IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 15996 of 2009 1. M/S ZEE SAHEB COSMETIC ZONE null THROUGH ITS PROPRIETOR MR. RAJIV RANJAN GUPTA SITUATED IN SHOP NO. 15, 16, 17 AND 18 OF THE BUILDING KNOWN AS HARIHAR CHAMBERS IN BORING ROAD, P.S.- BUDHA COLONY, DISTT.- PATNA, BIHAR 2. RAJIV RANJAN GUPTA S/O SRI DINANATH GUPTA R/O P.O.- EAST BORING CANAL ROAD, P.S. BUDHA COLONY, DISTT.- PATNA, BIHAR, PROPRIETOR OF M/S ZEE SAHEB COSMETIC ZONE A PROPRIETORSHIP FIRM PETITIONER NO. 1 Versus 1. THE BIHAR STATE ELECTRICITY BOARD THROUGH ITS CHAIRMAN BAILEY ROAD, PATNA 2. THE GENERAL MANAGER CUM CHIEF ENGINEER PATNA ELECTRICAL SUPPLY UNDERTAKING MANGLES ROAD, PATNA 3. THE ELECTRICAL EXECUTIVE ENGINEER NEW CAPITAL PESU, PATNA 4. THE ASSIST. ELECTRICAL ENGINEER (S) ELECTRICAL SUPPLY SUB-DIVISION, NEW CAPITAL CUM THE SO CALLED ASSESSING OFFICER ----------- 3 21.12.2009 Petitioner No 1 is the firm name and style of the shop of petitioner No 2 at Boring Road in the district of Patna. For the purposes of the said shop, in April 2006, an electric connection was taken from Patna Electric Supply Undertaking (PESU), an undertaking of the Bihar State Electricity Board under consumer category NDS II which was a three phase low tension connection for a sanctioned load of 14 KW under Account No 41801150/346162. On 28.04.2008, the Special Task Force (STF) of the Board conducted an inspection of the petitioners’ premises and, taking into account all load connected, they came to the conclusion that petitioners had an installed load of 14.836 KW which was rounded off to 15 KW and, thus, allegedly had an excess load of 1 KW. Accordingly, petitioners were served with a bill for additional load of Rs 6,044/- and asked to pay additional amount for load enhancement both of which petitioners paid. It 2 may be noticed here that the said inspection report has been annexed as Annexure-7 to the supplementary affidavit filed on behalf of petitioners after copy of it was served on the counsel for the Board immediately after arguments were concluded on the next day. The inspection report shows that there were 5 air conditioners of 1.5 tonnes, the total load of which was taken to be 10 KW (at the rate of 2,000 Watts each). On 09.02.2009, again an STF inspection was carried out in the petitioners’ premises. This time, it was alleged that there was meter tampering. A report was drawn up which is part of Annexure-C/1 to the counter affidavit of the Board. In the report, it would be seen that the total load was shown to be 14.240 and taken to be 15 KW. In the report, the inspecting authorities are alleged to have tested the meter which showed substantial reduction in meter recording. It was, accordingly, alleged that meter, being tampered, it was a case of theft of electricity in terms of Section 135 of the Electricity Act, 2003. At this juncture itself, one may note one important aspect of the said report dated 09.02.2009. Here again, it is clearly noted that there were 5 air conditioners of one and a half tonne each (as found in the earlier inspection dated 28.04.2008). But this time its load was assessed at the rate of 2500 Watts each but as per report, the total load was shown as 10,000 Watts as in the past. This I am taking note of because subsequently, while raising bills, authorities have corrected the figure 10,000 to 12,500. Thus, 3 an enhancement of 2,500 Watts was done for the same machines which were found in the earlier report and billed accordingly. As later would be seen, petitioners’ contention would be that because of this enhancement, they have been wrongly assessed at 17 KW instead of 15 KW load found. That makes a substantial difference. Consequent to the said inspection, on 09.02.2009, the meter was removed and Buddha Colony Police Station Case No 27 of 2009 instituted for an offence punishable under Section 135 of the Act. While lodging the first information report, which is part of Annexure-C/1 to the counter affidavit, it is alleged that because of theft, Board has suffered a loss of about Rs 6,47,666/-. On 10.02.2009, a provisional assessment bill totalling to Rs 7,08,145/- is served. Alongwith this, a chart of calculation was also served. The two are Annexures-3A and 3B. This provisional bill is as a matter of punitive assessment as allegedly provided under Section 135 of the Act and includes fixed charge of Rs 8,160/- and cost of new meter, Rs 5,000/- alongwith punitive assessment after adjustment of Rs 6,94,985.18 P. Petitioner filed a writ petition before this Court being CWJC No 3309 of 2009. While the writ petition was pending, on 08.04.2009, petitioners were again served a similar bill with calculation chart being Annexures-3A and 3B respectively based on assessment of load found at 17 KW. The writ petition was finally disposed of by order dated 30.04.2009 (Annexure-4/A) wherein this Court observed that in terms of the Act and the provisions of the Bihar Electricity Supply Code 2007, 4 petitioners had a right to object to the provisional assessment which had been filed (on or about 15.04.2009) and petitioners would appear for hearing on 12th May, 2009 when the authorities should make final assessment after considering their objection. It was further ordered that on part payment, as mentioned in the order, the electric line of the petitioners would be connected. It has so been reconnected. It appears that petitioners’ detailed objection, being there filed during pendency of the writ petition and the writ Court having