Jharkhand High Court
M/S D.S.Associates vs Jharkhand State Electricity Bo on 19 February, 2015
Author: Prashant Kumar
Bench: Prashant Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI.
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W.P.C. No. 1769 of 2010
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M/s D.S.Associates, Singhbhum (East) Jamshedpur . Petitioner
Versus
1 Jharkhand State Electricity Board,through its Chairman
2. General Manager-cum- Chief Engineer, Jamshedpur
3. Electric Superintending Engineer, Jamshedpur
4. Electric Executive Engineer, Saraikela
5. Rajendra Ram, Saraikela, Kharsawan Respondents.
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CORAM : HON'BLE MR. JUSTICE PRASHANT KUMAR
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For the Petitioners : M/s M.S.Mittal,S.John, Vikash Kishore
For the Respondents : M/s. Ajit Kr.,Mukesh Kr.,R.K.Singh
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Reserved on 23.01.2015 Delivered on 19/02/2015
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Prashant Kumar,J. This writ application has been filed for the following
reliefs:
(a) For issuance of an appropriate writ or a writ in the nature
of MANDAMUS directing upon the Respondents to forthwith
restore the electric connection of the petitioner which has
been disconnected on 14.04.2010 pursuant to a purported
inspection alleging unauthorized use of electricity in terms of
Section 135 of Electricity Act, 2003, inasmuch as the said
disconnection is tainted with malafide and arbitrariness and
without any reasonable basis thereof.
(b) For issuance of an appropriate writ or a writ in the nature
of CERTIORARI for quashing the inspection report dated
14.04.2010, inasmuch as the allegation leveled against the petitioner based upon such inspection report alleging breaking of seals and unauthorized usage of electricity is not within the domain of Section 126 or 135 of the Electricity Ac, 2003, since merely because some of the seals were alleged to be found broken does not make out the case of theft of Electricity.
(c) For a declaration that until such time the Electricity Board gets the meter tested under the provision of Clause 13.4 of Electric Supply Code, Regulations 2005, the licensee cannot proceed under Section 126 of the Electricity Act, 2003 in raising penal bill, until such time the provision of clause 13.4 of the Electric Supply Code are strictly complied with by the licensee.
(d) For issuance of an appropriate writ or a writ in the nature of MANDAMUS directing upon the Respondents to forthwith -2- send the meter , which has been removed from the petitioners premises on 14.04.2010 to the third party investigation/ laboratory, as approved by the State Electricity Regulation Commission.
(e) For issuance of an appropriate writ or a writ in the nature of MANDAMUS directing the third party investigation / inspection by the Vigilance Department or the Government of Jharkhand, in order to analyze/investigate as to whether the seals alleged to have been tampered with/duplicate can be verified so as to arrive at a logical conclusion, as to whether at all the seals purported to have been tampered is the actual seals of the Board or not and also as to whether in order to harass the petitioner allegations of theft is being made or not.
(f) 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. It is stated that petitioner is a proprietorship firm engaged in the business of manufacture and sale of cement,slag and blast furnace slag commonly known as GBF slag. It is stated that for running the aforesaid industry, petitioner took electric connection from the State Electricity Board ( hereinafter referred as the Board ). It is submitted that the contract demand of the petitioner is 200 KVA. It is further stated that petitioner lodged a complaint before the General Manager-Chief Engineer, Singhbum Electrict Supply Area, Jamshedpur against the Assistant Electrical Engineer, Rajendra Ram that he is demanding Rs. 50,000/- ( rupees fifty thousand), and threatened that if the petitioner will not pay above amount, he will face consequences. It is further alleged that due to aforesaid threat the industry of the petitioner is on the verge of closure. It is further stated that since the aforesaid complaint was forwarded to the Chairman of the Board for taking action against Sri Rajendra Ram, he along with the other officers of the Board inspected the factory premises of the petitioner on 14.04.2010. It is further stated that the said team was led by Sri Rajendra Ram. It is further stated that during the said -3- inspection, the inspecting team found that the seals of the distribution transformer is not property fixed. It is further stated that transformer was installed out side the factory premises and petitioner had no check and/or control over the same. It is stated that somebody else with mala fide intention might have caused aforesaid damage. It is further stated that inspection team found that metering box as well as metering room are properly sealed and there is no access of the petitioner inside the metering room. It is further stated that though inspecting team has found every thing correct but in the remark, it was stated that certain seals of the distribution transformer was not found properly fixed and as such all such arrangements made for pilferage of electricity. It is stated that on the basis of aforesaid inspection report, the Assistant Electric Engineer ( Sri Rajendra Ram) lodged an FIR before the Chandil P.S., wherein, he stated that because of tampering of the seal, the Board has suffered loss of Rs. 42,73,611/-. It is further stated that on the date of inspection itself, petitioner's electric connection has been disconnected. Thereafter, petitioner filed this writ application for the aforesaid reliefs.
