Dismissed

Ms Bharat Rubber Re Generating Company Limited through One of Its Directors Sri Manish Dhandhania v. Jharkhand Urja Vikash Nigam Limited through Its Chairman and Ors.

Jharkhand HC6 Sept 2016LPA/284/2015

Case brief

AI extract

What is this about?

Letters Patent Appeal dismissed. The High Court upheld the Writ Court's refusal to interfere with the General Manager's finding that the appellant indulged in malpractice and theft of electricity. The court held the decision fell within forbidden territory for judicial review due to technical complexity and was supported by relevant materials and the Consumer's opportunity of hearing.

What did the court decide?

The Letters Patent Appeal was dismissed.

Ms Bharat Rubber Re Generating Company Limited… — Writ and Judicial Review | Jharkhand HC (2016)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A No. 284 of 2015

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M/s Bharat Rubber Re-generating Company Limited, a company incorporated under the provisions of Companies Act, 1956, having its works at Plot No. 4, M-I, Industrial Area, Gamharia, DistrictSinghbhum West through one of its Directors Sri Manish Dhandhania, son of Late Kanahaiya Lal Dhandhania, Resident of -4, Middleton Street, P.O. & P.S.- Shakespeare Sharani, DistrictKolkata (West Bengal) ... … Appellant

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Versus

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Jharkhand Urja Vikash Nigam Limited (Earlier known as Jharkhand State Electricity Board), having its office at Engineers Bhawan, HEC, Dhurwa, Ranchi through its Chairman, Project Bhawan, H.E.C., P.O. & P.S.-Dhurwa, District- Ranchi

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General Manager-cum-Chief Engineer, Singhbhum Electric Supply Area, Jharkhand Urja Vikash Nigam Limited (Earlier Jharkhand State Electricity Board), Co-operative Bank Building, P.O. & P.S.- Bistupur, Jamshedpur, District-Singhbhum (East)

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Electrical Superintending Engineer, Adityapur Electric Supply Circle, Jharkhand Urja Vikash Nigam Limited (Jharkhand State Electricity Board), Vikash Bhawan, Adityapur, P.O. & P.S.Adityapur, Jamshedpur, District- East Singhbhum

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Electrical Executive Engineer (Commercial and Revenue), Singhbhum Electric Supply Area, Jharkhand Urja Vikash Nigam Limited (Earlier Jharkhand State Electricity Board), Vikash Bhawan, Adityapur, P.O. & P.S.- Adityapur, Jamshedpur

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... … Respondents

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----- For the Appellant : Mr. M.S. Mittal, Sr. Advocate Mr. Rahul Lamba, Advocate Mr. Naveen Kumar, Advocate Mr. Saurabh Srirup, Advocate For the Respondent- JUVNL : Mr. Ajit Kumar, Sr. S.C. Mr. Navin Kumar, Advocate Mr. Amit Sinha, Advocate

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CORAM: HON’BLE MR. JUSTICE VIRENDER SINGH, CHIEF JUSTICE HON’BLE MR. JUSTICE SHREE CHANDRASHEKHAR

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-----

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11/Dated : 6th September, 2016 Per Shree Chandrashekhar, J.

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Aggrieved of dismissal of the writ petition, the

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appellant-writ petitioner namely, M/s Bharat Rubber Re-generating Company Limited has preferred the present Letters

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Patent Appeal under Clause 10 of the Letters Patent of Patna High Court (as adopted by High Court of Jharkhand).

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2. This case has a chequered history of litigation. The appellant-Company, a medium-scale industry engaged in the manufacture of reclaimed rubber, took electric connection on a contract demand of 500 KVA in the year 1974, which was enhanced to 800 KVA in June, 1985. On 11.07.1995, an electronic meter was installed in the factory premises of the appellant-Company and on 25.04.1996, a Committee of officials of the then Bihar State Electricity Board visited there for changing the software in the meter, when no current was found running in R-phase. The line current 0.049 A in R-phase and line current 38.515 A in B-phase were recorded. The software was changed still, no current was flowing through R-phase and the fault still existed. Then it was found that 11 K.V. A.B switch in the consumer's premises before the metering unit was direct which made the system inoperative. On 26.04.1996, the Committee again visited the premises and inspected CTPT combined metering unit and it was found that the incoming jumper of the metering unit of R-phase had snapped and melted with outgoing jumper of the metering unit of the same phase. Photographs of the site were taken and a First Information Report was lodged by the Board for pilferage and theft of electricity. The electricity connection at appellant's factory premises was disconnected. During the investigation the metering unit was sent for

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examination to the National Metallurgical Laboratory which submitted its report on 19.02.1997. A bill for Rs. 2,70,04,604/as supplementary bill under 1993 Tariff was issued to the appellant.

