Allahabad High Court
Smt. Kalpana Agarwal vs Managing Director Western Electricity ... on 22 November, 2019
Bench: Sudhir Agarwal, Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 34 Case :- WRIT - C No. - 58875 of 2007 Petitioner :- Smt. Kalpana Agarwal Respondent :- Managing Director Western Electricity And Others Counsel for Petitioner :- Govind Krishna Counsel for Respondent :- H.P. Dube,Nripendra Mishra Hon'ble Sudhir Agarwal, J.
Hon'ble Rajeev Misra, J.
1. Heard Mr. Govind Krishna, learned counsel for petitioner and Mr. Nripendra Mishra, learned counsel for respondent.
2. This writ petition filed under Article 226 has been preferred by sole petitioner, Smt. Kalpana Agarwal with a prayer to issue writ of certiorari quashing the direction dated 02.11.2007 issued by Executive Engineer (Revenue), Electricity Division, Hapur, Ghaziabad annexing a bill of assessment for Rs. 15,20,828/- and directing petitioner to pay the same. Petitioner has also sought a writ of mandamus commanding Respondent-4 not to initiate recovery proceedings against her and to reconnect domestic electricity line in the residential house of the petitioner.
3. By interim order dated 29.11.2007, recovery was stayed and electric connection was directed to be restored, therefore, to the extent of relief no. 3 the writ petition has rendered infructuous and we are now confined to consider the matter with regard to reliefs-1 and 2.
4. Facts, in brief, giving rise to present writ petition are that petitioner was given an electric connection for domestic use with a contracted load of 5 KV bearing no. 209069. Her husband was a Class III employee in the office of Superintending Engineer, Electricity Distribution Circle, Hapur, District Ghaziabad (now District Hapur). Petitioner's husband K.K. Agarwal was dismissed from service on 08.10.2004. Petitioner's husband alleged that there was a large scale bungling of public funds of U.P. Power Corporation Ltd. (hereinafter referred to as "U.P.P.C.L."). He filed an application under Section 156 (3) Cr.P.C. registered as Misc. Case No. 1708 of 2008 in the Court of Chief Judicial Magistrate, Ghaziabad (hereinafter referred to as "CJM"). The said application was allowed and CJM passed order dated 03.09.2007 directing police to register First Information Report (hereinafter referred to as "FIR") and proceed for investigation. Consequently, FIR being Case Crime No. 585 dated 16.09.2007 was registered under Sections 120B, 420, 465, 467, 419, 409, 467, 468, 471, 477, 469, 381 I.P.C. at Police Station Hapur against V.K. Jain, Former Executive Engineer, Electricity Distribution Division Hapur; Rohitas Kunwar Singh, Deputy General Manager, Electricity Distribution Circle, Amroha; Devendra Kumar Sharma, Office Assistant-II in the office of Electricity Distribution Division, Hapur and some other unnamed persons.
5. In order to teach a lesson and with a revengeful attitude on account of aforesaid conduct of petitioner's husband, a team of Purvanchal Vidyut Vitaran Nigam Ltd. (hereinafter referred to as "PVVNLL") visited petitioner's house on 20.09.2007 and checked electric connection. The team prepared a report that meter was burnt, higher load was connected and it appears that meter was deliberately burnt by consumer, hence, an offence of theft of electrical energy, unauthorized use of electricity, under Sections 135 and 138 of Electricity Act, 2003 (hereinafter referred to as "Act, 2003") has been committed. FIR dated 24.09.2007 being Case Crime No. 611 of 2007 at Police Station Hapur was lodged. Checking team took away meter and sealed it.
6. Petitioner challenged FIR dated 24.09.2007 in Criminal Misc. Writ Petition No. 16277 of 2007 wherein an interim order was passed on 30.10.2007 to the following effect:-
"Till the next date of listing or till submission of charge sheet whichever is earlier the arrest of the petitioner namely Smt. Kalpana Agarwal who is wanted in Case Crime No. 611 of 2006, under Sections 135/ 138 of the Electricity Act Police Station Hapur Nagar District Ghaziabad shall remain stayed of course subject to the restraint that the petitioner shall fully cooperate with the investigation and shall appear as and when called upon to assist in the investigation. In case the petitioner default in any manner, the above order shall cease to be operative."
