Jharkhand High Court
Jharkhand Ispat Private Limited vs Damodar Valley Corporation & Ors on 7 April, 2022
Author: Kailash Prasad Deo
Bench: Kailash Prasad Deo
IN THE HIGH COURT OF JHARKHAND AT RANCHI
[Civil Writ Jurisdiction]
W.P.(C) No. 95 of 2008
Jharkhand Ispat Private Limited .... .. ... Petitioner
Versus
Damodar Valley Corporation & Ors .. ... ... Respondents
...........
CORAM :HON'BLE MR. JUSTICE KAILASH PRASAD DEO .........
For the Petitioner : Mr. Ajit Kumar, Sr. Advocate
Mr. N. K. Pasari, Advocate
Ms. Sidhi Jalan, Advocate
For the Resp.-DVC : Mr. Srijit Choudhary, Advocate
Ms. Tanya Rai, Advocate
......
25/ 07.04.2022.
Heard, learned Senior counsel, Mr. Ajit Kumar assisted by learned counsel for the petitioner, Mr. N.K. Pasari and learned counsel for the respondent- DVC, Mr. Srijit Choudhary assisted by learned counsel, Ms. Sidhi Jalan.
Learned Sr. counsel for the petitioner, Mr. Ajit Kumar has submitted that petitioner- Jharkhand Ispat Private Limited, a company incorporated under the provisions of the Companies Act, 1956, having its unit at Hesla, Ramgarh Cantonment through one of its Director Sri Pawan Tekriwal, S/o Sri Ram Awtar Tekriwal, R/o Near Punjab National Bank, Main Road, P.O. & P.S. Ramgarh, Distt- Ramgarh has preferred the instant writ petition on 08.01.2008 for following reliefs:-
A. For issuance of an appropriate writ or a writ in the nature of Mandamus directing upon the Respondents to immediately and forthwith restore the electrical connection of the petitioner, which has been disconnected on 01.01.2008 pursuant to an inspection held on 01.01.2008 in the Petitioner's premises allegations of theft of electricity has been made against the petitioner and on that ground alone without resorting to any of the provisions of the Electricity Act, 2003, the disconnection has been done.
B. For issuance of an appropriate writ or a writ in the nature of Mandamus for a direction that if at all any punitive bill is to be raised, then, the same should not be raised without giving any opportunity of hearing to the petitioner in terms of Section 126 of the Electricity Act 2003 and also since it has been repeatedly held by this Hon'ble Court that any penal bill, if at all is to be raised, can only be raised after giving an opportunity of hearing to the consumer.
C. For issuance of any other appropriate writ(s) or direction(s) or order(s) as Your Lordships may deem fit and proper in view of the facts & circumstances of the case for doing conscionable justice to the petitioner.
-2-Learned Sr. counsel for the petitioner has further submitted, that pursuant to the order dated 28.01.2008 passed in Interlocutory Application vide I.A. No.138 of 2008. The co-ordinate Bench of this Hon'ble Court has directed to restore the electricity of the petitioner subject to the deposit of Rs.1.5 crores against the provisional bill issued by the respondent and the said deposit of the petitioner shall be without prejudice to the respective rights of the parties. It was further directed that the same shall be subject to the adjustment towards the duly assessed amount or towards the future bill of the petitioner and on the deposit of the aforesaid amount by the petitioner their electricity shall be restored within a period of 48 Hours.
Learned Sr. counsel for the petitioner, Mr. Ajit Kumar has further submitted, that amount has been deposited and electricity connection has been restored and thus, prayer (A) has already been redressed by the respondent pursuant to the direction passed by this Hon'ble Court.
Learned counsel for the respondent- DVC, Mr. Srijit Choudhary has also endorsed the same.
Learned Sr. counsel for the petitioner, Mr. Ajit Kumar has further submitted, that petitioner has set up the factory in the year, 2003 and took electrical connection from the Jharkhand State Electricity Board for the purpose of running the same. The petitioner applied for Electrical connection from the respondent- DVC in the year, 2006 only with a contract demand of 10000 KVA, which was subsequently reduced to 8000 KVA on and from January, 2007 as the petitioner is engaged in the manufacturing activity of Iron & Steel.
Learned Sr. counsel for the petitioner, Mr. Ajit Kumar has further submitted, that petitioner has two separate divisions/units under the same name and all the statutory licensees for both the units are common. However, both the units are situated across the road, namely, (a) Induction Furnace and (b) Sponge iron Plant. That there are two induction Furnaces of same capacity and one Sponge Iron unit. Infact, the petitioner has two separate electrical connections for both its units running in its name. (a) Induction Furnace Unit- Damodar Valley Corporation, (b) Sponge Iron Plant- Jharkhand State Electricity Board.
Learned Sr. counsel for the petitioner, Mr. Ajit Kumar has further submitted, that the operation of furnaces at any given point of time is highly dependent upon the market conditions, availability of the raw materials and breakdowns. The unit consumption may vary based on the above mentioned conditions more than 300 workers engaged for the purpose of carrying out -3- manufacturing activity in the induction furnace.
Learned Sr. counsel for the petitioner, Mr. Ajit Kumar has further submitted, that the meters installed for the purpose of recording unit consumption by the licensee i.e. DVC themselves and it is the duty and responsibility of the licensee to carry out necessary repairs and maintenance work of the said meters, which is infact the mandate under the Electricity Act, 2003.
Learned Sr. counsel for the petitioner, Mr. Ajit Kumar has further submitted, that the meters installed by the licensee, i.e. DVC is the absolute property of DVC. The meters installed by the licensee are always kept under the supervision of the licensee and is always under the lock and seal of the licensee. It is only the licensee or its authorized representative or concerned authority who comes to the premises of the consumer for the purpose of meter readings through MRI (Meter Reading Instrument) and opens the lock of the meter room and after the meter reading is taken the authorities concerned affixes the seal and again puts a lock on the metering unit and the meter room. It is stated that meter run faulty in the month of August, 2007 and the request was made for replacement of faulty meter on 10.10.2007. Thereafter, the meter was replaced by DVC on 16.10.2007.
That on 01.01.2008 at around 17.10 Hrs. (5.10 P.M.), the Electrical supply of the petitioner was disconnected without assigning any reasons thereof. The information of the same was duly brought to the knowledge of the Management by the production Manager of the petitioner unit.
Learned Sr. counsel for the petitioner, Mr. Ajit Kumar has further submitted, that allegation levelled is that by a facsimile message dated 01.01.2008 received by the petitioner, it was informed by the respondent no.3 [The Superintending Engineer (E), GOMD-V, DVC, Hazaribagh, Jharkhand- 829122] that due to theft of power, the 33 KV power supply from DVC was disconnected on 01.01.2008 from 17.25 Hrs. onwards. In fact, the petitioner even came to know from the newspaper report on 02.01.2008, that an FIR has been lodged by the Assistant Electrical Engineer, DVC sub-station, Nai-Sarai, Ramgarh, alleging theft of electricity by the management of the petitioner at its said unit. The said written report, which was made basis of FIR has been brought on record as Annexure-1.
Learned Sr. counsel for the petitioner, Mr. Ajit Kumar has further submitted, that petitioner was leveled with allegation committing theft of Electricity by shorting CT Secondary Terminals at CT junction Box.
-4-Learned Sr. counsel for the petitioner, Mr. Ajit Kumar has further submitted, that inspection has to be made under Section 126 of the Electricity Act with regard to assessment of bill. So far for a criminal action, the provision has been envisaged under Section 135 of the Electricity Act, 2003, both the provisions may be recorded are as follows:-
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:
[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 4 [twice] the tariff rates 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.]
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, 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 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 -5- 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 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:
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 of the licensee or 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 3 [has been or is being], used unauthorisedly;
(b) search, seize and remove all such devices, instruments, wires and any other facilitator or article which 1 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.
Learned Sr. counsel for the petitioner, Mr. Ajit Kumar has further submitted, that DVC on 01.01.2008 at around 17.10 Hrs. disconnected the electrical supply without inspection on allegation of tempering the meter as envisaged under Section 126 of the Electricity Act.
