1. This petition is directed against the order passed by the Appellate Committee of the Gujarat Electricity Board in Appeal No.A-128 of 1999 and seeks a direction to the respondent Board to refund the amount which came to be realized by the respondent from the petitioner by raising supplementary bill on the basis of the impugned decision along with interest accrued thereon @ 24% per annum. The petitioner also challenges a communication dated 18th July, 2002 issued by the respondent calculating the amount payable by the petitioner at Rs.15,98,027=39 paise and calling upon the petitioner to pay the short-fall of Rs.9,27,341=21 paise within a period of one month from the date of issue of the bill.
2. The petitioner is a Company duly registered under the Companies Act, 1956 and deals in processing of fabrics at Ankleshwar. The officials of the Gujarat Electricity Board visited the factory premises of the petitioner on 4th May, 1999 for the purpose of ascertaining as to whether the meter installed by the Board at the said premises for recording the consumption of electricity is in proper condition and as to whether the said meter is recording the correct consumption of electricity commensurate with the actual usage of electricity by the petitioner at its factory premises. The officials, at the time of the visit, noticed that there was a hole in the lower portion of the inner body of the electric meter. Accordingly, a report came to be prepared by the officials and a tentative conclusion was reached that the hole which was noticed in the inner body of the meter, was meant for tampering with the meter with a view to commit theft of electrical energy and that the petitioner was, therefore, required to be charged for committing theft of electrical energy to the tune of Rs.39,58,128.06 ps. Pursuant to the said visit, the petitioner came to be served with a supplementary bill dated 5th May, 1999 demanding an amount of Rs.39,58,128.06 paise and calling upon the petitioner to make payment of the same for restoration of the electricity supply which had been disconnected forthwith on 4th May, 1999. Upon receipt of the said communication, the petitioner made a representation to the Chief Engineer (District) of the Board, inter alia, pleading that the allegation of theft of energy levelled against the petitioner was devoid of substance and that the petitioner could not be called upon to make payment of the above amount. On the said representation, the Chief Engineer passed an order dated 8th June, 1999, inter alia, conveying to the petitioner that upon payment of 15% of the amount mentioned in the supplementary bill, the supply of electricity would be restored at the factory premises with a further condition that the petitioner would be required to make further payment of 10% of the amount of supplementary bill within a period of one month therefrom and the petitioner would also be required to move the Appellate Committee of the Board for the purpose of ventilating its grievance in respect of the supplementary bill. Such supplementary bill was issued on the basis of MxII formula as provided by Condition No.34(2) of Conditions of Supply of Electric Energy for the alleged dishonest abstraction of electric energy. It appears that pursuant to the aforesaid investigation made on 4th May, 1999, a first information report alleging commission of the offence under section 39 of the Indian Electricity Act, 1910 came to be lodged against the Directors of the petitioner company. Pursuant to the above communication issued by the Chief Engineer, the petitioner deposited a sum of Rs.9,89,532/- being 25% of the amount demanded under the supplementary bill and also preferred an appeal before the Appellate Committee of the Board. By the impugned order, the Board held that it was true that the MMB seal was found in order both at the time of checking and during laboratory inspection. This MMB seal was applied on 23.4.99. Therefore, there was no opportunity for the petitioner to tamper with the meter mechanism and dishonestly abstract energy from 23.4.99. From this, it appears that whatever tampering of meter mechanism was done was prior to 23.4.99. The Board was, accordingly, of the opinion that from 23.4.99 to the date of checking there was no tampering and no dishonest abstraction of electric energy, therefore, these days shall have to be excluded from the chargeable days. The chargeable days would, therefore, be 144 between the period 1.12.98 to 23.4.99. Giving the benefit of weekly staggering days the Board came to the conclusion that the net chargeable days would come to 122 days. The Board also revised the shift factor to 0.42 and directed the second respondent to revise the bill accordingly. Pursuant to the above order, the respondent Board issued a communication dated 19th January, 2000 conveying that pursuant to the decision of the Appellate Committee, the supplementary bill issued earlier was required to be reduced by a sum of Rs.6,70,686/- and as the petitioner has already deposited a sum of Rs.9,89,532/- at the rate of 25% of the earlier supplementary bill, a sum of Rs.3,18,845=82 paise is required to be refunded to the petitioner which would be adjusted in the ensuing bill. The said amount of Rs.3,18,845=82 paise came to be adjusted in the bill dated 29th January, 2000. Being partly aggrieved by the decision of the Appellate Committee, the petitioner has filed the present petition seeking the reliefs noted hereinabove.
