IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) WP(C) No. 2882/2005 M/s. Ladi Steel Industries Pvt. Limited, a private limited company duly incorporated under the Companies Act, 1956, having its registered office at Fancy Bazar, Guwahati-1 and factory at Panchgram, P.O. Udarbon, in the District of Cachar, Silchar, Assam...Petitioner -Versus- 1. Assam State Electricity Board, Bijuli Bhawan, Paltan Bazar, Guwahati, represented by its Chairman. 2. The Chief Engineer (C&P), ASEB, Bijuli Bhawan, Paltan Bazar, Guwahati. 3. The Assistant Executive Industrial Revenue Collection Area, Assam State Electricity Board, Badarpurghat. 4. The Area Manager, Industrial Revenue Collection Area, Assam State Electricity Board, Badarpurghat...Respondents BEFORE THE HON BLE MR. JUSTICE B.K. SHARMA For the Petitioner : Mrs. M. Hazarika, Sr. Adv. Ms. J. Hazarika, Adv. For the Respondents : Mr. N. Goswami, SC, ASEB. Pages 1 of 11
Date of hearing : 16/07/2013 Date of Judgement : 02/08/2013. JUDGEMENT AND ORDER (CAV) In this writ petition, the petitioner has questioned the decision of the authority in the Assam State Electricity Board in upholding its earlier decision making the petitioner liable to pay compensation for the loss of energy. 2. The petitioner is a private limited company incorporated under the Companies Act, 1956, having its registered office at M.S. Road, Fancy Bazar, Guwahati and factory at Pangram, Udarbond in the district of Cachar. The petitioner was sanctioned a load of 652 KW and a transformer was installed with the meter bearing No. 15989/DPT/83 3 XII KV/110K/50/5A in the factory on or about 25/01/1988. The petitioner entered into an agreement with the ASEB in which the terms and conditions for supply of energy was incorporated. 3. Under Section 26 of the Indian Electricity Act, 1910, the respondents are required to charge the petitioner for consumption of electricity as per the reading of the meter. The petitioner as consumer is supplied with electricity by the respondents through the meter installed and sealed by them. According to the petitioner, no representative of the petitioner was present at the time of installation of the CT terminal cover box. 4. On 20/10/2000 at about 1.00 pm, the MTI wing of the ASEB visited the factory of the petitioner and made thorough inspection of the entire installation of electricity in the factory premises of the petitioner including the electric meter and CT Terminal Cover Box. On the basis of the said inspection, the report bearing Sl. No. 1268 dated Pages 2 of 11
20/10/2000 was prepared under the caption Report of Inspection / Testing/renovation/new connection carried out at the consumers premises by the MTI Wing of the ASEB. According to the petitioner, as per the report, no illegality was detected in the installation of the CT Terminal Cover Box of the factory. The MTI Wing of the ASEB again visited the factory premises of the petitioner and carried out further inspection. According to the petitioner, the factory was closed on that day as it was a Sunday. It is the further case of the petitioner that the inspection was carried out without furnishing any intimation to the petitioner and without inviting its representatives to be present in the inspection. 5. In the report prepared on the basis of the inspection carried out on 24/12/2000, the following observation under the head General remarks on observation of testing/inspection was made :- Existing L.T. Meter connection checked and plaster Seal No. C 32353 fixed on C.T. Secondary box found cut. On opening the C.T. Terminal Cover box, it is found that insulation of C.T. Secondary wires found removed in all C.T.S. (6 wires) at C.T. Secondary Terminal Joints. This will help shorting C.T.S. thereby preventing the meter in recording actual consumption. Hence, it is a case of malpractice. The original condition of meter and C.T.S. kept as it is for future necessary action. A new H.T. Meter installed including New C.T.P.T., Seal and meter performance checked found OK. 6. After the aforesaid inspection and assessment, bill bearing No. 134/001 dated 19/01/2001 for Rs. 30,57,281.00 was raised by the respondents demanding the petitioner to pay the same as compensation. Being aggrieved by the raising Pages 3 of 11
