M/s. Hind Rerolling Industries, Hyderabad vs Superintending Engineer, A.P.S.E.B., Hyderabad

S. PAKVATHA RAO, J.—The petitioner questions the so-called order in the respondent''s letter No. SE O, Hyd. HTlV HRl 92/580 dated 28-9-1992 and seeks a Writ of Mandamus restraining the respondent from disconnecting the supply of power to the petitioner''s unit pursuant to the said letter.

The facts leading to the said impugned letter have to be mentioned. The petitioner set up a Steel Rerolling Unit at Sanathnagar in Hyderabad and has been receiving electrical energy under H.T. Category from the Andhra Pradesh State Electricity Board (''the Board'' for short). On 13-1-1992 the Officers of the Board visited the petitioner''s unit and discovered that the ''R'' phase of the meter was not functioning. At the time of inspection one Sri Deep Chand, said to be the Supervisor of the petitioner, was present. Thereafter the respondent herein addressed letter No. SE/ OC/HYD/HT.IV/92/HR/1/89 dated 5-5-1992 stating as follows:--

"It is to inform that the'' Asst. Divisional Engineer, DPE-III APSEB has visited your premises on 13-1-92 along with ADE/MRT HT meters. On inspection it is noticed that ''R'' phase current wires going to test block was cut due to light sparking. It is proposed to back bill the service on 1.429% of recorded consumption as contribution of ''R'' phase i.e., about 30% of 0.86 PF. The corresponding M.D back billing was made at +42% of M.D. recorded. Accordingly the bills from 7/91 to 1/92 were revised and an amount of Rupees 1,23,192.00 was found short billed from 7/91 to 1/92. A statement is enclosed herewith.

You are requested to arrange the payment of Rs. 1,23,191.73 within fifteen days from date of this letter to avoid disconnection of supply."

In the affidavit in support of the Writ Petition it is stated that a representation was made on behalf of the petitioner and in spite of that the supply of energy to the petitioner''s unit was disconnected on 26-5-1992 and that the same was restored after the petitioner paid 1/3rd of the sum of Rs. 1,23,191.73 Ps. The petitioner contends that the said demand was high handed and it was nothing but penalty and that the demand itself was based only on surmises and conjectures. The petitioner also contends that Condition No. 22.3 of the Terms and Conditions of Supply of Electrical Energy by the Andhra Pradesh State Electricity Board (''the Conditions'' for short) provides the procedure for arriving at the consumption when the meter was defective and that the procedure under the said Condition was not followed. In the affidavit in support of the Writ Petition it was contended further as follows:

"It may be pointed out that the allegations made in the memo, that is the contention of the respondent, is not that the meter is defective, but it is one of the wires was cut and according to them there is a possibility of meter not correctly recording. That has nothing to do with any defect in the meter and apart from that there is no power for the Board to make ad hoc assessment without any justification. It is one thing if there is an allegation of tampering with the meter or tampering with the equipment by the petitioner which according to the Board has resulted in recording not being made correctly, but that is not the case here. .... Even assuming that such a cut was there, it will be arbitrary exercise of power to take just six months period and levy penalty."

The petitioner has filed the correspondence with the respondent along with the Writ Petition. There is a letter requesting some time up to two weeks to allow the petitioner "to study the technical matters in the bill which is only back billing". The date of that letter as typed in the copy filed is not clear as to whether it is 26-5-1992 or 25-5-1992. No mention of this letter has been made in the affidavit in support of the Writ Petition. In the subsequent correspondence by the petitioner also no reference was made of this letter. On the other hand, in the petitioner''s letter dated 4-7-1992 addressed to the respondent, a reference was made to its letter dated 29-6-1992, but no copy of the same was filed along with the Writ Petition. Even in the body of the said letter no mention was made of the alleged letter dated 25/ 26-5-1992. It was only stated therein, inter alia, as follows:--

"The unit was disconnected last month and was reconnected when we were forced to pay l/3rd of the back billing under protest although we had paid all the bills. We have to pay the above in order to keep the unit running. You may please note that no notice was given to us informing us the intention of the Board to resort to the back billing and we were not given any opportunity to explain our case. This does not conform with the principles of natural justice expected from the Board. We presume that if any wire has snapped inside the meter the same would have happened while checking the meter, on 9-1-1992, and for which we cannot be held responsible.

Therefore, in view of above facts you are requested to please drop the back billing and credit the 1/3rd amount paid by us under protest in order to get reconnection last month. You are also requested to instruct your field staff not to harass us with disconnection because we are not liable to pay any amount for the back billing in view of the facts mentioned above."

In the said letter the petitioner also made a mention of its production figures from January, 1990 to March, 1992 and enclosed a table copy showing the various figures of production and consumption from January, 1990 to March, 1992. In the reply dated 9-9-1992 the respondent stated that the production figures sent by the petitioner were not authenticated and observed as follows :--

"On review of consumption particulars, it is observed that the KWH. and M.D. recorded after inspection and rectification of meter (13-1-92) was more when compared with consumption month of 7/91 to 12/91 (defective period). Therefore it is clear that the back billing done for the period was in order."

It was also mentioned that the petitioner''s representative Sri Deep Chand was present at the time of inspection, that in spite of the letter dated 5-5-1992 addressed by the respondent no representation was made "until the service was disconnected on 26-5-1992" and that showed ample time was given for explaining the case and that, therefore, the contention that no opportunity was given was baseless. The petitioner was required to pay the balance sum of Rs. 82,066/- to avoid disconnection. The petitioner replied by letter dated 14-9-1992 contending that their representative Sri Deep Chand was not a technical man and that, therefore, his statement could not be given any credence. It is further contended in the said letter that the snapping of the wire, if it happened, must have taken place when the meter was inspected and that the petitioner could be penalised for the same. Thereafter, the respondent addressed the impugned letter dated 28-9-1992.

