Judgment:
ORDER
Rajiv Sharma, J.
1. Heard learned Counsel for the petitioner and Sri Manoj Kumar Dwivedi appearing for respondent Nos. 2 to 4.
2. In the instant writ petition, the petitioner has inter alia assailed the order dated 18th March, 2008 passed by the Commissioner, Lucknow Division, Lucknow inter alia on the ground that the impugned judgment not only suffers from infirmities but is in transgression of the authority vested in him inasmuch as the provisions of the Electricity Supply Code 2-5 were not adverted to and without adverting the same, the impugned order has been passed.
3. Put it briefly, the essential facts of the case are that the petitioner is a partnership firm carrying on its business under the name and style of M/s. Citi Hotel, Lucknow, and for running the hotel the electrical energy was required and as such connection for supply of electrical energy was applied in the requisite format, which was sanctioned with a load of 40 KW. A meter was also installed in the premises of the hotel. The hotel was utilizing about 36.110 KW load out of the sanctioned load and was paying the bill regularly. In the hotel, the management was also running a restaurant. One Sri S. C. Jain, Junior Engineer, who was in-charge of the area, used to visit the restaurant, which is within the hotel premises. On 28-5-2002, he along with other persons had taken lunch in the restaurant and when the bill was raised, the said Engineer became annoyed and he raided the premises after few hours along with other officials on the same day implicating the petitioner and its Manager in a false theft case. The charge levelled against the petitioner was that they were consuming a load of 88.75 KW, whereas the sanctioned load was only 40 KW and accordingly provisional assessment order dated 25-6-2002 was passed creating a demand of Rs. 18,16,218/- and further the supply of electrical energy was disconnected. Thereafter prosecution was also launched.
4. Against disconnection, the petitioner preferred a writ petition, bearing No. 5366 (MB) of 2002, before this Court, which was disposed of finally directions on 9-9-2002. The said judgment reads as under:
Counter-affidavit filed today be taken on record. Learned Counsel for the petitioners states that he would not like to file re-Joinder affidavit in this writ petition. With the consent of the parties' counsel, the writ petition is being disposed of finally.
The grievance in the present petition is regarding a raid conducted by the vigilance squad of the Power Corporation. The allegations have been made against the authorities who conducted the raid with a view to establish mala fides by asserting that actually no raid was conducted but the proceedings are being taken for realization of the amount of the alleged assessment because of vengeance of the authority. The opposite parties have filed a detailed counter-affidavit denying the aforesaid allegations categorically. We do not find anything on record of the writ petition so as to draw any conclusion. We therefore do not adjudicate upon the allegation that whether the raid was actually conducted or not.
Learned Counsel for the petitioners has submitted that after show-cause notice dated 5th June, 2002 the petitioners requested for certain documents to which reply was given on 30th June. 2002 for submission of his reply against the proposed assessment and the realization of the
amount but the said reply has not been considered and the notice dated 5th June, 2002 has not yet been disposed of and the electricity stands disconnected.
Learned Counsel for the respondents Sri. S.M.K. Chaudhary relying on paragraph 17 of the counter-affidavit has submitted that the letter would be sent to the petitioner indicating the orders which may be passed by the authority in the matter on the notice dated 5th June, 2002. he further submits that the disconnection is an independent matter as the petitioner has been found guilty of theft and non-payment of electricity charges.
We do not find that the matter still has to be decided by the Executive Engineer concerned and therefore we direct that the Executive Engineer concerned shall consider and dispose of the proceedings initiated in pursuance of the notice dated 5th June, 2002 within a period of ten days from the date a certified copy of this order is produced. In case the petitioner is aggrieved by the order of the Executive Engineer, he may prefer an appeal to the Appellate Committee as per the provisions contained in Clause 7.20 of Uttar Pradesh Electricity Supply Code, 2002 (Distribution Code).
In the meantime, it is also provided that in case the petitioner deposits five lakh rupees, the electricity connection shall be restored on payment of cable charges separately. The petitioner shall pay the current charges as per the meter.
With the above directions, the writ petition is finally disposed of.
5. Instead of complying the aforesaid direction of this Court, the Executive Engineer, vide order dated 17th September, 2002, raised the bill of an amount of Rs. 16,27,989/-, on the charge of theft of electrical energy and not on the charge of utilisation of electrical energy beyond the sanctioned load. Aggrieved by the aforesaid action, the petitioner filed an Appeal before the Appellate Committee and during its pendnecy the Electricity Supply Code-2002 was replaced by the existing Electricity Supply Code-2005 and as such the appeal of the petitioner was transferred to the Divisional Commissioner, Lucknow. The Appellate Authority dismissed the appeal and a recovery of Rs. 16,73,784 towards the penalty inflicted on the allegation of theft, was maintained.
