Jharkhand High Court
M/S Stan Commodities Pvt.Ltd. vs Jharkhand State Electricity Bo on 12 March, 2015
Author: Prashant Kumar
Bench: Prashant Kumar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C) No. 2413 of 2011
...
M/s STAN COMMODOTIES PVT. LTD., a company
incorporated under the provisions of Companies Act, 1956,
having its factory at Plot No. 788, Vth Phase, Adityapur
Industrial Area, Adityapur, Jamshedpur through one of its
Director Sharad Poddar, son of Shri Pawan Kumar Poddar,
resident of 2, C.H. Area, North West, Road No. 13, Sonari,
P.O. & P.S. - Sonari, Town - Jamshedpur, District - Singhbhum
East.
... Petitioner
-V e r s u s-
1. Jharkhand State Electricity Board, through its Chairman,
having its office at Engineering Bhawan, HEC, Dhurwa,
Ranchi.
2. The General Manager-cum-Chief Engineer, Singhbhum
Electric Supply Area, Jharkhand State Electricity Board, Co-
operative Bank Building, Bistupur, Jamshedpur.
3. The Electrical Superintending Engineer, Electric Supply
Circle, Jharkhand State Electricity Board, Jamshedpur.
4. The Electrical Executive Engineer (Commerical &
Revenue), Electric Supply Circle, Jharkhand State Electricity
Board, Jamshedpur.
... Respondents
...
CORAM: HON'BLE MR. JUSTICE PRASHANT KUMAR.
...
For the Petitioner : Mrs. Shilpi John, Advocate.
Mr. Naveen Kumar, Advocate.
For the Respondents : Mr. Ajit Kumar, Advocate
Mr. Saurav Arun, Advocate.
Mr. Rahul Kumar, Advocate.
...
03/12.03.2015This application has been filed for following reliefs:-
(a) For issuance of an appropriate writ or a writ in the nature of Mandamus directing upon the Respondents to forthwith restore the electrical connection of the petitioner, which has been disconnected on 24.04.2011, which although was done for carrying out certain rectification, but was never restored, pursuant to an inspection alleging unauthorized use of electricity in terms of Section 135, 137 & 138 of Electricity Act, 2003, inasmuch as the said disconnection is contrary to the 2 provisions as contained in Clause 15.8 (X) as well as Clause 15.8 (XI) of the amended provisions of Electricity Supply Code Regulation, 2005;
(b) For issuance of an appropriate writ or a writ in the nature of Mandamus directing upon the Respondents to forthwith install a new meter including the check metering system for the purpose of restoring supply to the factory premises inasmuch as in terms of Clause 15.8 (X), the Respondents are under an obligation to restore the electrical supply of the consumer, once they suspect of unauthorized use of electricity.
(c) For issuance of an appropriate writ or a writ in the nature of Certiorari for quashing the inspection report dated 25.05.2011 wherein allegation has been made that by sabotaging the check metering system, unauthorized usage of electricity was being indulged into in terms of Section 135, 137 and 138 of the Electricity Act, 2003, inasmuch as merely because the check metering system was found not working properly does not lead to the conclusion that petitioner was indulged into any kind of malpractice or the check metering system was interfered with by the petitioner, which is not at all within the control of the petitioner and is installed outside factory premises of the petitioner.
(d) For issuance of an appropriate writ or a writ in the nature of Certiorari for quashing the provisional bill dated 27.04.2011, which has been raised in absolute contradiction to clause 15.8 (X) of the Electric Supply Code (Amendment) Regulations, 2005, whereby and whereunder, until and unless the suspicion is converted into reliable proof, the question of raising any provisional bill 3 under section 126 does not arise, that apart the Electric Supply Code (Amendment) Regulations, 2005 does not provide for realisation of charges by the Licensee from the consumers towards installation of new metering unit, for which also claim has been made by the Respondents.
(e) For issuance of any other appropriate directions / orders as your Lordships may deem fit and proper in view of the facts and circumstances of the case for doing conscionable justice to the petitioner.
It appears that during the pendency of this writ application, petitioner has deposited the provisional assessed amount i.e. Rs. 3,60,190/- under protest. It then appears that after deposit of the same, the electric connection of the petitioner has been restored. Thus, at present, petitioner is confining its prayer for quashing the provisional assessment order as contained in Annexure-4 and further prays that the amount deposited by the petitioner be refunded and / or adjusted in future bill.
Petitioner is a Company registered under the Companies Act, 1956 and running an Induction Furnace Plant at Adityapur and for that purpose took electrical connection from the respondents having a contract demand of 1200 KVA.
It then appears that an inspection carried out in the premises of the petitioner on 18.04.2011 as per direction of the Member (Distribution) of the J.S.E.B. On that inspection, no abnormality found in the metering unit and / or any other equipments installed in the premises of the petitioner for supply of electricity. Accordingly, an inspection report (Annexure-2) prepared, which was signed by the representative of the petitioner.
It appears that thereafter on 24.04.2011 RF#2 Feeder of Adityapur Grid was shut down for erection work. It further appears that after returning of the shut down, trial was taken 4 to energize 11 KV Feeder and in that course 11 KV Feeder No. 1 did not hold, then another trial taken and at that time also the Feeder did not hold, thereafter, the Board Officials conducted a patrolling and found that the metering unit, associated with the Check Metering System of the petitioner, was abnormal. Thereafter, the said metering unit out circuited from 11 KV Feeder No. 1. Then trial of the Feeder was taken and it hold and power supply normalizes.