7. It appears that accused V.K. Jain and two others also filed Writ Petition No. 15384 of 2007 which was disposed of vide Judgment dated 28.09.2007 passing following order:
"Heard Sri Mayank Agarwal, learned counsel for the petitioners, Sri Govind Krishna, Advocate who has put in appearance on behalf of respondent no,. 4, learned A.G.A. for the State and perused the record.
Learned counsel for respondent no. 4 has filed a short counter affidavit. It may be taken on record.
With the consent of learned counsel for the parties, the writ petition is being finally disposed of.
The petitioner no. 1 is a retired Superintending Engineer, the petitioner no. 2 is in service and posted as Superintending Engineer in Electricity Distribution Circle, J.P. Nagar, Amroha and petitioner no. 3 is presently posted as Office Assistant, E.D.D. Loni, Ghaziabad. The respondent no. 4 was also Office Assistant therein in the said Division but has been dismissed by the department on certain charges for the year 2003 to 2005. There has been some serious financial irregularities and embezzlement of money to the tune of Rs. 250 crores or more.
The petitioner no. 2-R.K. Singh lodged a first information report as Case Crime No. 131 of 2004, P.S. Kotwali Hapur alleging therein that respondent no. 4 was, responsible for the aforesaid misappropriation and embezzlement of money alongwith two others. In the said case, the investigation is still pending and the Managing Director of U.P.P.C.L. has been requesting the police authority concerned to conclude the investigation expeditiously. While the said investigation is pending, the respondent no. 4 was terminated from service on 8.10.2004. He alleges that this was dome illegally on the basis of some an ex parte inquiry.
Now the impugned first information report has been lodged by respondent no. 4 against present petitioners and some other unknown person on the basis of an application under Section 156(3) Cr.P.C. on the order passed by the Magistrate thereon.
The submission of learned counsel for the petitioners is that without any decision therein by the department to proceed against the petitioners and without the petitioners being held guilty in any preliminary inquiry, the respondent no. 4 has lodged the impugned first information report only out of malice because case crime no. 131 of 2004 has already been instituted against him.
Learned counsel for respondent no. 4 on the either hand contends that in audit report for the year 2003-2005, embezzlement of money for Rs. 850 lacs has been found and the petitioner no. 1 has been held responsible for the same being Superintending Engineer at the relevant time. It has, however, been argued that the entire money was misappropriated by the big officers including the petitioners and therefore, the big officers are trying to save each other making respondent no. 4 to be responsible. It has further been argued that one accused out of three accused persons in case crime no. 131 of 2004 namely Ram Kumar who was suspended from the service, has been reinstated by the department.
After considering the submissions of both sides, we are of the view that case crime no. 131 of 2004 which is under investigation should be investigated expeditiously with the present first information report which should also be merged with the same investigation and the versions of respondent no. 4 may also be considered by the Investigating Officer in order to come to the right conclusion. We accordingly direct that the present first information report be merged with the earlier investigation in case crime no. 131 of 2004. The I.P. shall also give opportunity to respondent no. 4 to put his case and also to give evidence if any which may be relevant for the said investigation. The investigation shall be concluded expeditiously and preferably within six months.
Till the conclusion of the said investigation, the arrest of the petitioners in case crime no. 585 of 2007, under Sections 120B, 420, 465, 419, 409, 467, 468, 471, 477, 469 and 201 IPC, P.S. Hapur, District Ghaziabad shall remain stayed subject to the condition that the petitioners shall fully cooperate with the said investigation.
The petitioner is disposed of accordingly."
