Jharkhand High Court
M/S Shyam Lal Iron And Steel Company vs Jharkhand Urja Vikas Nigam Limited on 15 June, 2022
Author: Rajesh Shankar
Bench: Rajesh Shankar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 3852 of 2021
M/s Shyam Lal Iron and Steel Company, Adityapur, Saraikella-Kharsawan,
through one of its partners, Ashok Jaiswal ..... Petitioner
Versus
1. Jharkhand Urja Vikas Nigam Limited, through its Chairman-cum-Managing
Director, Ranchi
2. Jharkhand Bijli Vitran Nigam Limited, through its Managing Director, Ranchi
3. The General Manager-cum-Chief Engineer, Singhbhum Electric Supply Area,
Jharkhand Bijli Vitran Nigam Limited, Bistupur, Jamshedpur (East Singhbhum)
4. The Electrical Superintending Engineer, Electric Supply Circle, Jamshedpur,
Jharkhand Bijli Vitran Nigam Limited, Adityapur, Saraikella-Kharsawan
5. The Electrical Executive Engineer, Electric Supply Division, Jharkhand Bijli
Vitran Nigam Limited, Adityapur, Saraikella-Kharsawan ..... Respondents
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CORAM HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Petitioner: Mr. Navniti Prasad Singh, Sr. Advocate
Mr. D. K. Pathak, Advocate
For the Respondents: Mr. Rajiv Ranjan, Sr. Advocate
Mr. Manoj Kumar, Sr. S.C
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12/15.06.2022 The present writ petition has been filed for issuance of direction upon the
respondents to forthwith restore the electrical connection of the petitioner which was disconnected on 08.09.2021 on the allegation of theft of electricity. Further prayer has been made for quashing the inspection report dated 07.09.2021 on the strength of which an FIR has been lodged and huge liability has been imposed by way of loss allegedly caused to Jharkhand Bijli Vitran Nigam Limited (JBVNL) while disconnecting the electrical connection of the petitioner. The petitioner has also prayed for quashing the order of assessment as contained in letter No. 2136 dated 11.09.2021 issued by the respondent No.4 imposing Rs.1,27,39,421/- against the petitioner.
2. The factual background of the case, as stated in the writ petition, is that the petitioner being a partnership firm is engaged in manufacturing of MS ingots and for running its factory, has taken electrical connection from the respondents vide consumer No. 7010/HJAP184 under HTSS category. The officers of the respondent-JBVNL visited the premises of the petitioner on 12.06.2021 and checked the metering devices taking into consideration the Meter Reading Instrument (MRI) data whereupon everything was found in order. Thereafter, an inspection report dated 12.06.2021 was prepared explaining all the parameters 2 of the meter. A team of the officers of the respondent-JBVNL again visited the premises of the petitioner on 07.09.2021 and inspected all the metering devices including main meter and check metering unit, however, they did not find any fault. All the devices installed in the premises including check meter and main metering unit were found perfect and all the seals affixed on different devices were also found intact. The respondent authorities then visited the scrapyard of the petitioner where numbers of XLPE cables purchased as scrap were lying. They took out 3 numbers of cables and presented the same as the device for committing theft of electricity. Thereafter, the inspecting team disconnected the electricity connection of the petitioner's premises and took away the said cables and check metering unit. Subsequently, an FIR was lodged on 08.09.2021 against the petitioner alleging that the respondent-Nigam suffered loss of Rs.1,27,39,320/-. The petitioner was however served the inspection report after 3 days.