Thereafter on the next date i.e. on 25.04.2011 a team of Board conducted inspection of CT-PT metering Unit associated with the Check Metering System of the petitioner, which was installed adjoining to the boundary wall of the petitioner. The petitioner in the writ application specifically stated that the said Check Meter installed outside the factory premises and petitioner has no control over the same. This fact has not been denied by the J.S.E.B. in its counter affidavit. On inspection of the aforesaid Check Meter, the team of the Board found that some mischief committed in the valve of the meter. Accordingly, the Board Officials presumed that there are circumstantial evidence to show that the consumer committed aforesaid mischief with a view to commit theft of electricity.
On the basis of aforesaid inspection, an F.I.R. lodged vide Annexure-2. Thereafter, a provisional assessment order passed and petitioner was directed to pay Rs. 3,60,190/- towards pilferage of electrical energy and loss against the damage of metering unit. Against the aforesaid assessment order, the present writ application filed.
M/s Shilpi John, learned counsel appearing for the petitioner, submits that the provisional assessment order is wholly without jurisdiction. She submits that under Section 135 of the Electricity Act, a person can be penalized, if it is proved that he, she or it has dishonestly damaged or destroyed an electric meter, apparatus, equipment, or wire with a view to interfere with the proper or accurate metering 5 of the electricity. She submits that there is no evidence to show that the petitioner had damaged the Check Metering Unit. She submits that on the other hand, there are materials on record to show that on 24.04.2011 the Board Officials themselves interfered with the Check Meter and out- circuited it from the main phase. She further submits that there is no evidence to show that on 24.04.2011 petitioner was present with the Board Officials while they were examining the Check Meter. Thus, if any damage or defect found in the Check Meter, then the same might had been done by the Board Officials on 24.04.2011. In that circumstance, petitioner cannot be held guilty for theft. Accordingly, she submits that the penal assessment made by the Board Officials, vide Annexure-4, is without jurisdiction.
On the other hand, Sri Saurabh Arun appearing for the Jharkhand Urja Vikash Nigam Limited submits that there are circumstantial evidence to show that mischief in the Check Meter carried out by the petitioner for pilferage of electrical energy. Thus, the offence of theft, as defined under Section 135 of the Electricity Act, is made out. He further submits that 3rd proviso to Section 135(1) of the Electricity Act provides that if the licensee detects that any damage caused to the metering unit for pilferage of electricity, then it will be presumed that the consumer has dishonestly caused such damages. Accordingly, Sri Saurabh Arun submits that there is no illegality in the impugned assessment order.
Having heard the submissions, I have gone through the record of the case. The theft of electricity has been defined under Section 135(1) of the Electricity Act, which reads as under:-
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 supplier, as the case may be; or
(b) tampers a meter, installs or uses a tampered meter, 6 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 usage of electricity was authorised, So as to abstract or consume 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 convicted shall not be less than three times the financial gain or 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 kilowatt, 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:7
Provided also that if it is provided 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."
From the plain reading of the definition of theft of electricity, it is clear that if it is found that a person dishonestly damaged the meter, apparatus, equipment, or wire with a view to interfere with the proper or accurate metering of electricity then it can be said that he had committed theft of electricity. In the instant case, there is no direct evidence to show that the petitioner damaged the Check Meter. It is worth mentioning that the Check Meter was installed outside the boundary wall of the petitioner factory premises and it is accessible to general people. Petitioner in its writ application has specifically stated that the Check Meter was not under the exclusive control of the petitioner. Thus, anybody can do any mischief with the said metering unit. It appears from the inspection report (Annexure-3) that on 24.4.2011, the Board Officials found some problem in the Check Meter and they out-circuited it from 11 KV Feeder line for resumption of electric supply. This shows that on 24.4.2011 i.e. one day before the date of inspection of the check Meter, the Board Officials interfered with the Check Meter. It is relevant to mention that on 24.4.2011, petitioner's representative was not present while the Board Officials were examining the Check Meter, which was installed outside the factory premises of the petitioner.
Under the said circumstances, if some defect found in the Check Meter on 25.4.2011 then it cannot be presumed that only the petitioner and none else had caused such damage. In that circumstance, in absence of proper investigation it cannot be presumed that petitioner has committed the offence of theft of electricity.
8The contention of the learned counsel for the respondents that as per the 3 rd proviso of Section 135(1) of the Electricity Act, there is a presumption against the petitioner that it has damaged the Check Meter, cannot be accepted, because the 3rd proviso of Section 135(1) of the Electricity Act will become operative if the respondent, prima-facie, proves that any artificial means exists for abstraction of illegal electricity. In the instant case, as noticed above, the Check Meter installed outside the factory premises of the petitioner, which is accessible to general people. It has also come in the inspection report that a day before the inspection, the Board Officials interfered with the Check Meter, thus, there are materials on record to show that some body else might committed mischief in the Check Meter.
Since there is no evidence to show that petitioner had committed theft of electricity, therefore, in my view, the assessing officer has no power to make assessment under Section 135(1A) of the Electricity Act, which provides that the assessing officer can assess the amount or electricity charges, if theft of the electricity detected. In my view, there is no material on record to show that the petitioner committed the offence of theft of electricity, therefore, the assessment order is without jurisdiction.
In view of the aforesaid discussions, I allow this application and quash the provisional assessment order as contained in Annexure-4. As noticed above, petitioner has already deposited the assessed amount under protest, thus, I direct the respondents to refund and / or adjust the aforesaid amount in future bill.
(Prashant Kumar, J.) sunil/