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3. Aggrieved, the appellant-Company came to the High Court in C.W.J.C. No. 1536 of 1996(R), which was disposed of on 21.05.1996 permitting the appellant to submit a detailed representation before the General Manager-cum-Chief Engineer (hereinafter referred to as General Manager). On representation of the appellant, the General Manager passed order dated 22.01.2001 holding that the supplementary bill issued to the appellant was correct. Challenging the said order, the appellant again came to this Court in C.W.J.C. No. 1620 of 2001. During the pendency of the writ petition the appellant submitted another representation on 04.05.2001, on which the General Manager passed order dated 26.05.2001, whereby the mistake in calculation crept in the supplementary bill was corrected and subsequently, a fresh bill for Rs. 86,91,746/- was raised on 19.03.2002.

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4. Still dissatisfied, the appellant filed an application seeking amendment in C.W.J.C. No. 1620 of 2001 for impugning the aforesaid bill dated 19.03.2002. The writ petition was allowed vide order dated 12.04.2002, remitting the matter to the General Manager for taking a fresh decision in the matter. Consequently, the parties were heard by the General Manager,

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who returned a finding that the wire had disconnected due to snapping and not welding and perhaps the consumer had no hand in it. The appellant was directed to pay loss to the Board for four days. Seriously disputing the findings in order dated 08.05.2002 of the General Manager, the respondent-Electricity Board approached this Court in W.P.(C) No. 2197 of 2003. Besides challenging the jurisdiction of the Superintending Engineer who was functioning as In-charge General Manager-cum-Chief Engineer to pass the impugned order dated 08.05.2002, the said order was challenged also on the ground that it was solely based on the report of the National Metallurgical Laboratory. The writ petition was allowed on 16.01.2009, against which a Letters Patent Appeal being LPA No. 89 of 2009 was filed by the appellant-consumer which was finally dismissed as withdrawn on 25.05.2009. Pursuant to direction of the High Court, before the General Manager the parties appeared and filed their written submissions. It is the final decision dated 01.07.2010 of the General Manager which was challenged before the Writ Court in W.P.(C) No. 294 of 2011.

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5. Heard.

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6. Challenging the finding of the General Manager that, “the consumer was indulging in malpractice and theft of energy as covered under Clause 16.9(A) of the Tariff 1993”, Mr. M.S. Mittal, the learned Senior Counsel for the appellant submits that the aforesaid finding is not supported by any reason,

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however, the learned Single Judge mechanically dismissed the Writ Petition. It is contended that once it has been found that the wire had broken from insulator by localised heating and oxidation and it was not disconnected by any machine, Clause 16.9(A) of 1993 Tariff is not attracted in the facts of the case.

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7. The main thrust of the argument of Mr. M.S. Mittal, the learned Senior Counsel is on applicability of Clause 16.9(A) of 1993 Tariff. We find that the report of site inspection conducted on 25.04.1996 and 26.04.1996 discloses that disconnection of R-phase would result in tamper was the manufacturer's view. Considering the seriousness of the matter, photographs were also taken and a First Information Report for theft of electricity was lodged. The plea taken by the appellant was that snapping of incoming jumper of the metering unit of R-phase was accidental. Order dated 21.05.1996 passed in C.W.J.C. No. 1536 of 1996(R) records that the factual dispute can be set at rest by the Chief Engineer (who holds the post of General Manager also), who has requisite technical expertise and who can decide the dispute whether it was a case of pilferage of electricity or not. The General Manager, after hearing the appellant, rejected the plea that snapping of wire was an Act of God. The subsequent proceedings taken before the Writ Court would disclose that the matter was examined by the General Manager atleast on three occasions and it was held that the appellant is liable to pay loss to the Board in terms of Clause 16.9(A).

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8. Laying great stress on the distinction between judicial review of administrative decisions and a decision whether necessary ingredients to attract Clause 16.9(A) of 1993 Tariff are present or not, the learned Senior Counsel assailed the impugned order dated 27.03.2015 passed in W.P.(C) No. 294 of 2011 on the ground that if a statutory authority comes to a wrong conclusion, the said decision is open to challenge in a proceeding under Article 226 of the Constitution. At one stage the learned Senior Counsel tried to contend that all the three conditions contained under Clause 16.9(A) (i) for assessment of compensation are not established in this case and while so, the penal bill assessed on the basis of the formula, that is, (L x F x H x D) is patently wrong.

