Patna High Court - Orders
M/S Shree Ram Wire vs The Bihar State Electricity Bo on 2 August, 2013
Author: Ajay Kumar Tripathi
Bench: Ajay Kumar Tripathi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.11495 of 2009
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M/S Shree Ram Wire, A partnership Firm, Katra, P.S. Malsalami, Patna
City, District Patna through one of its Partners, Ravi Shankar Kumar, son
of Ravindra Prasad, Rikabganj, Katra, PS Malsalami, Patna City, District
Patna
.... .... Petitioner/s
Versus
1. The Bihar State Electricity Board, Vidyut Bhawan, Bailey Road,
Patna through its Chairman officiating at Vidyut Bhawan, Bailey
Road, Patna
2. The Chairman, The Bihar State Electricity Board, Vidyut Bhawan,
Bailey Road, Patna
3. The General Manager cum Chief Engineer, Patna Electric Supply
Undertaking, Mangles Road, Patna
4. The Electrical Superintending Engineer, Patna Electric Supply
Undertaking (East), Shivalaya Market, Ashok Rajpath, Patna
5. The Electrical Executive Engineer, Supply, Patna City, Patna
6. The Electrical Executive Engineer, MRT, Patna Electric Supply
Undertaking (East), Shivalaya Market, Ashok Rajpath, Patna
7. The Assistant Electrical Engineer, Electric Supply Sub Divsiion,
Katra, Patna City, Patna
8. M/s Secure Meters Ltd., PB No.30, E Class Industrial Area, Pratap
Nagar, Udaipur- 313003
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Suraj Samdarshi
For the Respondent/s : Mr. Vinay Kirti Singh
Mr. Anand K.Ojha
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CORAM: HONOURABLE MR. JUSTICE AJAY KUMAR TRIPATHI
ORAL ORDER
8 02-08-2013Petitioner is a partnership firm and a consumer of the respondents i.e. erstwhile Bihar State Electricity Board. It had a contract demand under HT category of 124 KVA. In pursuance thereof, an electric meter was installed at their premises on 14.11.2008. Power was energized. The meter in question has been supplied by M/s Secure Meters Ltd., which is supposed to Patna High Court CWJC No.11495 of 2009 (8) dt.02-08-2013 2/22 be a tamper proof instrument for recording consumption of power. There are many inbuilt safeguards provided in the said meter, which is supposed to give tell-tale signs if there is any effort made to tamper with it as also if actual theft of energy had been committed by a consumer due to tampering. The technical details are not required to be gone into at this stage. Suffice it to say that a reading of the booklet provided by M/s Secure Meters Ltd. by itself will indicate the kind of safeguards, which are available in such meters and how a download of the reading of the secure meter can provide inputs to establish theft of energy by any consumer.
2. In the present case, an inspection was carried out at the premises of the petitioner on 10.8.2009. The inspection report was drawn up in presence of the representative of the consumer and is part of the writ application as Annexure- 5. It is a very detailed inspection report running into several pages bearing the signature of various signatories, which also indicates the names and status of the officials, who were part of that inspection exercise. The only thing significant, which emerges from the inspection report, is reproduced herein below :-
"In course of inspection, the two nos.
polycarbonate seals fixed on the meter box was found tampered and duplicated having different Patna High Court CWJC No.11495 of 2009 (8) dt.02-08-2013 3/22 serial nos. The duplication was detected when the existing seals on the meter box at the time of inspection was compared with the record of the installation of the seals obtained from the office. The original seals installed on the meter box as per record were having seal nos.0014706 and 0014707 (copy enclosed) whereas the duplicate seals found at the time of inspection in the tampered conditions were having serial nos.0480177 and 0480178. As the deliberate duplication and tampering of seals of the meter box by the consumer was detected, the meter & modem contained in the meter box in the sealed condition is sealed with tampered duplicated serial nos.0480177 and 0480178 was removed and seized against theft of electricity."
3. The meter in question was removed and seized. It was put in a meter box wrapped in cloth and sealed in presence of the officers present as well as the representative of the consumer. Immediately thereafter, an FIR was lodged against the petitioner on 11.8.2009, alleging that the petitioner had committed theft of electricity causing a loss to the Board to the extent of almost Rs. 45 lakhs odd. Besides filing of the FIR, even an assessment was made and liability created against the petitioner and a demand raised. Provisional assessment order of Patna High Court CWJC No.11495 of 2009 (8) dt.02-08-2013 4/22 the assessing authority is at page 51 of the brief and is part of Annexure- 7.
