ASHOK BHUSHAN, J. - (1.) HEARD Sri H. N. Singh, learned counsel for the petitioner and Sri Ranjeet Saxena, learned counsel appearing for the respondents. Counter and rejoinder -affidavits have been exchanged and with the consent of the, parties both the writ petitions are being finally decided. These two writ petitions have been heard together since they raise similar issues. Writ Petition No. 22931 of 2004, Sri Bhagwan Gupta v. Kanpur Electricity Supply Company Ltd. and Ors. (hereinafter referred as the first writ petition), has been filed by the petitioner praying for quashing the assessment bills dated 1st April, 2004 Annexures -7 and 8 to the writ petition and the order dated 10.6.2004 Annexure -12 to the writ petition, passed by the appellate committee respondent No. 2.
(2.) BRIEF facts necessary for deciding the first writ petition are : 'Petitioner is a consumer of category of HV 2 of the Kanpur Electricity Supply Company Ltd. the contracted load of which is 79 KVA (67.15 KW). The security meter was provided on 8.9.2003. On 13.3.2004 respondents installed a check meter at the premises of the petitioner. On 13.3.2004 the respondents removed the check meter and installed a new check meter. On 26.3.2004 the premises of the petitioner were checked by a raid team on which date the seals of the meter were found tampered. A first information report was lodged against the petitioner on 26.3.2004. The assessment bill dated 1.4.2004 was raised for an amount of Rs. 50,38,604. Another supplementary assessment bill of the same date was raised for an amount of Rs. 7,91.760 as voltage surcharge @ 15% for 400 Volts. The petitioner filed an appeal challenging the aforesaid bills before the appellate committee. The appeal filed by the petitioner was directed to be decided by this Court vide its order dated 7.5.2004 passed in the Writ Petition No. 17268 of 2004 subject to the condition that the petitioner will deposit Rs. 3,00,000 within ten days. The amount of Rs. 3,00,000 was deposited and consequently the appellate authority considered the appeal on merits which was dismissed on 10.6.2004. A copy of the appellate order has been annexed as Annexure 12 to the writ petition.' Brief facts of the Second Writ Petition No. 22932 of 2004, Sri Niwas Gupta v. Kanpur Electricity Supply Company Ltd. and Ors. are : 'The petitioner is a consumer of category HV 2 with contracted load of 86 KVA (73.1 KW). A meter was installed in the petitioner's premises. On 28.2.2004 meter reading of the petitioner was taken on which date old lead seals No. 250654 and 250653 affixed on the meter cubicle doors were removed and in place thereof new lead seals No. 252736 and 252737 were provided and similarly the paper sticker No. 008566 and 008567 provided on the lock affixed on the meter door box were removed and new paper sticker No. 014683 and 014684 were provided. On 31.3.2004 a checking was made by the respondent in the premises of the petitioner and it was found that the paper sticker No. 014683 and 014684 were forged and the signatures of Sr. S.S.B. Gupta were also forged. The lead seals were tampered. The amount of Rs. 4,00,000 were paid by the consumer as penalty by two cheques. Assessment bill dated 1.4.2004 was raised for an amount of Rs. 16,50,377. Petitioner filed an appeal against the said order before the appellate authority. The appeal of the petitioner was heard on deposit of Rs. 4,00,000 as per direction of this Court in Writ Petition No. 17269 of 2004. The appellate committee dismissed the appeal of the petitioner by its order dated 10.6.2004. The writ petition has been filed - challenging the assessment bills dated 1.4.2004 and the appellate order dated 10.6.2004. In support of both the writ petitions Sri H. N. Singh, learned counsel for the petitioner raised following submissions : (1) The assessment made by the respondent is not in accordance with the provisions of Section 126 of the Electricity Act, 2003 and in accordance with paragraph 6.17.1 and 6.17.2 of the U. P. Electricity Supply Code, 2002. The respondents while making assessment has calculated the amount thrice of the units assessed whereas in accordance with Section 126(6) of the Electricity Act, 2003, the assessment was required to be made at the rate equal to one -and -half times of the tariff applicable. (2) That while making assessment, assessment has been made for the period of 180 days whereas in both the writ petitions the number of days were fully ascertainable and in first writ petition number of days ought to have been taken only thirteen since on 13.2.2004 itself the reading was taken when no theft was found. With regard to second writ petition number of days ought to have been taken as 31 since on 28.2.2004 meter seals were changed which were found to be tampered on 31st March, 2004 at the time of raid. (3) That the load factor has also been wrongly calculated in both the writ petitions. In the first writ petition lead factor was wrongly taken as 176 KVA whereas it ought to have been 8.4 KVA and in no case it should have been more than 79 KVA. In second writ petition the load factor ought to have been taken 49.20 KVA. (4) That the first writ petition supplementary assessment dated 1.4.2004 is not valid. When the assessment is being made in accordance with the provisions of the U. P. Electricity Supply Code, 2002 the amount of voltage surcharge could not have been levied.
(3.) SRI Ranjeet Saxena counsel for the respondents refuting the submissions of the counsel for the petitioner contended that the assessment against the petitioner have rightly been made in accordance with paragraph 6.17.1 and 6.17.2 of the U. P. Electricity Supply Code, 2002. It has been contended that the number of days have rightly been taken as 180 days in both the assessments. In the case of first writ petition the check meter was installed on 13.2.2004 which due to some electronic default did not display any reading hence it was replaced on 13.2.2004 by another check meter. It is contended that after installation of the check meter on 13.2.2004, the reading taken by the check meter was much more than was being recorded by the meter. It is contended that the number of days during which the petitioner extracted the energy being not ascertainable 180 days have been taken. With regard to second writ petition also the counsel for the petitioner Sri Ranjeet Saxena contended that number of days were not ascertainable hence 180 days were taken according to rules. Sri Saxena further contended that the load factor has also correctly been taken in the assessment. Sri Saxena contended that the appellate authority has recorded finding of fact regarding assessment and this Court in exercise of its jurisdiction under Article 226 of the Constitution will not interfere with the finding of fact recorded by the appellate authority. Sri Saxena placed reliance on the judgment of the. Apex Court in J.M.D. Alloys Ltd. v. Bihar Electricity Board and Ors., AIR 2003 SC 1354.;