-6-Learned Sr. counsel for the petitioner, Mr. Ajit Kumar has further submitted, that from perusal of Annexure-1 to the writ petition at page no.23, it has been stated by the informant, Sri Vikash Das, Assistant Engineer, Nai-Sarai DVC Sub-station, Ramgarh on 01.01.2008 at 12.15 Hrs. The informant, Sri Vikash Das, Assistant Engineer along with another Assistant Engineer, Sri Harishankar Chouby? and employee, Sri Umesh Kumar, Operator Electricity (Electricity) DVC Sub-station Nai-Sarai, Ramgarh went together, to record monthly meter reading of the petitioner- Jharkhand Ispat Pvt. Ltd. and inspected the current transformer, Junction Box and found that secondary terminal of current transformer red phase (R-phase) and blue phase (B-phase) have been connected by a shorting wire due to which red phase and blue phase have gone short. The said wire was six phase multi strand, insulted copper wire covered by white sheet having length of 756 millimeter, which is normally used in motor binding and thus, disconnected the connection at 5.25 P.M. and took legal steps in the matter.
Learned Sr. counsel for the petitioner, Mr. Ajit Kumar has further submitted, that this action of the respondent-authorities is a regular action taken for meter reading. It was not within the ambit of Section 126 of the Electricity Act, 2003, but definitely once the informant, Assistant Engineer has found that there was theft of electricity, then it comes under the purview of Section 135 of the Electricity Act, 2003, as such, provision of Electricity Act, 2003 is to be followed, which has not been followed by the DVC.
Learned Sr. counsel for the petitioner, Mr. Ajit Kumar has further submitted, that Section 135 (1-A) and 135(2) of the Electricity Act reads as follows:-
"(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 authorized 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 of the licensee or supplier as the case may be, authorized] 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;-7-
(b) search, seize and remove all such devices, instruments, wires and any other facilitator or article which [has been, or is being] used for unauthorized 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."
Learned Sr. counsel for the petitioner, Mr. Ajit Kumar has placed reliance upon the judgment passed by co-ordinate Bench of this Court in the case of M/s Himadri Steel Pvt. Ltd. vs. Jharkhand Urja Vikas Nigam Limited & Ors. in W.P.(C) No.6054 of 2017 at paras 6, 12 and 14, which may profitably be quoted hereunder:-
6. The Electricity Act, 2003 is a special legislation and it contains few unique features; one being powers vested in the Special Court constituted under Section 153 to assess civil liability as well. Chapter XII of the Electricity Act, 2003 deals with "unauthorized use of electricity". Section 126 provides that 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 assess the electricity charges payable by such person or by any other person benefitted by such use. Section 127 provides a forum for appeal to any person aggrieved by final order made under Section 126. Section 135 defines "theft of electricity". It provides an exhaustive definition of theft of electricity which includes various acts of interference with meter, tapping of electricity, making or causing to be made any connection with overhead, underground or underwater lines or cables, or service wires, or service facilities of a licensee and tampering of meter, installation or use of tampered meter etc. It also provides punishment for the first offender and subsequent conviction, vests powers in the licensee and the supplier to disconnect electricity, power of search and seizure, examination or seizure of any books of accounts or documents and raising a provisional assessment bill. Various acts of "unauthorized use of electricity" also seem to constitute offence under Part XIV for which sentence and fine are prescribed. Section 126 and Section 135 are distinct and different provisions which operate in different fields and have no common premise in law [refer "Uttar Pradesh Power Corporation Limited and Others Vs. Anis Ahmad" reported in (2013) 8 SCC 491]. The cases covered under Section 126 are those in which electricity was consumed in variation of the terms and conditions of supply leading to malpractices and mens rea is not an essential ingredient under Section 126, whereas for finding a case of theft mens rea is one of the relevant factors. Part XIV of the Electricity Act, 2003 provides a complete mechanism how cases of theft of electricity have to be dealt with. Part XIV seems to be a complete code in itself. Section 135 reads as under:
"135. Theft of electricity.-(1) Whoever, dishonestly-
(a) taps, makes or causes to be made any connection with overhead, underground or underwater 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, 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 authorized, so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may be extend to three years or with fine or with both;-8-
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 10kW, 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 10kW, 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 10kW, 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 not authorized 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 authorized 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 authorized shall disconnect the supply line of electricity:
Provided further that only 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 of the licensee or supplier as the case may be, authorized 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 unauthorizedly;
(b) search, seize and remove all such devices, instruments, wires and any other facilitator or article which has been or is being used for unauthorized 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."
12. It is thus apparent that under the scheme of sub-section (1-A) the starting point is inspection. It is the inspection report which would reveal that theft of -9- electricity has been detected in course of inspection. It is therefore necessary that the inspection report must reveal and record the evidences collected during the inspection on the basis of which the authorized officer has recorded its satisfaction that it is a case of theft of electricity. Under Regulation 11.5 the authorized officer is required to prepare a report in which any irregularity, if noticed, such as tampered meter, artificial means adopted for theft of energy, must be recorded. Regulation 11.6 provides that the report shall clearly indicate whether sufficient evidence substantiating the fact that theft of energy was found or not, and the details of such evidences must also be recorded therein.
14. Admittedly, it is the inspection report which forms basis for the provisional assessment order in the case of theft of electricity and while so, subjective satisfaction of the authorized officer must reflect in the inspection report. What the authorized officer has found and what is his opinion must be reduced in writing in the inspection report. It is not like this; that it can be inferred from the inspection report that theft of electricity has occurred and therefore supply line disconnected and a First Information Report lodged. De hors the observations in the inspection report, if a First Information Report is lodged, it would not confer powers and jurisdiction upon the authorized officer to make an order of provisional assessment. This assumes significance also for the reason that the authorized officer who has passed provisional assessment order may not be the one who has carried out the inspection. Section 135 itself creates two separate class of officers of the licensee and the supplier. The officers of the licensee or supplier, as the case may be, who may disconnect the supply of electricity under sub-section (1-A) are those who are authorized for this purpose by the Appropriate Commission (first proviso), whereas officers of the licensee and the supplier who may enter, inspect, break-open, search any place or premises are those who are authorized in this behalf by the State Government (sub-section 2). It may be so, that the officers authorized by the Appropriate Commission are the officers authorized by the State Government also, but then a converse may also occur. If the officer who has conducted inspection of the consumer's premises and prepared the inspection report is not the one who has passed the provisional assessment order, and, if the inspection report does not furnish the details of theft of electricity, it cannot be contemplated in law that, still, the authorized officer would have jurisdiction to proceed to make provisional assessment of loss suffered due to theft of electricity. The fact, that the officer authorized by the Appropriate Commission has disconnected the supply line of electricity and lodged a First Information Report, cannot be read into the inspection report so as to confer jurisdiction upon the authorized officer to pass provisional assessment order."
Learned Sr. counsel for the petitioner, Mr. Ajit Kumar has further submitted, that one Interlocutory Application has been filed vide I.A. No.377 of 2008 on 25.01.2008, with a prayer to add after paragraph 'C' which is mentioned in paragraph 6 at page 4 and also after para 49 of the main writ petition following paragraphs may be added, the same is quoted hereunder:-
6.That in paragraph-1, after paragraph "C" the following prayers may be added:-
(D) For issuance of an appropriate writ or a writ in the nature of certiorari for quashing the provisional estimate of the penal amount to the tune of Rs.17,80,09,576/-
served to the petitioner vide letter dated 24.01.2008, since apart from the same being without jurisdiction, the calculations contained therein are also clearly erroneous and contrary to the provisions of the Electricity Act, 2003 and suffers from various anomalies.
7. That after paragraph 49 of the main writ application, following paragraphs may be added:-
50. That it is stated that prior to filing of the present writ application as well as even after filing the petitioners requested the respondent's Electrical Executive Engineer, to supply them with a copy of the Meter Reading at the unit and the copy of the MRI Report for the month of December, 2007 to enable the petitioner to ascertain -10- the actual position of the relevant records including the status & figures of the energy consumption to enable the petitioners to controvert the allegations leveled against the petitioners. Needless to say, none of the said particulars has been furnished.
51. That on 24th January, 2008 the petitioner was, however, served with only a provisional estimate of penalty amount, which is to the tune of Rs. 17,80,09,576/-
allegedly payable by it for alleged theft/pilferage of electricity. Such provisional estimate of penalty is not contemplated in the Electricity Act, 2003 and is in fact opposed to the provisions of section 126 and even section 135 of the Act. The said provisional estimate of penalty is as such wholly without jurisdiction.