4. Petitioner decided to challenge the action of the respondent Board by filing the present writ application with assertions and proof duly annexed with the writ application that no evidence or charge of theft of energy can be made out either from the inspection report or surrounding materials gathered by the respondent Electricity Board. Mere tampering of polycarbonate seal by itself does not indicate theft of energy. If any action has been taken by the respondents as a consequence of the inspection, it is an unjustified exercise against the petitioner, more by way of inference rather than based on actual state of affairs.
5. It is the categorical stand of the counsel for the petitioner that in fact no ingredient of theft has been established and if there is no theft, there could be no action of lodging of the FIR or making any provisional or final assessment by the assessing authority of a presumptive loss of revenue and its recovery from the petitioner.
6. Electricity Act, 2003 defines theft of electricity under Section 135. The relevant part of the said Section is extracted herein below:
Patna High Court CWJC No.11495 of 2009 (8) dt.02-08-20135/22
"135. Theft of electricity.- (l) 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 authorized, 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 Patna High Court CWJC No.11495 of 2009 (8) dt.02-08-2013 6/22 abstraction or attempted consumption or attempted use-
(i) does not exceed 10 kilowatt, the fine imposed on first conviction shall 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 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 for any other source or generating station:Patna High Court CWJC No.11495 of 2009 (8) dt.02-08-2013 7/22
Provided also that if it is proved that any artificial means or 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 a consumer."
7. A perusal of the definition of theft of electricity starts with a significant word, which says- Whoever "dishonestly"- In other words, there has to be an intent and there has to be establishment of the dishonesty to commit theft of electricity by either of the means described in sub- section (1) (a) and (c).
8. It is the contention of the counsel for the petitioner that if in the new Act the Legislature has indicated exactly what amounts to theft of electricity including the mechanism and conduct by which theft would be presumed, there is no other mechanism by which allegation of theft of electricity can be inferred or conjured. Mere apprehension cannot take the proof of actual theft or mere conjectures and high order of suspicion cannot take the place of proof of actual crime having been committed. Insinuation is one thing but establishing an Patna High Court CWJC No.11495 of 2009 (8) dt.02-08-2013 8/22 allegation is altogether different exercise, which is required to be done before a court of law.
9. Petitioner approached the High Court by invoking the extra-ordinary jurisdiction under Article 226 of the Constitution of India for the reason that if the arbitrary irrational action is allowed to be taken by the respondent Board, it will not only amount to creating liabilities, which does not emerge from the inspection report but would also cause him unnecessary mental, physical if not monetary harassment. In the normal course of things within the parameters of the law of 2003 Act, the matter should have been allowed to run its course by allowing the trial of the case instituted against the petitioner to be held by a Special Judge so designated as well as to allow the assessing officer to make a final assessment to reach a conclusion as to what is the kind of liability created against the petitioner for his indiscretion.
10. A writ court generally is reluctant to entertain applications in such disputes at the threshold when inbuilt mechanisms are provided within the statute and forums created. But it is not one of those cases where court ought to relegate the petitioner to exhaust remedy within the statute. While hearing the matter earlier a detailed consideration of the submissions was Patna High Court CWJC No.11495 of 2009 (8) dt.02-08-2013 9/22 taken note of by a Bench of this Court and interim protection granted by a direction upon the respondents to justify their action as well as their conduct, in light of the contentions so recorded, which will be reflected from reading of order no.4 dated 1.12.2009. The petitioner on the direction of the Court was asked to deposit 25 per cent of the punitive bill which he has done and the supply has been restored. The matter is now finally argued for final disposal.
11. Learned counsel representing the petitioner has drawn the attention of this Court to a series of monthly meter readings, which have been taken by the respondent Board from time to time. Those readings are available as Annexure- 2 and 3 series, (though not labelled as such). A plain reading of monthly HT meter reading indicates that the so- called MRI was done, seal of optical port was removed and re-fixed by the representatives of M/s Secure Meters Limited in presence of other officials of the Board as well as representative of the consumer. The meter reading, according to the petitioner, does not throw up anything significant to establish that there was any hanky- panky committed by the consumer for the period when the downloading had been done. If there was anything reflected from the MRI, the authorities of the Board would have surely Patna High Court CWJC No.11495 of 2009 (8) dt.02-08-2013 10/22 jumped to a conclusion and taken action immediately and not waited for the inspection day when it took place, on some kind of apprehension because they saw a spark at the transformer when there was a brief shutdown of power in that area.
