M/s. Maheshwari Engineering Enterprises vs Andhra Pradesh Electricity Board and others

S. Parvatha Rao, J.—The petitioner is a proprietary concern of one Sri Gopi Kishan Baheti. He questions order No. SE/O/H/DPE/A2-3074/1015-81 dated 21-1-1981 of the 3rd respondent i.e., Superintending Engineer (Operation), Andhra Pradesh State Electricity Board, City Circle at Hyderabad as confirmed by the proceedings of the 2nd respondent i.e., Chief Engineer/Electricity, Andhra Pradesh State Electricity Board, Western Zone at Hyderabad dated 30-7-1988, assessing the value of the energy ''misused'' by the alleged malpractice of the petitioner at Rs. 2,264.80 ps.

The undisputed facts are that the petitioner was availing supply of electrical energy from the 1st respondent i.e., Andhra Pradesh State Electricity Board (''the Board'' for short) under account number A2-3074 under Category III. The load sanctioned originally was 14 H.P. By application dated 1/4-12-1974, the petitioner applied for additional load of 14 H.P. i.e., for a total load of 28 H.P. under the said connection. By Letter No. JE/SC/SRN/Addl/C16(1475) dated 12-2-1975, the Junior Engineer (Electrical), Zone-1 required the petitioner to pay a sum of Rs. 151/- towards estimated service line cost and a sum of Rs. 850/- on account of cash security within 15 days. The printed form used for the said letter also required the petitioner to get the wiring done in accordance with Rule 49 of the Indian Electricity Rules, 1937 and to produce certificate while remitting the amounts. The petitioner paid Rs. 850/- and Rs. 151/- as evidenced by receipts B. No. 16039 dated 27-2-1975 and No. 93213 dated 1-3-1975 respectively. The first receipt was given by the Deputy Chief Accountant (Revenue) and the latter receipt was given by the Junior Engineer/Supervisor. The said original receipts were filed by the petitioner in the present writ petition, as well as the original letter dated 12-2-1975 referred to above. In view of the original documents placed before us, these facts arc irrefutable.

In his affidavit in support of the writ petition, the petitioner states that his premises was. inspected by the respondents, and that the addition load was released to his service. He also states that the differences of minimum charges on the additional load of 14 H.P. were being collected from him from 1975 onwards. Quite interestingly, he also states that he is "prepared" to pay the differences in minimum charges wherever necessary. . .". Thus, according to the petitioner he was enjoying the additional load of 14 H.P. i.e., in all the connected load of 28 H.P., ever since 1975 after he paid the amounts as required of him by the letter of the Junior Engineer (Electrical), dated 12-2-1975.

Then came the visit of the Assistant Divisional Engineer, APH-1 on 20-8-1930. He found that the factory was being run with an additional load beyond 14 H.P. According to him that was unauthorised because the additional load was never released by the authorities concerned in a regular manner. Then the petitioner addressed letter dated 8-9-1980 to the 4th respondent explaining the facts as follows:

"Please take note that we are having electrical connection from the year 1972 with a sanctioned load of 14 H.P. Later, we have applied for additional load of 14 H.P. in the year 1976 (1974?). The additional load of 14 H.P. has been given connection accordingly after payment of additional deposit of Rs. 850/- and service charge of Rs. 151/- against your intimation Letter No. JE/SC/SRN/Add.I/c 16/475 dated 12-2-1975.

Please advice your office to make necessary entries in your ledger for the connected load of 28 H.P. at your earliest."