52. It appears even on a casual perusal of the provisional estimate of penalty that apart from the same being without jurisdiction, the calculations contained therein are also clearly erroneous and contrary to the provisions of the Electricity Act, 2003. That in the said provisional estimate of penalty there are various anomalies which are enumerated hereunder as follows:-
a) That it is stated and submitted that to the best of the knowledge of the petitioner, no assessing officer of the licensee namely Damodar Valley Corporation for the purpose of Section 126 has been appointed by the State Government, which is mandatory and any provisional assessment carried out in terms of Section 126 would be an abuse of process of law.
b) The raising of a provisional estimate of penalty is not contemplated under the Electricity Act, 2003.
c) The concerned officer of the respondent has evidently made no attempt to satisfy himself that there has in fact been unauthorized use of electricity by the petitioner before raising such provisional estimate of penalty. The same is as such without jurisdiction and cannot form the basis of any further enquiry or assessment by the respondents.
d) The penal bill has been raised for the period of twelve months, though it could have been raised only for the periods during which unauthorized use of electricity is detected.
e) Section 126 of the Electricity Act 2003 provides that a provisional bill may be raised only at a rate equal to twice the tariff rates applicable for the relevant category. The respondents have, however, proceeded in making their calculation at thrice the said rate.
f) For the purpose of making a provisional or even a penal assessment the entire assessed energy cannot be taken into consideration, only the difference between energy and the energy recorded in the meter during the period of alleged unauthorized use of electricity, can be taken. The respondents have, however, proceeded to make their calculations on the basis of the entire assessed energy.
g) The fuel cost surcharge has also been levied three times, although the same cannot be levied more than once.
h) The Maximum demand Charges has also been taken three times although the same cannot be levied at all for the purpose of assessment of penalty in monetary terms.
53. It being manifest from the said purported provisional penal bill that the same also suffers from various anomalies, which are :-
a) Calculation of Maximum demand charges has been made for the period of twelve months.
b) Billing so far it relates to KVA has been done on 8000 KVA, which is wrong.
c) The allegation made against the petitioner unit is only with regard to unit consumption.
d) It is not clear as to on what basis the provisional penal bill has been raised.
e) For the month of November 2007, after taking MRI the billing has been done, after being satisfied with the MRI report, but for carrying out calculation in terms of Section 126 the unit consumed over the period of 1 year has been taken into consideration.-11-
54. In view of the restrictions imposed under Section 126(5) of the Electricity Act, 2003 a penal bill can be raised only for the period during which unauthorized use of electricity is detected. However, in the present case, the penal bill has been raised on the premises that the alleged theft was continuing for the entire year which is contrary to statutory provisions.
55. From the perusal of the provisional estimate of penal amount it appears that the same has been calculated at three times the tariff rate, which is not permissible. Since, the statute is quite clear on this aspect, the same can be levied twice only.
56. The Hon'ble Supreme Court has been pleased to hold that fuel cost surcharge cannot be levied three times in the penal bill for the assessment of compensation. The same can be charged once. The levy of Maximum Demand Charge in the penal bill is highly unreasonable and beyond the purview of Section 126 inasmuch as the maximum demand is a fixed charge.
57. That it is submitted that if the petitioner has to pay the provisional penal bill amount then even if the petitioner sells its factory premises, it would not be able to pay the said amount.
58. That even if the petitioner is to move before the appellate authority under section 127 of the Electricity Act 2003, even than it is not possible for the petitioner to pay even half of the provisional penal bill amount.
59. That it is submitted that if this illegal bill is sustained than there is no option before the petitioner, but to close down the factory.
60 That it is stated that the total worth of the induction furnace unit of the petitioner to which the electricity connection of the licensee has been extended 1s to the tune of Rs. 15.00 Crores, which is manifestly less than the provisional penal bill amount.
61. That it is stated and submitted that the compensation amount has to be raised in terms of the provisions of the Act, whereas the Jharkhand State Electricity Regulatory Commission has only provided the guidelines.
62. That the petitioner submits that the impugned bill is totally unreasonable, illegal, arbitrary and is liable to be struck down.
63. That if the bill is not struck down, it would result into irreparable loss and injury to the petitioner.
Learned Sr. counsel for the petitioner, Mr. Ajit Kumar has thus submitted, that provisional estimate of the penal amount as issued by the Chief Engineer (commercial) dated 24.01.2008 is not an assessment order, as the same has not been issued either invoking the power under Section 126 of the Electricity Act or under Section 135 of the Electricity Act.
Learned Sr. counsel for the petitioner, Mr. Ajit Kumar has further submitted, that the Chief Engineer was neither authorized nor member of the inspection team nor any opportunity has been given as contemplated under Section 126 of the Electricity Act or under Section 135 of the Electricity Act for issuing such provisional estimate of penal amount.
Learned Sr. counsel for the petitioner, Mr. Ajit Kumar has further submitted, that the basis for issuing such penal amount has been brought on record at page no.14 to Interlocutory Application, which can be properly understood, if Annexure- B to the counter-affidavit is considered.
Learned Sr. counsel for the petitioner, Mr. Ajit Kumar has thus submitted -12- that Interlocutory Application may be allowed, so as to amend the writ petition as the counter-affidavit has already been filed by Mr. S. Beck, S/o Late Simon Beck, Joint Director of Personnel, Damodar Valley Corporation, Ranchi on 25.01.2008 annexing Annexure- B, which was made basis for such calculation.
Learned Sr. counsel for the petitioner, Mr. Ajit Kumar has further submitted, that counter-affidavit has also been filed in the Interlocutory Application by Sri Ravi Prakash Tiwary, S/o Sanjay Kumar, Deputy Director (H.R) DVC, Ranchi, referring various provision of law on 01.10.2021.
Learned counsel for the respondent- DVC, Mr. Srijit Choudhary has submitted, that paras 4 to 35 of the counter-affidavit dated 27.09.2021 may be taken note of so as to oppose the prayer made in the Interlocutory Application being I.A. No.377 of 2008:-
Paras 4 to 35 be quoted hereunder:-
4.That the respondent Damodar Valley Corporation states and submits that so far the grievance of the petitioner regarding restoration of electricity line which has been disconnected on 01.01.2008 pursuant to an inspection held on 01.01.2008 has been redressed by this Hon'ble Court.
However, the respondent Damodar Valley Corporation submits before giving parawise reply to the I.A. No.377/2008 it is not out of place to mention here the following facts and laws.
5.That the respondent Damodar Valley Corporation states and submits that the present writ petition filed by the writ petitioner is not maintainable before this Hon'ble High Court in view of the availability of alternative recourse of approaching the forums under Section 42(5) of the Electricity Act 2003.
6.That the respondent Damodar Valley Corporation states and submits that the Section- 42(5) of the Electricity Act 2003 read as follows:-
"Every distribution licensee shall, within six months from the appointed date or date of grant of license, whichever is earlier, establish a forum for Redressal of grievances of the consumers in accordance with the guidelines as maybe specified by the State Commission".
7.That the respondent Damodar Valley Corporation states and submits that in accordance with the above section, the Jharkhand State Electricity Regulatory Commission, Ranchi vide its notification dated 9th November 2011 published (guideline for establishment of forum for Redressal of grievances of the consumer and electricity ombudsmen) Regulation- 2011.
8.That the respondent Damodar Valley Corporation states and submits that accordingly in pursuance of the said notification dated 09.11.2011 which was gazetted as the Jharkhand Gazette extraordinary published by authority, Damodar Valley Corporation constitutes the electricity ombudsmen and forum for Redressal of consumer grievances which is working regularly. Respondent DVC takes leave of this Hon'ble Court to refer the notification dated 09.11.2011 if so required.
9.That the respondent Damodar Valley Corporation states and submits that this Hon'ble Court in batch matter being W.P.C. No.27/2015 (Super Steel Casting Ltd. and Others analogous cases by its judgment dated 12.02.2020 also took into consideration the case of West Bengal Electricity Regulatory Commission Vrs. CESC Limited) reported in 2002 Vol.8 SCC- 715, paragraph- 102 and "Executive Engineer Southern Electricity Supply Company of Orissa Limited (SOUTHCO) & Anr. v. Sri Seetaram Rice Mill" reported in (2012) 2 SCC 108. Paragraph nos.80, 81 and 82 and further was pleased to observe in paragraph- 11 that "As a cumultive effect of the above facts and discussions and keeping in view the availability of the statutory alternative remedy it would not be proper for this Court to exercise its jurisdiction under Article 226 of the Constitution of India."
10.That in view of the above submission the writ petition filed by the petitioner is not maintainable before the Hon'ble High Court under Article- 226 of the Constitution of India.