3. Learned Sr. counsel for the petitioner submits that the inspection report was not prepared in the premises of the petitioner, rather the same was served to the petitioner after three days of the inspection. Though the report speaks about three cables, however, the officers of JBVNL deliberately did not disclose as to from where they found the said cables. In fact, the factory was facing multiple problems in continuous functioning on account of old machinery due to which the furnace used to be taken on maintenance on usual basis after 12 o' clock at night, however, it was wrongly interpreted as theft of electrical energy by using artificial means which is absolutely false and baseless. It is also submitted that the load graph does not fully support the allegation as has been levelled by the respondents suspecting theft of electricity. The petitioner was not being supplied power through any dedicated feeder, rather it was getting power supply through 11 KV feeder wherefrom several other consumers were also getting electricity. Due to recurring loss in operation of the said factory/ plant, the petitioner could not make timely payment to its workers/labourers and hence a group of labourers stopped working. Thus, it became difficult for 3 the petitioner to run its unit in both shifts and accordingly it decided to operate its unit in one shift only from 10.07.2021. An information to that effect was also given to the respondent No.4 vide letter dated 10.07.2021. The same situation continued for the entire month of July and the normal operation resumed from 01.08.2021 which was also intimated to the respondent No.4 vide letter dated 01.08.2021. It is further contended that the petitioner was not running its unit continuously and without appreciating the factual position of working, the respondents have presumed and correlated the drawing of negligible load at night with theft of electricity. Since the respondents have not found the petitioner committing theft of electricity at the time of inspection, at best they could have treated the same as a case of suspected theft and the procedure prescribed under Clause 11.12 of the Jharkhand State Electricity Regulatory Commission (Electricity Supply Code) Regulations, 2015 [hereinafter referred to as 'the Regulations, 2015'] should have been followed in the present case. However, the respondents while deviating from the procedure established by law, disconnected the electrical connection of the petitioner's premises and also lodged an FIR which is not sustainable in the eyes of law. In view of Clause 11.12 of the Regulations, 2015, the respondents were supposed to continue supplying power by installing a new meter and to send the old meter under a seizure memo for testing by following the procedures prescribed in the concerned regulation. However, the respondents have disconnected the electrical connection of the petitioner without verifying and analyzing the factual position as also without any direct evidence of theft of electricity which is absolutely illegal, arbitrary and against the specific provisions of the Regulation, 2015 as well as the Electricity Act, 2003 [hereinafter referred to as 'the Act, 2003']. The respondents also served an assessment order to the petitioner against theft of electricity allegedly detected during inspection vide letter No. 2136 dated 11.09.2021 at the strength of the FIR dated 08.09.2021 without giving any opportunity of hearing to it and straightway imposing Rs.1,27,39,421/- as the loss amount caused to the JBVNL with a direction to 4 the petitioner to pay the same within a period of 7 days. It would transpire from the calculation chart appended with the assessment order dated 11.09.2021 that the respondents have taken cut-off date of theft of electricity as 12.06.2021 i.e. the date of last inspection ignoring their own MRI data report which was carried out on the date of inspection itself i.e. 7/8.09.2021. The case of the respondents themselves is that the load graph of MRI data has shown negligible load in the main and check meter on altogether seven different dates generally at night. Thus, even assuming the allegation to be correct, the act of unauthorized interference has to be confined to those seven days only and it cannot go beyond that. Hence, assessment of loss taking the cut-off date from about last three months is total non-application of mind. It is further contended that Clause 11.9 of the Regulations, 2015 stipulates the manner in which the period of assessment can be arrived at and under sub-clause (d) of Clause 11.9, specific provision has been made for taking into consideration the Meter Reading Instrument (MRI) data or Remote Meter Reading data, wherever available, for the purpose of determining the period of assessment which can be considered to be most specific and proper since the same is based on technical analysis. It is also submitted that on perusal of the scheme as provided under Sections 126 & 135 of the Act, 2003, it would be evident that upon inspection of any place or premises of a consumer, if the assessing officer comes to the conclusion of unauthorized use of electricity, a provisional assessment is to be made under Section 126(1) and the same has to be served upon the concerned person and after giving an opportunity to file objection to the provisional assessment, the assessing officer has to pass an order of final assessment computing the loss of energy on account of such unauthorized use of electricity. For the purpose of assessment in any circumstance, the procedure of Section 126 is required to be necessarily followed. Moreover, in terms with 3rd proviso to Section 135 (1A) of the Act, 2003, the licensee or supplier, as the case may be, on deposit or payment of the assessed amount, has to restore the power supply within 48 hours of such deposit or payment. Hence, it is clear that 5 the authority under the Act, 2003 is required to make a provisional and final assessment by invoking power under Section 126 of the Act, 2003 even in the cases where the electricity has been unauthorizedly used by way of theft. Moreover, ignoring the specific provisions of Clause 11.9 of the Regulations, 2015 as well as the inspection report, the respondent No.4 has determined the period of assessment from 12.06.2021 to 07.09.2021 i.e. approx. 