M/S. Cinnamara Roller Flour Mills Vs the Assam Power Distribution Co. Ltd. and 3 Ors.

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GAHC010126472017

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2025:GAU-AS:2408

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/2092/2017

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M/S. CINNAMARA ROLLER FLOUR MILLS A PROPRIETORSHIP CONCERN HAVING ITS PRINCIPAL PLACE OF BUSINESS AND FLOUR MILL AT G.B. GATTANI INDUSTRIAL COMPLEX, MARIANI ROAD, CINNAMARA, JORHAT- 785008, ASSAM DULY REP. BY ITS AUTHORIZED SIGNATORY/REPRESENTATIVE NAMELY, SRI SARANGAPANI BORDOLOI, SON OF LT. SURESH CHANDRA BORDOLOI, A RESIDENT OF KUSHL NAGAR, JORHAT- 785001, ASSAM

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VERSUS

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THE ASSAM POWER DISTRIBUTION CO. LTD and 3 ORS. REP. BY CHAIRMAN CUM MANAGING DIRECTOR, 4TH FLOOR, BIJULEE BHAWAN, PALTAN BAZAR, GUWAHATI - 781001, ASSAM

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2:THE APPELLATE AUTHORITY

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THE ASSAM POWER DISTRIBUTION COMPANY LIMITED REP. BY CHAIRMAN CUM MANAGING DIRECTOR 4TH FLOOR BIJULEE BHAWAN PALTAN BAZAR GUWAHATI- 781001 ASSAM

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3:THE AREA MANAGER/ASSESSING OFFICER

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JIRCA APDCL JORHAT/ASSAM

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4:THE ASSTT. GENERAL MANAGER

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T and C DIVISION APDCL JORHAT ASSAM

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Advocate for the Petitioner : MR.G N SAHEWALLA, MR.A CHETIA,MR.D SENAPATI,MR.P DEKA,MS.D SWAMI

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Advocate for the Respondent : MR. P N GOSWAMI, SC, APDCL

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BEFORE

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HON’BLE MR. JUSTICE MICHAEL ZOTHANKHUMA

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For the petitioner : Mr. G.N. Sahewalla. ... Sr. Advocate. Ms. G. Dugar. .... Advocate.

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For the respondents : Mr. K.P. Pathak. ... SC, APDCL.

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Date of hearing : 27.02.2025

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Date of Judgment : 07.03.2025

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JUDGMENT AND ORDER (CAV)

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1. Heard Mr. G.N Sahewalla, learned Sr. Counsel for the petitioner assisted by Ms. G. Dugar. Also heard Mr. K.P. Pathak, learned Standing Counsel, APDCL.

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2 . The petitioner has assailed the order dated 06.03.2017 passed by the Appellate Authority of the APDCL under Section 127 of the Electricity Act, 2003, hereinafter referred to as the “Act”, rejecting the appeal preferred by the writ petitioner against the order dated 20.05.2016, passed by the Area Manager,

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IRCA, APDCL, Jorhat under Section 126, by which the petitioner has been informed that the provisional assessment bill amounting to Rs.37,32,764/- was considered as the final assessment bill for unauthorized use of electricity.

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3 . The brief facts of the case is that on the night of 15.12.2014, the petitioner’s meter caught fire and became non-functional. The said fact was brought to the notice of the concerned Area Manager of the APDCL on 16.12.2014. Seizure list was prepared and inspection report of the APDCL authorities stated that the meter cabinet was found burnt in sealed condition bearing Seal No.JEC-013958. The cabinet glass was also found in broken condition. The seized burnt meter was thereafter sent to the Forensic Science Laboratory for analysis. However, the Forensic Science Laboratory refused to perform analysis on the burnt meter, as there was no Court direction for performing the analysis. The Physical Verification Report of the burnt meter dated 17.12.2014 states as follows:-

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“1. The burnt meter which was earlier seized and sealed along with the cabinet box bearing Seal No. JEC 012676 (outer) and JEC 013958 (inner) of M/s Cinnamora Roller and Flour Mills, Cinnamora, Jorhat is opened in presence of the consumer and officials of APDCL after proper verification of the seals. The container seals are found intact and that is confirmed by the consumer.

