Karnataka High Court
Sri P Jayaram vs The Revenue Appellate Authority For ... on 5 February, 2018
Author: Vineet Kothari
Bench: Vineet Kothari
1/11
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 5th DAY OF FEBRUARY 2018
BEFORE
THE HON'BLE Dr.JUSTICE VINEET KOTHARI
WRIT PETITION No.18250/2016(GM-KEB)
BETWEEN:
Sri P.Jayaram,
S/o P.Appalu Raju,
No. 7, Sadvidya Patashala Complex,
Aged About 53 years,
Narayana Shastry road,
K R Mohalla,
Mysore - 570 024.
...Petitioner
(By Ms. Lubna Fairoze, for
Mr.H. Srinivas Rao, Advocate)
AND:
1. The Revenue Appellate Authority for BESCOM
Corporate Office,
BESCOM, K R Circle,
Bangalore - 560 001
Represented by its Director.
2. Chamundeshwari Electricity Supply
Corporation Ltd
No. 927, LI Avenue
New Kantharaj Urs Road,
Saraswathipuram,
Mysore - 570 009
Date of Order 05-02-2018 W.P.No.18250/2016
Sri. P. Jayaram
Vs. The Revenue Appellate
Authority for BESCOM & others
2/11
Also at
No. 29, Vijayanagara 2nd Stage,
Hinkal Mysore - 570 017
Represented by its Managing Director.
3. The Assistant Executive Engineer
Central Sub-Division,
No. 29, Vijayanagara 2nd stage,
Hinkal Mysore - 570 017.
...Respondents
(By Mr. G.C.Shanmukha, Advocate for R2 & R3)
****
This Writ Petition is filed under Articles 226 & 227 of
the Constitution of India, praying to Quash the order of the
Revenue Appellate Authority, BESCOM, passed in Revenue
Appeal No.3CZ9237 Dt.4.7.2015, vide Annx-A in so far as
the back billing charges imposed beyond the period of 6
months prior to the date of inspection is concerned. & etc.,
This Writ Petition coming on for Preliminary Hearing in
'B' Group, this day, the Court made the following:-
ORDER
Ms. H.S. Lubna Fairoze For Mr.H. Srinivas Rao, Adv. for Petitioner Mr. G.C. Shanmukha, Adv. for R2 & R3
1. The petitioner Sri.P. Jayaram S/o. P. Appalaraju has filed this writ petition aggrieved by the order passed by the Revenue Appellate Authority for BESCOM vide Annexure A dated 04/07/2015.
Date of Order 05-02-2018 W.P.No.18250/2016 Sri. P. Jayaram Vs. The Revenue Appellate Authority for BESCOM & others 3/11
2. The operative portion of the impugned order dated 04/07/2015 is quoted below for ready reference:
"Points to be decided are:
a. Whether there is theft of Electricity. b. If so, the liability of penalty for which period.
c. If not so, the liability of penalty for which period.
About the theft of Electricity, the Appellant has relied upon the Judgment on the Criminal case filed by the Vigilance. CESC, Mysore vide Spl.Case No.14/2010 dated 06-12-2010. Hon'ble Spl. Session Judge discharged the Appellant for the offence punishable under Section 135 and 138 of Electricity Act of 2003. The Second point raised by the appellant is that, the meter seals fixed to the meter is in intact as per the mahazar drawn. Hence, the question of theft of energy does not arise. Contrary to the said argument, the Vigilance officer, who Date of Order 05-02-2018 W.P.No.18250/2016 Sri. P. Jayaram Vs. The Revenue Appellate Authority for BESCOM & others 4/11 inspected the premises Sri. Harish in his statement stated that the wire of B phase was wrongly connected. ie., load side wire of the meter is connected to the main side and main side wire of the meter connected to the load side. This is the act of the consumer to record less consumption. The documents furnished by the sub division in this regard proves that the consumption before the inspection and after the inspection.
Consumption of the installation for the period from Jan 02 to May 2006 records the consumption between 202 to 960 units. Consumption from June 2006 to Dec 2006 records less consumption ie., from 01 to 42 units. Consumption after the date of inspection, it is noticed that the average consumption of FY-12 is 1790 units, and FY- 13 is 2024 units. The consumption of the installation after the inspection is increased by 2 fold. This clearly concur the interference of the meter during 2009. The appellant argument that he has acquitted from the charges under section 135 and 138 of Date of Order 05-02-2018 W.P.No.18250/2016 Sri. P. Jayaram Vs. The Revenue Appellate Authority for BESCOM & others 5/11 the Electricity Act is not barred the claims under section 126 of the Act. Vigilance in their report that the wire of 'B' phase was wrongly connected i.e., load side wire of the meter is connected to the main side and vice versa, resulting that the slow recording of consumption. A document furnished by the subdivision clearly proves that there was less consumption recorded from june 2006 to December 2006. The consumption of the installations after the inspection is increased by two folds. This fact is not disputed by the consumer.
