As per case facts, the petitioner, Brihan Mumbai Municipal Corporation, inspected the respondent's premises and found several irregularities in the electricity meter, including missing seals, tampered body, scratch marks, and ...
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AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.2195 OF 2019
The Brihan Mumbai Municipal Corporation,
a Statutory Authority duly constituted under
the provisions of the Mumbai Municipal
Corporation Act, 1888, through General
Manager / Assessing Officer, the Brihan
Mumbai Electric Supply and Transport
Undertaking, having Office at BEST Bhavan,
BEST Marg, Mumbai – 400 001… Petitioners
Vs.
Mustaffa Saqib Khan,
14, Ground, Kopergaon Estate, Love Lane,
Byculla, Mumbai – 400 010… Respondent
WITH
WRIT PETITION NO.2196 OF 2019
The Brihan Mumbai Municipal Corporation,
a Statutory Authority duly constituted under
the provisions of the Mumbai Municipal
Corporation Act, 1888, through General
Manager / Assessing Officer, the Brihan
Mumbai Electric Supply and Transport
Undertaking, having Office at BEST Bhavan,
BEST Marg, Mumbai – 400 001… Petitioner
Vs.
Sakib Khan / Abdul Qayyumm Mustaffa
Khan, Shop Nos.4, 5, 6, & 7, Ground Floor,
Kopergaon Estate, Love Lane, Byculla,
Mumbai – 400 010 … Respondent
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Mr. Harvindeer Toor with Mrs. Karishma Jhaveri i/by
Navdeep Vora & Associates for the petitioner.
Mr. Prerak Sharma with Mr. Hamid Ansari i/by Ms.
Mansi Jain for the respondent in WP/2195/2019.
Mr. Nakul Jain with Mr. Hamid Ansari i/by Ms. Mansi
Jain for the respondent in WP/2196/2019.
CORAM :AMIT BORKAR, J.
RESERVED ON :JUNE 22, 2026.
PRONOUNCED ON:JUNE 30, 2026
JUDGMENT:
1.Since both these writ petitions involve the same facts and the
same legal issues, they are being decided together by this common
judgment.
2.The present writ petitions are filed under Articles 226 and
227 of the Constitution of India. By these petitions, the petitioner
has challenged the common order dated 3 October 2017 passed by
the Appellate Authority in Appeal Nos. 9 and 10 of 2015.
3.For deciding the issues raised in these writ petitions, it is
necessary to briefly refer to the facts as stated by the petitioner.
According to the petitioner, the respondent is its consumer and is
carrying on industrial work of electroplating. The respondent was
supplied an electricity connection for commercial use at the
concerned premises. According to the petitioner, the industrial
activity carried out by the respondent is of a continuous nature. An
electricity meter bearing No. Q971100 was installed on 11 March
2008 for commercial electricity supply to the premises. On 9
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September 2009, the Vigilance Team of the petitioner inspected
the respondent's factory. During the inspection, the team noticed
certain irregularities in the said meter. It was found that the meter
terminal block seals were missing. The two pink acrylic seals on
the body of the meter appeared to have been tampered with.
Scratch marks were also noticed on the reading counter. It was
further observed that the electricity consumption shown by the
meter was not matching with the connected electrical load
installed at the premises. After completing the inspection, the
Vigilance Team prepared an inspection report and also drew a
panchanama in the presence of Abu Barkat Izamul Haq and
Kamaluddin Ansari, who were working at the respondent's factory.
During the inspection, in the presence of the authorised officer of
the petitioner, the Vigilance Team recorded the connected
electrical load available at the premises. It consisted of eighteen
tube lights of 40 watts each, six polishing machines of 1375 watts
each, one AIV blower of 750 watts, two exhaust fans of 60 watts
each, one pedestal fan of 180 watts, one barrel machine of 1375
watts, five ceiling fans of 40 watts each, two rectifiers of 1500
watts each, three rectifiers of 1000 watts each, one polish drum of
750 watts, one power press machine of 1500 watts and another
power press machine of 850 watts. In view of the discrepancies
and irregularities noticed during the inspection, the officers of the
Vigilance Squad sealed the said meter and took it into their
custody. This was done after preparing a panchanama in the
presence of the panch witnesses and the two workers of the
respondent.