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Meter is found in completely burnt condition and the metering details are hence, untraceable.

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It is concluded that the reason behind the burning cannot be due to any electrical fault as -/110V, -/5A flowing via a CT-PT set can in no way raise a short circuit current of such magnitude so as to burn a HT-meter. Therefore, the reason behind the burning is due to some external impact and not due to

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internal electrical short circuit.

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However, the consumer denied of any wrongdoing and so, the meter is decided to be sent for forensic testing and analysis.

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The entire metering cabinet is hereby resealed bearing seals no . JEC 009445 (inner) and JEC 009430 (outer) in presence of the consumer. The entire meter cabinet is housed in a separate paper box with signature of the consumer (Sudarshan Rathi) and APDCL representatives i.e. AGM (IRCA) & AGM (T&C).

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The whole occasion is video recorded.”

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4 . The respondents thereafter issued a letter to the petitioner informing him that 21.01.2016 was fixed for conducting physical verification of the burnt meter. The petitioner submitted a representation on 29.01.2016, questioning the power to conduct a second physical verification and testing of the seized meter. Further, the petitioner stated his apprehension that as the seized meter had been lying with the respondent authorities for 10 months, there was a possibility that the respondents had tampered with the meter, so as to penalize the petitioner for some malpractice, which was not found during the physical verification of the meter on 27.03.2015.

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5. The meter was opened in the presence of the petitioner and analysed on 29.01.2016. The findings of the 2^nd Inspection/Physical Verification of the burnt meter was as follows:-

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“(1) The meter was in burnt condition along with the modem

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1. With external wires, a foreign circuit was installed inside the meter above PCB -

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Due to presence of foreign circuit inside the meter, Area Manager, IRCA justified this as a clear case of interference with the metering system.

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But the appellant denied their involvement in any way in the meter burning case and refused to sign in the 2nd inspection report. On 01-02-2016, the Area Manager, IRCA served a Provisional assessment bill to the appellant amounting to Rs.37,39.764.00 for payment to compensate the loss as per provision of the Act. Subsequently, the AM. IRCA was compelled to confirm the same amount of the Provisional assessment bill as Final assessment bill after conducting ex-parte hearing on 11-05-2016 since the appellant has failed to attend on different hearing dates for five times as fixed by the AM, IRCA.”

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The petitioner objected to the contents of the 2^nd Inspection Report and refused to sign the same.

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6 . Subsequent to the above facts, the competent authority in the APDCL submitted a provisional assessment bill dated 01.02.2016, requiring the petitioner to pay Rs.37,39,764/-, which is based on the total units billed upon the petitioner for the previous one year, minus the amount paid for the consumed units of 131238. Thereafter, the APDCL submitted final assessment bill dated 28.05.2016, whereby it held that the provisional assessment bill amounting to Rs.37,39,764/- was to be considered as the final assessment bill.

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7 . The petitioner filed an appeal petition, vide Appeal No.02/2017, before the Appellate Authority of the APDCL under Section 127 of the Electricity Act, 2003. The learned Appellate Authority thereafter came to a finding that the meter was not burnt due to any internal electrical short-circuit and that the main cause of the burning of the meter could either be an external impact or injection of external fire to the meter, through the broken window of the sealed meter cabinet, inside the premises of the consumer, for which the consumer was solely

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responsible as per Clause 4.2.1.2.5 of the Electricity Supply Code & Related Matters Regulations, 2004 (First Amendment) 2007, hereinafter referred to as the “First Amendment.” The Appellate Authority also came to a finding that the appellant indulged in malpractice, in view of the fact that a foreign circuit was found in the meter. The Appellate Authority also came to a finding that though the seal of the meter cabinet was found intact, one side of the cabinet box cover was hinged, giving ample opportunity to open the door of the meter cabinet for tampering with the meter. Further, the non-cooperation of the petitioner caused delay in finalization of the assessment bill within the prescribed time limit. The appeal was accordingly rejected.