11.That it is relevant to mention here in a writ application being W.P.C. No.27/2015 and analogous cases the petitioner in those writ application prays for adjustment of monthly energy bills of the petitioners unit for the period commencing from May 2010 to October 2012 in terms of Clause-5(3) of 2003 Tariff Regulation of Central State Electricity Regulatory -13- Commission. The further prayer was made for direction upon the Respondent to carry out necessary calculation of the amount to be refunded to be petitioners in terms of Clause-5(3) of 2003 Tariff Regulation of Central State Electricity Regulatory Commission, as also in terms of the judgment of this Court rendered in WPC No.4097/2011 along with analogous cases dated 20.03.2012, further, read with Multi Year Tariff Order dated 04.09.2014 passed by Jharkhand State Electricity Regulatory Commission for the period 2013-14 to 2015-16.
12.That the respondent Damodar Valley Corporation states and submits that, however, the Hon'ble High Court in W.P.C. No.27/2015 dated 12.02.2020 and other analogous cases found that:-
"10. In view of the judgment of the Hon'ble Supreme Court in case of "West Bengal Electricity Regulatory Commission" (supra) and "Executive Engineer, Southern Electricity Supply Company of Orissa Limited (SOUTHCO) & Anr." (supra) the relief prayed by the petitioner(s) more effectively can be dealth with by the alternative Forum made under the Act 2003.
11.As a cumulative effect of the above facts and discussions and keeping in view the availability of the statutory alternative remedy it would not be proper for this Court to exercise its jurisdiction under Article 226 of the Constitution of India.
12.The determination of the dispute in this case and calculation of the refund squarely fall within the domain of the specialized authority and in that view of the matter, this Court is not inclined to exercise its jurisdiction under Article 226 of the Constitution of India.
13.Accordingly, these writ petitions [being W.P.(C) No.27 of 2015, W.P.(C) No.10 of 2015, W.P. (C) No.109 of 2015, W.P(C) No.113 of 2015, W.P.(C) No.191 of 2015, W.P.(C) No.192 of 2015, W.P.(C) No.239 of 2015, W.P.(C) No.24 of 2015, W.P.(C) No.29 of 2015, W.P.(C) No.33 of 2015, W.P.(C) No.34 of 2015, W.P.(C) No.35 of 2015, W.P.(C) No.37 of 2015, W.P.(C) No.407 of 2015, W.P.(C) No.5922 of 2014, W.P.(C) No.8 of 2015 and W.P.(C) No.91 of 2015] are dismissed with liberty to the petitioners to approach the appropriate Forum by way of filing its objection/grounds for determination in accordance with law.
14.I.A., if any, also stands disposed of.
13.That the respondent Damodar Valley Corporation states and submits that the disputed question of fact as well as for determination of this factual matter technical authority are required to examined the same and therefore, the question raised by the petitioner in the amendment petition is not in accordance with the provisions of law for the prayer made in the amendment petition at para-6 for adding para-D i.e. "For issuance of an appropriate writ or writ in the nature of Certiorari for quashing the provisional estimate of the penal amou8nt to the tune of Rs.17,80,09,576/- served to the petitioner vide letter dated 24.01.2008, since apart from the same being without jurisdiction, the calculations contained therein are also clearly erroenous and contrary to the provisions of the Electricity Act, 2003 and suffers from various anomalies". And the same is misconceived and not maintainable before this writ jurisdiction to decide the disputed question of fact like calculations etc. REPLY TO THE I.A. NO.377/2008
14.That it is stated and submitted that Jharkhand Ispat Pvt. Ltd. was disconnected on 01.01.2008 due to theft of electricity.
15.That it is stated and submitted that the assessment of such theft of electricity based on the Provisional tariff was for Rs.17,80,09,576/- and such bill was served upon the consumer on 24.01.2008.
16.That it is stated and submitted that the consumer moved before Hon'ble High of Jharkhand at Ranchi in W.P.C.95 of 2008, I.A. No.138 of 2008 and by virtue of order dated 28.01.2008, the company paid a sum of Rs.1.5 crores and power supply was restored in the premises.
17.That it is stated and submitted that thereafter no payment was received from Jharkhand Ispat Pvt. Ltd. in relation under Section 379 of the Indian Penal Code and Section 135 of the Electricity Act, subject matter in the above writ application.
18.That it is stated and submitted that the consumer through its representative filed a Criminal Miscellaneous Petition being no.Cr.M.P. No.1412 of 2008 before Hon'ble High Court of Jharkhand at Ranchi for quashing of the entire criminal proceedings including the order taking cognizance dated 14.02.2012 passed by the learned CJM, Hazaribagh in connection with Ramgarh P.S. Case No.01/2008 and T.R. No.305 of 2012 pending before 1 st Additional Sessions Judge cum Special Judge (Electricity), Hazaribagh.
19.That it is stated and submitted that the above mentioned case was heard on several occasions and judgment was pronounce on 09.12.2019 wherein the petitioner was directed to surrender before the Special Court. District & Additional Sessions Judge-1, Ramgarh latest by 09.01.2020 and to pray for regular bail and in the event of his surrender, the Court below shall enlarge him on bail, on furnishing bail bond of Rs.30,000/- with two sureties of the like amount each to the satisfaction of the Special Court, District & Additional Sessions Judge-I, Ramgarh in connection Ramgarh P.S. Case No.1/2008, corresponding to G.R. No.03/2008 T.R. No.305/2012.
-14-20.That it is stated and submitted that there has been no settlement of the G.R. No.03/2008 T.R. No.305/2012. The assessment amount is still unrecovered.
21.That in reply to para- 52(a) of the I.A. it is humbly stated and submitted that in terms of notification no.857 and 1040 dated 31.03.2008 and 05.05.2008 the substation in-charge are authorized as assessing officers. For want of any notification before that date DVC considered the same substation in-charges are the assessing authority. There is nothing wrong considering the substation in-charges are assessing authority.
22.That in reply to para-52(b) of the I.A. it is humbly stated and submitted that Provisional estimate has been done in terms of JSERC regulations.
23.That in reply to para-52(c) of the I.A. it is humbly stated and submitted that it was checked there was much difference in consumer side meter reading compared to substation side meter reading and the consumer was suspected for theft after disconnection and reconnection of power supply to the consumer this difference came down within tolerable limit.
24.That in reply to para- 52(d) of the I.A. it is humbly stated and submitted that the above difference was continuing from November 2006 to December 2007, as because the licensee is restricted to claim beyond 12 months back from the detection of theft in terms of JSERC Regulations. So, DVC could raise the penal bill for the period of 12 months only. Here, the consumer has accepted that the unauthorized use of electricity was detected.
25.That in reply to para-52(e) and (f) of the I.A. it is humbly stated and submitted that the bills were raised as per Section 135 of EA 2003. So penal charge was at thrice the rate.
26.That in reply to para-52(g) of the I.A. it is humbly stated and submitted that the fuel cost surcharge is part of energy charge, so it was charged at thrice the rate.
27.That in reply to para-52(h) of the I.A. it is humbly stated and submitted that in terms of sub- section 1(e)(ii) of section 135 of EA 2003 the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity, so it is charged at thrice the rate.
28.That in reply to para-53. (a) & (b) of the I.A. it is humbly stated and submitted that basis of demand charge has been taken as per their drawal in each month as reflected in the corresponding bills.
29.That in reply to para- 53(C) and (d) of the I.A. it is humbly stated and submitted that allegation made in terms of section 135 of EA 2003 and penal bill has been raised in terms of sub-section1(e)(ii) of section 135 of EA 2003 the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity, so it is charged at thrice the rate.
30.That in reply to para- 53(e) of the I.A. it is humbly stated and submitted that energy meter was bypassed to record less energy in the energy meter.
31.That in reply to para- 54 of the I.A. it is humbly stated and submitted that the theft of electricity was for a period more than one year and the raising of penal bill has been restricted for a period of one year only in terms of JSERC regulations.
32.That the respondent Damodar Valley Corporation states and submits that amendment prayed for by the petitioner in para-6 is not maintainable at this stage it will change the basis nature of the writ petition at this belated stage.
It is further stated and submitted that the provisional bill raised at that time as annexed by the petitioner by covering letter dated 24.01.2008 and petitioner by covering letter dated 24.01.2008 and petitioner enjoying the privilege of the Provisional Assessment after disconnection of supply line subsequent to deduction of theft.
33.That the respondent Damodar Valley Corporation states and submits that the amendment petition will change the nature and genesis of the writ application and therefore, amendment petition filed by the petitioner is liable to be dismissed with cost. The petitioner only with ulterior motive is still now perusing the same, if the amendment petition is allowed the respondent Damodar Valley Corporation will suffer irreparable loss and injury which can only be compensated by the terms of payment of bills of the theft of electricity.
