JUDGMENT Ashok Bhushan, J.
1. Heard Sri H. N. Singh, learned counsel for the petitioner and Sri Ranjeet Saxena, learned counsel appearing for the respondents. Counter and rejoinder-affidavits have been exchanged and with the consent of the, parties both the writ petitions are being finally decided. These two writ petitions have been heard together since they raise similar issues. Writ Petition No. 22931 of 2004, Sri Bhagwan Gupta v. Kanpur Electricity Supply Company Ltd. and Ors. (hereinafter referred as the first writ petition), has been filed by the petitioner praying for quashing the assessment bills dated 1st April, 2004 Annexures-7 and 8 to the writ petition and the order dated 10.6.2004 Annexure-12 to the writ petition, passed by the appellate committee respondent No. 2.
2. Brief facts necessary for deciding the first writ petition are :
"Petitioner is a consumer of category of HV 2 of the Kanpur Electricity Supply Company Ltd. the contracted load of which is 79 KVA (67.15 KW). The security meter was provided on 8.9.2003. On 13.3.2004 respondents installed a check meter at the premises of the petitioner. On 13.3.2004 the respondents removed the check meter and installed a new check meter. On 26.3.2004 the premises of the petitioner were checked by a raid team on which date the seals of the meter were found tampered. A first information report was lodged against the petitioner on 26.3.2004. The assessment bill dated 1.4.2004 was raised for an amount of Rs. 50,38,604. Another supplementary assessment bill of the same date was raised for an amount of Rs. 7,91.760 as voltage surcharge @ 15% for 400 Volts. The petitioner filed an appeal challenging the aforesaid bills before the appellate committee. The appeal filed by the petitioner was directed to be decided by this Court vide its order dated 7.5.2004 passed in the Writ Petition No. 17268 of 2004 subject to the condition that the petitioner will deposit Rs. 3,00,000 within ten days. The amount of Rs. 3,00,000 was deposited and consequently the appellate authority considered the appeal on merits which was dismissed on 10.6.2004. A copy of the appellate order has been annexed as Annexure 12 to the writ petition."
3. Brief facts of the Second Writ Petition No. 22932 of 2004, Sri Niwas Gupta v. Kanpur Electricity Supply Company Ltd. and Ors. are :
"The petitioner is a consumer of category HV 2 with contracted load of 86 KVA (73.1 KW). A meter was installed in the petitioner's premises. On 28.2.2004 meter reading of the petitioner was taken on which date old lead seals No. 250654 and 250653 affixed on the meter cubicle doors were removed and in place thereof new lead seals No. 252736 and 252737 were provided and similarly the paper sticker No. 008566 and 008567 provided on the lock affixed on the meter door box were removed and new paper sticker No. 014683 and 014684 were provided. On 31.3.2004 a checking was made by the respondent in the premises of the petitioner and it was found that the paper sticker No. 014683 and 014684 were forged and the signatures of Sr. S.S.B. Gupta were also forged. The lead seals were tampered. The amount of Rs. 4,00,000 were paid by the consumer as penalty by two cheques. Assessment bill dated 1.4.2004 was raised for an amount of Rs. 16,50,377. Petitioner filed an appeal against the said order before the appellate authority. The appeal of the petitioner was heard on deposit of Rs. 4,00,000 as per direction of this Court in Writ Petition No. 17269 of 2004. The appellate committee dismissed the appeal of the petitioner by its order dated 10.6.2004. The writ petition has been filed - challenging the assessment bills dated 1.4.2004 and the appellate order dated 10.6.2004. In support of both the writ petitions Sri H. N. Singh, learned counsel for the petitioner raised following submissions :
(1) The assessment made by the respondent is not in accordance with the provisions of Section 126 of the Electricity Act, 2003 and in accordance with paragraph 6.17.1 and 6.17.2 of the U. P. Electricity Supply Code, 2002. The respondents while making assessment has calculated the amount thrice of the units assessed whereas in accordance with Section 126(6) of the Electricity Act, 2003, the assessment was required to be made at the rate equal to one-and-half times of the tariff applicable.
(2) That while making assessment, assessment has been made for the period of 180 days whereas in both the writ petitions the number of days were fully ascertainable and in first writ petition number of days ought to have been taken only thirteen since on 13.2.2004 itself the reading was taken when no theft was found. With regard to second writ petition number of days ought to have been taken as 31 since on 28.2.2004 meter seals were changed which were found to be tampered on 31st March, 2004 at the time of raid.
