IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2941 of 2010 Shanta Mani Hand Made Paper Industries Having Its Works At Dopia (Nalanda) Appearing Through Its Propreitor Anil Kumar S/O Sri Surendra Kumar R/O Kakaria,P.S- Noorsarai, Distt- Nalanda Versus 1. The Bihar State Electricity Board, Appearing Through Its Chairman, Bailey Road, P.S- Kotwali, Town And Distt- Patna 2. The Elecl. Superintending Engineer, Nalanda Electrical Circle, Biharsharif 3. The Elec. Executive Engineer, Biharsharif Electric Supply Division, Biharsharif, Distt- Nalanda 4. The Assit. Elec. Engineer Biharsharif (Rural) Electric Supply Sub-Division, Biharsharif, Distt- Nalanda 5. The Accountant General, Bihar, Birchand Patel Marg, Patna (Audit) ---------- Appearance: For the petitioner : Mr. S.S. Rekhi, Advocate For the respondent nos. 1 to 4: Mr. Vinay Kirti Singh, Advocate For the respondent no. 5 : Mr. L.P.K. Rajgrihar, Advocate ------------- 05. 13.07.2011 The petitioner questions the audit report as contained in Memo dated 2.7.2009 (Annexure-5) and the energy bill raised pursuant thereto for the month of July, 2009 for an amount of Rs. 11,83,357/- as contained in Annexure-9. With the consent of the parties the matter has been taken up for disposal at the stage of admission. The petitioner a proprietorship firm was initially a consumer of electrical energy under the L.T.Is. category. The initial connection was for a lesser demand but subsequently it was enhanced and by agreement dated 27.12.2003 the connected load was fixed at 99 HP. On 22.3.2006 the petitioner applied for enhancement of his connected load to 120 HP under the high tension category. The application was submitted together with requisite fee. 2 According to the petitioner under the relevant rules the respondents were obliged to provide him with the enhanced load within a period of 30 days from the date of application but it was not so done and it took almost six months for the respondents to inform the proprietor of the petitioner regarding completion of formalities as noted and informed vide Memo No. 1824 dated 29.9.2006, for enhancement of load to 120 HP. While endorsing a copy to the Electrical Executive Engineer a further direction was given to him to visit the site jointly with the Electrical Executive Engineer. MRTP Division and inspect the load for which the petitioner had desired enhancement. It took another six months before an inspection was carried out at the premises of the petitioner in the light of the directions contained in Memo dated 29.9.2006 placed at Annexure-1. The inspection report dated 9.3.2007 is placed at Annexure-3 to the writ petition and the detail of the load found available at the premises of the petitioner measured 141.5 HP. The inspection report nowhere mentions whether the load was connected or was being used. It only mentioned the details of load at the premises of the petitioner. The inspection report was followed by HT agreement entered into between the petitioner and the Bihar State Electricity Board on 24.5.2007. While executing the agreement it was mutually agreed between the parties that the date of commencement of supply would be with effect from March, 2007 apparently for the reason that the inspection had 3 been carried out on 9.3.2007. The HT agreement is placed at Annexure-7 to the writ petition. Since after the inspection and the execution of agreement and the commencement of supply under the agreement, no dispute arose between the parties and the petitioner on his part continued to pay the energy charges in terms of the bill raised by the respondent Board. It is two years since thereafter that an audit objection came to be raised from the office of the Accountant General, Bihar, Patna as contained in its Memo dated 2.7.2009 placed at Annexure-5 to the writ petition. The Accountant General proceeding on the premise that the load as recorded in the inspection report dated 9.3.2007 (Annexure-3) was indeed a connected load and that the petitioner at the relevant time having a connection under the LTI category for a connected load of 99 HP had exceeded the sanctioned/contracted load/demand contrary to the L.T.Is agreement, indulged in mal practices and thus under the relevant rules he was required to be charged bill at thrice the existing rates under the Tariff, for the entire period of mal practice. It was further observed that in case the period could not be established the relevant period would be taken as six months prior to the detection of such mal practice which according to the Accountant General was detected on 9.3.2007. The Accountant General also calculated compensatory bill for the period in question