3 months which should not have been more than 7 days that too, during specific point of time at night, since the MRI data had reported negligible load only on 7 specific dates at night for about 4 hours. Another illegality has been committed by the respondent No.4 in assessing the loss amount making it double the actual calculated amount as per the formula. Clause 11.9 speaks that the assessment of the energy consumption shall be made by the authorized officer as per the assessment formula given in Annexure-19 of the Regulations, 2015 which does not suggest that the figure of loss amount as arrived at will be doubled. However, the respondent No.4 in his assessment order has doubled the loss amount and has come out with a huge arbitrary figure which has no sanctity in the eyes of law. It is further submitted that as per the formula prescribed under Annexure-19 of the Regulations, 2015, the loss amount has to be assessed by calculating the units on the basis of 'L x F x D x H' where 'L' is the connected load in KW found in the consumer's premises, which is 1266.5 KW, 'F' is the load factor i.e. '1' in case of the petitioner's category, 'D' stands for period of assessment in days i.e. 7 days in case of the petitioner and 'H' stands for average number of hours per day of power supply made available in the distribution mains feeding the consumer which is 4 hours as shown in the comparative load survey. Even assuming the said allegation to be true, the assessment of loss has to be made for the aforesaid 7 days to the extent of 35,462 units (1266.5x1x7x4) and after calculating, the same would be Rs.1,95,041/. It would be evident from the load survey done through MRI that barring few hours at night, there is no remarkable difference between the load shown in the feeder meter and the main meter. Hence, when the accurate 6 scientific study of consumption data of all the 3 meters is available, the respondent No.4 is duty bound to assess the loss amount accordingly. Though it is not a case of the respondents that any artificial means has been found connected at the time of inspection, yet without asking the petitioner about the reasons for negligible load on aforesaid 7 days during particular period of time, they have presumed the case of electricity theft against the petitioner. If the respondents had verified the consumption pattern along with production pattern, they would not have lodged the instant F.I.R. The respondents have deliberately taken out 3 numbers of cables from the scrapyard just to falsely implicate the petitioner and to arbitrarily infer about directly hooking 11 KV line which is otherwise not possible. Moreover, without giving any opportunity of hearing to the petitioner, the respondent No.4 has imposed huge amount presuming theft of electricity for about last three months ignoring the MRI data, which is bound to be followed. Even if the case of the respondents is taken to be true, it can at best be a case of suspected theft falling under the Regulations, 2015 and the petitioner cannot be made to suffer as per the whims and fancies of the officers of the respondent licensee. They also cannot disconnect the electrical connection of the petitioner on mere presumption without finding any direct evidence of theft of electricity at the time of inspection as stipulated under Section 135 of the Act, 2003 as well as Clause 11.8 of the Regulations, 2015. Learned Sr. counsel for the petitioner, in support of his submission, puts reliance on a judgment of the Hon'ble Supreme Court rendered in the case of West Bengal State Electricity Distribution Company Ltd. & Ors. Vs. M/s Orion Metals Pvt. Ltd. & Anr. reported in (2020) 18 SCC 588 wherein Their Lordships while interpreting the provisions of Sections 126, 135 & 154 of the Act, 2003, have held that even in the cases of unauthorized use of electricity by way of theft, the provisions of Section 126 has to be followed for the purpose of assessment of loss amount.
4. Per-contra, learned Sr. counsel for the respondents submits that on the 7 basis of secret information, a team of officers and officials of JBVNL inspected the factory premises of the petitioner on 07.09.2021 at about 3.30 PM which continued till 4.30 A.M on 08.09.2021. During inspection, it was found that three numbers of XLPE (cross linked poly ethylene) cables of 12' to 15' length approx. each associated with copper cables and connected with specially designed copper hook in the one end and with tongs in the other end were attached with 03 numbers of insulated pipes exactly fitting with specially designed copper hooks bypassing the check meter as well as main meter installed by the JBVNL. It is further submitted that the JBVNL had installed main meter and main metering unit in the premises of the petitioner and had also installed a check meter and metering unit outside the premises boundary. The distance between the check metering unit and the electrical open switchyard of the consumer/petitioner was almost 12' to 15' which was exactly same as the length of the recovered XLPE cables. On observing the physical position of 11 KV line, check metering system, main metering system and switchyard of the petitioner, it was found that the wrapped HT tape in all 03 incoming bushes of check metering unit was cut which confirmed that the petitioner used 'hook' at this point for regular tapping and terminating the XLPE cables at AB switch of switchyard through tongs. The inspection team found that the petitioner was using 03 numbers of XLPE cable to tap the primary side of check metering unit for bypassing the complete metering system installed by the JBVNL. The inspection team took MRI data of the consumer's meter, check meter and associated 11 KV feeder at PSS and after analyzing load graph of all these 03 (three) meters particularly of 03.08.2021, 30.08.2021, 31.08.2021, 01.09.2021, 05.09.2021 & 06.09.2021, it was clearly established that the petitioner was bypassing the main meter and check meter using the recovered XLPE cables for pilferage of electrical energy generally at night. The consumption of main meter and check meter at that time was almost negligible in spite of feeding full load in that feeder from