3. It appears that on 22.04.2010, a Bench of this Court directed the petitioner to make payment of Rs. 13,00,000/-(rupees thirteen lacs) and upon such deposit , the Electricity Board was directed to restore electric connection in the factory premiss of the petitioner, till petitioner continues to pay current bills.
4. It appears that petitioner has filed an Interlocutory Application being I.A.No.3417 of 2010 wherein, he stated that he paid Rs. 13,00,000/- with the Electricity Board but even then he received a bill of Rs. 34,88,308/- towards the arrear of the remaining amount of punitive bill of Rs. 47.87 lacs. It appears that arrear amount has been kept in abeyance by a Bench of this Court vide order dated 18.04.2011. It is made clear that the said -4- order will be subject to the final decision of this case.
5. It is submitted by Sri M.S.Mittal, learned senior counsel for the petitioner that the Assistant Electrical Engineer is not competent to make inspection under section 135 of the Electricity Act, 2003. Thus,inspection report and lodging of FIR is without jurisdiction. It is stated that the assessing officer was not present during inspection, thus, subsequent bill raised on the basis of provisional assessment is also against the law. Sri Mittal further submitted that the alleged inspection and subsequent action taken by the Board against the petitioner is mala fide, because the aforesaid inspection was conducted by a team led by Sri Rajendra Ram, Assistant Electrical Engineer against whom petitioner lodged a complaint before the competent authority. Accordingly, he prayed that the inspection report, provisional assessment order and the bill issued on the basis of aforesaid provisional assessment order is liable to be quashed. It is further submitted that no seal of the metering unit or metering room was found broken. The broken seal was found only in the transformer room, which situates outside the factory premises, where petition had no control. Thus, it cannot be said that the said seal was broken by the petitioner.
6. On the other hand, Mr.Ajit Kumar, learned counsel for the respondents submitted that in view of Notice No. 1605 dated 17.07.2006 issued by the Govt. of Jharkhand, the Assistant Electrical Engineer has powered to make inspection under section 135 (2)(a)(b)(c) of the Electricity Act, 2003. Thus, contention of learned counsel for the petitioner that inspection is without jurisdiction is liable to be rejected. It is then submitted that in the instant case, in fact, the inspection was conducted by a team of officers of the Board consisting of one Electrical Superintending Engineer, three Electrical Executive Engineers and two Assistant -5- Electrical Engineers. The contention of petitioner that the inspecting team was led by Sri Rajendra Ram is also not correct. It is submitted that the inspecting team was led by Electrical Superintending Engineer. It is submitted that aforesaid fact will manifest from the inspection report itself. It is submitted that the inspection was conducted in presence of representatives of the petitioner, who signed on the inspection report and, thereafter, copy of inspection report handed over to him. It is submitted that the said inspection in the petitioner's factory premises conducted, because abnormal nature of load graph and heavy unbalance in current drawl observed in remote metering system. It is submitted that during inspection, it was found that three CTs were installed in the LT bushing of distribution transformer. The sealing arrangements made in the outer cover of the distribution transformer of the LT terminal was open. Beside the aforesaid opening of seals, the front cover of LT bushing cover of distribution transformer was not properly fixed by nut-bolts. The inspecting team found that such arrangements done for pilferage the electricity.
7. It is further submitted by Mr. Ajit Kumar that transformer has been installed inside the boundary wall of petitioner's factory. Therefore, aforesaid unauthorized act for suppressing the energy reading in the metering unit was done by the petitioner. It is submitted that allegation of making complaint against Sri. Rajendra Ram relates to the year 2008. It is further submitted that inspection conducted in the year 2010 by a team led by the superior officers of the Board . It is also submitted that the said inspection conducted because the Board officials found abnormal nature of load graph and heavy unbalance current drawl in the remote metering system. Thus, it is not acceptable that inspection carried out by the team with a mala fide intention.
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8. Having heard the submissions, I have gone through the records of the case.
9. From perusal of inspection report dated 14.04.2010 ( Annexure-2), it is clear that the said inspection carried out by a team consisting of one Electrical Superintending Engineer, three Electrical Executive Engineers and five Assistant Electrical Engineers. It also appears from the inspection report that the inspection conducted in presence of the representative of consumer, who signed on the inspection report and received a copy of the same.
