| SooperKanoon Citation | sooperkanoon.com/514820 |
| Subject | Electricity |
| Court | Jharkhand High Court |
| Decided On | Feb-01-2007 |
| Case Number | W.P (C) No. 109 of 2007 |
| Judge | Narendra Nath Tiwari, J. |
| Reported in | 2007(1)BLJR862; 2007LC(JH)1469; [2007(3)JCR575(Jhr)] |
| Acts | Electricity Act, 2003 - Sections 56, 61, 126, 127 and 135; Indian Penal Code (IPC) - Sections 379 |
| Appellant | Stan Commodities Pvt. Ltd., Through One of Its Directors Shri Pawan Kumar Poddar |
| Respondent | Jharkhand State Electricity Board Through Its Chairman and ors. |
| Appellant Advocate | Y.V. Giri, Sr. Adv. and; N.K. Pasari, Adv. |
| Respondent Advocate | V.P. Singh, Sr. Adv. and; Rajesh Shankar, Adv. |
| Cases Referred | Maneko Gandhi v. Union of India |
Narendra Nath Tiwari, J.
1. In this writ application the petitioner has prayed for a direction on the respondents to restore its electrical connection which has been disconnected on 3.1.07 after the inspection/meter reading held in its premises on that date. The petitioner has also sought for a direction on the respondents not to raise any punitive bill without giving any opportunity of hearing to the petitioner and also for quashing the inspection report/meter reading report dated 3.1.07.
2. The petitioner is a small scale industry manufacturing M S steel ingots at Adityapur Industrial Area, Adityapaur, Jamshedpur. According to the petitioner, it entered into an agreement with the Jharkhand State Electricity Board for supply of electrical energy having a contract demand of 1200 K.V.A. Subsequently, the meter of the petitioner had become defective which was replaced by the Board on 7.10.06. It has been stated that every month a team of the officers of the Board consisting of 6-10 officials used to come and take reading of the petitioner's meter. The last inspection was held on 5.12.06. On that date, a team of five senior officials of the Board made inspection and prepared meter reading report. All the old seal bits of the Door, Meter Box and T P were removed and new seal beats were affixed. It has been stated that the petitioner has been making payment of the bills raised for consumption of electrical energy from time to time. On 3.1.07 at about 12.30 P.M a team of officers again inspected the petitioner's meter and took the meter reading. But, it was alleged that some of the seals were tampered and were not original seals. From the survey report of the M.R.I data it also appeared that from 17.12.06 till 3.1.07 the load consumption was less than what it was prior to 17.12.06. An F.I.R was lodged in Gamharia Police Station alleging pilferage and theft of energy causing loss to the Board to the tune of about Rs. 2,40,00000/-. The case was registered under Section 135 of the Electricity Act, 2003 (hereinafter referred to as 'the said Act') read with Section 379 I.P.C. The petitioner's electrical connection was also disconnected on 3.1.07 without giving the petitioner any prior notice regarding the alleged tampering etc and without giving the petitioner any opportunity of hearing. The petitioner denied the allegation of interference with the seals.
3. According to the petitioner, the allegation of tampering with the meter and other allegations have been deliberately made, only in order to harass and humiliate the petitioner with ulterior motive. The grievance of the petitioner is that the abrupt disconnection of the electric supply of the industry has caused sudden closure of the industry and the petitioner has been put to suffer huge loss with various civil consequences and the said arbitrary and the said penal action of the respondents without giving any notice and any opportunity of hearing to the petitioner is wholly arbitrary, unjust and violative of principle of natural justice. It has been stated that the respondents have also got no arbitrary power to raise any bill putting an imaginary amount as the penal dues. The said action of the respondents is also violative of Sections 56, 126 & 135 of the Electricity Act, 2003 and the same is wholly illegal and whimsical.