3. Mr. Dhaval Dave, Senior Advocate, learned counsel for the petitioner drew the attention of the court to the panchnama made by the officials of the Board when they visited the premises of the petitioner on 4th May, 1999, to submit that the hole which was found by the concerned officials was in the inner body of the meter which was covered by an outer body which was secured by seals affixed by the officials of the respondent Board. On the date of checking, the MMB seal on the outer body of the meter was found to be intact. Under the circumstances, there was no opportunity for the petitioner to make any hole in the inner body of the meter. Referring to the findings recorded by the Appellate Committee, it was pointed out that the Committee had accepted that the MMB seal was found in order both at the time of checking and during laboratory inspection. It was submitted that the Appellate Committee had noted that the MMB seal was applied on 23rd April, 1999, therefore, there was no opportunity for the petitioner to tamper with the meter mechanism and dishonestly extract electric energy from 23rd April, 1999 and had, therefore, granted relief to the petitioner for the period from 23rd April, 1999 till the date of checking. It was urged that prior to 23rd April, 1999 on each month, inspections had been carried out by the officials of the Board and on none of the occasions were the MMB seals found to have been tampered with. Therefore, the findings recorded by the Appellate Committee would also be applicable to the period prior thereto.
3.1 Referring to the averments made in the petition and more particularly ground (A) thereof, it was pointed out that it was the categorical case of the petitioner that the seal on the outer body of the meter was checked and verified by the concerned high ranking officials of the Board prior to the visit on 4th May, 1999, in all, six occasions, being 23rd November, 1998, 21st December, 1998, 23rd January, 1999, 23rd February, 1999, 24th March, 1999 and 23rd April, 1999. If any abnormality was found in the seal of the outer body of the meter, the official of the Board was required to make entry in this regard in the relevant document known as “G-7 Card” and to precipitate the matter further for the purpose of appropriate investigation with regard to such abnormality in the seal on the outer body of the concerned meter. It was submitted that in the facts of the present case, admittedly, at no point of time on any of the aforesaid six occasions when the seal on the outer body of the concerned meter was checked and verified by the concerned high ranking official of the respondent Board, any adverse entry came to be effected in the G-7 card, suggesting, even remotely, that the seal was either tampered with or was attempted to be tampered with by any person, including the present petitioner. Such contention was pressed before the Appellate Committee; however, the Appellate Committee has restricted the relief granted in favour of the petitioner with effect from 23rd April, 1999 alone without considering the position in respect of the earlier period. It was submitted that when the Appellate Committee had, on the basis of the fact that on 23rd April, 1999 the seals were intact had exonerated the petitioner from the charge of commission of theft of electrical energy for the period from 23rd April, 1999 to 4th May, 1999, it was not justified in not applying the same logic to the earlier period. It was submitted that the Appellate Committee ought not to have ignored the inspection reports of the seals of the outer body of the meter which preceded the inspection of 23rd April, 1999, particularly when the record with reference to the same evidently indicated that there was no tampering of the seal of the outer body. The decision of the Appellate Committee, therefore, fails to satisfy the test on the yardstick of a reasonable man's prudence and, therefore, such a decision suffers from the vice of Wednesbury's irrationality, warranting interference by this court.
3.2 Next, it was contended that assuming without admitting that it was possible for the petitioner to open the outer body of the meter for the purpose of creating the hole which is alleged to have been found in the inner body of the meter, even in such case, considering the position of the inner body of the meter vis-à-vis the outer body, it would be practically impossible for the petitioner to make such a hole. It was submitted that the distance between the outer body and the inner body of the meter is in the vicinity of eight inches. Therefore, the space is much less than that required for using a drilling machine for creating a small hole with perfection. It was urged that even if the existence of the hole is accepted, considering the distance of the narrow margin between the inner body of the concerned meter, where the said hole is allegedly found, and the outer body thereof, it would be practically impossible on the part of the petitioner to insert a wire, with a view to seeing that the rotating disc of the concerned meter is stopped and consequently the actual consumption of electric energy is not recorded. Therefore, the conclusion that the alleged hole had been made by the petitioner for inserting a thin wire with a view to causing stoppage of the rotating disc of the meter is absolutely irrational.
