Smt. Vimla Tiwari vs State Of U.P. And Others
2012 Latest Caselaw 547 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on 02.04.2012
 
Delivered on 20.04.2012
 
Court No. - 2
 

 
Case :- WRIT - C No. - 14347 of 2012
 

 
Petitioner :- Smt. Vimla Tiwari
 
Respondent :- State Of U.P. And Others
 
Petitioner Counsel :- P.K. Rai
 
Respondent Counsel :- C.S.C.,Anubhav Shukla
 

 
Hon'ble Sudhir Agarwal,J.

1. With the consent of learned counsel for the parties, the Court proceeds to decide the matter finally at this stage under the Rules of the Court.

2. Smt. Vimla Tiwari, Wife of Shri Bhaironath Tripathi has come to this Court in this writ petition under Article 226 of the Constitution of India aggrieved by order dated 28.12.2011 passed by Appellate Authority under Section 127 of Electricity Act, 2003 (hereinafter referred to as "Act 2003") rejecting petitioner's appeal against assessment order dated 08.6.2010 made by Assessing Authority namely Executive Engineer, Electricity Urban Distribution Division, Rambagh, Allahabad (hereinafter referred to as "Assessing Authority").

3. Sri P.K.Rai, learned counsel for the petitioner submitted that no checking was ever made at petitioner's premises and a fictitious report was prepared whereupon entire proceedings have been initiated and impugned orders have been passed. The petitioner has throughout taken this stand but respondents have not at all cared to look into the grievance of the petitioner and on a forged and fictitious document prepared by respondents electricity supplier, impugned orders have been passed imposing a huge financial liability upon the petitioner. It is said that meter in question was installed at petitioner's premises and remained intact as it is. This fact she reiterated in her reply supported by affidavit filed before Assessing Authority, copy whereof has been filed as Annexure 8, but the respondents have not paid any heed to the said statement and instead have proceeded with the impugned assessment proceedings. The entire proceedings, therefore, are malicious in law and only to harass the petitioner for the reasons other than bona fide.

4. The facts as set out in brief in the writ petition may be summarised as under:

5. The petitioner is a resident of 43/9A Bakshi Khurd Daraganj, Allahabad. Her husband is retired from the post of Manager (Engineer) Grade V, Indian Telephone Industries Naini, Allahabad. An electric connection was given at the aforesaid residential address of the petitioner for domestic purposes in the year 1981 bearing S.C. No.0688802. Vide sealing certificate dated 05.11.2008, a new meter was installed at petitioner's premises bearing no.G18872. The regular electricity dues were paid by petitioner. The receipt showing payment of electricity dues upto February, 2010 has been placed on record as Annexure 4 to the writ petition. A notice dated 23.3.2010 was served upon the petitioner by Assessing Authority alleging that petitioner's electric connection at residential premises, as aforesaid, was inspected by Enforcement Squad/Competent Authority of U.P. Power Corporation Ltd. (hereinafter referred to as "UPPCL"") on 25.11.2009 and according to inspection report no.27/1340 dated 25.11.2009, the petitioner was found using electricity by direct supply and the meter was missing from the premises. The above constitute an offence under Section 135 of Act 2003. The petitioner was required to submit her objection/defence, if any, within 15 days failing which appropriate assessment in accordance with U.P. Electricity Supply Code, 2005 (hereinafter referred to as "Code 2005") would be made. An assessment bill was also sent along with aforesaid notice for a sum of Rs.1,97,815/- showing assessment made by Assessing Authority for a period of 365 days, i.e. for one year. The assessment bill, copy whereof is on page 39 of the writ petition on the top, mentions checking report no.27/13110 and that the premises was checked by Sub Divisional Officer/Junior Engineer. The reason for assessment was shown "theft of electricity". A copy of checking report supplied to the petitioner is placed on record at page 43.