4. Mr. Y.V. Giri, learned Sr. counsel appearing on behalf of the petitioner submitted that the petitioner is a consumer of the electricity supplied by the respondents and he has been paying the electric bills regularly. The petitioner's meter was regularly inspected. There was no allegation of tampering with the seals of the meter or any other seal on the last inspection held on 5.12.06. He further submitted that on 3.1.07 the meter was inspected and meter reading was taken but without giving any notice of the alleged tempering and any opportunity to explain on the alleged interference with the seals and causing loss of about two Crores and fifty Lakhs, not only as F.I.R was lodged but the petitioner's electric supply was also simultaneously disconnected causing huge loss to the petitioner-industry. Learned Counsel submitted that the electrical disconnection is by way of punishment on the allegation of theft of electricity and the said action visited the petitioner with civil consequences and there is a gross violation of the rule of fair play and principle of natural justice and the said action of the respondents is nullity in law. Learned Counsel submitted that in almost similar fact situation it has been held by a Bench of the Patna High Court in B.L Steel Pvt. Ltd. v. Bihar State Electricity Board and Ors. C.WJ.C No. 3189/98(R) that the Board has to afford an opportunity of hearing if any decision of the Board adversely affects the consumer. The same view has also been taken by the said Court in the case of Bihar State Electricity Board and Ors. v. Sri Bir Ispat reported in 1998 (3) B.L.J.R 1985 and in Sheo Shakti Cement Industries v. B.S.E.B and Ors. C.WJ.C No. 2290/99(R). Learned Counsel submitted that even in case of unauthorized use of electricity, there is a clear provision for assessment under Section 126 of the Electricity Act, 2003 which also provides for giving a notice to the concerned persons and for affording a -reasonable opportunity of filing objections and hearing. He further submitted that the provision for disconnection of supply has been specifically provided under Section 56 of the said Act which, inter alia, envisages for giving 15 clear days' notice in writing to the concerned persons before disconnecting the supply line. It has been further submitted that Section 135 of the Electricity Act, 2003 provides punishment for the offence of theft of electricity after proper trial but the same does not empower the Board to disconnect the line on a mere allegation of theft or only on lodging an F.I.R on such allegation. It has been submitted that the allegations of tampering with the seals and theft of electricity are to be investigated and trial and charge is to be proved in the Court of law and the Board has no unbridled power to punish the petitioner by disconnecting its electric supply line without taking recourse to law. Learned Counsel submitted that the respondents have acted maliciously and arbitrarily and against the mandatory provisions of law and they are liable to restore the petitioner's electrical connection forthwith.
5. Mr. V.P. Singh, learned Sr. counsel appearing on behalf of the respondents-Board, on the other hand, submitted that the respondents' authority found theft of electricity by the petitioner by tampering with the seal beats of the Board's Meter Box etc and disconnection of the petitioner's electric supply in such situation is not arbitrary. It has been submitted that Clause 16.9(A) of '1993 Tariff' provides for such disconnection and the said action of the respondents is in accordance with the said Clause. The petitioner's allegation of illegality and mala fide in disconnecting the petitioner's electric supply is wholly without basis. It has been submitted that the provision has been made under Section 126 of the said Act for assessment and disconnection. Section 56 of the said Act deals with different situation. In the Instant case the petitioner was found pilfering electricity by tampering with the seals of the Board's meter which constituted an offence under Section 135 of the Electricity Act, 2003 and Section 379 of the I.P.C. In such cases of illegal pilferage/theft, no notice or opportunity of hearing is required to be given to the person and principle of natural justice is not required to be followed. Learned Counsel relied on a decision of Patna High Court, Ranchi Bench in Usha Beltron Ltd. and Ors. v. Bihar State Electricity Board and Ors. reported in 2000(2) P.L.J.R 824 and the decision in Cement Company and Ors. v. Bihar State Electricity Board and Ors.
6. On the facts on record and rival contentions of the parities, the question falls for consideration in this writ application is as to whether the respondents-Board was justified in disconnecting the petitioner's electric supply merely on the allegations of tampering of seals on meter box etc and pilferage of electricity, without giving any notice and opportunity of representing or hearing to the petitioner and before making any assessment and giving the petitioner a supplementary bill.