directed to hear the matter on 12.05.2009, the matter was taken up but, for some unexplained reason, it took six months for Board to make the final assessment. The bill for final assessment dated 03.11.2009 and the order is annexed as Annexures-5 and 5/A respectively. In the final assessment, a very partial relief has been granted to the petitioners whereby the number of days have been reduced by 50 days and the period of consumption has been reduced by half an hour per day otherwise basically the calculation appears to be the same and now, as per final assessment which is said to be under Section 135 of the Act and not under Section 126 of the Act, the total amount payable is demanded at Rs 6,81,441/-. It may be noted that in the interregnum, though petitioners were being raised bill on basis of the new meter connected, but the provisional bill amount was shown as arrears and delayed payment surcharge levied for the outstanding amount which is evident from Annexure-6. This would also be a point to 5 be considered. Petitioners have challenged the aforesaid final assessment. The first argument on behalf of petitioners is that by showing punitive assessment as under Section 135 of the Act, the petitioners are deprived of their other remedies to challenge the punitive assessment which could only be done, according to the petitioners, in the trial but till then, they would have to bear with it. This, it was submitted, was arbitrary. The counsel for the Board submitted to the similar effect that the assessment was not in terms of Section 126 of the Act and, as such, there could be no appeal against the said punitive final assessment. Having heard the parties at length, in my view, both the petitioners and the Board are wrong. This issue has already been decided by this Court in the case of Kamaljeet Singh –Versus- Bihar State Electricity Board and Others in CWJC No 14213 of 2009 by judgment and order dated 03.12.2009. I may only elaborate the same once again. In my view, the assessment in case of unauthorised use of electricity which includes theft of electricity is specifically provided under Section 126 of the Act. In clear terms, Section 135 (1-A) of the Act provides in its third proviso as follows : “135. Theft of electricity.- … … … (1-A) … … … Provided also that the licensee or supplier, as the case may be, on deposit or payment of the assessed amount or electricity charges in accordance with the provisions of this Act, shall, without prejudice to the obligation to 6 lodge the complaint as referred to in the second proviso to this clause, restore the supply line of electricity within forth-eight hours of such deposit or payment.” From this provision of Section of Section 135 of the Act, it would be seen that it, by itself, does not provide for assessment but provides for assessment in accordance with provisions of this Act and the comprehensive provision for assessment is contained in Section 126 of the Act and, in particular, sub-sections (5) and (6) thereof. Section 126 of the Act deals with provisional assessment and then provides for final assessment within 30 days of provisional assessment by virtue of sub-section (3) of Section 126. Then we have Section 127 which provides that any person aggrieved by final order, made under Section 126 of the Act, may, within 30 days, appeal to the appellate authority as may be prescribed on payment of half of the assessed amount. Thus seen, in every case of unauthorized user of electricity which includes theft, notwithstanding Section 135 of the Act, assessment has to be made under Section 126 which is appealable to the appellate authority under Section 127 of the Act. Here, I may note one another aspect. Section 127 of the Act provides that the order of the appellate authority would be final. Though Section 127(4) makes such an order of the appellate authority final, it must be kept in mind that this is a determination in a quasi judicial proceedings of liability but when we refer to provisions of Section 154 (5) of the Act, it would be seen that once a criminal case is lodged then it would be the special Court, 7 which is the Criminal Court, which has to determine the civil liability against the consumer in terms of money for theft of energy and sub-section (6) of Section 154 provides that if a consumer had deposited any amount in excess of the calculation as made by the Special Court, the same shall be refunded alongwith interest. Thus, it would be seen that so far as authorities are concerned, the determination made by them is final in the quasi judicial proceedings as before them. That is subject to a judicial determination in theft cases upon evidence in a trial by Special Criminal Court whose finding would supersede that of the authorities under the Board. This is the scheme and, as such, in all matters of assessment of unauthorized user of electricity including theft assessment has to be made in terms of Section 126 of the Act and the same is appellable in terms of Section 127 of the Act which order would ultimately be subject to determination by the Special Criminal Court in terms of Section 154 (6) of the Act. Thus, the petitioners are not remediless against the final assessment. At this stage, I may note one fact. If we refer to Section 126 of the Act, it would be clear that within 7 days of the inspection, provisional assessment has to be made. The consumer has then to be given an opportunity to file objection and in terms of Section 126 (3), final assessments