Pawan Kumar Kedia vs CESC Limited and Others

Amitava Lala, J.—This writ petition was made on 4th December, 1996 challenging the disconnection of the electricity line'' without notice and claim of electricity charges, additional security deposit etc. on and from 21st November, 1996. The supplying authority being CESC Limited under the notice dated 21st November, 1996 admitted that such disconnection was made without notice. Under the self-same notice it has been informed that during the inspection of the service installation on 21st November, 1996 the representative of such respondent found seal(s) on the meter body/bodies were found spurious to dishonestly abstract/consume/use energy in violation of Sections 39, 40, 44 and Clause VI(l) 2nd proviso (b) of the Schedule of the Indian Electricity Act, 1910, Rule 56 of the Indian Electricity Rules. 1956. It was further informed that installation also did not comply with the following manner as required in Rule 61(2) of the Indian Electricity Rules. 1956. Two separate distinct earth connections to motors were not provided. At the interim stage a Bench of this court was pleased to pass an order on 10th December. 1996. From such order few parts are very clear. Firstly, the petitioner was directed to pay a sum of Rs. 15.000/- together with reconnection charges within a period of 48 hours from the date of the order and upon such payment the electricity connection will be restored. Such payment was made and the electricity connection was also restored. Secondly, the respondents were directed to install new meter and to keep the old meter under a sealed cover so that the court may pass any order as regards this, if any, when such occasion will arise. Thirdly, the respondents were directed to take all steps for prevention of pilferage/theft of the electrical energy including inspection of the premises in question with or without notice upon the petitioner. Fourthly, the order shall not stand in the way of investigation in the criminal proceeding, which has been initiated.

Today, as and when the matter was argued at length before this court it appears that no such point is very much relevant at this Juncture. The only argument as advanced by the petitioner and opposed by the respondents is whether the matter can be referred to the Chief Electrical Inspector for the purpose of necessary inspection and passing an appropriate order to that extent or not. The contention of the petitioner is that purported pilferage is an other name of improper use of energy or in an unauthorized manner, therefore, there cannot be any embargo upon such authority to decide the issue even in case of alleged pilferage. By joining the issue therein the only submission on the part of the respondents/CESC Limited is made that by virtue of the condition of supply introduced on 15th March, 2000 not the Chief Electrical Inspector but CESC Limited is itself entitled to investigate the matter.

Therefore, let me confine my judgement only on that score. According to me, grammatically the word ''pilferage'' means either to steal in small quantities or petty theft. However, the word ''pilferage'' is available only in the interim order but not under the notice dated 21st November. 1996. In any event, unless and until the question of pilferage arises, court cannot suo motu incorporate the same. Hence, it is better to proceed on basis of the fact that a case of pilferage has been raised by the respondents. Section 2 of the Indian Electricity Act does not also speak anything about ''pilferage''. Therefore, what is pilferage is a big question before the Court of Law. There is a reason to say the same. If, pilferage means theft be it small or large, there would be an establishment of fact of theft. Such establishment of fact of theft will come out from a proper investigation. There are two modes of investigation. One is departmental investigation and another is criminal investigation. In a case of departmental investigation if any finality is reached, either way. it will be a determining factor between the licensor and the consumer being a contracting party in between themselves. Therefore, unless and until a third party decides such issue arbitrary or malafide action cannot be ruled out. There might have been element of crime on the basis of prima facie satisfaction, FIR (First Information Report) by police authority to such extent but the same will reach its finality when a Court of Law finally decides the same against the party who committed such crime. Similarly, if anything is found in the premises of a consumer which leads to improper use of electricity, in whatever name it is called, the same has to be investigated and a prima facie case will be made out and thereafter it will be decided by an appropriate adjudicating authority. But from the notice of CESC Limited dated 21st November. 1996 it appears that not only such authority had investigated but also reached to the finality and disconnected the electricity line without notice holding the view of the dishonest consumption of electricity. Therefore, can it be said permissible in accordance with law? In the notice, the charges levelled are under Sections 39, 40 and 44 of the Act. Section 39 speaks about theft of the energy. Section 40 speaks about penalty for maliciously wasting energy or injuring works. Section 44 speaks about penalty for interference with the meters or licensee''s works and for improper use of energy. These three sections are distinct from each other. However, such notice has not only indicated such sections alone but various other parts of the Act as well as Rules. The notice is very much specific about Clause VI(1) 2nd proviso (b) of the Schedule of the Act which speaks of the owner or the occupier of the property to which the supply is made adopts appliance or uses the energy supplied to him by the licensor for any other purpose, or deals with it in any manner so as to unduly or improperly interfere sufficient supply or energy to any other person by the licensor. Further, it referred to Rule 56 and Rule 61(2) of the Indian Electricity Rules, 1956. Rule 56 speaks about sealing to meters and cut outs in accordance with Section 26. Rule 61(2) speaks that the frame of every generator, stationary motor, portable motor, and the metallic parts (not intended as conductors) of all transformers and any other apparatus used for regulating or controlling energy'' and all medium voltage energy-consuming apparatus shall be earthed by the owner by two separate and distinct connections with earth.

