Om Parkash Sharma vs Chandigarh Administration

Ritu Bahri, J.—The petitioner is seeking setting aside of the assessment order/notice bill dated 30.04.2013 (Annexure P-1) and inspection report dated 20.04.2013 (Annexure P-4/Colly).

The petitioner is residing in a self owned house measuring 71/2 Marlas in Sector 22, Chandigarh. This house was purchased by him in the year 1986 with three separate electric connections in each floor. The sanctioned load of ground floor was 6.000 KW, first floor was 2.200 KW and on the top floor was 0.580 KW. On 20.04.2013, certain persons/officials from the Electricity Department came and inspected the premises of the petitioner. It was found that the load connected by the petitioner was much beyond the permissible limit. Some seals affixed on the meters appeared to be disturbed. Thereafter, the aforesaid meters were removed and put in cardboard boxes. The electricity supply of the petitioner was disconnected. Consequently, the petitioner handed over a cheque of Rs. 1,25,000/- drawn at Punjab National Bank, Sector 22, Chandigarh and thereafter, the electricity was restored.

On 08.05.2013, the petitioner received three notices bearing Nos. 1172, 1173 and 1174 dated 30.04.2013 (Annexures P-1/A, P-1/B and P-1/C), issued under Clauses 10.1, 10.5 and 10.4 of the JERC Electricity Supply Code Regulation, 2010, whereby he was asked to deposit Rs. 12,39,675/- for account No. 2253/077700E, Rs. 83,003/- for account No. 2253/077705Q and Rs. 25,655/- for account No. 2253/077704P.

Grievance of the petitioner, in short, is that as per the Joint Electricity Regulatory Commission (Electricity Supply Code) Regulations, 2010 (for short ''Regulations 2010), there is a procedure prescribed under Chapter 10.5 for inspection and provisional assessment in the cases of theft of electricity. As per Chapter 10.5 sub-clause (b), the provisional assessment and notice to the consumer has to be given in the following manner:-

10.5 (b) Provisional Assessment and Notice to the Consumer (i) After the Authorized Officer comes to the conclusion that theft of Electricity has taken place in the premises (as defined u/s 135 of the Act), he shall serve a provisional assessment order upon the person in occupation or in-charge of the premises, giving 7 days time under proper receipt, for filing objections, if any, against the Provisional Assessment Order and fixing a date of hearing. The assessment shall be done as per guidelines provided in Annexure-7 and a notice shall be issued in the format at Annexure-6, appended to these regulations.

(ii) Any consumer/person served with the order of provisional assessment shall accept such assessment and deposit the assessed amount with the Licensee within seven days of service of such provisional assessment order upon him.

As per the above regulations, the petitioner after receiving notices dated 30.04.2013 (Annexures P-1/A, P-1/B and P-1/C), vide letter dated 09.05.2013 (Annexure P-2), asked respondent No. 3 to supply copy of checking report along with other documents necessary for putting complete defence and sought opportunity of hearing before declaring it as a case of theft of electricity. A reminder was also sent on 17.05.2013 (Annexure P-3).

The respondents, on the other hand, sought payment of the amount within 24 hours as per letter dated 17.05.2013. Finally, the respondents sent a letter dated 17.05.2013 (Annexure P-4 Colly.).

The petitioner is seeking quashing of the notice/orders (Annexures P-1 and P-4) on the ground that no procedure under Clause 10.5, sub-clause (b) of Regulations 2010, was adopted by the respondents. The respondents have treated the order/bill dated 30.04.2013 (Annexure P-1) as the final assessment order without following the procedure of Clause 10.5, sub-clause (b) of the above Regulations.

Stand of the respondents, in written statement, is that the petitioner was found indulging in the theft of electricity in all the three electricity connections on the first, second and third floors, as per the checking done on 20.04.2013. The seals of the meters were tampered and three phase meter installed feeding ground floor was found direct kundi connection from ''R'' phase meter terminal to the main switch by putting 1 meter, red coloured, copper wire. Hence, the petitioner was rightly charged u/s 135 of the Electricity Act, 2003. The sanctioned load of three connections was 6.00 KW, 0.580 KW and 2.200 KW and the load, detected against these connections, was 16.565 KW, 4.560 KW and 9.720 KW respectively. Hence, the petitioner was found to be using load in excess to the sanctioned load, which is an act of unauthorized use of electricity as per Clause 10.1 (2) of the Electricity Supply Regulations, 2010. However, keeping in view the age of the petitioner, the electricity connection was restored after he made payment of Rs. 1,25,000/-. The procedure for passing the assessment order (Annexure P-1) was adopted as per Clause 10.4 and 10.5 of Regulations, 2010 (Annexure D-4). The respondents have also referred to the undertaking given by the petitioner on 20.04.2013 (Annexure D-5), whereby he had admitted that the seals of the meter(s) were tampered and a red wire was got found direct in three phase meter. At the time of checking, the meters were packed in cardboard boxes and were sent to ME lab in his presence. The videography of the entire checking had been prepared. The petitioner was asked to pay the balance payment within 24 hours.

