1. Heard Sri B.C. Rai for the petitioner, Sri H.P. Dubey and Sri Praveen Kumar Srivastava, advocates for respondents 1 and 2 and Addl. Chief Standing Counsel Sri C.S. Singh for respondents no. 3 and 4.
2. As requested and agreed by learned counsel for parties, I proceed to hear this case and decide finally at this stage under the Rules of the Court.
3. The writ petition is directed against the order dated 22.11.2007 (Annexure 13 to the writ petition) whereby the Executive Engineer, Electricity Distribution Division-I, Madhyanchal Vidyut Vitran Nigam Ltd., Bareilly (hereinafter referred to as 'EE') has made final assessment order of Rs. 13,54,181/- and appellate order dated 10.6.2010 whereby the assessment has been modified to Rs. 4,81,976/- and consequential demand notice/bill issued by EE on 22.6.2010 raising a demand of Rs. 8,92,104/- i.e. the assessment as modified by the appellate authority and interest at the rate of 15 per cent to the tune of Rs. 4,10,128/- totaling to Rs. 8,92,104/-. Petitioner has also sought a writ of mandamus restraining respondents from realizing interest, minimum charges etc. from petitioner and to refund the amount already paid by him.
4. The factual matrix in brief giving rise to present dispute, as stated in the writ petition, are as under.
5. Petitioner M/s Modern Rice Mill is a partnership firm engaged in running a Rice Mill having its factory situated at Baheri, District Bareilly. It entered into an agreement with erstwhile U.P. State Electricity Board (hereinafter referred to as 'UPSEB') for supply of electrical load of 45 Kilo Watt (60 Horse Power) which is known as "contracted load" under the Statute. A digital electronic computerized meter was installed at petitioner's premises vide sealing certificate dated 8.2.2005 installing electric meter bearing no. UPE 53367/EBM- 187. A copy of sealing certificate has been filed by respondents pursuant to this Court's order dated 10.8.2011 and by the petitioner also as Annexure SA-I to Second Supplementary Affidavit dated 16.8.2011. It is said that the aforesaid meter is manufactured by M/s Secure Meters Ltd., a private manufacturing company. The meters of this company commonly known as "Secure Meter". The aforesaid meter was also tested and checked on 14.4.2005 vide sealing certificate filed along with second supplementary affidavit dated 16.8.2011.
6. On 14.10.2005 a team consisting of EE and Executive Engineer (Test) made a checking at the premises of the petitioner and prepared a checking report making following remarks:
"(1) Visited consumer site and checked the meter. Found stopped on 25 Amp. load. During enquiry of 15 minutes period Meter remained stopped but suddenly meter started. Functioning suspected remote operation of the meter by the consumer. Meter Body Seal found disturbed/ tampered;
(2) Old meter replaced by new meter;
(3) Old Meter sealed in consumers presence for Secure company for analysis of the meter;
(4) All sealing done as per UPPCL Norms;
(5) Meter performance could not be checked due to supply failure;
7. The Executive Engineer (Test) sent a letter dated 12.1.2006 addressed to EE stating that 'Secure Meter' sent to meter manufacturing company, who had submitted report vide letter dated 4.1.2006 commenting that SML papers seals were found tampered, extra circuit found in the meter fitted to disturb the meter and consequently concluded that meter was tampered.
8. The Executive Engineer (Test) observed that the consumer was committing theft of electrical energy by tampering meter, hence appropriate action be taken. Consequently EE issued a letter dated 26.1.2006 directing for disconnection of electric supply to the petitioner and lodging of report with Police. A Provisional Assessment Order was passed on 1.2.2006 by EE proposing assessment of Rs. 12 lac. The Provisional Assessment Order referred to U.P. Electricity Supply Code, 2005 (hereinafter referred to as "Code 2005") and Section 138 of the Electricity Act, 2003 (hereinafter referred to as "Act 2003"). Checking report dated 14.10.2005 was referred to in the said Provisional Assessment Order and the petitioner was required to file his objection, if any, within 15 days.
9. Petitioner filed reply dated 6.3.2006 stating that meter was not tested in his presence which was requirement of the statute and therefore report obtained ex parte and in violation of procedure prescribed in the statute is impermissible to be relied for raising any demand. Petitioner requested for re-connection. In the meantime, petitioner also filed writ petition no. 10075 of 2006 complaining illegal disconnection and seeking a mandamus for re-connection of his electricity supply. The writ petition was disposed of by a Division Bench vide judgment dated 20.2.2006 with the following direction:
“In the circumstances of the case, the petitioner may file a representation before respondent No. 3. In case the representation is filed it may be decided by concerned Executive Engineer by a speaking order, if possible, within one month from the date of receipt of the representation. The petitioner will file a certified copy of this order, other necessary documents and a duly stamped self-addressed envelop along with his representation. The concerned Executive Engineer after taking decision on the representation will communicate the same to the petitioner.”
10. EE issued a bill dated 31.3.2006 along with revised assessment bill dated Nil for a sum of Rs. 10,54,969/-. Due date of payment mentioned in the said bill was 31.3.2006. Petitioner, thereafter, was served with another order dated 5.4.2006 of EE stating that M/s Secure Meters Ltd. Company is an independent agency and its testing report is fully authenticated and binding on the consumer. He also recorded his conclusion based on Secure Meters Ltc. i.e company's letter that petitioner was committing theft of electrical energy and, therefore, final assessment of Rs. 10,54,969/- is correct and should be paid by him. It appended thereto a calculation chart showing assessment made for 180 days and average hours of supply taken at 12 hours. The amount of revenue assessment included a sum of Rs.8,056/- towards electricity duty.
11. The aforesaid assessment was challenged by petitioner in writ petition no. 29772 of 2006 which was disposed of on 7.7.2006 as under:
“In the facts and circumstances of the case we direct the petitioner to file a fresh comprehensive representation along with certified copy of this order as well as complete copy of the writ petition with all annexure before the concerned authority within three weeks from today and on such representation being filed as stipulated above, the concerned competent authority shall pass reasoned order within twelve weeks of the receipt of the representation, as contemplated above exercising its unfettered discretion on the basis of record before him in accordance with relevant Rules, Government Orders, Scheme/ Policy without being influenced by any of the observations in this judgment since this Court has not entered into merits of the present case.
The writ petition is disposed of finally subject to the above said direction. No order as to costs.”
12. Since the petitioner complained that the assessment was made without giving opportunity of hearing to him, the Court passed the aforesaid order permitting petitioner to represent the matter before Assessing Officer i.e. EE who was required to pass a reasoned order considering the said representation.
