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Judgment
B. P. DHARMADHIKARI, J.
1.Heard Shri M. G. Bhangde, learned Senior Advocate with Shri Mayank Agnihotri, learned counsel for the petitioners and Shri R.E. Moharir, learned
counsel for the respondents.
2.Oral leave to join successors of respondent No.1 granted. Necessary amendment be carried out immediately.
3.Shri Moharir, learned counsel waives notice for added respondents.
4.Petitioner, a consumer of electricity from original respondent No.1 - Maharashtra State Electricity Board (Now through successors) questions the
appellate order passed by respondent No.2 in both the matters. The challenge is basically on two counts. First contention is about the maximum
demand for which the electricity charges have been demanded and second contention is about the period of being levy of such charges. About
maximum demand, it is pointed out that in appeal filed by Appellate Authority, without there being any cross-objection and of its own, enhanced the
contract demand to the prejudice of the appellant.
5.Alleged theft by petitioners is the cause for revised demands in both the matters.
6.In Writ Petition No.1916 of 2004, the meter was inspected on 23.05.2002 when it was found tampered in Writ Petition No. 1917 of 2004, flying
squad paid the visit on 19.10.2000 when meter was found tampered.
7.For the purpose of convenience, we have heard arguments in Writ Petition No. 1917 of 2004 first and thereafter, in Writ Petition No. 1916 of 2004
as period involved in that writ petition is prior to period in writ petition registered earlier.
8.After visit on 19.10.2000, a provisional bill was served upon petitioners on 30.10.2000. The amount claimed therein was Rs.1,09,40,028.99. On
12.12.2002, this bill was revised and amount claimed was brought down to Rs.33,23,177.67.
9.The petitioner then preferred an appeal before the Appellate Authority and to facilitate its considerations, he also filed written notes of arguments. In
written notes of arguments, it was specifically pleaded that in last inspection undertaken on 10/10/2000, everything was found in order and therefore,
period of assessment ought to have been from 10.10.2000 to 19.10.2000 only. In respect of maximum assessed demand, again submission was it could
not have exceeded 300 KVA and the billing officer erred in accepting the said demand to be 428 KVA. After considering these contentions, the
Appellate Authority has passed the impugned order on 10.09.2003. This order is questioned in Writ Petition No. 1917 of 2004.
10.Reliance specifically is upon the Departmental Circular Commercial No. 579 dated 15.02.1997 and Annexure - A and clause providing procedure
for assessment in case of pilferage therein. Clause-I (a) therein is pressed into service which reads as under :-
Clause-I (a) - Demand Charges :- ""For the purpose of assessment of maximum demand for the month, contracted demand of the consumer or 60% of
the connected load at the time of inspection whichever is higher shall be taken as maximum demand and billed accordingly.
11.Clause (ii) in the said Circular is also relied upon to substantiate contentions that period of such assessment on account of pilferage, must be clearly
established. Said Clause reads as under :-
Clause (ii) :- ""The period of assessment has been prescribed as the period during which pilferage takes place and can be clearly established but
subject to a maximum of three years.
12.Inviting attention to the impugned order, contentions impugned order erroneously accepts maximum demand to 570 KVA and period of pilferage to
be 6.5 months.
13.The support is being taken from the Judgments in the State of Kerala Vrs. M/s. Vijaya Stores , reported at case of The (1978) 4 SCC 41 and in the
case of Ashok Kumar Nigam Vrs. State of Uttar Pradesh & Anr., reported at (2016) 12 SCC 797 to buttress above submission.
14.In Writ Petition No. 1916 of 2004, learned Senior Counsel points out that in inspection on 23.05.2002 and meter was found tampered and revised
bill has been sent on 29.05.2002. The final bill has been then issued on 27.06.2002. It was appealed against and appeal has been decided on
22.01.2003.
15.When this appeal is pending on 07.11.2002, petitioners demanded data collected by respondents through meter reading instrument. Said data could
have brought on record correct picture about tampered load, etc. Similar request was also made in pending appeal. However, no such data was
supplied to the petitioners or it was not made available even for use by Appellate Authority.
16.Appellate Authority has passed the impugned order on 22.01.2003. Again, ignoring contract demand of 300 KVA or relevant provisions to assess
maximum demand, it has been taken to be 417 KVA and period of assessment is taken from April, 2001 to May, 2002. The findings by the said
authority are read out to demonstrate that specific contention raised by petitioners about no fault found by MRI till 26.04.2002 has been conveniently
ignored. Submission is this period of pilferage in present matter at the most could have been from 26.04.2002 up to 23.05.2002.
