EXECUTIVE ENGINEER IV Vs. VARADHA STEELS

JUDGEMENT

(1.) MARKANDEY Katju, C.J. W.P. No.27467 of 2005: - This Writ Petition has been filed for the issuance of a writ of certiorari against the impugned order dated 17. 8.2005 passed by the first respondent, the Superintending Engineer-III, Electricity Department, Pondicherry, under Section 126 (3) of the Electricity Act, 2003, by which the writ petitioner was provisionally assessed to pay electricity charges to the tune of Rs.2,65,37,000/- and was permitted to file objections against the same.

(2.) THE aforesaid notice dated 17. 08.2005 reads as follows:- " No.6386/ED/SE-III/AE-Tech/F.39/HT-VAD Steel/2005-2006 GOVERNMENT OF PONDICHERRY ELECTRICITY DEPARTMENT ASSESSMENT NOTICE FOR THEFT OF ENERGY Pondicherry, the 17th August, 2005 To M/s Vardha Steels R.S.No.122/1 & 122/6, Thuthipet, Villianur Commune, Pondicherry 605 502. Sub: THEft of electricity in the premises of M/s Varadha Steels, Sedarapet """ Provisional Assessment notice for payment of Extra levy """ Reg. Ref: (1) Show Cause Notice of this department No.2270/ED/EE-IV/JE/F.HT(M/s Varadha Steels)/05-06, dated 05/08/2005. (2) Your Letter No.Nil, dated 06/08/2005 & 09/08/2005. - ooo - With reference to the above subject matter, theft of energy in the following mode has been reported in your industrial premises viz., M/s Varadha Steels, at R.S. No.122/1 & 122/6, Thuthipet, Villianur Commune, Pondicherry 605 502:- (i) THE position of the metering cubicle Air Break (sic) switch handle with base plate along with seal has been shifted by removal of bolt & nut. (ii) THE metering cubicle Air Break switch was in opened condition. (iii) Fresh pipe wrench-grip markings were visible on the Air Break switch operating vertical pipe. (iv) One screw-driver with green plastic handle and one Mild Steel (MS) pipe of about 1"' length were found lying on the nearby earth pit. (v) THE rear gate was found locked inside with departmental seal intact. (vi) Departmental seals provided on the metering cubicle cover and metering box were intact. In the presence of the Police Officials, the seals provided on the metering box were removed and the data stored in the memory of the static type (L&T make) Trivector Meter Serial No.04183200 were down loaded in the Common Meter Reading Instrument (CMRI) of the Ramanathapuram O & M by the High Tension Metering Wing. THE data down loaded from the meter on 29/07/2005, has been analyzed and it is observed that there was no supply to the meter since 21/07/2005 at 03.17 Hrs. and hence there was also no recordings even though electricity supply was there and your factory had also availed power supply. Moreover you have not complained about non-availability of power supply prior to 29/07/2005. THE non-recording of the meter reveals that you have indulged in theft of power and power supply to your industry has been availed by disrupting the supply to the metering circuit. THE meter was tested by the High Tension Metering wing on 03/08/2005 around 16.30 Hrs. in the presence of the officials from Revenue Department, Police Department, Electricity Department & representative of your company Thiru Jaffer Ali, Office Administrator and the recording performance of the meter was found to be normal. While testing the healthiness of the metering cubicle, it was found that the R-phase & B-phase fuses provided in the Low Tension terminal box of the metering cubicle were blown off which had resulted in non-availability of voltage, which ultimately affected the functioning of meter. On further check up of the wires that connect the secondary terminal of the metering cubicle and the meter terminals, pin-pierced impressions were noticed in the wires. THE data down loaded from the above meter also indicates the message 'updating of the data stopped' since 21/07/2005 at 03.17 Hrs. After analyzing the consumption recorded in the meter at your industrial premises and the relevant High Tension feeder sending end meter at the sub-station, it is seen that you have availed power till 04.10 hrs. On 29/07/2005. Your representative has refused to sign in the joint inspection report on the inspection/testing carried out on 03/08/2005. Under the above circumstances it is clearly evident that you have been committing theft of energy. THErefore a show cause notice was issued to you by the Executive Engineer, Division IV, on 05/08/2005, calling upon you to show cause within Seven days from the date of receipt of the notice as to why extra levy should not be collected from you. You had also acknowledged the receipt of the notice on the same day. THE time period of 7 days stipulated for giving reply to the show cause notice expired on 12/08/2005. THE reasons put forth by you vide letters dated 06/08/2005 received by us on 08/08/2005, and Letter dated 09/08/2005 received by us on 12/08/2005 are not convincing. Now the Extra levy payable by you for theft of energy has been provisionally assessed to be Rs.2,65,37,000/=. You are hereby called upon to pay the extra levy in one lump sum within seven days of service of this assessment order. If you have any objections against the Extra levy, you may file your objections to the undersigned. If you pay the above amount, power supply at your industrial premises will be restored in pursuance of the rules in this regard. If you choose to prefer an appeal against this order, you may appeal to the Appellate Authority Viz., Superintending Engineer-I within 60 days from the date of receipt of this order after paying the extra levy. You are requested to acknowledge the receipt of this notice immediately. Sd/- 17/08/05 SUPERINTENDING ENGINEER-III Encl: Working Sheet. "

(3.) MR. R.Thiagarajan, learned Senior Counsel appearing for the petitioner submitted that the provisional assessment order was passed by an authority who is not the Assessing Officer as defined in Explanation (a) to Section-126 of the Act.