Oral Judgment
1. The petitioner, a Private Limited Company, duly incorporated under the Companies Act and consumer of electricity energy has approached this Court by way of this petition under Article 226 and 227 of the Constitution of India, challenging the order dated 23/7/2002 on the grounds mentioned in the memo of the petition.
2. The facts leading to filing of this petition as could be gathered from memo of the petition, deserve to be set out as under.
The petitioner was having a plastic factory and therefore consuming electricity energy having Consumer Connection No: 33444/01553/2 where under supply was given. The petitioners initial connection was under LTP-I category and as he intended to change the category from LTP-I to LTP-III, he applied for change in the tariff category from LTP-I to LTP-III on February 02, 2002. The employees of the board replaced the old meter and took away old meter with its MMB (Metal Meter Box) and installed new meter pursuant to the request for shift in the category.
3. The old meter was inspected in the laboratory on March 21, 2002 in presence of the petitioners representative wherein the findings came to be recorded indicative of presence of foreign substances in the MMB and evidence leading to one and only conclusion qua tampering with the meter so as to prevent from recording less consumption of the energy consumed. Based there upon, in exercise of the authority, the concerned officer raised supplementary bill as provided under Condition No. 34 of the Supply Conditions and called upon the petitioner to pay the amount of Rs.14,46,880.28. Being aggrieved and dissatisfied with the said bill the petitioner preferred an appeal as provided in the conditions inter alia contending that the petitioner could not have been said to be liable to pay the bill amount raised subsequently as there was no theft and no tampering as could be seen from the laboratory testing. It was contended that the consumption pattern for the period in question was indicative of very less consumption on account of the factory being in its inception and the non-availability of machines and its non-installation resulting into lesser production and lesser consumption of the electricity. The consumption pattern was documented to the committee in the form of two statements for the period 21/7/2001 to 31/1/2002 and another one being from 1/2/2002 to 31/7/2002 i.e. six moths period prior to its taking the old meter and the period subsequent to installation of new meter and on the strength thereof an argument was canvassed to indicate that the reasons stated therein and the bills of procurement of machineries indicated that presumption of respondent was incorrect qua illegal extraction or abstraction attributable to the petitioner.
4. The Appellate Authority after considering the grounds came to the conclusion that the appeal raised was not on account of the illegal abstraction required to be altered and did not accept the submission of the petitioner qua lack of any illegal abstraction but accepted the appeal qua load factor and directed the authority to reduce the bill which had resulted into new bill whereby Rs.10,00,000/- were deducted and new bill was raised to the tune of Rs.4,00,000/- and odd. The present petition is filed on the grounds given by the appellate committed and aggrieved by the findings in so far as the committee did not accept the contention of the petitioner in its totality and therefore prayed that the order of the appellate committee is required to be quashed and set aside.
5. Learned advocate appearing for the petitioner invited this courts attention to the decision of the Supreme Court in case of Punjab State Electricity Board And Another Vs. Ashwani Kumar, reported in (1997) 5 SCC 120 , with special emphasize upon para-9 and submitted that this decision is followed by this Court in case of Modern Terry Towels Ltd Vs. Gujarat Electricity Board and Others, reported in 2003 (1) G.L.H. 293, and heavily relied upon the observations of the Court in para no. 28 and 29 and contended that the appellate committee is under an obligation to take into consideration all the grounds of the appeal with them as consumer citizen has no other remedy which is efficacious for redressal of his grievance. In light of the observation of the Supreme Court as well as this Court in above two decisions, a contention was raised in respect of the order of the appellate committee and it was submitted that the appellate committee did not appreciate the fact that laboratory report dated 21/3/2002 did not indicate anywhere that the meter was tampered, that laboratory report discussed on various factors like acucheck test, seals on the meter and consumer position. When all those factors were found to be intact and not indicative of any likelihood of tampering, there was no reason for doubting the petitioners case only on account of presence of foreign substance in the MMB as the MMB size or the so called test in that, or any other hinges are of no avail to the respondent as even the appellate committee also appreciated those facts as when the meter was originally installed the MMB was not available with the respondent board and therefore the petitioner had to procure it on its own from the outside market which was fixed by the employees and agents of the respondent. The MMB not being originally of the respondent was the answer to so called minor discrepancies recorded during the laboratory inspection of the meter and this in itself could not have been taken to be a conclusive proof indicative of illegal abstraction of energy as sought to be attributed to the petitioner.
