HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CWP No.4528 of 2010 (O&M) Date of Decision: May 30, 2011 **** M/s. RK Weld Pvt. Ltd. . . . Petitioner VS. Punjab State Electricity Board & Ors. . . . Respondents **** CORAM : HON’BLE MR.JUSTICE SURYA KANT **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? **** Present: Mr. Puneet Jindal, Advocate for the petitioner Mr. Sukhbir Singh, Advocate for the respondents **** SURYA KANT J. (1) The petitioner industry seeks quashing of the Assessment order dated 3rd February, 2010 as also the Enforcement Checking Report dated 2nd February, 2010 (Annexures P9 & P2, respectively) which are alleged to be an outcome of the mala fide inspection and/or misuse of powers by respondent No.4. The petitioner also seeks a mandamus to direct the respondent-authorities of erstwhile Punjab State Electricity Board (in short, ‘the Board’) to supply documents demanded by it vide letter dated 6.2.2010 and subsequent reminders dated 9th February, 2010, 13th February, 2010 and 5th March, 2010, respectively. A further direction for restoration of the electricity– supply to the LS-8 connection of the petitioner’s industry has also been sought. CWP No.4528 of 2010.doc - 2 – (2) The petitioner-company set up an industry in the year 1988-89 and got Large Supply Electricity Connection in the year 1996. The electronic meter and the metering equipment including the Current Transfer (CT)/the Potential Transfer (PT) are said to have been replaced with the improved computerized electronic meter, with a 70 days memory, in the year 2004. The petitioner’s electric connection bears A/c No.LS-8 with a sanctioned load of 544-600 KW. It is averred that the CT/PT equipment has been installed at the factory premises in a specially-designed metallic cup-board, leaving no possibility of an internal access until and unless the lead and the paper seals are broken/open end. (3) The petitioner’s further case is that the electronic meter installed at the factory premises is like a computer and the entire data is duly recorded in its memory. The data includes half-hourly consumption in terms of Ampere and other vital information including the tampering with the data. The Senior Executive Engineer – Mobile Meter Testing Squad (in short, ‘the MMTS’) downloads the information stored in the electronic meter every month/bi-monthly and this data remains with the respondent- authorities. It is claimed that the petitioner’s electronic meter has been subjected to periodical inspections and each time it was found in order/OK. Such an inspection was held as late as on 12.1.2010 also. (4) A team of the Officers of the Board is said to have visited the petitioner’s factory premises on 1st February, 2010 and affixed CWP No.4528 of 2010.doc - 3 – certain paper seals. The Sr. Executive Engineer (Enforcement), Khanna visited the factory premises on 2nd February, 2010 purportedly in compliance with the telephonic orders issued by the Vigilance Cell. Although all the seals affixed were found OK and intact, he opened the CT/PT chamber and found that the consumer after peeling off the insulation of secondary wires of the RYB (Red, Yellow and Blue) CTs, had inserted a thin wire in order to short- circuit which amounted to ‘theft of electricity’. The Senior Executive Engineer MMTS, Mohali was also present there who downloaded the data from the meter on that very day and reported that the meter was recording less 54.24% less consumption. These facts are duly incorporated in the reports of Enforcement and MMTS placed on record as ‘Annexure P2 & P2/A’. (5) The petitioner alleges that not only did the Senior Executive Engineer (Enforcement), Khanna have any authority or jurisdictional competence to inspect the premises of the petitioner at Rajpura (District-Patiala), but the inspection was also carried out by him with a pre-conceived notion and he deliberately leaked the false report to various newspapers on the very next day along with the photographs of the Inspection Team claiming that the petitioner-Company was found indulging in the theft of electricity and a penalty of Rs.1.5 crores had been imposed on it, besides registration of FIR under Section 135 of the Electricity Act, 2003. CWP No.4528 of 2010.doc - 4 – (6)The petitioner-Company was thereafter served with a provisional assessment order dated 03.02.2011 (Annexure P9) calling upon it to deposit a sum of Rs.2,05,83,705/- for the unauthorized use and theft of the electricity, within a period of seven days. (7) The petitioner-Company instead of submitting its objections against the Assessment Order and/or availing the alternative remedy of appeal under the Act, has approached this