34.That the respondent Damodar Valley Corporation states and submits that in other words amendment cannot be allowed in view of the fact that in Ramgarh P.S. Case No.1/2008 dated 01.01.2008 offence alleged to be committed under Section 379 & Section 135 and 138 of the Electricity Act, 2003 as also the order taking cognizance dated 14.02.2012, whereby and where under cognizance has been taken under Section - 135 and 138 of the Electricity Act, the petitioner however in its writ application fails to disclose this material facts which was decided by this Hon'ble Court in Cr.M.P. No.1412/2016 dated 17.12.2019.
Learned Sr. counsel for the petitioner, Mr. Ajit Kumar has further submitted, that the issue was also involved with regard to adjustment of money -15- paid in future bill.
Considering such submissions, this Court has found that it would be proper to allow the Interlocutory Application, as such, the Interlocutory Application is hereby allowed. The aforesaid paragraph 1-D shall be recorded after paragraph 1- C and paragraphs 50 to 63 shall be recorded after the para 49 of the main writ petition.
I.A. No.377 of 2008 stands allowed.
On consent of both the parties, the amended writ petition has been taken for disposal as the counter-affidavit has been filed separately on 25.01.2008 by Sri S. Beck, S/o Late Simon Beck, Joint Director of Personnel, Damodar Valley Corporation, Ranchi and also composite counter-affidavit has been filed to the supplementary affidavit filed by the petitioner by the same person, Sri S. Beck on 12.02.2013 and comprehensive counter-affidavit dated 27.09.2021 in reply to I.A. No.377 of 2008 has been filed by Ravi Prakash Tiwary, S/o Sanjay Kumar, Deputy Director (H.R.) D.V.C., Ranchi.
Learned Sr. counsel for the petitioner, Mr. Ajit Kumar has further submitted, that the respondent-authorities have completely violated the procedure as envisaged under Section 126 of the Electricity Act or Section 135 of the Electricity Act. The assessment was not made as per procedure prescribed under Section 126 of the Electricity Act or Section 135 of the Electricity Act. The assessment was also not made by the authorized person as it ought to have been made by the member of inspecting team, if it is under Section 126 of the Electricity Act or by the member of the team, who found tempering in the meter junction under Section 135 of the Electricity Act. The Chief Engineer, who has issued the provisional estimate has not followed the principles as envisaged under the Electricity Act, rather he was Chief Engineer. He was not a member of the reading party and he was also not authorized by the State to Act in accordance with law.
Learned Sr. counsel for the petitioner, Mr. Ajit Kumar has placed reliance upon the judgment in the case of M/s Himadri Steel Pvt. Ltd. vs. Jharkhand Urja Vikas Nigam Limited and Ors. in W.P.(C) No.6054 of 2017 at paras 14 to 18 which may profitably be quoted hereunder:-
"14. Admittedly, it is the inspection report which forms basis for the provisional assessment order in the case of theft of electricity and while so, subjective satisfaction of the authorized officer must reflect in the inspection report. What the authorized officer has found and what is his opinion must be reduced in writing in the inspection report. It is not like this; that it can be inferred from the inspection report that theft of electricity has occurred and therefore supply line disconnected and a First Information Report lodged. De hors the observations in the inspection report, if a First Information -16- Report is lodged, it would not confer powers and jurisdiction upon the authorized officer to make an order of provisional assessment. This assumes significance also for the reason that the authorized officer who has passed provisional assessment order may not be the one who has carried out the inspection. Section 135 itself creates two separate class of officers of the licensee and the supplier. The officers of the licensee or supplier, as the case may be, who may disconnect the supply of electricity under sub- section (1-A) are those who are authorized for this purpose by the Appropriate Commission (first proviso), whereas officers of the licensee and the supplier who may enter, inspect, break-open, search any place or premises are those who are authorized in this behalf by the State Government (sub-section 2). It may be so, that the officers authorized by the Appropriate Commission are the officers authorized by the State Government also, but then a converse may also occur. If the officer who has conducted inspection of the consumer's premises and prepared the inspection report is not the one who has passed the provisional assessment order, and, if the inspection report does not furnish the details of theft of electricity, it cannot be contemplated in law that, still, the authorized officer would have jurisdiction to proceed to make provisional assessment of loss suffered due to theft of electricity. The fact, that the officer authorized by the Appropriate Commission has disconnected the supply line of electricity and lodged a First Information Report, cannot be read into the inspection report so as to confer jurisdiction upon the authorized officer to pass provisional assessment order.
15. Therefore, it is the inspection report and the inspection report alone which must record the jurisdictional facts so as to clothe the authorized officer with powers and jurisdiction to pass a provisional assessment order. It is not sufficient that under sub-section (1-A) the authorized officer has powers and jurisdiction to pass a provisional assessment order and the officer making the assessment order is authorized by law; jurisdictional facts must appear from the inspection report. If it is held that since a First Information Report has been lodged and therefore the authorized officer has powers to make provisional assessment, such an interpretation would lead to uncertainty and would confer unbridled powers upon the officers of the licensee or supplier, as authorized by the Appropriate Commission, to lodge a First Information Report and raise provisional assessment bill. Only if the inspection report records a finding on the theft of electricity and gives details of the evidences collected during the inspection which unerringly disclose theft of electricity, irrespective of the obligation to lodge a First Information Report within twenty-four hours of disconnection of electricity as provided under second proviso to sub-section (1-A), the provisional assessment order can be sustained. A plain reading of the third proviso makes it apparent that a provisional assessment order can be made prior to registration of a First Information Report. Under the Electricity Supply Code Regulations, 2015, however, a provisional assessment order can be made even after registration of a First Information Report, but, that is when the procedure for "suspected case of theft" is adopted.
16. Under the Electricity Act, 2003 against the provisional assessment order passed under sub-section (1-A) no appeal is provided, as in case of an assessment under Section 126. In contra-distinction to the procedure laid down under Section 126, sub- section (1-A) does not provide a right of hearing to the consumer, nor the consumer has an opportunity to object to the provisional assessment order. The first opportunity to a consumer to object to the provisional assessment order arrives when the Special Court under Section 154(5) proceeds to determine the civil liability against a consumer in terms of money for theft of energy. Third proviso to sub-section (1-A), however, makes an offer to the consumer to seek resumption of supply of electricity on payment of the assessed amount. Definition of "theft of electricity" under Section 135 is so wide and expansive that it seems to include every incidence of unauthorized use of electricity. Proviso to sub-section (1)(ii) puts a reverse burden on the consumer. Now, in this background of the statutory scheme under Section 135 it cannot be contended that the Courts must keep any challenge to the subjective satisfaction of the authorized officer at bay. Apparently, drastic measures are provided under sub-section (1-A). If such drastic powers - disconnection of supply of electricity, lodging of a First Information Report, provisional assessment order and resumption of supply of electricity only on payment of the assessed amount - are to be exercised by the authorized officer, it must be grounded on relevant considerations.
17. Object behind the drastic measures provided under sub-section (1-A) is to discourage and prevent theft of electricity and, in turn, to minimize revenue loss to the Electricity Boards/Nigams. Section 135 is a penal provision but given the object behind Part XIV as a whole, sub-section (1-A) needs what the Supreme Court calls "a -17- wholesome interpretation", that is to say, a fine balance between literal and purposive construction [refer "State (NCT of Delhi) Vs. Brijesh Singh Alias Arun Kumar and Another" reported in (2017) 10 SCC 779]. Keeping in mind the legislative intendment while wide amplitude has to be given to the expression or a provision under Chapter XIV, but at the same time strict compliance of the procedural aspects must be enforced. Raising a bogey of "theft of electricity" if without any evidence and without recording its satisfaction on detection of theft of electricity by the authorized officer a consumer is forced to pay the provisional assessment bill as a condition for resumption of supply of electricity, the basic and fundamental right of a consumer "to know" is denied to him.
18. Conspectus of the aforesaid statutory provisions reveals that registration of a First Information Report is a subsequent event, the basic document is the inspection report which must speak the facts. Theft of electricity must be visible on a bare reading of the inspection report. In short, theft of electricity must be apparent. If it requires a strenuous exercise to "infer" that it is a case of theft of electricity, the matter shall be first investigated and then decided in the trial, but, before that for raising a provisional assessment bill the authorized officer cannot raise a presumption, which otherwise cannot be raised in law at this stage, so as to vest in itself a power to pass provisional assessment order. Even if the magic words "theft of electricity has been detected" are missing in the inspection report, with bare eyes one must be able to read that, "yes it is a case of theft of electricity".