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4.Thereafter, by letter dated 9 September 2009 bearing No.
VIG(N)/196/T09/20, the respondent was served with a
provisional assessment bill of Rs.12,36,670/-. According to the
petitioner, this amount represented the provisional civil liability
assessed by the Assessing Officer on account of alleged tampering
with the electricity meter. The assessment was made on the basis
of an alleged loss of 66,847 KWH units of electricity. Thereafter,
the Review Committee of the petitioner undertaking examined the
facts and circumstances of the case and passed the final
assessment order. The respondent challenged the assessment
before the Appellate Authority. By a common order dated 3
October 2017, the Appellate Authority decided Appeal Nos. 9 and
10 of 2015. It is this order which is under challenge in the present
writ petitions.
5.Mr. Toor, learned Advocate appearing for the petitioner,
submitted that the Appellate Authority committed an error in
setting aside the final assessment only because no laboratory test
of the meter was carried out. According to him, the Appellate
Authority failed to appreciate that the terminal block seal of the
meter was missing, both pink acrylic seals on the meter body were
found tampered, scratch marks were noticed on the reading
counter, and the electricity consumption shown by the meter did
not match the connected load. These circumstances, according to
the petitioner, were sufficient to show that the meter had been
tampered with and, therefore, no laboratory testing was required.
He further submitted that neither the Electricity Supply Code,
2005 nor Section 8 thereof requires a tampered meter to be tested
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in an NABL accredited laboratory or requires installation of a check
meter at the consumer's premises.
6.Learned counsel further submitted that the respondent had
voluntarily paid an ad hoc amount of Rs.3 lakh towards the
assessed liability and had also shown willingness to settle the
matter, as reflected from the letter dated 13 September 2009.
According to him, this payment was made by the respondent to
avoid criminal prosecution and not because of any force or
pressure from the petitioner. He further submitted that while
calculating the assessment, the Assessing Officer had not taken the
actual electricity usage. Though the respondent was carrying on an
electroplating business, which normally requires electricity round
the clock, the Assessing Officer calculated the assessment by taking
the working hours at only 14 hours per day after considering
factors such as diversity, workload and business requirements.
According to him, this was much less than the actual usage.
7.It was further submitted that during inspection, the
connected load was found to be 20.595 KW as against the
sanctioned load of 18.70 KW. According to the petitioner, this
amounted to unauthorized use of electricity within the meaning of
Section 126 of the Electricity Act, 2003. It was therefore submitted
that the final assessment order passed by the Assessing Officer was
legal, proper and did not require any interference.
8.On the other hand, Mr. Sharma and Mr. Jain, learned
Advocates appearing for the respective respondents, submitted
that the petitioner's officers inspected the respondent's premises on
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9 September 2009 and thereafter issued a provisional assessment
of Rs.12,36,670/- for a period of 601 days from 18 January 2008
to 9 September 2009 alleging theft of electricity by tampering with
the meter. They submitted that the respondent was carrying on
electroplating work in Room No.14, where power press machines,
polish drums and other plating machines were installed. According
to them, the factory worked only from 10.00 a.m. to 7.30 p.m.
every day because water required for the electroplating process
was supplied by the Municipal Corporation only between 7.50
p.m. and 9.00 p.m. As the process could not continue without
water, the work was stopped by 7.30 p.m. and the factory actually
functioned only for about 8.30 hours a day.
9.Learned counsel for the respondents further submitted that
on 9 September 2009, around noon, about 32 representatives of
the petitioner entered the respondent's premises for inspection.
During the inspection, an inspection report was prepared.
According to the respondents, there was no evidence or proof to
show that the meter had recorded reverse reading or that
electricity had been stolen. For this reason, the respondent refused
to sign the format prepared by the petitioner alleging theft of
electricity. However, it is alleged that on 14 September 2009, the
petitioner obtained the signature of one of the respondent's
relatives on that document. It was further submitted that the
printed format itself mentioned that a police case could be
registered under Section 135 and that the respondent was ready to
deposit the amount. According to the respondents, the petitioner
had already called the police on 9 September 2009 itself and a
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complaint was registered at the police station at about 3.50 p.m.
