Hon'ble Ashok Bhushan, J. - (1.) THESE three connected writ petitions have been heard together and are being decided by this common judgment. We have heard Sri H.P. Dube, learned counsel appearing for the U.P. Power Corporation and Dakshinanchal Electricity Distribution Corporation and Sri Rakesh Doneria appearing in person who is respondent No. 1 in the first writ petition and petitioner in other two writ petitions.
(2.) CIVIL Misc. writ petition No. 28504 of 2000 (hereinafter referred to as first writ petition) contains the genesis of dispute between the U. P. Power Corporation (hereinafter referred to as licensee) and the consumer Rakesh Doneria. The facts giving rise to first writ petition need to be noted in detail to appreciate the nature of dispute between the parties and to decide all the three writ petitions. The facts of writ petition No. 28504 of 2000 are here as under. The consumer, a small scale industry engaged in manufacture of agricultural equipments/machinery, thrashers, trailer, trolleys etc. was granted an electric connection in the year 1980. In the year 1994 the load was extended up to 331 KVA. On 11.7.1994 a meter was installed which mentioned line C.T. Ratio 20/5, overall multiplying factor 400 for all and 4 for KWA. A sealing certificate was issued on 1.8.1994 mentioning the lince C.T. Ratio as 20/5 and overall multiplying factor-400 for all and 4 for KWA. Bills were raised on the basis of the aforesaid State of W. B. and others v. Rupa Ice Factory (P) Ltd. and others, 2004 10 SCC 635 C.T. Ratio and multiplying factor upto June, 1996, which were duly paid. A bill of Rs. 1,52,813/- was issued on 3.7.1996 in which for the first time, the multiplying factor was mentioned as 600 and OMF 6 was applied instead of 400 and 4. The consumer paid Rs. 100,000/- under protest. The said bill was said to be raised on the basis of checking dated 3.7.1996. A letter dated 16.8.1996 was written by the Executive Engineer, Electricity Distribution Division which mentioned that although checking was made on 3.7.1996 by the Assistant Engineer in which C.T. Ratio has been shown as 30/5 in place of 20/5, but it is not mentioned that checking was made by primary injection set hence, comprehensive checking is necessary. Letter further mentioned that earlier billing was made on the basis of multiplying factor 400 whereas it ought to have been 600 in view of the C.T. Ratio being 30/5, which indicate that consumption was being less recorded. On 17.8.1996, a checking was claimed to be held in which C.T. Ratio was noted as 30/5 and multiplying factor as 600 and 6. The consumer filed suit No. 589 of 1996 for permanent prohibitory injunction restraining the licensee from realising any bill prepared on the basis of multiplying factor as 600 and 6, and disconnecting the supply. Interim injunction was issued on 21.8.1996 by the Civil Court. A supplementary bill of Rs. 12,59,895.84 was issued taking multiplying factory as 600 and 6. The Civil Judge granted a temporary injunction on 7.1.1997 against which First Appeal From Order was filed by the licensee in which interim order was passed. However, subsequently a request was made in the appeal that the consumer intended to withdraw the suit itself and consequently, the suit was withdrawn. On 2.9.1997, the consumer gave a notice to the licensee for getting the meter checked by Electrical Inspector in accordance with the provisions of Section 26(6) of Indian Electricity Act, 1910. On 4.9.1997, the Executive Engineer wrote a letter to the petitioner stating that it is neither justifiable nor practicable to get the meter checked by Electrical Inspector. The petitioner on 10.9.1997 sent a letter to the Electrical Inspector for checking the meter under Section 26(6) and to declare the correct multiplying factor. The Deputy Director, Electrical Safety called a report from the Executive Engineer of the licensee on 27.10.1997,5.12.1997 and 23.5.1998. But no report was submitted. Again on 6.7.1998, the Deputy Director, Electrical Safety asked the Executive Engineer of the licensee as to why the report had not been submitted. The consumer filed a suit being suit No. 429 of 1998, alleging that licensee and its officer are trying to replace the disputed metering equipment from the premises and they may be injuncted to do so. Interim injunction was granted by the trial Court. Licensee made an application in suit No. 429 of 1998, praying that they may be permitted to install an electronic meter parallel to the metering equipments, and Civil Judge passed an order on 15.7.1998 for doing the same but with concurrence and in the presence of the Electrical Inspector. The consumer on 24.8.1998 again wrote to Electrical Inspector for checking. On 25.8.1998, Director Electrical Safety, U.P. Government wrote to the Executive Engineer that an electronic reference standard meter and alternate C.T. be installed between 10.9.1998 to 11.9.1998. Sn V.K. Mathur, Deputy Director, Electrical Safety and Sri Nand Kishore, Assistant Director Electrical Safety were authorised by the Director, Electrical Safety, State of U.P. Lucknow to inspect the meter and do the needful. On 10.9.1998, the Deputy Director and the Assistant Director authorised by the Director, Electrical Safety reached at the premises of the consumer at 11 a.m. The Executive Engineer, Assistant Engineer, Junior Engineer and Sub Divisional Officer of the licensee were also present and checking was carried out till 11:30 pm. i.e. for 12 hours. A Check Meter was installed whose reading was also taken for half an hour and it was decided that further result of testing would betaken on 11.9.1998 at 2 p.m. A report was prepared by the Deputy Director, Electrical Safety, Assistant Director, Sub Divisional Officer, Assistant Engineer and Junior Engineer on 10.9.1998, which contained an endorsement "existing metering panel including seals not disturbed". On next day i.e. 11.9.1998, the Deputy Director Sri V.K. Mathur and Junior Engineer of the licensee presented themselves at the premises of the consumer but the Executive Engineer and Assistant Engineer of the licensee could not come up to 5 p.m. and when they came at 5 p.m. electricity supply was not there hence, they left on the pretext that they are going for getting the supply restored and thereafter they did not turn up. On 11.9.1998, the supply was restored after 5 p. m. for some time but the Executive Engineer did not turn up then Deputy Director tried to contact them but failing to contact, they issued a direction to the Executive Engineer to be present on 12.9.1998 at 11 a.m. On the same day i.e. on 11.9.1998, a first information report was got registered by the Executive Engineer of licensee against the consumer under Section 39/40 of the Indian Electricity Act, 1910. In the first information report, it was alleged that on 11.9.1998, when checking was made, it was found that seals on the meter are not genuine hence, a checking report was also prepared by the Executive Engineer and his subordinates containing endorsement that consumer had not signed. Checking report further mentioned that checking was made in the presence of Deputy Director, Electrical Safety, U.P. Government Lucknow between 15:30 hours to 18:45 hours. Achik first information report which was submitted before the police station also contained the name of Deputy Director Sri V.K. Mathur and Assistant Director, Sri Nand Kishore. When the aforesaid officers came to know about the said fact, letter dated 14.9.1998 was written by the Deputy Director Electrical Safety to the Senior Superintendent of Police, Agra that no first information report had been lodged with their signatures and they had no concern with the allegations of theft of electricity and they were not agreeable to those allegations. Director electrical Safety also on 17.10.1998 wrote to Senior Superintendent of Police that checking report was not prepared in the presence of the Deputy Director as alleged on 11.9.1998.