(3) That the load factor has also been wrongly calculated in both the writ petitions. In the first writ petition lead factor was wrongly taken as 176 KVA whereas it ought to have been 8.4 KVA and in no case it should have been more than 79 KVA. In second writ petition the load factor ought to have been taken 49.20 KVA.
(4) That the first writ petition supplementary assessment dated 1.4.2004 is not valid. When the assessment is being made in accordance with the provisions of the U. P. Electricity Supply Code, 2002 the amount of voltage surcharge could not have been levied.
4. Sri Ranjeet Saxena counsel for the respondents refuting the submissions of the counsel for the petitioner contended that the assessment against the petitioner have rightly been made in accordance with paragraph 6.17.1 and 6.17.2 of the U. P. Electricity Supply Code, 2002. It has been contended that the number of days have rightly been taken as 180 days in both the assessments. In the case of first writ petition the check meter was installed on 13.2.2004 which due to some electronic default did not display any reading hence it was replaced on 13.2.2004 by another check meter. It is contended that after installation of the check meter on 13.2.2004, the reading taken by the check meter was much more than was being recorded by the meter. It is contended that the number of days during which the petitioner extracted the energy being not ascertainable 180 days have been taken. With regard to second writ petition also the counsel for the petitioner Sri Ranjeet Saxena contended that number of days were not ascertainable hence 180 days were taken according to rules. Sri Saxena further contended that the load factor has also correctly been taken in the assessment. Sri Saxena contended that the appellate authority has recorded finding of fact regarding assessment and this Court in exercise of its jurisdiction under Article 226 of the Constitution will not interfere with the finding of fact recorded by the appellate authority. Sri Saxena placed reliance on the judgment of the. Apex Court in J.M.D. Alloys Ltd. v. Bihar Electricity Board and Ors., AIR 2003 SC 1354.
5. I have considered the submissions of both the parties and perused the record. Before coming to the submissions of both the parties it is relevant to note the provisions governing the assessment in case of theft of electricity. In the State of U. P. the assessment of electricity in case of theft of energy case was being regulated by the U.P. Electricity Supply Consumers Regulations, 1984. After the enactment of U. P. Electricity Reforms Act, 1999 the U.P. Electricity Supply Code, 2002 was framed for billing in case of theft of electricity/ tampering of meter. Paragraph 6.17.1 and paragraph 6.17.2 provided for Billing in case of theft of electricity/tampering of meter which are extracted below :
"Billing in Case of Theft of Electricity/Tampering of Meter--6.17.1--In case of theft of electricity the consumer shall be liable to pay a sum towards penalty/compensation to the Licensee as per assessment made, in addition to any other action that may be taken against him under any other law.
The units of the electricity consumed shall be assessed in the following manner :
Units Assessed = L x F x D x H.
Where L = is the connected load in KW.
H = is the average number of hours per day the supply is made available in the Distribution mains, feeding the consumer.
D = If the number of days for which the theft took place can be ascertained on the basis of satisfactory evidence then actual number of days. In other cases, this factor be taken equivalent to 180.
F = for different types of supply as given below :
The consumption so assessed shall be charged at thrice the rate per unit of the tariff applicable to the consumer category excluding the consumption recorded by the meter that shall be charged at the appropriate tariff rates. The amount billed at this rate (thrice 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."
6. The Parliament enacted the U. P. Electricity Act, 2003 to consolidate the laws relating to generation, transmission, distribution, trading and use of electricity Section 126 of the Act deals with the assessment. Section 126 of the Act is quoted below :
"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 unauthorized 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 unauthorized use of electricity has taken place, 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 cases 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 the 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 licencee as the case may be, designated as such by the State Government.
(b) "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 licencee ; or
(iii) through a tampered meter ; or
(iv) for the purpose other than for which the usage of electricity was authorized."
7. Section 174 of the Act gives an overriding effect to the Electricity Act, 2003. Section 174 is quoted below :
"174. Act to have overriding effect.--Save as otherwise provided in Section 173, the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act."
8. Section 185 of the Act provides for repeal and saving. The Schedule of the Act includes the U. P. Electricity Reforms Act, 1999 at item No. 4 which by virtue of Section 185 Sub-section (3) is applicable in the State which is not inconsistent with the provisions of the Electricity Act, 2003. Section 185 of the Act is quoted as below :
"185. Repeal and saving.--(1) Save as otherwise provided in this Act, the Indian Electricity Act, 1910 (9 of 1910), Electricity (Supply) Act, 1948 (54 of 1948) and the Electricity Regulatory Commissions Act, 1998 (14 of 1998) are hereby repealed.
