MUSTHAFA Vs. SUB ENGINEER, KERALA STATE ELECTRICITY BOARD

JUDGEMENT

(1.) The appellant, a consumer under the Kerala Electricity Board, questioned the penalty imposed by the Board. The Anti Power Theft Squad, on an inspection made on 7/9/2007, found tampering of meter and prepared a mahazar. Based on the mahazar and report, a short assessment was made for theft. This was covering the period from June 2005 till the date of inspection on 7/9/2007. The challenge made by the appellant before the appellate authority as well as the learned Single Judge was unsuccessful.

(2.) In regard to the basis for short assessment, we find absolutely no scope for interference in this matter, as it is categorically found that there is a tampering and we may not be justified to over turn the factual situation arrived at by the competent authority. However, we find that the assessment was made from June 2005 onwards for the purpose of imposing penalty under Sec. 126(5) of the Electricity Act, 2003. If the entire period of the unauthorised use can be reckoned or ascertained, the entire period can be the basis for passing order for short assessment and also for penalty. If the entire period cannot be ascertained, it shall be limited for twelve months preceding the date of inspection. The assessment authority proceeded to assess it from June 2005 onwards for the simple reason that there was reduction of consumption from June 2005 onwards. It is not safe to ascertain that such a reduction itself was due to the manipulation or tampering from June 2005 onwards, unless there is a substantial evidence in that regard. The law itself creates a fiction to presume that if such tampering cannot be ascertained, such period shall be limited to a period of twelve months immediately preceding the date of inspection. Therefore, there must be some materials on record to show that such tampering exists from the period on which it originally exists. In the absence of any such material, the possibility is only that such a consumption is only for a period of twelve months preceding the date of inspection. The language of law is clear that the authority must be in a position to ascertain such irregularity exists from the date of they proposed to assess the premises. It cannot be based on an assumption but based on materials. It is only, in the absence of such materials, the law allows a presumption that such unauthorised use or theft shall be calculated from the period of twelve months preceding the date of inspection. The second part of the assessment period is related to the presumption but, the earlier part shall be based on evidence.

(3.) In the light of law as above and in the absence of any other materials on record to show that such tampering was existed from June 2005 onwards, the assessment for the entire period according to us is illegal. Therefore, the assessment will have to be revised and confined to twelve months preceding the date of inspection. The law did not envisage the presumption on both occasions. The impugned judgment is, accordingly, modified and we order the assessing authority to revise the assessment based on the above directions. The revised assessment order shall be passed within a period of three weeks. No coercive steps shall be taken for a period of three weeks. This Writ Appeal stands disposed of as above.