8. Since Electric connection of petitioner was also disconnected as a result of checking made on 20.09.2007, petitioner sent several letters requesting authorities to reconnect her electric connection since her daughter was ill and copies of such letters are collectively filed as Annexure 12 to the writ petition which are dated 01.10.2007, 03.10.2007, 11.10.2007, 17.10.2007, 19.10.2007, and 25.10.2007.
9. It is contended that without making any assessment and following procedure laid down under Section 126 of Act, 2003 read with clause 6.8 of Electricity Supply Code, 2005 (hereinafter referred to as "Code, 2005"), impugned assessment order has been issued by Executive Engineer straightaway which is wholly illegal and liable to be set aside.
10. An assessment shall be made when there is allegation of theft or unauthorised use of energy (though petitioner is not admitting theft but for the purpose of sake of argument, if it is presumed), but not without following the procedure laid down in Clause 6.8 of Code, 2005.
11. The manner in which case of assessment of electrical energy is to be dealt with, has been discussed in detail by a Division Bench of this Court in Ashok Kumar and others Vs. State of U.P. and others, 2008 (6) ADJ, 660 and in paras 56 to 64 the Court said as under:-
"56. The provisional assessment notices are in question in all these cases except writ petitions no. 21986 of 2008 and 22356 of 2008 and have also been challenged on the ground that neither they have been issued observing the procedure prescribed under Section 126 of the Act, 2007 read with Clause 6.8 of Code, 2005 nor the petitioners have been given adequate opportunity of defence.
57. Sub-section 1 of Section 126 provides that if on inspection, the assessing authority comes to the conclusion that the person concerned is indulged in unauthorized user of electricity, the assessing officer shall provisionally assess, to best of its judgment, electricity charges payable by that person or by any other person benefited by such use. Therefore, the conditions precedent to attract the power of assessment under Section 126 (1) is the conclusion drawn by the assessing officer that the person concerned has indulged in unauthorized use of electricity.
58. The term "unauthorized use of electricity" is defined in explanation (b) to Section 126 which includes usage of electricity (i) by any artificial means; or (b) 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. Before issuing an assessment notice, therefore, the assessing officer must record its conclusion that the person concerned or any other person benefited has used electricity unauthorizedly in terms as defined in Explanation (b) of Section 126. The Act in respect to the stage of recording of conclusion by assessing officer regarding user of electricity by the person unauthorizedly does not provide specifically for any opportunity of hearing to the person concerned but also simultaneously does not prohibit the same. The allegation of unauthorised use of electricity by a person concerned, as defined in Explanation (b) also covers within its ambit certain acts/omission which constitute an offence under Section 135 of the Act, 2003. Therefore, it is a serious matter and no person can be indicted and held guilty of user of electricity unauthorizedly unless he is given an opportunity of hearing before coming to such conclusion. Where a person is held guilty of unauthorised user of electricity, besides making him responsible for paying penalty in the shape of assessment under the Act, 2003 it also causes stigma on his conduct. He is declared an anti-social person indulging in a serious unsocial activity, by causing loss to the society and country in general and electricity undertaking in particular. Such condemnation of a person would not be permissible on the mere vagaries of the authority i.e. assessing officer unless such a person is given a fair opportunity of hearing i.e. putting his defence before the said authority. This Court is clearly of the view that before making provisional assessment, the assessing officer, in law, is bound to afford an opportunity to the consumer or person concerned of the allegations of means and ways in which he is said to have unauthorizedly used electricity, and, should be given an opportunity of placing his defence. Thereafter the assessing officer shall record its conclusion with respect to unauthorised use of electricity, to confer upon himself the jurisdiction to issue provisional assessment notice. The object of opportunity at the two stages namely, before arriving at the conclusion of unauthorised use of electricity and before making final assessment are distinct. In the former, it is the very issue whether the consumer is guilty of unauthorised use of electricity or not and in later case it is the quantum of amount which he is required to pay as a compensation and a fiscal preventive measure for committing such irregularity. The first one is the stage of finding the person guilty and later one is the stage of determining extent of monetary liability for compensating electrical undertaking qua the alleged unauthorised use of electricity by such persons. It is only when the proceedings are conducted in the above manner, the assessment made can be held valid and not otherwise.