6. The petitioner challenged the aforesaid notice in Writ Petition No.20459 of 2010 which was disposed of by a Division Bench of this Court, permitting the petitioner to file objection subject to payment of Rs.10,000/- with Assessing Authority whereafter objections were required to be decided and recovery proceedings pursuant to provisional notice and assessment bill, till then, was stayed. Accordingly, the petitioner deposited Rs.10,000/- on 1st June, 2010 and filed her objection dated 28.5.2010. The above objection of the petitioner was disposed of by Sri Yadu Nath Ram, Executive Engineer, Assessing Authority by order dated 8.6.2010 (Annexure 9 to the writ petition). The order says that petitioner's meter was changed on 23.1.2010 and a new meter bearing no.G41578 was installed which was checked on 31.5.2010 by the Junior Engineer who found meter reading as 2285. Therefore, the average consumption of electricity by the petitioner was 17.71 units per day. He also said that Junior Engineer (Meter) checked meter on 25.11.2009 and found meter reading as 16048 though the petitioner had made payment upto meter reading of 1930 only, hence 14113 units were accumulated and remained unpaid. He therefore said that the petitioner was liable to pay for a total 15181 units upto 23.1.2010 and after adjusting sum of Rs.10,000/-, she has already paid, she was required to pay a sum of Rs.40,891/-. Aggrieved thereto the petitioner preferred an appeal under Section 127 of Act 2003. The petitioner alleged in para 4 thereof that the respondent officials demanded some fees through touts and when denied by petitioner, the assessment proceedings have resulted. The aforesaid appeal has been rejected by Appellate Authority by impugned order dated 28.12.2011.

7. Learned counsel for the petitioner drew attention of this Court to the checking report dated 25.11.2009, Annexure 6 to the writ petition and pointed out that on one hand, this report is shown to have been prepared on 25.11.2009 but simultaneously, in the same report there is an endorsement which mention an event of 28.11.2009, hence it is apparent that this report is forged, fictitious and was not prepared after making a spot checking but has been subsequently forged and manufactured. The submission ex facie was found to have some substance. The Court enquired from Sri R.K.Mishra, learned counsel appearing for respondents No.2 to 4 and 6 to tell as to what is the date of inspection report. He could not explain the apparent discrepancy. In the circumstances, this Court required the Assessing Authority as well as the Appellate Authority themselves to explain the above discrepancy and to tell as to why this aspect has not been considered by them and whether any explanation was sought from the inspection team before passing the impugned orders. Pursuant to Court's order dated 23.3.2012 Sri Mukesh Kumar Meshram, the Commissioner, Allahabad Division and Sri Ashok Kumar, Superintending Engineer, constituting the Appellate Authority, who passed the appellate order, impugned in this writ petition, appeared. Sri Meshram fairly stated that he relied on the Superintending Engineer, who is the expert member constituting the Appellate Authority and supposed to know the technical aspect of the matter. He could not explain anything about the checking report and admitted of having not seen it earlier. Same was the position with Sri Ashok Kumar, Superintending Engineer.

8. The Executive Engineer Sri Yadu Nath Ram was also present accompanyied by Sri Uday Raj Singh, Junior Engineer(meter) and Sri R.K.Mishra, Dealing Assistant constituting the part of checking team as also the assessment proceedings. They also could not say anything about the exact date of preparation of checking report. In the circumstances, this Court required these authorities to file their personal affidavits specifically stating their defence/version as to when it was prepared and signed, who are the officer(s) who actually made checking, when and at what stage report of different dates was prepared etc.. The respondent officials also placed the original copy of the checking report no.27/1340 dated 25.11.2009 for perusal which was kept in a sealed cover.

9. On the next date, i.e. 2nd April, 2012 the aforesaid officials filed their personal affidavits. Sri Mukesh Kumar Meshram, Commissioner, the Chairman of Appellate Authority has said that by virtue of the notification dated 25.3.2009 read with Rule 3 of Appellate Authority Rules, 2004 framed by the Government of India under Section 186 of Act 2003 Appellate Authority has been constituted consisting of two officers namely the Commissioner of the Division as Chairman and Superintending Engineer of the Electricity Department as Member. The Superintending Engineer is an expert Member to assist the Chairman who is very often treated to be lesser known with the procedure of electricity checking, preparation of checking report, preparation of provisional assessment bills and finalization of revenue assessments by the Electricity Department.

10. He thereafter states that the discrepancy in the checking report could not be noticed either by himself or by expert member constituting appellate committee and the counsels for the respective parties also did not agitate the matter strongly. He admits his mistake in failing to consider and notice the discrepancy in the checking report and tenders apology for having failed to do so. Paras 7 and 8 of affidavit read as under:

"7. That the answering respondent submits with utmost regard to this Hon'ble Court, without any prejudice or excuses, with all sincerity that he has unintentionally and inadvertently committed mistake of overlooking the checking report. However, for the aforesaid reasons the answering respondent candidly accepts its mistake and negligence of without any pretext because it is not only the liability of the expert member of the appellate authority but it is the equal liability of the answering deponent to look into the each and every records and documents of the case.

8. That for the aforesaid reasons the answering respondent respectfully submits that the discrepancy of checking report dated 25.11.2009 was unintentionally and inadvertently over looked by the answering respondent. Accordingly the answering respondent humbly tenders his unconditional apology for his negligence for overlooking of discrepancies of checking report dated 25.11.2009 while passing the impugned judgment dated 28.12.2011 in appeal no. 2/2010."

