Punjab-Haryana High Court
M/S Bahia Resorts vs P.S.E.B., Patiala And Ors on 3 September, 2014
Author: Ritu Bahri
Bench: Ritu Bahri
CWP No.16880 of 2009 (O&M) -:1:-
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
CWP No. 16880 of 2009 (O&M)
Date of decision : September 03, 2014
M/s Bahia Resorts .....Petitioner
versus
P.S.E.B Patiala and others ....Respondents
CORAM: HON'BLE MS. JUSTICE RITU BAHRI
Present: Mr. Vikas Singh, Advocate
for the petitioner.
Mr. Rajiv Malhotra, Advocate
for the respondents
****
RITU BAHRI , J.
The petitioner has approached this Court by way of instant writ petition under Article 226/227 of the Constitution of India, seeking a writ in the nature of mandamus for quashing demand notice dated 08.09.2008 (P-
6), order dated 17.09.2009 (P-7) and demand notice dated 16.10.2009 (P-8) The petitioner is engaged in the business of running a restaurant and a resort at Bathinda road, Bhucho Kalan. The respondents sanctioned electricity load of 149.280 kw bearing a/c No. MR-56/0390 of N.R.S category in favour of the petitioner. This load was sanctioned in July, 2002. The meter is checked on bi-montly basis under the supervision of respondent No. 3 and the premises were checked by respondent No. 3 on 06.06.2003. The seals of the MCB were found to be intact. Signatures of petitioner were obtained by H.D. Goel, AEE and he did not prepare the inspection report at the spot on 06.06.2003 but made certain entries in the GAURAV SOROT 2014.09.16 16:41 I attest to the accuracy and integrity of this document CWP No.16880 of 2009 (O&M) -:2:- notebook. The petitioner came to know later on that the said AEE forged and fabricated some writing in order to cause wrongful loss to the petitioner. However, as per inspection report dated 13.06.2003, respondents detected load at site was of 182.072 kw against sanction load of 149.280 KW.
The petitioner received a notice for payment of `1,06,655/- vide letter dated 14.06.2003 (Annexure P-4) and `6,28,595/- vide letter dated 20.06.2003 (Annexure P-5). These notices were challenged by the petitioner before the Dispute Settlement Authority, under Regulation 124.2.1 / 142.3 on 8.9.2003. On 14.09.2004 case was decided by the Committee against the petitioner. The petitioner was directed to deposit 1/3rd amount of the total compensation claimed from the petitioner and the petitioner complaint with the said direction on 24.12.2004. Finally the petitioner filed an appeal before the Divisional Commissioner, Faridkot on 22.10.2008, which was also dismissed on 17.09.2009 (Annexure P-7).
The respondents issued a demand notice on 16.10.2009 demanding the balance outstanding amount. Counsel for the petitioner while referring to the order dated 17.09.2009 (Annexure P-7) submits that followings facts were recorded that the admitted case of the parties was that the petitioner was running a restaurant as well as marriage palace where commercial connection was installed. During checking the seals of the meter was found broken and the meter was found tempered with. As per Sales Regulation 9.2 temporary additional supply to permanent consumers can be given if a general consumer having permanent connection wants to avail it upto 25 % of the sanctioned load for ceremonial purposes like marriage celebration and religious festivals, he can do so without giving advance intimation to the concerned authorities but such facility shall not be GAURAV SOROT 2014.09.16 16:41 I attest to the accuracy and integrity of this document CWP No.16880 of 2009 (O&M) -:3:- available for more than 7 days at a time and in such cases the consumption corresponding to additional load will be bill at the "normal tariff" from the regular bill. While exercising the case of the petitioner it has been observed that in case 25% additional load is supplied to the petitioner for the marriage celebration, as pleaded, then it would have to be supplied for all time to come, because it is not a general consumer, but it is a commercial firm. The petitioner was found committing theft of the energy by breaking seals of the meter in the presence of Managing Director of the firm, the checking report bears the signatures of Mr. Bikramjit Singh.
Since the petitioner's case does not fall in the category of general consumer, therefore, he was found committing theft of energy by breaking seals as well as using un-authorized load on the electricity meter bearing No.0102754. While dismissing the appeal by the Commissioner, Appellate Authority, Faridkot no illegality or irregularity with the orders passed Dispute Settlement Authority, Punjab State Electricity Board, Patiala was found and the appeal was dismissed.
Upon notice respondents appeared and filed their written statement and submitted that on 6.6.2003 the electric connection installed at the premises of the petitioner was checked by Er. H.D. Goyal, AEE(Op.) Bhucho Mandi and found that 2 lead seals bearing No.1881 on MCB and 1 on paper seal affixed on MCB bearing No.39/535 were found tempered with. The inspection report was signed by Bikramjit Singh, owner of the resort. Thereafter the meter was sent to ME Lab vide Challan No.117 dated 19.06.2003 in a sealed box. Checking in ME Lab was done in the presence of the consumer who appended signature thereon. The observation of the checking report are as under: -
GAURAV SOROT 2014.09.16 16:41 I attest to the accuracy and integrity of this document CWP No.16880 of 2009 (O&M) -:4:-
i. Meter was taken out of the sealed CBB after disturbing the paper seals.
ii. Paper seal No.144153 dated 10.06.2002 of Sr.XEN/MMTS Patiala and Addl. SE/ME Patiala found on meter body.
iii. Paper seal No.39524 dated 19.07.2002 of SDO Bhucho on meter body and cover was found re-affixed.
iv. Paper seal No.39525 dated 19.07.2002 of SDO, Bhucho affixed on MTC and meter body was found re-affixed for meter body side. v. The seals at No. (iii) & (iv) above were checked with their carbon copies (office copies), it was found that there is a difference in the signatures of the consumer and the signatures of Boards official are not readable.
vi. Paper seal No.39525 was cut with the blade for opening the MTC. vii. Two Nos. seals No.1881 were found on MTC the impression of which was compared with original samples and found correct. viii. The area around both MTC seal screws was found defaced and the screws were found welded from the place where the lash wire passes. ix. Two no. ME seals O/o M.E. Lab Division, PSEB, Ludhiana / 2KJ+01/TAP were found OK, but near the sealing screw meter cover and meter base was found defaced. Thereafter meter was checked for accuracy and dial test which was found OK. Meter was opened for internal checking which was found OK.