3.3 The next submission advanced by the learned counsel for the petitioner was that the investigation carried out by the concerned laboratory with reference to the meter reveals that scratches were found on almost all parts of the concerned meter. According to the learned counsel, it was absolutely impossible to cause scratches on the parts of the meter indicated in the said report on account of insertion of a thin wire in the alleged hole. Under the circumstances, the existence of scratches cannot be attributed to the petitioner. It was, accordingly, submitted that the Appellate Committee having come to the conclusion that it was not possible for the petitioner to tamper with the meter for the period from 23rd April, 1999 to 4th May, 1999, the Committee was not justified in sustaining the demand for the remaining period of six months.
3.4 The learned counsel for the petitioner further invited the attention of the court to the judgement dated 2nd May, 2009, passed by the learned Second Additional Judicial Magistrate First Class, Ankleshwar in Criminal Case No.1864 of 2000 which arose out of the first information report lodged by the Board against the petitioner for commission of the offence under section 39 of the Act. Referring to the statements of the witnesses as recorded in the said judgment, it was pointed out that the officials of the respondent Board in their cross- examination had accepted that as the MMB Seal on the outer body of the meter was intact, there was no possibility of theft. It was pointed out that one of the officials of the Board had categorically stated in his cross-examination that when they had gone for checking, the MMB seals on the body of the meter were intact and were not tampered with. It was pointed out that the trial court upon appreciation of the evidence on record, has acquitted the petitioner from the charge under section 39 of the Act.
4. Vehemently opposing the petition, Ms. Rohini Acharya, learned counsel for the respondent – Board (now Dakshin Gujarat Vij Company Ltd.) drew the attention of the court to the inspection report made by the officials of the Board for pointing out that it was found that there was a hole on the inner body of the meter which was not a welding spot, but was a hole which could have been created only by using a drill. It was submitted that existence of such a hole was shown to the representative of the consumer. Referring to the findings recorded by the Appellate Committee, it was pointed out that the Committee upon appreciation of the material on record, has found that the hole was purposely created on the meter body below the rotating disc of the KWH part of the meter so that a thin wire could be inserted through the hole and the rotation of the disc could be disturbed so that the actual consumption of electric energy may not be fully recorded in the meter. It was pointed out that the Board, to the extent it was convinced by the submissions advanced on behalf of the petitioner, had granted relief. Since it had been contended on behalf of the petitioner that the rotating disc in the meter was not continuously disturbed, the Appellate Committee had considered the same to be a relevant factor for deciding the quantum of damages. Similarly, the Appellate Committee had found that the consumption pattern showed that the dishonest abstraction of electrical energy was not to the extent stated in the special bill, but to a lesser extent and such factor was taken into consideration while deciding the quantum of damages. As regards the MMB seals having been found to be intact on the date of the inspection and the grant of relief for the period prior to 23rd April, 1999, it was submitted that the Appellate Committee has adopted a very reasonable approach and has granted the relief to the petitioner to the extent that it was convinced that there was tampering. However, the fact remains that a hole had been made on the lower part of the inner body of the meter. It was submitted that in case there is any evidence as regards existence of any artificial means of abstracting electrical energy, the same would be a prima facie evidence of such dishonest abstraction. In the facts of the present case, the officials of the Board have found a hole at the bottom of the inner meter wherein a thin wire could be inserted for the purpose of stopping the rotating disc of the meter, thereby, recording lower consumption of the electrical energy. It was, therefore, for the petitioner to explain as to how the said hole came into existence. However, though the hole had been found by the officials of the Board as well as by the Appellate Committee to be an artificial means for abstraction of electrical energy, the petitioner has not explained the same. Under the circumstances, the Appellate Committee was wholly justified in holding that the petitioner was liable to pay the additional charges for consumption of electric energy dishonestly abstracted by it for the period prior to 23rd April, 1999. It was submitted that the Appellate Committee upon appreciation of the material on record, has recorded findings of fact to the effect that a hole had been created on the body of the inner meter from which a wire could be inserted for the purpose of stopping the rotating disc so that the consumption of electrical energy would not be recorded. It was also found that such hole was not a welding spot as contended by the petitioner, but was a drill hole which could have been done only with the aid of a drilling machine. The petitioner not having been able to explain as to how the hole came into existence, the Appellate Committee was justified in sustaining the demand of electricity charges from the petitioner to the extent upheld by it. It was, accordingly, urged that the petition being devoid of merit, deserves to be dismissed.