Court, primarily, raising a legal issue that the Sr. Executive Engineers (Enforcement) & (Operation) at Khanna were totally incompetent to carry out the inspection and the entire exercise undertaken by them is unauthorized and illegal. (8) The above-stated contention is founded upon Section 135 (1-A) & (2) of the Electricity Act, 2003 (in short, ‘the Act’) read with the Punjab Government notification dated 17.01.2005 (Annexure P7) and the Punjab State Electricity Regulatory Commission (Electricity Supply Code and Related Matters), Regulations, 2007 (Annexure P6) (in short, ‘the 2007 Regulations’). (9) Section 135(1) of the Act defines “Theft of Electricity” as an offence and the consequential penalties and it reads as follows:- “135. Theft of electricity. – (1) Whoever, dishonestly, - (a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee or supplier, as the case may be; or CWP No.4528 of 2010.doc - 5 – (b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or (c) damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed as to interfere with the proper or accurate metering or electricity; or (d) uses electricity through a tampered meter; or (e) uses electricity for the purpose other than for which the usage of electricity was authorized, so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or with both. Provided that in a case where the load abstracted, consumed or used or attempted abstraction or attempted consumption or attempted use – (i) does not exceed 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction the fine imposed shall not be less than six times the financial gain on account of such theft of electricity; CWP No.4528 of 2010.doc - 6 – (ii) exceeds 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction, the sentence shall be imprisonment for a term not less than six months, but which may extend to five years and with fine not less than six times the financial gain on account of such theft of electricity. Provided further that in the event of second and subsequent conviction of a person where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use exceeds 10 kilowatt, such person shall also be debarred from getting any supply of electricity for a period which shall not be less than three months but may extend to two years and shall also be debarred from getting supply of electricity for that period from any other source or generating station. Provided also that if it is provided that any artificial means or means not authorized by the Board or licensee or supplier, as the case may be, exist for the abstraction, consumption or use of electricity by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of electricity has been dishonestly caused by such consumer.” (10)Section 135(2) of the Act lays down that “any officer of the licensee or supplier as the case may be, authorized in this behalf by the CWP No.4528 of 2010.doc - 7 – State Government may enter, inspect, break open and search any place or premises in which he has reason to believe that electricity has been or is being used unauthorisedly…..”. Similarly, Section 135(1-A) of the Act empowers the disconnection of supply of electricity upon detection of the theft of electricity and the power to disconnect the supply line is conferred upon an officer of the licensee or supplier authorized for the purpose by the Appropriate Commission, or an Officer of higher rank. (11)The State of Punjab in exercise of its powers under Section 135 (2) of the Act has issued the Notification dated 17.01.2005, which reads as follows:- “DEPARTMENT OF POWER (ENERGY BRANCH) The 10th January, 2005 No.1/13/04-EB(PR)/23 – In exercise of the powers conferred under Section 135(2) of the Electricity Act, 2003, the Governor of Punjab is pleased to designate the following Officers of the Punjab State Electricity Board for the implementation of the provisions under Section 135(2) of the aforesaid Act in the State in their respective power distribution areas of the Punjab State electricity Board, as Enforcement Officer to enter the consumer premises for checking/inspecting the same as here under:- SCHEDULE Sr. No. Category of Connection Authorised Officer CWP No.4528 of 2010.doc - 8 – A. OPERATION OFFICERS: (i) All domestic/Non- Residential Connection/AP, SP and Medium/Large/ Bulk up to 500 KW Load (ii) Large and bulk supply beyond 500 KW and railway traction supply Any Officer of Operation wing not below the rank of AE (within his jurisdiction) Any Officer of Operation wing not below the rank of Sr. XEN (within his jurisdiction) B. ENFORCEMENT OFFICERS: (i) All categories of consumers with loads up to 500 KW (ii) All categories of consumers with loads above 500 KW Any Officer