data can indicate date, time and duration of such tampering. In other words, any attempt to introduce a device incompatible with the base computer software would be received by Secure Meter as tampering with metering system and will immediately give the information about the attempt on the part of consumer for any of his agent of tampering with metering system which may constitute theft of electrical energy. To my mind, it would mean that if a shrewd consumer in collusion with private meter manufacturing company can manage to obtain a compatible device with the Secure Meter software one may be able to defy the self contained digital surveillance. But then in such a case the company and its officials will have to take an active part unless it is shown that there is a case of hacking of the company's privilege software enabling the consumer to take a right on the various high claims made by the meter manufacturing company.
156. The MRI report placed before the Court relates to 'DP Meter C', which is a Secure Meter and Control Room Feeder Meters installed at Sub-Station, namely, SS Meter A and SS Meter B. The Court is informed by Sri K.K. Bansal, S.E. that "zero" in MRI data chart denotes "availability of electricity but no user", i.e. no load while "minus one" denotes non availability of Electricity.
157. The SS Meter A installed on 22.6.2007 at 7.30 A.M. mention 'zero' meaning thereby at the Sub-Station, electricity was available but there was no load at the end point of consumer. The DP Meter C, on the contrary, mention on 22.6.2007 at 7.00 A.M., 24 KVA load but at 7.30AM shows 'minus one' meaning thereby there was no electricity available at DP Meter 'C' at 7.30AM.
158. It could not be disputed by two Engineers appearing before the Court that 'minus one' at 7.30 AM on 22.6.2007 at DP Meter 'C' shows tripping of electricity at double pole and, therefore, non availability thereof at DP Meter 'C'. If no electricity was available at DP Meter 'C', they could not dispute that at Consumers premises and in the Billing meter 'D' also, there could not have been any electricity available at that point of time. However, both the Officers could not explain the reason, how there is a difference in the two MRI reports of the same time, namely at 7.00 AM when SS Meter 'A' and 'B's MRI report show no load at consumer's end but in DP Meter 'C' at 7.00 AM it shows a small load of 24 KVA. This Court finds a similar difference in the entire data recorded in two meters namely, SS Meter Meter 'B' and DP Meter 'C' which were outside the premises of consumer, and, under the management and control of officials of respondents, as is evident from following:
Intervals (Time) 22.6.2007 (Reading of Double Pole Meter) (kVA(I)) 22.6.2007 (Reading of Control Room Feeder Meter) (kVA(I)) Difference (1) (2) (3) (2-3) 0.30 1.00 1.30 2.00 2.30 3.00 3.30 4.00 4.30 5.00 5.30 6.00 6.30 7.00 7.30 8.00 8.30 9.00 9.30 10.00 10.30 11.00 11.30 12.00 12.30 13.00 13.30 14.00 14.30 15.00 15.30 16.00 16.30 17.00 17.30 18.00 18.30 19.00 19.30 20.00 20.30 21.00 21.30 22.00 22.30 23.00 23.30 24.00 768 744 720 696 708 684 720 732 756 660 624 600 636 24
-1 84 828 1140 1212 1272 1272 1200 1188 1080 936 948 996 1008 984 924 912 1092 1176 1104 1224 1236 1188 1032 1200 1152 900 936 1008 1008 972 1020 1032 1032 720 696 684 654 666 654 678 690 702 618 582 588 582 0 0 144 882 1122 1218 1260 1254 1170 1188 1026 942 942 978 1008 972 894 930 1080 1158 1098 1206 1242 1158 1026 1188 1116 870 930 1008 996 948 996 1044 1002 48 48 36 42 42 30 42 42 54 42 42 12 54 24
-1
-60
-54 18
-6 12 18 30 0 54
-6 6 18 0 12 30
-18 12 18 6 18
-6 30 6 12 36 30 6 0 12 24 24
-12 30
159. At least two MRI reports produced before the Court had unequivocal evidence that there was tripping at 7.30 A.M. and electricity was not available at consumer premises on 22.6.2007 at 7.30 A.M. Since the recording of demand is half-hourly basis, therefore, the actual time the tripping continued may not be ascertained, but tripping is proved.
160. The respondents have further said that on 22.6.2007, Raid Team conducted a surprise checking at the premises of another consumer, namely, M/S Parmarth Iron Pvt. Ltd. and found a large scale theft of electrical energy therein. In this context the then S.E., Electricity Distribution Circle, Bijnor, Sri D.C. Jain, the then E.E., Electricity Distribution Division, Bijnor Sri A.K. Chopra were placed under suspension on 26.6.2007. It is pleaded in para 5 of the counter affidavit that perhaps the petitioners got information of surprise checking at Bijnor and, therefore, managed receipt of back dated letters i.e. 22.6.2007, 27.6.2007 and 28.6.2007. Paragraph 11 of the counter affidavit has been sworn on the basis of record. How and in what manner from record it could discern that letters were received with backdates could not be explained by learned counsel for respondents. It is also not disputed that no official(s) of respondents have been issued any charge sheet with such kind of allegation. The letter dated 22.6.2007 is said to have been received by the then S.E. himself whereupon he made an endorsement to E.E. (Distribution), E.E. (Test) and Sub-Divisional Officer (Distribution) directing them for necessary action. The said Officer has not denied his endorsement and no document to show otherwise has been placed before this Court. During the course of argument the parties informed the Court that not only suspension of the then S.E. has been revoked but the Officer has been promoted long back as Chief Engineer. Therefore, I find nothing on record to substantiate the theory of denial of communication of letter dated 22.6.2007 by petitioners to the concerned Officers on that date and the order passed thereon by the then S.E. It appears that the concerned E.E. or Sub-Divisional Officer did not respond immediately.