11. He also states in para 10 that he is ready to rectify his mistake if so directed by the Court after quashing the impugned order passed by appellate authority. Para 10 of his affidavit is reproduced as under:

"That the deponent further candidly admits that the mistake committed by the deponent is unintentional and inadvertent but the deponent is always ready to rectify its mistake in the interest of justice, if so directed by the Hon'ble court after quashing the impugned judgment passed by the answering deponent."

12. The affidavit of Sri Ashok Kumar, Superintending Engineer, Member, Appellate Authority also refers to the aforesaid provisions of Appellate Authority Rules whereunder it has been notified. In para 6 of his affidavit he said that the present one was his first case as a member of Appellate Authority by order dated 3.8.2011. In para 8, he said that the appeal was listed before the appellate authority on 9.9.2011 but due to administrative work, the Chairman/Commissioner was not available, hence the appeal was adjourned to 30.9.2011 for further hearing. On 30.9.2011 the appellant's counsel was absent though counsel for the corporation was present, hence the Chairman reserved judgment without hearing any argument. He says that since no oral arguments were advanced, the discrepancy in checking report got overlooked. He admits his negligence for overlooking the above discrepancy as is evident from the following extract of para 9 of his affidavit:

"Accordingly the answering respondent humbly tenders his unconditional apology for his negligence for overlooking of discrepancies of checking report dated 25.11.2009 while passing the impugned judgment dated 28.12.2011 in appeal no.2/2010."

13. He has further said that after this Court's proceedings of 27.3.2012 he issued letters to the Executive Engineer, Junior Engineer (Meters), Assistant Accounts Officer and Dealing Assistant, seeking their explanation so as to comply this Court's order. All of them have submitted their explanations to Sri Ashok Kumar. Though in the affidavit it is said that copies of all the explanations submitted by Sri Yadu Nath Ram, Executive Engineer, Uday Raj Mishra, Incharge Junior Engineer (Meter), Sri Ramesh Chandra, Assistant Account Officer, and Sri R.K.Mishra, Dealing Assistant are being filed as Annexure 4 but in fact, only one such explanation of Sri R.K.Mishra, Dealing Assistant has been placed on record on page 22 of the affidavit filed by Sri Ashok Kumar, the Superintending Engineer respondent No.5. The explanation says that neither Dealing Assistant has made checking nor it is in his competence, nor he has signed the checking report. His name has been mentioned therein by the then Executive Engineer for the purpose of making assessment. It is said by him that mistake has been committed in preparing the checking report by the concerned Junior Engineer, Sri Uday Raj Mishra, who is an official basically belonging to Technical Grade-II cadre but was given the charge of Junior Engineer on 29.10.2009 after retirement of Sri U.S.Mishra, the then Junior Engineer on 30.9.2009. In para 17 he has said that since the matter was not argued by any of the parties before the Appellate Authority hence the mistake in checking report could not be detected and this mistake has happened unintentionally and inadvertently for which he has shown regret.

14. The next affidavit is of Sri Yadu Nath Ram, Assessing Authority respondent No.3. He said in para 5 thereof that explanation was sought from Sri Uday Raj Mishra, Junior Engineer who has submitted in his written explanation that checking was made on 25.11.2009 and the checking report was prepared upto column no.12. Subsequently, he again went to the premises for replacing stopped meter on 28.11.2009 and found the meter missing. Due to inexperience, lack of procedural knowledge regarding filling of checking reports, the Junior Engineer committed mistake in filling checking report for two different checkings i.e. dated 25.11.2009 and 28.11.2009. It is also said in para 6 that the checking report was signed by Junior Engineer on 25.11.2009 but subsequently he incorporated therein certain facts of 28.11.2009 in the same continuation. The checking report was written by the Junior Engineer on 28.11.2009. Para 6 of the affidavit of Executive Engineer Sri Yadu Nath Ram is reproduced as under:

"That from the perusal of the above noted explanations it is apparently clear that the details of the checking's up to the column 12 was filled up and signed by the Junior Engineer on 25.11.2009. However the subsequently detailed facts of 28.11.2009 were written by Junior Engineer in the same continuation on same checking sheet no.27/1340 on 28.11.2009. Thus the facts that the meter reading, status of meter found on 25.11.2009 and fact of absence of meter on 28.11.2009 on the spot appears to be correct. Accordingly the factual report of 25.11.2009 and 28.11.2009 was written by the Junior Engineer on 28.11.2009."