13. Petitioner, thereafter submitted representation dated 26.7.2006 (Annexure 8 to the writ petition). The EE vide letter dated 8.9.2006 advised the petitioner to approach Superintending Engineer by filing an appeal. Since appeal lie before the Commissioner under Section 127 of Act, 2003, the petitioner filed memo of appeal (Annexure 9 to the writ petition) before the Commissioner, Bareilly. It appears that the appellate authority sought comments from EE which was submitted vide letter dated 5.2.2007 (Annexure 10 to the writ petition). Since the representation dated 26.7.2006 filed by petitioner pursuant to this Court's order dated 7.7.2006 in writ petition no. 29772 of 2006 was not decided by the EE, the petitioner filed writ petition no. 45474 of 2007 which was disposed of on 21.9.2007 with the following order:
“This writ petition has been filed raising large number of grievance. Under Section 126 (3) of the Electricity Act, 2003 the provisional assessment has been made and a copy thereof has been served up to the petitioner.
In case the petitioner files objection to the said provisional assessment, if not already filed, within two weeks, we request the authority concerned to pass a final order within two weeks thereafter under Section 126 (4) of the Act.
Needless to say that if the petitioner is aggrieved by the said final assessment order, he will have a right to file an appeal under Section 127 (7) of the Act.
With the aforesaid observation/ directions the present writ petition is disposed of finally.”
14. Petitioner filed objection dated 6.10.2007 but it was addressed to Chief Engineer and a copy was endorsed to EE. Pursuant to this Court's order dated 24.9.2007 the EE vide letter dated 11.10.2007 required petitioner to appear before him on 17.10.2007. Petitioner claimed that the letter dated 11.10.2007 was served upon him on 18.10.2007 and, therefore, he requested EE vide letter dated 19.10.2007 to give further time after Dashahara. The EE thereafter fixed 20.11.2007 when petitioner again sought adjournment vide letter dated 20.11.2007 on the ground of illness whereupon EE rejected request of adjournment and made final assessment rejecting petitioner's objection, observing, that he should deposit balance amount of assessment without any further delay.
15. Petitioner preferred another memo of appeal (Annexure 14 to the writ petition) being appeal no. 03 of 2009-2010 on 27.8.2009. EE submitted comments/objections dated 1.12.2009 (Annexure 15 to the writ petition) to the appeal on where after the appellate authority passed a composite order against assessment orders dated 5.4.2006 and 22.11.2007. The appellate authority affirmed finding that petitioner had indulged in theft of electrical energy but modified quantum of revenue assessment on the ground that rate of tariff should not be thrice but twice only and thereby modified assessment reducing it to Rs. 4,81,976/-.
16. On behalf of respondents 1 and 2 a counter affidavit has been filed sworn by Sri Bhagwat Yadav, EE. The facts stated in the writ petition basically are not disputed but it has supported checking report dated 14.10.2005, test report of M/s Secure Meters Ltd. and the assessment bills issued by Executive Engineer. However, it had also referred to two more writ petitions filed by petitioner namely writ petition no. 52473 of 2007 and 14109 of 2008. It is said that the writ petition no. 14109 of 2008 was dismissed on 18.3.2008 while writ petition no. 52473 of 2007 was disposed of by permitting petitioner to pay the amount sought to be recovered from him in four installments. On payment of first installment, the electricity connection of petitioner was directed to be restored and thereafter petitioner was permitted to pay rest of installments but in case of default, the Corporation was given liberty to disconnect electric connection and proceed with the recovery in accordance with law. It is contended that once the petitioner had agreed to pay the entire amount in installments, he cannot be allowed to challenge the order of assessment etc. as he is estopped from challenging the same. Copy of the judgment dated 30.10.2007 passed in writ petition no. 52473 of 2007 has been placed on record by petitioner as Annexure SA-1 to the supplement affidavit which shows that the writ petition was filed challenging recovery proceedings initiated against him. Writ petition no. 14109 of 2008 was filed against order dated 22.11.2007. The judgment dated 18.3.2007 refers to petitioner's writ petition no. 52473 of 2007 and order dated 30.10.2007 permitting him to pay the dues in installments. Writ petition was disposed of by the Court observing that petitioner if so advised, may file modification application in writ petition no. 52473 of 2007, but no order is required to be passed in a fresh writ petition since recovery proceeding/ demand notice issued by the Executive Engineer is pursuant to the Court's order dated 30.10.2007 in writ petition no. 52473 of 2007. Petitioner thereafter filed a recall application no. 74379 of 2008 in writ petition no. 52473 of 2007 which was rejected by order dated 7.2.2009 while observing, "However, it is open to the petitioner to approach the appropriate authority for the redressal of his grievance, if any." Learned counsel for respondents did not dispute that the assessment order as well as the appellate order were not subject matter of dispute in the above two writ petitions, namely, 52473 of 2007 and 14109 of 2008. Learned counsel for petitioner has confined his challenge to the two statutory orders namely the assessment order as well as appellate order and contended that the same have been passed in utter violation of the statutory provisions, hence are liable to be set aside.
17. Sri B.C. Rai, learned counsel for petitioner contended that the meter sealed by respondents no. 14.10.2005 was not tested in an independent test laboratory as provided in Clauses 5.6 (c) and 5.9 (b) (ii) of Code 2005, hence the report of Secure Meters Ltd. cannot be relied on and acted upon. Reliance is placed on a Division Bench Judgment in Smt. Amrawati Devi Vs. Purvanchal Vidyut Vitran Nigam Ltd. and another 2009 (1) ADJ 430. He further contended that the meter has to be sent in a Laboratory specified in the Code 2005 at the option of consumer and not that of licensee/supplier. Manufacturing Company would have a strong bias to support and uphold correctness of meter and to place responsibility on the consumer. Therefore manufacturing company's report ought not to be relied on. In support, reliance is placed on Patna High Court's judgment M/s JMD Alloys Limited Vs. Bihar State Electricity Board AIR 2009 (Patna) 26. Sri Rain contended that EE sent meter for examination under Clause 5.6 of Code 2005 on his own and therefore cannot turn around by observing that the said Clause is not attracted. Reliance is placed on Prasun Roy Vs. Calcutta Municipal Development Authority (1987) 4 SCC 217 (para 6 and 10). The procedure prescribed in the Act, 2003 and Code 2005 has to be adhered in words and spirit and deviation therefrom would vitiate the statutory orders passed therein. Reliance is placed on Ashok Kumar and others v. State of U.P. and others 2008(6) ADJ 660 (Para 76).
18. Challenging the assessment on merits, it is contended that Section 126 of Act, 2003 at the relevant time contemplated rate at 1.5 times of the normal rate and therefore the assessment made in violation thereof is illegal. Sri Rai further contended that “Connected Load” is different from “Contracted Load” but the assessment authority has taken into consideration the “Contracted Load” and not the “Connected Load”. Challenging demand of electricity duty, interest and minimum consumption guarantee charges, it is said that in the matter of assessment no such demand can be raised not provided in Section 126 and Code 2005.
