Judgment:
ORDER
D.G.R. Patnaik, J.
1. Prayer in this writ application has been made for issuance of a writ in the nature of mandamus directing the Respondent to forthwith restore the electricity connection of the petitioner, which was disconnected since 11.09.2008. A further prayer has been made for quashing the punitive bills dated 18.09.2008 and 01.10.2008 served upon the petitioner in terms of Clause 16.9 of the 1993 Tariff. Prayer has also been made for a declaration that the present case relates to a case of defective meter and the proceeding initiated in terms of Section 126 of the Electricity Act, 2003 is void.
2. The petitioner being a Company engaged in manufacture of Cement, has obtained a H.T. Electric connection from the Respondent- Electricity Board and is availing a contract demand of 124 K.V.A. of electric energy. The Meter installed for the purpose of recording the unit consumption within the Factory premises of the petitioner was installed by the J.S.E.B. and it is the J.S.E.B., which bears the responsibility of carrying out the necessary repairs and maintenance of the meters. In October, 2007, the Meter installed in the premises of the petitioner was replaced on account of certain defects detected in the Meters. After installation of the replaced meter, the units recorded in the meter used to be taken for computing the monthly electricity bill. The meter got damaged once again and the same was detected on 26.05.2008. The petitioner's claim is that he had promptly informed the Respondent-Board about the damage in the meter but the concerned authorities of the Board did not carry out the repairs in the meter nor replaced the same. However, the monthly electricity bills on and from May, 2008 used to be raised by the Respondents-Board on the basis of average unit consumption of 5929 units per month. On 11.09.2008, a team of officials of the Electricity Board visited the petitioner's factory premises and made a note of the damage of the meter. Finding that the seals on the meters were also damaged, the officials fixed duplicate seals on the meter.
3. On the allegation that the petitioner/consumer had deliberately damaged the meter by breaking the seals and thereby, has been indulging in theft of electricity, the Assistant Electrical Engineer, Electric Supply Sub-Division, Adityapur lodged first information report at the concerned Police Station against the petitioner. On the date of inspection itself, the electric supply to the petitioner's factory was disconnected. A week later, by a letter issued from the office of the Electrical Superintending Engineer (Annexure 6), the petitioner was directed to deposit a sum of Rs. 37 Lakhs. The petitioner, by his letter dated 20.09.2008 (Annexure-7), asked for the details of the calculation as to how the demand of Rs. 37 Lakhs, has been raised against the petitioner. A provisional bill was served on the petitioner on 01.10.2008 calling upon the petitioner to file his objections, if any against the provisional bill on 06.10.2008. The petitioner submitted his objections in terms of Section 126(1) of the Electricity Act, 2003 stating therein, that since the case of the petitioner is of a defective meter and not of theft of electricity the assessment could be made only in terms of the provisions of law relating to defective meters.
3. Mr. M. S. Mittal, learned Counsel for the petitioner submits that the facts of the case would confirm that the concerned authorities of the Respondent- Board have been acting in a most arbitrary and irresponsible manner in dealing with the consumers and have been unduly harassing the consumers with mala fide motives. Learned Counsel argues that in the instant case, when the meters installed in the petitioner's factory premises were damaged in the month of May, 2008, the petitioner promptly informed the Respondents authorities concerned asking them to visit and inspect the meters and to repair/replace the same. In spite of the information, none of the officials of the Respondent-Board cared to inspect the meter. It was after five months that on 11.09.2008, the officials of the Board visited the petitioner's factory that too in absence of the petitioner or any of the responsible officers of the petitioner's factory. During the period of five months, the Respondents continued to raise the monthly bills towards electric consumption on the basis of average billing. Such average bill could be raised only if the authorities were convinced that the meter is defective. Yet, on making the inspection, the concerned officials of the Board had proceeded to make false allegations that the meter and the seals thereon were tampered and that the petitioner, has been indulging in the theft of electricity. Learned Counsel argues further that merely because of the defect in the meter and in absence of any other evidence to suggest tampering of the meter, the Respondent-authorities should not have jumped to any erroneous conclusion of theft of electricity. Learned Counsel argues further that even otherwise, the provisional bill as raised by the Respondents is based entirely on incorrect method, which is not permissible in law. Learned Counsel explains that the Respondents could not have applied the formula as laid down in Clause 16.9 of the 1993 Tariff and the only formula, which could have been applied, is on the basis of maximum monthly consumption during the last one year and in the event of a penalty to be charged, the maximum assessment could be double, the units consumed during the relevant period.