The Writ Petition was admitted on 8-10-1992 and on the same day in W.P.M.P. No. 16423 of 1992 the operation of the order of the respondent in the impugned letter dated 28-9-1992 was stayed.

The Deputy Manager, Legal Cell gave his counter-affidavit in November, 1996 on behalf of the respondent. Thereafter, the respondent gave counter-affidavits dated 17-3-1997 and 19-3-1997. It is stated therein that the amount demanded from the petitioner was not by way of penalty as it was not found that the meter was tampered by the petitioner. It is stated that the meter was earlier tested on 20-12-1990 and it was found to be in order, that on 9-1-1992 on inspection it was found that the meter was not recording the ''R'' phase because the connecting wire was found burnt and, therefore, a joint inspection was once again done on 13-1-1992 and that after that inspection pilferage of energy by the petitioner was ruled out. It is further stated that when ''R'' phase was not found working and other phases were found working, the total energy drawn could be calculated by adopting a formula and it was on that basis that the actual energy consumed by the petitioner during the previous six months was calculated.

Mr. J. Siddaiah, learned Standing Counsel for the Board appearing for the respondent, sought to support the demand on the basis of Condition No. 22.3.3.3 of ''the Conditions, as it was at the relevant time, which reads as follows :--

"22.3.3.3: Where it is not possible to select a set of three months as indicated in sub-clause 22.3.3.1 or 22.3.3.2 hereof or if meter is not at all installed quantity of electricity supply shall be assessed by the Assistant Divisional Engineer/Divisional Engineer of the area on the basis of connected load and hours of usage of electricity by the consumers. However, in the case of industrial consumers due regard shall be given to the production figures and conditions of working the period under question."

He submits that though this is not a case where the meter has completely ceased to function, yet the said Condition is applicable because it is a case where one of the phases ceased to function and no pilferage of energy or malpractice was suspected. He submits that in the present case it is possible to adopt the formula available for calculating the correct quantity of energy consumed when ''R'' phase of the meter was found to be not functioning. Mr. J. Siddayya, the learned Standing Counsel, also submits that on the facts of the present case it cannot be contended by the petitioner that no opportunity was given because after the initial letter dated 5-5-1992 the petitioner made a representation and that representation was considered and full opportunity was given and the petitioner in fact did place the production figures etc., along with its letter dated 4-7-1992 and that was taken into consideration by the respondent as noticed in his letter dated 9-9-1992 when he observed that on a review of the particulars the KWH and M. D recorded after rectification of the meter on 13-1-1992 was more when compared with the consumption of energy during the period 7 90 to 12. 91-- the period during which it was assumed that there was defective functioning of the meter -- and that, therefore, it was clear that the back billing done for the period was in order.

We are inclined to agree with the learned Standing Counsel for the Board. It is obvious that the amount demanded by the respondent by letter dated 5-5-1992 is not by way of penalty, but it was only by way of correcting the meter reading for the non-functioning of the ''R'' phase by adopting the formula applicable in such cases. Even after opportunity was given to the petitioner, the formula adopted by the respondent was not questioned as incorrect or not applicable in cases such as this. Even in the affidavit in support of the writ petition filed in October, 1992, about five months after the first letter dated 5-5-1992 of the respondent, the correctness and the applicability of the said formula is not questioned. The petitioner has also not disputed the presence of its representative Sri Peep Chand, and the correctness of the facts noted by him in his statement. The learned Standing Counsel for the Board has placed before us the original inspection report, which contained the statement of Sri Deep Chand dated 13-1-1992, wherein he described himself as ''Supervisor''. He also signed the inspection notes, The learned Standing Counsel has also placed before us the record containing the noting of the inspection on 9-1-1992 and 13-1-1992 -- on the latter date the following was noted under the head ''remarks'':--

"Remarks:- (1) All the seals of T.B., M.T.C. Meter Cover, Meter Board are in good condition.

(2) When measured current in test block, current in ''R'' phase is 7.ero and in ''B'' phase 1. 24A. After shutting ''R'' phase screw in test block current appeared in digital meter (1.24 A).

(3) After opening M.T.C. it was observed ''R'' phase C.T. outgoing lead coming from the meter to test block found cut due to sparking.

(4) After rectifying the connection the currents in test block are in ''R'' phase 1.20 A and in ''B'' phase 1.24 A.

(5) Meter box view glass not available Meter box is in bad condition. The same is to he replaced.

Rectified the defects by MRT and obtained the statement of consumer''s representative by ADE DPE. Hyd. Computed consumption for 1 hour may be taken for billing during testing period."

It also contained the signature of Sri Deep Chand dated 13-1-1992.

Under the circumstances and on the facts of the present case, we are not inclined to give any credence to the contention of the learned Counsel for the petitioner that no opportunity was given to the petitioner before finalising the amount ascertained on the basis of the formula adopted or that the adoption of the said formula was not warranted on the facts of the present case.. The petitioner shall, therefore, pay the balance sum of Rs. 82.066 -mentioned in the letter dated 28-2-1992 of the respondent within four Weeks from today. We are not inclined to impose any interest on this sum nor allow any interest or penalty required to be paid on this amount if the petitioner pays the same within the time allowed by us in view of the fact that no petition had been filed to have the interim stay of this Court made on 8-10-1992 in W.P.M.P. No. 16423 of 1992 vacated, nor any counter-affidavit till after this Writ Petition came up for final hearing before us.

Subject to the above, the Writ Petition is dismissed. No costs.

Petition dismissed.