of the said bill, the petitioner preferred an appeal before the respondent No.2 and the same was disposed of by order dated 19/11/2001 advising the Area Manager, Badarpur to serve a revised bill for the period w.e.f. 20/10/2000 to 24/12/2000 instead of 6(six) months. Pursuant to the said order, a revised assessment bill was issued on 14/02/2002 but noticing the mistake therein, another revised assessment bill was issued on 14/06/2002 demanding payment of Rs. 14,30,962/-. At the time of preferring the appeal, the petitioner had already paid Rs. 6,11,456/- and thus the balance stood at Rs. 8,19,506/-. 7. Making a grievance against the aforesaid action on the part of the respondents, the petitioner approached this Court by filing a writ petition being WP(C) No. 4376/2002, which was disposed of by order dated 16/07/2002 with the direction to the respondents to consider the actual dispute raised and then to prepare a proper bill. While disposing of the writ petition, it was observed recording the concession of the learned counsel for the parties that the Writ Court cannot go into the disputed questions of fact. It was only on the basis of the submission made by the learned counsel for the petitioner that it could agitate the grievance before the appellate authority in respect of the plea of lack of notice to the petitioner in respect of the inspection in question, the writ petition was disposed of. 8. Pursuant to the said order of this Court dated 16/07/2002 in WP(C) No. 4376/2002, the ASEB authority passed the Annexure-E order dated 02/04/2003 concluding that the petitioner was involved in tempering of the meter system and accordingly was liable to pay compensation for the loss of energy assessed at Rs. 10,78,484/-. The order also indicated that after deduction of the amount of Rs. 6,11,456/- already paid by the petitioner as noted above, the balance amount would be Rs. 4,67,028/- and accordingly a revised bill was issued to the petitioner (Annexure-G). Pages 4 of 11
9. Being aggrieved by the aforesaid decision, the petitioner preferred another Writ petition being WP(C) No. 6388/2003 which was disposed of by order dated 24/05/2004 remanding the matter back to the appellate authority for a fresh consideration as it was contended that reasonable opportunity of being heard was not provided to the petitioner. 10. After the aforesaid order passed by this Court, the appeal was re-heard and by the impugned order dated 08/09/2004, the same having been rejected, the petitioner is once again before this Court by filing the instant writ petition. 11. I have heard Ms. M. Hazarika, learned senior counsel assisted by Ms. J. Hazarika, learned counsel for the petitioner. I have also heard Mr. N. Goswami, learned Standing Counsel, ASEB. I have also perused the entire materials on record. 12. Ms. M. Hazarika, learned senior counsel for the petitioner submitted that the inspection in question having been carried out without the presence of the representative of the petitioner, based on the said inspection and the report thereof, the ASEB authority could not have raised the bill in question, making the petitioner liable to pay the aforesaid compensation amount. Countering the said argument, Mr. N. Goswami, learned Standing Counsel, ASEB questioning the maintainability of the writ petition being involved with disputed questions of fact, also submitted that the petitioner being guilty of tempering with the meter reading system, there is nothing wrong in imposing the penalty /compensation. In support of the submission made by Mr. N. Goswami, learned Standing Counsel, ASEB, he has placed reliance on the following decisions. Pages 5 of 11
(i) (2003) 5 SCC 226 (J.M.D. Alloys Ltd. Vs. Bihar State Electricity Board and others. (ii) (2006) 8 SCC 629 (Jagmodhan Mehatabsing Gujaral Vs. State of Maharashtra) (iii) (1996) 3 SCC 364 (State Bank of Patiala and others Vs. S.K. Sharma). (iv) AIR 1966 SC 849 (Jagannath Singh Vs. B.S. Ramaswamy and another) (v) (1996) 4 SCC 522 (M.P. Electricity Board, Jabalpur and others Vs. Harsh Wood Products and another). 13. Annexure-A is the inspection report in question in which it was categorically observed that insulation of CT Secondary box was found cut. It was also found that the insulation of CT Secondary Wires were removed in all C.T.S. (6 wires) at CT Secondary Terminal joints. As per the report, the said course of action helped shorting CTS thereby preventing the meter in recording actual consumption. It was the categorical finding in the inspection report that there was malpractice. 14. The only ground on which the petitioner has challenged the said inspection is that while carrying out the inspection, no representative of the petitioner was present. In this connection, the petitioner has referred to the endorsement of one Amarchand Jangir, representative of the petitioner. In the said endorsement made in Hindi, it was stated that the Terminal box seal was not opened in his presence and that he was called at a later point of time. However, he also stated that when the ASEB personnel had shown him the condition of the metering system and also told him about the defects, he made the endorsement after seeing the said conditions and signed the same. Be it stated there that the inspection team consisted of as many as 8 (eight) ASEB personnel, namely, Director (Tech Inspection) ; Executive Engineer, MT Division, Guwahati ; Assistant Executive Engineer, MTI Division, Guwahati ; Assistant Pages 6 of 11