In the written statement, the respondents have not mentioned that as per Clause 10.5, sub-clause (b) of Regulations 2010, after the checking was conducted, why notice of seven days was not given to the petitioner, enabling him to file his objections, if any, against the provisional assessment order and thereafter, fix a date for final assessment order. For this purpose, necessary guidelines have been provided in Annexure-7 and a format, Annexure-6, has been published under these regulations.

In the replication, the petitioner has annexed consumption data of all the three floors since 2011 (Annexure P-9) in order to show that the consumption has actually risen since 2011. He has referred to a letter dated 31.05.2013 (Annexure P-7), vide which, respondent No. 3 informed the petitioner that all the three meters have to be tested in the M & P lab. Without getting the report from the ME lab, the final assessment order has been passed.

The respondents have also placed on record the prescribed CD dated 30.10.2013 (Annexure A-1).

After going through the facts of the present case, this Court is of the view that the respondents, after conducting checking of the premises of the petitioner, were bound to give him a notice of seven days as per Clause 10.5, sub-clause (b) of Regulations, 2010, so that the he could file objections, if any, against the provisional assessment order. This procedure has not been followed. Moreover, once the notice is given and objections are invited, a date for final hearing was to be fixed by the respondents. As per Regulation 10.5, sub clause (c), the Assessing Officer has to give opportunity of hearing to the consumer/person in occupation of the premises and has to pass a speaking order thereafter. That order should contain the brief of inspection report, submissions made by such person/consumer in his reply and during hearing. Copy of such order has to be given to consumer/person against proper receipt. In case of refusal to accept the order, it has to be served upon him under Registered Post, Speed Post, Courier etc. It is, thereafter, the consumer has to make payment within 15 days of the receipt of final assessment order. The final assessment order, at the most, can be for 12 months immediately preceding the date of inspection. After the deposit of amount, the electricity can be restored.

In the present case, after receipt of notices dated 30.04.2013 (Annexures P-1/A, P-1/B and P-1/C, the petitioner immediately wrote a letter dated 09.05.2013 (Annexure P-2) to the Sub Divisional Officer-respondent No. 3 for supply of necessary documents and providing opportunity of hearing under the provisions of the aforesaid Regulations. A reminder was also sent on 17.05.2013 (Annexure P-3). Finally, vide assessment order dated 17.05.2013 (Annexure P-4), the petitioner was informed that in view of the undertaking given by him on 20.04.2013, whereby he had admitted that the seals of the meters were tampered with, he was required to make balance payment within 24 hours. Justification for not giving an opportunity of hearing to the petitioner as per Clause 10.5, sub clause (b) of the Joint Electricity Regulatory Commission (Electricity Supply Code) Regulations, 2010, is that he had admitted in his affidavit that there was theft of electricity. The approach of the respondents by treating the orders (Annexures P-1/A, P-1/B and P-1/C) as final assessment orders under Clause 10.5, sub-clause (b) of the above Regulations, is liable to be rejected. As per the said clause, a seven days notice is required to be given and after receiving written reply, a speaking order is to be passed and is to be given to the consumer. After passing of the order, service thereof is to be made within 15 days. This procedure has not been followed in the present case.

Resultantly, the impugned orders/notices Annexures P-1/A, P-1/B, P-1/C and letter dated 17.05.2013 (Annexure P-4) are set aside and a direction is given to the respondents to give an opportunity of hearing to the petitioner, after supplying necessary documents, as sought by him vide Annexures P-2 and P-3 and thereafter, pass a speaking order in terms of Clause 10.5, sub-clause (b) of Regulations, 2010. The petitioner shall file his reply to the checking report dated 20.04.2013 and thereafter, the authorities shall pass an appropriate order in accordance with law.

The petition stands allowed accordingly.