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Judgment
S.R. Brahmbhatt, J.—Heard learned advocates appearing for the parties. The petitioner by way of this petition preferred under Article 226 of the Constitution of India has prayed as under;
A. Your Lordships may be pleased to admit and allow this Special Civil Application.
B. Your Lordships may be pleased to issue a writ of Mandamus or a writ in the nature of Mandamus or any other writ, order and direction of similar nature, declaring the actions of the respondent Board of issuing of revised bill and supplementary bill to be arbitrary, illegal and unconstitutional and also may be further pleased to quash and set aside the supplementary bill of Rs. 52,135.11 ps., the judgment and order dated 3.6.2004 passed by the Appellate Committee of the respondent Board in Case No. 2 Appeal No. 17464 and the revised bill dated 6.8.2004 of Rs. 32,424.90 ps.
C. Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to restrain the respondent Board from disconnecting the electric supply of the petitioner and also may be further pleased to restrain the respondent Board from recovering and demanding the amount of Rs. 34,424.90 ps. pursuant to the revised bill dated 6.8.2004.
D. Your Lordships may be pleased to grant exemplary costs to the petitioner.
E. Your Lordships may be pleased to grant any further relief, which may be deemed fit, in the facts and circumstances of this case.
Thus, what is essentially under challenge, is the order dated 03.06.2004 passed by the Appellate Committee of respondents, so far as it did not accept the appeal of the petitioner in its entirety and only partly allowed the appeal which resulted into small reduction in the originally raised supplementary bill amount.
Facts in brief leading to filing this petition, as could be gathered from the memo of the petition, deserve to be set out as under.
The petitioner, holding Consumer No. 87203/07627/0, was running a Photo Studio and carrying out video shooting activity also. For the purpose of studio, petitioner was using lamps, tube lights and air conditioner, as and when required. There was a drive undertaken by the respondents of changing the old meter at the relevant time. As a result thereof, on 09.12.2003, the petitioner''s old meter was replaced with that of new and the checking sheet was prepared which was duly signed by the petitioner. The petitioner was informed that it happens to be a routine checking of meters and it was not on account of any suspicion of any theft of electric energy. The meter was sent for testing in the laboratory and on 10.02.2004, the laboratory report indicated tampering with MMB Seal and non availability of terminal cover, which were the basis for raising the supplementary bill on the basis of satisfaction on the part of officers concerned that, the petitioner had abstracted electricity without permitting the meter to record energy consumption. The said supplementary bill was subject matter of appeal preferred by the petitioner inter alia contending grounds that the replacement of the old meter was a routine work. While undertaking that exercise, the concerned officer Shri Rupareliya himself had broke open the seal and as it was informed to him that it is a routine matter, he appended his signature to the checking sheet without undertaking the purport thereof and, therefore, the petitioner''s contention qua illegally raising of charge deserve to be accepted.
The Appellate Committee recorded its finding qua non availability of the terminal cover and tampering with the seal of MMB and came to the conclusion that the appeal on that count was not accepted, however, bill, under appeal, was ordered to be revised by adopting Composite Factor C/B. The order of the Appellate Committee dated 03.06.2004 is subject matter of challenge in this petition preferred under Article 226 of the Constitution of India.
Learned advocate for the petitioner contended that perusal of checking sheet, which bear the signature of the petitioner, do not indicate anywhere that there was any doubt or dissatisfaction qua running of the meter or position of the meter or MMB on the part of the respondent''s employees, who were entrusted with the work of removing the old meter.
Learned advocate for the petitioner thereafter invited this Court''s attention to the averments, made on oath, in paragraph No. 3.2 in the memo of petition which according to him would clearly show that the petitioner has clearly averred that MMB seal was opened by Shri Rupareliya. Learned advocate laid heavy reliance upon this averment and, therefore, Court is of the considered view that this averment deserve to be reproduced at this stage.
The petitioner submits that the respondent Board has carried out the drive of changing old meter and in that drive, the petitioner''s meter has been taken by the officers of the respondent board on 9.12.2003 and the new meter has been placed. It is submitted that the petitioner was having old meter prior to 1995 and therefore, the said meter was sent to the laboratory. It is submitted at the time of replacement of the said meter, the checking sheet was prepared by the respondent Board on 9.12.2003. It is submitted that actually it was not a checking for finding out any malpractice or theft but it was routine procedure by the officers of the respondent Board in the drive carried out by them. The petitioner submits that at the time of replacement and taking out all the meters, one Officer Shri Rupareliya, Helper of the respondent Board has informed the petitioner that this is a routine procedure for the purpose of refitting the old meters in the drive carried out by the respondent Board and for that purpose, he has taken the meter. It is submitted that when the meter of the petitioner was replaced by Mr. Rupareliya, he had cut the MMB seal so as to take out the meter. It is submitted that it was informed that this is a routine procedure. The petitioner further submits that though the MMB seal was cut by the officer of the respondent board, no adverse remark has been made in the checking sheet as the officer himself has broken the MMB seal for replacement of old meter. It is submitted that if any theft would have been committed then naturally, the same would have been mentioned in the checking sheet and would have been reflected therein. However, since the officers of the respondent Board were very much aware that it was not a theft and it was normal procedure for replacement of meter in the vicinity of the petitioner, no such thing had happened. It is submitted that in the checking sheet also, as there was no adverse remark made against the petitioner, the petitioner has signed the same without any protest.