Executive Engineer In-charge, MTI S/D, Silchar ; J.E., MTI S/D Silchar ; JE B/RCA, Badarpur, JE, Udarbond Elect. S/D and Sr. Electrical Inspector, Govt. of Assam, Silchar. 15. It is hardly believable that such high officials of the ASEB would go to the factory of the petitioner and carry out activities so as to show malpractices on the part of the petitioner. There is no allegation of malafide action on the part of the respondents, more particularly, the said members of the Inspection team who are also not party to this proceeding. As per the terms and conditions of supply, 1988 (Clause 19), a consumer shall not interfere with the supply mains or apparatus including the metering arrangement installed in his premises. The sealing of the metering arrangement is required to be done by an authorized officer /employee of the ASEB in presence of the consumer or his representative. When the authorized officer / employee wants to break the seal or otherwise interfere with the metering arrangement, he shall invite the presence of the consumer or his representative to witness it. 16. Although it was submitted by the learned counsel for the petitioner that before carrying out the inspection, notice was required to be given to the petitioner but the aforesaid Clause-19 of the terms and conditions of supply does not warrant the same. As per the said clause and even otherwise also, a consumer cannot interfere with the mains or apparatus etc. affecting correct recording of energy consumption of the petitioner. 17. Presence of the consumer s representative has been emphasized in the said clause only in case of breaking the seal or otherwise interfering with the metering arrangement. As per the inspection report, when the inspecting team visited the factory premises of the petitioner, it was noticed that there was tempering with the metering system even to the extent of cutting the Pages 7 of 11
plaster seal and removal of secondary wires in all CTS (6 wires), thereby preventing the meter in recording the actual consumption. Moreover, it cannot be said to be a case of non-furnishing of any intimation to the representative of the consumer as would be evident from the inspection report itself. The representative was shown the terminal box and the irregularities in the system and he was also explained of the irregularities therein. That apart, in such matters relating to tempering with the meter etc., there cannot be any straight jacket formulae relating to the principles involved in violation of natural justice. 18. As noted above, even in the earlier round of litigation (WP(C) No. 4376/2002), this Court by its order dated 16/07/2002 categorically held that exercising writ jurisdiction the disputed questions of fact cannot be gone into. That apart, in pursuance to the order of this Court, the appellate authority has meticulously considered the grievance raised by the petitioner in reference to the relevant facts. This Court exercising writ jurisdiction cannot sit on appeal over the findings recorded by the said authority. 19. The appellate authority has specifically dealt with the plea of the petitioner that their representative was not present while carrying out the inspection. Taking into account the said plea of the petitioner and upon examination of all the available records, the appellate authority has observed in the impugned order that the insulation of CT Terminal were found removed during inspection, resulting short circuiting the terminal, thereby preventing the meter to record actual consumption. As a whole, all CT terminal cover was found to be cut and there was easy access to the CT terminal. Additionally, the appellate authority has also compared the meter reading records pertaining to the years 1999, 2000 and 2001 and found that there was wide variation in the meter reading while compared in between consumption prior to the date of inspection and after Pages 8 of 11