As per the report the meter was tempered and was declared a case of theft. The sanction load of the unit was 149.28 KW on 13.06.2003 and the petitioner was directed to deposit `1,06,665/- vide Memo No.1057 dated 14.06.2003. Vide Memo No.1115 dated 20.06.2003 the petitioner was also asked to deposit `6,28,595/-. The case of the petitioner fall under the Sales Regulation 133.2 and the amount charged vide Sales Regulation No.134 and Sales Regulation 66 is not application. The petitioner deposit 1/3rd of the amount before the Dispute Settlement Authority, who finally dismissed his case on 14.09.2004.
After going through the facts of the present case, 2 points are to be considered as under:-
1. Whether the petitioner's units which were GAURAV SOROT 2014.09.16 16:41 I attest to the accuracy and integrity of this document CWP No.16880 of 2009 (O&M) -:5:- consumed electricity beyond the sanctioned load under Regulation 16.95 and as per Sales Regulation 9.2 treating him to be a general consumer and giving him benefit of 25%of the sanctioned load.
The claim of the petitioner that he was eligible for grant of excess load of 25% is incorrect as per Sales Regulation 9.2. As per spirit of Sales Regulation 16.95 and Sales Regulation 9.2 it should be to a general consumer in case of personal use. The petitioner was running a restaurant, marriage palace in the premises in which commercial connection was installed. So far as the Sales Regulation 9.2, whereby 25% additional load can be availed by a consumer having permanent connection is concerned, that is available only to a residential premises and not to a commercial premises. The petitioner was running a restaurant as well as marriage palace in the premises where the connection is installed and marriage are generally celebrated and in case of 25% additional load is supplied, then it will have to be supplied for all times and not on occasion of one or two marriages. Therefore, both the authorities below have rightly declined the claim of the petitioner under Sales Regulation 16.95 and Sales Regulation 9.2.
2. The petitioner's claim on the second point was that it was not a case of theft of electricity and imposing of theft imposition under Sales Regulation 134 could not be made out and only cost of meter equipment under Sales Regulation 66 were recoverable.
The petitioner was found committing theft of the electricity as well as using unauthorized load, therefore the impugned amount was rightly been demanded from it out of which the petitioner had deposited 1/3 rd amount. Moreover Mr. Bikramjit Singh, owner of the petitioner-firm has GAURAV SOROT 2014.09.16 16:41 I attest to the accuracy and integrity of this document CWP No.16880 of 2009 (O&M) -:6:- duly signed the checking report and has admitted about signing the checking report. The checking report as well ME lab report shows that the meter was tempered and the petitioner was indulging in the theft of energy till the date of checking that is why the petitioner was imposed penalty of theft.
At this stage stage reference can be made to a judgment passed by the Supreme Court in case titled as M.P. Electricity Board, Jabalpur vs. Harsh Wood Products, 1996(3) R.C.R. (Civil) 453, in this case the position was that the appellants staff inspected the electrical installation of the respondents connected by the appellant-Board and it was found that no seal on meter terminal cover, body seals of the meter was found tampered along with seals of meter. In this case it was held that provisions to give notice and hearing are not attracted where the authorities of the Board found theft of electricity by tampering with the meters. Once the authorities reached a prima facie conclusion of pilferage by tampering with the meters, provisions of the Act authorise the Board to forthwith disconnect the supply and call upon the consumer to make payment for unauthorised consumption of electricity and no further hearing is required in such cased.
In the facts of the present case after checking was done on 6.6.2003 and the defective meter was removed and a new meter was installed after getting the report from the M.E. Lab. A notice was issued to the petitioner to deposit the requisite unauthorized use of electricity. As per the M.E. Lab report seals were tampered with and whole unit / resort were using excess load than the sanctioned load. The checking report was duly signed by the owner of the resort and he made a prayer to the department to increase his load on the same day itself. After getting the M.E. Lap notices GAURAV SOROT 2014.09.16 16:41 I attest to the accuracy and integrity of this document CWP No.16880 of 2009 (O&M) -:7:- claiming compensation for theft of energy under Sales Regulation 134 does not require any interference as all the procedure and the said notices have been passed after following due procedure as per Sales Regulations of the Department. It is not the case of the petitioner that he was not associated at the time of checking as well as at the time of checking of the meter at the M.E. Lab. The present is not only for unauthorized use of electricity but it is also case of theft by tempering of the meter, therefore as per Sales Regulation 134, the petitioner was asked to deposit theft-compensation with the Department.
Keeping in view aforementioned discussions, there appears to be no illegality or irregularity in the impugned order, consequently this petition fails and the same is, hereby, dismissed with no order as to cost.
( RITU BAHRI )
September 03, 2014 JUDGE
Gaurav Sorot
GAURAV SOROT
2014.09.16 16:41
I attest to the accuracy and
integrity of this document