Learned advocate for the petitioner thereafter submitted that unfortunately this specific averment with the name of the officers have remain uncontroverted as the reply affidavit do not indicate anywhere that there is any denial to this allegation in paragraph No. 3.2.
Learned advocate appearing for the petitioner thereafter contended that close reading of checking sheet and laboratory report would clearly indicate that when there was no finding qua tampering with the meter device and when the meter was found to be accurate and proper, then merely tampering or so called cutting of the MMB itself should not have been sufficient for slapping petitioner with an additional bill or a supplementary bill which was subject matter of challenge in appeal.
Learned advocate for the petitioner thereafter invited this Court''s attention to the order passed by the Appellate Committee in case of another consumer, copy whereof is produced at page No. 36, and submitted that there also the concerned Committee clearly opined that merely tampering or non availability of the lock of MMB itself, cannot be said to be sufficient for attributing theft of electric energy. Therefore, when such a finding is recorded by the Committee, then the Committee in case of the petitioner, could not have in any other manner viewed the case of the petitioner and the committee was, therefore, required to be consistent in its approach. The order annexed at page No. 36 is dated 10.04.2004, whereas the order impugned in this petition is dated 03.06.2004. The Committee member''s finding may be different, but that in itself would not have made any difference so as to approach the respondents of not having consistence with provisions of law.
Learned advocate for the petitioner thereafter contended that the petitioner''s profession for which the electric energy would have been consumed also did not warrant nourishing of any doubt on the part of the respondents. The respondents counsel''s submission qua abrupt enhancement in consumption recording after the replacement, is also not borne out in the affidavit in reply reading, therefore, from any count it can well be said that the order impugned is required to be quashed and set aside.
Learned advocate for the petitioner thereafter invited this Court''s attention to paragraph No. 3.5 in the petition and submitted that the breaking of seal is to be viewed from the provision of Rule 56 and 138 of the Indian Electricity Rules and those provisions have been reproduced at page No. 6 in paragraph No. 3.5 in the petition and it was contended that the penalty of breaking of seal is clearly provided thereunder, then there could not have been any other penalty without there being any proof and assertion of Rule 138 against the petitioner. The petitioner could not have been saddled with additional bill without there being any invocation of Section 138 of the Indian Electricity Rules i.e. penalty for breaking seal.
Learned advocate for the petitioner, therefore, submitted that the order impugned in this petition deserve to be quashed and set aside.
Learned advocate appearing for the respondents invited this Court''s attention to the affidavit-in-reply, checking sheet and the laboratory report and contended that the petitioner''s contention qua seal of MMB intact has not been accepted by the Appellate Committee rightly. Learned advocate for the respondents very closely read the order impugned and submitted that the findings recorded by the Appellate Committee based upon the technical expertise the same needs no interference by this Court in exercise of the power under Article 226 of the Constitution of India.
Learned advocate appearing for the respondents invited this Court''s attention to the checking sheet and submitted that the checking sheet is signed and it reflects the position when the meter and MMB were taken and sent for laboratory testing. The said checking sheet, which was duly signed by the petitioner, does not indicate anywhere what is sought to be canvassed on behalf of the petitioner qua Shri Rupareliya breaking open the MMB locks and seal. In fact, there exists a specific practice in which the seal of the MMB are not to be permitted to be opened by the checking staff who is to collect articles. Had it been a case where the lock was found to be opened, then it would have been a different matter. The plain reading of the checking sheet which bears the signature of the petitioner do not indicate what petitioner is trying to canvass and it is submitted hereinabove.
Learned advocate for the respondents thereafter submitted that the findings in the laboratory is clear qua tampering with the seal of MMB and that has not been disbelieved in any manner, as the petitioner could not provide any cogent evidence.
Learned advocate for the respondents thereafter submitted that the order at page No. 36 is on the basis of the facts of that particular case. The findings recorded by the Appellate Committee, so far as the petitioner''s case is concerned, clearly indicate that the findings qua not having the terminal seal or terminal cover is considered to be a point of serious doubt which is required to be read coupled with the fact that the MMB seal was found to be tampered. These are the facts which are conspicuously absent, so far as, the order at page No. 36 is concerned. In case, in the order at page 36, the findings is otherwise that the board''s negligence or employees negligence in fixing the meter is recorded. Thus, the petitioner cannot successfully rely upon the order at page 36, as it is of no avail to him.