161. Even otherwise assuming what the respondents have said to be correct the truth thereof can be tested from another angle. The tripping in DP Meter 'C' is shown by MRI report at 7.30 am. It is clear that checking at another industrial establishment was made on the same date i.e. 22.06.2007. Whether the checking was made before 7.20 am and petitioners could get sufficient time thereafter to manipulate the things has not been shown in detail. The time of inspection commenced at another industrial consumer namely M/s Parmarth Iron Pvt. Ltd. has not been disclosed anywhere. Normally the detail inspection takes sometime. In order to prove the stand taken by respondents, onus lay upon them to plead and place relevant material on record to show that such inspection was made before 7.30 am in the morning of 22.06.2007 and petitioners had never time and opportunity to make the kind of manipulation as are being alleged and suspected in the different meters. In fact the case initially set up was different and with the passage of time respondents have tried to change their stand in the light of problems they face during the course of minute examination of case. In absence of any external means detected in the meters installed at petitioner's premises or even in the other three meters, have a onus lie upon respondents to prove the case of theft under Section 135 for the purpose of attracting para 8.1 and 8.2 of Supply Code 2005 which apparently respondents have failed.
162. The second letter relied by the petitioners is dated 27.6.2007 addressed to S.E. informing firing in C.T. Box in the meter room and fire smoke coming out from meter. It does appear that no official of the respondents took any action then also. From MRI reports of SS Meter 'B' and DP Meter 'C' the common thing is that the electrical load in both disappeared at 5.00 PM on 27.6.2007. The only difference is that in SS Meter 'B' from 5.00 PM to 8.00 PM it denotes 'zero' i.e. availability of supply but no load, while in DP Meter 'C' from 5.00 P.M. and onwards it denotes 'minus one' meaning thereby no availability of supply. In the SS Meter 'B' no availability of supply i.e., minus 'one' is shown at 8.30 AM and onwards. Thus it is evident that in any case at 5.00 PM, for whatever reason, the electricity consumption at petitioner's premises totally stopped and the situation continued thereafter on 28.6.2007 also. The case, therefore, set up by respondents that the story of fire set up by petitioner commences from 27.6.2007 is false, stood belied. Since the electricity remained dis-connected from 5.00 PM on 27.6.2007 and onwards. The petitioners complained, besides S.E. And E.E. concerned, but reported to Managing Director PVVNL also by letter dated 28.6.2007. The respondents however, for the reasons best known to them did not take any immediate action.
163. Inaction has been tried to be defended by respondents on the ground that as a matter of fact they did not receive any information and for the first time the matter came to the knowledge of Managing Director when petitioner's letter dated 28.06.2007 was received in his office. I really find it surprise as to why respondents-authorities at no point of time examine the concerned officials by controverting them on the letters claim to have been sent by petitioners to S.E./E.E. etc. and no attempt was made to enquire why them kept silence. There is nothing on record to show that concerned officials were ever put to inquiry about these letters and if the respondents claimed that letters were received by back dated, why no action was taken against these officials. It is only when during the course of arguments this Court made query from respondents, learned Senior counsel appearing for PVVNL stated at the bar that respondents are taken action against the concerned officials. This is clearly an afterthought. The Court is really surprise that on the one hand entire attempt on the part of respondents is to demonstrate a criminal collusion between petitioners and and the then Superintending Engineer but on the other hand the fact is that the said officer was never proceeded departmentally or otherwise on this aspect of the matter. The alleged suspension made on 26.06.2007 was in respect to checking made at another industrial consumer namely, M/s Parmarth Iron Pvt. Ltd. but that has also resulted in clear exoneration of concerned S.E. and he was promoted to the post of Chief Engineer thereafter. On these facts and state of affairs the defence of respondents appears to be more oral and vocal than of any substance. It is only somehow or other to substantiate their claim without having any foundation justifying it.
164. Sri Shashi Nandan at this stage pointed out that the Managing Director was not informed of any fire in the meter or metering room but the letter dated 28.6.2007 sent by the petitioner to Managing Director uses the word "break down in our metering cubical". The language in the letter dated 28.6.2007 is obviously not very clear but yet it gives a definite indication to something seriously wrong.. It says that there was a flash over Peeli Chowki Sub-Station in Independent Feeder at about 6.00 P.M and they were not getting power supply till then. The concerned S.E. changed and on 29.6.2007 the letter was sent by Sri K.K. Singhal, S.E. wherein he himself mentioned that the consumer has informed today that the cubical has got burnt.