12. Counsel for the petitioner has tried to demonstrate before the Court from the meter reading as to how diverse the parameters are reflected from the download of MRI. It provides complete authentic technical report in the manner in which meter has been functioning, the consumption pattern, the load factor and even if there are any signs of tampering. All is reflected under various heads of entries. It is his stand and not seriously contested that the downloads are a complete giveaway of the consumption and the manner power was consumed by a consumer. None of these reports, before the date of the inspection, have any indicators of anything having been done to establish any liability or accusation of theft against the consumer, in terms of Section 135 of the Act, 2003.
13. Another significant aspect, which has been pointed out to this Court, is that even a report procured from Secure Meters Limited, after downloading of data and reading of the same from the meter does not raise any fingers against the consumer, despite so called tampering of seals, amounting to Patna High Court CWJC No.11495 of 2009 (8) dt.02-08-2013 11/22 theft of energy, within the parameters of Section 135 of the Act. The said report is Annexure- 8 to the supplementary affidavit filed on behalf of the petitioner and has also been brought on record by the respondent Board and, therefore, is an undisputed document.
14. A look at the document contained in Annexure- 8 would prima facie show that it is a complete download of data of the meter indicating the details of consumption etc., which does not indicate or establish the factum of theft of energy against the petitioner. If it was indulged in, it would have surely emerged in the report of the Secure Meters Limited, which has been obtained by the Electricity Board at their own behest, to establish or strengthen their case against the petitioner after the inspection. Stand of the petitioner on culmination of all these arguments and evidence is that mere tampering of a seal is not a presumption of theft of electricity. The conclusion, which has been reached and is being derived at by the respondent Board.
15.This Court had occasion to consider such an issue in a recent decision which was the case of Kamaljeet Singh v. the Bihar State Electricity Board & ors., reported in 2010 (3) PLJR 514. The significant aspect which is of relevance to the present case is what the Court had to say in paragraph 2 of the Patna High Court CWJC No.11495 of 2009 (8) dt.02-08-2013 12/22 said order. The said paragraph is reproduced herein below for ready reference :-
"2. Here, I may point out the second proviso to Sub-section (sic-(1) of Section?) 135 and (sic- that?) does draw a presumption of theft of electricity but that is limited to cases where artificial means or means not authorized by the Board are found to exist. Here no such allegation being there even the statutory presumption of theft does not arise. Then, merely because seals were found tampered, there is no legal or factual presumption that it would be a case of meter tampering and as such a case of theft of electricity. It was then submitted that the last meter reading was done less than a month back, no report of either meter tampering and/or still tampering in any manner and as such if at all the period of theft could only go as far back as the date of last meter reading while passing the final assessment order by the Assessing Authority.
(emphasis is mine) So far as the second contention is concerned, the Assessing Officer brushed it aside holding that the meter reader was not required to verify the seals. I have my serious doubts in this regards. If seals are found broken or tampered with, he is duty bound to report the same information. Not reporting the same would only lead to the presumption that there was no seal tampering when reading was taken. So far as Patna High Court CWJC No.11495 of 2009 (8) dt.02-08-2013 13/22 first aspect is concerned, the Assessing Authority has not cared to discuss the same. There is yet third consideration. The meters are electronic meters which record all incidence, including any attempt to tamper, the same, these are stored in the microchip contained therein. If all definite information is available then instead of relying on definite information, can the authorities be permitted to work on conjectures and surmises.
(emphasis is mine) In my view, these are questions which had to be considered in their proper perspective."
16. In addition to the above contentions an alternative argument has also been made on behalf of the petitioner, which may not have significance for adjudication of the present case but may be a submission as abundant caution i.e. with regard to the calculation, which has been made by the assessing authority in terms of the formula, which is known as LFDH. This formula has been prescribed for in the Bihar Electricity Supply Code of 2007 and can be culled out from Annexure- 7 of the Code, which is in terms of clause 11.1[(b)(i)]. The above assessment in case of unauthorized use of electricity has to be worked out within the parameters of what is known as LFDH component. This is also reproduced herein below :-
"(A) Assessment in case of Unauthorized Use of Electricity Patna High Court CWJC No.11495 of 2009 (8) dt.02-08-2013 14/22
1. Units Assessed= L*F*D*H Where L = is the connected load in KW or in KVA where KVAh rate is applicable.
F = connected load factor for different types of supply as given below
a) For L&F and domestic power consumers F=0.30
b) For non-domestic L&F and power consumers F=0.50
c) For small and medium power consumers F=0.50
d) For large and heavy power consumer F=0.75
e) Agriculture F=0.30
f) Categories not covered above F=0.50 D = is the number of days during which unauthorise use of electricity has taken place and if, however, the period during which such unauthorise use of electricity has taken place cannot be ascertained such period shall be limited to a period of 12 months (365 days) immediately preceding the date of inspection.