In spite of that explanation by the petitioner, the 4th respondent i.e., Assistant Divisional Engineer, Distribution-I/Zone-I of the Board issued lo him initial assessment notice under letter No. ADE/DI/ZI/A''pet/1290/80, dt. 9-10-1980 stating that he exceeded the sanctioned load of 14 H.P., and that, therefore he was guilty of malpractice, and that an enquiry would be made into the matter by the 3rd respondent who would fix the amount of loss sustained by the Board, and that provisional estimate of the value of the energy misused by the petitioner was made at Rs. 2,264.78 ps., and that if the petitioner was desirous of having supply of energy continued pending enquiry he should pay a sum of Rs. 1,132.39 ps. plus Rs. 50/- towards supervision charges within 15 days. Subsequently, the petitioner received a show cause notice dated 21-11-1980 from the 3rd respondent herein.

In the final assessment order dated 21-1-1981 the 3rd respondent stated that in spite of time being given to the petitioner, no objections were received so far to show cause notice dated 21-11-1980, and that under those circumstances a final estimate of the value of energy that was misused by the petitioner was made at Rs. 2,264.80 ps. The petitioner approached the 2nd respondent by his appeal petition dated 6-2-1981 against the order of the 3rd respondent stating as follows:

"We were having electrical connection from the year 1972 with a sanctioned load of 14 H.P. Later we have applied for an additional load of 14 H.P. in the year 1975. The additional load of 14 H.P. has been given connection accordingly after payment of additional deposit of Rs. 850/- and service charges of Rs. 157/- against intimation letter No. JE/SC/SRN/Addl/C16/(475), dated 12-2-1975. The copies of the receipts of which are herewith enclosed.

It is submitted that the finding of the Assistant Divsional Engineer, Distribution-I/Zone- I, in his Memo, ADE.Dl/71/A''pet dated 9-10-1980, is without having any knowledge of he above facts. We have not pilferage or malpracticed any current to our factory. We are running our factory in accordance with the sanctioned load of 28 H.P. by the concerned office. Still, we have paid Rs. 1.132.39 for malpractice against Rs. 2,264.78 and Rs. 50/- towards the supervision charges, as mentioned in the above notice."

The 2nd respondent also gave a personal hearing on 20-5-1988. However, after noting that the petitioner stated that he was prepared to pay the difference in minimum charges wherever necessary for the additional load of 14 HP from 1975 onwards, the 2nd respondent found in his order dated 30-7-1988 that the additional load of 14 H.P. was not released "as per the official records", and that the petitioner was "not entitled to connect the additional load unless it was specifically released by the competent authority of the Board duly observing the feasible conditions of the field", and that, therefore, the petitioner''s contention was not accepted. The 2nd respondent also observed as follows:

"Mere filing the application for additional load, payment of security deposit and filing up of the L.T. agreement (which is not submitted to the concerned officer of Board) by the appellant is not an authorisation from the department for connecting up the loads by the appellant without proper release by the concerned authority of the Board."

In that view of the matter, he found that the petitioner exceeded the sanctioned load of 14 H.P. by connecting 23.25 HP and thus committed malpractice "in terms of Clause 39.1.2 of Terms and Conditions of Supply notified by the Board". In that view of the matter he affirmed the assessment made by the 3rd respondent. The petitioner questions this in the present Writ Petition.

As many as five counter-affidavits have been filed. In first counter affidavit dated 27-7-1996 of the Deputy Manager, Legal of the 1st respondent Board it was re-iterated that the petitioner was not entitled to utilise the additional load unless it was specifically released by the competent authority, and that mere filing of an application for additional load, payment of consumption deposit and execution of agreement by the petitioner was not sufficient for utilisation of the additional load, and that there must be a specific sanction from the competent authority releasing the additional load "as required under Condition 17 of the Terms and Conditions of Supply notified by the Board u/s 49 of the Electricity (Supply) Act, 1948'' and that the petitioner committed malpractice of exceeding the contracted load under Condition 39.1.2 of the Terms and Conditions of Supply. On that basis, the impugned orders of the 2nd and 3rd respondents were sought to be sustained.