165. The Managing Director, thereafter, constituted a team consisting of three officers. Whether this team was constituted apprehending a case of possible theft of electricity at petitioner's premises or not is not clear since no such document has been placed on record as to how and in what manner Managing Director constituted the said team, From the contents of letter dated 29.6.2007 issued by Sri K.K. Singhal, S.E., who was also a part of the team which inspected the premises on 30.6.2007, it is clear that the team was constituted to attend break down of 1500 KVA connection at petitioner's premises. Sri Singhal mentioned in his letter that the break down shall be attended in the presence of members of team constituted by Managing Director. He also says that in-charge of the team Sri A.K. Sharma, Deputy General Manager has informed, if there arises any necessity of change of cubical, then for the said purpose a cubical along with C.T. apparatus should remain available so that it may be replaced in the presence of the Team members. The letter of Sri K.K. Singhal, S.E. does not even suggest that the said Team was constituted apprehending theft of electrical energy at petitioners' premises. The team visited the premises on 30.6.2007 and prepared the report.
166. In fact the raid team/ checking team came to the conclusion that the consumer has caused damage to metering cubical by making some tampering with the system. The team, therefore, recommended for initiating proceedings under Section 138(d) of Act, 2003. This is evident from the following:
^^blls Li"V gS fd miHkksDrkvksa us ehVfjax D;wfcdy {kfrxzLr djus ds mn~ns'; ls ykbZu cUn djk;hA mijksDr lHkh lk{;ksa ls ;g Li"V gS fd miHkksDrkvksa us ehVfjax D;wfcdy esa Lo;a NsM+NkM+ dj mls {kfrxzLr fd;kA bySDVªhflVh ,DV 2003 dh /kkjk 138&1 ¼Mh½ ds vuqlkj dk;Zokgh dh tk;sA^^
167. Therefore, on its own, the checking team did not record any inference; conclusion, finding or even suspicion that the consumer was committing theft of electrical energy or attempting to commit theft of electrical energy. However, it recommended that officer concerned shall make an in-depth study of MRI of meters installed outside the premises of consumer as also at the Sub-station (connected with independent feeder of petitioner) and only thereafter steps for replacing metering cubical shall be taken. If MRI discloses theft of electrical energy, then matter shall be proceeded under Section 135 (c) of Act, 2003.
168. To attract Section 135 (c), the checking team therefore on its own did not record any finding or inference or conclusion against the consumer but left it to be considered by the authority concerned after examining MRI of three meters installed at independent feeder supplying electricity to the consumer. The inspection team recorded inference of an offence under Section 138 (d) i.e. damage of metering cubical by the consumer. The checking report, therefore, does not lead us to attract Section 135 (c) in any manner.
169. It is also admitted that no report was lodged with Police at any point of time against the petitioners of an offence under Section 135 of the Act 2003. The only report lodged was regarding an offence under Section 138. It was made obligatory under Section 135(1)(a) second proviso that whenever a case of theft of electrical energy is detected, report shall be lodged with Police but it is not the case of respondents at all that any report against the petitioners for committing offence under Section 135 has been lodged till date. This itself shows that respondents are either double minded or not very certain as to whether the case in hand was a clear case of theft of electrical energy or it was a case of unauthorized use of electricity attracting Section 126 but excluding Section 135. Unfortunately, neither the Assessing Officer nor the appellate authority has applied its mind to this aspect of the matter.
170. The provisional assessment order apparently shows that the assessment was proposed not for committing theft of electrical energy but for unauthorized use of electricity. This is how this Court finds the conclusion drawn by the Assessing Officer and thus it would be prudent now to proceed further to consider provisional assessment order since that is the next order issued by the Assessing Officer. This order is Annexure 12 to the writ petition. It reads as under:
^^vkids ;gka fnukad 30-06-2007 dks foHkkxh; Vhe }kjk pSfdax dh x;h ¼pSfdax dh Nk;kizfr layXu gS½ Hkkjrh; fo|qr vf/kfu;e 2003 la'kksf/kr 2007 rFkk lIykbZ dksM 2005 ds izko/kkuksa ds vuqlkj vkids ;gkWa vfu;ferrk;sa ikbZ x;hA pSfdax Vhe dh fjiksVZ ds vuqlkj fo|qr pksjh ds lk{;ksa dks lekIr djus ds fy, ehVfjax D;wfcdy dks tkucw>dj tyk;k x;k ,oa ehVfjax D;wfcdy ls vukf/kd`r NsM+NkM+ ikbZ xbZ ftlds fo:+) Fkkuk dksrokyh fotukSj esa fnukad 01-07-2007 dkas izFke lwpuk fjiksVZ ntZ djk;h xbZ ¼izfrfyfir layXu½A ekg [email protected] 2007 ,oa ekg 06 @ 2007 esa blds iwoZ ds eghuksa esa vis{kkd`r yxHkx 10 izfr'kr fo|qr vkiwfrZ gqbZ tcfd ekg [email protected] 2007 ,oa [email protected] 2007 bl vof/k esa vkSlr fo|qr [kir esa yxHkx 15 izfr'kr dh deh vk xbZ gS ,e0vkj0vkbZ0 fjiksVZ dk v/;;u ,oa de miHkksx ls ;g fu"d"kZ fudyrk gS fd vkids ;gkW mijksDr vof/k esa vukf/kd`r fo|qr iz;ksx gqbZA mijksDr vfu;ferrkvksa dks laKku esa ysrs gq, fnukad 24-04-2007 ls fnukad 29-06-2007 rd dh vof/k dk fuEuor jktLo fu/kkZj.k izLrkfor fd;k tkrk gSA L X F X H X D ¼Hkkj X QsDVj X vkSlr lIykbZ ?k.Vksa esa X fnol½ 1500X 0.75X 22.14X 64 1693710 Units EC 1693710 X 3.50 X 2 Rs. 11855970.00 ED 1693710 X 0.09 Rs. 152434.00 Total Rs. 12008404.00 ¼&½ EC paid in 5/07 & 6/07 Rs. 2655807.00 Rs. 9352597.00"
171. The E.E. (Assessing Officer) further says that the consumer either should submit reply within 15 days himself or through his representative else an ex parte decision would be taken. Besides, petitioner was also required to deposit Rs. 56,000/- towards the cost of metering cubical. From the provisional assessment order, it is evident that the assessing officer read the checking team report as if the checking team has found a case of theft of electrical energy.