15. About his own role, the Assessing Authority has said that it is entrusted with numerous and various types of duties including construction and maintenance of distribution system upto 32 KV, to manage and supervise employee's in Division, to look after the grievances of consumers, to maintain accounts of Division, to maintain the records of revenue raids and checking, assessment etc. and the concerned Junior Engineer (Meter) Sri Uday Raj Singh was not working under his subordination since he was in direct control and subordination of Executive Engineer (Meter). It was due to immense work pressure, he (Executive Engineer) could not detect the mistake in preparation of checking report and marked the same for preparation of assessment bill to the Dealing Assistant Sri R.K.Mishra. He admits mistake in preparation of checking report and submits that the so called discrepancy in checking report was unfortunately overlooked by him inadvertently and due to excess work load. In his affidavit also, he has stated about filing copy of explanation of Sri Uday Raj Singh as Annexure 1 but no such Annexure, in fact, has been placed on record along with the said affidavit.

16. Now, I come to the affidavit of Sri Uday Raj Singh, In Charge Junior Engineer (Meters). He has admitted to have prepared checking report, i.e. preparation and signing on 25.11.2009. It is further said that after 25.11.2009, he also checked the premises on 28.11.2009 and mentioned facts noticed therein in the report dated 25.11.2009. Paras 3 and 4 of his affidavit read as under:

"3. That in compliance of the orders passed by this Hon'ble Court, the answering deponent specifically and categorically submits that the checking report No. 27/1340 dated 25.11.2009 was prepared by the answering deponent under his signatures only. It is further stated that since the deponent has twice checked the premises of consumer on 25.11.2009 and on 28.11.2009 as such due to ignorance of procedure of filling the checking report the deponent filled the checking report dated 25.11.2009 in two parts.

4. That the detail status of meter & the connected load was mentioned by the deponent on the spot on 25.11.2009 up to column no. 12. However the deponent again visited to the premises of petitioner on 28.11.2009 for replacing the defective meter as it was found defective on 25.11.2009 but when the deponent saw that the meter was missing from the premises of consumer on 28.11.2009 then he again mentioned the entire facts of checking dated 25.11.2009 and the report of missing meter dated 28.11.2009, collectively on 28.11.2009, on the same checking report sheet no. 27/1340 dated 25-11-2009.

17. In paras 5, 6 and 7 of his affidavit he has mentioned very interesting facts. It is said that technically he was not a much qualified person, being merely VIII class pass, with certificate of Electrician and Wireman in "A" Grade from Allahabad Polytechnic in the year 1977-78. He originally belongs to the cadre of Technician Grade-II, but was given charge of Junior Engineer (Meter) by Superintending Engineer, Electricity Urban Distribution Circle-I by order dated 29.10.2009. He being not a regular Junior Engineer, is not well acquainted with the practice and procedure of filling checking reports in respect of two days inspection in single checking sheet. He admits that this was a mistake committed by him which has resulted into panic to the consumer as well as to the Court and would mend himself in future.

18. Sri R.K.Mishra, Dealing Assistant has filed his affidavit stating that he has neither signed the checking report nor has done anything in respect of the preparation of checking report or checking of the premises of the consumer. He was concerned only with preparation of assessment bill as per the instructions of Executive Engineer.

19. Lastly, an affidavit has been filed by Sri Ramesh Chandra, Assistant Accounts Officer, denying any involvement with regard to checking or preparation of checking report in question.

20. Besides above, it is also stated and admitted by the parties that the petitioner's meter installed at her premises was ultimately replaced on 29.01.2010 (though Assessing Officer has given date of change of meter as 23.01.2010 vide Annexure 9, while appellate authority vide Annexure 14 has given the date of change of meter as 29.01.2010).

21. Ceiling certificate prepared at the time of change of meter has not been placed on record but learned counsel appearing for the respondents did not dispute that it is the meter No.G18872 which was actually replaced on 23/29.01.2010.

22. The stand of the respondents in the light of the facts as stated above, clearly shows contradictory stand every time. The initial case set up is that on 25.11.2009, a checking was made by an individual Sri Uday Raj Singh, Junior Engineer (Meter) and he found meter No.G18872 non working and meter reading as 16048. He claims to have checked the premises, as is evident from Annexure 6 to the writ petition, the checking report dated 25.11.2009, wherein he has mentioned different electrical equipments installed at the premises to find out the connected load, as 4 KW though sanctioned load was only 2 KW. Thereafter the stand is that on 28.11.2009, Junior Engineer (Meter) went to change the meter but found already installed meter i.e. Meter No.G18872 missing.

