Delhi High Court
Harvinder Motors vs B.S.E.S. Rajdhani Power Ltd. on 17 November, 2006
Equivalent citations: AIR2007DELHI85, 135(2006)DLT198, AIR 2007 DELHI 85, 2007 (2) ABR (NOC) 359 (DEL), 2007 (2) AJHAR (NOC) 541 (DEL), 2007 (2) AKAR (NOC) 177 (DEL), (2006) 135 DLT 198
Author: S. Ravindra Bhat
Bench: S. Ravindra Bhat
JUDGMENT S. Ravindra Bhat, J.
Page 3783
1. Issue notice. Mr. M.S. Vinayak accepts notice on behalf of the respondent (hereafter called "BSES"). With consent of counsel for parties, the matter was heard finally.
2. In these writ proceedings, the petitioner has impugned issuance of a show cause notice to him, and an electricity bill in the sum of Rs. 26,61,507/-; he alleges that the procedure adopted by BSES was contrary to law, and regulations.
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3. The petitioner's premises were inspected on 29-8-2006 by staff and officials of BSES. The report of inspection alleged that the connected load found was 64 .510 KW as against a load sanctioned for 44 KW. It is alleged that a show cause notice was issued the same day, alleging that the meter was not in order, inasmuch as plastic, and meter seals were found tampered, and that scratches were observed at the back of the CT Box. It is averred that the inspection was erroneous, as higher loads/ values were shown in the report, even though the load of equipments was less. The petitioner replied to the notice, on 5-9-2006, alleging that the connected load was wrongly observed. He also alleged that mere existence of scratches or missing seals could not lead to inference of "dishonest abstraction of electricity" (DAE) for which there had to be some other corroborative material. The petitioner had relied on the previous consumption pattern, and stated that a total of nearly 10000 units had been billed and consumed, which showed that the meter, even if assessed on the basis of a load of 64 KW, was proper, since the bills for previous months showed that the consumption was nearly 90% of the assessable/ consumption pattern.
4. It was averred in the petition that mere absence of seals did not amount to DAE; the consumption pattern had to be observed, and disclosed to be higher than what was billed and paid. That showed that even on the basis of the higher connected load, the consumption pattern was within the parameters. Thus in the absence of any foreign or extraneous device or material billing on assumed DAE could not be resorted to.
5. Learned Counsel, Mr. S.S. Dalal, submitted that the figures of actual consumption showed that there was no case of DAE as per Regulation 26(ii) of the DERC (Performance - Standards Metering and Billing) Regulations, 2002 (hereafter, "Regulations"). In addition, he relied upon Regulation 25(iv) and contended that in this case, the sole basis of conclusion that DAE had been indulged, was the assumption that there was a day and night use of the unit, which was unfounded, and on which no show cause notice had been issued. It was also submitted that the notice gave no inkling as to the assessment of the consumption pattern; nothing prevented BSES from giving those details in the notice.
6. Mr. Vinayak, Learned Counsel relied on the speaking order which was produced in the course of hearing today. Counsel claimed that the CMRI data download from the meter, disclosed the consumption by the petitioner, which was clearly higher. This coupled with the observation of scratches at the back of side of the meter substantiated DAE.
7. Learned Counsel further submitted that the consumption pattern, found, established that the unit was being used on a day and night basis; the speaking order took all these facts into consideration. It was contended that the show cause notice issued in this case, conformed to the procedure laid down in Regulations 25 and 26; the demand was not merely on the basis of some irregularity about the meter seals, but on the basis of observed, lower meter consumption. It was stated that the meter was determined to be recording far lower consumption, at just over 41% of the actual consumption calculated, on application of the parameters prescribed in the tariff order.
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8. It was urged that the regulations did not oblige disclosure of the consumption pattern, or details of CMRI data, for that purpose and that if such procedure would be resorted to, the notice itself would be a speaking order, which was not the intention.
9. The average reported consumption of Bill for the period 2005 to August 2006, it is stated, in the speaking order, works out to consumption of 41.2% of the assessed consumption. It was held in the speaking order that the supply to the petitioner's unit was not used for one shift, as permitted, but for two shifts, leading to excessive consumption.
10. Provisions of the Electricity Act, and the Regulations, are reproduced below:
Section 126 of the Electricity Act, 2003 is reproduced as under:
126. Assessment-(1) If on an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found connected or used, or after inspection of records maintained by any person, the assessing officer comes to the conclusion that such person is indulging in unauthorized use of electricity, he shall provisionally assess to the best of his judgment the electricity charges payable by such person or by any other person benefited by such use.