have to be passed. The facts of present case would show that first a provisional assessment is done on 10.02.2009 then on 08.04.2009 again, a provisional 8 assessment is done. Petitioners filed objection on or about 15.04.2009 and then for six months, Board goes into deep slumber for some unexplained reason to pass the final order of assessment on 03.11.2009 and serves the final bill on 10.11.2009, all contrary to the provisions of the Act. Another important aspect here is as petitioners have brought out that in between provisional assessment and final assessment, the provisional assessment figures are shown as dues in the bills of every month and delayed payment surcharge levied. This clearly is impermissible. Till a final assessment is done, unless petitioners themselves agree to accept the provisional assessment, there are no dues on basis of any other punitive assessment. The said amount cannot be included in the bills of subsequent month till final assessment is done. To that extent, the delayed payment surcharge would have to be excluded. Another misconception that has been carried even to the Bihar Electricity Supply Code, 2007 appears to be that it indirectly provides that as against an assessment made with reference to Section 135 of the Act, in case of theft, there is no appeal. That is clearly contrary to the provisions of the Act and to that extent, the Supply Code cannot be given effect to and must be read down. Even, as per the Supply Code, it would be seen that the assessment both in case of Sections 135 and 126 of the Act has to be made as per the same Annexure-7 to the Supply Code. The only difference is that in matters of theft, it provides the connected load factor as 9 one in cases of direct theft. Otherwise there is no difference. Another fallacy in the calculation, which is noticeable, is with regard to the relief of amount given while making punitive assessment. From the calculations appended in support of punitive assessment, it would be seen that first, the total deemed consumed unit are calculated. From that instead of subtracting the units already billed in the period, what is done is a money value of the punitive units are then calculated at twice the rate and from that the money value paid earlier is reduced. This is wrong for punitive billing is at twice the rate of normal billing. The relief is to the extent it is billed and, thus, the punitive billing would be for units not billed. Thus, in all such cases, it is only the unit difference between units punitively billed as reduced by units already billed and this difference would be charged at the punitive rate and not otherwise as has been done. Then again it is not explainable as has been noticed earlier in the judgment that when the first inspection was carried out on 28.04.2008 by the STF, they took the cumulative load of the 5 air conditioners of 1.5 tonnes to be 10,000 Watts but now the same 5 air conditioners of 1.5 tonnes are assessed to be 12,500 Watts. This, by itself, has enhanced the calculatable load from 15 KVA to 17 KVA obviously materially affecting the liability. Petitioners then point out that the last inspection of STF being on 28.04.2008, the period of punitive billing had to be as between that period and the next inspection dated 09.02.2009 10 which is less than 315 days as calculated. It is then further submitted that the number of days would further get reduced because, admittedly, the premises supplied is a shop, a commercial establishment which has a mandatory weekly closure. That has to be given credence to and cannot be ignored. In my view, now that the final assessment has been done, though belatedly, petitioners must raise all their objections before the appellate authority in terms of Section 127 of the Act who would hear the parties and decide the matter in accordance with the observations made in this order and in accordance with law. Court is informed that the appellate authority is a person independent of Board and, thus, petitioners should not have any apprehension of bias of any type in this regard. Before parting, I must notice one other aspect as well. While lodging the first information report on basis of the punitive calculation, it is alleged that the punitive calculation amount, the provisional assessment was the loss caused to the Board. This is a complete misnomer and wrong. It is not even an assumed loss caused to the Board for the simple reason that even if the punitive units are deemed to be consumptions then in normal event, Board could charge as per tariff and that would be exactly half of the amount as reduced by units already consumed because punitive billing is done at an assumed twice the rate. That surely cannot be the loss. Thus found, the petitioners must now prefer an appeal to 11 the appellate authority who would entertain the same and consider all objections that are raised by the petitioners and decide the matter accordingly. By now, petitioners have already paid a substantial amount of the punitive bill. If they have not paid 50% thereof, they would make up the deficiency while filing the appeal but would not be required to pay any thing for filing the appeal if they have paid more than 50% of the punitive bill. The appellate authority would decide the case on merit as the delay in filing appeal is because of pendency of this writ petition before this Court. With these observations and directions, the writ petition stands disposed of. M.E.H./ (Navaniti Prasad Singh)