of Enforcement wing not below the rank of AEE (within his jurisdiction) Any Officer of Enforcement wing not below the rank of Sr. XEN (within his jurisdiction) C. MMTS OFFICERS: Medium supply/large supply and bulk supply Any officer of MMTS wing not below the rank of Sr.XEN (within his jurisdiction)” (12)The Punjab State Electricity Regulatory Commission has also notified the 2007 Regulations vide Notification dated 29th June 2007 and Clause 2(e) thereof, defines the “Authorised Officer” to mean an “Officer of the Licensee authorized by the State Government under sub-section (2) of Section 135 of the Act.” (13)It is, thus, amply clear that an Officer of ‘Operation’ or ‘Enforcement’ Wings not below the rank of Senior XEN is competent to enter, inspect and search etc. any place or premises within his jurisdiction in which he has reason to believe that the electricity has been or is being used unauthorizedly. CWP No.4528 of 2010.doc - 9 – (14)The petitioner’s contention is that the then Senior XENs, ‘Enforcement’ & ‘Operation’, posted at Khanna, had no territorial jurisdiction in terms of the Government notification dated 17.1.2005, reproduced above, to enter, inspect or search the factory premises of the petitioner as the same is located at Rajpura (District Patiala) which is outside the territorial jurisdictional area of the Officers posted at Khanna. (15)The respondents have controverted the petitioner-company’s claim firstly by way of reply/affidavit dated 18.3.2010, maintaining that the Chief Engineer (Enforcement) of the Board has got jurisdiction throughout the State of Punjab and it was under his verbal orders dated 02.02.2010 issued to the Senior XEN (Enforcement), Khanna and Senior XEN, MMTS, Mohali that the premises of the petitioner-Company was searched/inspected. Reliance has been placed on the Board’s Circular dated 11.10.2007 (Annexure R1) whereby the Chairman, Members and all Officers of the Board (within the area of their jurisdiction) have been authorized and declared competent to depute officers/officials for any checking outside their normal jurisdiction also either verbally or in writing. (16)The respondents have also filed para-wise detailed written statement raising a preliminary objection against the maintainability of the writ petition as a dis-satisfied consumer is entitled to submit his objections against the Provisional Assessment Order within 15 days under Regulation 37.2(c)(i) of the 2007 Regulations. It is also explained that the meter installed in CWP No.4528 of 2010.doc - 10 – the factory – premises of the petitioner was checked on 2.2.2010 by Senior XEN Enforcement, Khanna and Senior XEN, MMTS Mohali “in the presence of Senior XEN Operation Division, Rajpura” as well as the authorized representative/Director of the petitioner- Company. The entire inspection was carried out in the presence of Ramesh Kumar – the Director of the petitioner-Company who signed the report, a copy whereof was also supplied to him. It is explained in detail as to how the petitioner-company manipulated with the computerized meter and tampered with it as shown in the photographs (Annexure R1 & R2) also. It is also maintained that the relevant information sought by the petitioner-company was duly supplied vide memo dated 20.4.2010 which included the information regarding composition of the Inspection Team comprising the following:- i. Sh. Parminder Singh, Sr. Xen/MMTS, Mohali; ii. Sh. Rattan Deep Singh, Sr. Xen/Enforcement, Khanna. iii. Sh. Rajinder Singh Sarao, Sr. Xen/Operation, Rajpura iv. Sh. Lakhwinder Singh, SDO, West, Rajpura (17)The respondents, after the conclusion of the arguments and the order reserved, have placed on record an affidavit dated 25.4.2011 of Rajinder Singh Sarao, Additional Superintending Engineer Coordinator APERD Works, South PSPL Patiala; the paragraph 2 whereof reads as follows:- CWP No.4528 of 2010.doc - 11 – “That the deponent was posted as Sr. Executive Engineer, Operation Division, Rajpura on 4.11.09. The checking of the premises of the petitioner was conducted by Sr. Executive Engineer, Enforcement Khanna and Sr. Executive Engineer, MMTS, Mohali on 2.2.2010. The checking was done in the presence of the deponent. The main checking of the detection of theft was done by Sr. Executive Engineer, Enforcement, Khanna whereas the checking of the meter on different loads was conducted by all the three Sr. Executive Engineer, including the deponent. The deponent has also signed the checking report of the other Executive Engineers.” (Emphasis applied) (18)The petitioner besides filing rejoinder to the written statement has also filed an ‘amended’ writ petition to place on record some more