19. Respondents, on the contrary, relying on the assessment order as well as the appellate order justified the same for the reasons stated therein and it is contended that since here is a case involving a crime against society, i.e. theft of electrical energy, this Court under Article 226 should not interfere with the impugned orders.
20. Certain undisputed facts are, (a) though the Executive Engineer issued instruction for lodging a first information report against the petitioner, but as a matter of fact, no such report was lodged; (b) though the assessment has been made on the allegation of detection of theft of electrical energy, but the procedure prescribed in Section 126 read with para 6.8 of Code 2005 has been followed and not that of para 8.2 of Code 2005.
21. Since both the parties have advanced their submissions by referring to these provisions, this Court would proceed to consider rival submissions in the light of the above provisions.
22. The checking was made on 14.10.2005. The assessment, if any, which could have been made, they would be for the period prior thereto. Hence, irrespective of date and time, when the order of assessment was made by EE, i.e. Assessing Officer, it cannot be doubted that statutory provisions as applicable on 14.10.2005 would apply to the case in hand. All the learned counsels for parties do not dispute this proposition.
23. It would thus be appropriate to refer to the statutory provisions as existed on 14.10.2005.
24. Section 126 which was amended by Act 26 of 2007 with effect from 15.6.2007, prior thereto 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 unauthorized 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.
(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 a notice has been served under sub-section (2), shall be entitled to file objections, if any, against the provisional assessment before the assessing officer, who may, after affording a reasonable opportunity of hearing to such person, pass a final order of 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. Provided that in case the person deposits the assessed amount, he shall not be subjected to any further liability or any action by any authority whatsoever.
(5) If the assessing officer reaches to the conclusion that unauthorised use of electricity has taken place, it shall be presumed that such unauthorised use of electricity was continuing for a period of three months immediately preceding the date of inspection in case of domestic and agricultural services and for a period of six months immediately preceding the date of inspection for all other categories of services unless the onus is rebutted by the person, occupier or possessor of such premises or place.
(6) The assessment under this section shall be made at a rate equal to one and half times the tariff applicable for the relevant category of services specified in subsection (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.
25. The procedure for assessment has further been laid down in Code 2005. Para 6.8. which has been referred to and relied by both the parties in the case in hand, as stood on 14.10.2005 and reads as under:
“6.8 Un-authorised Use of Electricity (UUE), under section 126 of the Act 12
(a) Procedure for booking a case for unauthorized use of energy (UUE)
1. An assessing officer shall provisionally assess the consumer or any other person for the UUE, if on inspection after due diligence, of any place or premises or after inspection of the equipments, electrical gadgets, meter etc or after inspection of the records, comes to the conclusion that such person is indulging in UUE.
2. The in charge of the inspection team of the Licensee shall handover his business card to the consumer. Photo ID card shall be carried by each team member, and shown to the consumer before entering the premises.
3. The assessing officer shall prepare a report giving details of connected load, condition of seals, working of meter and mention any irregularity noticed for the reason of which, unauthorised use of electricity is established as per format given in Annexure 6.4.
4. The report shall clearly indicate whether conclusive evidence substantiating the fact that UUE was found or not. The details of such evidence should be recorded in the report.
5. Load and consumption of two or more connections shall not be clubbed unless it is proved that the connections are used to serve/supply the same establishment. Mere presence of common entrance or office etc. shall not make connections liable for clubbing.
6. The reports shall give details of calculation of assessment and the relevant provision as per Act /Supply Code/ or tariff schedule shall be quoted. The report shall be signed by the assessing officer and each member of the inspection team and handed over to the consumer or his/her representative at site immediately under proper receipt. In case of refusal by the consumer or his/her representative to either accept or give a receipt, a copy of inspection report must be pasted at a conspicuous place in/outside the premises and may be photographed. Simultaneously, the report shall be sent to consumer under Registered Post/Speed post.
7. The licensee shall, serve a 7 working days show cause notice, within 3 days of date of inspection, as to why the case of UUE should not be booked against such consumer. The notice shall invite objection, if any under section 126(3), against the assessment from the consumer stating the time, date and place at which the reply has to be submitted and the designation of the person to whom it should be addressed. The Assessing officer, only after affording a reasonable opportunity of hearing to such person, pass a final order of assessment of the electricity charges payable by such person.
(b) Submission of consumer’s reply:
(i) Within 7 working days from the date of submission of consumer’s reply, if made within stipulated time, the Licensee shall analyze the case after carefully considering all the documents, submissions by the consumer, facts on record and the report of inspection on consumer’s request. If it is concluded that there is no UUE, the case of UUE shall be dropped immediately and the decision shall be communicated to the consumer under proper receipt within 7 working days from the date of taking the decision.
(ii) If it is concluded that there is UUE, the Licensee shall arrange hearing with the consumer within 15 days from the date of such decision.
(c) Hearing
(i) Within 7 working days from the date of submission of consumers’ reply, if made within prescribed period, the assessing officer shall arrange a hearing with the consumer.
(ii) During the hearing the assessing officer shall give due consideration to the facts submitted by the consumer and pass, within 7 days, a speaking order as to whether the case of UUE is established or not. Speaking order shall contain the brief of inspection report, submissions made by consumer in his written reply and during hearing reasons for acceptance or rejections of the same.
(iii) In case of the decision that the case of UUE is not established, no further proceedings shall be taken and connection shall be restored through original meter.
(iv) If the Assessing Officer reaches to the conclusion that unauthorised use of electricity has taken place (as defined under Explanation to Section 126 of the Electricity Act, 2003), it shall be presumed that such unauthorized use of electricity was continuing for a period of three months immediately preceding the date of inspection in case of domestic and agricultural services and for a period of six months immediately preceding the date of inspection for all other categories of services, and he shall be authorized to provisionally assess the consumption as per the procedure specified in Annex-6.3 and serve on the consumer under proper receipt, unless the onus is rebutted by the person, occupier or possessor of such premises or place, a final order shall be passed after hearing..
(a) The assessment shall be made at a rate equal to one-and-half times the tariff rates applicable for the relevant category of services.
(b) The amount billed at this rate (one-and-half times the tariff rate) shall not be taken into consideration for the purpose of computing consumer’s liability to pay monthly/annually minimum charges, wherever applicable.
(v) 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 is prescribed by the State Government.
(vi) The consumer shall be required to make the payment within 7 days of its proper receipt. A copy of the speaking order be served to the consumer under proper receipt.
(vii) 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. Provided that in case the person deposits the assessed amount he shall not be subjected to any further liability or any action by any authority whatsoever.
(viii) Any person aggrieved by a final order made under sub clause (c) may, within thirty days of the said order, prefer an appeal to the Appellate Authority prescribed by the State Government in the manner specified in the Annex-6.2. However, no appeal shall be entertained by the Appellate Authority unless the person deposits one third of the amount assessed by the Assessing Officer, with the Licensee and encloses documentary evidence of such deposit with the appeal.