inspection. It was found that consumption before the inspection was much lower compared to the consumption after the date of inspection. Moreover, the production chart produced by the consumer also did not tally with the consumption record of the consumer. It was in such circumstances, the tempering of the meter stood established as the meter was prevented from recording actual consumption causing loss to the Board. 20. As per Rule 56 of the I.E. Rules, 1956, the consumer is required to use all reasonable means in his power to ensure that no seal is broken otherwise than the supply. As revealed from the above referred inspection report dated 20/10/2000, the sealing was done in presence of the consumer s representative. It has rightly been recorded by the appellate authority that any prior notice for inspection to the consumer would have only entailed the removal of evidence of malpractice by the consumer. 21. As noted above, presence of consumer or his representative is necessary only when the inspecting Officer wants to break the seal or interfere with the existing metering arrangement and not for other purpose like detecting malpractice etc. There is no evidence that the inspecting officer wanted to break the seal or interfere with the metering system, rather it shows that the inspecting team detected breaking of seal (cut) and removal of insulation of metering system, which the consumer did not deny at any stage. As recorded in the appellate order, as per Rule 5 of the I.E. Rule 1956, any inspector may enter, inspect any premises where there is use of electrical energy. Such inspection did not cause any prejudice to the petitioner, which was carried out by a group of responsible officials of the ASEB. Even otherwise also, the provisions of the terms and conditions of supply cannot override the provisions of the statutory rules. Pages 9 of 11
22. In J.M.D. Alloys (Supra), the Apex Court dealing with the scope of judicial review in respect of findings of unauthorised use of electricity given by an officer of State Electricity Board held the same to be beyond the scope of judicial review under Article 226. In Jagmodhan Mehatabsing Gujaral (Supra) it was held that in surprise raid, no notice is required to be given as the same would be counter productive because there is strong possibility of obliterating and / or destroying the entire evidence. 23. The decision in S.K. Sharma (Supra) has been pressed into service so as to emphasis that there cannot be any inflexible rule in respect of applicability of the principles of natural justice. In the said case, it was held by the Apex Court that invalidating an action / order/decision on ground of mere technical violation of the principles, would amount to negation of justice, instead of doing justice between the parties. In Jagannath Singh (Supra) the Apex Court held that abstraction of electrical energy dishonestly is statutory theft and it can be proved directly or circumstantially. It was held that tempering of the meter and taking of unauthorised energy is prima-facie evidence of dishonest extraction. 24. In MP Electricity Board (Supra) referring to the provisions of the Electricity act, 1990 (Section 24), it was held by the Apex Court that the contemplation of 7 days notice before disconnection may not be applicable in case of detection of pilferage and power theft. 25. All the aforesaid decisions on which the learned Standing Counsel, ASEB has placed reliance duly support the case of the respondents. Here is a case in which an inspection team consisting of responsible officers of the ASEB detected malpractices on the part of the petitioner in tempering with the metering system which is sought to be set at naught only with the plea of absence of the authorized representative of the petitioner at the time of Pages 10 of 11
inspection. In absence of any malafide exercise of power by the members of the said inspection team, who are also not party respondents to this proceeding and even otherwise also when it is highly improbable that the said officials maintaining a undisclosed grudge against the petitioner, would even go to the extent of visiting the factory premises of the petitioner and indulged in illegal activities only to attribute the same to the petitioner, leading to passing of the impugned orders and the assessment bill which, for the reasons stated above, clearly justify the impugned action on the part of the respondents. I see no reason to interfere with the same exercising writ jurisdiction. 26. For all the aforesaid reasons I do not find any merit in the writ petition and accordingly it is dismissed, leaving the parties to bear their own costs. JUDGE Sukhamay Pages 11 of 11