(3.) A provisional assessment dated 15.9.1998 was made by Executive Engineer on the basis of alleged checking dated 11.9.1998 for an amount of Rs. 46,23,497/ -which was objected by the consumer. A writ petition No. 4388 of 1988 was filed by the consumer, challenging the notice of provisional assessment and checking. On 13.10.1998, the assessment was finalised. The writ petition No. 4388 of 1998 was withdrawn with the permission of the Court on the ground that Investigating Agency had already submitted a report. Police had submitted a final report in the criminal case arising out of information report lodged on 11.9.1998, which was accepted by the 1st A.C.J.M. on 16.11.1998. Criminal Revision was filed by the licensee against the order of First A.C.J.M, which was allowed and the matter was remanded for fresh consideration. A complaint was also filed by the consumer to the Udyog Bandhu, which is a unit constituted in district to help the small scale industires. Complaint was made that electricity was disconnected without information illegally and to obstruct the inquiry by the Deputy Director, Electrical Safety and action of the licensee and its officers was for the purpose of closing the unit. Ameeting of the Udyog Bandhu was held. Under the orders of the District Magistrate, City Magistrate was directed to submit an inquiry report with regard to disconnection and lodging of the first information report by the licensee. The City Magistrate after hearing the consumer and officers of the licensee submitted a report on 17.12.1998 that the licensee with intent to harass the consumer, had made false allegations of tempering of seal. It was found by the City Magistrate that action of the officers of the licensee was to obstruct the inquiry by the Deputy Director, Electrical Safety and there was no fault of the consumer and the officers of the licensee were guilty. In the meeting of the Udyog Bandhu held on 22.2.1999, it was decided that the premises be checked again in the presence of the Magistrate. On 21.4.1999/ 22.4.1999, the premises were again inspected in the presence of the officers of the licensee, the Joint Director Electrical Safety as well as the consumer. The said checking report was considered by Director, Electrical safety and a decision dated 26.4.1999 was taken by Director, Electrical Safety under Section 26(6) in reference to the dispute which was raised by the consumer regarding correctness of the meter. The Director Electrical Safety found that C.T Ratio was 20/5 and multiplying factor was 400 and 4. The Director Electrical Safety held that supplementary bill prepared on the basis of C.T. Ratio 30/5 and multiplying factor 600 and 6 was not correct. The supplementary bill of Rs. 12,59,895.84 was held to be incorrect. The licensee filed an appeal before the State Government against the said order of the Director dated 26.4.1999. After exchange of counter-affidavit and rejoinder affidavit between the parties, the appeal was decided by the State Government vide its order dated 4.4.200. The appeal filed by the licensee was rejected. The appellate authority recorded a categorical finding that the multiplying factor of the meter was 400 and 4 and the supplementary bill was to be set aside. It was also held that when the checking was done in the presence of Deputy Director on 10.9.1998 by installing a check meter which checking took place for 12 hours, the disconnection of electricity without permitting the inspection to be completed, was deliberate obstruction and lodging of first information report by the licensee with forged signatures of Deputy Director and Assistant Director was also proved that the officials of the licensee had acted arbitrarily and were involved in fraud and their conduct was strongly condemned. It also directed that recovery certificate issued against the consumer be withdrawn and electricity be connected. The licensee filed a review before the State Government to review the order dated 4.4.200, which too was rejected on 27.5.2000. The first writ petition being writ petition No. 28504 of 2000 has been filed by the U.P. Power Corporation, challenging the order dated 4.4.2000,27.5.2000 as well as the order dated 26.4.1999 of the Director Electrical Safety. The following are the prayers made in the first writ petition. "1. to issue a writ, order or direction in the nature of certiorari quashing the orders dated 4.4.2000 and 27.5.2000 (Annexure-37 and 39 to this petition). 2, to issue a writ, order or direction in the nature of certiorari quashing the orders dated 26.4.1999 (Annexure-31 to this petition). 3. to issue any other writ, order or direction as this Hon'ble Court may deem fit and proper in the circumstances of the case.";