CWP No.6887 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P.No. 6887 of 2008 Date of decision 12 .5.2008 Punjab State Electricity Board ...Petitioner Versus Addl. Deputy Commissioner (General), Bathinda and another ... Respondents. CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MRS. JUSTICE SABINA Present: Mr.Sukhbir Singh, Advocate for the petitioner. M.M.KUMAR, J. The Punjab State Electricity Board (for brevity 'the Board') has challenged order dated 30.1.2008 ( Annexure P.4) passed by the Appellate Authority cum Addl. Deputy Commissioner, Bhatinda under the Electricity Act, 2003. The Appellate Authority has set aside the order dated 11.10.2007 passed by the Addl. Superintending Engineer directing the payment of penalty of Rs.9,59,514/-. The Appellate Authority has concentrated mainly on the issue that the calculation made by the Board and its officers is not in accordance with law and the policy of the Board. It also rejected the argument of the petitioner Board that appellant- respondent no.2 did not have any locus standi to file the appeal. Dealing with the issue of calculation of penal amount the Appellate Authority referred to formula for the purposes of calculation of assessing the penalty of unauthorised use of electricity as provided in the Board's circular No. 53/2006 which is named as L X D X H X F. The Appellate Authority discussed in detail as to how CWP No.6887 of 2008 2 calculation is to be made and observed as under: “ 'L' stands for “Load” found connected during the course of inspection in KW. In this case, the Senior XEN (Enforcement 2) at the time of checking found the load of 60.874 KW of the disputed unit. The appellant in this connection draw my attention towards the checking memo. This memo reveals that during the course of checking 4D Rods and 3S Rods of welding sets were found in the premises. The checking authority calculated the load of D.Rods at 8.500 KVA (total load 34.000 KVA) and of S.Rod at 4.250 KVA (total load 12.750 KVA). The appellant contended that as per the ESR Manual para no.165.7.1 for working out connected load of welding set, the KVA rating should be multiply by 0.4 (power factor). By applying this formula the total load will be scaled down. In this case the total power factor of the welding sets have been calculated at 46.750 KW which is wrong. The counsel for the respondent did not contest the contention of the appellant. Therefore, this plea of the appellant is allowed. So far as calculating of load of the rest equipments is concerned, ld. Counsel for the appellant did not press any issue. Therefore, the authorities concerned are directed to take corrective measures for recalculating the total load of the unit by applying the policy of the Board mentioned in ESR Manual para no. 165.7.1 i.e. the connected load of welding sets, the KVA rating be multiply 0.4 (power factor) and the amount/ penalty be assessed on the basis of whatever the net power load is worked out. CWP No.6887 of 2008 3 'D' stands for 'Number of working days' per month during which unauthorised use/ theft is suspected. As per the circular in the case of non continuous industry, this factor will be considered at 25 days. The counsel for the appellant did not raise any objection on this account. Hence, it is held that number of working days per month will be treated as 25. 'H' stands for 'Use of Supply Hours per day'. The appellant contended that their industrial unit is single shift industry and as per circular, the factor of 8 hours is to be considered. But on the other hand, counsel for the respondent contended that this unit is a single unit industry rather it is non continuous process industry and as per circular the factor of 20 is to be taken into account the counsel for the appellant fails to establish their contention. No evidence to this effect has been led by the appellant. Therefore, the contention of the appellant on this issue is rejected and the factor of 20 hours as taken into account by the respondent is upheld. 