6. Hence the petitioner has filed the instant writ petition assailing the order dated 18th March, 2008 passed by the Appellate Authority as also the order dated 17th September, 2002 passed by the Executive Engineer, UPPCL by means of which recovery of aforesaid amount was passed.
7. Counsel for the petitioner submitted that pursuant to the raid, a criminal case No. 337/03 under Section 39/40/49B of the Indian Electricity Act was registered. In the said criminal case, after trial, the learned 1st Additional Chief Judicial Magistrate acquitted the accused as no case of theft of power was proved. After the acquittal of the petitioner and his employees, as per provisions of Clause 8.2 espesically (x), (g) arid (h) of the Electricity Supply Code-2005 the assessment against the petitioner was liable to be withdrawn and the connection was liable to be restored through the original meter.
8. The judgment and order of the learned 1st Additional Chief Judicial Magistrate acquitting the accused persons was brought to the notice of the learned Divisional Commissioner and it was prayed that in view of clause 8.2, the proceedings agairist the petitioner are liable to be dropped.
9. It has been vehemently argued that the learned Commissioner committed an error in not considering the statutory provision, referred to above, and had wrongly came to the conclusion that the petitioner had deliberately impugned the allegation of false implication because of non-payment of the bill made against the Junior Engineer, whereas the theft is proved against the petitioner and there is no illegality or infirmity, in the provisional assessment order. It has been urged that the impugned order passed by the learned Commissioner is not only contrary to aforesaid provisions but is in transgression of the authority vested in him inasmuch as the provisions of the Electricity Supply Code-2005 were not adverted to and without adverting to the same, the impugned order has been passed.
10. Counsel for the petitioner has lastly submitted that even after the restoration of the electricity connection, the petitioner was continuously paying the bill as raised by the. Electrical Authorities without there being, any complaint. However, when the respondent Nos. 2 to 5 came to know about the filing of the present writ petition, the officers of the Corporation again disconnected the electricity connection without any notice to the petitioner.
11. On 3-4-2008, this Court passed an order that in case the petitioner deposits 50% of the demanded amount after adjusting the amount of Rs. 5,00,000/- which had already been deposited, the electrical energy to the Hotel shall be restored forthwith. In compliance of the said order, the petitioner deposited Rs. 6,58,109/- and only then the connection was restored.
12. On behalf of the Power Corporation, it has been argued that it is not disputed that the accused person has been acquitted in criminal case by the Competent Court for the theft of electricity but so far as the civil liability is concerned, the petitioner was assessed by the opposite party as per provisions of the Electricity Act and Rules, and therefore, the petitioner is under an obligation to pay the dues. The impugned order has been passed by the Commissioner after considering the relevant record and evidence and as such there is no illegality. In support of his contention he has also placed reliance on : (2003)5 SCC 226 : AIR 2003 SC 1354 J.M.D. Alloys Ltd. v. Bihar State Electricity Board and Ors.
13. A perusal of the judgment passed by the criminal court shows that the prosecution has failed to establish that the accused was involved in the theft of lectricity. When the theft itself was not proved, imposition of penalty is also not justified. Moreover, in the year 1997, the Corporation had sanctioned a load of 25 KW, which was enhanced to 40 KW after the verification and approval of the officers of the Power Corporation. When the electricity was disconnected allegedly on the ground that in the Hotel a load of 88.75 KW was being unauthorisedly/illegally used, whereas the sanctioned load was only 40 KW, then there was no occasion for restoring the same on the same sanctioned load of 40 KW. Therefore, there were contradictions in the statement and the same are not trustworthy.
14. I have gone through the judgment passed by the Apex Court in J.M.D. Alloy (supra). In this case, when the officials of Bihar State Electricity Board inspected the appellant's factory premises, it was found that the seal fixed on CT/PTbox was tampered with. Therefore, an FIR was lodged and a bill was also raised. The police after investigation submitted final report, which was accepted. In these circumstances, the Apex Court observed that mere acceptance of final report by the Magistrate cannot amount to a finding by the criminal court that theft of electricity was not committed. The accused was not even summoned, no charge was framed, nor was any evidence recorded. In such a situation, it cannot be held that the criminal court has recorded any finding to the effect that the petitioner has not committed theft of electrial energy.