17.It is submitted that in absence of MRI data, the Appellate Authority has given an evasive or wrong finding that being Steel Industry, MRI reports
may not give proper picture. The Appellate Authority, therefore, found that period of assessment taken from April 2001 to May 2002 is in order.
18.To demonstrate prejudice to petitioners because of non-production of MRI, plea specifically raised in paragraph 3 of Appeal Memo is pressed into
service. Our attention was also invited to User Manual placed on record as Annexure-4, particularly tamper list displayed on meter ""and system error
displayed on meter"" when MRI is used to explain importance of MRI.
19.Contention is thus, in impugned order in Writ Petition No. 1916 of 2004, the Appellate Authority has avoided to discharge its obligation by calling for
MRI data and has taken wrong period as period of pilferage and also assessed maximum demand erroneously.
20.Shri Moharir, learned counsel has submitted that chart placed on record in both the petitions shows actual connected load and relevant dates and
those demands are in excess of contracted demand or connected load. He, therefore, submits that clause on which petitioners have placed reliance in
an effort to demonstrate that the contract demand only needs to be looked into in present facts is unsustainable. The connected load according to him
here means the load found at the time of inspection. He submits that here maximum load found at the time of inspection, has been looked into
correctly by the Appellate Authority. Similarly, he states that period has also been appropriately evolved by Appellate Authority and there is no
jurisdictional error or perversity.
21.In relation to two rulings, relied upon by the Senior Counsel, Shri Moharir, learned counsel submits that the appeals are before Superior Authority
on administrative side and that authority is, therefore, bound to look into the necessary circulars or guidelines which regulate the preparation of
demands. He contends that principles laid down by the Hon'ble Apex Court may be relevant while considering the demands of tax or other revenue
demands on judicial or quasi-judicial side.
22.He also adds that electricity supply to petitioners has been permanently discontinued since 2015 as the industry has been closed down and
respondents have to recover amount in excess of Rs.7,00,000/- from them.
23.In these matters, on 28.04.2004, this Court has permitted respondents to withdraw amount of Rs.10,00,000/-. It appears that an amount of
Rs.10,00,000/- was directed to be deposited while granting circulation to petitioners on 19.04.2004 by recording order accordingly on circulation slip
itself. This amount of Rs.10,00,000/- has been appropriated by respondents towards their demand. Later order dated 06.07.2004 reveals statement by
respondents that amount of Rs.43,04,148/- was then outstanding. This Court has recorded that amount of Rs.50,00,000/- was already paid by
respondents. Out of balance amount, Court directed petitioners to deposit amount of Rs.20,00,000/- in installments of Rs.5,00,000/- and electricity
supply was directed to be restored.
24.Court records do not, thereafter, show any grievance by the petitioners that electricity supply was not restored or any grievance by respondents, an
amount of Rs.20,00,000/- was not so deposited.
25.Today, Shri Moharir, learned counsel has submitted that an amount of Rs.7,00,000/- is only outstanding from the respondents.
26.The legality of demand notices is to be looked into in the backdrop of Departmental Circular (Commercial) dated 15.02.1997 supra. The relevant
portion i.e. provisions therein are already extracted by us above. The period of pilferage needs to be established and action for such theft is possible
only for specific period which is ascertained. Though period may be ascertainable, there is outer limit of three years but said limit is irrelevant for our
purposes.
27.In Writ Petition No. 1917 of 2004, the period for which action is taken is from 04.04.2000 to 19.10.2000. The contention that on 10.10.2000 Testing
Division visited the establishment of the petitioner and on that day there was no error or theft, is not met with. In written notes of arguments filed
before the Appellate Authority, this inspection on 10.10.2000 has been highlighted. The impugned order does not record any reasons for reaching the
period prior to 10.10.2000 and up to 04.04.2000. The Appellate Authority has taken note of report of visit dated 04.04.2000 and observed that on that
day seals provided to meter box, meter body, CT PT box etc. were in good condition. However, there is no finding that on 10.10.2000, they were not
in proper condition.
28.Insofar as the demand charges are concerned, assessment of maximum demand for the month assumes importance. As per clause (I)(a), such
maximum demand can be either contracted demand of consumer or 60% of the connected load at the time of inspection, whichever is higher. There is
no dispute that contradicted demand of the petitioner was always 300 KVA.
29.In the impugned order, however, the Appellate Authority takes note of the highest recorded demand i.e. 570 KVA in March 2000 and utilizes it for
the purposes of finalizing charges as mentioned in clause (I)(a) supra.