To decide the second question - b, following relevant points are noticed.
As per the regulation 42.06 of Conditions of Supply of Electricity of Distribution Licensees in the State of
Karnataka, the period of back billing is for a period of 12 months preceding the date of detection of the theft of energy or the exact Date of Order 05-02-2018 W.P.No.18250/2016 Sri. P. Jayaram Vs. The Revenue Appellate Authority for BESCOM & others 6/11 period of theft if determined whichever is less at the rate of two times the Tariff applicable to such category. But in the Court order there is no theft of energy, so Back billing charges does not arise.
To decide the second question -c. following relevant points are noticed.
As per the regulations 27.03(i) of conditions of supply of Electricity of Distribution Licensees in the state of Karnataka "when the meter is found be slow beyond the permissible limits, the consumer shall be liable to pay the difference at normal rates based on the percentage error, for a period of not more than 6 months prior to the test, due regard being paid to the conditions of working, occupancy etc., during this period.
ORDER No.BESCOM/BC-27/ CGM (T.QC) /2015-16 /PS/DT/33 DATED 04-07-2015 Date of Order 05-02-2018 W.P.No.18250/2016 Sri. P. Jayaram Vs. The Revenue Appellate Authority for BESCOM & others 7/11 In view of that it was decided that:-
1) The Appeal is partially allowed.
2) BBC claimed by the subdivision for theft
of energy is dismissed
3) The consumer has to pay the
difference of non-recording of one phase consumption from date of service to date of inspection 16-01-2009 to be worked out/calculated and billed at normal tariff.
Financial Advisor Director
(Technical)
BESCOM and BESCOM
and
Member Appellate Authority Member
Appellate Authority
BESCOM Ltd., BESCOM Ltd,."
3. The learned counsel for the petitioner urged before the Court that the petitioner had not committed any theft of electricity and the competent Court of I Date of Order 05-02-2018 W.P.No.18250/2016 Sri. P. Jayaram Vs. The Revenue Appellate Authority for BESCOM & others 8/11 Additional Sessions and Special Judge at Mysore vide order, Annexure D dated 06/12/2010 in Special Case No.14/2010 (State by Inspector of Police, CHESCOM Vigilance Squad, Mysore Vs. P. Jayaram) had discharged (not acquitted after trial) the petitioner vide order dated 06/12/2010, the relevant portion of which is quoted below for ready reference.
"10. From all these materials on record, it cannot be said that the accused had tampered the meter seal and committed theft of electricity. The prosecution cannot make out that the accused has committed offence. At this stage, it is only the prima facie proof that is required to frame charge against the accused. From the materials on record, as rightly contended by the learned Advocate for the accused, the charge cannot be framed against the accused for the commission of the offence punishable under Secs. 135 and 138 of Electricity Act. Therefore, I deem it proper to discharge the Date of Order 05-02-2018 W.P.No.18250/2016 Sri. P. Jayaram Vs. The Revenue Appellate Authority for BESCOM & others 9/11 accused. Accordingly, I answer the above Point in the Affirmative and proceed to pass the following:
ORDER The Application filed under Sec.239 of Cr.P.C. by the accused is allowed The accused is discharged under Sec.239 of Cr. P.C. for the offences punishable under Secs.135 and 138 of Electricity Act.
The Bail Bond of accused and that of his surety stand cancelled.
(UMA M.G.) I Addl. Sessions & Special Judge, Mysore"
4. Having heard the learned counsel for the parties, this Court is satisfied that the Appellate Authority should have discussed the effect of a clear discharge given to the petitioner from the charge of the theft by the competent Court holding that he did not Date of Order 05-02-2018 W.P.No.18250/2016 Sri. P. Jayaram Vs. The Revenue Appellate Authority for BESCOM & others 10/11 commit any theft of electricity and the effect of the same before raising the impugned demand against the petitioner for the past period of nine years as the provisions of Regulation 42.06 applicable in the cases of theft of electricity enabling the Respondent BESCOM to charge for the entire past period during which such theft of electricity has allegedly taken place, would not apply prima facie in the present case. The Appellate Authority was bound to discuss the effect of the said discharge order in the case of the present petitioner.
The impugned order does not do so and therefore the same is required to be set aside.
5. Accordingly, the writ petition is allowed and setting aside the impugned order Annexure A dated 04/07/2015, the matter is restored back to the said Appellate Authority for BESCOM to hear the parties once gain and pass appropriate orders in accordance with law.
Date of Order 05-02-2018 W.P.No.18250/2016 Sri. P. Jayaram Vs. The Revenue Appellate Authority for BESCOM & others 11/11
6. The parties in the first instance may appear before the Respondent BESCOM on 26-02-2018 and a period of six weeks thereafter is allowed to the Respondent Appellate Authority to pass appropriate orders.
Sd/-
JUDGE BMV*