6. Learned advocate appearing for the petitioner thereafter invited this Courts attention to the observations and recording of the appellate committee and submitted that the appellate committee have even recorded that there was difference in two doors of the MMB and that recording itself is sufficient to nullify the claim of the respondent qua illegal abstraction of energy at the end of the petitioner. Unfortunately, the appellate committee after having recording this one of overlooking the relevant factors which were indicative of consumption pattern, without appreciating the pattern in itself in true spirit and letters, the committee came to the conclusion that on account of foreign substances and the consumption pattern of the electricity consumed prior to the installation of new meter and subsequent thereto was sufficient to justify raising of the bill which was required to be interfered with only on account of load factor.
7. Learned advocate for the petitioner thereafter contended that the documentary evidences in form of two statements produced i.e. bill of machinery as well as the engineer's report indicating installation and commissioning of the machinery, ought to have been appreciated by the appellate committee. The appellate committee has unfortunately not adverted to it properly, the error is apparent on the part of appellate committee in discarding the statement by referring it to œof no chargeable period? This is a palpably wrong finding which would indicate how and in what manner the decision making process is vitiated. Therefore the entire order of the appellate committee is required to be quashed and set aside in so far as it has not taken into consideration the documents in respect of commissioning and installation of machinery. The consumption data and the machinery purchased bills are produced.
8. Lastly it is submitted by learned advocate appearing for the petitioner that the fact to be noted that the respondent Board did not have MMB at the relevant time and therefore petitioner had to procure it and procurement of the petitioner itself indicate that the MMB which did not belong to the board originally, could not have been expected to meet with the requirement of MMB otherwise available with the board, and when the Boards employees had fixed the MMB so called discrepancy and hinges on doors could not have been so stretched as to lead to a conclusion that there was tampering with the seal of MMB and they are estopped from taking such contention.
9. Learned advocate appearing for the respondent Board contended that the appellate committees order if perused closely would clearly indicate that the appellate committee has dealt with each and every aspect of the matter.
10. Learned advocate appearing for the respondent Board invited the Courts attention to the decision of the Apex Court in case of Hyderabad Vanaspathi Ltd Vs. A.P. State Electricity Board And Others, reported in (1998) 4 SCC, 470 , and submitted that the scope of condition-34 is well discussed and upheld by the Court by referring to the Division Bench decision in case of K.G. Purushothaman Vs. Kerala State Electricity Board and Anr, reported in AIR 2007 Kerala, pg. 201, therefore it needs no elaboration. Suffice it to say that the power and authority of the Boards for raising bill on account of primary satisfaction qua unauthorised or illegal abstraction of energy at the end of the consumer is sufficient and well recognized. The reliance placed upon decision of the Supreme Court in Punjab State Electricity Board And Another Vs. Ashwani Kumar (supra) and this Courts decision in case4 of Modern Terry Towels Ltd Vs. Gujarat Electricity Board and Ors (supra) therefore are of no avail to the petitioner, as in the instant case the findings recorded in the Laboratory Report and appreciation of the committee conclusively would go to show that the primary satisfaction of the Board qua illegal abstraction of energy is well justified and therefore the resultant bill modified by the committee should not have been said to be in any manner illegal or unauthorised.
11. Learned advocate appearing for the Board invited this Courts attention to the Laboratory Report dated 21/3/2002 and submitted that the existence of foreign substances in MMB, namely 2 bricks, one wooden piece and tester have in themselves be sufficient to lead to a strong factum of employment of devices preventing meter from recording correct energy consumption. The meter box was not disputed to have been procured by the petitioner but that in itself is not sufficient to explain existence of foreign substances from their end. Appellate Committees observation qua MMB being procured by the petitioner cannot be stretched so as to absolve the petitioner and his primary liability to explain existence of foreign substances which can never been there in the box at all.
12. Learned advocate for the Board thereafter contended that the committee has categorically adverted to the statement produced at page “ 34, though there is a reference to chargeable period but complete reading with that of bill would show that the committee was convinced qua marked difference in pattern which persuaded the committee to hold that the Board was justified in raising the bill for the period in question. The committee partly allowed the bill of the petitioner and issued direction to the Board for reducing amount of bill on account of load factor. Therefore there being no illegality at all the petition is required to be dismissed.
13. Learned advocate for the Board invited the Courts attention to laboratory report and submitted that the MMB even though procured by the petitioner revealed clearly that the position of hinges fixed, discrepancy in the fixation of board, coupled with the fact that foreign substances were found there under and tampering with seal also were sufficient to indicate that there was tampering with MMB and seal also, that cannot be said to be in any manner disturbed by the appellate committee. Therefore taking everything into consideration the order impugned passed by the committee cannot be said to have caused any injustice to the petitioner to call for interference by this Court under Article 226 as well as 227 of the Constitution of India.
