IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.17699 of 2008 VIMALA PRASAD, W/o Ram Shankar Prasad,Proprietor Hotel Swagatam, Exhibition Road, Patna-petitioner Versus 1.THE BIHAR STATE ELECTRICITY BOARD through its Chairman, Vidyut Bhawan, Bailey Road,Patna 2.The Chairman, Bihar Electricity Board,Vidyut Bhawan, Bailey Road, Patna 3.The Secretary, Bihar Electricity Board, Vidyut Bhawan, Bailey Road, Patna 4.The electrical Executive Engineer, STF,Bihar Electricity Board, Vidyut Bhawan, Bailey Road Patna 5.The Electrical Executive Engineer, PESU, Dak Bunglow, Patna 6.The Assistant Electrical Engineer, PESU, Dak Bunglow, Patna----------------------respondents ----------- For the petitioner :M/S Y.V.Giri,Sr.Advocate S.K.Thakur,Advocate For the Electricity Board:Mr.Prakash Kr.,Advocate ----- 5. 3.3.2009 Heard learned counsel for the petitioner and learned counsel for the Bihar State Electricity Board. The petitioner seeks quashing of the provisional punitive bill dated 26.8.2008 for Rs.8,73,935/- which has been raised by the respondent Electricity Board for theft/pilferage of electricity. The further claim of the petitioner is for a direction commanding the respondents to revise the quantum of connected load from 22 KVA to 14 KVA and to restore the electrical connection of the petitioner. 2 The petitioner, who runs a Hotel in the name of Hotel Swagatam on Exhibition Road, Patna, is a consumer of the Bihar State Electricity Board under NDS-II category and the load was enhanced from 10 KW to 14 KW on 26.9.2005. The petitioner alleges that on 22.8.2008 the premises of the petitioner was visited by some persons posing themselves as members of the Special Task Force (STF) of the respondent Board who interfered and tampered with the meter and related equipments and also started pointing out the irregularities in the meter and demanding consideration for setting the things right. Since they could not show any proof of their identity when challenged by the staff of the petitioner-hotel they ultimately had to leave on being challenged as imposters. The petitioner claims to have immediately informed the Electrical Chief Engineer (Commercial) on 22.8.2008 itself but no receipt in respect of the petition dated 22.8.2008 was given. It is the case of the petitioner that the news regarding the visit of fake STF personnel in the petitioner’s premises spread immediately in the 3 neighbouring areas and the news was published even in the daily Hindi newspaper ‘Dainik Jagran’ in its issue dated 23.8.2008. The petitioner again sent the said information to the officials of the Electricity Board on the next day, i.e., on 25.8.2008 for which a receipt was granted. On 25.8.2008 a team of STF inspected the premises of the petitioner from 11.30 A.M. to 4.30 P.M. and found tampering with the meter and its seals. Thereafter an FIR was lodged in the Police Station on the same day against the petitioner for committing theft of electricity and tampering with the meter. On 17.9.2008 a provisional punitive bill showing the date of billing as 26.8.2008 was also given to the petitioner raising a demand of Rs.8,73,935/-. Learned counsel for the petitioner has assailed the action of the authorities on various grounds. It is firstly submitted that no case of theft is at all made out in the aforesaid facts of the case since whatever tampering of the meter has been done was caused by the fake STF team which had come on 22.8.2008. He further submits that the letter 4 regarding the same having been received by the Officials of the Board on 25.8.2008 the same should be treated at worst as a voluntary declaration of tampered meter under clause 11.4 of the Bihar Electricity Supply Code, 2007, which provides for declaration of tampered meter and for assessment in terms of the said provision. Learned counsel also challenges the finding regarding load of 22 KW recorded by the inspection team in its report since on the same equipments and apparatus on 26.9.2005 the load was enhanced from 10 KW to 14 KW. Lastly it is contended by learned counsel for the petitioner that the provisional punitive bill of Rs.8,73,935/- has been raised without passing any provisional assessment order in terms of paragraph 11.2.3 of the Bihar Electricity Supply Code and, thus, the petitioner has been debarred from exercising her right of objection under the said provision. Learned counsel also points out that in paragraph 9.15 of the Supply Code it is the duty of the meter reader to make an inspection 5 of the meter and its seals and if anything unusual is found the same should be reported to the higher authority, and since the last visit of the meter reader was on 5.8.2008, therefore, in terms of the said provision it is to be presumed that at least on 5.8.2008 there was no tampering with the meter and, thus, in the worst view of the matter the punitive bill could have been raised only for a period of twenty days. Learned counsel for the Electricity Board, on the other hand, submits that the entire story regarding the fake STF team having inspected the hotel premises of the petitioner on 22.8.2008 is imaginary with a view to escape her liability for tampering with the meter and even the newspaper report has been managed. It is submitted that there is no reason why receipt could not have been granted to the petitioner on the letter giving information on 22.8.2008 when on 25.8.2008 on the similar letter proper receipt has been granted by the authorities of the Board, which according to the learned counsel for the Board 6 goes to show that as a matter of fact no such letter had been sent on 22.8.2008. It is the case of the respondent Board that the petitioner only after the inspection of the STF team had sent the letter to the authority for granting receipt by the officials of the Electricity Board. It is, thus, submitted that the petitioner had committed theft of electricity by tampering with the meter and resorted to the above subterfuge in order to avoid the liability. On a consideration of the facts and circumstances of the case, this Court is of the view that since the FIR has already been lodged in the matter hence it would be for the criminal court concerned to decide the issues of facts raised in the present matter as to whether the petitioner had committed theft of electricity or not. So far as the civil liability is concerned, under Section 154(5) of the Electricity Act the Special court under the Electricity Act has also been given the power to determine the civil liability if it is found in the proceedings that theft of 7 electricity has been committed. In view of the fact that prima facie a defence has been taken by the petitioner which is corroborated by the news published in the newspaper two days prior to the actual inspection/raid by the STF team, therefore, at this stage, the petitioner is entitled to the protection to the extent that apart from Rs.1.10 lacs paid by her with respect to the provisional punitive bill no further amount is required to be paid by her and no coercive step shall be taken against her for non-payment of any further amount. So far as the civil liability of the petitioner is concerned, the same shall abide by the decision of the Special court under Section 154(5) of the Electricity Act. Under the orders of this Court the electrical connection of the petitioner has already been restored but learned counsel for the petitioner submits that the sanctioned load should not exceed 14 KW. Under the provisions of the Electricity Supply Code the petitioner can approach the authorities of the Electricity Board by making a proper application, who shall proceed accordingly and 8 after an inspection re-sanction the load according to the apparatus and equipments being used in the premises of the petitioner. Let the said matter be decided within a period of two weeks from the date of filing of an application by the petitioner before the authorities of the Board in this regard. The writ application is, accordingly, allowed in terms of the aforesaid observations and directions. (Ramesh Kumar Datta,J.) spal/