Thereafter, the Chief Engineer (electricity), Metropolitan Zone, Hyderabad gave his counter affidavits dated 10-9-1996 and 29-10-1996. He sought to explain how the Junior Engineer came to use for his letter dated 12-2-1975 the printed pro forma referring to Rule 49 of the Indian Electricity Rules, 1937 even though by that date the Indian Electricity Rules 1956 came into force in supersession of 1937 Rules, by stating that as the concerned officer was not available that could not be explained. He relied on "Condition 17 of the Terms and Conditions of Supply, 1976" and stated that the record did not show that the petitioner had given any notice to the Board as required under that condition and that as per that condition it was implied that the consumer could avail of the additional load only after inspection of the installations by Board''s representative in pursuance of the notice sent by the consumer. He then stated in his affidavit dated 10-9-1996 as follows:

"As the records do not reveal that the mandatory procedure is not (?) followed by the petitioner, the appellate authority presumably held that the petitioner availed the load without" the Board releasing the same.

It is submitted that the correspondence made between the Chief Engineer (Electricity) APSEB and the Superintending Engineer, the Superintending Engineer and the Assistant Divisional Engineer which is available on records shows that the appellate authority, namely, Chief "Engineer had persistently pursued for placement of records with regard to the payments made by the petitioner towards the release of additional load and finally came to the conclusion that the petitioner has connected the additional load without the same being approved by the Board which constituted malpractice according to the Terms and Conditions of Supply".

Thereafter, when the matter came up on 16-10-1996 we noticed that the Terms and Conditions of Supply sought to be relied upon by the Chief Engineer were notified under B.P.Ms. No. 690 dated 17-9-1975 stating that they would come into effect from 20-10-1975 (''T&C of 1975'' for short) and that, therefore, Condition 17 of those Terms and Conditions was not in force and had no relevance when the petitioner applied for the additional load in December, 1974, and in February and March, 1975 when the petitioner was asked to pay and paid the service line cost and security deposit and when, according to him, additional load of 14 H.P. was released to his service. The learned counsel for the Board Mr. K.K. Jwala sought time for filing a comprehensive counter affidavit and also for production of all the relevant material and records. Thereafter, a second additional counter affidavit dated 29-10-1996 of the Chief Engineer, Electricity, Metropolitan Zone, Hyderabad was filed. Therein, he, inter alia, stated as follows:

"i. As per the clause 6.28 of power tariffs as amended up to 14-8-73 of A.P.S.F, Board, the Board shall make arrangements to supply electricity to persons who apply for the same in the manner prescribed and issue a notice after making such arrangements that the Board is ready to give supply. In this case, no such notice has been issued and hence no approval to the consumer to add additional load to the system.

j. As on today also, the Electricity Bills against the A/c. No. A2/3074 arc being received by the consumer only for a sanctioned load of 14 H.P. and hence no question of collecting the difference of minimum charges for the additional load of 14 H.P. from 1975 onwards.

k. There was already an existing three phase meter with 50 Amps capacity. Therefore, the unauthorised additional loud did not disturb the supply as the existing 50 A meter could with stand the existing and additional load making a total connected load of 23.25 H.P. Obviously, for these reasons, the consumer went on drawing additional load with impunity without there being any release of the additional load by the Board and deliberately avoided approaching the Board for release of the additional load."

Copies of the Terms and Conditions for Supply of electrical energy as amended up to 14-8-1973 (''T&C of 1973'' for short) were placed before us by Mr. K. N. Jwala. He, however, stated that the records relating to the sanction of the additional load communicated by the Junior Engineer by his letter dated 12-2-1975 were not traced and that, therefore, the original application made by the petitioner for additional load of 14 H.P. and the other related papers were not available and therefore could not be produced. Thus, no record is available with the respondents to positively establish that the additional load of 14 H.P. was not released to the petitioner after he paid the fresh deposit of Rs. 850/-and the sum of Rs. 151/- as per the said letter of the Junior Engineer dated 12-2-1975. Original-receipt No. 9-1213 dated 1-3-1975 for Rs. 151/- produced before us also makes reference to A 026443 dated 24-2-1975.