H = is the average actual no. of hours per day the supply is made available on the feeder feeding the consumer or person as the case may be during the period.
2. The consumption so assessed shall be charged at twice the rate per unit of the tariff applicable to the consumer category after adjusting the amount paid by the consumer/ person for the energy consumption assessed for the assessment period if any. The amount bill at this rate shall not be taken into consideration for the purpose of computing consumer's liability to pay monthly/ annually minimum charges, wherever applicable."
17. Petitioner‟s counsel has also drawn attention of this Patna High Court CWJC No.11495 of 2009 (8) dt.02-08-2013 15/22 Court to a decision of a learned single Judge on the calculation of LFDH and how it ought to be carried out. The concerned decision is M/s Zee Saheb Cosmetic Zone & anr. V. the Bihar State Electricity Board & ors., reported in 2010 (4) PLJR 863. What is of relevance for us is paragraph 13, which is reproduced for ready reference :-
"13. Another fallacy in the calculation, which is noticeable, is with regard to the relief of amount given while making punitive assessment. From the calculations appended in support of punitive assessment, it would be seen that first, the total deemed consumed unit are calculated. From that instead of subtracting the units already billed in the period, what is done is a money value of the punitive units are then calculated at twice the rate and from that the money value paid earlier is reduced. This is wrong for punitive billing is at twice the rate of normal billing. The relief is to the extent it is billed and, thus, the punitive billing would be for units not billed. Thus, in all such cases, it is only the unit difference between units punitively billed as reduced by units already billed and this difference would be charged at the punitive rate and not otherwise as has been done. (emphasis is mine) Then again it is not explainable as has been noticed earlier in the judgment that when Patna High Court CWJC No.11495 of 2009 (8) dt.02-08-2013 16/22 the first inspection was carried out on 28.4.2008 by the STF, they took the cumulative load of the 5 air conditioners of 1.5 tonnes to be 10000 Watts but now the same 5 air conditioners of 1.5 tonnes, are assessed to be 12500 watts. This, by itself, has enhanced the calculatable load from 15 KVA to 17 KVA obviously materially affecting the liability."
18. Within the broad parameters of the arguments as above on behalf of the petitioner, counsel representing the Board takes a stand that there is no occasion for the High Court to deal with the matter any further because the new Electricity Act, 2003, which is a Special Act is, a complete code by itself. There are enough inbuilt mechanisms available for the benefit of a consumer and the forum and procedure prescribed by the Act must be allowed to run through. There is provision for an assessing authority, who is supposed to apply his independent mind after the inspection. There is forum of Special Judge so notified under Section 154 of the Act, who is supposed to ultimately decide not only the culpability of the consumer but even the liability. Any interference by the Court at this stage or juncture would make the above two forums or authority redundant, one under Section 126 and the other under Section
154. Patna High Court CWJC No.11495 of 2009 (8) dt.02-08-2013 17/22
19. Submission of the counsel for the Board is rather attractive but whether this Court would like to fall for such a submission in the given bundle of facts is the main question to be adjudicated. The Court is mindful of the fact that when special forums are created those forums should be allowed to perform their responsibility but it is also true that when an action of the State authority or a public authority has been established to be an arbitrary action per se, it will be unfair on the part of the High Court not to exercise its jurisdiction and allow a citizen to go through rigorous of those forums, which cannot be said to be efficacious remedy as such.
20. The Court wanted pinpointed submissions as well as evidence to be placed on behalf of the respondent Board to show that theft of energy was committed by the consumer because of the tampering, which was found by the inspecting team. The so-called „tampering‟ or finding of another seal, purportedly not meant for this consumer, is not being disputed by the petitioner also but he surely denies that it is his handiwork. In fact, a stand is also taken that an omission on the part of the Board is being saddled on the shoulder of the consumer but it is not the case of the Board that the seal in question was a duplicate seal or a counterfeit seal. The only Patna High Court CWJC No.11495 of 2009 (8) dt.02-08-2013 18/22 allegation is that this seal was meant for yet another consumer. How it has ended up in the meter of this consumer is not only for the consumer to explain but even the Board which is not being done, beyond raising of an accusing finger.
21. The Court finds some difficulty in accepting the argument of the Electricity Board, which is trying to pass on burden of proof upon the consumer. The meter is supplied by what is known as Secure Meters Limited. The seals are supplied by them from time to time. If the seal in question was not a counterfeit or a fake seal then there was some obligation upon the Electricity Board also to find out as to how did these seals end up at this consumer‟s premises and what was the seal which was placed on the meter of the so-called consumer for whom the present seal was meant for. There is nothing on record to show that an effort was made to find out as to whose seal, if at all there was one, was placed on the premises of M/s Sagar Fats Oil Mills, also situated in Patna City.