(2) Notwithstanding such repeal,--
(a) anything done or any action taken or purported to have been done or taken including any rule, notification, inspection order or notice made or issued or any appointment, confirmation or declaration made or any licence, permission, authorization or exemption granted or any document or instrument executed or any direction given under the repealed laws shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this Act ;
(b) The provisions contained in Sections 12 to 18 of the Indian Electricity Act, 1910 and rules made thereunder shall have effect until the rules under Sections 67 to 69 of this Act are made ;
(c) The Indian Electricity Act, 1956 made under Section 37 of the Indian Electricity Act, 1910 as it stood before such repeal shall continue to be in force till the regulations under Section 53 of this Act are made ;
(d) All rules made under Sub-section (1) of Section 69 of the Electricity (Supply) Act, 1948 shall continue to have effect until such rules are rescinded or modified, as the case may be ;
(e) All directives issued, before the commencement of this Act, by a State Government under the enactments specified in the Schedule shall continue to apply for the period for which such directions were issued by the State Government.
(3) The provisions of the enactments specified in the Schedule, not inconsistent with the provisions of this Act, shall apply to the States in which such enactments are applicable.
(4) The Central Government may, as and when considered necessary, by notification, amend the Schedule.
(5) Save as otherwise provided in Sub-section (2), the mention of particular matters in that section, shall not be held to prejudice or affect the general application of Section 6 of the General Clauses Act, 1897, with regard to the effect of repeals."
9. The provisions of Sub-sections (2) and (3) of the Section 185 makes it clear that the U. P. Electricity Supply Code, 2002 which was framed under the U.P. Electricity Reforms Act, 1999 continue to hold field in so far as it is not inconsistent with the provisions of the Electricity Act, 2003. Section 126 of the Electricity Act provides for the assessment but the section does not give the formula and details according to which the assessment is to be made. Provisions of paragraph 6.17.1 and 6.17.2 of the U. P. Electricity Supply Code, 2002 have to be read together for finding out procedure and details of the assessment. The assessment thus under U. P. Electricity Supply Code, 2002 in so far as it is not inconsistent with the Electricity Act, 2003 has to be applied for assessing the electricity charges payable by a person who is found indulging in unauthorized use of electricity. The submissions raised by the counsel for the parties have to be considered taking into consideration the provisions as noted above which are applicable for the assessment.
10. The first submission of counsel for the petitioner challenges the assessment made by the respondents taking thrice of the assessed unit as per provisions of paragraph 6.17.2 of the U. P. Electricity Supply Code, 2002. Paragraph 6.17.2 provides that the consumption so assessed (as per paragraph 6.17.1) shall be charged as thrice the rate per unit of the tariff applicable to the consumer category excluding the consumption recorded by the meter that shall be charged at the appropriate tariff rates. The provisions of Section 126 of the Act, are provisions which covers the subject as provided under paragraphs 6.17.1 and 6.17.2 of the Code. The relevant provisions on which the emphasis has been laid by the counsel for the petitioner is Section 126(6) which provides :
"126. (6) The assessment under the 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)."
11. There is apparent conflict between the paragraph 6.17.2 of the Code which provides for charging the assessment as thrice the rate per unit of the tariff and those of Section 126(6) of the Act which provides assessment at the rate of one-and-half times the tariff applicable. The provision of Code according to Section 185 of the Act shall continue to apply in so far as it is not inconsistent with the provisions of the Act. The effect of the provisions of Section 185 is that any thing inconsistent in Code shall give way to the provisions of the Act. Thus the provisions of Section 126(6) providing for assessment in case of theft to be charged at the rate of one-and-half times of the tariff applicable shall prevail over the provision contained in paragraph 6.17.2 of the Code providing for charging it thrice rate per unit. In both the case the respondents while making assessment has applied thrice rate as per paragraph 6.17.2. The assessment made by the respondents clearly contravenes the statutory provisions of Section 126(6) of the Act which provides charging at the rate of one-and-half only, the appellate authority in both the cases has also affirmed the assessment without adverting to Section 126(6) of the Act hence the assessment as well as the appellate order is contrary to the provisions of the Act and cannot be sustained.