Learned Sr. counsel for the petitioner, Mr. Ajit Kumar has further submitted, that the provisional estimate issued by the Chief Engineer dated 24.01.2008 itself is bad in law and fit to be set aside.
Learned senior counsel for the petitioner has further submitted, that these issues have already been decided by the Hon'ble Apex Court in the case of Hussein Ghadially @ M.H.G.A. Shaikh and Others Vs. State of Gujarat reported in (2014) 8 SCC 425. Para-21.3, which may profitably be quoted hereunder:-
21.3. Thirdly, because if the Statute provides for a thing to be done in a particular manner, then it must be done in that manner alone. All other modes or methods of doing that thing must be deemed to have been prohibited. That proposition of law first was stated in Taylor v. Taylor (1876) 1 Ch. D426 and adopted later by the Judicial Committee in Nazir Ahmed v. King Emperor AIR 1936 PC 253 and by this Court in a series of judgments including those in Rao Shiv Bahadur Singh & Anr. v. State of Vindhya Pradesh AIR 1954 SC 322, State of Uttar Pradesh v. Singhara Singh and Ors.
AIR 1964 SC 358, Chandra Kishore Jha v. Mahavir Prasad & Ors. 1999 (8) SC 266, Dhananjaya Reddy v. State of Karnataka 2001 (4) SCC 9 and Gujarat Urja Vikas Nigam Ltd. V. Essar Power Ltld. 2008 (4) SCC 755. The principle stated in the above decisions applies to the cases at hand not because there is any specific procedure that is prescribed by the Statute for grant of approval but because if the approval could be granted by anyone in the police hierarchy the provision specifying the authority for grant of such approval might as well not have been enacted.
Learned Senior counsel for the petitioner has further submitted, that once a procedure has been mentioned, all other modes or methods of doing such assessment must be deemed to have been prohibited. Since, the Chief Engineer was not a member to the inspecting team, if inspection was under section 126 of the Electricity Act or it was under Section 135 of the Electricity Act, then also he was not a party with the informant he cannot issue provisional assessment, in view of the provision of law as envisaged under section 126 or 135 of the Electricity Act, 2003, as such, the same is bad in law.
-18-Learned senior counsel for the petitioner has further placed reliance upon the judgment passed by single judge of Hon'ble High Court of Judicature at Patna in the case of Pramod Kumar Drolia Vs. The Bihar State Electricity Board through its Chairman, Vidyut Bhawan, Bailey Road, Patna & Ors. reported in 2013 SCC OnLine Pat 807 = (2014) 2 PLJR 270, Paras-5, 8, 21, 22, 23 to 29 of which may profitably be quoted hereunder:-
"5.The petitioner seeks quashing of the final assessment order No. 1/2010-11 dated 30.3.2011 passed by respondent no.3, Assistant Electrical Engineer-cum-Assessing Officer, Electric Supply Sub-Division, Lakhisarai and for further consequential directions on the respondents to raise the electrical bill of the petitioner treating the same as domestic supply of energy for the month of July, 2010 and the subsequent months.
8.Learned counsel for the petitioner submits that the entire proceedings starting from the inspection are without jurisdiction as the inspection has not been made by the statutorily authorized Officer, namely, the Assessing Officer who, in the present matter, is the Assistant Electrical Engineer, rather a so called inspection has been carried out by a Junior Engineer of the Board who is not authorized under the provisions of the Electricity Act, 2003 as an Assessing Officer and therefore, not competent to make an inspection in terms of Clause 11 of the Bihar Electricity Supply Code, 2007 which is statutory in nature. It is thus, submitted that the said report, which is by an incompetent authority, could not have formed the basis for passing any order under Section 126 of the Act by the Assessing Officer.
21.Evidently in the present matter the inspection has not been carried out by a statutory authority nor the provisional assessment order issued by the statutory authority and thus it is open to the petitioner to approach this Court in its writ jurisdiction against the action of the respondents.
22.Section 126 of the Electricity Act, 2003 and Clause 11.1 (a),(b) & (c) of the Bihar State Electricity Supply Code, 2007 are 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 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.
(5) 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.
(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 to 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) "unauthorized use of electricity" means the usage of electricity -
(i) by any artificial means; or -19-
(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."
"11.1. Procedure for Inspection, Provisional Assessment, Hearing and Final Assessment in case of Unauthorized Use of Electricity (UUE) under Section 126 of the Act.
(a) Inspection.- (i) The Assessing Officer designated under Section 126 of the Act by the State Govt. shall suo-moto, or on receipt of reliable information on unauthorized use of electricity or on instruction from higher authority, promptly conduct inspection and search of such place or premises, exercising due diligence.
(ii) The Assessing Officer, if required to do so, shall handover his business card to the person in occupation or possession or in charge of the place or premises before entering the premises. Photo ID card shall be carried by each team members.
(iii) The access to premises shall be in accordance to clauses 6.32 to 6.36 of the Code. Provided that the occupant of the place or premises of inspection or any person on his behalf shall remain present during the inspection.
(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, etc. The report shall mention any irregularity noticed which may lead to an indulgence of unauthorized use of electricity in the format given in Annexure-6. The Inspecting Officer shall carry seals for this purpose.
(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 person in occupation or possession or in charge of the place or premises at site immediately under proper receipt. In case of refusal by such person 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. Simultaneously, the report shall be sent to such person under Registered Post/Speed Post on the day or the next day of the inspection.
(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.
(b) Provisional Assessment and Notice to the Consumer.-(i) If the Assessing Officer comes to the conclusion that Unauthorized Use of Electricity has taken place in the premises (as defined under Explanation under Section 126 of the Act), he will serve a provisional assessment order upon the person in occupation or in-charge of the premises, giving 7 days time under proper receipt for filing objections, if any, against the Provisional Assessment Order and fixing a date of hearing. The assessment shall be done as per guidelines provided in Annexure-7, appended to the Code.
(ii) 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.
(c ) Hearing and Final Assessment.-(i) On the date of hearing, the Assessing Officer shall hear to the person in occupation or possession or in-charge of the place or premises. The Assessing Officer shall give due consideration to the facts submitted by such person 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 such person in his written reply and during hearing.
(ii) A copy of the order shall be served to such person under proper receipt, and in case of refusal to accept the order or in absence of such person, shall be served on him under Registered Post/Speed Post. The person in occupation or possession or in-charge of the place or premises shall be required to make the payment within 15 days of receipt of final assessment order.
(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 -20- preceding the date of inspection.
(iv) The assessment under (iii) above shall be made at a rate equal to twice the tariff applicable for the relevant category of service."
23.It is evident from the perusal of the aforesaid provisions that the inspection and search of any place or premises under the provisions of the Act and the Code are to be made by the Assessing Officer who shall prepare the report which must clearly indicate whether or not conclusive evidence substantiating the fact that unauthorized use of electricity was found, reflecting the details of such evidence in his report. The report itself is required to be signed by each member of the inspection team and handed over to the person in occupation or possession or in-charge of the place or premises at site under proper receipt and in case of refusal by such person or his representative to accept or give a receipt, a copy of the inspection report is to be pasted at a conspicuous place in/outside the premises and may be photographed. Simultaneously, the report shall be sent to such person under Registered post/Speed post on the day or the next day of the inspection.
24. It is the specific case of the petitioner that the Assistant Electrical Engineer has been designated as the Assessing Officer which has not been denied by the respondents. It is also evident from the inspection report dated 6.8.2010 that on that day it has not been signed by the Assistant Electrical Engineer rather he has signed the report on 9.8.2010 which clearly shows that the inspection has not been made or the report prepared by the Assistant Electrical Engineer. I further find that while the report makes a bald statement that the consumer was found utilizing energy in commercial premises but no details of the evidence substantiating the said fact is to be found in the report.
25. In any view of the matter, it is evident that in the present matter neither the inspection has been carried out in terms of the statutory provisions of the Electricity Supply Code nor is it the Assessing Officer who has made the provisional assessment.
26. When statute requires an action to be performed in a particular manner then it has to be performed in that very manner, as laid down in a long line of decisions of the Apex Court and this Court. Failure to do so would make the action of the concerned authorities illegal and without jurisdiction.
27. It is thus evident that the entire proceedings in the present matter are on the basis of an inspection not made by the Assessing Officer in terms of the provisions of the Act and the Code and thus every subsequent action of the respondents would be without jurisdiction, being based upon an illegal inspection and illegal inspection report.
28. In view of the aforesaid I see no reason to go into the issue of the calculation made in the quantum of penal bill, provisional or final, by the respondents. The entire action of the respondents starting with the inspection report dated 6.8.2010 leading up to the final order of assessment dated 30.3.3011 are quashed and the writ application is, accordingly, allowed.