Note: Section 145 of the Electricity Act provides that no civil court shall have the jurisdiction to entertain any suit or proceeding in respect of any matter, which an assessing officer, or an appellate authority appointed, is empowered to determine, and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken or to be taken in pursuance of any power conferred by or under the Act.
(d) Default in payment of assessed amount or instalments thereof.
(i) In case of default in payment of the assessed amount, the Licensee shall, after giving a 15 days’ notice in writing disconnect the supply of electricity, remove meter and service line.
(ii) In case of default in payment of any of the instalment agreed by the licensee the Licensee shall, after giving a 15 days’ notice in writing disconnect the supply of electricity, remove meter and service line. The reconnection shall be carried out as per the provisions of new connection laid down in Chapter IV.
(iii) When a person defaults in making payment of assessed amount, he, in addition to the assessed amount shall be liable to pay, on the expiry of 30 days from the date of order of assessment, an amount of interest at the rate of sixteen percent, per annum compounded every six months.
(iv) The levy of charges on account of UUE shall continue till the cause of levy is removed and verified by the Licensee as per procedure laid down above.”
26. The electricity supplied to the consumer was being measured by a digital electronic meter. The nature of the meter, i.e., secure meter installed at the premises of petitioner has been considered recently by this Court in judgment dated 14.10.2011 in Civil Misc. Writ Petition No. 63610 of 2010 (M/S Mohit Paper Mills Ltd. And Another Vs. PVVNL and others) and in para 147 to 153 the Court has observed as under:
“The digital computerized meter manufactured by a company namely, “Secure Meters Limited” was installed at the premises of petitioners. The brand name of such meters, well known throughout the Country amongst the persons dealing in electricity is 'Secure Meter'. The meter manufacturing company is a private company and has its registered office at Udaipur. These meters came to be introduced in the erstwhile UPSEB sometimes in 1997-98 when Electricity Board installed computerized digital meters at first instance at the premises of heavy industrial consumers.
148. A photocopy of brochure of the Secure Meter manufacturing company giving some information about secure meters is on record. The manufacturing Company claim that Secure Meter is not just a solid state replacement for electromechanical Ferrarish Wheel kWH meters but is a comprehensive revolutionary concept that covers all concept of metering, monitoring and load management. It uses a totally new type of measurement system and microprocessor which affords extra ordinary flexibility.
149. The Secure Meter, mainly, comprises of, (1) a Consumer Energy Meter (CEM); (2) a Meter Reading Instrument (MRI); and (3) a Base computer system Software (BCS).
150. CEM is metering device supposed to be heart of the meter. It measures power by use of an analogue-to-digital converter and mathematical processing. The data is stored in the nonvolatile memory of CEM which can retain stored data for a very long time without power. Initially the metering company claimed this period upto ten years. The CEM displays various electrical quantities.
151. Then comes MRI. Information from meter can be read by a hand-held “Meter Reading Instrument” called 'MRI'. The 'MRI', a compact device, require a software to access and transfer information as also to ensure data security. The communication is done through an optical link and information like Meter Reading, Tamper information/ Diagnostic etc. can be obtained.
152. The MRI after down loading information from the meter(s) can be connected to IBM compatible computers equipped with the special Base Computer Software (BCS). The computer then receive all readings and other data from MRI on the serial communication port. The information available on computer can be downloaded and maintained for analysis of power consumed, load management, energy auditing and billing etc.
153. The Secure Meters, to start with, were available with three different accuracy classes, i.e. Class 1.0, 0.5 and high precision, i.e. 0.2. The Electrical quantities measured and displayed by such meters included, (1) Real Time; (2) Active energy (kWh/MWh); (3) Reactive energy (kVArh/MVArh), (4) Apparent energy (kVAh/MVAh) (5) Max. Demand (kVA/MVA) or (kW/MW) (6) Max. Demand reset count; (7) Instantaneous Power Factor, etc. “
27. Earlier also a Division Bench of this Court in Ashok Kumar (supra) had occasion to consider these electronics meters and in para 71, 72, 73, 74 and 76 the Court said as under:
“71. First of all it would be appropriate to make clear at this stage that the kind of electronic meter installed at the petitioner's/consumer's premise is known as Secure Energy Meter (in short “SEM”) manufactured by a private company namely, M/s Secure Meters Limited, Udaipur. As per the company's literature i.e. User's Manual of Consumer Energy Meter (in short “CEM”) the meter is an all-electronic, solid state polyphase energy meter which can accurately measures all parameters of the supply voltage, current, power factor, demand, active, reactive and apparent energy etc. It is designed around an Application Specific Integrate circuit based micro-controller with its own programming language. The company claims that the said meter has a high degree of programmability to accommodate various types of applications and tariffs. The meter reading and other performance data recorded in the meter is downloaded by an instrument known as “Meter Reading Instrument” (MRI) and the said data can be interpreted through the “Base Computer System” (BCS). It is also mentioned therein that besides displaying the readings by digital display the electronic meter has the advantage of memory chip, non-volatile, which can retain data up to a period of 10 years even if there is no power and such data can either be displayed on the electronic display or can be communicated via an optical communication port on to a hand-held MRI. The kind of tamper/fraud detection and logging which such meter records is provided in para 3.10 of the User's Manual and reads as under:
“The special software in consumer energy meter detects and reports conditions of tampers and fraud like missing potential, CT polarity reversal, Current imbalance or CT open/bypass, power on/ off etc. along with data and time.
a) Missing Potential: The meter is capable of recording occurrence of missing potential phase wise. Missing potential is checked only when load is above threshold value. Tamper is restored whenever the condition normalises. All such recordings are accompanied by date and time of occurrence.
b) Current Polarity reversal: The meter is capable of detecting and recording occurrences and restoration of CT polarity reversal of one or more phases. When any current polarity is reserved then such a condition is treated as current polarity reversal tamper.
c) Current Circuit Open: The meter has the capability to record opening of one or two Current circuits connected to the meter along with date and time. (not applicable in HT 3 phase 3 wire system)
d) Current Circuit bypassing: The meter has the capability to record bypassing of one or two Current circuits connected to the meter along with date and time. (Not applicable in HT 3 phase 3 wire system)
e) Current Unbalance- If there is unbalance in load conditions above a particular threshold limit, meter will detect this condition as Current unbalance and log this as a tamper event.
f) Power On/Off: Meter detects this condition when all the voltages goes below a particular level where meter stop functioning.
g) Magnetic Influence- The meter has the capability of detecting and recording of presence of abnormal magnetic influence near the meter, if the magnetic influence affects the meter functionality.