PSS which indicated that the petitioner deliberately and intentionally committed theft of electricity. The said team prepared inspection 8 report, seized the materials and apparatus used by the petitioner for such theft and prepared seizure-list. Thereafter, the petitioner's representative was asked to make signature on the same, however, nobody came forward for signing on behalf of the petitioner. On the basis of the above facts, the Assistant Electrical Engineer, Electric Supply Sub-Division, Adityapur-II, Saraikella-Kharsawan being the informant of the case, instituted an FIR before the Officer-in-charge, Gamharia Police Station vide Gamharia P.S Case No. 92/ 2021 dated 08.09.2021 under Sections 135/138 of the Act, 2003. Further, vide letter No. 2136 dated 11.09.2021, an assessment order amounting to Rs.1,27,39,421/- was served to the petitioner along with detailed calculation sheet of the said assessment made against theft of electricity detected during inspection made on 07.09.2021/08.09.2021 for payment of the same, however, the petitioner did not pay the assessed amount. It is further submitted that the petitioner is a habitual offender of committing theft of electricity. Earlier also, an FIR was lodged against it being Gamharia P.S. Case No. 17/2013 dated 24.01.2013 under Sections 135/138 of the Act, 2003 and at that time, Rs.48,39,666/- was assessed as loss amount. Aggrieved with the aforesaid assessment, the petitioner preferred W.P.(C) No. 727/2013, which was disposed of by learned Single Judge vide judgment dated 11.02.2013 with a direction to the respondents to restore the electrical connection of the petitioner with a new meter on deposit of Rs.20 Lacs against the total liability of Rs.48,39,666/-against it as per the provisional assessment bill. The petitioner preferred L.P.A. No. 59/2013 against the said judgment wherein an interim order was passed on 22.02.2013 to restore the electrical connection, subject to the condition of submitting bank guarantee of Rs.40 Lacs by the petitioner. The said L.P.A was finally dismissed by learned Division Bench on 26.04.2013 directing the respondent-J.S.E.B to recover the assessed amount from the bank guarantee or otherwise. Accordingly, the bank was requested to encash the amount of bank guarantee which was deposited by the bank in the account of JSEB (now JBVNL). Thereafter, the petitioner filed SLP before the Hon'ble 9 Supreme Court of India, however, the same was dismissed on 23.09.2013. It is further submitted that Clause 11.12 of the Regulations, 2015 regarding suspected theft of electricity is not applicable in the facts and circumstance of the present case. The assessment has been done as per the Supply Code Regulations, 2015 against theft of electricity detected during inspection on 07.09.2021/08.09.2021. The said assessment is based on the FIR, inspection report and documentary evidence.
5. In reply to the said argument advanced on behalf of the respondents, learned Sr. counsel for the petitioner submits that the inspection team did not find the petitioner consuming electricity through bypassing the meter at the time of inspection, rather the FIR was lodged merely on presumption at the strength of MRI data. Since the allegation of theft cannot be adjudicated under the writ jurisdiction, the petitioner has confined its relief with respect to the manner of assessment of loss amount which has been made ignoring the procedure established by law and also ignoring the inspection report. It is further submitted that the respondents have not justified as to why the assessment has been made for 89 days when their own technical study/analysis through MRI confirms negligible load in the main and the check meter for 7 particular days only and what is the justification of charging loss amount even for those days when the load graphs of main meter, check meter and feeder meter are the same. Though the respondents have mainly relied on the MRI data for alleging theft of electricity, however, at the time of assessment of the loss amount, the MRI data has completely been overlooked, which is required to be mandatorily considered in view of the specific provision of Clause 11.9(d) of the Regulations, 2015. Strong reliance has been placed by the respondents on a judgment of learned Division Bench of this Court rendered in the case of the petitioner i.e. M/s Shyam Lal Iron and Steel Company Vs. Jharkhand State Electricity Board, through its Chairman & Ors. [L.P.A. No. 59 of 2013] disposed of on 26.04.2013, however, Section 135(1A) of the Act, 2003 is contemplated only in a situation where reconnection is demanded 10 and in that situation, the consumer is required to pay the amount assessed for the purpose of reconnection. In fact, the process of assessment is only undertaken under Section 126 of the Act, 2003. The submission of learned Sr. counsel for the respondents that the SLP against learned Division Bench judgment has been dismissed by the Hon'ble Apex Court and therefore the proposition laid down by learned Division Bench judgment will continue to apply, is not correct as the Hon'ble Supreme Court in several judgments has consistently held that mere dismissal of the SLP does not amount to affirming the impugned judgment. In support of the said submission, the learned Sr. counsel for the petitioner puts reliance on a judgment of the Hon'ble Supreme Court rendered in the case of Jalpat Rai & Ors. Vs. State of Haryana reported in (2011) 14 SCC 208. It is further submitted that learned Division Bench has rendered the judgment in L.P.A. No. 59/2013 with reference to earlier regulation i.e. the Jharkhand Supply Code Regulations, 2005 (as amended vide Electricity Supply Code Regulations, 2010) which is materially different from the present regulation i.e. Supply Code Regulations, 2015. Otherwise also, the recent judgment of the Hon'ble Supreme Court rendered in the case of West Bengal State Electricity Distribution Company Ltd. & Ors. (Supra) on the present subject, holds the field under Article 141 of the Constitution of India. Hence, the assessment order is liable to be set aside with a direction to the respondents to follow the procedure prescribed under Section 126 of the Act, 2003 read with Clause 11.9 of the Regulations, 2015.
