IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15653 of 2008 M/S SURYADAYA INDUSTRIES PVT.LIMITED having its works 3rd phase, Industrial Area, Fatuha, District-Patna appearing through its Director Ujjawal Agarwal s/o Sri Gridhari Lal Agarwal, resident of Urvashi Apartments, Kankarbagh Road, P.S. Patrakar Nagar. ........ Petitioner Versus 1.BIHAR STATE ELECTRICITY BOARD appearing through its Chairman Bailey Road, P.S. Kotwali, Town & District-Patna. 2.The Head, Special Task Force, Bihar State Electricity Board, Bailey Road,P.S. Kotwali, Town & District-Patna. 3.The Electgrical Superintending Engineer, Patna Electrical Circle, R- Block, P.S. Sachivalaya, Town & District- Patna. 4. The Electrical Executive Engineer, Fatuha Electric Supply Division, Fatuha, District- Patna. 5.The Assistant Electrical Engineer, Fatuha Electric Supply Sub-division, Fatuha. ....... Respondents ----------- 6 17.11.2009 Petitioner has a low tention connection from the Bihar State Electricity Board at the Industrial Estate at Fatuha. It has a sanctioned load of 90 HP. A load verification inspection was done by the Special Task Force on 4.7.2008, in the after noon. A detailed report was drawn up. A copy of the said report was handed over to the representative of the consumer. In the said report it was clearly mentioned that there was no meter tampering /bypassing. The meter seals were intact .Thus, it was not a case of electricity theft nor was the meter found bypassed. It was a pure and simple case of installation having connected load more than the sanctioned load. On inspection they found that the total load was 129 HP whereas 25.5 HP was found installed but not connected. Effectively thus there was only 103 HP installed load as against sanctioned load of 90 HP. As against this a provisional assessment was done for the entire 129 HP. A 2 provisional assessment bill for Rs. 5.10 lakhs was served on the petitioner demanding immediate payment plus additional security of about Rs. 42,900/- was demanded. This is what brought the petitioner to this Court challenging the aforesaid action. On behalf of the petitioner Mr. S.S.Rekhi, Advocate, has submitted firstly that as per the inspection report itself 25.5 HP though installed was not connected and as such could not be taken into consideration The bill ,at best, could have been drawn for 103 HP and not at 129 HP i.e. for excess of 13 HP load. The second contention was that in terms of Section 163(2) of the Electricity Act, 2003, Board being a licensee its officers could not inspect the premises to inspect apparatus of the consumer without permission of the Executive Magistrate and not without 24 hours notice and the inspection thus carried out is nullity for violation of statutory provision. His third submission is that the assessment of connected load is wrong. The inspection report does not disclose as to how the total load was calculated .Whether it was on the basis of the manufacturer’s base plate or whether the Board’s employees had measured it and as such the report could not be acted upon. His fourth contention was that in terms of Regulation 6.37 to Regulation 6.42 dealing rating of installations, the petitioner had a right to object to the rating and the licensee was obliged to get it re-tested by an approved institution. No institution having been approved for this purpose, the protection which has been given to the consumer having been denied by the Board no punitive action could be taken. On the other hand, a counter affidavit has been filed and 3 Mr. Vinay Kirti Singh , learned Advocate appearing on behalf of the Board submits that so far as the first contention is concerned, indeed the provisional assessment was wrong. He has annexed a revised provisional assessment, a chart contained in Annexure A, which clearly admits that the calculations are now rightly based on 103 HP and the demand is Rs. 3.32 lakhs. Thus the demand has come down by Rs. 2 lakhs on exclusion of 25.5 HP of unconnected load. Thus, the grievance of the petitioner so far as first submission is concerned, has been met. Coming to the question of rating, Mr.Vinay Kirti Singh submits that the inspection report was prepared in presence of the consumer. He has received the same after signing the same and as such it is not open to the consumer to dispute the same. So far this argument is concerned, I am unable to persuade myself to accept the submission of learned counsel for the Board. The signature of the consumer on inspection report is to the fact of receiving the report and not to the authenticity or correctness of the report or the contents of the report as drawn up by the authorities. The signature of the consumer appended does not bind the consumer as to the contents of the report rather it is only in respect of receipt thereof. Thus, the authorities