documents as well as to implead Rattan Deep Singh, the then Senior XEN Khanna as a party respondent No.5. The amended writ petition has been taken on record and the additional averments made therein have also been considered. (19)At the outset it is clarified that notwithstanding the impleadment of the then Senior XEN Enforcement, Khanna as a party- respondent in his personal capacity, no notice has been issued to him nor is it required for the reason that no previous animosity or an incident of bias is attributed to him at all. The so-called mala CWP No.4528 of 2010.doc - 12 – fide exercise of power by the said officer is essentially legal in character and requires no personal explanation by him. (20)There also appears to be some substance in contending that the amended writ petition is merely a ruse to delay the adjudication of these proceedings as there is an interim direction in favour of the petitioner regarding restoration of the electricity connection on deposit of Rs.25 lacs only. Be that as it may, the legal issues raised by the petitioner and noticed above, can be effectively addressed without any reference to the allegations of the legal mala fide or the alleged abuse of powers by the members of the Inspecting Team. (21)In order to appreciate the above-noted contention and while re- stating that Section 135(1) defines ‘theft of electricity’ only, it would be useful to reproduce Section 135(1-A), (2), (3) & (4) of the Act which reads as follows:- “Section 135. (Theft of Electricity): --- [(1) Whoever, dishonestly, -- (a) to (e) xxx xxx xxx (1A) Without prejudice to the provisions of this Act, the licensee or supplier, as the case may be, may, upon detection of such theft of electricity, immediately disconnect the supply of electricity: Provided that only such officer of the licensee or supplier, as authorized for the purpose by the Appropriate Commission or any other officer of the licensee or supplier, as the case may be, of the rank higher than the CWP No.4528 of 2010.doc - 13 – rank so authorised shall disconnect the supply line of electricity: Provided further that such officer of the licensee or supplier, as the case may be, shall lodge a complaint in writing relating to the commission of such offence in police station having jurisdiction within twenty four hours from the time of such disconnection: Provided also that the licensee or supplier, as the case may be, on deposit or payment of the assessed amount or electricity charges in accordance with the provisions of this Act, shall, without prejudice to the obligation to lodge the complaint as referred to in the second proviso to this clause, restore the supply line of electricity within forty-eight hours of such deposit or payment. (2) [Any officer of the licensee or supplier as the case may be,] authorized in this behalf by the State Government may – (a) enter, inspect, break open and search any place or premises in which he has reason to believe that electricity [has been or is being,] used unauthorisedly; (b) search, seize and remove all such devices, instruments, wires and any other facilitator or article which (has been, or is being), used for unauthorized use of electricity; (c) examine or seize any books of account or documents which in his opinion shall be useful for CWP No.4528 of 2010.doc - 14 – or relevant to, any proceedings in respect of the offence under sub-section (1) and allow the person from whose custody such books of account or documents are seized to make copies thereof or take extracts therefrom in his presence. (3) The occupant of the place of search or any person on his behalf shall remain present during the search and a list of all things seized in the course of such search shall be prepared and delivered to such occupant or person who shall sign the list: Provided that no inspection, search and seizure of any domestic places or domestic premises shall be carried out between sunset and sunrise except in the presence of an adult male member occupying such premises. (4) The provisions of the Code of Criminal Procedure, 1973, relating to search and seizure shall apply, as far as may be, to searches and seizure under this Act.” (Emphasis applied) xxx xxx xxx (22)Sub-Section (2) of Section 135 is essentially procedural as it lays down the functional mechanism to be followed by the licensee or a supplier to detect the ‘theft of electricity’ within the meaning of Section 135(1) of the Act. The object of permitting an Officer authorized by the State Government to enter, inspect, break-open or search any place or premises, is to prevent multiplicity of such like actions causing undue harassment to the consumer as also to CWP No.4528 of 