172. The provisional assessment order contains certain apparent and glaring misreading of checking report dated 30.6.2007. Learned counsel for respondent could not show anywhere checking team's inference that metering cubical was burnt deliberately to remove evidence of theft of electrical energy. It only mentions that consumer has got the line disconnected at 4.10 P.M. on 27th June 2007 for damaging metering cubical otherwise if there was a earth fault on the feeder, how it could be removed and repaired without permission of departmental authorities. It recorded its conclusion that the consumer has damaged/impaired metering cubical by tampering. There is no observation whatsoever that metering cubical was damaged to tamper or remove evidence of theft of electrical energy. The basic premise on the part of the Assessing Officer to rely on checking report for the purpose of attracting Para 8.2 read with Section 135 and 126 of Act 2003 is nonest based on misreading of the documents.
173. The provisional assessment order on its own does not show any application of mind by Assessing Officer as to whether there is any case of theft of electrical energy on the part of petitioners. He has neither discussed anything nor referred to anything except of referring the checking report dated 30.06.2007 that according to this report metering cubical burn by petitioners deliberately to remove evidence of theft of electrical energy. This is clearly perverse as is already discussed above. Even the first information report which has been referred to in provisional assessment order lodged on 01.07.2007 is not for an offence under Section 135 but only with respect to an offence under Section 138.
174. As already said, the first information report also shows that the allegations constitute an offence under section 138(d) and not 135. Then he has drawn the inference of unauthorised use of electricity during the period of May and June 2007 by referring to consumption. He says that in earlier months electricity supply was on an average 10 per cent higher while during May and June 2007 the average electrical consumption has decreased by 15 per cent. He says that study of MRI report and decrease in consumption justify inference that there is unauthorised use of electricity at petitioner's premises. Having drawn the said inference, he proceeded to make assessment from 24.4.2007 to 29.6.2007. In what manner, the MRI report shows unauthorised use of electricity is not clear or evident from the provisional assessment order dated 28.7.2007 though copy of the FIR and checking report was included in the provisional assessment order dated 28.7.2007 but MRI report allegedly was not made part of the said order by the Assessing Officer. For the purpose of showing difference in consumption also no comparative chart was given but I would not give any importance to this aspect since monthly consumption bills must be available with consumer also and, therefore, by non-availability of the comparison chart, he could not be prejudiced.
175. The Assessing Officer also does not mention as to which particular clause to cover the case of an unauthorised use of electricity is attracted i.e., whether it was by an artificial means or by means not authorised by the concerned person or licensee or though a tampered meter etc. The five clauses defining "unauthorised use of electricity" in Section 126 have different connotations and would be attracted in different facts and circumstances. The E.E. did not attempt to mention as to which part of the said Explanation was attracted in the case in hand to make it a case of "unauthorised use of electricity". He has nowhere said that though the Billing Meter 'D' was not available for any kind of study having burnt into ashes due to fire but there were still three meters available which could have shown anything wrong on the part of the consumer if there was any difference in the consumption pattern shown in all the four meters till the date Billing Meter 'D' had not burnt, in order to bring the case within the ambit of "unauthorised use of electricity". It was incumbent upon the Assessing Officer to examine this aspect of the matter and apprise the consumer giving him opportunity to explain circumstances which the Assessing Officer finds against him.