6. Heard learned counsel for the parties and perused the relevant materials available on record. The petitioner is aggrieved with the inspection report dated 07.09.2021/08.09.2021 prepared by the respondents in pursuance of inspection of its factory premises, whereafter loss amount of Rs.1,27,39,421/- was imposed upon it and its electrical connection was disconnected. The thrust of the argument of learned Sr. counsel for the petitioner is that the impugned assessment is inconsistent with the MRI data which shows negligible load in the main meter and the check meter on altogether seven different dates generally 11 at night, however, the respondent No.4 has arbitrarily assessed the load amount taking cut-off date from 12.06.2021 to 07.09.2021 i.e. for about last three months. It has also been contended by learned Sr. counsel for the petitioner that due to old machinery of the factory, the furnace used to be taken for maintenance after 12 o' clock at night. Had the petitioner been given sufficient opportunity to explain the circumstances under which certain deviation was shown in the MRI data for relevant period of time, it would have sufficiently explained the same, however, the respondent No.4 did not provide any opportunity of hearing to the petitioner before assessing the loss amount and its electrical supply was also disconnected without any justifiable reason. Learned Sr. counsel for the petitioner has strenuously contended that Section 126 of the Act, 2003 provides for the procedure for assessment of energy charges in the case of theft as well as unauthorized use of electricity and in the present case, the respondents have failed to follow the said procedure. Hence, on this score alone, the assessed amount imposed upon the petitioner is liable to be set aside. In support of the aforesaid contention, learned Sr. counsel for the petitioner has put reliance on the judgment of the Hon'ble Supreme Court rendered in the case of West Bengal State Electricity Distribution Company Limited & Ors. (Supra).
7. Learned Sr. counsel for the respondents has very fairly accepted that in the aforesaid case, the Hon'ble Supreme Court has held that there is only one provision for assessment of loss amount for unauthorized use as well as theft of electricity which is under Section 126 of the Act, 2003. Learned Sr. counsel for the respondents has however invited the attention of this Court to the judgment of learned Division Bench of this Court rendered in the case of M/s Shyam Lal Iron & Steel Company (Supra) and has submitted that in the said case, learned Division Bench has observed that in the case of theft, the procedure provided under Section 126 of the Act, 2003 is not required to be followed. The said judgment of learned Division Bench has been affirmed by the Hon'ble Supreme Court in S.L.P (Civil) No. 27328 of 2013 and as such this Court is 12 bound by the said judgment.
8. To appreciate the rival contentions made on behalf of the parties, it would be appropriate to refer the judgments cited on their behalf.
9. In the case of M/s Shyam Lal Iron & Steel Company (Supra), learned Division Bench has held that a separate procedure has been prescribed under Section 126 of the Act, 2003 for assessment of electricity charges in case of 'unauthorized use of electricity' which is different from the procedure prescribed under sub-section (1A) of Section 135 of the Act, 2003. It has been further been held that Clause 15.7 of the Electricity Supply Code Amendment Regulations, 2010 [hereinafter referred to as 'the Regulations, 2010'] prescribes the procedure to be followed in a case found under Section 126 of the Act, 2003 whereas Clause 15.8 of the Regulations, 2010 prescribes the method of assessment of electricity charges in the case of theft of electricity. The heading itself makes it clear that this applies to the cases of theft of electricity. It has been further held that Section 127 of the Act, 2003 speaks about the right to appeal only against the final order passed under Section 126 and not against the order passed under the provision of Section 135(1A) or under Clause 15.8 of the Regulations, 2010. Hence, by implication or by clarification, it cannot be inferred that the orders of assessment, which are passed under the provisions of Section 135(1A) or under Clause 15.8 of the Regulations, 2010 for the cases of theft of electricity are appealable irrespective of the fact that for those orders, a provision has been made under the Act empowering the Special Court to examine the assessment orders under Section 154(5) & (6) of the Act, 2003. The learned Division Bench has further held that the procedure provided in sub-clauses (x) to (xv) of Clause 15.8 of the Regulations, 2010 has no application to the cases of electricity theft as after sub-clause (ix) of Clause 15.8, the provisions have been made to deal with the cases of 'suspected theft'.