i.e. September, 2006 to February, 2007 being six months prior to the date of inspection which was held 4 on 9.3.2007 and arrived at an amount of Rs. 11,83,357/-. The respondent Electricity Board proceeding from where the Accountant General had concluded, raised a punitive bill for an amount of Rs. 11,83,357/- on 12.8.2009 placed at Annexure-9 to the writ petition and impugned herein. Learned counsel for the petitioner submits that the entire action of the respondent authorities is behind the back of the petitioner and in complete disregard of the principles of natural justice inasmuch as the petitioner was never afforded any opportunity either by the Accountant General before raising the audit objection or by the respondent Board before raising the impugned bill as contained in Annexure-9. Learned counsel submits that the provision of Section 126 of the Indian Electricity Act, 2003 has two pre-conditions to be satisfied before any allegation of mal practice or irregularity could be attributed to consumer. He submits that at the time of inspection the alleged load either has to be found connected or to be in use. He submits that the enquiry report dated 9.3.2007 as contained in Annexure-3, nowhere indicts the petitioner of either of the situations inasmuch as neither the report mentions that the load was found connected nor the petitioner was found using the load which was found available within the premises of the petitioner. He further submits that the audit objection has been raised in a presumptuous manner without holding any fact finding enquiry. It is contended that the respondent Board has mechanically 5 proceeded on the audit objection raised by the Accountant General and has raised the impugned bill without satisfying itself as to the existence of the pre-requisites to raising of a punitive bill. It is stated that any consumer who applies for an enhanced load has to purchase machinery for which such application is being made and the respondents themselves being alive to the situation have vide letter dated 29.9.2006 directed the Electrical Executive Engineer concerned to verify the desired load and it is in this background that the enquiry report certifies the availability of load of 141 HP without any allegation of the load being either connected or being used. It is thus contended that not only the audit objection is unsustainable, being based on assumption and presumption but even the punitive bill as contained in Annexure-9 cannot be sustained being a product of such presumptuous finding. Mr. Vinay Kirti Singh opposing the contentions of the petitioner submits that the inspection report is in fact a certification of the load being connected and being used and that it is for this reason that the petitioner agreed to enhancement with effect from the date of inspection i.e. 9.3.2007 and thus there is no infirmity either in the audit objection report or in the bill raised pursuant thereto. He submits that the finding of availability of 141 HP load at the premise of the petitioner itself proves that the same was connected and that the petitioner was using energy contrary to his L.T.Is agreement. Learned 6 counsel submits that Clause 16.9 of the Tariff provided for action to be taken in case the consumer is found exceeding the contracted load without specific permission and the same provision could be found in Section 126 of the Electricity Act, 2003. He submits that the availability of the load of 141 HP at the time of inspection on 9.3.2007 itself certifies that the petitioner was consuming energy at a higher rate soon after filing of his application for enhancement of load on 22.3.2006 and thus was liable to pay for this mal practice as he did not wait for the final order sanctioning the contracted load. Learned counsel in support of his contention that the likes of the petitioner who were indulging in mal practice in the matter of consumption of electricity contrary to the contracted demand, should not be granted indulgence under the discretionary jurisdiction, relied upon the following judgments; (i) 1999(1) P.L.J.R. 466 (Bihar State Electricity Board & Ors. Vs. M/s Sri Bir Ispat), paragraph 6 & 8; (ii) 1999(2) P.L.J.R. 665 (Shiv Shambhu Hard Coke Vs. Bihar State Electricity Board & Ors.). He submits that the petitioner himself had paid an amount of Rs. 7 lakhs towards the enhanced charges and had also requested for installment in relation to the balance payment and in these circumstances no interference is called for in the audit report or in the bill raised by the Board. Learned counsel Mr. L.P.K. Rajgrihar for the 7 Accountant General supporting the audit report submitted that the audit