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8 . The petitioner’s counsel submits that when the seal of the meter box was found intact at the time of seizure of the meter box, the respondents had not taken the stand that a foreign circuit had been inserted inside the meter box. Further, the meter box was in the custody of the respondent for around 10 months, which gave them ample time to tinker/tamper with the meter box. He further submits that in terms of Section 126(5) of the Electricity Act, 2003, if the Assessing officer reaches the conclusion that unauthorized use of electricity had taken place, the consumer has to be informed of the period when the unauthorized use of electricity took place. However, the same is not reflected in the letter dated 01.02.2016 issued by the Area Manager, IRCA, APDCL, Jorhat to the petitioner. He further submits that the procedure under Section 126 of the Electricity Act cannot be applied with respect to theft of electricity and the same is to be under Section 135.

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9. Mr. K.P. Pathak, learned Standing Counsel, APDCL submits that the petitioner’s electricity meter was damaged due to fire. The meter caught fire

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due to external source imposed on it by breaking the cabinet glass. He submits that electrical fault as low as 110V/5A flowing via CT/PT set, can in no way raise a short circuit current of such magnitude so as to burn an HT meter. He also submits that the protection system in the meter provides for ensuring that there is no short circuit in the meter. The source end did not operate and were in healthy condition. As internal short circuit of the meter was not possible, the burning of the meter from an external source can be said to be intentional. He also submits that there was an initial examination of the meter on 17.12.2014, wherein the meter was found to be completely burnt, the outer Cabinet Seal was found intact. The meter was seized and sealed in the presence of the representatives of the petitioner for further analysis. At the time of conducting the verification of the meter in the presence of the consumer representatives of MTI Lab, APDCL, Jorhat, it was found that the meter did not burn due to any internal electrical fault/short circuit, but due to some external impact. The meter was again resealed. On conducting the next physical verification on 29.01.2016, the meter was again opened in the presence of the appellant and on opening the meter it was found that there was a foreign circuit inside the meter. When the purpose of the foreign circuit was for pilferage of electricity and the beneficiary of the same could only have been the petitioner, there was no infirmity in directing the petitioner to pay the electricity charges for unauthorized use of electricity.

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10. Mr. K.P. Pathak, learned Standing Counsel, APDCL, submits that in terms of the judgment of the Coordinate Bench of this Court in the case of Shiv Alloys Steel Vs. Assam Power Distribution Company Ltd. and Ors., reported in (2021) 4 GLR 558, in cases of allegation of theft of electricity, the charges

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payable by the consumer can be decided even under Section 127 of the Electricity Act. He also submits that in terms of the judgment of this Court in M/s Parvati Tea Company Vs. The State of Assam and 5 Ors., in WP(C) 6343/2012, the court exercising supervisory jurisdiction under Article 226 of the Constitution of India is not to act as an appellate court and as such, there is a clear limitation, in that the findings of fact reached by the inferior court or tribunal as a result of the appreciation of evidence, cannot be reopened or questioned in writ proceedings. He has also relied upon the judgment of the Hon’ble Supreme Court in the case of Surya Dev Rai Vs. Ram Chander Rai and Ors., reported in (2003) 6 SCC 675 , which is to the effect that a writ of certiorari under Article 226 of the Constitution is issued for correcting gross errors of jurisdiction and not for correcting mere errors of fact or of law.