The Assistant Divisional Engineer gave two additional counter affidavits: one dated 3-11-1996 and another dated 6-11-1996. In his first affidavit he stated as follows:

"It is submitted that the consumer even though had paid the deposit amounts, did not make a requisition for the release of the additional supply for a load of 14 H.P. From the records, there is no proof available, such as certificate from a licenced electrical contractor for the completion of the installation of the equipment additionally to be connected to the system and the test report in proof of releasing the supply. However, from the monthly bills of consumption it is clear that the supply for the additional load'' of 14 HP was not released and the consumer has been drawing the energy without release of supply. A copy of the bill issued against the account A2-3074 of the consumer for the month of August, 1996 is herewith submitted. From this it can be noticed that the consumer is still receiving the bills for the contracted load of 14 HP only but not for 28 HP. It can also be seen that only Rs. 210/- at the rate of Rs. 15/- per HP for 14 HP is included in the bill towards fixed charges.

... As per the statement furnished by the Accounts Officer, a copy of which is enclosed herewith the difference of amount towards minimum charges/fixed charges which are applicable for the period from March, 1975 to October, 1996 works out to Rs. 19,432.11 Ps. The minimum charges were made applicable from March, 1975 up to September, 1990 and the fixed charges are made applicable from October, 1990 till today as per the tariffs of the Board.

It is respectfully submitted that from the statement of account the consumer has becomes liable to pay the difference of minimum charges/fixed charges in a sum of Rs. 19,432.11 Ps. together with interest, thereon at 2% per month as per the rules of the Board".

In his second additional counter affidavit dated 6-11-96 he gave the rates of minimum/fixed charges applicable to the petitioner''s account No. A2-3074 as per the tariffs of the Board for L.T. Category III per H.P. of contracted load for the period June, 1974 till date as follows:

S.N. B.P.Ms. No. and date with effect from Minimum/fixed charges per HP of contracted load

2. 3. 4. 5. 6. 7. 8. 9. 272 dt. 01-05-1974 778 dt. 18-10-1975 807 dl. 26-09-1980 418 dt. 02-06-1981 1014 dt. 13-12-1983 671 dt. 10-06-1987 353 dt. 15-04-1989 225 dt. 16-10-1990 167 dt. 01-08-1995 01-06-1974 20-10-1975 01-11-1980 05-07-1981 15-01-1984 15-07-1987 01-06-1989 01-11-1990 02-08-1995 to till date Rs. 8 per KW (Minimum charges) Rs. 7 per HP " Rs. 8 per HP " Rs. 10 per HP " Rs. 12 per HP " Rs. 15 per HP " Rs. 20 per HP " Rs. 10 per HP (fixed charges) Rs. 15 per HP "

From the statement furnished by him along with his additional counter affidavit dated 3-11-1996, it is seen that the monthly billed amounts for the energy consumed by the petitioner from March, 1975 till October, 1980 were more than the minimum charges payable by the petitioner except for March, May, October and November, 1975; August, 1978; April, May and August, 1979; and March, September and October, 1980. It is further seen that in all a sum of Rs. 481.23 Ps. is the amount payable by the petitioner towards deficit minimum charges during the six years from 1975 to 1980.

The petitioner gave a reply affidavit dated 5-11-1996 stating that he handed over the certificate issued by the licensed wiring contractor to the concerned officer of the circle at the relevant time and that after receiving the initial assessment notice dated 9-10-1980 he discontinued utilising the additional load of 14 HP and also got removed all the connections for the additional load, and that therefore he was responsible for the

contracted load of 14 H.P. only, and that he had been receiving bills on the basis of initial contracted load of 14 H.P. only, and that probably that might be the reason why the respondent did not insist on his paying the fixed charges on the extra load of 14 H.P. He also stated that he paid the balance amount of Rs. 1,132.39 ps. on 10-10-1988 after, the disposal of his appeal by the 2nd respondent on 30-7-1988. We may state that this payment is not disputed by the respondents. He further stated as follows:

"Since, I paid service line charges of Rs. 151/- and additional deposit of Rs. 850/- and entered into L.T. agreement with the respondents for the additional load of 14 H.P. I approached this Hon''ble Court with a view to get the additional load since I complied with all the necessary formalities. As far as fixed charges are concerned, the respondents never made any demand and there was no necessity for me to pay the same for the additional load of 14 H.P."