10. In view of the aforesaid fact, the averments made by the petitioner at paragraph no.17 of the writ application that inspecting team was led by Sri Rajendra Ram appears to be misleading. It is specifically stated in the counter affidavit filed by the Board that said inspection carried out on 14.04.2010 by A.P.T. team of Jamshedpur because of abnormal nature of the load graph and heavy unbalance in current drawl observed in the remote metering system. It appears that on inspection, the inspecting team found that there was tampering of seal in the current transformer which fed electricity in the meter for recording the consumption of energy. From perusal of FIR, it appears that in all the three CTs installed on LT bushing of the transformer, PVC cover wires found for pilferage of electricity by disturbing the metering system. It is specifically stated in the counter affidavit that main transformer was installed inside the boundary wall of petitioner's factory. Thus, averments of the petitioner that transformer lies outside the factory premises has been disputed by the Electricity Board.
11. In view of the fact that inspection was carried out by a team of top officials of the Board, after noticing the abnormal nature of load graph and heavy unbalance in current drawl in remote metering system, I find that -7- the aforesaid inspection was not mala fide, only because petitioner lodged complaint against one of the junior officer of the inspecting team. Thus, aforesaid contention raised by Sri M.S.Mittal is rejected.
12. Now, coming to the point of jurisdiction, it is worth mentioning that vide notification no. 1781 dated 02.09.2014, issued by the Department of Energy, Govt. of Jharkhand, the Electrical Superintending Engineer and Electrical, Executive Engineer are entitled to make inspection under section 135 (2) (a)(b)(c) of the Electricity Act.
13. In the instant case, as noticed above, the inspection team consisting of one Electrical Superintending Engineer, five Electrical Executive Engineers. Thus, there is no illegality in the aforesaid inspection. Moreover, it appears that the Energy Department, Govt. of Jharkhand vide Notification no. 1605 dated 17.07.2006 had authorised all Assistant Engineers to carry out the provisions of section 135 of the Electricity Act, 2003. Thus, I find that even the Assistant Electrical Engineer has power to make inspection and lodge complaint against any consumer for the theft of electricity.
14. Sri Mittal, further submitted that in the instant case, the inspecting team has found tampering in the seal of CTs installed with the distribution transformer. He submitted that under Clause 15.8(vii) of the Electricity Supply Code , no case of theft could be lodged against the petitioner on account of missing of seals on the metering unit or tampered or breakage of glass window. Accordingly, he submitted that FIR lodged in this case is against the provisions of the Electricity Supply Code.
15. In the instant case, as noticed above, the seal installed on the cover of LT bushing box of distribution transformer was found open. The inspecting team has found that the seal of meter box and door of meter room intact. Thus, provisions contained in Clause 15.8(vii) has no -8- application in this case, because the said provision is applicable to the cases cases of missing or tampering of seals on the meter or breakage of glass window.
16. In the instant case, petitioner has not challenged the provisional assessment order or the bill issued in pursuance of provisional assessment order. Vide I.A.No.3417 of 2010, the petitioner only prayed that the provisional assessment bill be kept in abeyance till disposal of this case, which was allowed vide order dated 18.04.2011 by a Bench of this Court, subject to the final decision of this case.
17. So far the contention of Mr. Mittal that in the instant case, the procedure contained under section 126 of the Electricity Act will be applicable is not acceptable, because the Division Bench of this Court in M/s Shyam Lal Iron & Steel Company.Vs. Jharkhand State Electricity Board and Ors reported in 2013 (3) JLJR-435 has held that in case of theft section 126 of the Electricity Act has no application, rather provision of 135 of the Electricity Act will apply. The aforesaid decision attains finality, as the S.L.P. filed against aforesaid judgment dismissed by the Hon'ble Supreme Court. In the aforesaid decision, the Division Bench has held that in the case of theft of electricity the assessment will be made as per the procedure prescribed under section 135 of the Electricity Act read with Clause 15.8(ii) to (vi) of the Electricity Supply Code Regulation 2005 (as amended by Jharkhand State Gazette Notification no. 501 dated 01.09.2010).
18. From perusal of the supplementary bill annexed with I.A.no. 3417/2010, it appears that provisional assessment made applying the formula of LxHxFxD, which is inconsonance with the schedule of the Regulation,2005. Thus, I find no illegality in the said assessment order. However, if petitioner has any grievance against the assessment order or -9- bill issued in pursuance of that , it is open for him to challenge the same before the Special Court under section 154 of the Electricity Act, 2003.
19. In view of the aforesaid discussions, I find no merit in this writ application, accordingly, the same is dismissed. Petitioner is directed to pay Rs. 34,88,308/-,( which has been kept in abeyance by this court vide order dated 18.04.2011) within one month from today, otherwise it will be open for the Electricity Board or the successor company to take all coercive steps, including disconnection of electric connection of petitioner's factory, for realization of aforesaid amount.
( Prashant Kumar, J.) Raman/