59. It is true that judicial cognizance can/should be taken of the fact that theft of electricity has become a serious menace and a social evil not only in the State of U.P. but in the entire country. The electricity has become a necessity in the present day of society and development of society as well as nation cannot be conceived of without electricity. The availability of electricity however is much in deficiency. A huge amount of electricity, consumed by scrupulous persons is causing a serious loss to public revenue hampering and obstructing the development of electrical sector in particular as well as society and nation in general. Therefore, to check theft of electricity and/or unauthorized use of electricity, stern measures are required to be taken. The various provisions of Act, 2003 shows that the legislature is also concerned about it and has taken several measures from time to time including making harsh provisions in the statute.
60. However, this by itself would not justify condemnation and indictment of a citizen or a consumer of electricity by holding him guilty of unauthorized use of electricity on the vagaries of the officers of electrical undertaking unless he is disclosed the manner in which he was found using electricity unauthorizedly on inspection by the officer concerned and given an opportunity to explain his case, if any. It is well settled law that no person can be indicted or condemned without giving a minimal opportunity of hearing. In the case of unauthorized use of electricity found by the assessing officer at any place or the premises etc. or otherwise, the same has to be disclosed to the person concerned giving him an opportunity to put his defence. The principles of natural justice unless excluded by express provision of the Act or by necessary implication cannot be said to be inapplicable when a citizen or person is being indicted of a serious charge, i.e., unauthorized use of electricity, which in some of the cases an offence under Section 135 of Act, 2003.
61. On behalf of the respondents it is argued that in case, such a view is taken, that would amount to delay of issuance of notices and proceedings and may hamper the very objectives of the Act i.e. prevention of theft/unauthorized use of electricity. We are not impressed with the said objection. It is permissible to an 'assessing officer' to cover both the aspects of the matter in the show cause notice, which he is required to issue under sub-section 3 of Section 126 of the Act. The conclusion with respect to unauthorized use of electricity is a condition precedent for issuing provisional assessment notice and, therefore, unless opportunity is given and a finding is recorded whether there is unauthorized use of electricity or not, the question of assessment would not arise. Obviously, no person can come to the conclusion of unauthorized use of electricity suo motu without giving an opportunity to the person concerned and any other procedure would not only be violation of principles of nature justice but would also be arbitrary, infringing Article 14 of the Constitution of India. In order to read Section 126 (1) constitutionally valid, we have no hesitation in observing that before coming to any conclusion the assessing authority would give an opportunity to the person concerned to find out whether he is/was indulged in unauthorized use of electricity.
62. The manner in which we have read section 126(1) and (3) of the Act , 2003, the U.P. Electricity Regulatory Commission (hereinafter referred to as the "UPERC") and the distribution licensees working in the State of U.P., have also understood the same as is evident from the procedure prescribed in the Code, 2005 which has been published by UPERC in exercise of its power under Section 50 of the Act, 2003.
63. Para 6.8 (a), (b) and (c) of Code, 2005 deals in detail the procedure for inspection, provisional assessment, hearing and final assessment in the case of unauthorised use of electricity and reads as under:
"6.8 Procedure for Inspection, Provisional assessment, Hearing and Final Assessment in case of unauthorised use of electricity (UUE) under Section 126 of the Act
(a) (i) An Assessing Officer shall suo-moto, or on receipt of reliable information regarding unauthorised use of electricity or on instruction from higher authority, promptly conduct inspection of such premises, exercising due diligence. (Annexure 7.3 (1))
(ii) The assessing Officer, if required to do so, may handover his business card to the consumer before entering the premises. Photo ID card shall be carried by each team members.
(iii) The access to consumer premises shall be in accordance to clause 4.30 to 4.34. Provided that the occupant of the place of search or any person on his behalf shall remain present during the inspection. 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.