All the events log has been divided into different compartments. The tamper information shall be logged on first-in-first-out basis. Each compartment shall in itself be of rollover type.
Our LT meters have provision to record energy in forward direction in case of CT reversal (Factory Programmable). Please note that the tamper information and events shall be available in a CEM depending upon hardware supported and software configured in CEM at the time of manufacturing.
Note: The meter works accurately irrespective of phase sequence of the supply.”
72. All these petitioners are LT consumers. The kind of Secure meter installed at the premises of these consumers are LT meters, i.e., low tension meters i.e. E3D type of Secure meter which is a whole current Secure meter for three phase four wire LT connections, current supply range available is 5-30 ampere, 10-60 ampere, 20-100 ampere. The sealing certificates have been filed alongwith the writ petitions and they show that secure meter 3/4/10-60 ampere was installed. The connection diagram which is given in the User's Manual in respect to E3D type meter and a note given below the diagram is as under:
“Connection Diagrams:
A) E3D Type Meter:
Figure 1:Connection diagram of the E3D Meter Neutral connection should be made as shown in figure 1. Note if neutral source and load end are not connected correctly, false CT open/Bypass tamper will be detected by the meter.”
73. One of the important aspect mentioned in para 8.2 of the User's Manual is as under:
“Warning: Proper voltages and currents to the meter as per the rating plate details of meter are to be given for normal operation.”
74. The sealing report prepared at the time of sealing of the meter shows that the meters, various connections etc. were made safe by installing various kinds of seal i.e. plastic seal, lead wire seal, paper seal, meter body seal, terminal seal etc. It is not the case of respondents that any kind of meter or body seal was found broken or tampered or removed. From the diagram supplied by respondents alongwith the written arguments, it transpired that what actually claimed is that the feeder cable i.e., incoming cable to meter, before entering the meter, at some point of time has been cut and connected with neutral wire so as to bypass the recording of phase voltage in the meter correctly. Without going into any other technicality, we enquire from learned counsel for the respondents as to whether there is any report of cutting of incoming cable i.e. three phase wire outside the meter so as to draw an inference of manipulation by connecting phase wire/s to neutral instead of allowing it to go to the meter directly. He clearly replied that there is no material on record to show such cutting in the incoming phase cable. He could not dispute that the cable supplying electricity from distribution mains to meter is guarded and covered and not naked, and, without cutting its cover it is not possible to connect such incoming phase cable/wire to neutral. He also could not explain how in the absence of any such cut outside the meter, the assessing officer could infer connection of a phase wire with neutral before the meter. From his own document which he has supplied to this Court to explain the method of unauthorised use of electricity allegedly adopted by the petitioners/consumer it is clear that there has to be a cut in the incoming cable outside the meter so as to enable connection of phase wire with neutral otherwise theft/unauthorised use of electricity in the manner suggested by respondents could not have been possible. He also could not dispute the fact that the electronic meter, as per the User's Manual, functions when the potential, ampere etc. made available to the meter is strictly as per the specifications of rating plate of the meter and if there is any variation, the normal operation of the mater may be adversely affected.”
“76. It is true that these are all technical matters and normally the Courts should accept the opinion of technical experts but where such opinion is likely to cause a serious stigma on the conduct of the citizens, besides fiscal liability, and rather in some cases it may also render them guilty of committing an offence, it is of utmost importance that such technical experts must prove their opinion with relevant and cogent material. The non technical and untrained consumer cannot be thrown at the vagaries of such authorities, otherwise it will wide open victimization of innocent people and will encourage corruption. In such cases, the allegation can be explained by finding out the relevant evidence. It is for this reason that the regulatory commission has mentioned in para 6.8 of the Code, 2005 that the details of evidence to substantiate the factum of unauthorised use of electricity has to be recorded in the report as also to be mentioned in the assessment notice and order.”
28. The secure meter no. UPE 53367/EBM-187 which is the disputed meter in the present case, admittedly was installed vide sealing certificate dated 8.2.2005. The remarks contained in the sealing certificate dated 8.2.2005 reads as under:
“Remarks:
(1) T.V.M. Installed in Meter Box C.T. 200/5
(2) All sealing done as per UPPCL Norms
(3) MRI has been done
(4) Meter performance could not be checked due to non availability of supply”
29. The sealing certificate also shows at item no. 9, installation of five kinds of seals, i.e., Meter Body Seal, Terminal Place Seal, (inner and outer), C.T. Chamber Seal, Meter Box Seal and T.T.B. seal. The aforesaid meter was tested on 14.4.2005. It mentioned in the remark column of report dated 14.4.2005 that meter was found correct. Various seals were opened and re-sealed. The respondents authorities also obtained MRI report of the meter. Since meter body seal and meter box seal both were opened, it is evident that the respondents did not found anything objectionable in the meter on the said date.
30. On 14.10.2005 regarding conditions of seals, there is only one remark that "body seal found disturbed/ tampered". Now it is necessary to understand the kind of Sealings and the system of installation of meter equipment at the premises of a commercial/ industrial consumer. On the meter which is installed, the places wherefrom its cover can be opened, those points are sealed by pasting a paper or if the arrangement is there, by affixing a metal wire seal. The connecting point in the meter with supplier's line is covered by a plate called terminal place and seals are affixed thereat also which may be metal seal, wire seal or paper seal as the came may be. If the meter is receiving electricity from supplier's line through external C.T. and P.T. (Current Transformer and Potential Transformer), a chamber of C.T. and P.T. is made and it is also sealed in the like fashion. All these arrangements thereafter are kept in a meter box which is sealed from the outside. For the purpose of simple meter reading, data can be read from “see through window” of meter box but if any detailed information is to be collected from digital computerized meter, the meter box is normally opened and after completion of reading process, it is again sealed. This is how the different parts of metering system and various seals are placed which has been explained to this Court by the parties on which aspect there is no dispute.
31. In the present case on 14.10.2005, checking team did not found anything wrong with Meter Box Seal, Terminal Plate Seal. It mentioned only something about the meter body seal to which one cannot reach without opening the Meter Box Seal. On a query made by this Court as to what kind of disturbance or tampering in the Meter Body Seal was found by checking team, whether it was a fake seal, a duplicate seal or if it was a paper seal, then whether paper was repasted after removal or what else, having gone through the entire record learned counsel for respondents could not explain as to what the checking team meant observing 'disturbance/tampering in the Body Seal'.
32. Once the system of metering is clear and it is admitted that Meter Box is an outer cover in which meter is kept and without disturbing the seals affixed on the Meter Box, it is difficult to reach any seal on the body of the meter which is kept inside the Meter Box, it is difficult to understand how one can cause any disturbance with the Meter Body Seal without there being any disturbance on the Meter Box Seal. This apparent inconsistency in the checking report could not be explained by the learned counsel for respondents despite repeated query.