7. In this connection it is necessary to examine the relevant provisions of law. Section 56 of the Electricity Act, 2003 deals with the provision of disconnection of electric supply only on default of payment, which runs as follows:
56. Disconnection of supply in default of payment -(1) Where any person neglects to pay any charge for electricity or any sum other than a charge for electricity due from his to a licensee or the generating company in respect of supply, transmission or distribution or wheeling of electricity to him, the licensee or the generating company may, after giving not less than fifteen clear days notice in writing, to such person and without prejudice to his right to recover such charge or other sum by suit, cut off the supply of electricity and for that purpose cut or disconnect any electric supply line or other works being the property of such licensee or the generating company through which electricity may have been supplied, transmitted, distributed or wheeled and may discontinue the supply until such charge or other sum, together with any expenses incurred by him in cutting off and reconnecting the supply, are paid, but no longer:
Provided that the supply of electricity shall not be cut off if such person deposits under protest,-
(a) an amount equal to the sum claimed from him, or
(b) the electricity charges due from him for each month calculated on the basis of average charge or electricity paid by him during the preceding six months,
whichever is less, pending disposal of any dispute between him and the licensee.
(2) Notwithstanding anything contained in any other law for the time being in force, no sum due from any consumer, under this Section shall be recoverable after the period of two years from the date when such sum became first due unless such sum has been shown continuously as recoverable as arrear of charges for electricity supplied and the licensee shall not cut off the supply of the electricity.
8. From plain reading of the said Section, it is evident that if a person neglects to pay any charge for electricity or any sum other than a charge for electricity due from him in respect of supply, transmission etc, his line can be disconnected after giving him not les than fifteen clear days' notice in writing and without prejudice to his right to recover such charge or other sum, as the case may be. In this case there is no allegation of non-payment of any electricity bill. The provision of this Section provides for giving fifteen clear days' notice before disconnecting the supply of electricity even in the case of default in payment.
9. Section 126 of the said Act provides for assessment on the conclusion of the assessing officer if a person is found indulged in unauthorized use of electricity which reads thus:
(emphasis supplied)
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 unauthorized use of electricity has taken place, 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, 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) 'unauthorized us of electricity' means the usage of electricity --
(i) by any artificial means; or
(ii) by a means not authorized 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 authorized.
10. Thus, Section 126 provides for assessment if on inspection any person is found guilty of unauthorized use of electricity. It further provides for making provisional assessment and service of such assessment on the person in occupation or possession or in charge of the place or premises giving the concerned person an opportunity to file objections or giving a reasonable opportunity of hearing before passing the order of assessment of the electricity charges payable by such person. In explanation the unauthorized use of electricity has been defined which includes usage of electricity by a means not authorized by the concerned person or authority or licensee or through a tampered meter etc. Section 127 of the said Act provides for appeal to the appellate authority if a person is aggrieved by the final order made under Section 126.
11. Part XIV of the said Act provides for offences and penalties. Section 135 deals with theft of electricity and prescribes punishment for theft of electricity in the form of imprisonment etc. It does not speak about disconnection of electric supply line.
12. None of the said provisions of the Electricity Act, 2003 gives power to the Board to disconnect the electric supply without informing the reason and giving notice regarding the allegations and without providing opportunity of hearing to the concerned persons.
13. Further, Clause 16.9(A) of the Tariff prescribes the mode of estimating the value of the electrical energy on detection of unauthorized load which according to the respondents also provides the power for disconnection of the supply of electricity without notice. The said clause runs thus:
16.9(A) Detection of unauthorized load: If at any time the consumer is found exceeding the contracted load without specific permission of the Board, the Board may without prejudice to its other rights under the agreement or under the provisions of the electricity Act, estimate the value of the electrical energy, as extracted, consumed or used shall be calculated as below and may also disconnect the supply without notice;
1. Necessary assessment for compensation in the following malpractice and theft of energy cases shall be made as below:
(a) In cases of use of energy through artificial means or by adopting any appliance.
(b) In case of using energy by creating obstruction in running of meters or interfering with the system of supply of wires etc.
(c) In case of dishonest abstraction of electrical energy or running of energy when supply is disconnected.
