Karnataka High Court

Sri K H Krishna Reddy vs The Asst. Executive Engineer Ele on 13 January, 2022

Bench: Jyoti Mulimani

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 13TH DAY OF JANUARY, 2022

                       BEFORE

        THE HON'BLE MS. JUSTICE JYOTI MULIMANI

   WRIT PETITION NO.36744 OF 2018 (GM-KEB)

BETWEEN:

SRI K.H.KRISHNA REDDY,
AGED ABOUT 63 YEARS,
S/O SRI HENJARAPPA,
R/O 102, K.G.HOSAHALLI,
MYDANAHALLI, MADHUGIRI TQ.,
TUMKUR DISTRICT - 572 127            ... PETITIONER

(BY SRI. M.V.V.RAMANA, ADVOCATE)

AND:

THE ASST. EXECUTIVE ENGINEER (ELE.),
C, O & M ( H T CELL) DIVISION,
BESCOM, KODIGENAHALLI,
MADHUGIRI TALUK,
TUMKUR DISTRICT - 572 127.         ... RESPONDENT

[(BY SRI.V.N.MURTHY, ADVOCATE (ABSENT)]

       THIS WRIT PETITION IS FILED UNDER ARTICLE 226
OF THE CONSTITUTION OF INDIA, SEEKING CERTAIN
RELIEFS.
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     THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:

                           ORDER

Sri.M.V.V.Ramana, learned counsel on behalf of for

petitioner has appeared through video conferencing.

2. The facts are simply stated as under:-

It is stated that in the year 2010, the petitioner

started a Winery in the backward area of Madhugiri Taluk

where the soil was conducive for the growth of grapes. The

respondent sanctioned a load of 65 H.P. for the

requirement of Winery on 22.8.2010.

In the year 2012, the petitioner was sanctioned

power to about four borewells to supply water to the grape

yards adjacent to his Winery. It is said that the power

supply to the agricultural sector being free, no meters

have been installed and only the reading is taken.

The Winery needs continuous power supply and

hence, the petitioner had installed 100 KVA generator set

also for the requirements of the factory. The Officials of

the respondent conducted a raid on the factory premises of

the petitioner and booked a case stating that the petitioner

has caused theft of electricity from the connection

provided to the Winery and used to for agricultural

purposes.

Thereafter, the respondent issued a demand note on

08.08.2018 demanding a sum of Rs.6,20,859/- (Rupees

Six Lakhs Twenty Thousand Eight Hundred and Fifty Nine

only) and a compromise amount of Rs.66,000/- (Rupees

Sixty Six Thousand only) within a period of one month.

It is stated in the memorandum of writ petition that

the petition does not involve challenged to any Central or

State enactments and is devoid of public interest.

Under these circumstances, the petitioner having left

with no other alternative and efficacious remedy has filed

this writ petition under Article 226 of the Constitution of

India.

3. Sri.M.V.V.Ramana, learned counsel on behalf

of petitioner submits that the order passed by the

respondent at Annexure-D is wholly illegal, arbitrary and

against the provisions of the Electricity Act.

Next, he submitted that the respondent has initiated

steps alleging theft of electricity by the petitioner in a

situation where the electricity is provided free of cost for

his bore wells. The claim of the respondent about the theft

of electricity runs against the principles of simple

economics, since when electricity is being supplied free of

cost the question of theft does not arise.

A further submission was made that the capacity of

the transformer installed in the Winery is just sufficient to

meet the needs of the Winery and the pumps of the bore

wells require an additional 48 H.P. which the transformer

cannot handle as the total load would be far in excess of

its capacity.

Counsel vehemently contended that the allegation of

theft of electricity is governed by Section 126 of the

Electricity Act, wherein a procedure has been laid down

and the respondent has not followed the procedure.

Learned counsel has drawn the attention of the court

to Section 126 of the Electricity Act (for short 'the Act')

which clearly lays down that a notice about the provisional

assessment has to be given to the consumer who can file

objections to the provisional assessment. Further, it is

argued that the respondent under the Act can pass an

order of final assessment thirty days after service of

provisional assessment order on the consumer. It was

brought to the notice of the Court that the charge of

provisional assessment against the petitioner about the

theft of electricity is dated 24.07.2018 and the impugned

order is issued on 08.08.2018, exactly 15 days later

without giving the mandatory 30 days' time to file the

objections.

Further Section 135 of the Act deals with the general

provisions pertaining to the theft of electricity which can be

acted upon only after the objections if any are considered,

for which the outer limit is 30 days from the issuance of

the provisional assessment order, but the respondent has

initiated when a penal provisions simultaneously.

Lastly, he submitted that the provisional assessment

order, has presumed that the pumps of the bore wells

have run continuously for a period of 12 months without a

break which is technically not possible. The meter readings

of the borewells show that the power was being consumed

by these pumps from a separate transmission line which

nullifies the case of the respondent as the power cannot be

consumed from two towers.

Counsel therefore submitted that appropriate writ of

certiorari be issued to quash the order passed by the

respondent dated 08.08.2018 at Annexure D.

4. Heard the contentions urged on behalf of the

petitioner and perused the annexures with utmost care.

5. The short point which requires consideration is

whether the action of the respondent is justified ?

The petitioner has contended that the respondent

Authority has conducted a raid on the factory premises of

the petitioner and booked a case stating that the petitioner

has caused theft of electricity from the connection

provided to the Winery and used the same for agricultural

purpose.

Accordingly, Provisional Assessment Calculation

Sheet of bad billing charges in respect of theft of electricity

was issued on 24.7.2018 demanding a sum of

Rs.6,86,859/- (Rupees Six Lakhs Eighty Six Thousand

Eight Hundred and Fifty Nine only) from the petitioner and

exactly 15 days later they have passed an order on

08.08.2018, thereby intimating the petitioner to make

good of the amount failing which appropriate action will be

initiated.

It is this action of the respondent has been

challenged in this writ petition on various grounds as set

out in the writ petition.

While addressing argument, learned counsel for

petitioner strenuously urged that the action of the

respondent is contrary to Section 126 of the Electricity

Act, 2003.

It would be relevant to refer to Section 126 of the

Electricity Act 2003, which reads as under:-

Section 126: (Assessment): (1) If on an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found connected or used, or after inspection of records maintained by any person, the assessing officer comes to the conclusion that such person is indulging in unauthorized use of electricity, he shall provisionally assess to the best of his judgment the electricity charges payable by such person or by any other person benefited by such use.

(2) The order of provisional assessment shall be served upon the person in occupation or possession or in charge of the place or premises in such manner as may be prescribed.

(3) The person, on whom an order has been served under sub-section (2) shall be entitled to file objections, if any, against the provisional assessment before the ssessing officer, who shall, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment within thirty days from the date of service of such order of provisional assessment, of the electricity charges payable by such person."

Part XII of the Act deals with Investigation and

Enforcement. If we read the Section carefully, it makes it

very clear that a procedure has been laid down and it

prescribes that a notice about the provisional assessment

has to be given to the consumer who can file objections to

the provisional assessment.

Sub section(3) mandates that the final order of

assessment be made within thirty days from the date of

service of such order of provisional assessment.

In the present case, the provisional assessment is

made on 24.07.2018. The same is at Annexure-C. The final

order is passed on 08.08.2018. The same is at Annexure-