23. Admittedly, no report was lodged if the respondents treated it to be a case of theft of meter or unauthorized removal or criminal mischief by destructing the meter, as the case may be. Then on 23/29.01.2010 again he went to the premises of the petitioner and found meter No.G18872 duly installed thereat and then he removed the same and installed a new one.

24. If meter No.G18872, as claimed was removed by the consumer on 28.11.2009, it could not have been reinstalled with due seals unless the departmental authorities would have installed it affixing genuine seals thereon. It is not the case of the respondents that on 23/29.01.2010 when the aforesaid meter was replaced to install a new meter, any fake or bogus seal was found put thereat. Ex facie, these faces demolishes the entire story of removal of meter allegedly on 28.11.2009. The respondents Assessing Authority has not referred to any discrepancy or illegality in the metering equipment and its installation found by the respondents' representatives when he/they changed the meter on 23/19.01.2010 and installed new meter No.G41578. This is also writ large from the order dated 08.06.2010, passed by Assessing Authority, considering petitioner's representation dated 28.5.2010, which she had submitted pursuant to this Court's order dated 18.5.2010, passed in Writ Petition No.20459 of 2010. The Assessing Officer himself revised the assessment and instead of making assessment on the prescribed formula of L X F X D X H, applicable to unauthorized use of electricity or theft, charged the petitioner for 15181 units, which according to him, was the unpaid quantum of electricity due to wrong meter reading obtained by the meter reading contractor, as a result whereof, the petitioner made payment of much lesser amount.

25. The checking report dated 25.11.2009 as already discussed above, becomes quite doubtful, particularly considering the fact that on 23/29.01.2010 when the meter No.18872 was changed, there was no display of the reading in the meter and thus a new meter was installed namely G41578.

26. If there was no display of meter reading in the old meter, which was replaced, it was incumbent upon the respondents to get the meter tested in meter lab after following the procedure prescribed in para 5.6 of Supply Code, 2005, as discussed by Division Bench of this Court in Smt. Amrawati Devi Vs. Purvanchal Vidyut Vitran Nigam Ltd. & Anr., 2009(1) ADJ 430 which has also been followed in M/s Modern Rice Mill Vs. M.V.V.N.L. & Anr., 2012 (1) ADJ 296.

27. In fact, the entire defence and story set up by respondents shows a clear case of fraud, misrepresentation and afterthought explanation, having no coherence and consistency. The Executive Engineer's affidavit, in para 6, refers to his own inference after considering explanation given by Junior Engineer (Meter) that factual report of 25.11.2009 and 28.11.2009 was written on 28.11.2009. The relevant extract at the pain of repetition from para 6 of the affidavit of Yadu Nath Ram, Executive Engineer is reproduced as under:

"Accordingly the factual report of 25.11.2009 and 28.11.2009 was written by the Junior Engineer on 28.11.2009."

28. If this is correct, the question of preparation of any report whatsoever on 25.11.2009 on the spot does not arise. It further leads to inference that endorsement on checking report dated 25.11.2009 that "consumer refused to sign" is also false and incorrect. When the report was not prepared on the site, question of refusal to sign by the consumer does not arise at all. The report shows that the consumer was present on the site but simultaneously says that the consumer was not present. The endorsement of 28.11.2009 on the checking report in the earlier part said that consumer was not available on 25.11.2009 while the tenant present in the building told that she has gone to village but in the next line it says that on 28.11.2009, the consumer showed the bill meaning thereby she was present but the meter was missing and it was informed to have been sent for repairs. The Executive Engineer said that the report was prepared on 28.11.2009 while the Junior Engineer (Meter) himself said that it was actually prepared on 25.11.2009, as is evident from para 3 of the affidavit of Uday Raj Singh, Junior Engineer but he mentioned facts of 28.11.2009 in his checking report dated 25.11.2009. He says that checking report dated 25.11.2009, only upto column No.12 was completed on that date and he kept it unfilled for remaining part which he completed on 28.11.2009. Both these stands are self contradictory. In these circumstances, this fact supports the stand of petitioner and her complaint that no checking was actually made at her premises and the alleged checking report has been prepared elsewhere and is a manufactured and forged document.

29. Further meter no.G18872, which was admittedly found installed at the site on 25.11.2009, as also existed in January, 2010, when it was replaced but allegedly found missing on 28.11.2009. In this regard, also the Junior Engineer has not described details. About various seals on the meter, nothing is mentioned. The meter reading was shown as 16048 though the meter is said to be stopped. It gives an impression that meter was not recording reading but reading display was working. However, when the meter was actually replaced in January, 2010, the Executive Engineer's show cause notice/provisional bill states that display unit of the meter was not working at all. If that be so, the question of recording of any reading from the meter would not arise. This discrepancy also could not be explained by anyone. It is nobody's case that meter No.G18872 was ever checked and tested in the meter lab and any discrepancy therein having caused by consumer was noticed.