We are not inclined to accept the stand of the petitioner taken for the first time in his reply affidavit of 5-11-1996 that he discontinued utilising the additional load of 14 H.P. after receiving the initial assessment notice dated 9-10-1980. This stand goes against the categorical statements made by him in his appeal to the 2nd respondent dated 6-2-1981 and in his affidavit in support of the present writ petition; and he had never given any notice of such discontinuation to the respondents at any time. In his appeal dated 6-2-1981 he stated that the additional load of 14 H.P, was given connection after payment of the additional deposit of Rs. 850/- and service line charges of Rs. 151/-, and as follows:

"We are running our factory in accordance with the sanctioned load of 28 H.P. by the concerned office".

The petitioner appealed to the 2nd respondent on 6-2-1981 and the latter disposed of the appeal seven years later on 30-7-1988 observing as follows:

"In the course of personal bearing on 20-5-88, the appellant put forth that their original load was 14 HP and additional load of 14 HP was released in 1975 against the deposit of Rs. 850/-. The appellant has shown the following records relevant to the above additional load.

X X X

(iii) Application dated 1-12-1974 addressed to the Superintending Engineer, City Circle, Hyderabad for increased load ...

(iv) Receipt No. 202109, dated 4-12-74 for application fee

(v) Copy of LT agreement

(vi) Copy of letter dated 8-9-80 addressing to A.D.E. . .

(vii) Copy of the intimation letter. . . dated 12-2-75. . .

The appellant has also stated that they are prepared to pay the difference in minimum charges wherever necessary for the additional load of 14 HP from 1975 onwards".

If the petitioner discontinued utilising the additional load of 14 H.P. in 1980 itself he would not have stated so to the 2nd respondent in the course of personal hearing on 20-5-1988. The petitioner admitted in his affidavit dated 3-10-1988 In support of the present writ petition that the personally informed the 2nd respondent during the hearing as follows:

"I also informed that I am prepared to pay the differences in minimum charges wherever necessary and as a matter of fact, the difference of minimum charges on the additional load of 14 H.P. was collected from the petitioner from 1975 onwards".

He had not stated that he discontinued utilising the additional load of 14 H.P. after the initial assessment notice dated 9-10-1980. The fact is that the respondents continued to send the bills on the basis of the initial contracted load of 14 H.P. only, and that the respondents never made any demand for minimum/fixed charges for the additional Toad of 14 H.P. even after 1980. Obviously inspired by that, the petitioner has now taken the present stand because of the testy and unreasonable attitude of the respondents in not regularising the additional load of 14 H.P. in spite of his very reasonable request made at the earliest in his letter dated 8-9-1980 itself for making the necessary entries in the ledger for the connected load of 28 H.P. "at your earliest "and in spite of his willingness to pay the difference in minimum charges wherever necessary for the additional load of 14 H.P. from 1975 onwards. If the respondents rectified the position in 1980 itself the petitioner would have paid the minimum/fixed charges as and when demanded by them. It is inexplicable why the respondents did not do that and did not drop the proceedings when, as we have pointed out earlier, the deficit minimum charges during the six years from 1975 to 1980 on the basis of 28 H.P. connected load is only Rs. 481.23 ps. Even the so called loss sustained by the Board as assessed by the 3rd respondent is only Rs. 2,264.80 ps. This speaks volumes about officialdom''s inscrutable ways.