(iv) The 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. The report shall mention any irregularity noticed which may lead to an inference of unauthorised use of electricity in the format given Annexure 6.4. 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 consumer or his/her representative at site immediately under proper receipt. In case of refusal by the consumer 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 the consumer 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 analyse 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 unauthorised use of electricity has taken place, no further action will be taken.
(b) Notice to the Consumer and his reply:
(i) If the Assessing Officer suspects that Unauthorised Use of Electricity has taken place (as defined under Explanation to Section 126 of the Act), he will serve a provisional assessment bill alongwith show cause notice to the consumer, giving 15 working days for submission of reply, under proper receipt fixing a date of hearing.
(ii) The notice shall invite objections in writing from the consumer against the charges and provisional assessment and require presence of the consumer on the date of hearing.
(c) Hearing
(i) On the date of hearing, the Assessing Officer shall hear the consumer. The Assessing Officer shall give due consideration to the facts submitted by the consumer 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 the consumer in his written reply and during hearing.
(ii) A copy of the order shall be served to the consumer under proper receipt, and in case of refusal to accept the order or in absence of the consumer, shall be served on him under Registered Post/Speed Post. The consumer shall be required to make the payment within 15 days of receipt of final order for assessment.
(iii) If the Assessing Officer finds that unauthorised use of electricity has taken place (as defined under explanation to Section 126 of the Electricity Act, 2003, it shall be presumed unless contrary is proved, that such unauthorised use of electricity was continuing for either actual period of misuse, if available, or three months immediately preceding the date of inspection in case of domestic and agriculture services and for a period of six months immediately preceding the date of inspection for all other categories of services, and he shall provisionally assess the consumption as per the procedure specified in Annexure 6.3.
(iv) The assessment under (iii) above shall be made at a rate equal to one-and-a-half times the tariff rates applicable for the relevant category of service. The amount billed at this rate (one-and-a-half times the tariff rates) shall not be taken into consideration for the purpose of computing consumer's liability to pay monthly/annual charges, wherever applicable."
64. A perusal of para 6.8 (a) (i), (ii), (iv) and (v) shows that it presupposes an inspection of the premises to be made by the assessing officer and if he finds evidence of irregularities constituting unauthorised use of electricity at the premises, shall prepare a report at the site, giving details thereof, and, would handover the copy of such report to the consumer or his representative at the site itself. In case of refusal by consumer or its representative, to either accept or giving receipt to such report, the same shall be pasted at a conspicuous place at the premises and shall also be sent to the consumer under registered post/speed post on the day itself or the next day of the inspection. Therefore, the requirement of prima facie conclusion is supposed to be recorded by the assessing officer at the time of inspection itself and needs to be communicated to the consumer. Para 6.8 (b) (ii) shows that the notice shall require the consumer to give his objections against the charges and provisional assessment. Para 6.8 (c) (i) shows that an opportunity of personal hearing shall also be given to the consumer and thereafter the assessing officer shall pass a speaking order recording (i) whether unauthorised use of energy is established or not, and; where it is so established, (ii) shall determine the quantum of the amount which the consumer has to pay i.e. the assessment shall be made by the assessing officer. Thus even Code, 2005 which contains the conditions of electricity supply etc., provides a detailed procedure in which the assessment would have to be made by the assessing officer."
(emphasis added)
12. When questioned, Sri Nipendra Mishra, learned counsel for respondents could not dispute that aforesaid procedure has not been followed and impugned demand of assessment is in the teeth and conflict with the law laid down by this Court in Ashok Kumar and others Vs. State of U.P. and others (supra).
13. In view of above, impugned order cannot sustain. Writ petition is allowed. Impugned order dated 02.11.2007 is hereby set aside. Petitioner is also entitled to cost, which we quantify to Rs.10,000/-.
14. However, this Judgment shall not preclude respondents from passing a fresh order in accordance with law.
Order Date :- 22.11.2019 YK/AK