176. The Assessing Officer has further referred to consumption pattern and MRI report observing that in the month of May and June, 2007 consumption got down by 15% though supply in previous months is comparatively 10%. The aforesaid observations could not be co-related with MRI report produced before the Court by learned counsel for the respondents as to wherefrom such inference has been drawn. He only shows that in June, 2007 itself, in the last 4 to 5 days i.e. after the alleged burning of meter, consumption has increased. But that is not a factor which has been taken by Assessing Authority to draw his inference as is evident from provisional assessment order. The conclusion drawn by Assessing Officer that MRI reports show unauthorised use of electricity during May and June 2007 has not been shown to be fortified by any MRI report placed before the Court. A chart has been filed as Annexure-4 to the counter affidavit showing difference of consumption in sub-station meter and double pole meter. The chart shows that the difference is either in negative or in positive. Both these meters were maintained by respondents officials. They were in their control. Whether these meters were sealed by competent authority and were in a position that an outsider may not interfere therewith is not clear. Nothing has been placed on record on this aspect. Why difference is shown in these two meters maintained, supervised and controlled by respondents, installed outside the premises of petitioners, also could not be explained. In fact during the course of arguments when respondents faced with this query, S.E., Sri K.K. Singhal took a stand that in all the four meters some external device might have been installed in collusion with departmental authorities which prevented correct recording of consumption in all the four meters and such device may have been removed sometimes on and after 22.06.2007, as a result whereof such device could not be found by checking team on 30.06.2007.
177. A new factual plea that too without any foundation ought not be allowed. Giving some benefit to respondents so that an unscrupulous person committing theft of electrical energy may not be benefited by technicalities of law, I required and enquired from the said official as to how and in what manner such an attempt could be made with digital computerised meters manufactured to work with a pre-set programme, he clearly expressed his ignorance and say that it is not possible to tell as to how it could be done. He also could not tell whether the team made any attempt or could find existence of any other material showing deployment of such an alleged artificial means in the computerised meter and removal. He did not reply to this question also.
178. In fact, such deficiency/serious shortcoming or lapse was realized by Sri K.K. Singhal, S.E. when he tried to explain the manner in which, according to him, there was an unauthorised use of electricity at the petitioner's premises and thereafter he took a totally different stand by making a statement that all the four meters were tampered by using some kind of device and that is how the consumer had been committing theft of electricity. For the moment, this Court may proceed to believe his stand provided it is taken to its logical end by the authorities concerned. When asked as to how and in what manner the three meters installed outside the petitioner's premises, namely, SS Meter 'A' and 'B', DP Meter 'C' were tampered, Sri Singhal, SE replied that he is not aware of that. He, however, sought to rely on a letter dated 5.7.2007 filed as Annexure CA-4 alongwith counter affidavit of PVVNL in the earlier writ petition no. 4487 of 2010. This is report of Sri Rakesh Mohan, E.E., Test Division Bijnor. It shows that the meter installed at the petitioner's premises was not capable of any information having converted into ash. It however, compares two other meters namely, DP Meter 'C' and SS Meter 'B'. The DP Meter 'C' was installed on 15.7.2006 vide sealing report of the same date but for SS Meter 'B' it simply mentions meter number but no sealing certificate. The report shows that KVAh in the preceding one year i.e., from July 2006 to May 2007 in all the three Meters i.e., Billing Meter 'D', DP Meter 'C' and SS Meter 'B' is comparable and virtually there is no substantial difference. With respect to June 2007, report shows that SS Meter 'B' and DP Meter 'C' show daily KVAh consumption as 14398 while consumer's Meter shows 12463. The meter reading of the petitioner's meter was taken on 21.6.2007. The report further says that local survey for June 2007 with respect to DP Meter 'C' and SS Meter 'B' has remained comparable. The EE drawn his inference as under:
^^fu"d"kZ%& ¼I½ mijksDr ls Li"V gS fd miHkksDrk }kjk viuk ehVj fdlh xyr mn~ns'; ls gh tyk;k x;kA ¼II½ ekg [email protected] esa tks miHkksDrk ds ehVj rFkk vkÅVMksj ehVfjax @ lc LVs'ku ehVj ls 15 izfr'kr rd dk vUrj jgk mldk ,lslesUV fd;k tk; rFkk iqjkus le; dky ds fy, Revised Distribution Code ds vuqlkj dk;Zokgh dh tk;A D;ksafd iw.kZ dk;Z izcU/k funs'kd }kjk xfBr Vhe }kjk ns[kk tk jgk gS blfy, bl miHkksDrk ds iqjkus [email protected] ls iwoZ dksbZ ,lslesUV fn;k tk; ;k ugha bldk fu.kZ; bl xfBr Vhe }kjk fd;k tk;sA ¼III½ D;ksafd ;g izdj.k iwjh rjg ls izcU/k funs'kd egksn; }kjk fu;qDr Vhe }kjk ns[kk tk jgk gS blfy, bl miHkksDrk ls lEcaf/kr vkÅVMksj ehVfjax rFkk lcLVs'ku ehVfjax dks bl Vhe ds le{k psd fd;k tk;sA**
179. From this report it is also evident that EE (Test) after analysis of MRI reports of two Meters installed outside the petitioner's premises did not arrive at the conclusion that the consumer was using electricity unauthorisedly. The enclosures to this report explain difference of load for the month of June 2007 and reason thereof. The consumption analysis data appended to the counter affidavit shows that for the month of June 2007 the number of days for which reading was taken was 21 in respect to the Billing Meter 'D' while in the DP Meter 'C' and SS Meter 'B' it was for 28 days. Difference of number of days is evident from the said report as may be demonstrated hereunder:
Month Billing Meter 'D' DP Meter 'C' SS Meter 'B' June 2007 21 28 28 May 2007 31 31 28 April 2007 30 30 26 March 2007 31 31 30 February 2007 28 28 28 January 2007 31 31 30 December 2006 31 31 29 November 2006 30 30 29 October 2006 31 31 30 September 2006 30 30 29 August 2006 31 31 29 July 2006 31 17 29
180. The average consumption, therefore for the month of June 2007 being of different period, it cannot be said that there was a marked difference which would have justified an inference otherwise in the meter.