10. I have also perused the judgment of the Hon'ble Supreme Court rendered in the case of West Bengal State Electricity Distribution Co. Ltd. (Supra). In the said case, pursuant to an inspection in the factory premises of the 13 respondent, theft of electrical energy was allegedly found by tampering the meter by it and thereafter a provisional assessment was made against the respondent under Section 126(1) of the Act, 2003 which was challenged before the High Court by filing a writ petition which was finally allowed by quashing the provisional assessment and directing the State Government to appoint any member of the inspection team as an Assessing Officer to make fresh assessment. Aggrieved thereby, the respondent-company filed intra court appeal before learned Division Bench of the High Court. In the meantime, a member of the inspecting team was appointed by the State Government as an Assessing Officer and fresh assessment order was issued in compliance of the judgment of the learned Single Judge. The respondent-company questioned fresh assessment order in appeal by filing an interlocutory application. Learned Division Bench allowed the said interlocutory application permitting the respondent-company to challenge the fresh assessment order and finally allowed the appeal holding that only in cases where restoration is sought by the consumer after disconnection of power supply, authorities can resort to make provisional assessment under Section 126(1) of the Act, otherwise the civil liability can be determined by the Special Court only by following the procedure under sub-section (5) of Section 154 of the Act, 2003. When the matter travelled to the Hon'ble Supreme Court, the respondent-company claimed that once the complaint was filed alleging theft of electrical energy under Section 135(1)(a) of the Act, no assessment was permissible under Section 126(1) of the Act. It was further argued on behalf of the respondent-company that the power conferred for provisional assessment under Section 126(1) of the Act is confined to the cases where there is an allegation of unauthorized use of energy and the allegation of theft of energy is to be considered only under Section 135(1)(a) of the Act. It was further claimed that only in the cases where the authorities prove the offence of the accused, the Special Court is empowered to determine civil liability under sub-section (5) of Section 154 of the Act. Their Lordships, after having gone through the relevant provisions i.e. Sections 126, 14 135(1)(a), 153 & 154 of the Act, 2003, have held as under:-
"12. A perusal of the aforesaid provisions and on giving a conjoint reading of the same, it appears to us that after an inspection of any place or any premises of any consumer, when the assessing officer comes to a conclusion that the consumer is indulging in unauthorised use of electricity, the provisional assessment to the best of his judgment is to be made in accordance with Section 126(1) of the Act and such provisional assessment shall be served upon the person in occupation of the premises. After giving an opportunity to file objections to the provisional assessment, the assessing officer is empowered to pass a final order of the assessment assessing the loss of energy, on account of unauthorised use of energy. The unauthorised use of electricity is defined under Section 126(6)(b) of the Act. It is clear from the aforesaid definition that unauthorised use of electricity means, the usage of electricity by any artificial means or by a means not authorised by the person or authority or licensee concerned; or through a tampered meter; or for the purpose other than for which the usage of electricity was authorised; or for the premises or areas other than those for which the supply of electricity was authorised.
