Yogesh Tukaram Shetty vs The Mah'Tra State Electricity ...
2017 Latest Caselaw 8287 Bom

                                                     201-WP-5097-2007.DOC




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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CIVIL APPELLATE JURISDICTION

                    WRIT PETITION NO. 5097 OF 2002

 Yogesh Tukaram Shetty,
 Age Adult, Occ. Service, Manager, Shri
 Krishna Upahargriha, Bombay Agra Road,
 Thane.                                                    ...Petitioner

         Versus

 1. The Maharashtra State Electricity
 Distribution Company Ltd.
 Having its Registered Office at Hongkong
 Bank Building, Mahatma Gandhi Road,
 Fort, Mumbai 400 001.

 2. The Chief Engineer,
 Maharashtra State Electricity Distribution
 Company Ltd., having its office at 7th
 Floor, MSEDC, Building, Wagle Estate,
 Opp. Passport Office, Thane.               ...Respondents


 Mr. K.K. Malpathak, for the Petitioner.
 Mrs. Anjali R. Shiledar - Baxi, for Respondent Nos. 1 and 2.


                               CORAM:   VASANTI A. NAIK &
                                        RIYAZ I. CHAGLA, JJ.

DATED: 31ST OCTOBER 2017.

O R A L J U D G M E N T :- (Per Riyaz I. Chagla J.)

1. The Petitioner has filed this Petition under Article 226 of

the Constitution of India challenging the final assessed bill of

201-WP-5097-2007.DOC

Rs.1,78,614.19 issued by Respondent No.4 and has sought a

direction from this Court against Respondent No.1 to refund

to the Petitioner the amount of Rs.1,78,614.19 alleged to be

illegally recovered from the Petitioner and to pay the same to

the Petitioner along with interest at 18% p.a. from the date of

recovery till payment.

2. The Petitioner is running a hotel as manager in the

name and style of Shrikrishna Upahargriha at Thane. It is the

Petitioner's case that the Respondent No.1 had on 17th July

1999 checked the Petitioner's electricity meter in the hotel

and had reported that the same was in working condition on

On 2nd June 2000, the officers of Respondent No.1 carried

out a spot inspection of the meter and found the meter to be

in an OK condition. The meter box had thereafter been

sealed on 3rd January 2001 by the officers of MSEB by

affixing paper stickers. The Flying Squad of Respondent No.1

had again visited the hotel of the Petitioner on 18th July, 2001

and made inquiry in respect of the electricity meter and in

respect of power consumed in the hotel. It was alleged by

the Flying Squad that the meter was not in proper condition

201-WP-5097-2007.DOC

and showing less consumption than the actual. The paper

stickers which had been affixed to seal the meter were

claimed by the Flaying Squad to be duplicate and claimed

that this was a case of theft of the electricity. It is the

Petitioner's case that no evidence of illegal abstraction of

electricity was found by the officers of Respondent No.1. The

Petitioner refused to comply with the alleged illegal demands

of the officers of Respondent No.1, who thereafter

disconnected the electricity meter and took the meter away.

Respondent No.4 thereafter raised a provisional bill to the

tune of Rs.8,79,426/- for the period of 19th July 1998 to 18th

July 2001. The bill was challenged in the Court by the

Petitioner. In Civil Revision Application filed by the Petitioner

challenging the order of the lower Appellate Court, this Court

by order dated 16th August, 2001 directed the Petitioner to

deposit 20% of the amount claimed in the provisional bill and

Respondent No.4 was directed to determine the final bill and

the Petitioner was granted liberty to approach the appropriate

authority. The Respondents were directed to restore the

electricity. The Petitioner complied with the said order and

deposited 20% of the provisional bill amount i.e.