10.It was further submitted that the petitioner threatened to
disconnect the electricity supply and, under such pressure,
recovered a total amount of Rs.3,38,700/- from the respondent.
According to the respondents, on every letter issued by the
petitioner they had clearly written the words "not agreed". After
the incident, the respondent sought information under the Right to
Information Act regarding Meter No. Q971100. From the
information supplied, the respondent came to know that the
disputed meter had never been sent to the Testing Department
after it was removed during the inspection in September 2009. It
was also revealed that the meter had been manufactured in the
year 1996, had earlier been installed at the premises of another
consumer bearing Consumer No.329513033, was removed from
that consumer on 6 February 2006, and was thereafter installed at
the respondent's premises on 11 March 2008.
11.Learned counsel further pointed out that in the reply filed by
the petitioner before the Appellate Authority, it was stated that the
"consumer is suspected to have tampered meter". According to the
respondents, this itself shows that even the petitioner was not
certain that the respondent had actually tampered with the meter.
12.It was also submitted that even before the inspection, by a
letter dated 17 August 2009, the respondent had requested the
petitioner to inspect the disputed meter. According to the
respondents, despite this request, the petitioner thereafter came
with about 32 representatives and conducted the inspection on 9
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September 2009 in a pre-planned manner with an intention to
take action against the respondent. It was submitted that the
petitioner had no proof of reverse reading of the meter and had
also failed to carry out proper testing of the disputed meter.
13.Lastly, learned counsel submitted that the respondent's
factory operated only for about 8.30 hours every day. While
making the assessment, the actual working hours and use of the
machines were not properly considered. It was submitted that the
respondent had never tampered with the electricity meter and that
the entire action was taken only to falsely implicate the
respondent. According to them, because the assessment amount
was forcibly recovered, the respondent had suffered financial loss
and was therefore entitled to appropriate relief.
REASONS AND ANALYSIS:
14.I have carefully considered the rival submissions and have
gone through the material placed on record. I have also examined
the inspection report, panchanama, provisional and final
assessment orders, the order passed by the Appellate Authority
and the statutory provisions of the Electricity Act, 2003. The
principal question is whether the Appellate Authority was justified
in interfering with the final assessment made by the Assessing
Officer.
15.The petitioner has relied upon various other circumstances
mentioned in the inspection report. Before recording any
conclusion, this Court is required to examine submissions made by
both sides. It is true that in the reply filed before the Appellate
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Authority, the petitioner has stated that the respondent was
"suspected" to have tampered with the meter. Normally, use of such
word may show that the petitioner was not stating with certainty
that tampering had already been established. At the same time,
this circumstance cannot conclude the controversy. The Court is
required to appreciate the entire record and thereafter arrive at its
conclusion. In my view, undue importance cannot be attached to
the use of the expression "suspected" while overlooking the
material collected during the inspection.
16.The Court also cannot overlook the inspection report
prepared by the Vigilance Team after the inspection of the
respondent's premises. The panchanama prepared on the same day
also records the condition of the meter as noticed by the officers
present during inspection. According to the inspection report, the
terminal block seal of the meter was missing. Both pink acrylic
seals fixed on the body of the meter were found tampered. Scratch
marks were noticed on the reading counter. It was also recorded
that the electricity consumption shown by the meter was not
matching with the connected load available at the premises. These
facts form part of the documents prepared at the time when the
inspection was carried out. Such contemporaneous documents
carry their evidentiary value and cannot be brushed aside unless
there is material showing that they were incorrectly prepared or
fabricated.
17.Whether these circumstances are sufficient to establish
unauthorized use of electricity is another question which has to be
decided after appreciating the evidence available on record.
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However, merely because in one part of the reply the petitioner
used the word "suspected", the Court cannot ignore the
irregularities recorded in the inspection report and the
panchanama. Therefore, I am unable to accept the contention of
the respondents that the use of the word "suspected" is sufficient to
invalidate the assessment proceedings.