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11. In the case of General Manager, Electrical Rengali Hydro Electric Project, Orissa & Ors. Vs. Giridhari Sahu & Ors ., reported in (2019) 10 SCC 695 , the Supreme Court has held that the jurisdiction to issue a writ of certiorari is supervisory and not appellate. The Court considering a writ application for Certiorari, will not don the cap of an Appellate Court. It will not re-appreciate evidence. A writ Court is intended to correct jurisdictional excesses and a writ of certiorari can only be issued when a jurisdictional error is clearly established. It further held that in so far as the finding is one on facts, it is ordinarily a out of bounds matter for a writ Court

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12 . The learned counsel for the APDCL thus submits that when there is a finding on facts made by the appellate authority, the same should not be interfered by this Court, unless the same is perverse. He accordingly prays that the impugned Final Assessment Bill dated 19.05.2016, Final Assessment Order

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dated 20.05.2016 and the impugned order dated 06.03.2017 should be upheld.

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13 . I have heard the learned counsels for the parties.

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14. A perusal of the records would go to show that after the meter was initially checked from the outside on 17.12.2014, in the presence of the representatives of the petitioner, it was sealed. The final inspection/verification of the meter was done on 29.01.2016, wherein it was found that a foreign circuit had been installed inside the meter. The initial/provisional bill of Rs.37,39,764/-, which had been assessed by the APDCL on the basis of Clause 5.A.3 and 5.A.4 of the terms and conditions of the AERC, which was issued vide letter dated 01.02.2016, states that evidence revealed that the petitioner was directly or indirectly involved in the act of malpractice, for which the petitioner’s service connection was disconnected. In terms of Regulation 5.A.3.2(g) of the Assam Electricity Commission (Electricity Supply Code and Related Matters) Regulations, 2004 (First Amendment), 2007, theft of electricity as provided under Section 135(1) of the Electricity Act, 2003 is to be treated as malpractice. Further, in terms of Regulation 7.4.2(iii) read with Regulation 7.5.1, unauthorized use of electricity includes theft of electricity. As such, the petitioner has basically been charged with unauthorized use of electricity. The provisional bill has also been made final by the APDCL for unauthorized use of electricity by the petitioner.

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15. The petitioner has challenged the Final Assessment Bill made by the APDCL due to the findings made by the authorities that the electricity meter being used by the petitioner caught fire, due to either an external impact or injection of external fire through the broken window of the meter cabinet, for which the consumer was solely responsible, as per Clause 4.2.1.2.5 of the First

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Amendment. The physical verification of the meter which was done in the presence of the representative of the petitioner and his counsel showed that a foreign circuit was installed inside the meter for pilferage of electricity. The physical verification process and the detection of an electricity theft device inside the consumer’s meter, clearly implied that the same had put there for pilfering electricity. The refusal of representative of the petitioner to sign the report made in pursuant to the physical verification of the meter does not, in the view of this Court, give any indication that the consumer was innocent of any wrong doing. When it has been proved that a foreign circuit was installed inside the electricity meter by which electricity could be pilfered, the implication that the petitioner was involved cannot be ignored, as the benefit of the pilfered electricity would only be for the benefit of the petitioner. Further, the presence of foreign circuit in the meter amounted to tampering with meter. When the representatives of the petitioner and his engaged counsel were present at the time of examination of the electricity meter and a report has been prepared on the same, this Court is of the view that the correctness of the report cannot be challenged in a writ petition, as because the same has been gone into by the Appellate Authority and there has to be a finality to such factual issues.

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16. In the case of Shiv Alloys Steel (supra), this Court has held that Section 127 of the Act covers under its sweep the final order of assessment, made on the basis of the provisional bill, under Section 126(1) of the Act against unauthorised use of electricity on the allegation of theft of electricity falling under Section 135 of the Act. It has also held that the appellate forum under Section 127 of the Act is equipped to decide both factual issues and technical issues.

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17. In the case of M/s Parvati Tea Company (supra) this Court has held that in matters pertaining to statutory appeals under Section 127 of the Act, the appellate forum is the final arbiter of facts, in so far as the determination on question of facts are concerned. It has also held that the Court exercising supervisory jurisdiction under Article 226 of the Constitution, is not to act as an appellate Court and it is only an error of law which is apparent on the face of the record, which can be corrected and not an error of fact. This Court further held that where references are reasonably possible and the subordinate Court has chosen to take one view, the error cannot be called gross or patent.