30. It thus appears that to justify the alleged checking report dated 25.11.2009 and to penalize the petitioner in some or the other manner, these proceedings were initiated which commenced with the allegation of theft of electrical energy but ultimately culminated in a simple case of less charged bill on account of wrong meter reading and, therefore, difference of reading and assumed consumption upto the date of replacement of meter has been sought to be charged by the final assessment order.

31. Here also no notice appears to have been taken of the concerned Meter Reader as to how he recorded low reading resulting in lessor billing. No explanation has been sought from Meter Reading Contractor. Nothing has been done in this regard. In fact, except spurious checking report dated 25.11.2009, which mentions the accumulated meter reading as 16048, there is no evidence at all to support the same. Nothing has been taken into consideration by the two authorities to hold the consumer responsible for lesser payment of electricity bill.

32. Moreover, if there was anything wrong with the meter no.G18872, it was obligatory upon the respondent authorities to test/check the meter in presence of the consumer, following the procedure laid down in para 5.6 of Supply Code, 2005. It appears and, in fact, is evident that the respondent authorities have not followed the said procedure at all. Assuming what they say is correct, this is also evident that they have worked in piecemeal, inasmuch as, initially the endorsement made on 28.11.2009 in the checking report dated 25/28.11.2009 was made the basis for issuing assessment order on the allegation of theft. Later on that bill was revised to a mere normal bill but raising demand alleging that there is some quantum of electricity which remained unbilled due to wrong meter reading by the meter reading contractor of the respondent electricity supplier. For this purpose also, reliance is placed not on the sealing certificate prepared on the date when the meter itself was changed by getting it tested in the meter lab but on the checking report dated 25.11.2009 authenticity whereof has been doubted and illegalities therein have been admitted by all the concerned officials themselves as is borne out from their affidavits referred to hereinabove.

33. It is really strange that serious matters like heavy financial liability can be imposed by the respondents upon the consumers in such a reckless, illegal and unmindful manner, that too, by the persons who subsequently take the defence that they are either not qualified, ignorant of the procedure or otherwise could not consider the matter in depth due to rush of work or otherwise.

34. The relationship of electricity supplier, i.e. the licensee and the consumer though commences with execution of agreement and to this extent is contractual but the form of agreement is statutory and rights, duties etc. are governed by statute and statutory provisions. The licensee enjoys much wider powers, privileges and authority vis a vis other commercial or industrial entrepreneur having commercial contracts with their customers/consumers. It is the nature of commodity which has given a different status to the supplier of electricity making it a class by itself. It has unilateral power to cause serious dent on the conduct, character and reputation of a consumer, if in exercise of its statutory powers of inspection, search etc. it finds a consumer indulged in unauthorized use of electricity or theft etc. It is not wholly dependent on normal procedure of lodging a first information report or complaint, adjudication by court of law, but itself has power to proceed on its own inspection report and make the consumer responsible for paying huge amount towards assessment, which is penal in nature and the consumer has to cough up charges of unauthorized use of electricity at much higher rate. The adjudicating body, in such matter, imposing civil liability is nobody else but official(s) of the electricity supplier/licensee i.e. Assessing Authority.

35. When such wide powers, privileges and authority is given to commercial or industrial establishment engaged in a commercial activity, its responsibility and degree of caution, care, impartiality and fairness also increases multi fold. It is true that power of assessment virtually is like imposing a civil liability but it is founded on certain act(s) which are in the realm of constituting offence also and therefore, cause a dent upon the character and reputation of individual. The reputation, character and integrity of a person is a part and parcel of his personality and, in my view, would constitute an integral part of his right to life and liberty since right to life has been held not an animal like existence but an honourable sustenance. In wider sense, it can be said that when a consumer is made responsible for assessment under Section 126 of Act 2003, it involves his character assassination also since this assessment is founded on some kind of unauthorized act on his part enumerated under Section 126 for which assessment can be made. A comparative study of Sections 135 and 126 of Act 2003 would show that most of activities termed as "unauthorized use of electricity" under Section 126 of Act 2003 constitute theft of electrical energy under Section 135 and to this extent, the two provisions are overlapping also. When an assessment under Section 126 of Act 2003, therefore, is made, it presupposes that something has been done by an individual which falls and satisfy the requirement of the term "unauthorized use of electricity" under Section 126 and simultaneously, it may also constitute an offence under Section 135. It is true that for the purpose of Section 135 of Act 2003, the matter shall be tried in a Court of law but in a proceeding under Section 126 also, in the Society, in which the individual lives, survives and deals in all his matters, he immediately gets a label of a person guilty of commissioning of something which is stigmatic in nature and abhorring to the members of society. It thus places a high degree of responsibility upon the authorities concerned to act impartially, fairly, objectively and proceed in the matter with open mind, due consideration and in-depth application of mind.