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9. By Virtue of the powers conferred under Section 49 of the Electricity (Supply) Act, 1948, the Bihar State Electricity Board, with the approval of the State Government, framed its revised Tariff which was published in the Bihar Gazette, Extraordinary on 23.06.1993. The appellant's case has been dealt with under Clause 16.9 (A) of 1993 Tariff, which reads as under :

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16.9. (A) Detection of unauthorised load :- If at any time the consumer is found exceeding the contracted load without specific permission of the Board, the Board may, without prejudice to its other rights under the agreement or under the provisions of the Electricity Act, estimate the value of the electrical energy, so extracted, consumed or used shall be calculated as below and may also disconnect the supply without notice :-

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i. Necessary assessment for

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compensation in the following malpractice and theft of energy cases shall be made as below :-

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(a) In cases of use of energy through artificial means or by adopting any appliance.

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(b) in case of using energy by creating obstruction in running of meters or interfering with the system of supply or wires etc.

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(c) In case of dishonest abstraction of electrical energy or running of energy when supply is disconnected.

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Unit assessed - L x F x H x D where L = is the connected load in KW

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H = is the average no. of hours per day if supply is made available in the distribution mains, feeding the consumer. D = is the no. of days for which the pilferage took place which can be established from production of satisfactory evidence by the consumer. In case there is no possible evidence to establish the period, this factor be taken equivalent to 180 or the no. of days elapsed from the date of connection/ installation of meter till the date of detection of the pilferage whichever is less.

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F = Denotes the factors for the categories noted below :-

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(i) For domestic F=0.20 (ii) For Commercial F=0.40 (iii) For Small & Medium F=0.50 (Upto 75 KW) (iv) For Large & Heavy F=0.75 (with load above 75 KW)

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NOTE : In case of large and Heavy Power consumers for the purpose of assessment, the demand for the month shall be taken as contracted demand of the consumer or 75 per cent of the connected load, at the time of inspection, whichever is higher.

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ii.

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Pilferage of energy detected during marriage

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& other occasions for temporary connection :-

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Unit assessed = L x D x H

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L = is the connected load in KW H = is the average no. of hours per day the supply is made available in distribution mains feeding the consumer.

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D =

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No. of days for which supply availed.

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iii. Method of charging the assessed units as indicated in para i & ii above.

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(a) The consumption so assessed shall be charged at thrice the rate per unit of the Tariff applicable to the consumer excluding the consumption recorded by the meter and the latter shall be charged at the appropriate tariff rates. The amount billed at this rate (thrice the tariff rate) shall not be taken into consideration for the purpose of computing consumer's liability to pay monthly/ minimum guarantee.

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(b) In case of consumer covered under categories of small power for P.T.W./Pumping sets for irrigation purposes, small & medium power for industries and commercial loads and temporary supply, the excess load over and above the contracted load shall be chargeable at triple the rate of flat rate/ M.C.G. of the appropriate tariff.

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iv. When connected load is more than the

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sanctioned load in case of all categories LT connection

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except Domestic Service.

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Assessment charge :- Rs. C x M (LD - LS) x 3

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Where, M = Minimum consumption guarantee charge

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per BHP per month as applicable in the tariff schedule.

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LD = is the load detected in BHP at the time of inspection

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LS = is the load sanctioned to the consumer in

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BHP.

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C = This factor be taken equivalent to six months or no. of months or part thereof elapsed from the date of connection/installation whichever is less.

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10. The expression “the following malpractice and theft of

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energy cases” used in Clause 16.9(A) makes it abundantly clear that in any one of the three situations contemplated thereunder viz., (i) cases of use of energy through artificial means or by adopting any appliance, (ii) cases of use of energy by creating obstruction in line of meters or interfering with the system of supply or wires etc. and, (iii) cases of dishonest abstraction of electrical energy or running of energy when supply is disconnected, penal bills for assessing the loss caused to the respondent-Nigam can be raised. On this aspect, report of the National Metallurgical Laboratory, Jamshedpur has also been considered by the General Manager in its order dated 01.07.2010. The observations in the report dated 19.02.1997 are as under:

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5(1) The copper wire got broken because of a loose connection at the insulator; loose connection caused heating. This has not happened instantly, rather happened over a period of time (i.e. it took place rather slowly).

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(2) After observing the stud, it was concluded that a continuous heating has raised the temperature which increased the rate of oxidation of the copper wire, and stud.

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(3) Copper wire got broken because of thinner size and also being under tensile stresses.

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(4) It is also noticed that the wire is not cut by any

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mechanism, it is only broken from the insulator by localized heating and oxidation. Tensile stresses, also aggravated the above situation.

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(5) It can be said that when the above process was taking place, the current was flowing through the conductor. This conclusion was arrived at after carefully observing the molten end of the copper wire. (6) The wire became thinner at the molten end and the molten metal formed a bubble which indicates that there was current flow while wire got broken.

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(7) However, based on the observations done at NML, it cannot be concluded that the wire after breaking has fallen upon the side wire. This aspect is beyond our scope of investigation.