(2)The order of provisional assessment shall be served upon the person in occupation or possession or in charge of the place or premises in such manner as may be prescribed.
(3)The person, on whose a notice has been served under Sub-section (2), shall be entitled to file objections, if any, against the provisional assessment before the assessing officer, who may, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment of the electricity charges payable by such person."
(4) Any person served with the order of provisional assessment may, accept such assessment and deposit the assessed amount with the licensee within seven days of service of such provisional assessment order upon him:
Provided that in case the person deposits the assessed amount, he shall not be subjected to any further liability or any action by any authority whatsoever.
(5) If the assessing officer reaches to the conclusion that unauthorised use of electricity has taken place, it shall be presumed that such unauthorised use of electricity was continuing for a period of three months immediately preceding the date of inspection in case of domestic and agricultural services and for a period of six months immediately preceding the date of inspection for all other categories of services, unless the onus is rebutted by the person, occupier or possessor of such premises or place.
(6) The assessment under this section shall be made at a rate equal to one- and- half times the tariff applicable for the relevant category of services specified in Sub-section (5).
Explanation.-For the purposes of this section,-
(a) "assessing officer" means an officer of a State Government or Board or licensee, as the case may be, designated as such by the State Government;
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(b) unauthorised use of electricity" means the usage of electricity-
(i) by any artificial means; or
(ii) 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.
Provisions of the Regulations
25. Procedure for booking a case for pilferage of energy
(i) The licensee, suo moto or on receipt of reliable information regarding commitment of any offence of theft/tampering/dishonest abstraction of energy (DAE), shall promptly conduct inspection of consumer's premises. The inspection team shall carry a written authority signed by designated officer of the licensee.
(ii) The inspecting team shall prepare a report giving details such as connected load, condition of seals, working of meter and mention any irregularity noticed (such as, artificial means adopted for dishonest abstraction of energy) as per format prescribed by the licensee.
(iii) The report shall clearly indicate whether conclusive evidence substantiating the fact that energy was being dishonestly abstracted was found or not. The details of such evidence should be recorded in the report and it should be clearly brought out whether the case is being booked for direct theft or DAE.
(iv) No case for DAE shall be booked only on account of one seal on the meter missing or tampered or breakage of glass window etc. unless corroborated by consumption pattern of consumer as per Regulation 26 (ii) given below and such other evidence as may be available....
(v) In case sufficient evidence is found to establish direct theft of energy, the licensee may lodge a report with the local police along with the material evidence including wires/cables, meter, service line etc. seized from the site, which shall be handed over to police. The licensee shall also assess the energy consumption for past six months as per the Tariff Order and prepare final assessment bill on 5 times the rates as per applicable tariff. The consumer shall be required to make the payment within 2 working days of its proper receipt.
(vi) In case of suspected DAE, the inspection team shall not remove the tampered meter but shall disconnect it from the supply and shall restore the supply through a new meter of appropriate rating. In such cases, the licensee shall check the connected load and consumer's installation, affix a numbered Johnson's paper seal on the tampered meter and shall also record the particulars of the same in the report.
(vii)While the report must be signed by each member of the joint team and the notice, if any, must be signed by an authorized signatory of the licensee and all these must be 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 Page 3787 representative to either accept or give a receipt, a copy of each must be pasted at a conspicuous place in/outside the premises. Simultaneously, the joint report, the assessment bill and the notice shall be sent to the consumer under Registered Post.
(viii) The consumer shall be served a 3 days show cause notice at the site as to why the case of DAE should not be booked against him/her. The notice should clearly state the time, date and place at which the reply has to be submitted and the designation of the person to whom it should be addressed.
26. Personal hearing
(i) Within 4 working days from the date of submission of consumers' reply, if made within prescribed period, the licensee shall arrange a personal hearing with the consumer.
(ii) Before the personal hearing, the officer of the licensee, before whom personal hearing has to be given, shall analyze the case after carefully considering all the documents,submissions by the consumer, facts on record and the consumption pattern, wherever available. The licensee shall also assess the energy consumption for past six months as per the Tariff Order. In case of suspected DAE, if consumption pattern for last one year is reasonably uniform and is not less than 75% of the assessed consumption where meter is less than 10 years old and not less than 65% of the assessed consumption where meter is more than 10 years old, no further proceedings shall be taken and the decision shall be communicated to the consumer under proper receipt within 3 working days and connection shall be restored through original meter.