2010.doc - 15 – prevent contradictory conclusions/reports which may give undue benefit to a consumer otherwise found indulging in the theft of electricity. Keeping this legislative intentment in view, there arises no difficulty in concluding that an Officer authorized by the State Government as well as his superiors has the authority and competence to act under Section 135(2)(a) to (c) of the Act. (23)Adverting to the Government notification dated 17.01.2005 (Annexure P7), it is significant to note that any Officer “not below the rank of Senior XEN”, which obviously includes every officer above that rank, has been authorized to act under Section 135(2) (a) to (c) of the Act. The phrase “within his jurisdiction” is attached to an officer in the rank of Sr. Executive Engineer and is not a restriction to be applied against even those officers who are higher in rank and status. In the instant case, the premises of the consumer has been checked/inspected at the instance of the Chief Engineer (Enforcement) of the Board who enjoys upon jurisdiction throughout the State. The authorization given to the Chairman, Members of the Board or Officers like Chief Engineers to carry out search/inspection in whole of the State, is consistent and in consonance with the Government Notification dated 17.01.2005 as each one of them is higher in rank than an Executive Engineer (XEN). (24)That apart, in the facts and circumstances of this case, the above- stated issue has been otherwise rendered academic for the reason that the report submitted by the Inspection Team admittedly CWP No.4528 of 2010.doc - 16 – prepared at the spot and a copy whereof given to the Director of the petitioner-Company then and there, is duly signed by the Senior XEN (OP) Division, Rajpura. The report conclusively establishes that the said Officer was also an integral member of the Inspection Team which carried out the surprise check at the factory premises of the petitioner-Company. The Senior XEN (OP), Rajpura was, even according to the petitioner, competent to exercise powers under Section 135(2) of the Act as per the Government notification dated 17.01.2005. To remove any sort of doubt sought to be created by the petitioner during the course of hearing, Rajinder Singh Sarao, the then Senior XEN (OP) Division, Rajpura has stated on Oath by way of his affidavit dated 25.04.2011 (reproduced in para 17 of this order) that the entire checking was done by the Senior XEN (Enforcement), Khanna in his presence and he participated in the checking of the meter. (25)The only irresistible conclusion would be that firstly the Senior XENs (Enforcement) & (Operation), both posted at Khanna, were competent to act within Section 135(2)(a) of the Act in respect of the factory premises of the petitioner-Company as they had been so authorized by the Chief Engineer (Enforcement) of the Board who exercises jurisdiction throughout the State; secondly, the Senior XEN (OP), Rajpura within whose territorial jurisdiction the factory premises of the petitioner is located, himself being a member of the Inspection Team there is a substantial compliance CWP No.4528 of 2010.doc - 17 – of the Government Notification dated 17.01.2005 read with Section 135(2)(a) of the Act. The contention raised on behalf of the petitioner regarding lack of competence of the members of the Inspection Team to carry out the search/inspection operations on 02.02.2010, having no legal or factual basis to support, is hereby rejected. For the same reasons, the allegations of mala fide leveled against one of the member of the Inspection Team cannot be accepted and are hereby rejected. (26)There is yet another aspect of the matter. In my considered view, Section 135(2) of the Act does not confer any right on a consumer who is suspected of indulging in theft of electricity within the meaning of Section 135(1) of the Act. It merely lays down a procedural mechanism to be followed by the Authorised Officer(s). So long as it is not proved that any serious prejudice has been caused to a suspect of theft of electricity, the writ court being a court of equity shall not invoke its jurisdiction to rescue a wrong- doer as it would be detrimental to the larger public interest. If the liberal interpretation sought to be given by the petitioner to the phrase “within his jurisdiction” mentioned in the Government Notification 17.01.2005 is accepted, does it mean that the entire State apparatus shall remain helpless in a given case where the Senior XEN having jurisdiction, fails to detect the theft of electricity or does not want to report against the consumer indulging in such a theft? The answer has to be in the negative. CWP No.4528 of