5. The sole issue that arises for consideration in the light of the facts and submissions noted hereinabove is as to whether the Appellate Committee of the Board was justified in upholding the demand of electricity charges for the period from 01.12.1998 to 23.4.1999. The undisputed facts are that during the course of visit by the officials of the respondent Board on 4th May, 1999, it was found that the MMB seals affixed on the outer body of the electric meter were intact. However, there was a hole on the lower part of the inner meter. The petitioner has contended that prior to the visit on 4th May, 1999, there were monthly visits by high ranking officials of the respondent Board on six occasions as noted hereinabove, and on none of these occasions the MMB seals have been found to have been tampered. In response to such contention, the case of the respondent in its affidavit in-reply is that every month, for taking readings of the meter, the body of the meter box is opened by the meter reader and that the contention that the meter was checked and verified by the officials of the Board is not correct. It is submitted that the meter reader, for taking the monthly reading, has to open the meter box and get the reading of the consumption of the electrical energy recorded. The meter reader is not a technical expert to check the meter, but his job is to get the readings of the meter to enable the respondents to generate monthly electricity bills. However, except for making a bare statement that it was the meter reader who had visited the premises of the petitioner on the above mentioned dates, no supporting documents have been placed on record to indicate the days on which the meter reader visited the premises of the petitioner and the readings taken by him on those occasions and the entries made by him in this regard.
6. At this juncture, it may be germane to refer to certain provisions of the Conditions and Miscellaneous Charges for Supply of Electrical Energy framed by the Gujarat Electricity Board. Condition No.33 is comprised of two parts, namely (A) malpractice and (B) theft of energy. The present case would fall under the second part, namely, theft of energy. Condition No.33 (B) lays down that any consumer who dishonestly abstracts, consumes or uses any energy shall be deemed to have committed theft within the meaning of the Indian Penal Code and the existence of artificial means for such abstraction shall be prima facie evidence for such dishonest abstraction. Condition No.34 bears the heading “Payment for energy dishonestly used or abstracted or maliciously wasted or diverted”, and provides that where it is established to the satisfaction of the Board’s officer that a consumer has dishonestly abstracted, used, consumed or maliciously caused energy to be wasted, or diverted, the value of the electrical energy thus abstracted, used, consumed, wasted or diverted shall be assessed by such officer for the period and in the manner specified therein and the value of energy so assessed shall be collected by including the same in the next bill or by a separate bill. The value of the electricity energy so assessed to have been abstracted, used etc. shall be subject to review by the Appellate Authority on the representation/appeal being filed by the consumer. The manner of assessment of energy dishonestly used or abstracted etc. is also laid down under Condition No.34. The said condition also provides for the period of such assessment and says that the assessment of energy under Clause 34 shall apply on the following basis:
“1. Past six months from the date of detection, (for seasonal industries – six working months, excluding off season period declared by the consumer); or
2. Actual period from the date of commencement of supply upto the date of detection; or
3. Actual period from the date of replacement of component of metering system in which evidence is detected within six months from the date of detection and upto the date of detection; or
4. The actual period from the date of the previous Installation Checking (and resulted into supplementary bill) under provisions of this clause within six months period of the date of the detection under consideration and upto the date of detection.”
7. From the provision as regards the period of assessment, it is apparent that the same envisages assessment of energy for the past six months from the date of detection. Accordingly, the supplementary bill came to be issued for the past six months from 4th May, 1999, that is, the date of detection of the dishonest abstraction.
8. The facts of the case are required to be examined in the light of the above provisions. The Appellate Committee upon appreciation of the material on record, has found, as a matter of fact that on the date when the inspection was made, the MMB seal on the outer body of the meter was intact and was, accordingly, of the view that if the MMB seal on the outer body of the meter was intact, it was not possible for the petitioner to have dishonestly abstracted electrical energy. Thus, on the said date, no theft of energy can be said to have been detected as even according to the Appellate Committee, it was not possible to commit theft when the MMB seal on the outer body of the meter was intact. It has been contended on behalf of the petitioner that prior to the inspection in question, monthly inspections were carried out by the officials of the Board and at no point of time, were the MMB seals found to have been tampered. On behalf of the respondent Board, it has been submitted that it was not the officials of the Board who had visited the premises of the petitioner but a meter reader, who is not an expert, had visited the premises of the petitioner on a monthly basis for recording the meter readings. However, in support of its case the respondent has not produced any material on record. Even the G-7 Card which would record the position of the meter has not been produced on record, nor have the contents thereof been disclosed. The Appellate Committee has on the basis of the inspection report dated 4th May, 1999 accepted that at the time of checking and during laboratory inspection the MMB seal was intact, and as such it was not possible to commit theft of energy. This seal was applied on 23.4.1999. The Appellate Committee has, accordingly, come to the conclusion that the period between 23.4.99 till the date of checking cannot be taken into consideration while computing the extent of electricity abstracted dishonestly. Significantly, it may be noted that for the period prior to 23.4.99 also, no material appears to have been brought on record to indicate that the MMB seal applied on the outer body of the meter was ever tampered with. Despite there being monthly visits either by the officials of the Board as contended by the petitioner or by the meter reader as contended by the respondent Board, no material has been brought on record to indicate that at any point of time during the monthly visits, the MMB seal had been tampered with. Under the circumstances, the reasoning adopted by the Appellate Committee that if the MMB seal on the outer body of the meter is intact, it is not possible to dishonestly abstract electrical energy would also be applicable to the period prior to 23.4.99.