(iii) During the personal hearing the licensee shall give due consideration to the facts submitted by the consumer and pass, within 15 days, a speaking order as to whether the case of suspected theft/DAE is established or not. In case of the decision that the case of suspected theft/DAE is not established, no further proceedings shall be taken and connection shall be restored through original meter.
(iv) Where it is established that there is a case of DAE, the licensee may lodge a report with the local police along with the material evidence including wires/cables, meter, service line etc. seized from the site, which shall be handed over to police. The licensee shall also assess the energy consumption for past six months as per the Tariff Order and prepare final assessment bill on 5 times the rates as per applicable tariff. The consumer shall be required to make the payment within 2 working days of its proper receipt. The licensee may, taking into consideration the financial position and other conditions of the consumer, extend the last date of payment or approve the payment to be made in installments. The amount, the extended last date and/or time schedule of payment/installments should be clearly stated in the speaking order. A copy of the speaking order shall be handed over to the consumer under proper receipt on the same day.
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11. A joint, and harmonious reading of all the provisions would indicate that an inspection should precede assessment that the consumer has indulged in DAE. The licensee is obliged to follow principles of natural justice, and grant reasonable hearing (Section 126(3) and Regulation 25(viii). Mere irregularity in meter seals, or breakage of glass, etc do not authorize the licensee to issue show cause notice; the assessing officer has to observe the consumption pattern, before the personal hearing is granted to the consumer (Regulation 25(iv) read with Regulation 26(ii)). If the observations about consumption pattern, as per the parameters of Regulation 26(ii) warrant further action, then the further steps indicated in Regulation 26(iii) and 26(iv) can be taken; if the parameters are not satisfied, no action can be taken.
12. I am not persuaded with the submission of counsel for BSES that no obligation exists on the part of the licensee to indicate the basis of the proposed action of DAE; and that the action is legal if the notice states about the observations made in the inspection report. If such were the correct position, the need to put in Regulations 25(iv) and 26(ii) as safeguards, would be meaningless. The object of obliging the assessing authority to ensure that consumption pattern, corroborates the suspicion of unauthorized use/ DAE, is a precondition for exercise of jurisdiction; if the consumption is more than 75% of the load, no action can be taken.
13. Proceedings for DAE have adverse consequences; the consumer is held liable to pay statutorily determined amounts for indulging in wrongful action. The monetary liabilities are stiff. In Prakash Kumar v. State of Gujarat , the Supreme Court underscored the need to ensure strict interpretation of the enactment, where penalties or sanctions are provided, in the following terms:
The more stringent the law, the less is the discretion of the Court. Stringent laws are made for the purpose of achieving those objectives. This being the intentment of the legislature, the duty of the Court is to see that the intention of the legislature is not frustrated. If there is any doubt or ambiguity, the rule of purposive construction should be taken to recourse to, to achieve the objectives.
14. One of the cardinal rules of fairplay is that the person likely to face adverse consequences of an administrative or quasi judicial order, has to be given notice, and adequate opportunity. Notice is not a ritualistic formality; the person requiring to show cause has to be precisely informed, may be briefly, the allegations upon which action is proposed. This cardinal rule becomes critical, if the consequences are drastic; fairplay becomes a casualty if the person called upon to answer the notice is unclear, or in the dark, on a fair reading of the document. Thus, precise and unambiguous facts or allegations have to be mentioned in the notice. ( Ref Food Corporation of India v. State AIR 2001 SC 250; Canara Bank v. Debasish Das ).
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15. In this case, the consumer, i.e the petitioner has been held guilty of using the premises in two shifts, leading to a higher consumption pattern. This aspect, as also the brief description of the consumption pattern observed, was not put to him. Instead of keeping these to themselves, and concluding DAE, on that basis, nothing prevented BSES from putting the allegations and calling for an explanation, during the personal hearing, by way of the show cause notice, or if necessary, through an additional notice. That would have met with the standards of fairness.
16. In view of the above discussion, the following directions are issued:
a) The respondent BSES shall issue a notice, clearly indicating all the ground(s) for its tentative opinion, about DAE, including briefly, the nature of the consumption pattern ascertained, as per Regulation 26(2);
b) The petitioner shall furnish his reply to the notice, within ten days of its receipt by him;
c) BSES shall grant a reasonable opportunity of hearing to the petitioner upon his representation/ reply and thereafter issue a speaking order, dealing with all contentions raised by him, within six weeks from today.
d) A fresh bill may be issued, if need be, based on the outcome of the speaking order.
17. All rights and contentions of the parties are kept open. The writ petition, and CM 14064/2006 are allowed in terms of the above directions. No costs.