Sudhir Agarwal, J. - (1.) HEARD Sri B.C. Rai for the petitioner, Sri H.P. Dubey and Sri Praveen Kumar Srivastava, advocates for respondents 1 and 2 and Addl. Chief Standing Counsel Sri C.S. Singh for respondent Nos. 3 and 4.
(2.) AS requested and agreed by learned counsel for parties, I proceed to hear this case and decide finally at this stage under the Rules of the Court. The writ petition is directed against the order dated 22.11.2007 (Annexure 13 to the writ petition) whereby the Executive Engineer, Electricity Distribution Division-I, Madhyanchal Vidyut Vitran Nigam Ltd., Bareilly (hereinafter referred to as 'EE') has made final assessment order of Rs. 13,54,181 / - and appellate order dated 10.6.2010 whereby the assessment has been modified to Rs. 4,81,976/- and consequential demand notice/bill issued by EE on 22.6.2010 raising a demand of Rs. 8,92,104/- i.e. the assessment as modified by the appellate authority and interest at the rate of 15 per cent to the tune of Rs. 4,10,128/- totaling to Rs. 8,92,104/-. Petitioner has also sought a writ of mandamus restraining respondents from realizing interest, minimum charges etc. from petitioner and to refund the amount already paid by him. The factual matrix in brief giving rise to present dispute, as stated in the writ petition, are as under. Petitioner M/s Modern Rice Mill is a partnership firm engaged in running a Rice Mill having its factory situated at Baheri, District Bareilly. It entered into an agreement with erstwhile U.P. State Electricity Board (hereinafter referred to as UPSEB") for supply of electrical load of 45 Kilo Watt (60 Horse Power) which is known as "contracted load" under the Statute. A digital electronic computerized meter was installed at petitioner's premises vide sealing certificate dated 8.2.2005 installing electric meter bearing No. UPE 53367/EBM-187. A copy of sealing certificate has been filed by respondents pursuant to this Court's order dated 10.8.2011 and by the petitioner also as Annexure SA-I to Second Supplementary Affidavit dated 16.8.2011. It is said that the aforesaid meter is manufactured by M/s Secure Meters Ltd., a private manufacturing company. The meters of this company commonly known as "Secure Meter". The aforesaid meter was also tested and checked on 14.4.2005 vide sealing certificate filed alongwith second supplementary affidavit dated 16.8.2011. On 14.10.2005 a team consisting of EE and Executive Engineer (Test) made a checking at the premises of the petitioner and prepared a checking report making following remarks: "(1) Visited consumer site and checked the meter. Found stopped on 25 Amp. load. During enquiry of 15 minutes period Meter remained stopped but suddenly meter started. Functioning suspected remote operation of the meter by the consumer. Meter Body Seal found disturbed/ tampered; (2) Old meter replaced by new meter; (3) Old Meter sealed in consumers presence for Secure company for analysis of the meter; (4) All sealing done as per UPPCL Norms; (5) Meter performance could not be checked due to supply failure;
(3.) THE Executive Engineer (Test) sent a letter dated 12.1.2006 addressed to EE stating that 'Secure Meter' sent to meter manufacturing company, who had submitted report vide letter dated 4.1.2006 commenting that SML papers seals were found tampered, extra circuit found in the meter fitted to disturb the meter and consequently concluded that meter was tampered. The Executive Engineer (Test) observed that the consumer was committing theft of electrical energy by tampering meter, hence appropriate action be taken. Consequently EE issued a letter dated 26.1.2006 directing for disconnection of electric supply to the petitioner and lodging of report with Police. A Provisional Assessment Order was passed on 1.2.2006 by EE proposing assessment of Rs. 12 lac. The Provisional Assessment Order referred to U.P. Electricity Supply Code, 2005 (hereinafter referred to as "Code 2005") and Section 138 of the Electricity Act, 2003 (hereinafter referred to as "Act 2003"). Checking report dated 14.10.2005 was referred to in the said Provisional Assessment Order and the petitioner was required to file his objection, if any, within 15 days. Petitioner filed reply dated 6.3.2006 stating that meter was not tested in his presence which was requirement of the statute and therefore report obtained ex parte and in violation of procedure prescribed in the statute is impermissible to be relied for raising any demand. Petitioner requested for re-connection. In the meantime, petitioner also filed writ petition No. 10075 of 2006 complaining illegal disconnection and seeking a mandamus for re-connection of his electricity supply. The writ petition was disposed of by a Division Bench vide judgment dated 20.2.2006 with the following direction: "In the circumstances of the case, the petitioner may file a representation before respondent No. 3. In case the representation is filed it may be decided by concerned Executive Engineer by a speaking order, if possible, within one month from the date of receipt of the representation. The petitioner will file a certified copy of this order, other necessary documents and a duly stamped self-addressed envelop alongwith his representation. The concerned Executive Engineer after taking decision on the representation will communicate the same to the petitioner." ;