Unit assessed LxFxHxD Where
L is the connected load in KW
H is the average no. of hours per day if supply is made available in the distribution mains, feeding the consumer.
D is the no. of days for which the pilferage took place which can be established from production of satisfactory evidence by the consumer. In case there is no possible evidence to establish the period, this factor be taken equivalent to 180 or the no. of days elapsed from the date of connection/ installation of meter till the date of detection of the pilferage whichever is less.
F Denotes the factors for the categories noted below:
(i) For domestic F 0.20(ii) For Commercial F 0.40(iii) For small & mediumupto 15 KW) F 0.50(iv) For large & heavy(with load above 15 KW) F 0.75Note: In case of large and heavy power consumers for the purpose of assessment, the demand for the month shall be taken as contracted demand of the consumer or 75 percent of the connected load at the time of inspection whichever is higher.
II. Pilferage of energy detected during marriage and other occasions for temporary connection:
Unit assessed LXDXH
L is the connected load in KW
H is the average no. of hours per day the supply is made available in distribution mains feeding the consumers.
D No. of days for which supply availed.
III Method of charging the assessed units as indicated in para I & II above:
a) The consumption so assessed shall be charged at thrice the rate per unit of the tariff applicable to the consumer excluding the consumption recorded by the meter and the latter shall be charged at the appropriate tariff rates. The amount billed at this rate (thrice the tariff rate) shall not be taken into consideration for the purpose of computing consumer's liability to pay monthly minimum guarantee.
b) In case of consumer covered under categories of small power for P.T. W/Pumping sets for irrigation purposes, small and medium power for industries and commercial loads and temporary supply, the excess load over and above the contracted load shall be chargeable at triple the rate of flat rate/M.C.G of the appropriate tariff.
14. The said clause of the Tariff deals with the situation of detection of unauthorized load. This provision has been particularly made for the consumer who is found exceeding the contracted load without specific permission of the Board. In the instant case there is no allegation of detection of unauthorized load exceeding the contractual load. Moreover, the tariff regulations are subject to the provisions of the Electricity Act, 2003 which have been framed under the provisions of Section 61. Such regulations cannot over ride the express provisions of the Act. Even in Clause 16.9, no power has been given to the Board to disconnect the electric supply in a case of detection of unauthorized load exceeding the contractual load without the permission of the Board. No other provision in the Electricity Act has been pointed out by learned Counsel for the respondents which empowers the respondents to disconnect the electric supply without giving any notice and without assessing the charges and without serving the assessment, even in the case of unauthorized use of electricity by the consumer.
15. The decisions cited by the respondents in the cases of M/S Usha Beltron Ltd. & Cement Co., supra, are not grounded on similar fact situations. In the said cases supplementary bills were raised and issued to the persons, which were challenged. Even in those cases it has been held that the supplementary bills cannot be finally raised without giving an opportunity of hearing to the concerned consumers.
16. In the case of Maneko Gandhi v. Union of India reported in : [1978]2SCR621 it has been emphatically held by a Bench of seven Judges of the Supreme Court that requirement of principle of natural justice is implicit in Article 21 of the Constitution which makes it imperative to provide opportunity of hearing before taking any prejudicial action against the person.
17. In view of the above discussions, I find no justification of the respondents' action in disconnecting the petitioner's electric supply line without making any assessment in accordance with the provisions of Sections 126 for the alleged unauthorized use of electricity and without taking recourse to the provisions of Section 56 of the said Act and without (sic) following the principle of natural justice (sic) giving an opportunity of hearing to the petitioner.
18. In the circumstances of the case, the respondents' action of disconnecting the petitioner's electric line is held illegal, arbitrary and violative of the principle of natural justice. The respondents are directed to restore the petitioner's electric supply forthwith. The respondents are, however, at liberty to proceed and take action against the petitioner under the provision of Section 126 of the Electricity Act, 2003 or under any other relevant provisions of law, if situation so warrants, in view of the nature of the allegation against the petitioner which may also follow the prescribed legal consequences, as the case may be.
19. This writ application is disposed of with the above observations and directions. No order as to costs.