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18. In the case of Surya Dev Rai (supra), the Supreme Court has held that the High Court, in exercise of certiorari or supervisory jurisdiction, will not convert itself into a Court of appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct error of mere formal or technical nature. The writ Court is not to correct mere errors of fact or law unless the error is manifest and apparent on the face of the proceedings or there has been grave injustice. A writ of certiorari is not available to correct mere errors of fact or of law unless the following requirements are satisfied :- [i] the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and [ii] a grave injustice or gross failure of justice has occasioned thereby. Where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent. It has been observed that the High Court in exercise of a writ of certiorari or supervisory jurisdiction, will not convert itself into a court of appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors

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of mere formal or technical character.

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19. In the case of Shree Shyam Ispat Vs. Assam Power Distribution Company Limited, reported in 2019 0 AIR(Gau) 123, a co-ordinate Bench of this Court, while hearing a challenge made to the final assessment bill in relation to a tampered meter, has held that unauthorized use of electricity was established in view of the meter being found to be tampered. The coordinate Bench also held that when there is no glaring irregularity or perversity found on findings of fact, a writ Court under Article 226 of the Constitution of India cannot decide matters which involves disputed questions of fact and that it would not be appropriate on the part of the writ Court to interfere in matters which are highly technical in nature, as the same requires technical expertise. In the above case, a foreign circuit had also been found to be installed in the meter, for which penalty was imposed by the Assessing Authority.

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20. In the case of Punit Kumar Bagaria Vs. APDCL and Others, W.A. No.71/2019, which was disposed of vide judgment and order dated 11.03.2019, the Division Bench of this Court had upheld the view of the learned Single Judge, who had not interfered with the finding of facts made by the Appellate Authority, as the said finding was made on materials available on record.

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21. The Appellate Authority had come to the following findings, which are as follows:-

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“i) The meter was not burnt due to internal electrical short circuit, as there was no trace of Sparking/Flashover mark in the current path Protection system provided for any type of electrical short circuit before the meter as well as source end did not operate and were in healthy condition. So, internal electrical

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short circuit of the meter is not possible in technical sense. The main cause of burning the meter may be either external impact or injection of external fire to the meter through the broken window of the sealed meter cabinet inside the premises of the consumer for which consumer is solely responsible as per clause 4.2.1.2.5 (Electricity Supply Code & Related Matters Regulations, 2004, (First Amendment) 2007).

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ii) The appellant indulged in malpractice. A foreign circuit was found in the meter, which proved the malpractice within the premises of the appellant. The seal of the meter cabinet was found intact. But, it does not imply that the meter cabinet box can not be opened for tampering the meter, as one side of the cabinet box cover is hinged' giving ample opportunity to open the door.

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iii) Further, it is revealed that non-cooperation of the appellant was causing delay in finalization of the assessment bill within the prescribed time limit.”

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22. In the present case, the facts show that a foreign circuit had been found inside the meter which use was only for pilferage of electricity. As the benefit of pilferage of electricity could only have been for the benefit of the petitioner, as the meter was inside his premises, the same gives rise to an inference that the petitioner was involved in unauthorized use of electricity. As the Appellate Authority has recorded the fact that the meter had been examined in the presence of the parties and sealed the same, prior to the internal examination of the meter on 29.01.2016, which was also done in the presence of the petitioner/representatives, this Court does not find any reason to interfere with the finding of facts made by the Appellate Authority. Further, there is nothing to show that there has been a grave failure of justice or that the findings are perverse.

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23. In view of the reasons stated above, this Court does not find any reason to exercise its discretion in the present case. The writ petition is accordingly

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dismissed.

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24. Send back the records of the Appellate Authority.

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JUDGE

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Comparing Assistant

M/S. Cinnamara Roller Flour Mills v. the Assam Power Distribution Co. Ltd. and 3 Ors.

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M/S. Cinnamara Roller Flour Mills v. the Assam Power Distribution Co. Ltd. and 3 Ors.

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