S. Abdul Azeez v. Assistant Engineer, KSEB Electrical Section, Kollam and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **MONDAY, THE 17TH DAY OF DECEMBER 2012/26TH AGRAHAYANA 1934** **WP(C).No. 17851 of 2012 (F)** **----------------------------** ## **PETITIONER(S): --------------** **S. ABDUL AZEEZ, AGED 54 YEARS S/O.SHAHUL HAMEED, MATHEPALLIL HOUSE CHATHINAMKULAM P.O., CHANTHANATHOPE P.O., KOLLAM.** **BY ADV. SRI.C.P.MOHAMMED NIAS** **RESPONDENT(S):** - **--------------** **1. ASSISTANT ENGINEER, K.S.E.B ELECTRICAL SECTION, KSEB, KILIKOLLOOR KOLLAM-691 004.** **2. THE ASSISTANT ENGINEER, KSEB, KILIKOLLOOR, KOLLAM-691 004.``** **3. THE DEPUTY CHIEF ENIGNEER ANTI POWER THEFT SQUAD, K.S.E.BOARD THIRUVANANTHAPURAM-695 004.** **4. THE ELECTRICAL INSPECTOR ELECTRICAL INSPECTORATE, KOLLAM-691 004.** **BY SRI.JAICE JACOB, SC, KERALA STATE ELECTRICITY BOARD** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 17851 of 2012 (F)** ## **APPENDIX** ## **PETITIONER'(S) EXHIBITS:** **EXHIBIT P1. TRUE COPY OF THE LETTER NO.259/2005 DATED 18/10/2005 SENT TO THE PETITIONER BY THE ADDITIONAL INSPECTOR OF FACTORIES, KUNDARA.** **EXHIBIT P2 TRUE COPY OF THE BILL NO.AS45640000013 DATED 21/12/2005. EXHIBIT P3 TRUE COPY OF THE BILL DATED 9/1/2006. EXHIBIT P4 TRUE COPY OF THE BILL DATED 10/2/2006. EXHIBIT P5 TRUE COPY OF THE APPEAL DATED 23/9/2009.** **EXHIBIT P6 TRUE COPY OF THE LETTER DATED 27/12/2005.** **EXHIBIT P7 TRUE COPY OF THE LETTER DATED 27/7/1992.** **EXHIBIT P8 TRUE COPY OF THE MAHAZAR WITH TRANSLATION.** **EXHIBIT P9 TRUE COPY OF THE JUDGMENT DATED 17/1/2012 IN WPC NO.9469/2006.** **EXHIBIT P10 TRUE COPY OF THE ARGUMENT NOTE.** **EXHIBIT P11 TRUE COPY OF THE ORDER NO.DCE/APTSD/76/2011-12/153 DATED 30/4/2012.** ## **RESPONDENT'(S) EXHIBITS:** **EXT R2(C) COPY OF THE CONSUMPTION DETAILS/READING REGISTER OF THE PETITIONER FROM 1/2000 TO 1/2006.** **//TRUE COPY//** **PA TO JUDGE** **BKA** ## **C.K.ABDUL REHIM. J** - - - - - - - - - - - - - - - - - - - - - - W.P.(c) No.17851 of 2012 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17[th] day of December, 2012 ## **J U D G M E N T** Ext.P1 order passed by the 3[rd] respondent in an appeal filed under Section 127 of the Electricity Act, 2003 is under challenge. The industrial unit of the petitioner was inspected by the Anti Power Theft Squad (ATPS) on 19.12.2005. It was detected that the 'Security Seals' of the 'Meter Cover' were seen tampered and a hole was seen drilled above the meter cover. Further it was noticed that, there were evidence of scratches on the rotating disc of the Meter, indicating attempts made to control the rotation of the disc or to stop the same by inserting pointed objects through the hole. Pursuant to the inspection, alleging unauthorised use of electricity, penalty was imposed against the petitioner to the tune of ` 88,306/-. The petitioner challenged the assessment of penalty in appeal before the third respondent. In the impugned order the appeal was dismissed, discarding all the grounds raised by the petitioner. 2. The petitioner is seriously disputing the allegations of _W.P.(c) No.17851 of 2012_ 2 tampering of the Energy Meter. He points out that the authorities of KSEB was keeping a hostile attitude against the petitioner, and there were various disputes pending between the petitioner and the officials. According to the petitioner, it is only to wreck vengeance that an inspection was conducted and false allegations of tampering of the Meter was raised. It is further contended that, no copy of the Mahasar was given to the petitioner at the time of inspection. The appellate authority, after considering all the circumstances and considering the arguments raised on behalf of the Board, officials, arrived at a conclusion that there was clear tampering of the Energy Meter, detected at the time of inspection. Ext.P8 is the Mahasar, prepared at the time of inspection. It bears signature of the petitioner with an endorsement “read and found to be correct”. But, learned counsel for petitioner raised serious disputes denying the signature. It is contended that the petitioner has not signed the Mahasar and no copy of the same was served on him. However, the appellate authority found that the Mahasar revealed clear attempts of tampering of the energy meter. It further says that the petitioner _W.P.(c) No.17851 of 2012_ 3 had conceded that the tampering of the meter was done by a person named Shri.Babu with knowledge of the brother of the petitioner, who was the then consumer. The inspection was conducted by a team, the Anti Power Theft Squad, in the presence of Sub-Engineer of the Electrical Section concerned. No materials has been produced to show that the contents of the Site Mahasar is not true and correct. There is no evidence available before this court to arrive at any conclusion that the contents of the said Mahasar is a fabricated one. Natural presumption, unless otherwise proved is to the effect that the contents of the Mahasar prepared contains true and real facts. I am of the view that this court cannot adjudicate upon such a disputes in view of the said Mahasar prepared at the time of inspection and in view of the findings arrived at by the appellate authority. This court is not in a position to arrive at any conclusion, upholding the contentions of the petitioner to the extent of denying the alleged tampering of the meter. With respect to the findings on facts arrived by the appellate authority, this court may not be justified in interfering, unless, convincing _W.P.(c) No.17851 of 2012_ 4 materials are produced to draw an inference otherwise. 