IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14213 of 2009 1. KAMALJEET SINGH S/O SRI HARBANS SINGH PROPRIETOR HANS PAL HOTEL, BUDHA MARG, P.S. KOTWALI, DISTT.- PATNA VERSUS 1. THE BIHAR STATE ELECTRICITY BOARD THROUGH ITS CHAIRMAN, VIDYUT BHAWAN, BAILEY ROAD, PATNA 2. THE CHAIRMAN BIHAR STATE ELECTRICITY BOARD, VIDYUT BHAWAN, BAILEY ROAD, PATNA 3. THE SECRETARY BIHAR STATE ELECTRICITY BOARD, VIDYUT BHAWAN, BAILEY ROAD, PATNA 4. THE ELECTRICAL EXECUTIVE ENGINEER PESU, DAK BUNGLOW, PATNA 5. THE ASSISTANT ELECTRICAL ENGINEER PESU, DAK BUNGLOW, PATNA ----------- Advocate for the Petitioner : Mr. N.K. Agarwal, Sr. Adv. Mr. Binod Kr. Sinha-2. Advocate for the B.S.E.B. : Mr. Anand Kr. Ojha ----------- 04 03.12.2009 It is not in dispute that petitioner has a non domestic commercial electric supply from Patna Electric Supply Unit (PESU), the unit of Bihar State Electricity Board (B.S.E.B.). On 18.04.2009 petitioner in writing informed the authorities of PESU that there was some fire at the metering point, it should be looked into immediately. On this information officials of the PESU including the Assistant Engineer, who is one of the authorities specified to make assessments in case of unauthorized use of electricity and theft of electricity visited petitioner’s premises on - 2 - 18.04.2009 itself. They found that the two polycarbonate seals of the meter were broken and the hologram of the seal also appeared to be tampered. On basis of this alone, the meter was removed and with these allegations an F.I.R. was lodged claiming that petitioner was indulging in theft of electricity and had caused a loss of Rs.8,99,000/- to the Board. A provisional assessment for the said amount was served on the petitioner. Petitioner challenged the same before this Court. This Court directed the petitioner that on depositing of Rs.2 lacs for restoration of line, to file his detail objections before the Assessing Authority, who would pass appropriate order. Petitioner appeared before the Assessing Authority and pointed out the fact as aforesaid. It also raised the ground that mere broken and/or tampered seal cannot lead to conclusion of tampered meter. Admittedly, it was not found that any artificial device was used to - 3 - interfere with the metering equipment nor it was found that meter was being bypassed by any means. Here, I may point out the second proviso to Sub-section 135 and does draw a presumption of theft of electricity but that is limited to cases where artificial means or means not authorized by the Board are found to exist. Here no such allegation being there even the statutory presumption of theft does not arise. Then, merely because seals were found tampered, there is no legal or factual presumption that it would be a case of meter tampering and as such a case of theft of electricity. It was then submitted that the last meter reading was done less than a month back, no report of either meter tampering and/or still tampering in any manner and as such if at all the period of theft could only go as far back as the date of last meter reading while passing the final assessment order by the Assessing Authority. So far as the second - 4 - contention is concerned, the Assessing Officer brushed it aside holding that the meter reader was not required to verify the seals. I have my serious doubts in this regards. If seals are found broken or tampered with, he is duty bound to report the same information. Not reporting the same would only lead to the presumption that there was no seal tampering when reading was taken. So far as first aspect is concerned, the Assessing Authority has not cared to discuss the same. There is yet third consideration. The meters are electronic meters which records all incidence including any attempt to tamper, the same, these are stored in the microchip contained therein. If all definite information is available then in stead of relying on definite information, can the authorities be permitted to work on conjectures and surmises. In my view, these are questions which had to be considered in their proper perspective. - 5 - Be that as it may, in terms of Section 135(1-A) and in particular the third proviso thereof, it is provided that the assessment has to be done in accordance with the provisions of the Act. Section 135 itself does not provide the mode and manner of assessment. The mode and manner of assessment is provided under Sub-section (5) of Section 126 of the Act. It is those provisions that would apply. Thus, the assessment is made in terms of Section 126(5), which assessment is appealable in terms of Section 127 to the Appellate Authority. Section 127 does not restrict the appellate jurisdiction in any manner to exclude assessment in theft cases. I must also notice that Sub-section(4) of Section 127 provides that order of the Appellate Authority referred to in Sub-section (1) passed under Sub-Section(3) shall be final. This finality is final, so far as the party and the authorities are concerned, so long as the criminal case - 6 - is pending trial but if one refers to the power and procedure of Special Court under Section 154 of the Act, it would be seen that the ultimate authority to determine the civil liability against the consumer for theft of energy is upon the Special Court, which is the Criminal Court in terms of Section 154 (5). How that has to be calculated is also provided therein. Thus, it is after a full trial and with all evidence on record that the Special Court would assess the civil liability. Then Sub- section(6) of Section 154 provides that the civil liability so determined finally by the Special Court if found less than the amount deposited by the consumer then the excess amount deposited will be refunded. This deposit by consumer would have a reference now to Section 127(4). Thus, if the Appellate Authority in terms of Section 127 determines any amount in quasi judicial proceedings that would give way to the determination by Special - 7 - Court in a judicial proceeding. That is the scheme of the Act and there not any contradiction or conflict. Mr. Ojha, learned counsel for the B.S.E.B. has pointed out that in some manner the Bihar Electricity Supply Code, 2007 appears to be different where it does not contemplate an appeal against final order of assessment in terms of Section 126 of the Act in theft cases. In my view, the Bihar Electricity Supply Code is a Code issued with reference to Section 181, section 50 and other Sections of the Act. It is a piece of a subordinate legislation that cannot alter and/or override the substantive provision of the Electricity Act. It is only to implement the provisions of the Act that the Supply Code has been made. To the extent of inconsistency with the Act, the Supply Code must be read down and I do so accordingly. The scheme of the Act, as aforesaid, would apply and prevail. - 8 - Thus, there being an appellate forum available to the petitioner, petitioner would be well advised to prefer an appeal, as contemplated under Section 127 of the Act. However, because of pendency of the writ petition the period of 30 days, as envisaged under Section 127 (1) of the Act, for entertaining appeal has long since expired. The Appellate Authority is directed to entertain the appeal on merit, if it is filed within one month from today. It is also directed to pass orders after hearing the parties, taking into account the observations as made above and deciding all the issues as required by the Act. The petitioner would deposit 50% of the finally assessed amount, as reduced by amount already paid, while filing the appeal. With the aforesaid observations and directions, the writ petition stands disposed of. Trivedi/ (Navaniti Prasad Singh, J.)