36. The concerted theme of song by all the officials in this matter in dispute, before this Court, is otherwise and shows the level of casualness with which everything has proceeded and concluded. There must not have been any reason to all such officers to have worked with such casualness. If that is so, and the laxity is intentional or deliberate, it travels in the realm of malice in law.

37. The Apex Court has summarised "malice in law " in (Smt.) S.R.Venkatraman Vs. Union of India and another, AIR 1979, SC 49 as under :

"It is equally true that there will be an error of fact when a public body is prompted by a mistaken belief in the existence of a non-existing fact or circumstance. This is so clearly unreasonable that what is done under such a mistaken belief might almost be said to have been done in bad faith; and in actual experience, and as things go, these may well be said to run into one another." (Para 8)

38. The Apex Court further in para 9 of the judgment in S.R.Venkatraman (supra) observed:

"9. The influence of extraneous matters will be undoubted where the authority making the order has admitted their influence. It will therefore be a gross abuse of legal power to punish a person or destroy her service career in a manner not warranted by law by putting a rule which makes a useful provision for the premature retirement of Government servants only in the ''public interest', to a purpose wholly unwarranted by it, and to arrive at quite a contradictory result. An administrative order which is based on reasons of fact which do not exist must, therefore, be held to be infected with an abuse of power."

39. In Mukesh Kumar Agrawal Vs. State of U.P. and others JT 2009 (13) SC 643 the Apex Court said :

"We also intend to emphasize that the distinction between a malice of fact and malice in law must be borne out from records; whereas in a case involving malice in law which if established may lead to an inference that the statutory authorities had acted without jurisdiction."

40. In Somesh Tiwari Vs. Union of India and others 2009 (2) SCC 592 dealing with the question of validity of an order of transfer on the ground of malice in law , the Apex Court in para 16 of the judgment observed as under:

"16. .... Mala fide is of two kinds--one malice in fact and the second malice in law. The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment."

41. In HMT Ltd. and another Vs. Mudappa and others JT 2007(3) SC 112 the Apex Court in paras 18 and 19 defined malice in law by referring to "Words and Phrases Legally Defined, 3rd Edn., London Butterworths, 1989" as under:

"The legal meaning of malice is "ill-will or spite towards a party and any indirect or improper motive in taking an action". This is sometimes described as "malice in fact". "Legal malice" or "malice in law" means ''something done without lawful excuse'. In other words, ''it is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite'. It is a deliberate act in disregard of the rights of others."

"19. It was observed that where malice was attributed to the State, it could not be a case of malice in fact, or personal ill-will or spite on the part of the State. It could only be malice in law, i.e legal mala fide. The State, if it wishes to acquire land, could exercise its power bona fide for statutory purpose and for none other. It was observed that it was only because of the decree passed in favour of the owner that the proceedings for acquisition were necessary and hence, notification was issued. Such an action could not be held mala fide."

42. In brief, malice in law is when a power is exercised for an unauthorized purpose or on a fact which is claimed to exist but in fact, is non-est or for the purpose for which it is not meant though apparently it is shown that the same is being exercised for the purpose the power is supposed to be exercised. (See Manager Govt. Branch Press and another Vs. D.B.Belliappa AIR 1979 SC 429; Punjab Electricity Board Vs. Zora Singh and others AIR 2006 SC 182; K.K.Bhalla Vs. State of U.P. and others AIR 2006 SC 898; P. Mohanan Pillai Vs. State of Kerala and others (2007) 9 SCC 497; M.P.State Corporation Diary Federation Ltd. and another Vs. Rajneesh Kumar Zamindar and others (2009) 6 SCALE 17; Swarn Singh Chand Vs. Punjab State Electricity Board and others (2009) 7 SCALE 622 and Sri Yemeni Raja Ram Chandar Vs. State of Andhra Pradesh and others JT (2009) 12 SC 198).

43. The consumer from the very beginning has been making a complaint of harassment, unlawful demand and punishment for not negotiating or compromising with respondents officials. In the light of the above discussion, this Court finds much weight and tilting factors supporting consumer's complaint and reason for such kind of casual approach on the part of respondents. The entire exercise, therefore, is vitiated being malicious in law.