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Based on the above observations, it is concluded that the break-down took place on its own (because of loose connection) and it is not a sabotage case.

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11. The General Manager in its order dated 01.07.2010 refused to accept the plea of the appellant that the breakdown took place because of loose connection, which was accidental and an Act of God. The General Manager has observed that the connection of incoming jumper with outgoing jumper, after breaking, would not have been possible without bending of outgoing jumper, and incoming jumper on top being vertical cannot fall on outgoing jumper which was horizontally at 90 degree. The report of the National Metallurgical Laboratory also discloses that it cannot be concluded that the wire after breaking fell upon the side wall. The General Manager has further noticed that not only the primary side connections of incoming and outgoing jumpers were existing prior to 11.07.1995 when the

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electronic meter was installed, no ring around nut of incoming stud was visible in the photograph, which should have been there had the conductor broken due to heat produced by loose connection. It is the case pleaded by the respondents that seal bit of secondary terminal of CTPT unit was tampered and the tampering of seal bit was repeated for sorting CT. The report of the National Metallurgical Laboratory is only an opinion and it cannot conclusively decide the issue involved in the case. In the aforesaid facts, the conclusion of the General Manager that the consumer indulged in malpractice and theft of energy does not appear to be erroneous.

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12. We may profitably remind ourselves that, normally, in the matters involving complex technical issues High Court should be slow to interfere with the decision of the experts unless, it is shown that some important evidence has been overlooked or legal provisions involved therein have been misinterpreted or misapplied. It is not in doubt that the General Manager who primarily is the Chief Engineer, would have necessary technical knowledge, and it has scientifically dealt with issue cropped up in this case. The case in hand does not fall under any of the category of cases warranting judicial review of the decision taken by the General Manager. On admitted facts, the decision dated 01.07.2010 of the General Manager turns out to be a forbidden territory for judicial review.

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13. Mr. Ajit Kumar, the learned Senior Standing Counsel

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appearing for Jharkhand Urja Vikash Nigam Limited (previously Jharkhand State Electricity Board) contended that the issue sought to be raised by the appellant is concluded by the decision of Supreme Court in “JMD Alloys Limited Vs. Bihar State Electricity Board” (2003) 5 SCC 226. In “JMD Alloys” case, though the facts are slightly different, the decision of Supreme Court not to interfere in the matter when opportunity of hearing is afforded to the consumer and the authority took into consideration relevant factors and the findings recorded by it were borne out from the materials available on record, is squarely attracted in the present case. Order dated 01.07.2010 discloses that the consumer was heard at length and, in fact, it is not the grievance of the appellant that order dated 01.07.2010 does not reflect its plea raised before the General Manager. The appellant has failed to demonstrate that the findings recorded by the learned Writ Court, “I find that the petitioner was given ample opportunity of hearing and the General Manager-cum-Chief Engineer, Jamshedpur had considered all the relevant materials produced by the parties and then come to the conclusion that the petitioner indulged in malpractice and theft of electricity, therefore, liable to pay penal bill as per the provisions contained under Clause 16.9(A) of the Tariff of 1993”, are not borne out from the materials on record. The contention that the General Manager in its order dated 01.07.2010 has merely concluded that the consumer had indulged in malpractice and theft of energy is not supported by reasons, in

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view of the detailed discussion and the scientific approach reflected in the said order, is liable to be rejected. The fact that the police submitted a Final Form in the criminal case registered for theft of electricity is also of no consequence inasmuch as, it is not imperative that for calculating loss caused to the respondent-Board (now Nigam) under Clause 16.9(A), the criminal case registered for theft of electricity must result in conviction of the consumer. The learned Senior Standing Counsel appearing for the respondents has rightly contended that order dated 01.07.2010 of the General Manager impugned before the Writ Court is reasoned one and the findings recorded in earlier proceedings which have become final and not challenged by the appellant-Company cannot be agitated, as if the entire issue was open before the Writ Court once again.

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14. Having considered the materials available on record, we find no infirmity in the impugned order dated 27.03.2015 of the Writ Court. The Writ Court has noticed all relevant facts and upon consideration of all relevant factors, rightly refused to interfere with the order passed by the General Manager.

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15. In the result, the instant Letters Patent Appeal, devoid of any merit, is dismissed.

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(Virender Singh, C.J.)

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(Shree Chandrashekhar,J.)

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Manish/ A.F.R.

Ms Bharat Rubber Re Generating Company Limited through One of Its Directors Sri Manish Dhandhania v. Jharkhand Urja Vikash Nigam Limited through Its Chairman and Ors.

Case brief

What is this about?

What did the court decide?

Ms Bharat Rubber Re Generating Company Limited through One of Its Directors Sri Manish Dhandhania v. Jharkhand Urja Vikash Nigam Limited through Its Chairman and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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