22. Another limb of the argument on behalf of the Electricity Board is that when a meter seal is found to be tampered, the meter is exposed and vulnerable to tampering. In the counter affidavit, they have tried to explain their stand especially in paragraphs 16 and 17.
Patna High Court CWJC No.11495 of 2009 (8) dt.02-08-201319/22
23. This Court can only record that suspicion can never take the place of proof. What has been talked about in the counter affidavit of the Board is only a possibility of what can happen. We are not concerned with the theory part of the inspection. The Court is concerned about what actually transpired after the seal was found to be tampered with. This is important especially in the background that a consumer is going to face serious consequences both by creation of a liability for loss of revenue as well as suffering incarnation, if the trial court does hold him guilty of committing theft of electricity. There has to be, therefore, high order of proof and evidence available after an inspection to establish the factum that there has been breach of Section 135 of the Electricity Act, 2003, which creates an obligation upon the Board to invoke Section 126 or Section 154 of the Act.
24. Despite best of efforts and a valiant show having been put up by the counsel representing the respondent Board, he cannot peg their case higher than what is available on record by way of proof. Only insinuations have been made against the petitioner with regard to theft. It has not been established either from any of the documents, which have been annexed with the writ application of the petitioner or the documents brought on Patna High Court CWJC No.11495 of 2009 (8) dt.02-08-2013 20/22 record in the counter affidavit or supplementary counter affidavit filed on behalf of the Board.
25. Since the original supplementary counter affidavit on behalf of the Board though stated to have been filed on 21.7.2011, has not been reported to have been done by the office, therefore, the Court has to rely on an additional copy, which was tendered by the counsel representing the Board and has been taken on record as such.
26. What makes it worse for the Board is that a company, which claims that their meter to be a full proof and tamper proof and is used as unique selling point (USP), has also failed to support the Electricity Board with a report that there was theft committed by the consumer or there was any tampering with the meter, which could create an impression of energy having been stolen or wasted under the definition of Section 135 of the Act.
27. Since none of the components of Section 135 is established and there is no material whatsoever available on record or from the counter affidavit filed on behalf of the Electricity Board, this Court will not go by a general impression that every consumer has a tendency to steal electricity and not account for it. If the consumer has been saddled with Patna High Court CWJC No.11495 of 2009 (8) dt.02-08-2013 21/22 responsibility including liability of putting a Secure meter, which does not come cheap, then what the meter speaks technically must also be taken into consideration when an allegation is made against a consumer, for theft of energy. However, since there are no tell-tale signs of theft having emerged either from the monthly meter reading or the MRI or downloading of data by the Secure Meters after the inspection then the benefit of doubt will accrue in favour of the consumer and whatever be the hunch of the respondent Board, the consumer cannot be permitted to be hauled up merely because they feel that there was theft, which they cannot establish.
28. A case, therefore, is made out for interference in this case and the Court is not, in the given facts, willing to relegate the petitioner to any other forum because of the failure on the part of the Electricity Board to produce impeccable evidence to establish the factum of theft of energy in terms of Section 135 of the Act. The demand, which is provisional in nature, dated 11.8.2009, so raised against the petitioner is hereby quashed. Writ application is allowed. The 25% deposit, which the petitioner had made with the Board, as per direction of the Court earlier, would be adjusted against future bills. No further demand on account of the inspection carried out by the Board on Patna High Court CWJC No.11495 of 2009 (8) dt.02-08-2013 22/22 10.8.2009 would be raised against the petitioner.
29. Whether the case pending before the trial court will continue or not will depend upon the action which the petitioner would be advised to take on the basis of the decision rendered today. Since there is a criminal proceeding pending, the Court would not comment on the maintainability, continuity, efficacy of such proceeding before the Special Court.
30. Before parting, this Court would only like to caution the officials of the erstwhile Bihar State Electricity Board or the officials of the successor- in- interest that their enthusiasm to generate revenue can prove to be counter- productive if they do not do their home- work. They should refrain from painting a citizen in poor light without any supporting materials. Such reckless actions are totally unjustified. The Court gets a feeling that some of the raids and inspection are carried out with the object of achieving some kind of a revenue target rather than to conduct a bona fide inspection of premises, to check theft of energy, by a dishonest consumer.
(Ajay Kumar Tripathi, J) sk