181. The Assessing Officer thus in my view, opted for a short cut by issuing a provisional assessment order without discussing anything to show how he could arrive at the inference that petitioner is guilty of "unauthorized use of electricity" or "theft" and in an evasive manner simply recorded his conclusion and proceeded to make provisional assessment.
182. The petitioner submitted a detailed reply whereafter the final assessment was made on 27.7.2007. Para 8.1 says that the Assessing Officer, if finds that the case of theft of electrical energy is established, shall proceed to make final assessment. In the entire order making final assessment, the Court tried to search out any discussion by the Assessing Officer to establish the case of 'theft' against petitioner but all efforts gone in vain. To be fair enough to the Court, even the learned Senior Counsel Sri Shashi Nandan could not resist but said that the Engineers proceed in a strange manner. The entire order nowhere shows any attempt on the part of Assessing Officer to follow and observe the requirement of Statute that the case of theft of electrical energy has to bee "established".
183. Para 8.1 (b) (iv) clearly says: "if after hearing, the Authorized Person finds that a case of theft has been established, the assessment shall be done...". Such an attempt to establish the case is totally missing in the final order of assessment. The Assessing Officer, I have no hesitation to hold, had no jurisdiction at all to proceed to make assessment unless he establishes a case of theft against the person concerned. In the order of final assessment, without there being even a whisper towards establishing the case of theft, the Executive Engineer straightaway has proceeded to make assessment as if his mere act of issuance of provisional assessment order was sufficient to establish the case of theft. In issuing provisional assessment order as well as final assessment order, the Assessing Officer clearly violated and disobeyed in its entirety requirements of Statute under para 8.1 (b) (i) (ii) (iii) and (iv). The law also requires an opportunity of oral hearing to the consumer but in the case in hand, admittedly no such opportunity was given to the petitioner since no date was communicated to him when he was called upon to attend the office of Assessing Officer to answer the charges against him in person, i.e. oral hearing.
184. Then I straightway come to the appellate order impugned in this writ petition. The appellate authority has also proceeded in a strange manner. The Court can understand the plight of the appellate authority in this matter since it is the Divisional Commissioner, Moradabad who appears to have found some difficulty in appreciating technical details of the matter. On page 171 of paper book, the appellate authority though admitted that S.E. marked petitioner's letter to E.E. but then says that it is not clear whether the letter reached E.E. and Sub-Station. This fact ought to have been ascertained from the respondent-Corporation since information to the Superintending Engineer as also his marking on the letter addressed to Executive Engineer were well established. Therefore, rest was the responsibility of respondents and the petitioner could not have been held guilty. The inference drawn by Commissioner that in absence of any material to show clearly whether the letter marked by S.E. reached E.E. and Sub-Station or not, it should be held that no such information was available to Sub-Station is perverse.
185. He (the appellate authority) further says that consumption of Electricity has been shown from 22.6.2007 to 27.6.2007. In a matter of supply of electricity to heavy industries receiving high tension line even if meter develops some defect, this by itself will not cause any interruption in supply of electricity to the consumer. The system is that the consumer receives electricity at high tension namely 11 KV and 33 KV. In the present case, it was 11 KV. Just before the transformer at the petitioner's premises, where it stepped down voltage from 11 KV to 440 for the purpose of actual use in his separate premises, drawing a small amount of electricity, which is measured in the meter at consumer's premises and ratio by which it is reduced multiplied to the reading to find out the actual consumption, If cable carrying electricity to the meter or metering system develop some smell, it will not interrupt high tension electricity supply going to petitioner's transformer at his premises. Therefore, even if consumption has been shown upto 27.6.2007, it does not make any difference. It is only when the supply feeder fail for one or the other reason, the supply would be interrupted and not otherwise.
186. The appellate authority further says that Checking Team recorded a finding that meter was tampered consumer's premises. This is also perverse and misreading of inspection report dated 30.6.2007. There is no such finding that meter was tampered. The finding is only that the meter cubical has got burnt due to wilful act of the petitioner but the meter having been found in the condition of ash, Checking Team did not record any finding or conclusion that it was tampered. The finding recorded by appellate authority on page 172 that Checking Team recorded a finding that meter was tampered is clearly perverse and misreading.
187. So far as the inference drawn by Checking Team about violation of Section 138 (d) is concerned, since the respondents have not proceeded in this case under the said provision, I have no occasion to make any comment except observing that for contravention of Section 138(d), assessment under Section 126 or in para 8.1 is not permissible.
