ORDER :- Issue notice. Mr. M. S. Vinayak accepts notice on behalf of the respondent (hereinafter called BSES"). With consent of counsel for parties, the matter was heard finally.

2. In these writ proceedings, the petitioner has impugned issuance of a show cause notice to him, and an electricity bill in the sum of Rs. 26,61,507/-; he alleges that the procedure adopted by BSES was contrary to law, and regulations.

3. The petitioner's premises were inspected on 29-8-2006 by staff and officials of BSES. The report of inspection alleged that the connected load found was 64.510 KW as against a load sanctioned for 44 KW. It is alleged that a show cause notice was issued the same day, alleging that the meter was not in order, inasmuch as plastic, and meter seals were found tampered, and that scratches were observed at the back of the CT Box. It is averred that the inspection was erroneous, as higher loads/values were shown in the report, even though the load of equipments was less. The petitioner replied to the notice, on 5-9-2006, alleging that the connected load was wrongly observed. He also alleged that mere existence of scratches or missing seals could not lead to inference of "dishonest abstraction of electricity" (DAE) for which there had to be some other corroborative material. The petitioner had relied on the previous consumption pattern, and stated that a total of nearly 1000 units had been billed and consumed, which showed that the meter, even if assessed on the basis of a load of 64 KW, was proper, since the bills for previous months showed that the consumption was nearly 90% of the assessable/consumption pattern.

4. It was averred in the petition that mere absence of seals did not amount to DAE; the consumption pattern had to be observed, and disclosed to be higher than what was billed and paid. That showed that even on the basis of the higher connected load, the consumption pattern was within the parameters. Thus in the absence of any foreign or extraneous device or material billing on assumed DAE could not be resorted to.

5. Learned counsel, Mr. S. S. Dalal, submitted that the figures of actual consumption showed that there was no case of DAE as per Regulation 26(ii) of the DERC (Performance Standards Metering and Billing) Regulations, 2002 (hereinafter, "Regulations"). In addition, he relied upon Regulation 25(iv) and contended that in this case, the sole basis of conclusion that DAE had been indulged, was the assumption that there was a day and night use of the unit, which was unfounded, and on which no show cause notice had been issued. It was also submitted that the notice gave no inkling as to the assessment of the consumption pattern; nothing prevented BSES from giving those details in the notice.

6. Mr. Vinayak, learned counsel relied on the speaking order which was produced in the course of hearing today. Counsel claimed that the CMRI data download from the meter, disclosed the consumption by the petitioner, which was clearly higher. This coupled with the observation of scratches at the back of side of the meter substantiated DAE.

7. Learned counsel further submitted that the consumption pattern, found, established that the unit was being used on a day and night basis; the speaking order took all these facts into consideration. It was contended that the show cause notice issued in this case, conformed to the procedure laid down in Regulations 25 and 26; the demand was not merely on the basis of some irregularity about the meter seals, but on the basis of observed, lower meter consumption. It was stated that the meter was determined to be recording far lower consumption, at just over 41% of the actual consumption calculated, on application of the parameters prescribed in the tariff order.

8. It was urged that the regulations did not oblige disclosure of the consumption pattern, or details of CMRI data, for that purpose and that if such procedure would be resorted to, the notice itself would be a speaking order, which was

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