Learned advocate for the respondents submitted that it is never as essential or a condition precedent to raise a bill on the basis of supply condition No. 34 that the board has to proceed u/s 138 of the Indian Electricity Rules. If the board''s officers are complying that provision of supply condition No. 34, then that is well within their jurisdiction and purview in raising the bill and in case of tampering with the seal which is exclusively provided. The condition, of supply No. 34 would clearly indicate that the satisfaction of the officers qua abstraction of energy illegally is sufficient for raising the bill, therefore, the onus shifts on the consumer to make out his case before the Appellate Committee.
The Court heard learned advocates appearing for the parties and perused the accompanying documents. The facts narrated by the petitioner in the memo of the petition indicate that the petitioner is right in contending that the meter, when it was recovered from the premises of the petitioner, was not warranted to be recovered on account of any suspicion of any theft of electric energy, but there is no provision restricting the respondents from carrying out routine checking of the articles called meter and MMB in laboratory. When such laboratory test was carried out, then in absence of any specific allegation of malafide, the test report is to be accepted as correct and it is of course for further scrutiny by the Appellate Committee. In the instant case, the personnel who collected that articles have sealed them and the petitioner had also signed the checking sheet. The reading of the checking sheet, in my view do not suggests anywhere what is sought to be canvassed by the petitioner by heavily relied upon paragraph No. 3.2. The vigilant consumer like the present petitioner would have surely ensured an additional remark before appended his signature that the MMB was opened by breaking the seal by said Shri Rupareliya. When there is a specific submission on the part of the board that the officers concerned are not supposed to break open the seal at the site, then the submission of petitioner in paragraph No. 3.2, contrary to the checking sheet, cannot be accepted as it is naturally without any further evidences to support his case.
The Court is of the view that petitioner''s reliance upon the Appellate Committee''s order in another consumer''s case reproduced at page No. 36 is also of no avail to the petitioner, as close reading of both the orders i.e. order at page 36 and the impugned order, it can be said that the facts are glaringly different. In the instant case, the Committee''s finding deserve to be reproduced which would clearly justify the satisfaction of the Committee and the Officers. The findings are required to be reproduced which would speak themselves qua the Committee''s satisfaction.
Now keeping in view the submissions of both the parties and perusing the papers produced on behalf of GEB, it can be seen that meter was old, it has been changed and was paper packed and sent to the laboratory for testing in the presence of consumer. In the laboratory report, seals are found in good condition. However, while examining the meter Box, seal is found tampered and the wire is broken. The internal mechanism appears to be in good condition. From the site checking report, it can be seen that there is no Terminal Cover as well as there is no seal on the Terminal Cover. The contention of the consumer that mere tampering of the seal does not amount to theft is quite correct. The various judgment of Hon''ble Court and Hon''ble Supreme Court also supports the contention of appellant consumer. However, from the checking sheet it can be seen that there is no Terminal Cover or seal on T/C. These fact creates doubt. The appellant in his written statement says that Terminal Cover seal is OK is not correct even his contention in written statement about ''M'' seal is OK does not appear to be correct. The laboratory testing report does not mention anything about Terminal Cover or Terminal Cover ''M'' seal, therefore, it remains in doubt whether the terminal Cover seal is existed or not? The site checking report clearly mentions that there is no Terminal Cover and when there is no Terminal Cover, the question of Terminal Cover seal does not arise. Though the appellant consumer contends that T/C ''M'' seal is OK but that does not appear to be correct. As such MMB seal being tampered and Terminal Block being opened without cover or seal it gives rise to the doubt about tampering with the wiring of Terminal Block and, therefore, theft can be committed without disturbing internal mechanism. There is nothing on record except the bare words of appellant consumer against documentary evidence of respondent Board. Therefore, the contention on behalf of consumer that mere tampering of the seal does not amount to power theft, though acceptable but tampering of the seal is coupled with something else as stated in the present case that Terminal Cover does not exist and there is no T/C seal as such the mischief can be committed. Therefore, the Committee is of the opinion that appeal should be partly (partially) allowed by considering Composite Factor C/B at 0.20 instead of 0.40.
The aforesaid findings, in my view, cannot be disturbed on account of the oral submissions and the written submissions, as they are required to be viewed from the supporting documents which also do not raise any doubt qua findings recorded by the laboratory personnel as well as the Appellate Committee. The Court, therefore, is of the view that the order impugned is not required to be interfered with in the present proceeding under Article 226 of the Constitution of India. The petition being bereft of merits, deserve rejection and is accordingly rejected. Rule is discharged. Interim relief, if any, stands vacated. However, there shall be no order as to costs.