M/S Maa Sheet Grih ( Pvt. ) Ltd. v. Bihar State Power (Holding) Company Ltd.

(Annexure 10 to the writ petition) as served on it. Let it be noted that the said order is an order passed whereby the earlier final order was set aside by this Court in Patna High Court CWJC No.11157 of 2013 (3) dt.31-10-2013 CWJC No 6261 of 2012 by order dated 04.03.2013 (Annexure 8). 2 Heard the learned counsel for the petitioner and learned counsel for the Bihar State Power Holding Company Limited (hereinafter referred to as the Power Company) and with their consent, the writ petition is being disposed of at this stage itself. The Petitioner-Company has a Cold Storage at Kahalgaon in the district of Bhagalpur. For the said Cold Storage, it has taken a high tension electric connection from the Power Company. On 13.07.2011, the officers of the Power Company including Assistant Electrical Engineer/Meter Relay Testing came to the premises of the petitioner. They opened the meter room which was sealed earlier by them which was later replaced by a new seal then they opened the optical port of the meter and later replaced the same by a new seal. They took various readings from the meter and finding no irregularity, after resealing the meter and the meter room, they left. This inspection report dated 13.07.2011 is Annexure 1. Soon thereafter, on 30.07.2011, inspection was conducted allegedly on the ground that there was suspicion. The inspection –cum- seizure report is Annexure 2. That clearly notes that meter was in a room near the main gate. It is then alleged as per the inspection –cum- seizure report that the cover seal of the Patna High Court CWJC No.11157 of 2013 (3) dt.31-10-2013 meter was found tampered and upon removing the top cover, a 3 foreign electronic circuit was found implanted inside the metering unit. Accordingly, the meter and the metering unit were seized and were handed over to the police and a First Information Report was lodged giving rise to a police case for an offence punishable under Section 135 of the Electricity Act, 2003. It must be noted that when the employee of the petitioner, who was present there, was asked to receive the report, he refused and accepted it only under protest which is clearly written on the inspection report itself because he was not sanguine about the correctness of the matters written therein. The police case that is Kahalgaon Police Station Case No 276 of 2011 was, thus, instituted on 31.07.2011 which is Annexure 3. It appears that in course of investigation, the Investigating Officer (IO) got the meter, as was seized and given to him, examined at the Birla Institute of Technology (BIT), Patna by experts. The report whereof dated 23.12.2011 is Annexure 4 to the writ petition and it suggests that there was no foreign element in the equipment and the equipment that is the meter was recording correctly. On basis of the aforesaid, the police, finding no evidence of use of any artificial means to abstract electricity, filed a final report (Annexure 5) in the Court. Apparently, Court noticed the informant and when no one turned Patna High Court CWJC No.11157 of 2013 (3) dt.31-10-2013 up, accepted the final report closing the case as a mistake of fact. 4 In the meantime, as noticed above, on the date of inspection itself, a provisional assessment of electricity dues as a consequence of alleged theft was made and served on the petitioner which is Annexure 6 to the writ petition for an amount of Rs 47,89,233/-. This being a provisional assessment, it had to give full calculations but no such calculations were given. However, within the limited time available, petitioner then, on or about 09.08.2011, filed his objection to the said provisional bill but ignoring the same, a final assessment bill was served upon him which is Annexure 7/1 dated 08.10.2011. Here, it may be noted that the number of days for which the theft is alleged is 365 and the average hour of supply of electricity to be taken is 21 hours. I am noting these two figures as they would be important at a later stage. Petitioner challenged this final bill on the ground that it was without considering its objections and the writ petition, as noted earlier, was allowed on 04.03.2013 being CWJC No 6261 of 2012 that is Annexure 8. This final bill was set aside and the matter was remanded for fresh consideration and a fresh order. Petitioner then filed a fresh representation which is Annexure 9 and the impugned order has been issued thereafter which is Patna High Court CWJC No.11157 of 2013 (3) dt.31-10-2013 Annexure 10. 5 The first thing that is to be noticed is that though it is an adjudicatory order imposing huge penalty, it is totally a non- speaking order. Mr Anand K Ojha, learned counsel for the Power Company points out that originally the demand was over Rs 47 lacs. This time it has been reduced to about Rs 35 lacs. I am afraid, Board is not doing any charity. It is only performing its statutory duty. An adjudicatory order of this nature and that too imposing such huge penalty cannot be but with reason to support it. Petitioner has raised several contentions. None of them have been considered much less even referred to. On the face of it, this order cannot be supported. It is set aside. While doing so, I must notice the importance of speaking order in such situation. Firstly, petitioner has clearly pointed out that the meter was in a room which was locked and sealed by the authorities themselves. There was a meter seal again. When the inspection was done on 30.07.2011, nowhere it is alleged that the meter room seal was found tampered or the meter seal was found tampered. Then how it is being alleged that an electronic device was found implanted within the meter which device was never found by the IO nor by the BIT experts. Then while raising the punitive bill, the provisions of the Regulations Patna High Court CWJC No.11157 of 2013 (3) dt.31-10-2013 are clear that the period for which punitive bill has to be raised is 6 to the period during which theft has been committed. Here, the facts are clear that on 13th of July 2011, inspection was carried on and nothing wrong was found. Then again, on suspicion, inspection was done on 30.07.2011. At best even it be conceded that there was some tampering, the period is only between 13th of July, 2011 to 30th of July, 2011 and not for 365 days. Let it be noted that punitive bill does not mean bill made to punish. It is a bill with punishment of higher charges for delinquency. The authorities were bound to consider these aspects of the matter as also the expert report that meter was not damaged or tampered in any manner before the final bill would be issued. Thus, having not considered these matters, they have mechanically acted and, as such, the order cannot be sustained. Once again, the matter is remanded to the authorities for reconsideration on basis of the aforesaid facts. Let it be noted that this Court has not taken into consideration the effect, if any, of the final form filed by the police and its acceptance. Thus, the demand as per Annexure 10, cannot be sustained. It is set aside. The writ petition is allowed. The authorities of the Power Company would be Patna High Court CWJC No.11157 of 2013 (3) dt.31-10-2013 entitled to pass final orders within one month from the date of 7 production of a copy of this order after looking into the facts and circumstances including any representation petitioner may like to file. M.E.H./- (Navaniti Prasad Singh, J)