report is an opinion of the Auditor to be examined by the respondent Board. It is contended that on the basis of the materials supplied, the Accountant General had came to a conclusion that as the load found available in the premises of the petitioner was yet to be sanctioned, hence he was liable to pay the punitive amount for consumption of energy contrary to the contracted demand under the L.T.Is. category. Mr. Rekhi in reply submitted that an installed load and a connected load are two distinct situations and that an installed load does not suffice an existence of a situation of the load being connected or being in use. He submits that in absence of these clear finding of fact, the respondent authorities of the Board have mechanically raised the bill and forced the petitioner to pay the same under the threat of disconnection. Mr. Rekhi repelling the argument of Mr. Vinay Kirti Singh that the HT agreement dated 24.5.2007 as contained in Annexure-7 under which the petitioner had agreed to pay the enhanced bill with effect from March, 2007 impliedly meant consumption of energy at an enhanced load, submits that the condition was mutually agreed between the parties for the reason of inspection having taken place on 9.3.2007. I have heard learned counsel appearing on behalf of the parties and have perused the materials available on the record of the proceedings. Clause 16.9 of the Tariff then 8 existing as well as Section 126 of the Electricity Act, 2003 indicts a consumer only in circumstances where an installed enhanced load is found connected and being used by a consumer contrary to the agreement in force. In the present case it is not in dispute that the petitioner had applied for enhancement of his load as back as on 22.3.2006 and apparently in anticipation of sanction had procured machinery for installation to the extent of the enhanced load. The direction as contained in the letter dated 29.9.2006 requiring the Electrical Executive Engineer to inspect the premise of the petitioner for ascertainment of the desired load by itself shows that the petitioner had to be in possession of the machineries to the extent of the enhanced load as applied by him. It is this factual position which was required to be verified by the respondents under the directions contained in letter dated 29.9.2006. The very fact that the inspection report dated 9.3.2007 present at Annexure-3, does not even whisper of the said load being either connected or being used, absolves the petitioner from any accusations of mal practices. In fact since after the execution of the agreement on 24.5.2007 until 2.7.2009 i.e. more than two years thereafter, no questions were raised in this context and it is only under the audit objection that the Board found itself empowered to proceed against the petitioner. Despite the legal position as regarding the status of audit report, remaining well settled by judgments of this Court 9 as well as the Supreme Court and more appropriately dealt in a case reported in A.I.R. 1979 SC 1780 (Indian and Eastern Newspapers Vs. The Commissioner of Income Tax), but yet the Board instead of examining the audit report at its own level in the backdrop of the legal provisions and the facts situation, mechanically proceeded to raise the impugned bill. The application of mind by the authorities of the Board leaves much to be desired. Raising a punitive bill is a stigma on the consumer and cannot be carried out in such mechanical manner on the basis of an audit objection which is no more than an opinion as expressed by an Auditor. The opinion so formed by the Auditor requires its confirmation against the statutory provisions and the facts situation available in a particular case. There being complete absence of application of mind either at the level of the Accountant General in forming the opinion or at the level of the Board while raising bill, as well as there being complete absence of a finding either in inspection report or any document that the load applied for by the petitioner and found within his premises at the time of inspection on 9.3.2007 was either connected or was being used, the exercise of power by the Board in raising the impugned bill as contained in Annexure-9 is completely in excess of jurisdiction and cannot be sustained. In the result, this application is allowed. The audit objection as contained in Annexure-5 as well as punitive bill as contained in Annexure-9 are quashed and set aside. Any 10 amount deposited by the petitioner towards the punitive bill would be adjusted against his current/future bills. In the circumstances, however, there shall be no order as to costs. S.Sb/- (Jyoti Saran, J.)