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IN THE HIGH COURT OF JHARKHAND
SHREE CHANDRASHEKHAR, J.
M/S. Himadri Steel Pvt. Ltd. - Appellant
Versus
Jharkhand Urja Vikas Nigam Limited - Respondent
W.P.(C) No. 6054 of 2017
Decided On : 05-09-2018
Companies Act, 1956 - Section 135 - Electricity Act, 2003 - First Information Report – Claim of compensation - Which was energized - On account of a massive blast in cubical metering unit there was electricity break-down in petitioners premises which was rectified by a team of respondent officials and a report was prepared - Report thus prepared records that metering unit chamber was slightly damaged K-phase CT and all PT were found in proper condition meter reading was correct and there was proper sealing however, b-phase CT which was totally cracked and damaged was replaced - No evidence of or theft of electricity was found - Meter readings for previous successive several months or after record description of meter chamber and the meter chamber glass and everything seems to be fine when an inspection was carried out at the petitioners premises meter reading report has been prepared by a member team of officials – Held, Whether it is a case of theft or a case of suspected theft of electricity, at this stage a finding on this issue cannot be recorded by this Court - Expression used in the inspection report and the written report certainly leaves it open to an interpretation that respondents themselves thought that it is a case of suspected theft, but then they have lodged a First Information Report on the allegation of theft of electricity. In fact, under the Electricity Act, 2003 there can be only two situations; unauthorized use of electricity or theft of electricity. Under the Electricity Supply Code Regulations however a third kind of situation has been conceived - It contemplates also a situation where the materials found in course of the inspection do not, with certainty, disclose direct theft of electricity. Case pleaded by respondents in the counter-affidavit is that the case against the petitioner is of direct theft of electricity - In aforesaid facts, any opinion or finding on merits of the rival contentions on this issue would amount to prejudging the issue - On error of calculation in provisional assessment order all that is required to be recorded is that previous to inspection carried petitioners premises were inspected and on that day theft of electricity was not detected by officials - Under Regulation assessment of loss according to the assessment formula vide Annexure-19 to Regulations shall be for the actual period from the date of previous checking of installation to the date of detection of theft, however, a provisional assessment bill has been raised for the period between which on the face of the records must be held wrong - To summaries inspection report not record jurisdictional facts so as to authorize the authorized officer to make the provisional assessment order and resultantly the provisional assessment order is held void and illegal - There is serious error also in calculation of the provisional assessment of loss caused to the Nigam – Accordingly provisional assessment order dated quashed - Now, in this state of affairs which unerringly disclose absence of jurisdictional facts in the inspection report so as to authorize the authorized officer to make a provisional assessment order, on a plea that it can be inferred on a meaningful reading of the inspection report read along with clause (b) and (c) of the sub-section (1) to Section 135 that it is a case of theft of electricity, the provisional assessment order cannot be sustained - Petition is allowed
Shree Chandrashekhar, J.
1. Legality of the provisional assessment order dated has been challenged by the petitioner-M/s. Himadri Steel Private Limited. Steel Private Limited.
2. Briefly stated, the petitioner, a company registered under the Companies Act, 1956, has been granted electrical connection under HTSS tariff with contract demand of 3000 KVA, which was energized on 03.07.2006. On account of a massive blast in the cubical metering unit there was electricity break-down in the petitioner's premises which was rectified on 16.06.2017 by a team of the respondent-Nigam's officials and a report was prepared. The report thus prepared records that metering unit chamber was slightly damaged, K-phase CT and all PT were found in proper condition (written as OK), meter reading was correct and there was proper sealing, however, b-phase CT which was totally cracked and damaged was replaced. No evidence of misutilisation or theft of electricity was found. The meter readings for the previous successive several months or after June, 2017 record description of meter chamber and the meter chamber glass and everything seems to be fine till 26.09.2017 when an inspection was carried out at the petitioner's premises; the meter reading report has been prepared by a 5-member team of the Nigam's officials.
3. The inspection report dated 26/27.09.2017 has become centre for controversy in this case.
4. On the basis of a written report of the Assistant Electrical Engineer, Chakulia P.S. Case No. 30 of 2017 under Section 379/420/353 I.P.C and under Section 135/137/138 of the Electricity Act, 2003 was lodged. On 27.09.2017, the petitioner has submitted its written objection to the inspection report dated 26/27.09.2017, however, on 29.09.2017 provisional assessment under section 135 of the Electricity Act, 2003 read with Clause 11.9 of the Jharkhand State Electricity Regulatory Commission (Electricity Supply Code) Regulations, 2015 was passed and the petitioner was directed to pay Rs. 3,23,71,524/-which according to the respondent-Nigam is the amount of loss caused due to theft of electricity by the petitioner. The petitioner has pleaded that during investigation no evidence of theft of electricity was found and accordingly, the police has submitted Final Form No. 39 of 2017 dated 30.11.2017; a protest-cum-complaint to the Final Form submitted by the police, however, has been filed on behalf of the Nigam.
5. In the counter-affidavit, the respondents have asserted that the procedure under the Electricity Supply Code Regulations, 2015 in case of theft of electricity has been followed and the provisional assessment order dated 29.09.2017 has been served upon the petitioner under sub-section (1-A) to Section 135 and that it was not a case of suspected theft rather, there were arrangements made for theft in such a manner that it can be easily made or removed at any time and, thus, cannot be detected in routine inspection. Allegations of non-cooperation during inspection and non-submission of the production chart have been made in the counter-affidavit. These allegations have been denied by the petitioner and it has produced its production chart. The written notes of argument filed on behalf of the respondents reiterates the aforesaid stand taken by the respondents in the counter-affidavit, and a portion of the judgment in "M/s. Shyam Lal Iron and Steel Company Through One of Its Directors Shri Shambhu Lal Shaw vs. Jharkhand State Electricity Board Through Its Chairman, Engineers Bhawan, Dhurwa., Ranchi and Others" reported in 2013 (3) JLJR 435 has been quoted extensively to contend that the remedy for the petitioner on its grievances as projected in the writ petition lies elsewhere and not in a proceeding under Article 226 of the Constitution of India.
6. The Electricity Act, 2003 is a special legislation and it contains few unique features; one being powers vested in the Special Court constituted under Section 153 to assess civil liability as well. Chapt
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