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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 1697 OF 2007
Maharashtra State Electricity Distribution
Company Limited,
A successor of the erstwhile
Maharashtra State Electricity Board,
Through its Dy. Executive Engineer,
O & M Sub-Division-II, Tukum,
Chandraur Desk-I, Chandrapur. .....PETITIONER
...V E R S U S...
1] Avinash Bajirao Khokale,
Aged about 40 years, R/o-Wadgaon
Ward, Chandrapur, Tahsil and
District - Chandrapur.
2] Appellate Authority under Section
127 of the Electricity Act, 2003,
Through the Chief Engineer (Electrical)
Public Works Department, Government
of Maharashtra, Administrative Bldg.
Third floor, Ramkrishna Chemburkar
Marg, Chembur (East) Mumbai. ...... RESPONDENTS.
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Shri R. E. Moharir, Advocate for the Petitioner.
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CORAM : S. C. GUPTE, J.
th DATE : 18 SEPTEMBER, 2017.
ORAL JUDGMENT :
Heard learned counsel for the petitioner. The respondent is absent though served.
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02] The petition challenges an order passed by the appellate
authority under Section 127 of the Electricity Act, 2003 ("Act"). The petitioner is an Electricity Distribution Company. It is the case of petitioner that respondent No.1, who was its consumer, was running a hotel at Chandrapur. There were two commercial meters having connected loads of 5.13 kw and 4.72 kw installed at the hotel which was run by respondent No.1 since 5 th September, 2002. On 4th June, 2003 and 5th June, 2003, a flying squad of the petitioner visited the premises of respondent No.1 and found that the meter seals were tampered and there was a hole on the front side of meter body. As a consequence of these findings, the petitioner assessed respondent No.1 provisionally for two meters respectively for 20690 units (at Rs.1,60,545/-) and 4404 units (at Rs.33,317/-). The provisional bills was later finalized. The final assessment by the Superintending Engineer, O & M Circle, Chandrapur, was at Rs.1,85,076/-. A First Information Report was also lodged by the Deputy Executive of the Flying Squad of the petitioner with Ramnagar Police Station, Chandrapur in this behalf. Respondent No.1 challenged the final assessment order of the petitioner before the Appellate Authority under the Act. In the meanwhile, pending such challenge, respondent No.1 paid the ::: Uploaded on - 21/09/2017 ::: Downloaded on - 22/09/2017 01:26:03 ::: wp1697.07.J.odt 3/7 assessed bill in installments under protest. By its impugned order dated 29th September, 2005, the Appellate Authority quashed and set aside the final assessment order of the petitioner and directed it to prepare a six month bill for loads respectively of 5.13 kw and 4.72 kw connected loads with load factor of 0.6 and working hours per day as 13 hours and working days per month as 26 days and accordingly, assess the energy consumption of 6306 and 5742 units by applying commercial tariff at one and half times the normal rate. 03] The Appellate Authority accepted the petitioner's case that there was unauthorized use of electricity through tampered meter as the meter seals were damaged and a hole was found in the meter body. The Appellate Authority held that whilst the petitioner had proved unauthorized use of electricity, it had failed to establish that there was theft of energy. (The theft of electricity is covered by Sections 135 and 136 of the Act. Incidentally, the First Information Report filed by the Flying Squad of the petitioner finally resulted in the acquittal of respondent No.1 from the charge of theft of electricity.) Commenting on the assessment by the petitioner, the Appellate Authority was of the view that the assessment of energy consumption was made without any details of calculation for the ::: Uploaded on - 21/09/2017 ::: Downloaded on - 22/09/2017 01:26:03 ::: wp1697.07.J.odt 4/7 connected load, the working hours, the diversity factor or load factor, the working days of the month etc., all of which are crucial elements of assessment of energy consumption. In the absence of these particulars, the Appellate Authority itself went into the various aspects of assessment. It considered the load factor as per the circular of CBIP for the type of load in establishment like the respondent's as 0.6. It also considered working hours for hotel type of consumption which can be about 13 hours in a day and 26 days in a month. Accordingly, taking into account the connected loads respectively of 5.13 kw and 4.72 kw of the two meters, it worked out the number of units per month in case of each of the two meters and accordingly, the aggregate consumption for six months. In the case of one meter (having load 5.13 kw), the energy consumption worked out to 1051 units per month (i.e. 5.13 x 0.6 x 13 x 26). The consumption for six months, thus, worked out to 6306 units. For the second meter (with connected load of 4.72 kw), the monthly consumption was worked out at 957 units (i.e. 4.72 x 0.6 x 13 x 26), and six months' consumption at 5742 units. Based on this assessment, the Appellate Authority quashed and set aside the final assessment order and directed the petitioner to prepare two six months bills respectively of 6306 and 5742 units as ::: Uploaded on - 21/09/2017 ::: Downloaded on - 22/09/2017 01:26:03 ::: wp1697.07.J.odt 5/7 per the working shown in its order.
04] Learned counsel for the petitioner could not assail this assessment on the part of the Appellate Authority at the hearing of the petition on the basis of the material on record. Learned counsel submitted that the petitioner had taken out a civil application for permission to file additional documents. According to learned counsel, these documents would establish that the case was really a case of theft of electricity and enable the Court to make an appropriate assessment of the bill on that basis. Learned counsel submitted that the petitioner's case of theft of electricity within the meaning of Section 135 of the Act was borne out by these documents. Learned counsel submitted that the documents would show the modus operandi adopted by respondent No.1 for committing theft of electricity. I am afraid that is not a course open to this Court. I say so for two reasons. Firstly, none of these documents was before the Appellate Authority when it passed the impugned order. There is no justification shown as to why these documents could not be produced before the Appellate Authority in the appeal. It is not permissible, in the premises, for the writ Court to apply its mind afresh to these new documents. Secondly and ::: Uploaded on - 21/09/2017 ::: Downloaded on - 22/09/2017 01:26:03 ::: wp1697.07.J.odt 6/7 more importantly, there is no proof of the case of theft of electricity. In fact, it is not in dispute that respondent No.1 has been acquitted of the charge of theft of electricity in the Criminal case based on the First Information Report lodged by the Flying Squad of the petitioner. The Appellate Authority, which is a final fact finding authority in this behalf, has come to a categorical finding that the case of theft of electricity is not proved. Nothing is indicated in the impugned order of the Appellate Authority which could show the findings as perverse. The impugned order is supported by evidence. There is no irrelevant or non germane material considered by the Appellate Authority whilst arriving at its conclusion. Likewise, no relevant or germane material in this regard in disregarded whilst coming to its finding. It is not permissible, in the premises, to the writ Court to reassess the material, and that too completely new material produced for the first time, and see if theft of electricity is made out in the facts of the case.
05] There is, accordingly, no merit in the writ petition. The petition is dismissed. No order as to costs.
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06] Since there was no stay of the final assessment pending
the challenge before the Appellate Authority, respondent No.1 has paid the entire assessed bill. Pending the present petition, respondent No.1 filed an application seeking an order of refund of the amount of Rs.1,13,603/- paid by him in excess, having regard to the impugned order of the appellate authority. This Court, by its order dated 22nd July, 2009, directed the petitioner to deposit this amount in the Court. Liberty was given to respondent No.1 to withdraw the amount by furnishing security to the satisfaction by Registrar (Judicial) of this Court. Accordingly, the petitioner deposited a sum of Rs.1,13,603/- in this Court. On a security bond and solvency certificate to the extent of Rs.1,50,000/- and furnishing of an undertaking, respondent No.1 was permitted to withdraw the amount. Since the petition has now been dismissed, the security bond and undertaking shall stand cancelled.
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