M/S Jagdamba Ventures Pvt. Ltd. v. The Bihar State Electricity Board Vidyut Bhawan

Heard learned counsel for the parties. In the instant writ application, the petitioner prays for quashing the inspection / seizure report dated 12.03.2011 as well as provisional assessment order dated 15.03.2011 raising the punitive demand of Rs.3,57,47,163/- and final assessment order dated 21.04.2011 passed by respondent no.5. The petitioner is a Company incorporated under the provisions of Companies Act. The main grievance of the petitioner is that the Patna High Court CWJC No.13027 of 2011 (8) dt.25-01-2012 assessing officer penalized him and charged punitive bill for 247 days, though regular inspection was made on 10.11.2010,

12.02.2011 and finally on 12.03.2011, which inspection report is also been impugned in this writ application. On the other hand, learned counsel respondents submits that if there is unauthorized use of electricity, the assessing officer will provisionally assess to the best of his judgment, the electricity charges payable by such person or any other person benefited by such usage. Counsel for the Board submits that if the assessing officer comes to the conclusion that unauthorized use of electricity has taken place, the assessment shall be made for the entire period during which unauthorized use of electricity has taken place. In case, period of unauthorized use or theft is not ascertained, such period shall be limited to a period of 12 months immediately preceding the date of inspection. Section 126(1) and Section 126(5) are quoted herein below for easy reference: “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 Patna High Court CWJC No.13027 of 2011 (8) dt.25-01-2012 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. 126 (5) If the assessing officer reaches to the conclusion that unauthorized use of electricity has taken place, the assessment shall be made for the entire period during which such unauthorized use of electricity has taken place and if, however, the period during which such unauthorized use of electricity has taken place cannot be ascertained, such period shall be limited to a period of twelve months immediately preceding the date of inspection.” The petitioner states that as the electric supply was energized on 09.07.2010, the respondent Board has raised punitive bill from 09.07.2010 till the date of inspection. The petitioner states that it is not in a position to deposit 50 % of the punitive bill to avail the alternative remedy of appeal, which has been arbitrarily raised to the tune of Rs.3,57,47,163/-. The petitioner submits that the total asset of the company is worth Rs.150 crores. The petitioner submits that in case, if the action of the respondent is arbitrary, recourse to alternative remedy may not be directed in all the circumstances. The petitioner in support of his submissions has relied upon the Patna High Court CWJC No.13027 of 2011 (8) dt.25-01-2012 case of J.M. Baxi & Co. Gujarat Vs. Commissioner of Custom, New Kandala, reported in (2001) 9 SCC 275 and in case of State of Tripura Vs. Manoranjan Chakraborty and Ors., reported in (2001) 10 SCC 740. Counsel for the respondents submits that persons indulging in theft of energy is to be dealt severely and in support of his submission, learned counsel has relied upon (2006) 8 SCC 629, and in case of Isha Marble Vs. reported in 1995) 2 SCC 648. He submits that as per Section 135 (1)(b) and 131(1)(d), any consumer / person tampering meter or one who installs or uses tampered meter or interferes with accurate and proper registration or metering of electric current or one who uses electricity through tampered meter would be said to be committing theft of electricity. Counsel for the Board submits that the inspection of the meter was actually made only on 12.03.2011 and not on earlier occasions, only meter readings were done. He submits that inspection report dated 12.03.2011 shows insertions of two numbers of remote control device inside the meter box along with external electronic circuitory. The respondent Board submits that the petitioner has a remedy of appeal under Section 127 of the Electricity Act and as such the writ application would Patna High Court CWJC No.13027 of 2011 (8) dt.25-01-2012 not be maintainable. One of the disputes between the petitioner and the Board is whether the report dated 10.11.2010 and 12.02.2011 would come within the purview of inspection or whether it was a mere meter reading. As per the petitioner, in case of H. T. consumer, every month for the purpose of raising bill, the Assistant Electrical Engineer, Supply and Assistant Electrical Engineer, MRT visits to the premises and after unsealing the different parameters of the meter is noted and some times data is also down loaded for ascertaining whether there is any tampering or not. It appears from the report that the officials, who have gone to check or read / inspect the meter, reported as follows: “As per direction of the EEE/MRI due to tamper found in display of the meter, MRI of the consumer meter was done today. The reading of the meter was taken. The report is provisional subject to MRI report analysis. Prima facie other abnormalities were not found. According to the consumer one of the electrodes in the furnace was broken on the same date.” Again the meter was checked on 12.02.2011 and the relevant reports state as follows: Patna High Court CWJC No.13027 of 2011 (8) dt.25-01-2012 “As per instruction premises was inspected. Meter reading was taken. Meter box was opened and all the seals of meter and meter box including optical port was verified from the record. Continuity of the holographic conducting seal of meter body was checked and found ok. MRI of the meter was also taken for further analysis with its hardcopy report. Metering unit details available with the name plate its secondary terminal cover seals were also verified from the record. All the removed seals were replaced with new seals.” Just after one month on 12.03.2011, the meter was checked by 8 to 10 officials of the Board. The respondent refers to this checking of meter, only as an inspection of the meter. It is not in dispute that both on 10.11.2010 and

12.02.2011, MRI of the meter was down loaded for further analysis with its hardcopy report. The MRI report has not been at all considered while coming the conclusion unauthorized use of electricity was being done from the day one i.e. 09.07.2010 when the meter was energized on restoration of electric supply, which was snapped on account of non-payment of dues. It is prima facie subject to analysis of M.R.I., that the petitioner tampered with the meter, the day energy supply was restored, which was reversed on account of non-payment of Patna High Court CWJC No.13027 of 2011 (8) dt.25-01-2012 electric dues. In the circumstances, I remit the matter to the assessing officer for fresh assessment wherein the data collected from MRI would also be taken into consideration besides the other factors. The petitioner would deposit a sum of Rs.40,00,000/- (Forty lacs) in two equal installments. The first installment of Rs.20,00,000/- (Twenty lacs) should be paid within two weeks. On payment of first installment, the electric line would be restored. The petitioner would pay the second installment of Rs.20,00,000/- (Twenty lacs) within six weeks thereafter. The petitioner would continue to pay the current charges. With the aforesaid observation, this application is disposed of. Uday/- (Samarendra Pratap Singh, J.)