The question is whether the impugned orders of the 3rd and 2nd respondents are liable to be quashed.

We shall first examine the final order of the 3rd respondent dated 21-1-1981. To be valid that has to be made in accordance with the relevant conditions. Condition 39.9.1 of T&C of 1975 requires the 3rd respondent to issue a show cause notice in the form prescribed therefore advising the consumer to file his representation if any within 30 days from the receipt of the notice; and condition 39.9.2 mandates as follows:

"39.9.2 The said officer of the Board shall, after the expiry of the aforesaid notice period, enquire into the matter and after giving reasonable opportunity to the consumer and taking into account all relevant facts and circumstances shall decide whether the consumer has committed malpractice or pilferage of energy and if so satisfied proceed to assess to the best of his judgment, the loss sustained by he Board on account of such malpractice or pilferage of energy by the consumer. The consumer may be represented by an advocate or any other person at the time of personal hearing provided the consumer files proper vakalatnama or power of Attorney as the case may be".

This condition requires that after expiry of 30 days given to the petitioner for finding his representation, the 3rd respondent should enquire into the matter after giving reasonable opportunity to him and he should: (i) then decide, taking into account all relevant facts and circumstances, whether the petitioner had committed malpractice; and (ii) if so satisfied, proceed to assess to the best of his judgment the loss sustained by the Board on account of his malpractice -- we are concerned in the present case only with the alleged malpractice and not pilferage. Condition 39.9.3 requires that the 3rd respondent should pass an order setting out his conclusions and the reasons thereof : which means that he has to give his reasons for his findings as regards the committal of malpractice, as well as for his assessment of the loss sustained by the Board. A perusal of the order of the 3rd respondent dated 21-1-1981 discloses that he did not give any finding on the question whether the petitioner committed any malpractice taking into consideration the undisputable fact that he applied for additional load of 14 H.P. on 1-12-1974 itself, and that by letter dated 12-2-1975 he was asked to remit Rs. 850/- and Rs. 151/-, which he did on 27-2-1975 and on 1-3-1975 respectively. We have earlier referred to the petitioner''s letter dated 8-9-1980 addressed to the 4th respondent placing on record the said facts enclosing copies of the letter of the Junior Engineer dated 12-2-1975 and of the two receipts. That letter is not disputed by the respondents. In the circumstances, it must be taken that the said letter dated 8-9-1980 of the petitioner was before the 3rd respondent when he passed the order dated 21-1-1981. Had an opportunity been given to the petitioner as contemplated by condition 39.9.2 these facts could have been reiterated before the 3rd respondent personally by the petitioner. In the absence of any finding that there was malpractice not to speak of reasons for such finding -- the question of assessing the loss suffered by the Board did not arise. The 3rd respondent assumed without any enquiry that the petitioner committed malpractice of exceeding the connected load at the relevant time. That is not permissible. He should have enquired into the question whether the petitioner committed the alleged malpractice keeping in view the Terms and Conditions in force at the relevant time and the facts and circumstances of the case, and then given his finding with, reasons. This he did not do. The order of the 3rd respondent dated 21-1-1981, therefore, deserves to be struck down for the reasons stated above.

The 2nd respondent by his order dated 30-7-1988 dismissed the appeal of the petitioner even though all the necessary facts were placed before him in support of the claim of the petitioner that he had not committed any malpractice because he applied for the additional load of 14 H.P. and paid the necessary amounts in February/March, 1975 itself as per the letter of the Junior Engineer dated 12-2-1975 and that the additional load of 14 H.P. was given connection after he made the payments, on the ground that "the consumer is not entitled to connect the additional load unless it is specifically released by the competent authority of the Board duly observing the feasible conditions of the field" and that "inasmuch as the additional load of 14 H.P. has not been released to the consumer, the payment of difference in minimum charges for additional load of 14 H.P. as stated by the appellant does not arise". But the finding of the 2nd respondent that the additional load was not specifically released by the competent authority is not supported by any material. Though T&C of 1975 contained condition 17 dealing with extension and alterations and provided categorically that "during such time as alterations, additions or repairs are being executed, the supply to the circuit which is being altered, added to or repairs must be entirely disconnected and it shall remain disconnected until the alterations, additions or repairs have been tested and passed by the Board", there was no such condition under T&C of 1973. While enquiring into the question whether any malpractice was committed by the petitioner, the respondents erred in ignoring the Terms and Conditions in force at the relevant time i.e., when the petitioner sought additional load. It is slated by the 2nd respondent in his counter-affidavit dated 29-10-1996 that the relevant conditions at that time was 6.28. That condition was introduced by B.P. Ms. No. 360 dated 4-8-1970 and it was as follows:

"6.28. Subject to Clause 6.5, the Board shall make arrangements to supply electricity to persons who apply for the same in the manner prescribed, and issue a notice after making such arrangements that the Board is ready to give supply and that such supply may be utilised by the applicant within a period of three months from the date of issue of the notice.

Every consumer shall pay to the Board from the date of commencement of supply of energy or from the date of expiry of three months notice whichever is earlier, maximum demand charges, energy charges. surcharges, meter rents and other charges, if any, as prescribed in the terms and conditions of supply notified by the Board from time to time for the particular class of consumers to which he belongs, or special guarantee wherever it is prescribed. In case the consumer fails to take supply within the three months period, monthly Minimum Charges or special minimum guarantee as the case may be will be levied as mentioned in Clause 6.25.

Provided that in respect of L.T. supply the above amendment shall come into force from 1-5-1971."

Condition 6.5 referred to in condition 6.28 dealt with the Board''s obligation to supply electrical energy and it stated that subject to the relevant provisions of the Indian Electricity Act, 1910 and the Electricity (Supply) Act, 1948, the Board would not be bound to supply energy to any consumer unless the scheme for supply of energy to the consumer was remunerative. Condition 6.28 did not specifically deal with extensions and alterations like condition 17 of T&C of 1975. Assuming that condition 6.28 also applied to cases of additional loads, we find that as per that condition the consumer should apply for the additional load in the manner prescribed, and thereafter the Board should make arrangements to supply the additional load to him and give a notice after making such arrangements that it was ready to give supply, and then the consumer should utilised the additional load within a period of three months from the date of issue of the notice, and if the consumer failed to take the additional load within that period, monthly minimum charges etc., would be levied. In the present case, it cannot he disputed that the petitioner applied for the additional load on 1/4-12-1974 itself, and that he was asked to pay the sum of Rs. 850/- and Rs. 151/- and that he paid the same by March, 1975. The petitioner was not required to do anything more under the Terms and Conditions of Supply in force at that time. We have also to notice in this connection condition 6.2.4 of T&C of 1973 which was as follows:

"6.2.4 No consumer availing the supply of energy at low tension shall increase the connected load or contracted demand beyond the contracted limits, in the cases where there are more than one motor, subject to the condition that such contracted load shall not be less than 60% of the total connected load. No consumer availing the supply of energy at L.T. shall increase his connected load without prior permission of the Board, in default of which the Board shall be entitled to disconnect the service of any consumer. No consumer shall also exceed the contracted demand without obtaining the sanction of the Board. Any consumer violating this obligation shall be liable to compensate the Board for all damages occasioned to its equipment or machinery by reason of this default and shall also be liable to pay a surcharge of 25% on the bill amounts relating to that month. Without prejudice to that right the Board may also cause the service of the consumer to be disconnected.

Provided that no penalty shall be levied where the consumer has not exceeded the contracted demand by more than 5% of the contracted 3 em and".