15. In the present case, due trial was held by the court and the competent criminal court has recorded a finding that there are several lacunas in the prosecution case after adducing oral and documentary evidence. When the seal of the seized case property was opened in the Court neither 50 MM cable was found nor the place where the 50 MM cable was alleged to be tagged with 70 MM service cable was found as alleged by the prosecution. It was also observed that there was every opportunity and duty to produce the same, if taken by the prosecution. The recovery memo falsifies the prosecution case. Further, the witnesses, who were the officials of the Power Corporation, during their examination, failed to prove the prosecution case beyond reasonable doubt and there were contradictions in their statement recorded before the Court. The independent witnesses -Mohd. Asif.who was examined by the prosecution denied the prosuection story and depose that he had no knowledge about the raid and theft being committed by the Mr. Raj Kumar Pandey and no recovery was made in his presence. Similarly, P.W. 6 also denied the prosecution story. Therefore, the JMD Alloys Ltd. (supra) case is of no avail to the opposite parties as the facts and circumstances of the present case are quite different. A little difference in facts or additional facts may make a lot of difference in the precedential value of decision as held in Bhavngar University v. Palitana Sugar Mills (P) Ltd. : (2003) 2 SCC 111 : AIR 2003 SC 511.
16. It would also be relevant to mention that clause (x) of the Electricity Supply Code, 2005 deals with the cognizance of the offence. Sub-clauses (g) and (h) of the said Code reads as under:
g] The final assessment done by the licensee assessing office in case of theft, is also subject to adjudication by the Court.
H] In case of the session of the Court that theft is not established, the charges levelled and assessment made by the licensee against the consumer or persons shall be withdrawn in writing and the connection should be restored through the original meter.
17. It is not disputed by the parties that that when the accused persons were acquitted in the criminal case, the judgment of the Criminal Court, which had attained finality, was brought to the notice of the Appellate Authority. The Appellate Authority committed an error in dismissing the appeal without considering the findings recorded by the Criminal Court. It was an obligatory duty of the Appellate Authority to record a finding as to why he is not agreeing with the findings of the Criminal Court. The Appellate Authority also committed an error in not considering the provisions of Clause 8.2 of the Electricity Supply Code-2005 which provides that if a charged person is acquitted of theft then under clauses (x)(g) and (h) the assessment against the person on the basis of theft is liable to be withdrawn and the connection is to be restored through the original meter. The enforcement of Electricity Supply Code-2005 is also not disputed by the Counsel for the Power Corporation. Therefore, the findings recorded by the Appellate Aurthority are perverse and are not based on correct appreciation of materials on record are irrational.
18. As regard the assertion of the opposite parties that though the petitioner has been acquitted by the criminal court, he cannot escape the civil liability, it may be mentioned that the charge against the petitioner was only theft and not consuming the electrical energy dishonestly. The power Corporation has failed to show that any wrongful loss has been caused to them on account of the acts of the petitioner. There were no dues against the petitioner before the raid was conducted and even after restoration of the electrical energy through a new meter, the petitioner had paid the bills. The Criminal Court had found that the petitioner was not using any excess load over and above the sanctioned limit. The report [Annexure-25 to the writ petiton] submitted by the Sub-Divisional Officer regarding load substantiates the petitioner's contention. The SDO has caclulated the load being used in the premises of the petitionr was well within the permissible limits of +/- 10%. Therefore, the petitionec cannot be held liable for using the energy more than the sanctioned load. It may be noted that every administrative decision must be supported by valid reasons. A decision without reasons is vulnerable to be struck down as being without application of mind and arbitrary.
19. For the reasons discussed above, I am of the considered opinion that the impugned order dated 18th March, 2008 passed by the Appellate Authority and the order dated 17th September, 2002 passed by the respondent No. 4 suffers from serious infirmities and is liable to be quashed.
20. Accoridngly, the writ petition is allowed. The order dated 18th March, 2008 passed by the Commissioner, Lucknow Division, Lucknow and the order dated 17th September, 2002 .passed by the opposite parry No. 4 are hereby quashed. As averred above, the petitioner has deposited Rs. 11,58,109/- pursuant to the orders passed by this Court, the said amount shall be refunded to the petitioner within a maximum period of two month from today. In case, any legal amount is outstanding against the petitioner, the same shall be adjusted and thereafter the payment shall be made. In case, the above amount is not refunded within the period prescribed above, the opposite party Nos, 2 to 5 would be liable to pay interest at the rate of ten percent.