9. It is an admitted position that though during the prior period to the date of the inspection, on six occasions there were visits by the officials of the Board/meter reader, no abnormality had been reported in respect of the MMB seal on the outer body of the meter in question. According to the petitioner in case any abnormality had been found, the same would have been entered in the G-7 Card pursuant to which appropriate investigation would have been carried out with regard to the abnormality in the said seal. It may be pertinent to note that despite the fact that a specific averment has been made in this regard in the memorandum of the petition, on behalf of the Board neither have the contents of the G-7 Card been disclosed, nor has it been stated as to on which dates the meter reader had visited the premises of the petitioner for the purpose of meter reading. Under the circumstances, the contention of the petitioner that on six occasions prior to 4th May, 1999, the officials of the Board had visited the premises of the petitioner and checked the meter but had not found any abnormality in the MMB seal applied on the outer body of the meter, stands uncontroverted.
10. As noted earlier, upon finding that on the date of the inspection the MMB seal was not found to have been tampered, the Appellate Committee thought it fit not to recover charges for dishonest abstraction of electrical energy for the period during which the seals were found to be intact. Such reasoning adopted by the Board would also apply qua the earlier period when visits were made by the officials of the Board/meter reader at the premises of the petitioner and no abnormality had been found.
11. Besides, Clause 34 of the Conditions envisages recovery of charges of illegal abstraction for a period of six months from the date of detection of such theft. Thus, the clause envisages two termini: the starting point being the date of detection and the end being a period of six months prior thereto. On a plain reading of the said provision, it is thus apparent that for the purpose of computing charges to be recovered in respect of illegal abstraction, one had to go backwards upto six months from the date of detection of the theft. In the facts of the present case, insofar as the date of detection is concerned, the Appellate Committee has found that there was no illegal abstraction. Accordingly, though the committee has taken the date of detection to be the starting point for the purpose of computing the six month period, the same has not been taken to be the starting point for computing the charges to be recovered, which is not the intention of the rule making body. If on the date of detection, there is no theft, there is no starting point, namely the first termini is missing, in the absence of which the period of six months cannot be computed. To put it differently, when according to the Appellate Committee, on the date of the inspection itself there was no theft of electrical energy, clause 34 cannot be operated inasmuch as the opening termini, namely the starting point for computing the period of six months for recovery of electricity charges for illegal abstraction of electrical energy is missing. In the absence of any starting point, one cannot go backwards and compute the period of six months.
12. In the aforesaid premises, the conclusion drawn by the Appellate Committee to the extent it upholds the liability of petitioner to pay charges for dishonest abstraction of electrical energy for the period prior to 23rd April, 1999, viz. the last time when the MMB seal came to be changed, is on the face of the record perverse inasmuch as, the Appellate Committee has failed to take into consideration the fact that on none of the previous occasions when inspections were made, the MMB seals were found to have been tampered. Since the Appellate Committee has found that in the absence of the MMB seal on the outer body of the meter being tampered with it is not possible to commit theft of energy, in the absence of any specific finding to the effect that during the period 1.12.98 to 23.4.99 the MMB seal on the outer body of the meter had been tampered with, the Appellate Committee could not have held the petitioner liable to pay electricity charges for dishonest abstraction of electrical energy for such period. The findings of the Appellate Committee to that extent, being perverse, warrant interference.
13. For the foregoing reasons, the petition succeeds and is, accordingly, allowed. The impugned order passed by the Appellate Committee to the extent the demand towards illegal abstraction of electrical energy, viz., for the period 1.12.98 to 23.4.99, has been sustained, as well as the supplementary bill based upon the impugned order are hereby quashed and set aside. Consequently, the petitioner shall be entitled to refund of the amount recovered from by the Board in pursuance of the supplementary bill, in accordance with law. Rule is made absolute accordingly, with no order as to costs.
[HARSHA DEVANI, J.] parmar*