Maha. State Electricity Dist. ... vs Avinash Bajirao Khokale And Anor
2017 Latest Caselaw 7251 Bom

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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.
        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
        Shri R. E. Moharir, Advocate for the Petitioner.
        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-


                           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

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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

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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

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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

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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.

JUDGE PBP