'F' stands for 'Load Factor' which shall be taken for different categories for the use of electricity unauhtorisedly. Before considering this issue, both parties agreed that as per section 126(5) of the Electricity Act, 2003 a period of 6 months immediately proceeding to the date of inspection of this industrial unit is presumed to be the period during which such unauthorised use of electricity was continuing. As per the contention of the appellant, the connection of the industrial unit was disconnected on 12.8.2007. The impugned checking CWP No.6887 of 2008 4 was conducted on 11.10.2007. Before disconnecting the electricity connection of the unit, there was no pending bill. Therefore, instead of 100% load factor, only 60% load factor deserves to be taken into account. The ld. Counsel for the respondents contended that in the absence of any regular connection, it is a clear cut case of direct theft and as per the circular load factor @ 100% is to be taken into account while calculating the penalty in the case of direct theft. It is an admitted fact that at the time of checking on 11.10.2007, the connection of industrial unit was already disconnected on 12.8.2007. Prior to this date a regular supply of power was being given by the Board to this industrial unit. Therefore, it is held that the load factor @ 100% will be considered for the period 12.8.2007 to 11.10.2007 and @ 60% for the rest period of four months. Lastly, the assessment under Section 126(6) of the Act shall be made @ equal to one and half times of the tariff applicable in this case.” The Appellate Authority further directed the petitioner- Board to calculate the amount of penalty for unauthoised use of electricity by the appellant- respondent no.2 by keeping in view the following factors: “ 1.The load of the welding sets be calculated by multiplying 0.4 (power factor)as mentioned in the ESR para 165.7.1. 2.The load factor be calculated w.e.f. 12.8.2007 to 11.10.2007 @ 100% and for the rest period of four months @ 60%. 3.The whole exercise be done within 10 days from the date of CWP No.6887 of 2008 5 order. The excess amount, if any, paid by the appellant to the board, on the basis of recalculating the penalty, be refunded to him within 30 days from the date of order.” It is further pertinent to notice that the Appellate Authority rejected the contention concerning recovery of payment of interest on excess amount paid by the appellant- respondent no.2 by placing reliance on circular dated 2.5.2007 and the same reads thus: “ So far as the payment of interest on the excess amount deposited in the Board, is concerned, the ld. Counsel for the appellant contended that under Section 127(6) of the electricity Act,2003 interest @ 16% per annum compounded every 6 months is to be payable by the Board on the excess amount. But this contention of the appellant is not acceptable as this proviso is applicable only in the cases when a person default in making payment of assessed amount to the Board. On the other hand, the Board vide its CC No.17/07 issued vide memo no. 21400/ 22299/SSM -315 dated 2.5.2007 has settled interest rate of 11% per annum for payment/ recovery of interest on the disputed amount, for the financial year 2007-08. Therefore, the appellant is entitled for the interest @ 11% per annum on the excess amount paid by him to the Board, from the date of payment i.e. 11.10.2007 to the date of actual refund made to the appellant by the Board. The appeal is disposed of on the above terms. File be consigned in the record room and a copy of the order be sent to Addl. SE/OP. PSEB, City Division, Bathinda and the SDO/AEE, sub Urban, Sub Division, PSEB, Bathinda for CWP No.6887 of 2008 6 compliance.” We have heard the learned counsel for the petitioner Board at a considerable length and find that there is no legal infirmity in the order passed by the Appellate Authority. The calculations made by the petitioner- Board by keeping in view the total load of welding sets cannot be questioned because firstly the counsel for the Board did not contest the claim made by the appellant- respondent no.2 before the Appellate Authorityas is evident from the reading of para explaining the expression 'Load'. Likewise the unauthorised use of electricity has been dealt with by requiring the appellant- respondent no.2 that the load factor at 100% would be considered for the period 12.8.2007 to 11.10.2007. It is pertinent to notice that supply of electricity to the unit was disconnected on 12.8.2007 and inspection tookplace on 11.10.2007. For the rest of four months the load factor @ 60% has been ordered to be calculated. We do not find any merit in the submission that it was a case of theft of energy as is sought to be projected because there is no such finding recorded by the appellate Authority. The finding recorded is that it was unauthorised use of electricity which is entirely different than the theft of energy. We are satisfied that a fair and just order has been passed by the Appellate Authority and no interference of this Court is called for. The petitioner Board has not been able to show violation of any provision. The writ petition is wholly without merit and the same is dismissed. (M.M.Kumar) Judge (Sabina) 12.5.2008 Judge okg