This condition only stipulated that before a a consumer increased his connected load he had to obtain prior permission of the Board and that in default the Board was entitled to disconnect the service of the defaulting consumer. This conditions was in force at the relevant time and applied to the petitioner. On the facts of the present case, it cannot be said that the petitioner increased the connected load without prior permission of the Board. No objection was taken from 1975 to 1980 on the ground that the petitioner exceeded the contracted load. The petitioner states that the additional load was released to his service after he made the payment. There was no need for the change of the meter because, as admitted by the 2nd respondent in his affidavit dated 29-10-1996, there was already an existing three phase meter with the requisite capacity and therefore the additional load did not disturb the supply. It is, therefore, not the case of the respondent that any further procedure was involved as per the Terms and Conditions in force at the relevant time or that anything was required to be done at the premises of the petitioner in effecting the so called "release of the additional load by the Board" to the petitioner. If some paper work was there to be done and the respondents failed in correcting their registers, it cannot be held that the petitioner was at fault or was responsible for their lapse. For some reason, minimum charges in respect of the petitioner''s service connection were not calculated on the basis of the enhanced connected load of 28 H.P. -- it may be by oversight. However, on this stile basis it cannot be concluded that the petitioner committed the malpractice of increasing the connected load without prior permission of the Board. The 3rd and 2nd respondents did not examine the matter keeping in view the Terms and Conditions in force at the relevant time when the petitioner applied for the additional load and was asked to pay the necessary amounts and paid the same and according to him was allowed to take the additional load. The burden is on the respondents to establish that the petitioner committed ''malpractice'' of exceeding the connected load unauthorisedly under condition 6.2.4 and we are of the view that on the facts of the present case it would be unreasonable and arbitrary to take that view.

We therefore hold that on the facts of this case the finding of the 3rd and 2nd respondents on behalf of the 1st respondent Board that the petitioner committed malpractice of exceeding the contracted load without specific permission of the Board is unreasonable and arbitrary and without any basis. The respondents failed to examine the matter keeping in view the Terms and Conditions of Supply in force at the relevant time when the petitioner applied for additional load of 14 H.P. in December, 1974 and did what all was necessary by him in February and March, 1975 as per the Terms and Conditions in force at that time i.e., obtaining prior permission of the Board for increasing the connected load.

In the result, the impugned orders of the 3rd respondent dated 21-11-1980 and of the 2nd respondent dated 30-7-1988 are set aside. The petitioner has agreed to pay the minimum charges on the additional load of 14 H.P. from 1975 onwards. It is stated before us that the minimum/fixed charges due from the petitioner from March, 1975 up to October, 1996 on the basis of the permitted connected load of 23 H.P. is Rs. 19,439.11 ps. The petitioner paid a sum of Rs. 2,314.80 ps. under the impugned orders which we have now set aside. Deducting that amount, the balance payable by the petitioner towards the said minimum/fixed charges is Rupees 17,117.31 ps. In view of the fact that the petitioner requested the 4th respondent in, his letter dated 8-9-1980 to make necessary entries in the records for the connected load of 28 H.P. at the earliest, and agreed to pay the difference in minimum charges wherever necessary for the additional load of 14 H.P. from 1975 onwards, we direct the respondents to receive a sum of Rs. 17,117.31 ps. from him without imposing any penal interest or charges if the said sum is tendered by him within three weeks from today i.e., by 2nd December, 1996. If, however, the petitioner fails to pay the said amount by 2-12-1996, it will be open to the respondents to disconnect the supply of energy to the petitioner''s service connection and also require the petitioner to pay the said sum with the applicable penal charge and/or interest for restoring connection. By 2-12-1996 the respondents shall also correct their books and accounts showing therein the contracted load of the petitioner''s service connection as 28 H.P. with effect from March, 1975 and a fresh agreement may be got executed by the petitioner, if necessary, for the load of 28 H.P. The respondents are required to report compliance by 5th December, 1996.

The writ petition is accordingly allowed with costs. Advocate fee Rs. 500/-.

Office is directed to post this writ petition on 6-12-1996 for reporting compliance.

Petition allowed.