44. Moreover, even civil liability upon a consumer on the allegation of commission of something wrong on his part cannot be imposed on mere suspicion. It is nothing but depriving a person of his property. It is no doubt true that right to property now is not a fundamental right under the Constitution but yet it is a constitutional right. A person can be deprived of his property only in accordance with law i.e. with the procedure prescribed in law and not otherwise. The procedure prescribed in law by itself is not erroneous but in practice and its execution the authorities responsible, have made a mockery thereof by conferring power upon officers/officials like the respondents i.e. those who have filed their affidavits as referred to above. The people have great faith in the system governed by rule of law but if their faith is hurt in a manner like above, the entire system of rule of law is bound to shatter and would cause loss of confidence in the public esteem and may vanish with the passage of time. The legislature has contemplated an authority other than the supplier to consider appeal under Section 127 but there also, the Executive has conferred appellate power to an authority whose impartiality or competence otherwise needs no adverse comments, but looking to the nature of dispute in the cases relating to Act 2003, mostly Appellate Authority would constitute presiding officers as Chairman who lack requisite technical expertise in the matter and also enough time to hear and understand the problem. The Commissioner himself has admitted that he has no technical or otherwise understanding of the subject. For this purpose he safely and fully rely on the Superintending Engineer, i.e. the Member of the Appellate Authority. This admission on the part of the Commissioner makes Appellate Authority virtually a one man body which consists of a Member, part and parcel of Electricity Supplier, who has virtually final say in the matter. Impartiality of such a body becomes causality in such a case. A system has been proposed which may give an opportunity to a consumer to have his matter considered by an independent body, but in practice, the constitution of Appellate Authority in State of U.P. in the manner it has been done has caused serious dent on this purpose and objective of the legislature.

45. Moreover. the matter in which the Superintending Engineer has proceeded is also startling. He says that on initial dates no hearing took place and the matter was simply adjourned. Thereafter on 09.09.2011 Commissioner was not available being busy in some other matters and, therefore, the Superintending Engineer being Member of the Appellate Authority adjourned the matter but passed an order of further hearing, though admittedly no hearing actually took place as the quorum was not complete. The order of further hearing passed by Superintending Engineer on 09.09.2011 was apparently incorrect and illegal. On the next date, i.e. 30.09.2011 again, it is admitted that none appeared and the case was not argued but the judgment was reserved and thereafter the impugned appellate order has been passed.

46. These facts are self speaking and show lack of basic knowledge about procedure, which ought to have been followed by a body entrusted with task of quasi judicial functions of such an important responsibility, which involve huge stakes of individual(s). In the present case, though the stakes are comparatively lower but the Court can take judicial notice of the fact based on cases coming regularly before this Court that assessment(s) under Section 126 are running from a few thousands to several crores of Rupees and therefore, the proceedings are of utmost importance and deserve much more serious consideration towards observance of a fair and impartial procedure consistent with the principles of natural justice.

47. The most disturbing feature in this case is that the Assessing Officer on one hand, has proceeded hand in gloves with the official(s), who prepared checking report against the petitioner and Appellate Authority failed to check and restrain such an illegal attempt of the authorities below by discharging its appellate duty in a more cautious and effective manner and by due application of mind. The respondents have clearly failed to demonstrate not only from the record of this matter but even otherwise, that there was any material available in law, prepared and obtained in accordance with the procedure prescribed in law, which may saddle any responsibility upon the petitioner- consumer towards either assessment on account of unauthorized use of electricity or for low billing in past. This Court, therefore, has no hesitation in taking a view that the impugned orders are patently illegal and cannot sustain at all.

48. Moreover, conduct of proceedings, as discussed above, by Assessing Officer as well as Appellate Authority shows lack of bona fide for which this Court expresses its serious displeasure and censure all these authorities. This displeasure and censures shall form part of annual character roll of these officers/officials, which shall be entered, by the authorities competent, in the Annual Character Roll of 2011-12 (period ending 31st March, 2012).

49. The writ petition is, accordingly, allowed with the above direction/observations. The impugned orders dated 08.6.2010 passed by respondent No.3 and 28.12.2011 passed by respondent No.4 (Annexure 9 and 14 to the writ petition) are hereby quashed.

50. The petitioner shall be entitled to cost which is quantified to Rs.10,000/-, which shall be paid by respondents No.1 and 2 to the petitioner but they shall be at liberty to recover the said amount from the concerned official(s) in due proportion, as are found responsible after making enquiry as prescribed in law.

51. A copy of this order shall forthwith be conveyed to the respondents No.1 and 2 and also to the Chief Secretary, U.P., Lucknow for communication and compliance of directions, as above.

Order Date :- 20.4.2012

KA