188. The appellate authority thereafter has observed that there is an increase in consumption which must have been owing to the reason that there was a checking on 22.6.2007 in District Bijnor by Electricity Department and, therefore, increase in consumption at petitioner's premises has been reflected. Sri Shashi Nandan, learned Senior Advocate refers to Annexure-33 to the writ petition which is a chart of cooperative readings of four meters to show that after burning of billing meter 'D', consumption recorded in remaining three meters show remarkable increase from 22.06.2007 to 27.06.2007 comparing to average daily consumption before 22.06.2007. He submits that though not specifically mentioned in appellate order but this justifies the inference drawn by appellate authority about theft of electrical energy. The petitioner explained the reason for such increase by stating in para 69 of the writ petition that they had started a boiler on 22.6.2007 which resulted in higher consumption and this fact was not contradicted by respondents at any stage by making inspection of the premises at any point of time or otherwise disputed. Sri Rai pointed out that in earlier writ petition also these facts were disputed by the petitioners. The respondents have replied para 69 of writ petition in para 30 of the counter affidavit by a general denied. Respondents further say in para 30 that the learned Commissioner has considered all the aspects from the record but Sri Shashi Nandan, learned counsel for respondents in the impugned order could not point out any discussion on this aspect. The appellate authority has failed to consider this aspect of the matter and, therefore, increase in consumption from 22.6.2007 to 27.6.2007 by itself is of no consequence. The factum that at other places some checking was made is only presumptive. So far as the petitioner is concerned, the appellate authority has referred to respondents' reply that no reason for increase was given by the petitioner though this fact is not correct.
189. The appellate authority thereafter has accepted that from 21.4.2007 to 21.6.2007 all the three meters outside the petitioner's premises and billing Meter 'D' have similar average consumption but thereafter he has simply repeated the matter of increase of consumption from 22.6.2007 and onwards and has assumed that there must have been some theft of electric energy at petitioner's premises in past. The appellate authority has not said anything about three meters installed outside the premises of the petitioner. It is not his case that there was anything wrong like manipulation, tampering or otherwise in three meters. It is also admitted position that all three meters installed outside premises of the petitioner were never put to checking/testing by the competent testing authority in accordance with the procedure prescribed in statute. If there was nothing wrong with the remaining three meters, the consumption shown therein was comparable with the consumption shown in the Billing Meters installed at petitioner's premises and thereafter for almost entire period of assessment i.e., 21.4.2007 to 21.6.2007, the next date when the consumer's meter has burnt there is no occasion to infer that this is theft of electrical energy at petitioner's premises. If all three meters have recorded higher energy, then there cannot be any allegation or even a situation on the part of respondents including the Assessing Officer and the appellate authority that the three meters installed outside the petitioner's premises were touched by anyone affecting recording of consumption therein. No such report has ever been given by any authority. At least none has been shown to the Court. No report was lodged alleging tampering with meters installed outside the premises of petitioner.
190. It is admitted that three meters outside the premises of petitioner are maintained under the seal and custody of official of the respondent-Corporation. In absence of any difference in the reading pattern of these three meters vis a vis petitioner's Billing Meter 'D' upto 22.6.2007, i.e. the time when it was burnt, I put a question to the respondent's counsel in this behalf but he could not give any reply whatsoever as to how and in what manner it can be inferred that the petitioner had made any tampering with the meters so as not to allow them to record correct consumption and, thereby making theft of electrical energy. Even if the petitioner would have billed as per the reading shown by the three meters installed outside the premises of petitioners, there would not have been any difference vis a vis the bills raised to the petitioner on the basis of Billing Meter 'D' which was allegedly burnt on 22.6.2007.
191. In fact, when during the course of argument this discrepancy and serious flaw was noticed by the official of the respondents present in the Court, on the pretext of explaining technical aspect of the matter, Sri K.K. Singhal, SE came forward with a new case that all the four meters were manipulated and tampered by using some device and that is part of theft of electrical energy committed by the petitioner. The Court then put a specific and categorical query to him in what manner and by which sort of device a controlled tampering can be done in a computerized meter functioning under an especially designed programme/software. The officer concerned did not reply at all. It is evident that in the zeal of supporting the case of respondents, he went to the extent of making out a new case which was never the case of respondents at any point of time. What he tried to suggest is that difference in three meters installed outside the premises of petitioner at the same point of time indicates that there was something wrong with those meters also. If that be so, it was incumbent upon the respondents first to get these meters checked in testing laboratory to find out reasons for such difference. One of such reasons, I could understand, also confronted the respondent official, that it may be the difference of time when reading was taken in different meters to which they could not dispute.