18.The respondents have next submitted that the inspection was
not carried out properly and that the exercise was pre-planned to
implicate them. According to them, nearly thirty-two officers of the
petitioner entered the premises for carrying out inspection. It is
also their case that before such inspection, by letter dated 17
August 2009, the respondent had requested the petitioner to
inspect the disputed meter. According to the respondents, instead
of conducting a inspection on such request, the petitioner came
with a large team of officers and proceeded with a pre-determined
view that theft of electricity had been committed. It is further
submitted that there was no proof showing reverse reading of the
meter and still allegations of theft were levelled. It is also alleged
that after the respondent refused to sign the inspection papers,
signatures of one of his relatives were obtained and criminal
proceedings were initiated. On the basis of these circumstances, it
is argued that the inspection was unfair and the action taken by
the petitioner was not bona fide.
19.Such submissions deserve careful examination. Every
statutory authority is expected to exercise its powers fairly, and in
accordance with law. Whenever allegations of arbitrariness, or
mala fide action are made, the Court cannot reject them without
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examining the material.
20.After going through the material available on record, I do
not find sufficient material to accept the allegation that the
inspection was fabricated or carried out with mala fide intention.
Serious allegations require satisfactory material. Mere allegations,
are not sufficient. The burden to establish such allegations lies
upon the party making them. Merely because a large number of
officers participated in the inspection or because the respondent
had earlier requested inspection of the meter, it cannot lead to the
conclusion that the inspection became illegal. In matters relating
to suspected unauthorized use of electricity or tampering of
electricity meters, inspections are carried out by vigilance teams
consisting of several officers. Therefore, the mere presence of
thirty-two officers at the premises cannot make the inspection
doubtful.
21.Apart from making these allegations, the respondents have
also not produced any material to establish that the inspection
report or the panchanama was fabricated. No technical material
has been placed before the Court to show that the defects noticed
by the Vigilance Team were impossible or incorrectly recorded.
Mere denial of the contents of an official inspection report cannot
displace the evidentiary value attached to such contemporaneous
record. Findings of the Court have to be based upon evidence
available on record. Therefore, in absence of any supporting
material, I am unable to accept the allegation that the inspection
was fabricated.
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22.The respondents have also argued that the Assessing Officer
proceeded on an incorrect basis while calculating the working
hours of the factory. According to them, the electroplating work
depended upon water supplied by the Municipal Corporation
during evening hours and, therefore, the factory functioned for
about eight and half hours. It is submitted that by assuming longer
working hours, the Assessing Officer has made unrealistic
assessment.
23.However, on reading of the assessment order, it does not
appear that the Assessing Officer proceeded on the footing that the
respondent's factory was functioning for twenty-four hours every
day. On the contrary, the petitioner has explained that although
electroplating industries require electricity for longer duration and
in some cases may even function continuously, the assessment in
the present case was restricted to only fourteen working hours per
day after taking into consideration the nature of business and work
pattern. According to the petitioner, the assessment was made on a
reduced basis and not on the maximum working hours. Whether
the working hours ought to have been taken as eight and half
hours or fourteen hours may have some bearing upon the amount
assessed. However, that issue relates to the correctness of the
computation. It does not answer the principal question whether
there was unauthorized use of electricity. The question of
unauthorized use and the question of quantification of liability are
distinct issues.
24.The petitioner has also placed reliance upon the connected
load found during inspection. According to the inspection report,
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the connected load was found to be 20.595 KW whereas the
sanctioned load available to the respondent was 18.70 KW.
According to the petitioner, this circumstance attracts Section 126
of the Electricity Act. In my view, this submission carries
substantial force. The legal position on this aspect is now well
settled. The Supreme Court in
Southern Electricity Supply Co. of
Orissa Ltd. v. Sri Seetaram Rice Mill, (2012) 2 SCC 108
has held
that consumption of electricity in excess of the sanctioned or
contracted load amounts to unauthorized use of electricity. The
Supreme Court has further observed that such excess load is not
merely a breach of the contractual conditions but is also likely to
adversely affect the electricity distribution system and other
consumers. Therefore, once excess connected load is established
during inspection, the Assessing Officer acquires jurisdiction to
initiate proceedings under Section 126 of the Electricity Act.
25.The Supreme Court has explained the distinction between
proceedings under Sections 126 and 135 of the Electricity Act.
