Jashwant Rai Arora vs State of U.P. and Others

It appears that the petitioner was originally given electricity connection for tube-well and there were three such separate connections but as the total load exceeded 25 HP according to the petitioner the connection was changed to LMV-6 connection with effect from 30.11.2007. It appears that a checking was made on 6.4.2008 and theft of electricity was discovered whereupon a provisional assessment was made on 15.4.2008 for a sum of Rs. 5,67,559/-. The petitioner filed a writ petition against that assessment being Writ Petition No. 21119 of 2008, which was disposed of by an order dated 25.4.2008 with the direction that the respondent No. 4 Executive Engineer may examine the grievance of the petitioner. After the said order provisional assessment was revised by another assessment dated 12.5.2008, which was challenged in Writ Petition No. 25869 of 2008. It appears that the contention of the petitioner in that writ petition was that in the absence of the basis of calculation in the revised assessment the petitioner would be prejudiced in filing the objections. The writ petition was disposed of with the direction that if the petitioner makes an application for being supplied the basis of the calculation of the revised assessment the U.P. Power Corporation shall supply the same to the petitioner. In pursuance of the order of this Court dated 22.5.2008 the petitioner was supplied the revised calculation. The petitioner filed objections against the said revised calculation and an assessment order dated 26.8.2008 was passed by the Executive Engineer rejecting the objections and confirming the provisional assessment. This final assessment order of the Executive Engineer has been challenged by the petitioner by means of the present writ petition.

It appears that one of the disputes involved in this case was as to whether there were other buildings in the vicinity virtually amounting to a township to which the petitioner was supplying electricity. This Court appointed two Commissioners to visit the spot and to submit their reports. In pursuance of the order of this Court two separate reports have been submitted by the Commissioners one by Sri Siddharth Khare and the other by Sri Pankaj Dubey. We have gone through the reports of the Commissioners. Objections have been filed against the said two reports by the U.P. Power Corporation and the contention of Sri H.P. Dubey, learned Counsel for the respondents is that the report on the specific point on which the commission was issued has not been given. It is also submitted that the Commissioners have gone beyond the extent of the task entrusted to them in as much as they have recorded the statements of witnesses and collected evidence for which the Commissioners were not authorized by this Court. It is also submitted that the Commissioners went to inspect the spot on 20/21.9.2008 whereas the theft was detected when the premises were inspected on 16.4.2008 and during this long interval the position had changed.

We have considered the reports of the Commissioner as well as the contentions of the learned Counsel for the parties. The Commissioners found that inside H.C.M.R. Farm House there are ten constructed farm of individuals, nine under construction and one hundred and three vacant plots with each of them having individual boundaries. It thus appears that there are sizable number of constructions in the vicinity and it is virtually a colony. The second point upon which the Commissioner ''s report was called for was whether the electricity is being supplied by the petitioner to the township from his tube-well connection. The order of the court dated 17.9.2008 indicates that the Commissioners were sent to verify as to "whether a township has been developed in the premises in dispute by the petitioner or not and whether the electricity is being supplied by the petitioner to the township from his tube-well connection." A perusal of the reports of both the Commissioners indicates that the Commissioners have recorded evidence. Sri H.P. Dubey pointed out from the report of Sri Siddharth Khare that a statement was made to the Commissioner by Maya Bhagat servant of Joginder Arora that the electricity and water supply was being made by Joginder Arora (the petitioner). Sri Mishra, however, referred to other statements recorded by Sri Siddharth Khare, namely, those of Rajan Dua and Rajpal Singh, daily wagers kept by the Association that the electricity was being supplied to the other houses by the generator maintained by the Association. It appears from the order of the court appointing the Commissioner that there was no specific direction entrusting the Commissioners with the power to record evidence. Under the terms of the orders of this Court directing the Commissioners to verify if there was a township and whether the petitioner was supplying electricity from his tube-well to other persons the Commissioner could inspect the spot and note down the constructions in the vicinity and prepare a site plan and also to see if the tube-well connection of the petitioner was connected to the buildings in the vicinity. There are also conflicting versions in the evidence collected by the Commissioners about the fact whether supply to other persons was being made by the petitioner or from the generator maintained by the Association. Maya Bhagat had made a statement that the electricity was being supplied by the petitioner. Moreover, the Commissioners having inspected the spot after a period of about five months from the date when the theft was detected in the earlier inspection, the matter cannot be decided on the basis of the Commissioners'' report. We find that there is factual dispute on the point as to whether theft was committed and whether the electricity was being supplied by the petitioner to other persons. It is appropriate that such factual dispute be decided in the first instance under the machinery provided by the Act.

Sri H.R. Mishra, learned Counsel for the petitioner submitted that under Paragraph 6.9 of U.P. Electricity Supply Code, 2005 there is MDI meter installed in the petitioner''s premises and as such by virtue of paragraph 6.9 (iii) of the Electricity Supply Code it is not a theft. He submitted that the petitioner is LMV 6 consumer for which the tarrif is higher. Sri H.P. Dubey, learned Counsel for the respondents, however, relied upon Section 135 of the Electricity Act, 2003 in which theft of electricity has been defined and he submits that it would be theft in case the electricity is used for a purpose other than that for which the connection was given. The point can be raised in appeal. We have noted that there are factual dispute involved in the case and there is an alternative remedy available to the petitioner by way of appeal against the assessment order u/s 127 of the Electricity Act, 2003. The petitioner can raise all the points in the appeal. In the circumstances it is appropriate that the petitioner be relegated to remedy of appeal. Considering the fact that this writ petition has been pending in this Court for a quite some time it is appropriate that if the petitioner files an appeal within a period of three weeks from today the appeal shall not be dismissed merely on the ground of delay. If the petitioner files a stay application before the appellate authority the same shall be disposed of in accordance with law by the appellate authority. Until the disposal of the stay application no coercive action for recovering the amount mentioned in the assessment order shall be taken against the petitioner. The petitioner will however have to comply with the provisions for making statutory deposit required to maintain the appeal.

With these observations the writ petition is disposed of.