201-WP-5097-2007.DOC

Rs.1,75,886/-. The Respondent No.4 heard the application of

the Petitioner and determined the final bill to the tune of

Rs.8,64,792.16. Being aggrieved, the Petitioner filed an

Appeal on 14th September, 2001 to Respondent No.2 against

the order of Respondent No.4. Respondent No.2 by order

dated 18th October 2001, finally assessed the bill and found

that an amount of Rs.7,86,614.19 was payable. This was

communicated to the Petitioner by Respondent No.4 vide

letter dated 29th October, 2001. The Petitioner was called

upon to pay the balance amount of Rs.18,052/- which was

computed after taking into account the amount of

Rs.1,75,886/-, which had already been paid by the Petitioner,

on or before 31st October, 2001 failing which the Petitioner's

supply would be disconnected without prior notice. The

Petitioner in response addressed a letter dated 30th October,

2001 to Respondent No.2 stating that the final assessed bill

issued was on the basis of 19 KW instead of 17.17 KW as

allegedly informed by the Flying Squad of the MSEB. It was

mentioned that the earlier assessment had also been done

on the 17 KW load. In response to the letter of the Petitioner,

the MSEB by letter dated 4th December 2001 stated that

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connected load of 19 KW was considered for final

assessment as per the inspection report of the Deputy

Executive Engineer (Inspection), Bhandup Urban Zone and a

copy of the report has been enclosed. The Petitioner was

therefore, called upon to make payment of the final assessed

bill. Hence this Petition.

3. Mr. Malpathak, the learned counsel for the Petitioner

has submitted that the final assessed bill of Rs.1,78,614.19 is

erroneous as Respondent No.4 has improperly calculated the

load in the final assessed bill on the basis of 19 KW load

instead of 17.17 KW as informed by the Flying Squad of the

MSEB and despite the earlier assessment being done on 17

KW load. He has referred to clause 31 of the Maharashtra

State Electricity Board conditions and miscellaneous charges

for supply of electrical energy and has stated that for LT

consumers under the heading pilferage, the formula is set out

viz. the connected load to be taken into account is that which

is found at the time of inspection in KW multiplied by the

diversity factor and load factor and number of working hours

per day day 7 as well as number of days in a month. For

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non-commercial, which the Petitioner's hotel fell under the

diversity factor into load fact or is mentioned as 50% and the

number of working hours / days is mentioned as 6 and

number of days per month as 25. He has stated that if this

calculation had been done according to the connected load

as per 17.17 KW which was found at the time of inspection by

the Flying Squad of the MSEB then the bi-monthly units

would be 2576 units. He has submitted that the Respondent

No.1 had taken connected load to be 19 KW and thus came

to a total of 6650 units as the bi-monthly units. He has

submitted that if the correct computation had been taken into

account on the basis of 17.17 KW then the Petitioner has

already deposited an amount of Rs.1,75,886/- and hence

there was nothing payable to the Respondents. On the

contrary the Respondents ought to have refunded the amount

paid by the Petitioners. He has submitted that the

Respondents could only assess for the period between 3rd

January 2001 to 18th July 2001 as the meter had been

sealed on 3rd January 2001 and MSEB had found that there

had been tampering of the sealed meter. He has contended

that the Respondents have incorrectly taken the assessment

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period to be from 17th September 1999 to 18th July 2001

when they themselves have assessed the period of illegal

extraction from 3rd January 2001 to 18th July 2001. He has,

therefore, submitted that this Petition ought to be allowed.

4. Ms. Shiledar the learned counsel for Respondent Nos.

1 and 2 has supported the final assessed bill. She has

submitted that the said clause 31 had been complied with

and hence there was no merit in the Petition.

5. We have carefully considered the submissions. We are

of the view that the Petitioner has raised disputed questions

of facts viz. whether 19 KW load instead of 17.17 KW load

was to be the basis for the final assessed bill. The Petitioner

has claimed that the basis should have been 17.17 KW as

according to the Petitioner this had been informed by the

Deputy Executive Engineer of the Flying Squad of MSEB

when they took inspection. This has been disputed by the

Respondents who claim that the connected load was 19 KW

which was considered for calculating the final assessed bill

payable by the Petitioner and this load was according to the

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Respondents in as per the inspection report of the Deputy

Executive Engineer (Inspection), Bhandup Urban Zone and is

also verified with that printed on the energy bill. We are of the

view that, it will not be appropriate for this Court in Writ

jurisdiction to determine these disputed facts and that the

Petitioner ought to have availed of the appropriate remedy

available to the him. We are therefore of the view that this

Petition is liable to be dismissed.

6. We accordingly dismiss the present Petition with no

order as to costs. Rule stands discharged.

      ( RIYAZ I. CHAGLA J. )           ( VASANTI A. NAIK, J )