13. It is clear from the reading of Section 126(6)(b)(iii) of the Act that instances of use of energy through a tampered meter is included in the definition of unauthorised use of electricity. If that is so, there is no reason, for excluding the power of the authorities for making assessment under Section 126(1) of the Act to assess the loss of energy, where electricity is used through a tampered meter. All instances of unauthorised use of energy may not amount to theft of electricity within the meaning of Section 135 of the Act, but at the same time, the theft of electricity which is covered by Section 135 of the Act, will fall within the definition of unauthorised use of electricity. As per Section 135(1-A) of the Act, without prejudice to the other provisions of the Act, the licensee or supplier, as the case may be, upon detection of theft of electricity, is empowered to disconnect the power supply immediately. Further, as per the third proviso to Section 135(1-A) of the Act, the licensee or supplier, as the case may be, on deposit or payment of assessed amount or electricity charges, without prejudice to the obligation to lodge a complaint, can restore the power supply electricity within forty- eight (48) hours of deposit/payment of such amount. Thus, it is clear that the authorities under the Act are empowered to make a provisional and final assessment by invoking power under Section 126(1) of the Act, even in cases where electricity is unauthorisedly used by way of theft. When a consumer deposits the assessed amount, the licensee or the supplier has to restore the power 15 supply. The assessed amount referred to in the aforesaid proviso, relates to assessment which is contemplated under Section 126(1) of the Act only. There is apparent distinction between Section 126 and Section 135 of the Act. Section 126 forms part of the scheme which authorises electricity supplier to ascertain loss in terms of revenue caused to it by the consumer by his act of "unauthorised use of electricity" whereas Section 135 deals with offence of theft if he is found to have indulged himself in the acts mentioned in clauses (a) to (e) of sub-section (1) of Section 135 of the Electricity Act. Further, it is also clear from Section 154 of the Act, which prescribes procedure and power of the Special Court, that the Special Court is empowered to convict the consumer and impose a sentence of imprisonment. The Special Court, in cases, where a criminal complaint is lodged, is also empowered to determine civil liability under Section 154(5) of the Act. As per Section 154(6) of the Act, in case civil liability so determined by the Special Court is less than the amount deposited by the consumer or the person, the excess amount so deposited by the consumer or the person, shall be refunded by the licensee or the person concerned, as the case may be. Merely because the Special Court is empowered to determine civil liability under Section 154(5) of the Act, in cases where a complaint is lodged, it cannot be said that there is no power conferred on authorities to make provisional assessment/final assessment under Section 126 of the Act.
15. We also do not find any valid reason for making a distinction as made by the High Court in applying Section 126 of the Act. From the scheme of the Act, it appears that after inspection team notices unauthorised use of energy by tampering the meter, the authorities can disconnect the power supply immediately and make immediate assessment for loss of energy, by invoking power under Section 126(1) of the Act. The term "unauthorised use of energy" is of wide connotation. There may be cases of unauthorised use of energy, not amounting to theft, which are cases viz. exceeding the sanctioned load or using the electricity in the premises where its use is not authorised, etc. But at the same time, when there is an allegation of unauthorised use of energy by tampering the meter, such cases of unauthorised use of energy include "theft" as defined under Section 135 of the Act. The power conferred on authorities for making assessment under Section 126(1) of the Act and power to determine civil liability under Section 154(5) of the Act, cannot be said to be parallel to each other. In this regard, we are of the view that the High Court has committed an error in recording a finding, that both proceedings cannot operate parallelly. In a given case where there is no theft of energy, amounting to unauthorised use of energy, in such cases no complaint of theft can be lodged as contemplated under Section 135 of the Act. In such 16 cases for loss of energy, on account of unauthorised use of energy not amounting to theft, it is always open for the authorities to assess the loss of energy by resorting to power under Section 126(1) of the Act. In cases where allegation is of unauthorised use of energy amounting to theft, in such cases, apart from assessing the proceedings under Section 126(1) of the Act, a complaint also can be lodged alleging theft of energy as defined under Section 135(1) of the Act. In such cases, the Special Court is empowered to determine civil liability under Section 154(5) of the Act. On such determination of civil liability by the Special Court, the excess amount, if any, deposited by the petitioner, is to be refunded to the consumer. It is a settled principle that to prove the guilt of the accused in a criminal proceeding, authorities have to prove the case beyond reasonable doubt and the element of mensrea is also to be established. On the other hand, such a strict proof is not necessary for assessing the liability under Section 126(1) of the Act."
11. Thus, the Hon'ble Supreme Court, after having analyzed the relevant provisions of the Act, 2003, has held that the authorities under the said Act are empowered to make a provisional and final assessment by invoking power under Section 126(1) of the Act, even in the cases where electricity is unauthorisedly used by way of theft. The expression 'assessed amount' referred in the third proviso to Section 135(1A) relates to assessment which is contemplated under Section 126(1) of the Act, 2003 only. It has further been held that in the cases where allegation is of unauthorised use of electricity amounting to theft, apart from assessment proceeding under Section 126(1) of the Act, 2003, a complaint can also be lodged alleging theft of energy as defined under Section 135(1) of the said Act. In the cases of theft, the Special Court is empowered to determine civil liability under Section 154(5) of the Act, 2003 and as per Section 154(6) of the said Act when civil liability so determined by the Special Court is less than the amount deposited by the consumer, the excess amount so deposited by the consumer to the Board or the licensee, as the case may be, is to be refunded to it.