Learned counsel adds further that the petitioner's unit has been closed on account of disconnection of electricity and it has to maintain more than 50 labourers, and is suffering heavy losses on account of loss of electricity. It is further submitted that the demand of Rs. 37 Lakhs being arbitrary and without proper basis, the petitioner cannot be saddled upon the liability of paying 50 per cent of the amount for preferring the appeal against the punitive assessment made by the Respondents.
4. Counter affidavit has been filed on behalf of the Respondent-Board.
5. Mr. R. N. Sahay, learned Counsel for the Respondent-Board submits that the petitioner has apparently tried to distort the facts of the case. On inspection of the meter installed in the petitioner's premises, it was found that the seals affixed to the meters were broken and the meter was tampered. Had there been no breaking or tampering of the seals, the petitioner's plea that the meter had suffered damage of its own, could have been understood. The petitioner has not explained as to how the seals on the meter were broken. Learned Counsel adds further that the officials, who had inspected the meters, had found definite evidence that the tampering of the meter was done by external devices and in this manner, the consumer had been indulging in theft of electricity. Learned Counsel explains further, that since the facts and circumstances clearly indicated unauthorized use of the electricity, the provisions of Section 135 of the Electricity Act was attracted and apart from immediate disconnection of electric supply, the consumer was also liable for payment of penalty. It is further explained that the method of calculating the loss by the formula of L x F x D x H and of average monthly meter reading was incorporated in the 1993 Tariff and is to be applied in the case of unauthorized consumption of electricity by a consumer during the period when the meter remained defective. Learned Counsel argues that though a new tariff was introduced by the J.S.E.B., which was effective from 01.01.2004 but Clause 1.4 of the Tariff of 01.01.2004, provides a saving clause in respect of the provisions of the earlier tariff of 1993 and by which, the clause 16.9 of the 1993 Tariff, has been allowed to remain as the same.
6. From the rival submissions, the facts which emerge are that on inspection of the petitioner's factory premises, the concerned officials of the Respondent-Board, had found that the meter and the seals thereon were broken and tampered. Upon this evidence, the Respondents have inferred that it was a case of theft of electricity for which the consumer is liable and taking recourse therefore to the provisions of Section 135 of the Electricity Act, the Respondents had not only snapped the electricity connection but had also lodged an F.I.R. and had raised a provisional bill for a sum of Rs. 37 Lakhs against the petitioner's factory.
7. The grievance of the petitioner is that the amount of Rs. 37 Lakhs is a highly inflated arbitrary amount, based on a calculation, which is no more acceptable under the revised procedure and tariff of the J.S.E.B. The facts, even as admitted, also indicate that the information regarding the defect in the meter was conveyed by the petitioner to the concerned officials of the Respondent-Board in May, 2008. In stead of responding promptly by visiting the premises of the petitioner for inspection, the officials of the Respondent-Board, after having acknowledged the information continued to raise the monthly electric bills on the basis of average consumption for more than five months. It also appears that earlier in May, 2007, when the meter was found damaged, the Respondents-authorities had replaced the meter whereafter the monthly bills towards consumption of electricity were raised on the basis of the readings of the meters and this had continued for almost one year thereafter, till the meter got defective again in the month of May, 2008. It is also informed that though the provisional bill has been raised but the final assessment has not been made, even within the statutory period of 30 days.
8. Apparently, no evidence of pilferage of power was found by the Respondents-authorities during the previous year from May, 2007 to April, 2008 and even thereafter when the monthly bills were raised on the basis of average consumption. From the copy of the provisional assessment as made by the Respondents-authority, I find that the concerned authorities have not applied its mind in assessing the period of the alleged theft of electricity and the calculations therefore cannot be considered to be legitimate and conclusive. Furthermore, as informed, the final assessment has also not been made after receiving the objections of the petitioner.
9. Although, having regard to the provisions of the statutory appeal under the Electricity Act, 2003 this writ application cannot normally be entertained but on hearing the parties and being of the opinion that the authorities have not applied its mind in making a proper assessment, the matter needs a fresh consideration by the concerned authorities.
10. In the light of the above facts and circumstances, I hereby set aside the impugned order of the assessment and remit the matter back to the concerned authorities of the Respondents to pass a fresh order in accordance with law after considering the objections, if any raised by the petitioner. This exercise shall be completed within 30 days from the date of this order. Against the final order that may be passed by the concerned authorities, the petitioner, would be at liberty to avail the statutory remedy available in the Act.
11. In the meantime, if the petitioner deposits a sum of Rs. 6 lakhs with the Respondent-Board, the supply of electricity shall be restored to the petitioner's premises by the Board.
12. With these observations, this writ application stands disposed of.