Hence, if the legal aspects as aforesaid are taken together it cannot be said that the subject matter of dispute in between the licensee and the consumer is an outcome of pilferage simpliciter. It is far more clear from the reference of Sections and Rules under the notice itself. Section 39 is speaking for punishment for theft of energy by taking into account the same as criminal offence. But that does not speak about resolving any dispute in connection with the improper use of the meter. Section 40 is made for penalty for maliciously wasting energy or injuring works. Therefore, it is also not speaking for any dispute as regards improper use. The only remaining section being Section 44 speaks about the same. It is an exhaustive one. It is talking for penalty for interference of meters and licensee''s works and for improper use of energy. It also speaks about Section 26 which deals with the meter. If I take this analysis with the help of specific part of the Schedule and Rules it will be seen that the authority intended to issue a notice specifically under (lion 44 of the Act. Clause VI(I) 2nd proviso (b) of the Schedule of the Act is very much specific on thee same. So far as Rule 56 is concerned this is also related to Section 26 of the Act about a matter of dispute regarding the meter. If I go further to Rule 61(2) I shall be able to find that it is a case of technical dispute which can be resolved by an independent person to be appointed hereunder.

Therefore, let me go back to the original section which relates to meter i.e. Section 26 of the Act. It appears to me that in case of the disputes in respect of the meter a notice is to be issued by the licensee, at any reasonable time and on informing the consumer his intention, to have access to and be at liberty to inspect and to test the meter in question. Here the specific case is that the inspection was made by (sic)ESC Limited and certain improper activities were found on the part of the consumer and thereafter a notice was served.

Against this background, let me consider the judgments cited before this court. The Learned Counsel of the petitioner mainly relied upon the judgement of this court reported in 1998(3)CLT 399 (Pankaj Kumar Mukherjee vs. CESC Limited & Anr. with other matter). In such judgement a Bench of this court held that pilferage by hooking or by using some apparatus for abstracting electricity dishonestly are some of such incidents which may not really call for further investigation or enquiry and. therefore, giving prior notice, but calling for immediate disconnection for electricity. But such situation may not arise in case of each and every incident of pilferage, for example in cases of tampering of the meter, breaking of the seal or changing the same etc. where the CESC really forms a prima facie opinion that by such tampering on breaking of the '' seal attempt has been made to abstract electricity dishonestly in such a manner that such consumption is not recorded in the meter. In such case, in view of the aforesaid judgement in the case of Hanuman Steel Rolling Mill vs. CESC Ltd. reported in 1996(1) CHN 469 disconnection cannot be made without giving notice. I have already held that this is not a case of pilferage simpliciter as it has been pointed out in that judgement. I cannot also hold it is good that the disconnection made without giving a notice is proper.

In M/s. Hyderabad Vanaspathi Limited Vs. Andhra Pradesh State Electricity Board and Others, it was categorically held by the Supreme Court that the case of malpractice and pilferage is to be decided by the Electrical Inspector to be appointed by the Board and not by the Officers of the Board.