30.The charts on record show 300 KVA to be contracted demand and 276 KW as connected load. The chart for the month of March 2000 shows
KVA to be 570. For December 1999 it is 336; for April 2000 it is 301 and for October 2000 it is 262. 570 KVA, therefore, may be actual connected
load in March 2000. The inspection was on 19.10.2000 and hence we fell to understand how this 570 KVA in March 2000 can be accepted as
connected load in terms of clause (I)(a) supra. Clause (I)(a) applies to case of theft or pilferage and, therefore, calls for strict interpretation. It permits
contracted demand to be used, however, if 60% of the connected load at the time of inspection is higher, such figure of 60% can be taken into account
for the purposes of assessment of maximum demand. In view of this express provision, as there is no discussion or reasons on record, we are not in a
position to uphold the act of the Appellate authority in falling back on March 2000 load and treating it as the maximum demand. The Appellate
authority, however, has accepted 570 KVA itself as maximum demand in stead of working out 60% thereof. 60% was worked out by the first
authority and that authority, therefore, billed at 428 KVA. The maximum demand may also need to be correlated with the period for which pilferage is
clearly established. If said period in present matter is from 10.10.2000 and up to 19.10.2000, even on that ground, the act of reaching month of March
2000 for assessing maximum demand, cannot be sustained.
31.In Writ Petition No. 1916 of 2004, documents particularly letter dated 07.11.2002 clearly show an effort made by the petitioner to obtain bills of
tamper data, load survey data procurred by the respondents through meter reading instrument software. This communication dated 07.11.2002 sent to
the Chief Engineer (Commercial) of respondent No. 2 or then production of such documents sought in appeal, is not in dispute. Appeal has been
decided almost two months after such demand by the petitioner. In Appellate order, the period of assessment is taken from April 2001 to May 2002
and assessed maximum demand is 417 KVA. Again this is not supported by necessary reasons.
32.Before the Appellate authority, the petitioners specifically urged that MRI report does not show any fault till 26.04.2001. The petitioner, therefore,
contended that period of assessment can be only from 26.04.2001 till 23.05.2002. The fact of MRI reports were not made available by the
respondents is not in dispute. In spite of this, the Appellate authority has not recorded any finding on this assertion and has treated the period starting
from April 2001 onwards till 23.05.2002 as the period for assessment. The Appellate authority has found that there was clear evidence of presence of
artificial means to extract energy. Relevance or impact of this fact on present controversy is not very apparent.
33.We need not go into technical aspects thereof but the Appellate authority also records that check meter was also suitably modified to avoid
detection of these unauthorized alterations. The Appellate authority felt that the petitioner might be using this method for long time. This discussion is
not sufficient to negate the assertion that on 26.04.2001, MRI did not show any fault. In any way, when best evidence was available with the
respondents, their omission to produce it, obliged the Appellate authority to draw adverse inference. However, the Appellate authority has found that
the petitioner, a Steel Rolling Mill, required large electricity and MRI report only may not given proper picture. Again why MRI report cannot give
proper picture is not clear to us.
34.While considering identical challenge in Writ Petition No. 1917 of 2004, we have found that period of theft must be clearly ascertained and the
maximum demand also needs to be worked out as stipulated in clause (I)(a). These provisions are not followed even in present matter.
35.The respondents have not shown to us any other provision which enables them to treat the actual load being used on the date of inspection as
connected load or then to ignore MRI data.
36.In view of these findings, we do not wish to look into judgments cited by the learned Senior Advocate and to answer the controversy whether the
Appellate authority could have permitted the respondents before it to challenge the finding against them or then suo motu alter a particular finding to
the prejudice of the appellant. We are not satisfied with application of mind in the appellate orders.
37.The orders passed by the Appellate authority in both matters are unsustainable. Accordingly, the same are quashed and set aside. However, it is
necessary to work out the exact responsibility and liability of the petitioner in the matter after finding out / ascertaining correct period and also applying
correct maximum demand. Hence, we restore the Appeals back to the Appellate authority for giving the parties fresh opportunity of hearing. Rights
and liabilities can be settled only thereafter.
38.The parties are directed to appear before that authority on 23.04.2018 and to abide by its further instructions in the matter. The Appellate authority
shall attempt to decide both the matters as per law within next three months.
39.Writ Petitions are thus partly allowed and disposed of. Rule accordingly. However, in the facts and circumstances of the case, there shall be no
order as to costs.