3. Yet another contention raised is regarding the quantum of assessment. It is pointed out that the assessment is made on a presumptive basis by calculating load capacity of all the connected installations in the premises. The energy charges is calculated on the basis that the total connected load will be functioning at 75% power factor for 7 hours per day continuously, for 25 days in a month. According to the petitioner, the unit was remaining closed down since 2003 onwards and there was no consumption of energy since the last so many years. Hence, computation of energy charges on a presumptive basis is absolutely unsustainable is the contention. Inorder to ascertain veracity of the contention that the unit was remaining closed, this court directed the Standing Counsel for the respondents to furnish details of meter reading recorded during the relevant periods. It is revealed that for 1.1.2002 onwards, the meter reader had continuously recorded, “door lock” except in very few months, wherein small extent of consumption is recorded. According to the petitioner, the negligible consumption _W.P.(c) No.17851 of 2012_ 5 recorded intermittently pertains to the consumption of light power in the premises. However, it is evident that the unit remained locked for quite a long period, and there was no substantial consumption of energy during the said period. 4. Section 126 of Electricity Act, 2003 contemplates a best judgment assessment of the Electricity charges payable by a person who is indulging in unauthorised use of electricity. Sub Section (5) of Section 126 contemplates that, the assessment should be made for the entire period, during which the said unauthorised use of electricity has taken place. It further provides that, if the quantum of the electricity unauthorisedly used cannot be ascertained, the said period shall be limited to six months immediately preceding the date of inspection (amended as 12 months subsequently). Sub Section (6) of Section 126 provides that, the assessment shall be made at a rate equal to one and half times of the tariff applicable to the relevant category (at present twice the tariff). Here is a case where there was no consumption during the period of six months immediately preceding the date of inspection. Therefore, question arises as to _W.P.(c) No.17851 of 2012_ 6 whether the presumptive assessment made on the basis of the total connected load can be sustained. It is evident that, the petitioner had not utilised any energy, by virtue of the tampering made in the Meter. There was no escapement occurred due to the tampering committed in the Energy Meter. Probability is to the extent that the tempering of the Meter was done at time prior to the closing down of the industrial unit. However, there is evidence to the effect that the consumer had tampered the Meter at some point of time. Explanation given under Sub Section (6) of Section 126 provides that unauthorised use of electricity, means the usage of electricity through a tampered Meter. But in the case at hand, evidence is to the effect that no electricity has been used through the tampered Meter, since the year 2002 onwards. The Hon'ble Supreme Court in **Executive Engineer v. Sri Sitharam Rice Mill, 2012 (2) SCC 108,** held that Section 135 of the Electricity Act, 2003 deals with offences and penalties with respect to theft of electricity. The section provides that whoever dishonestly tampers a meter, installs or use a tampered meter which interferes with accurate or proper registration, calibration, _W.P.(c) No.17851 of 2012_ 7 or otherwise resulted in a manner, whereby, electricity is stolen so as to obstruct or consume or use electricity shall be punishable under that section. But, even if, there is no theft of electricity, Section 126 would be applicable, where electricity is being consumed in violation of the terms and conditions of supply. 5. The apex court observed that the word “dishonest” in normal parlance means wanting in honesty. It indicates that dishonesty is a state of mind, where the person does act with an intent to deceive the other and fraudulently and with a disruptive mind to cause wrongful loss to the other. If, these acts are committed and from the state of mind, 'mens rea' existed, then the person shall be liable to be punished. Therefore, even if, it is proved that no energy has been consumed through the tampered meter, which will come within the purview Section 126, it is clear that the petitioner has dishonestly tampered the Meter, which amounts to theft of electricity. Section 125 also provides for assessment in accordance with the provisions of the Act with respect to amount of electricity charges when theft is detected, without prejudice to offer penal actions provided therein. _W.P.(c) No.17851 of 2012_ 8 6. Therefore, I am of the view that, merely because the unit remained closed and there was no consumption of energy through the tampered Meter for the previous period of six months, the petitioner cannot be fully exonerated from the assessment for the offence of theft, by indulging in tampering of the Meter. 7. However, considering the fact that there was no consumption through the tempered meter, I am of the view that the presumptive method of calculation adopted cannot be sustained. Therefore, this court is justified in interfering in re-fixing the quantum of penalty imposed on an over all assessment. I am of the view that a reduction of the penalty by 50% of the assessment already made will be justified. Under the above mentioned circumstances, the writ petition is disposed of by modifying Ext.P11 order of the appellate authority, to the extent of reducing the quantum of penalty by 50%. The respondents shall revise the demand after giving credit to the amounts already remitted by the petitioner. However, considering the long pending dispute, the respondents _W.P.(c) No.17851 of 2012_ 9 are restrained from charging any interest or surcharge on the amount of assessment, provided the balance due is remitted within a period of one month from the date of receipt of the revised demand. Needless to observe that, if, the amount is remitted and the petitioner complies with the requisite formalities. Reconnection shall be effected without any further delay. _**Sd/-**_ **C.K.ABDUL REHIM JUDGE** _// True Copy //_ _P.A. To Judge_ _ss_