29. The respondents are directed to raise the bills for the unpaid period on the basis of domestic supply after adjusting the amounts already paid."
Learned senior counsel for the petitioner has thus submitted, that several High Courts have considered this aspect of the matter, but even then the Damodar Valley Corporation is not following the principle laid down in the Act and thus the steps taken by the respondent-State, ipso facto bad in law and cannot sustain in the eyes of law. On this point learned senior counsel for the petitioner has further placed reliance upon in the case of C.E.S.C. Ltd. Vs. Abdos Trading Co. Pvt. Ltd. reported in AIR 2013 Cal 76 and Narayan Chandra Kundu Vs. State of West Bengal & Ors. reported in AIR 207 Cal 298.
Learned Senior counsel for the petitioner has thus submitted, that provisional estimate of penal amount is without jurisdiction, if it is also considered to be a provisional assessment letter.
Learned Senior counsel for the petitioner has further submitted, that Apex -21- Court in the case of Assistant Commissioner of State Tax and Others Vs. Commercial Steel Limited, reported in 2021 SCC OnLine SC 884 has taken note of such eventuality with regard to the maintainability of a writ petition at Para-11, which may profitably be quoted hereunder:-
"11 The respondent had a statutory remedy under section 107. Instead of availing of the remedy, the respondent instituted a petition under Article 226. The existence of an alternate remedy is not an absolute bar to the maintainability of a writ petition under Article 226 of the Constitution. But a writ petition can be entertained in exceptional circumstances where there is:
(i) a breach of fundamental rights;
(ii) a violation of the principles of natural justice;
(iii) an excess of jurisdiction; or
(iv) a challenge to the vires of the statute or delegated legislation."
Learned Senior counsel for the petitioner has further submitted, that in the present case the respondent authorities have violated the principle of natural justice, as no assessment order has been passed either following the provision as envisaged under Section 126 or 135 of the Electricity Act. The Chief Engineer Commercial has exercised his excess jurisdiction by passing a provisional estimate of penal amount, in a matter where he was not a member to the raiding team as envisaged under Section 126 or 135 of the Electricity Act, 2003, as such, entire demand note, provisional estimate of the penal amount, though it has been based on wrong calculation, which will be apparent from perusal of Annexure- B to the counter-affidavit with Annexure-3 to the Interlocutory Application at page- 14 on different counts, such as the penalty can be imposed twice as per the Section 126 or 135 of the Electricity Act, 2003, but the penalty has been imposed more than nine times. The assessment of loss, which has been computed by the DVC is not aware of the method, based upon the formula L x F x H x D. Learned Senior counsel for the petitioner has further submitted, that few things have been admitted by the respondent-authorities in their counter-affidavit, which proves the above contention made by the petitioner the same has been mentioned in counter-affidavit filed by Sri S. Beck, S/o Late Simon Beck, Joint Director personnel, Damodar Valley Corporation, Ranchi in this matter and referred paras 15 and 22, which may profitably be quoted hereunder:-
"15. That in reply to the statements made in paragraph 16 of the writ application, it is stated that the statements made therein are not correct. Inspection report is submitted only when joint meter testing takes place and its report is given to the consumer which also bear the signature of the consumer or its representative but no inspection report is served when theft of electricity is found.
22. That in reply to the statements made in para 35 of the writ application, it is stated that Damodar Valley Corporation is a State within the meaning of Article 12 of the Constitution of India and as such all its officers are public servants and under the provisions of section 135 (2) of the Electricity Act, 2003 they are authorized in this behalf to search, seize the device, instruments, wires."
-22-Learned senior counsel for the petitioner has further submitted that annexure-B, which is the basis for computing the loss caused to the DVC, but this never proves that this loss to the DVC has been caused because of the petitioner, as such, such computation is bad in law.
Learned Senior counsel for the petitioner has further submitted, that the fuel surcharge has been calculated @ three times, which ought to have been twice. This issue has already been settled in the case of J.M.D. Alloys Ltd. Vs. Bihar State Electricity Board and Others reported in (2003) 5 SCC 226, Para-17, of which may profitably be quoted hereunder:-
"17.The Bihar State Electricity Board feels aggrieved by that part of the judgment and order of the Division Bench of the High Court by which it has been held that the surcharge cannot be levied at thrice the rate per unit and has accordingly filed Civil Appeal No.8395 of 2002. Shri V.R. Reddy, learned senior counsel for the Electricity Board has submitted that the cost of a unit of electricity is not fixed and on the contrary it is dependent upon the fuel surcharge. The formula for calculating the fuel surcharge is a long and complicated one and is given in Clause 16.10.3 of the Tariff. A host of factors have to be taken into consideration in calculating the fuel surcharge and they depend upon many variables. Shri Reddy has submitted that since the surcharge has necessarily to be taken into consideration and has to be added in the cost of electricity and, therefore, in accordance with part (III) of Clause 16.9 of the Tariff, it should also be assessed at three times the rate per unit. We are unable to accept the contention raised. Clauses 16.9 and 16.10.3 are separate and distinct clauses in the Tariff. Clause 16.9 lays down the formula for calculating the value of the electrical energy abstracted or consumed by a consumer by exceeding the contracted load or by creating obstruction in running of meter. Part (III) of this clause deals with method of charging the assessed units and sub-para (a) thereof lays down that the consumption so assessed shall be charged at thrice the rate per unit of the Tariff applicable to the consumer excluding the consumption recorded by the meter and the latter shall be charged at the appropriate Tariff rates. Clause 16.10.3 is a separate clause which deals with fuel surcharge and it nowhere lays down that this additional surcharge will also be levied at thrice the rate per unit of the tariff. The two clauses namely 16.9 and 16.10.3 have to be read separately and there being no specific provision for assessing the fuel surcharge at thrice the rate per unit, it is not possible to hold that in such a case the fuel surcharge should also be charged at thrice the rate per unit."
Learned Senior counsel for the petitioner has further submitted, that this issue has also been decided by the Apex Court in the case of West Bengal State Electricity Distribution Company Ltd. and Others Vs. Orion Metal Pvt. Ltd. and Another reported in 2019 SCC OnLine SC 1077. Paras-17 & 19 of which may profitably be quoted hereunder:-
"17. It is clear from the reading of Section 126 (6)(b)(iii) of the Act that instances of use of energy through a tampered meter is included in the definition of unauthorized use of electricity. If that is so, there is no reason, for excluding the power of the authorities for making assessment under Section 126(1) of the Act to assess the loss of energy, where electricity is used through a tampered meter. All instances of unauthorized use of energy may not amount to theft of electricity within the meaning of Section 135 of the Act, but at the same time, the theft of electricity which is covered by Section 135 of the Act, will fall within the definition of unauthorized use of electricity. As per Section 135(1A) of the Act, without prejudice to the other provisions of the Act, the licensee or supplier, as the case may be, upon detection of theft of electricity, is empowered to disconnect the power supply immediately. Further, as per the third proviso to Section 135(1A) of the Act, the licensee or supplier, as the case may be, on -23- deposit or payment of assessed amount or electricity charges, without prejudice to the obligation to lodge a complaint, can restore the power supply electricity within forty- eight(48) hours of deposit /payment of such amount. Thus, it is clear that the authorities under the Act are empowered to make a provisional and final assessment by invoking power under Section 126(1) of the Act, even in cases where electricity is unauthorisedly used by way of theft. When a consumer deposits the assessed amount, the licensee or the supplier has to restore the power supply. The assessed amount referred to in the aforesaid proviso, relates to assessment which is contemplated under Section 126(1) of the Act only. There is apparent distinction between Section 126 and Section 135 of the Act. Section 126 forms part of the scheme which authorizes electricity supplier to ascertain loss in terms of revenue caused to it by the consumer by his act of "unauthorized use of electricity" whereas Section 135 deals with offence of theft if he is found to have indulged himself in the acts mentioned in clauses (a) to (e) of sub- section (1) of Section 135 of Electricity Act. Further, it is also clear from Section 154 of the Act, which prescribes procedure and power of Special Court, that the Special Court is empowered to convict the consumer and impose a sentence of imprisonment. The Special Court, in cases, where a criminal complaint is lodged, is also empowered to determine civil liability under Section 154(5) of the Act. As per Section 154(6) of the Act, in case civil liability so determined by the Special Court is less than the amount deposited by the consumer or the person, the excess amount so deposited by the consumer or the person, shall be refunded by the licensee or the concerned person, as the case may be. Merely because the Special Court is empowered to determine civil liability under Section 154(5) of the Act, in cases where a complaint is lodged, it cannot be said that there is no power conferred on authorities to make provisional assessment/final assessment under Section 126 of the Act.