12. The next submission raised by the counsel for the petitioner is with regard to factor 'D', i.e., the number of days for which the theft took place. The respondents have taken 180 days in both the cases as against factor 'D'. Sri H. N. Singh challenging the calculation of days as 180 submitted that in first writ petition the assessment reading was taken on 13.2.2004 on which date a check meter was installed and again on 13.3.2004 another check meter was installed in the premises but at the said time no theft was found hence at best the number of days can be taken only from 13.3.2004 and not before that. In this regard the submissions made in paragraph 11 of the counter-affidavit are relevant to be noted. The installing of check meter on 13.2.2004 itself suggests that the respondents wanted to check real consumption of the electricity. It is stated in paragraph 9 of the counter-affidavit that due to some electronic fault in the check meter installed on 13.2.2004 no reading was displayed hence the check meter was replaced on 13.3.2004 and consumption of consumer suddenly increased from 5000 to 28323 units. The action of the respondents installing the check meter on 13.2.2004 cannot be accepted as a proof to the allegation of the petitioner that before that date there was no theft of electricity. The fact that on 13.3.2004 another check meter was installed which gave reading showing more than five times consumption as recorded in the earlier months, cannot be held to be proof of the fact that the theft can be said to have started only on 13.3.2004 and only 13 days thereafter should be taken as factor 'D'. The installation of check meter and replacement of the same due to the fact that the meter was not recording correct consumption, proves that the electricity was being extracted unauthorisingly and in the facts of the present case number of days in which there was unauthorized use of electricity, cannot be fixed from 13.3.2004.
13. Section 126(5) provides that when assessing officer reaches to the conclusion that unauthorized use of the electricity has taken place, it shall be presumed that such unauthorized use of electricity was continuing for a period of six months immediately preceding the date of inspection unless the onus is rebutted by the person. Thus the statutory provision raises presumption of six month which can be rebutted by the person charged by satisfactory evidence. The judgment of the Apex Court in J.M.D. Alloys Ltd. (supra) needs to be referred in the aforesaid context. In the aforesaid judgment before the Apex Court also it was contended that the inspection of the premises was done on 14.5.1999 and 20.7.1999 hence there was no justification for counting the period of dishonest extraction as 180 days. The said submission was not accepted by the Apex Court and the assessment made taking 180 days was upheld. The Apex Court observed in paragraph 12 which is quoted below :
"12. The relevant part of the Tariff quoted above shows that in the cases of theft of electricity or dishonest abstraction of electrical energy the assessment for compensation has to be done on the basis of a formula wherein 'D' stands for number of days for which the pilferage took place and where there is no possible evidence to establish the period, this factor can be taken to be equivalent to 180 days. Similarly, in case where connected load is more than the sanctioned load, the assessment charge has to be done on the basis of a formula where 'C' stands for six months or the number of months or part thereof elapsed from the date of connection/installation, whichever is less. Therefore, under the Tariff in both the cases the period can be taken as 180 days or six months. It is on the basis of this formula that the assessment for consumption of units has been done for 180 days. In Hyderabad Vanaspathi Ltd. v. A.P. State Electricity Board and Ors., 1998 (4) SCC 470, it has been held that the terms of conditions for supply of electricity to consumers notified by the Board in exercise of power under Section 49 of Electricity (Supply) Act, 1948 and made applicable to all consumers availing supply of electricity, are statutory in character. This being the legal position, the Electricity Board in our opinion rightly applied Clause 16.9 of the Tariff and there is no infirmity in the assessment made and the bill prepared in pursuance thereof."
14. The decision of the respondents in taking 180 as number of days cannot be said to be arbitrary and no error has been committed by the respondents in taking 180 days for factor 'D' in the facts of the case.
15. Coming to the second case the number of days taken is 180 days. In the second case the check report dated 31.3.2004 has been filed as Annexure-3 to the writ petition. The petitioner has also filed Annexure-2 to the writ petition which is a meter reading card from which it is clear that on 28.2.2004 lead seal Nos. 252736 and 252737 were made and sticker seal was also removed and new seal was pasted on the lock being numbers 014683 and on door 014684. At the time of inspection on 31.3.2004 the paper sticker No. 014684 and 014683 were found fictitious. The appellate authority has adverted to the submission of the petitioner regarding factor 'D'. The appellate authority after considering the submission recorded a finding that it cannot be ascertained as to from what date the theft of electricity energy has extracted hence factor 'D' 180 days were taken. At the time when the inspection was made on 31.3.2004 paper seal and sticker were found forged, signatures of Sri M.M.D. Gupta were also found forged. Although the petitioner has relied on the meter reading card filed as Annexure-2 to the writ petition which refers that the seals were removed and pasted on 20.2.2004 but the meter reading card does not contain the signature of any person to prove that actually the seals were pasted on that date by the officials when on 31.3.2004 the earlier seals were found forged. The submission of the counsel for the petitioner cannot be accepted that days should be counted only after 28.2.2004 when the said seals were pasted. The seal itself having been found forged and the signature of the Engineer forged it cannot be accepted that there was no dishonest extraction of electricity prior to 28.2.2004. As observed above, presumption of Section 126(5) is to presume dishonest extraction for period of six months unless proved by the person to the contrary. The authorities have not accepted the submission of the petitioner that the dishonest extraction can only be treated for 31 days. This Court does not find any good grounds to interfere with the said finding of the authorities. Thus it is held that the respondents have rightly assessed the theft for a period of 180 days.