Proceedings under Section 126 are civil in nature and are meant
for assessment arising from unauthorized use of electricity. On the
other hand, Section 135 relates to the criminal offence of theft of
electricity where dishonest intention is important. The object and
consequences under both provisions are different. Therefore, the
standard of proof required in criminal proceedings cannot be
applied while examining an assessment made under Section 126.
If this distinction is ignored, the scheme of the Electricity Act
would become unworkable.
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26.The respondents have argued that unless theft or tampering
is proved, the assessment cannot be sustained. In my view, this
submission proceeds on an incorrect understanding of the
statutory provisions. Even if the material available on record may
not be sufficient to establish criminal liability under Section 135,
that circumstance cannot invalidate proceedings under Section
126. The Assessing Officer is not required to establish the criminal
offence of theft beyond reasonable doubt. What is required is that
he should arrive at a conclusion that there was unauthorized use
of electricity. Therefore, the respondents cannot challenge the
assessment by contending that the available evidence may not be
sufficient for prosecution.
27.The respondents have also submitted that the amount of
Rs.3 lakh was recovered because the petitioner threatened
disconnection of electricity supply and initiation of criminal
prosecution. According to them, such payment was not voluntary
and cannot be treated as admission. According to the petitioner,
the respondent expressed willingness to settle the matter and
voluntarily deposited the amount. Thus, two versions have been
placed before the Court. The material available on record does not
establish either version. In some cases, a consumer may deposit an
amount to avoid interruption of business. In other situations, such
payment may be made voluntarily with an intention to settle the
dispute. Both possibilities are available. Therefore, I am not
inclined to treat such payment either as a admission of liability or
as proof of coercion. In absence of material supporting either
version, this circumstance cannot determine the legality of the
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assessment.
28.Coming now to the order passed by the Appellate Authority,
it appears that the reason assigned for interfering with the
assessment was that the disputed meter had not been subjected to
laboratory testing. In my considered view, such approach cannot
be accepted. Neither Section 126 of the Electricity Act nor the
applicable Electricity Supply Code provides that laboratory testing
is an essential requirement before an assessment can be made. The
statute nowhere states that unless the meter is examined in a
laboratory, the assessment must fail. Once the legislature has not
imposed such condition, the Appellate Authority could not have
introduced one.
29.The Assessing Officer is expected to consider the material
collected during inspection. Such material may include the
inspection report, the panchanama, the physical condition of the
meter, the connected load, the consumption pattern and the other
surrounding circumstances noticed during inspection. After
considering the effect of all these materials, the Assessing Officer
has to arrive at conclusion. If it is held that assessment under
Section 126 must fail only because laboratory testing has not been
conducted it would amount to reading into the statute a condition
which the legislature has not provided. Laboratory examination
may strengthen the evidence, but its absence cannot invalidate the
assessment where other material is available.
30.The Supreme Court has also explained the position while
interpreting Section 126 of the Electricity Act. It has held that
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proceedings under Section 126 are intended to determine civil
liability arising from unauthorized use of electricity. The Assessing
Officer is required to inspect the premises, collect the material and
form his opinion. A provisional assessment is then issued. The
consumer is given an opportunity to file objections and to be
heard. Thereafter, a final assessment order is passed. Against such
final order, the statute provides a right of appeal under Section
127. Thus, the entire procedure from inspection till appeal has
been provided by the legislature and constitutes a complete code
governing assessment for unauthorized use of electricity.
31.It appears that the Appellate Authority attached importance
to the absence of laboratory testing while not undertaking a
examination of the remaining evidence. In my view, such approach
is not in consonance with the scheme governing proceedings under
Section 126 of the Electricity Act and therefore cannot be
sustained.
32.In view of the foregoing discussion and for the reasons
recorded hereinabove, the following order is passed:
(i) Both the writ petitions are allowed;
(ii) The common judgment and order dated 3 October
2017 passed by the Appellate Authority in Appeal Nos. 9 of
2015 and 10 of 2015 is quashed and set aside;
(iii) The final assessment order passed by the Assessing
Officer under Section 126 of the Electricity Act, 2003 is
restored;
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(iv) Rule is made absolute in the above terms;
(vi) There shall be no order as to costs.
(vi) Pending interim applications, if any, stand disposed of.
(AMIT BORKAR, J.)
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