192. Final assessment has been made for the period from 24.4.2007 to 27.6.2007. The appellate authority has compared the readings of four meters on 25.4.2007, 20,6.2007 and 12.6.2006 which reads as under:
Date SS meter 'A' SS meter 'B' DP meter 'C' Billing Meter 'D' 25.04.2007 15474 11222 15888 15360 20.06.2007 15216 15072 15156 17147 21.06.2007 9564 8522 9855 8360
193. The aforesaid reading actually shows the consumption of electricity on that date. The total consumption in the Billing Meter 'D' in the respective period is obviously more than what is shown in the remaining three meters. Even in the two meters installed at the Sub-Station simultaneously and in series, there is much difference in the reading. This could not be explained by the respondents despite repeated query. In fact, Sri Krishan Pal, Executive Engineer (Test) stated that these two meters should not have disclosed any difference in the meter reading if taken on the same date and on the same time. He could not rule out possibility of some defect either in the reading or in the metering system installed at the Sub-Station, but refrained from making any positive statement. This Court, therefore, has no option but to infer that the meters installed at the Sub-Station were maintained by the respondents in a casual fashion and no attempt was made to make the system foolproof so as to avoid any mischief either on the part of the consumer or by any Officer of the respondents. Since no complaint, no action and no report in case respondents suspected any attempt of allowing theft of electrical energy by their staff was made by them by lodging a report with Police to this effect, the action of respondents would have to be considered in circumstance going in favour of petitioner that despite of lacking any appropriate evidence, respondents have tried to make assessment just for the reason that an inspection was made and the higher authorities may have doubted some mischief at the consumer's premises. Unfortunately, whatever has been placed before the Court, it has not taken the case of respondents above a bare suspicion.
194. The incidental question as to whether any meter other than the meter installed at consumer's premises can be a basis for raising a bill, whether of consumption or assessment, I straightway answer it by stating that the respondents did not place any provision under which such meter not installed at consumer's premises could have been relied for the purpose of consumption bill or assessment. In absence of any specific provision, the answer would have to be against the respondents. But when a pure legal question is raised, all possible situations have to be visualized. We all know that law does not require compliance of something which is impossible. Like the present one, there may be a case where before taking meter reading, the entire meter gets burnt in a manner that reading becomes impossible. Another similar situation may arise if the meter itself is stolen. Such a situation, though very rare, but the experience of the Court has shown happening of such incidents in the State of U.P. If consumer's meter is incapable of providing any reading whatsoever for the purpose of billing etc. that would not mean that any bill can not be raised. To some extent, Code 2005 provides an answer that consumption pattern in the past and in particular for the similar period may be taken for raising regular bill. It may be one of the way applicable to general consumers but where an industrial consumer is receiving energy through an independent feeder and one or more meters have been installed by the Supplier as a check and balance to prevent any pilferage etc. in the given circumstances such meters, in my view, can be resorted for the purpose of billing etc. provided these meters are maintained in a reliable and authentic manner taking into confidence the consumer also. My view, as above, is a kind of exception in order to meet the situations like above otherwise any different view may cause a impossible situation for the Supplier to raise a bill in any of the contingencies like discussed above. This view find support from the principle like "Lex Non Cogit ad impossibilia", "Impotentia Excusat Legim" and "nenon Tenatur ad impossibilia". I am not discussing these three principles in detail here but simply refer Division Bench judgment of this Court (wherein I was also a Member) in Inter College Kusmaul, Gorakhpur and another Vs. State of U.P. and others 2006 (5) AWC 4436 where this aspect has been dealt in detail and I simply follow the exposition of law laid down therein.
195. Be that as it may, I have no hesitation in holding that a case of theft of electrical energy cannot be made out on mere presumption. It has to be established as per para 8.1 (b)(iv). I can appreciate the gesture and attitude of the respondents explaining the matter before this Court to support their case since it may be on account of an extra zeal to get a favourable order or to support the case of the respondents and to show loyalty to the employer. It may be a sheer partisan anxiety and not deliberate, therefore, I have not taken the statement of Sri K. K. Singhal, SE made before this Court, as making out a new case to mislead the Court, but to my mind, in absence of any material and facts that it was never a case taken earlier, I find it difficult to uphold the impugned orders on such premise particularly when even this premise could not be established and explained by the said Officer.
196. This Court while setting aside the earlier appellate order directed the Commissioner to apply his own mind to judge correctness of the assessment order but it appears that the appellate authority neither went through the relevant provisions nor could understand the entire matter in its correct perspective and has decided the appeal in a shallow and superficial manner. When an order imposing high financial liability by way of revenue assessment is to be passed and that too by levelling a stigma on the persons concerned, it is incumbent upon the concerned officer always to make an in-depth study of the matter and appreciate things in a more serious way and that too, after holding a proper study of relevant provisions. If the appellate authority would have read para 8.1 laying down procedure for assessment and the assessment order in its right perspective, the same could not have been upheld being a wholly unreasoned and non-speaking order and also not in conformity with the relevant provisions.
197. In the result, the writ petition is allowed. The impugned order dated 11.10.2010 passed by Commissioner, Moradabad Division Moradabad in Appeal no. 22/2009-2010 (Annexure 29 to the writ petition) and assessment order dated 27.02.2007 are hereby quashed. The electricity connection of the petitioner, if not already reconnected, shall be connected forthwith and in any case, within 48 hours from the date of production of a certified copy of this order. The amount towards impugned assessment orders deposited by the petitioner with the respondents shall be refunded to the petitioner alongwith interest which I quantify to 8% p.a.
198. However, this order shall not preclude respondents from taking such action against the petitioner as permissible in law under relevant provisions.
199. The petitioner shall also be entitled to cost which I quantify to Rs. 25,000/-.
Dt: 14.10.2011 PS/Akn