33. Then comes the testing of meter. It is no doubt true that secure meter no. UPE 53367/EBM-187 was removed for analysis by the Secure Company. This removal of meter was done in presence of consumer. The checking team did not suspect at that stage anything wrong at the end of the petitioner in the said meter.
34. The power to test a meter and its procedure has been prescribed in Clause 5.6 of Code 2005 which, as stood on relevant date, reads as under:
"5.6 Defective Meters
(a) The licensee shall have the right to test any meter and related apparatus if there is a reasonable doubt about the accuracy of the meter and the consumer shall provide the licensee necessary assistant in conduct of test. However, the consumer shall be allowed to be present during the testing.
(b) A consumer may request the licensee to test the meter installed on his premises if he doubts its accuracy, by applying to the licensee in prescribed format (Annex 5.1) along with the requisite testing fee. The licensee shall test the meter:
(i) Within 30 days of the receipt of the application at consumer's premises, or
(ii) At licensee's lab, or Independent lab, or
(iii) By installing a tested check meter in series with the existing meter within 7 days of filing of application.
(c) In case of testing of meter at consumer's premises, the testing of meter shall be done for a minimum consumption of 1 kWh. The meter testing team of the licensee shall carry heating load of sufficient capacity to carry out the testing. Optical Scanner may be used for counting the pulses/revolutions or meter shall be tested as per the procedure described in IS/IER 1956 or through aqua-check for LT meter and through RSS for others. The aqua Check and RSS shall be calibrated in laboratory of national repute once in a year.
(i) In case the meter is found O.K., no further action shall be taken.
(ii) In case the meter is found fast/slow by the licensee, and the consumer agrees to the report, the meter shall be replaced with a new meter within 15 days, and bills of previous three months prior to the month in which the dispute has arisen shall be adjusted in the subsequent bill as per the test results. In case meter is found to be slow, at the request of the consumer, these charges may be recovered in installments not exceeding three.
(iii) If the consumer disputes the results of testing, or testing at consumer's premises is difficult, the defective meter shall be replaced by a new tested meter by the licensee, and, the defective meter after sealing in presence of consumer, shall be tested at licensee's lab/Independent lab/Electrical Inspector, as agreed by consumer. The option once exercised by consumer shall not be changed. The decision on the basis of reports of the test lab shall be final and binding on the licensee as well as the consumer.
(d) In cases of testing of a meter in the licensee's/ Independent test laboratory,
(i) Consumer shall be informed of the proposed date of testing at least 7 days in advance so that he may be present at the time of testing, personally or through an authorized representative.
(ii) The signature of the consumer or his authorized representative, if any present, shall be obtained on the Test Result Sheet.
(iii) The results of testing, billing, and in case the consumer disputes the results of testing, shall be same as provided in 5.6 (c) above.
Note: (i) The licensee may submit a proposal, with a list of reputed and approval test labs, along with their test charges to the Commission. (ii) The provisions of IER 1956 shall however be followed until rules are made under Sections 53 and 55 of the Act.
(e) In case a check meter is installed, and if after 7-15 days of the period of test, the existing meter is found to be fast or slow beyond the permissible limits, and the test results are not disputed by the consumer, then the same would be removed leaving the check meter in its place for further metering, and bills of previous three months prior to the month in which the dispute has arisen shall be adjusted in the next bill as per the test results. Where the test results are disputed, the procedure as per 5.6 (c) as above, as the case may be, shall be followed."
35. Learned counsel for respondents argued that this is applicable to a defective meter and not to a meter which is otherwise correct but is not recording energy due to an act attributable to a third party, namely, consumer or his representative. He submitted if some artificial device is/was inserted in the meter with a separate circuit, operable by a remote control which could stop meter from recording energy, though energy being continuously consumed by consumer, and whenever consumer desire, by deactivating the device, meter could be allowed to record consumption, such a meter being correct but functioning is controlled by consumer, hence it would not be case of defective meter.
36. Sri Rai, per contra submitted that heading "defective meter" would not control the entire provision which suggest that any meter, if is supposed to be tested by licensee, the procedure laid down in Clause 5.6 has to be followed.
37. First of all I would consider whether the matter in question can be said to be a “defective meter” or not, assuming the stand of respondents regarding existence of device as correct, though on this aspect also I would discuss the matter later.
38. The Secure Meter is admittedly a digital computerized meter functioning with the support of a Base Computer Software, specially designed by the manufacturing company for the same. Such a software cannot be controlled by an external device unless such external device is fully compatible with the specially designed software and is loaded with the supporting software for external device. Unless specially designed software is known to a stranger, no one can place anything so as to make the computerized meter to function on the command of a stranger device. Such possibility can exist with collusion of Meter Manufacturing company or any of its official knowing details of the specially designed software namely Base Computer Software. On a repeated query, learned counsel for respondents could not tell as to in what manner such a device could have worked without cracking the lock system of Base Computer Software. Now, if, I assume that such lock system of digital computer was ably broken by consumer, it would mean that the meter had lost its original authenticity and to this extent has become defective. Clause 5.6, therefore, would clearly come into picture. This is how, in my view, even if one is guided by heading of clause 5.6, it would be attracted for testing of the meter in question.
39 Now I come to the broader issue. It is beyond doubt that heading of provision does not control the scope and ambit of the entire provision.
40. Lord Reid in Chandler Vs. D.P.P. [1964] A.C. 763 said: "In my view, side notes cannot be used as an aid to construction. They are mere catchwords and I have never heard...that an amendment to alter a side note could be proposed in either House....So side notes cannot be said to be enacted in the same sense as the long title or any part of the body of the Act."
41. In Chandroji Rao Vs. CIT 1970 (2) SCC 23, the Court held that the marginal heading cannot control the interpretation.
42. This was relied in Padmarage R. Kadambande Vs. CIT 1992 (3) SCC 432 wherein para 20 the Court observed:
“No doubt, the marginal heading of the Section is compensation but that does not control the operation of the Section or the interpretation ..”
43. In Guntaiah and others Vs. Hambamma and others (2005) 6 SCC 228, the Apex Court said:
“... title to the rules as such cannot be taken as the key words to interpret Rule 43-G. They have got the effect of only marginal notes. The marginal notes are not considered as legitimate aid to construction of any section or rule. The side notes are not considered as part of the Act. Lord Macnaghten in a case decided by the Privy Council held that the marginal notes cannot be referred to for the purpose of construction.”
44. The same principle has been followed by this Court also recently in Civil Misc. Writ Petition No. 53188 of 2011 (Ghanshyam Gupta Vs. United India Insurance Co. Ltd. And Others) decided on 14.9.2011.
45. Clause 5.6. reposes a right on the licensee to test “any meter” and related apparatus. It does not talk of only such a meter which has some defect. Even if there is no defect, but the licensee wants to test the meter, it can do so vide clause 5.6. This right of licensee is restricted only to the extent that he must have reasonable doubt about the accuracy of the meter. A similar right of the consumer is also recognised.