12. Thus, the issue as to whether the assessment as contemplated under Section 126(1) of the Act, 2003 is also applicable in the case of theft of electricity, has now been set at rest by the Hon'ble Supreme Court. Hence, in 17 view of 3rd proviso to Section 135(1A) of the Act, 2003, the licensee or supplier has to restore the supply line of electricity on deposit or payment of the assessed amount or electricity charges in accordance with the provisions of the Act and the procedure of assessment has only been provided under Section 126 of the Act, 2003. This Court is bound by the ratio laid down by the Hon'ble Supreme Court under Article 141 of the Constitution of India that the expression 'assessed amount' as referred in the 3rd proviso to Section 135(1A) relates to assessment made under Section 126 of the Act, 2003.
13. The contention of learned Sr. counsel for the respondents is that since the judgment of the learned Division Bench rendered in the case of Shyam Lal Iron (Supra) has also been affirmed by the Hon'ble Supreme Court, this Court is bound by the said judgment.
14. I have perused the judgment of the Hon'ble Supreme Court rendered in the case of Jalpat Rai (Supra) as has been relied upon by learned Sr. counsel for the petitioner wherein it has been held that mere dismissal of SLP summarily does not amount to acceptance of correctness of the High Court's decision. On the other hand, this Court finds that in the judgment of Orion Metals Pvt. Ltd. (Supra), the Hon'ble Supreme Court has elaborately discussed the provisions of the Act, 2003 and has held in clear terms that even in the cases of theft of electricity, the assessment is to be made under Section 126 of the Act, 2003. Under the aforesaid circumstance, this Court is of the opinion that the subsequent judgment of the Hon'ble Supreme Court which has clarified the law on the subject, will hold the field under Article 141 of the Constitution of India and will also be applicable in the case in hand.
15. Now, coming to Section 126 of the Act, 2003 which reads 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 unauthorised 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.18
(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 whom an order has been served under sub-section (2), shall be entitled to file objections, if any, against the provisional assessment before the assessing officer, who shall, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment within thirty days from the date of service of such order of provisional 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.
(5) If the assessing officer reaches to the conclusion that unauthorised use of electricity has taken place, the assessment shall be made for the entire period during which such unauthorised use of electricity has taken place and if, however, the period during which such unauthorised use of electricity has taken place cannot be ascertained, such period shall be limited to a period of twelve months immediately preceding the date of inspection.
(6) The assessment under this section shall be made at a rate equal to twice 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;
(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; or
(v) for the premises or areas other than those for which the supply of electricity was authorised."
16. Thus, Section 126 of the Act, 2003 deals with the term 'assessment' which provides for making provisional assessment of the electricity charges payable by the person, who is found indulged in unauthorized use of electricity. After making provisional assessment by the Assessing Officer, the same shall be served upon the concerned person. Further, the concerned person, on whom an order of provisional assessment has been served, shall be entitled to file 19 objections, if any, before the Assessing Officer, who after giving reasonable opportunity of hearing to such person, shall pass an order of final assessment. Any person served with the provisional assessment order, may however accept such assessment and deposit the assessed amount with the licensee.
17. In the case in hand, undisputedly the procedure prescribed under various sub-sections of Section 126 of the Act, 2003 was not followed while making assessment and thus the impugned assessment order as contained in letter No. 2136 dated 11.09.2021 issued by the respondent No.4, suffers from procedural infirmity.
18. Learned Sr. counsel for the petitioner has taken several grounds to challenge the manner of inspection as well as calculation of the loss amount, however, this Court does not feel it appropriate at this stage to make any comment over the same as the petitioner has an opportunity to raise all those points while making objection under Section 126(3) of the Act, 2003 as also before the Special Court which would determine the civil liability under Section 154(5) of the Act, 2003 against the petitioner in the trial.
19. In view of the aforesaid factual and legal position, the present writ petition is allowed with the following observations:-
(i) The assessment order as contained in letter No. 2136 dated 11.09.2021 issued by the respondent No.4 whereby the loss amount has been calculated as Rs.1,27,39,421/-, shall be treated as a provisional assessment under Section 126(1) of the Act, 2003.
(ii) The petitioner will be at liberty to file its objection under Section 126(3) against the said assessment order before the Assessing Officer, which shall be disposed of by him after providing due opportunity of hearing to the petitioner's representative and thereafter a final assessment order shall be passed in accordance with law, a copy of which shall also be served to the petitioner.
(iii) An amount of Rs.63.50 Lacs deposited by the petitioner for 20 restoration of electrical connection in view of the order dated 21.12.2021 passed in I.A. No. 6650 of 2021 shall be, subject to final assessment order as would be passed by the Assessing Officer.
Satish/AFR (RAJESH SHANKAR, J)