IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.17694 of 2008 (O&M) Date of decision:25.07.2011 Shamsher Singh son of Shri Labh Singh, Proprietor M/s Labh Auto Filling Station, Kheri Gurna, Tehsil Rajpura, District Patiala. ...Petitioner versus Punjab State Electricity Board, through its Secretary, The Mall, Patiala, and others. ....Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Ashwani Talwar, Advocate, for the petitioner. Mr. Vikas Chatrath, Advocate, for respondents 1 and 2. None for respondent No.3. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? No. 2. To be referred to the reporters or not ? No. 3. Whether the judgment should be reported in the digest ? No. ---- K.Kannan, J. (Oral) 1. The petitioner challenges the assessment made by the Electricity Board imputing theft of energy as having been committed by the petitioner for service connection to the petrol pump of which he was the dealer and the dhaba that was in the immediate proximity to the petrol pump. There is no issue for consideration as regards the procedural aspects of the levy since they have been properly adhered to Civil Writ Petition No.17694 of 2008 (O&M) - 2 - by making a provisional demand, allowing the petitioner to state objections within a week and taking a final decision and providing for a right of appeal to the Appellate Authority as well in the manner provided by the Act read with the relevant rules. I do not want to detain the case also for a consideration of whether the imputation of theft was correctly made, since it was admitted by the petitioner himself on a notice given to the petitioner that he had used a changeover switch and cast an additional load for the electricity connection availed to his installations. 2. It is only the fairness quotient in the demand that would require consideration in this case. The method of levying penal charges is again governed by rules, by formula to what has come to the recognized as LDHF where 'L' denotes load; 'D' denotes days, 'H' the hours for each day and 'F' the factor. The petitioner's counsel states that in the manner of levying the penalty, the Electricity Board has applied the average consumption as 20 hours and originally applied for 25 days in a month and further computed double the charges as the factor to realize the amount of fine payable by consumer. During the pendency of the petition when this Court had provided for a reconnection of electricity which was disconnected on assessment of theft of energy, the Electricity Board again made a revision of the fine purported to be on an audit objection that the number of days reckoned as 25 was not appropriate since it was a petrol pump and that the number of days must be taken as 30. Consequently, there was an increase in levy as fine that stood later at Rs.7,22,517/-. The petitioner has amended his prayer and challenged the additional levy as well. Civil Writ Petition No.17694 of 2008 (O&M) - 3 - 3. The learned counsel appearing on behalf of the petitioner would contend that the Electricity Board could not have escalated the claims on the alleged objection from Audit Section even when the issue of assessment of fine was a subject of challenge and when it was pending adjudication before this Court. I do not think that the objection is tenable, for, if the demand originally was made on a method of calculation that was at variance with the regulations, it was perfectly possible for them to make any alteration. It is not as if the petitioner had lost his right to make an objection for such an attempt to escalate the demand. The learned counsel is not able to point out to any defect in taking the number of days as 30 instead of 25 days especitally when it was not even attempted to be shown that the petrol pump was closed on any one day in a month and that he did not work for all the 30 days. The escalation made by taking the number of days as 30, cannot, therefore, be faulted. The amount as arrived at would require a reappraisal on a consideration of whether the authorities were correct in taking the values of 'L' , namely, the 'load' and the 'hours' appropriately. 4. The learned counsel for the petitioner points out that the electricity connection was originally under the rural feed where the average hours of supply were only 7 to 8 hours and it was later converted as urban feed only from 23th February, 2008. According to him, in a lesser number of hours of supply for 7 hours must have been considered by reducing the 'H' factor further from 20 hours as taken from the petrol pump and 12 hours as taken for the dhaba. I cannot accept this contention also since the counsel for the Electricity Board urges that Civil Writ Petition No.17694 of 2008 (O&M) - 4 - whether it is urban feed or a rural feed in the manner of imposition of penalty, there is no difference and they are entitled to take an average of electricity connection as supplied for 20 hours in a day for a petrol pump and 12 hours for dhaba. I, therefore, still find no reason to take a different view even with regard to the component of 'H' factor. 5. As regards the assessment of the 'load', the learned counsel for the petitioner argues that admittedly an additional load of 4 kilowatt was made only in December and the calculation made that the petitioner had sanctioned load of 10 kilowatt for the entire year from the date prior to the date when the alleged theft was discovered, was not justified. I would uphold this objection for so long as the sanctioned load remained only 6 kilowatt upto December and it was increased by another 4 kilowatt only from December upto April, 2008, the value of the load must have been taken only at 6 kilowatt upto December, 2007 and only from January, 2008, the additional load could have been taken as 4 and the valuation should have been worked out on that basis. I will not make any change with reference to 100% increase for the charges payable for the component of 'F', I retain the same since the formula conforms the commission of an offence of theft of energy. 6. The only modification that the levy of penalty must suffer would be to alter the load factor as 6/10 of what was already levied upto December 2007 and only for the subsequent period from January 2008, the value as presently taken for 4 months must be provided for. The Electricity Board shall make a fresh calculation and issue a demand and any amount that was paid before this Court shall be given due credit to. Civil Writ Petition No.17694 of 2008 (O&M) - 5 - If the altered demand falls short by what was already calculated by the new reckoning that has to be undertaken, the difference in amount shall be given appropriate credit against future electricity charges that will fall to be collected from the consumer. The impugned demands are quashed and remitted to the assessing authority, namely, the Assistant Executive Engineer, the 2nd respondent in the writ petition, who will take an appropriate decision in accordance with law and in the light of the observations made above. 7. The writ petition is disposed of as above. (K. KANNAN) JUDGE 25.07.2011 sanjeev