14. Learned advocate for the respondent Board thereafter invited this Courts attention to the case of J.M.D. Alloys Ltd Vs. Bihar State Electricity Board And Others, reported in (2003) 5 SCC pg, 226, and submitted that scope of scrutiny under Article 226 of the Constitution of India in such a case being very limited and therefore when this Court is not to act as Appellate Court the proposition of the appellate committee when it is found to be just and proper, its findings cannot be disturbed on account of specious plea raised on behalf of the petitioner.
15. This Court has perused the petition and annexures and heard the advocates appearing for the parties. Before adverting to the rival contentions of the parties, it is most important to set out herein below few indisputable aspects those are noticed therefrom, namely:-
a) The petitioner had electricity supply and consumed energy right from inception.
b) Initial supply was under category of LTP-I and petitioner applied for change therefrom to LTP-III resulting into replacement of old meter with that of new that included MMB.
c) The fact remains to be noted that there cannot be dispute that the MMB had not been supplied by the Board when the initial meter was installed, but it is also required to be noted that the apparent discrepancy narrated in the laboratory report would remain to be noticed.
d) The laboratory report clearly indicated that the MMB and meter were sealed in presence of the petitioner and signatures are obtained. MMB and meter were opened only in presence of petitioner in the month of March 2002 and the first part in the report clearly indicative of these factors which will rule out any plausibility or remove possibility of any submission or arguments qua possible tampering or mishandling on the part of the Board or its employees.
e) The factom of sealing of MMB with old meter in the premises of the petitioner and opening of those seals in the laboratory in presence of the petitioner's representative on 21/3/2002 and recording that the seals were intact would be taken into consideration which will lay onus upon the petitioner to explain the existence of foreign substances in the MMB, namely 2 bricks, wooden piece and tester (total four). These four substances and articles were found in the MMB which could never have been there had the seal been intact as originally applied by the Board. Thus procurement of MMB by the petitioner in my view is sought to be capitalized upon to assail the raising of bill but the first part of the laboratory report was itself indicating that the seal was intact and MMB was sealed in presence of the petitioner in his factory, then it can be said that petitioner had failed in discharging burden of explaining foreign substances in the MMB even before the appellate committee.
f) The diagram of MMB in the laboratory report on the face of it clearly indicate that one door is of 3? and another door of 2? size. Though the Court hasten to add here that when the appellate committee has not been impressed on account of the doors size and colour of the MMB, but the existence of foreign substances and lack of explanation on the part of the petitioner speaks volumes about the MMB not being maintained in a sealed condition on the part of the petitioner which was installed and was within the custody of the petitioner through out.
g) Reading of the entire laboratory report and the MMBs condition coupled with recording of energy and enhancement of consumption of energy after the change of meter are significant and required to be appreciated in its true spirit.
h) The petitioner's attempt to explain the sudden enhancement in consumption of energy on account of commissioning of new machinery is not accepted by the appellate committee as the appellate committee had indicated the the purchase bill of the machinery was of March 2000 and petitioners say of its commissioning after a year was not acceptable. It is required to be noted that the primary burden of explaining consumption and change in consumption pattern was upon the petitioner which the petitioner could not decide.
16. Thus, against the aforesaid backdrop of indisputable aspects, the Court is of the considered view that whether the impugned order is required to be quashed only on account of the committees lack in elaborately discussing evidences produced by the petitioner? The answer is emphatically NO, as the committee has adequately discussed all the material aspects produced on record. The committee is of-course referring the chargeable part incorrectly, but if one reads the entire order in its totality, then, that being a mistake which will not avail in favour of the petitioner in any manner as the reasoning of the committee is absolutely clear. This Court is of the view that two documents viz. Document at page-34 and another at page-44 that is documents / or tabular depiction of consumption pattern from 21/7/2001 to 31/1/2002 and from 1/2/2002 to 31/7/2002 could be of no avail to the petitioner. The electricity company or the appellate authority could not have been expected to go along with the petitioner on the strength of the statement produced by him without there being any supporting documents as rightly contended by the advocate of the respondent Board for assailing these two statements. The two statements are indicative of the pattern of consumption but they in itself are not capable of raising cast iron proposition that they are the statements to be taken as gospel truth. As against this the fact remains to be noted that the factum of availability of foreign substances in MMB has remained unexplained and therefore those facts coupled with the factum of consumption pattern which shot up after installation of new meter would be sufficient to indicate that the Board was justified in prima facie recording its satisfaction qua illegal abstraction of energy. The findings recorded by the appellate committee after affording both the parties to produce evidences and after hearing both the parties, would go to show that the findings of the appellate committee calls for no interference at the end of this Court under Article 226 as well as 227 of the Constitution of India.
17. The petition, therefore, being bereft of merits deserves dismissal and is accordingly dismissed. Rule discharged. Interim relief, if any granted earlier, shall stand vacated. However, there shall be no order as to costs.