Section 6(3) says that where any difference or dispute arises as to the amount of energy to be taken or guaranteed as aforesaid, or as to the cost of any service-line or as to the sufficiency of the security offered by any owner or occupier, (or as to the position of the meter board) or as to the improper uses of energy, or as to any alleged defect in any wires, fittings, works or apparatus, or as to the amount of the expenses incurred under the third proviso to sub clause (i), the matter should be referred to the Electrical Inspector and decided by him. When the case of the respondent is categorical on the basis of the notice dated 21st November. 1996 it is obvious that improper use of the energy and the defect in wires, fittings, apparatus etc. has to be decided by the Electrical Inspector. It is to be noted hereunder that when two relevant facts are available under the notice whereunder one is to be adjudicated by an independent person and if the element of one of such facts is much more specific and attractive on the basis of the facts and circumstances of this case then the other automatically becomes incidental to the main fact and the independent authority will be governed by such Rules in adjudicating it.

In Madhya Pradesh Electricity Board and Others Vs. Smt. Basantibai, the dispute was considered within the four comers of Section 26(6) of the Act and held that Electrical Inspector is the appropriate authority to decide this issue. So far as the question in breaking the body seal of the meter and in burning the same whether that attracted Section 26(6) of the Act or not had not been decided in such judgement because of the reason that the learned Counsel appearing for such authority did not place the ground of fraud. Therefore, such judgement on that score cannot be any precedent to be followed by the court.

In 1997(2) CHN 254 (State of West Bengal & Anr. vs. Rupa Ice Factory & Ors.) it was held by a Division Bench of this court that the phrase "improper use of energy" means use of energy in an unauthorized manner. The consumption of electricity by direct tapping as alleged in this case would come within the phrase.

According to me, there is a general misconception as to the process of adjudication before the Electrical Inspector and before the Arbitrator. An Arbitrator may not be the technical person to adjudicate the question of pilferage and many other technical matters. Similarly the Code of Criminal Procedure cannot adjudicate the same unless and until it is properly opined by an independent person except in the cases where it is a matter of third party intervention or the case is so apparent that even without any other finding by an independent person criminal case can be proceeded. But the case like the present where there is an apprehension of theft or unmetered consumption or technical defect or improper use of energy etc. then the case of theft or pilferage cannot occupy the field transgressing other elements. In such case, element of adjudication by an independent technical expert arises. Therefore, such independent person will furnish a technical report as to whether it is a case of technical difficulty or it is an unmetered consumption or improper use where the consumer may not be the party. These are to be eliminated before coming to any conclusion. It has to be remembered that the place where the consumer''s meter is situated such place is to be treated as the place of licensee. Under normal circumstances, it is situated at the outside of the premises. Therefore, intervention of the third party may not be ruled out. Similarly if the consumer is cautious in checking up the meter regularly such type of dispute may not crop up. A line can be drawn in between the facts that a consumer may be either a wrongdoer or a victim of circumstances. Therefore, when two possibilities are there, an independent technical person like the Electrical Inspector is definitely entitled to be appointed to decide this issue. However, the case of the respondent is that as because the condition of supply came into force in 2000 Electrical Inspector cannot resolve such type of dispute. In view of an unreported Division Bench judgement in APOT No. 626, G.A. No. 4314 of 2002 (CESC Limited & Ors. vs. Mrs. Amita Sukhani) as per the Clause 29 of the condition of supply as amended on 15th July, 2000 the respondent authority can take appropriate steps. Such condition of supply has statutory force.

However, since the condition of supply came into force on 15th May, 2000 the same will not be applicable in the ease of the petitioner without retrospective effect. Hence, the forum for Chief Electrical Inspector is appropriate forum for adjudication of the dispute amongst the parties, therefore, in disposing of this writ petition the matter is referred to the Chief Electrical Inspector for his adjudication - upon giving notice to all the parties concerned giving reasonable opportunity of hearing to come to an appropriate conclusion with reasons in this respect within a period of one month from the date of communication of this order.

Thus the writ petition stands disposed of. No order is passed as to costs. Xeroxed certified copes of this judgement will be supplied to the parties within seven days from the date of putting requisites for drawing up and completion of the order and certified copy of this judgement.