16. The next submission of the counsel for the petitioner is with regard to load factor. In first writ petition the load factor taken in the assessment is 176.1 KVA. It has been stated that the load factor has wrongly been taken as 176.1 KVA in the assessment. Relying on paragraph 6.17.1 KVA it has been contended by the counsel for the petitioner that the load factor of 176.1 KVA has wrongly been taken. It is contended that at best the connected load ought to have been taken for factor 'L' as a 2.8.00 KVA x 30 i.e. 8.4 KVA. It is contended that on the day of inspection i.e. on 26th March, 2004 the present reading was 2.800 which according to the petitioner is reflected in the current bill dated 1.4.2004 for the month of March, 2004. The petitioner's counsel contended that in the appeal specifically this question was argued but that was not satisfactorily considered. In appellate order while considering the submission regarding load factor it has been stated that in the premises of the consumer in April, 2004 the total load recorded in the meter was 176.1 KVA hence the load factor has been taken accordingly. While applying the formula 6.17.1 the authorities were required to advert as to what is the connected load at the time of inspection. There is no finding in the appellate order that at the time of inspection 176.1 KVA was found load connected. It has been specifically observed in the order that in the month of April, 2004 while checking the reading of the meter total connected load was found 176.1 KVA. The said finding of the appellate authority is unsustainable, since while applying paragraph 6.17.1 the connected load was to be seen as on the date of inspection. Thus the decision of the appellate authority as well as the assessment bill taking the load factor as 176.1 KVA is unsustainable. The appellate authority will consider the said issue afresh. With regard to load factor in the second writ petition it has been contended that at the time of inspection on 31.3.2004 the demand was 1.23 and multiplying the factor forty demand came to 49.20 KVA hence the load factor was required to be taken 41.18 KW. In the assessment the load factor has been taken as 73.1 KW which is contracted load. In the appellate order it has been observed that the contracted load of the petitioner being 86 KVA, the said be treated as connected load. In paragraph 7 of the memo of appeal it is contended that the demand should have been worked out While taking 'L' factor as 49.20. There is no proper consideration of above submission by the appellate authority hence the assessment in the second writ petition also with regard to factor 'L' cannot be sustained and is set aside. The appellate authority shall consider the said issue afresh.
17. Now remains the last submission of the counsel for the petitioner with regard to supplementary bill dated 1.4.2004 regarding voltage surcharge. It is contended by the petitioner that the voltage surcharge is not permissible in case of assessment bill for theft of energy. In the appeal filed by the petitioner specific ground was taken challenging the voltage surcharge. There is no discussion in the judgment of the appellate authority with regard to challenge of the petitioner to the supplementary bill relating to voltage charge. There being no discussion on the said issue by the appellate authority, the appellate authority may consider the said submission and decide the chargeability of voltage surcharge afresh.
18. In view of forgoing discussions the assessment bill dated 1.4.2004 and the appellate order dated 10.6.2004 are set aside. The matter is remitted to the appellate authority again to decide the appeals filed by the petitioner as per observations made in this judgment. The consideration in the appeal with regard to first writ petition shall be with regard to factor 'L' and the chargeability of voltage surcharge. In the second writ petition the appellate authority shall consider the load factor in light of observation made in this judgment. The appellate authority shall assess the amount payable by each of the petitioners and raise the demand accordingly. The amount already deposited by the petitioners shall be adjustable in the fresh demand. The appellate authority shall take a decision expeditiously preferably within a period of two months from the date of production of a certified copy of this order.
19. Both the writ petitions are partly allowed to the extent indicated above. Parties shall bear their own costs.