19. We also do not find any valid reason for making a distinction as made by the High Court in applying Section 126 of the Act. From the scheme of the Act, it appears that after inspection team notices unauthorized use of energy by tampering the meter, the authorities can disconnect the power supply immediately and make immediate assessment for loss of energy, by invoking power under Section 126(1) of the Act. The term "unauthorized use of energy" is of wide connotation. There may be cases of unauthorized use of energy, not amounting to theft, which are cases viz. exceeding the sanctioned load or using the electricity in the premises where its use is not authorized etc. But at the same time, when there is an allegation of unauthorized use of energy by tampering the meter, such cases of unauthorized use of energy include 'theft' as defined under Section 135 of the Act. The power conferred on authorities for making assessment under Section 126(1) of the Act and power to determine civil liability under Section 154(5) of the Act, cannot be said to be parallel to each other. In this regard, we are of the view that the High Court has committed an error in recording a finding, that both proceedings cannot operate parallelly. In a given case where there is no theft of energy, amounting to unauthorized use of energy, in such cases no complaint of theft can be lodged as contemplated under Section 135 of the Act. In such cases for loss of energy, on account of unauthorized use of energy not amounting to theft, it is always open for the authorities to assess the loss of energy by resorting to power under Section 126(1) of the Act. In cases where allegation is of unauthorized use of energy amounting to theft, in such cases, apart from assessing the proceedings under Section 126(1) of the Act, a complaint also can be lodged alleging theft of energy as defined under Section 135(1) of the Act. In such cases, the Special Court is empowered to determine civil liability under Section 154(5) of the Act. On such determination of civil liability by the Special Court, the excess amount, if any, deposited by the petitioner, is to be refunded to the consumer. It is a settled principle that to prove the guilt of the accused in a criminal proceeding, authorities have to prove the case beyond reasonable doubt and the element of mens rea is also to be established. On the other hand, such a strict proof is not necessary for assessing the liability under Section 126(1) of the Act."
Learned senior counsel for the petitioner has further submitted, that under Section 126 or 135 of the Electricity Act, 2003 the procedure is almost same. The -24- process are to be followed in both the cases either if it is an assessment on the basis of inspection or it is a calculation for lodging an FIR, but the procedures are same.
Learned senior counsel for the petitioner has further submitted, that the provisional estimate of penal amount as issued by the Chief Engineer dated 24.01.2008 is without jurisdiction and the same is fit to be quashed.
Learned counsel for the respondent- DVC, Mr. Srijit Choudhary has opposed the prayer and has submitted, that there was a disconnection as prayed in paragraph-1-A of the writ petition, which was subsequently redressed in view of the order passed in I.A. No.138 of 2008 dated 28.01.2008 on payment of Rs.1.5 crores as mentioned above and the electricity was restored.
Learned counsel for the respondent- DVC has submitted that Section 42 of the Electricity Act, 2003 sub-section (5) of Section 42 is as follows:
Duties of distribution licensee and open access:
"42.(5) Every distribution licensee shall, within six months from the appointed date or date of grant of licence, whichever is earlier, establish a forum for redressal of grievances of the consumers in accordance with the guidelines as may be specified by the State Commission."
Learned counsel for the respondent- DVC has further submitted, that petitioner cannot seek relief before this Court, rather the petitioner has to move before forum as under section 42(5) of the Electricity Act, 2003.
Learned senior counsel for the petitioner has thus submitted that there is a restriction in clause- 9 of Guidelines for Establishment of Forum for Redressal of Grievances of the Consumers and Electricity Ombudsman, Regulation 2011 notified dated 09.11.2011 of complain that can be taken up by the forum and the forum shall take up any kind of grievances/ complaint as defined in Clause 2(e) of these regulations provided that complain has already been registered as per Clause- 8 of the Regulation and the same has not been redressed within 30 days or the consumer is not satisfied with the redressal, except the complain pertaining to one offence and penalties as specified under Section 135 to 141 of the Act, accident an enquiries as specified under Section 161 of the Act unless prescribed by the State Government by general or special order.
Learned senior counsel for the petitioner has thus submitted that since admittedly there is a proceeding under Section 135 of the Electricity Act, whereby they have lodged an FIR, so they cannot agitate the issue of Section 42(5) for redressal of the grievances, as such, the submissions of the learned counsel for the DVC is not sustainable in the eyes of law.
Learned counsel for the respondent- DVC, Mr. Srijit Choudhary has further -25- submitted that this Court cannot calculate the amount of loss under writ jurisdiction that has to be calculated in view of the provision under Section 126 of the Electricity Act, for which this Court may remit the matter before the DVC to pass an order by assessing order, who is member of the raiding team, namely Vikash Das or Harishankar Choubey the then Assistant Electrical Engineer on the organization and if those persons are not available because of lapse of time, then as per the explanation to Section 126 of the Electricity Act, it ought to the assessing officer as per explanation (a) whereby 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, as such, this matter may be remitted to the respondent- DVC.
After hearing learned counsel for the parties and on the basis of the materials available on record and the judgment relied by the parties, this Court has minutely taken note of the procedure adopted by the Damodar Valley Corporation. There is no dispute that on 01.01.2008, a team comprising of two assistant engineers, namely Vikash Das and Harishankar Choubey along with one electrical employee, Umesh Kumar (operator), went to record the monthly consumption of electrical energy by the Jharkhand Ispat Pvt. Limited, Ramgarh. They have found certain illegality and lodged an FIR, meaning thereby they acted as per part 14 of the Electricity Act 2003 invoking the provision under Section 135 of the Electricity Act, 2003. They lodged an FIR within 30 days, but so far computation that has been done, which deals in Sub-Section 1-A of Section 135 of the Electricity Act, 2003, there is non-compliance of the same, as the Chief Engineer, who has issued the provisional estimate the penal amount, was not the member of the raiding party, which shall be apparent from the body of the FIR brought on record as Annexure- 1, as such, the letter dated 24.01.2008 issued by Chief Engineer (Commercial) is without jurisdiction in view of the provision of section 126 or 135 of the Electricity Act, 2003, as such, the same is hereby quashed.
So far relief sought by the petitioner, pursuant to their amendment application is concerned, this Court cannot compute the loss caused to the DVC. The computation was also bad in law, which is apparent from the method of calculation explained by the respondent- DVC as Annexure-B to the counter- affidavit dated 25.01.2008. This loss caused at the Ramgarh cannot be thrusted upon the petitioner, as there are several consumers. The impugned provisional assessment cannot be accepted unless and until respondent -DVC can point out, -26- that no other consumers was at faulty on that day then only such argument can be accepted by this Court. In absence of such facts, the same is not acceptable to this Court.
So far the computation of compensation is to be made as per Section 126 (6) of the Electricity Act with regard to assessment under this section shall be made at a rate equal to twice the tariff applicable for the relevant category of service specified in sub section 5. Admittedly the meter was installed / replaced on 16.10.2007.
So far the fuel surcharge and demand charge, which has been imposed thrice, this issue has already been decided by the Apex Court in the case of West Bengal State Electricity Distribution Co. Ltd. (Supra) at para-19. The assessment has to be carried out under Section 126 of the Act, even it is a case under Section 135 of the Electricity Act, as such, the respondent- authorities have to calculate the loss on the basis of Section 126 (6) of the Electricity Act, 2003 with electricity charge without multiplying the same as it has been done by the respondent- authorities.
Accordingly, the instant writ petition is hereby allowed by setting aside the provisional estimate of penal amount dated 24.01.2008 directing the respondent- DVC to pass necessary order after affording opportunity of hearing to the petitioner within a period of 30 days from today.
The respondent- DVC shall issue a provisional assessment as per Section 126(6) of the Electricity Act within 30 days by assessing the same by the member of the raiding team i.e. two Assistant Engineers, namely, Vikash Das and Harishankar Choubey along with one electrical employee, Umesh Kumar (operator).
However, in absence of these two officers because of unavoidable circumstances, the assessment can be made as per Section 126 explanation (a) of the Electricity Act. On issuance of provisional assessment order, the same will be furnished upon the petitioner, who has a right to file objection, if so likes within a week and thereafter the respondent-authorities shall dispose of the objection after providing an opportunity of hearing, in accordance with law, by a reasoned order, within a further period of two weeks.
(Kailash Prasad Deo, J.) Jay/ R.S.