46. In the case in hand, the licensee's representatives found that the meter was stopped. It remained so for quite sometime whereafter abruptly started functioning. They suspected something wrong with the meter and therefore removed it. To my mind it was within their right under Clause 5.6 (a). The accuracy of the meter includes the recording of readings not commensurate to the consumption, stoppage of meter and damage to the seal. To clarity this position there is an amendment also. Sub-clause (b) of Clause 5.6 of Code 2005 has been replaced by Notification No. UPERC/Secy/Regulation/ Suply code/ 2006-517 dated 11th August, 2006, which reads as under:
"(b) A consumer may request the Licensee to test the meter installed on his premises if he doubts its accuracy of meter readings not commensurate with his consumption of electricity, stoppage of meter, damage to seal, by applying to the Licensee in prescribed format (Annexure 5.1) along with the requisite testing fee. ....."
47. In case consumer has not exercised its option for testing of the meter, the licensee can test the meter only at two places, namely, the licensee lab or at independent laboratory. Admittedly the licensee did not test the meter at any of its own laboratory. It, however, claims that testing by Secure Meters Ltd., the company manufacturing disputed meter, is an independent agency and would satisfy requirement of the statute, namely “Independent Laboratory”.
48. This submission has been seriously disputed by the learned counsel for petitioner. I also finds some substance in the reasoning forwarded on behalf of the petitioner. The practice of getting secure meter tested by its manufacturer has been deprecated as it amounts to making a person judge in his own cause. Secure Meters Ltd., the manufacturer of Secure Meter, is a pure and simple commercial undertaking. Its interest is to prove efficacy of its meters for augmenting its sale. This would be possible only by canvassing a system of metering which is tamper proof, pilfer proof etc. and generate confidence as much as possible. It cannot admit easily or at least cannot be expected to admit easily defect(s) in its meters, if any. Even if it finds something wrong, there is every possibility that being a private party, not accountable to any one, it may try to dispel charge on its own and make responsible someone else. It may be a good commercial undertaking but being solely private not accountable to the consumer or the licensee, testing of a meter by such a company and that too wholly ex parte and in a self-contented manner cannot be imposed on a consumer by the Licensee. The action following the conclusion that a meter has been tampered etc. so as to record incorrect reading results in civil consequences to the consumer. The exercise, therefore, if not judicial is also not pure administrative. The procedure consistent with the principles of natural justice, therefore, would be attracted in such a case. No person can be made an Arbiter of a dispute when such person has its own interest in the matter. When there is a dispute regarding the meter whether it is correct or not, whether tampered or not, Meter Manufacturing company having its own interest in the meter, if allowed to adjudicate and that too conclusively on the question of tampering or tamper etc. that would amount to inviting a decision from a person having large commercial interest in the matter. It would hit the principle that no one shall be judge in his own cause. Even otherwise when the statute talks of an “independent testing laboratory” it does not mean that it should be a test lab of the person holding large commercial interest in the matter. Moreover, a private company's opinion cannot be given statutory status in absence of any provision to do so.
49. The Patna High Court time and again, confronted with similar situation, has deprecated test of meter by its manufacturer M/s Secure Meters Ltd. It had observed that it is likely to create a strong bias on the part of suppler/manufacturer. In para 13 of the judgment in M/s JMD Alloys Limited (supra), a Single Judge of Patna High Court observed:
“13. It has also been held by this Court that sending the meter for testing to the accredited laboratory of M/s. Secur Meters Ltd. which is the manufacturer and supplier of the said meters under guarantee to replace the defective meter to the Electricity Board, is likely to create a strong bias on the part of the suppler/ manufacturer in testing the meter, even though its laboratory may be an accredited laboratory.”
50. I, therefore, finds no justification in relying on the report of M/s Secure Meters Ltd. I have no hesitation in holding that in the light of discussion as above, the laboratory of M/s Secure Meters Ltd. Cannot be said to be an “Independent Laboratory” under para 5.6 (b) (iii) of Code 2005.
51. In any case para 5.6 (d) makes imperative upon the licensee or the test laboratory to follow certain procedure before testing of the meter, namely, information to consumer of the proposed date of testing, giving opportunity to consumer or his representative to be present personally at the time of testing, obtaining signature of such person, if he is so present and a right to the consumer to dispute such testing as provided in Clause 5.6 (c).
52. Admittedly and at least there is nothing on record to show that before obtaining report from M/s Secure Meters Ltd., such procedure was followed. Petitioner categorically raised this issue in para 3 and 4 of his letter dated 6.3.2006 (Annexure 5 to the writ petition) but the same has not been adverted to by any of the authorities at any stage. The Assessing Officer initially issued a Provisional Assessment Order dated 1.2.2006 without commenting on the alleged report of M/s Secure Meters Ltd. and thereafter issued a revised undated assessment bill (sent to petitioner by registered post in which due date of payment was mentioned as 31.3.2006) for Rs. 10,54,969/-. It was appended with a calculation assessment sheet signed by Divisional Accountant (Revenue), Assistant Engineer (Revenue) and EE. The petitioner's objection dated 6.3.2006 does not appear to have been attended by Assessing Officer at all. The EE's letter dated 25.4.2006 only shows that he relied on Clause 5.6 (c) (iii) of Code 2005 but then without caring to go through the relevant provisions simply says that meter manufacturing company is an independent agency and its report must be honoured. This shows closeness with which Assessing Officer had looked into the matter and had miserably failed to apply mind to the entire facts of the case. This Court is constraint to observe that Assessing Officer appears to lack appreciation and knowledge of relevant provisions or there is some deliberate negligence or carelessness on his part in appreciation of application of those provisions.
53. There is one more aspect. In the order dated 5.4.2006, EE had observed that he heard the consumer at length but what submissions were made by consumer and how the Assessing Officer met those submissions all are missing. Nothing has been said about it. The order is conspicuously silent. A bare and simple non speaking pre determined kind of order has been passed. Earlier when meter was tested on 14.4.2005, to strengthen proper functioning of the meter, its MRI was obtained. If on 14.10.2005, meter was stopped from recording energy though electricity continuously used by the consumer, it could have been checked and verified from MRI. The MRI could have disclosed load on the system and its duration which could have easily disclosed user also, but this was not done. No reason was assigned for this purpose.