are still bound to establish the correctness of the report , as drawn by them. This is more so, when authorities exercising statutory power and drawn statutory report, the consumer has no option but to sign it. Consumer is not a technical person to make any appraisal then and there. His signature is only proof of having received the report. Thus, merely because petitioner received the report could not be 4 conclusive of what is written in the report. It is because of this fact that certain rights are provided to consumer because if once the report signed by the consumer was the ultimate document then no dispute could be raised as against the inspection. The statute/ regulation itself contemplates dispute and thus denied finality to the inspection report. Now coming to the objection on behalf of the consumer that in terms of Section 163(2) of the Electricity Act, 2003, an inspection conducted in violation thereof would be a nullity. Firstly, let me clear a misunderstanding. Inspections are done for verifying unauthorized use of load or unauthorized use of electricity which may include theft of electricity. If Mr. Rekhi’s submission is correct and is to be accepted then it amounts to giving 24 hours notice to a thief about inspection. That is not the legislative intent. A thief is not to be noticed, that too on order being taken from the magistrate and waiting for 24 hours after notice, the whole purpose of inspection would be defeated. The legislative intent is that where an inspection is opposed then an order from the executive magistrate would bind the consumer to allow inspection. Power to inspect and inspection for theft of electricity is an inherent power of licensee and an adjunct to the license. This power cannot be denied. The whole concept of inspection for prevention of theft or misuse of electricity would be defeated if Section 163(2) has to be followed in that manner in all cases. Thus the argument of Mr.Rekhi cannot be accepted and is rejected. Next we come to the arguments in regard to regulation 6.37 to 6.42 of the Bihar Electricity Supply Code, 2007. That deals 5 with rating of installations. It provides for resolution of dispute. Those are questions of fact which cannot be resolved by this Court in these proceedings. For that an independent appellate authority is there and he is an officer independent of the Board. Once a provisional assessment is done, time is given to a consumer to file his objection. After considering the objection the final assessment is made. If the consumer is dissatisfied with this final assessment he has statutory remedy of appeal to the appellate authority, so notified. The petitioner thus has two remedies. One by way of filing objection to the provisional assessment where he can dispute and raise issue of facts including dispute rating of installations. That would be require to be resolved before final assessment is done. If consumer is still aggrieved he has remedy by way of appeal where again all question of facts and factual dispute are to be resolved. Both at the final assessment stage and at the appellate stage, the authorities are competent and by law required to go into and resolve the controversy of fact. There is no presumption against the correctness or otherwise of an inspection report . Law gives opportunities to the consumers to dispute what is there in the inspection report. Thus, the grievance of the petitioner now be raised before the authority competent to make final assessment and if further aggrieved it would be open to him to approach the appellate authority, which is a statutory remedy. The demand, as made, now stands rectified and now the petitioner would be required to file his objection to the provisional assessment which has already been served on him on or about 19.10.2007. Before parting with this case I would like to point out 6 that as per Bihar Electricity Supply Code, 2007 and the regulation referred to above, one of the approved method of resolving rating dispute is measurement by an independent institution as approved by the Board. Mr. Rekhi points out that till date no institution has been so approved for resolving of such dispute. If what is Mr. Rekhi states is correct, it is indeed a regrettable state of affairs . The statutory protection, which is available to the consumer is with-held. An independent body which could have acted as a safe guard for consumer, which is not permitted to act. If any such institution is approved by the Board, the same must be notified and published in daily news paper in public interest, so that consumers all over the State know where they can get the dispute resolved independently any away from the wageries of the Board officials. With the aforementioned observations and directions, this writ petition stands disposed of. Singh (Navaniti Prasad Singh, J.)