54. The appellate authority has also not been able to appreciate this aspect. In a mechanical manner it has guided itself by report of meter manufacturing company as if the report is binding and a last word, and, as if the appellate authority cannot look into various relevant aspects of the matter. It has also not tried to explain how in a computerized digital meter such kind of alleged tampering could have been introduced. I has also not examined whether the Assessing Officer has observed the procedure before making assessment. For the purpose of procedure to be followed by Assessing Authority, this Court need not to discuss the matter since it has already been considered by a Division Bench of this Court in Ashok Kumar (Supra) as under:
“64. A perusal of para 6.8 (a) (i), (ii), (iv) and (v) shows that it presupposes an inspection of the premises to be made by the assessing officer and if he finds evidence of irregularities constituting unauthorised use of electricity at the premises, shall prepare a report at the site, giving details thereof, and, would handover the copy of such report to the consumer or his representative at the site itself. In case of refusal by consumer or its representative, to either accept or giving receipt to such report, the same shall be pasted at a conspicuous place at the premises and shall also be sent to the consumer under registered post/speed post on the day itself or the next day of the inspection.
Therefore, the requirement of prima facie conclusion is supposed to be recorded by the assessing officer at the time of inspection itself and needs to be communicated to the consumer. Para 6.8 (b) (ii) shows that the notice shall require the consumer to give his objections against the charges and provisional assessment. Para 6.8 (c) (i) shows that an opportunity of personal hearing shall also be given to the consumer and thereafter the assessing officer shall pass a speaking order recording (i) whether unauthorised use of energy is established or not, and; where it is so established, (ii) shall determine the quantum of the amount which the consumer has to pay i.e. the assessment shall be made by the assessing officer. Thus even Code, 2005 which contains the conditions of electricity supply etc., provides a detailed procedure in which the assessment would have to be made by the assessing officer.”
55. Apparently from the discussion I have already made, it is evident that the proceeding as held mandatory by this Court was not followed by Assessing Officer.
56. Now coming to the second realm of the argument, whether assessment has been made in accordance with statute, it cannot be disputed that at the relevant time when checking was made i.e. 14.10.2005 Section 126 (6) empowers the rate of tariff at one and half times of the tariff and relevant category specified in Sub-section 5. It appears that in Code 2005 there was some discrepancy in this regard but it cannot not be doubted that in case of such discrepancy, it is the provision of the Act, which shall prevail. Therefore, the assessment could have been made at one and half times and not twice the rate as has been mentioned by the appellate authority in the impugned order or thrice time as was made by Assessing Officer. Both these orders in this regard cannot sustain.
57. The lack of application of mind and on the contrary closeness on the part of Assessing Officer as well as appellate authority is also writ large from another aspect. As observed above, the Secure Meter Manufacturer claims that special software in consumer energy meter detects and reports conditions of tampers and fraud like missing potential, CT polarity reversal, Current imbalance or CT open/bypass, power on/ off etc. along with data and time. These informations are recorded in the memory chip of the digital meter and the data can be downloaded through MRI. If any such external device remote control operated, as alleged by the respondents, was inserted in the meter, the information ought to have been recorded in the meter's memory chip and could have been disclosed by MRI. No such information collected from the meter has been placed on record nor it is the case of respondents that any such information at any point of time was actually obtained. The information contained in the digital meter's memory chip can also be scrutinized in detail in respect to any external alternation through the system of analyzer and that could have been obtained from meter in the presence of the consumer to prove the charges against him to the hilt and without giving any possibility of doubt in the entire process. What I have observed is consistent and in the light of the specialty and peculiar features of Secure Meter claimed by the Company and are already reproduced above in para 27 of this judgment. Nothing of this kind of information has either been collected by the respondent nor placed on record. Without looking into this aspect of the matter, the charge of theft of electrical energy and consequential assessment could not have proceeded in the facts and circumstances of this particular case.
58. Learned counsel for petitioner contended that petitioner's premises meter was checked on 14.4.2005 when everything was found correct. The period of six months provided in Sub-section (5) of Section 126 is subject to the condition that the consumer can prove otherwise. In the case in hand the checking report was already with the respondents which was relied by the petitioner showing that the meter was checked on 14.4.2005 when nothing was found wrong, hence assessment for 180 days could not have been made. Even if this argument is accepted, the result would be the same since the assessment has been made for 180 days, i.e. for six months, hence nothing would turn on this score.
59. So far as the demand of electricity duty is concerned, it cannot be doubted that the revenue assessment has been made in the present case by referring to Section 126 read with para 6.8 of Code 2005. it is clear that revenue assessment shall not be taken into consideration for the purpose of computing consumer's liability to pay monthly/annual charges wherever applicable. That being so, it is evident that the assessment being penal, its scope cannot be enlarged to some other dues not contemplated in the Statute as a part of the assessment. Therefore, in my view, the demand of any amount over and above the assessment amount cannot be justified under the otherwise specific provisions unless they are amended otherwise.
60. Now coming to the dispute with respect to demand of minimum consumption charges for the period electricity remained disconnected, it cannot be doubted that so long as the connection is disconnected permanently, if there is a tampering, disconnection for the fault attributable to the consumer he is liable to pay minimum guarantee charges for thd period the electricity supply has remained disconnected. But if disconnection is attributable to a fault of the licensee or its representative, then consumer cannot be penalized as it would amount to making responsible a person for a fault not committed by him and on the contrary would allow licensee to take advantage of its own wrong. In the case in hand unless and until it is ultimately proved that the consumer was responsible of theft of electrical energy and the licensee was justified in disconnecting the electricity supply for the same, no demand of minimum charges can be raised against the petitioner for the period electricity has remained disconnected. It is also worthy to notice that the provisions in the statute contemplate that a consumer even if may have committed any default may not be allowed to ruin for all times to come and therefore as soon as the requirement of re-connection are satisfied his electricity supply shall be restored without any further delay. Therefore, for period electricity supply remained disconnected and if there is an occasion of re-connection for once or more in the meantime the concerned Billing Authority has to consider the responsibility owned by the person concerned for continuation of such disconnection and only when the responsibility is attributable to the consumer, the demand of minimum charges can be justified and not otherwise. No provision has been shown to this Court which may authorize the respondents to demand minimum consumption charges ignoring the above principles. The justification with respect to minimum consumption charges, therefore, would be examined by the competent authority in the light of the above discussion and in accordance with law.
61. In the result, the writ petition is allowed. Impugned assessment order dated 22.11.2007 (Annexure 13 to the writ petition) and appellate order dated 10.6.2010 (Annexure 16 to writ petition) are hereby quashed.
62. Petitioner's electric connection, if lying disconnected, shall be reconnected forthwith provided the dues payable by petitioner upto date his electric connection was disconnected, hav already been paid by him.
63. It is also made clear that if after the date of disconnection pursuant to checking made on 14.10.2005 petitioner's connection was reconnected at any later point of time, for the period the electricity supply had remained connected, the petitioner must have paid dues in order to entitle him for the benefit of direction with regard to reconnection.
64. However, this judgment shall not preclude Assessing Officer to proceed afresh against the petitioner in accordance with law.
65. No cost.