JUDGMENT 1. THIS writ application is directed against an order dated September 14, 2004 passed by the respondent No.2 and the final bill for consumption of electricity by the petitioner company dated November 19, 2004 assessed thereto. 2. THE facts of the case in a nutshell are as under:- THE petitioner was a bulk consumer of 11 KV electricity under the respondent No.1. THE agreement between the petitioner company and the respondent No. 1 for supply of electricity was renewed on October 16, 1998 in respect of premises lying and situated at village Damda, P.O. Simulia, District Purulia (hereinafter referred to as the said premises). Under the above agreement a contract demand of 120 K.V.A. for a period of five years of operation was agreed upon. 3. THE petitioner company submitted an application dated July 20, 2000 to the respondent No.1 for enhancement of his contract demand from 120 K.V.A. to 200 K.V.A for supply of electricity at the said premises. Though the terms and condition of effecting supply of power from 120 K.V.A to 200 K.V.A had been issued by the respondent No.1 on December 4, 2000, the petitioner company did not avail of the opportunity of enhancement of contract demand from 120 K.V.A to 200 K.V.A. 4. THOUGH the contract demand of the petitioner was to the extent of 120 K.V.A. for a period of five years of operation from the date of executing the agreement on October 16, 1998, the petitioner company installed a transformer having capacity of 300 K.V.A. The petitioner company augmented the transformer capacity to 500 K.V.A. The Chief Electrical Engineer, West Bengal agreed for approval of such augmentation of the transformer of the petitioner having capacity of 500 K.V.A. by a communication dated June 8, 2001. The petitioner company did not respond to the terms and conditions offered by the respondent No. 1 for enhancement of its contract demand from 120 K.V.A. to 200 K. V.A. 5. ON the other hand, the petitioner company laid another distribution main in addition to existing two numbers cables while augmented its transformer capacity from 300 K.V.A to 500 K.V.A and the additional cable as laid during augmentation of the capacity of transformer was directly from LT bushing of transformer installed by the petitioner up to distribution panel. ON the other hand, the petitioner company laid another distribution main in addition to existing two numbers cables while augmented its transformer capacity from 300 K.V.A to 500 K.V.A and the additional cable as laid during augmentation of the capacity of transformer was directly from LT bushing of transformer installed by the petitioner up to distribution panel. The third cable as laid by the petitioner company during augmentation of transformer capacity was ready for supply power since one end of the cables had been terminated in the distribution panel while the other end was ready for connection at LT bushing of transformer. 6. ON May 23, 2002 the officials of the respondent No. 1 while testing metering circuit of the petitioner company observed puncturing of Y-phase CT which was responsible for measuring actual drawal of current by the petitioner company for registration of their meter installed at the premises of the petitioner. ON June 6, 2002 the same team visited the said premises for ascertaining the reason of punturing of CT and it was observed by the Deputy Engineer (Testing) of the respondent No.1, that Y-phase of LTCT found brunt while two Nos. LT cables were connected from low voltage bushing and terminated to distribution box enrouting the metering system of the respondent, No.1. The third cable came up to the disribution box directly and other end of the cable was ready for connection to the low voltage bushing. It was recorded in the impugned order that a mark of connection of third cable in LV bushing of the transformer had been observed by the team during their above inspection and no sealing had been observed by the inspecting team in the secondary box of 500 K.V.A. transformer. Burnt out CT had been replaced by the inspecting team from 150/5 amp by a new set of CT of ratio 200/5 amp sealing the secondary terminal box as also keeping the third cable inside the box. The power connection was disconnected by the inspecting team on that date. By a communication dated June 6, 2002 (at page 108 of the writ application) addressed to the respondent No.4, the petitioner company admitted an illegal act of theft of energy by connecting third cable directly to the LV bushing. 7. The power connection was disconnected by the inspecting team on that date. By a communication dated June 6, 2002 (at page 108 of the writ application) addressed to the respondent No.4, the petitioner company admitted an illegal act of theft of energy by connecting third cable directly to the LV bushing. 7. A provisional bill amounting to Rs.63,93,445/- was raised in respect of electricity consumption by the petitioner company at the said premises by the respondent No.1 on June 7, 2002. A FIR was lodged with the Officer-in-Charge, Purulia town police station by the petitioner company, complaining about the provisional assessment bill as also a material protest was made on June 12, 2002 regarding the incidence. On June 13, 2002 the petitioner company informed the petitioner No.1 of their willingness to deposit additional security amounting to Rs.1,54,000/-along with cost of burnt CT to the extent of Rs. 1500/- and disconnection charge of Rs.600/-. On 14th June, 2002, the petitioner company deposited the aforesaid amounts. In the mean time the electricity supply of the petitioner company was restored at the said premises on June 17, 2002. 8. AN application filed by the petitioner company under Article 226 of the Constitution of India bearing W.P.No.9563(W) 2002 was disposed of on July 16, 2002 with a direction upon the respondent No.4 to give the detailed calculation in respect of provision assessment bill of Rs.63,93,445/- and to restore the supply of the electricity to the petitioner within July 23, 2002. By virtue of the above order liberty was given to the petitioner company to raise objection and the statutory authority was directed to pass an order for final assessment in question within September 16, 2002 giving the petitioner reasonable opportunity of hearing. It was also directed that upon such final assessment being made the parties should be entitled to proceed in accordance with their rights under the conditions of supply of the respondents. 9. THE respondent No.4 passed the final order of assessment dated September 14, 2002 in respect of pilferage of electricity under reference to the tune of Rs.45,43,507/-. 10. It was also directed that upon such final assessment being made the parties should be entitled to proceed in accordance with their rights under the conditions of supply of the respondents. 9. THE respondent No.4 passed the final order of assessment dated September 14, 2002 in respect of pilferage of electricity under reference to the tune of Rs.45,43,507/-. 10. BY an order dated October 4, 2002 passed in an application filed under Article 226 of the Constitution of India bearing AST No.803 of 2002, liberty was given to the petitioner company to prefer appeal before the statutory appellate authority against the aforesaid final order of assessment and the authority was directed to dispose of the above appeal within a period of four weeks from the date of filing the appeal. The respondent No.3 disposed of the above appeal by an order dated October 21, 2002 with a direction to reassess the amount payable by the petitioner company for pilferage of electricity under reference. 11. THE respondent No.4 by an order dated October 31, 2002 reassessed the amount payable by the petitioner company for pilferage of electricity under reference calculating the amount at Rs.38,06,999/-. 12. THE petitioner company again filed an application under Article 226 of the constitution of India bearing W.P.no.16893(W) of 2002 and the same was disposed of on March 25, 2004 remanding the above matter back to the statutory appellate authority for its adjudication afresh. On June 17, 2004 the respondent No.3 upheld the order dated October 21, 2002 passed in the statutory appeal. THE petitioner further filed an application under Article 226 of the Constitution of India bearing W.P.No.10874(W) of 2004 and the same was disposed of on July 26, 2004 with direction upon the respondent No.2 to pass a reasoned order in the light of the order dated March 25, 2004 passed in W.P.16893(W) 2002. In compliance of the above order the impugned order was passed. 13. IT is submitted by Mr. Joyanta Mitra, learned Senior Advocate, appearing on behalf of the petitioners that the final assessment of theft of electricity for the period from June 8, 2001 to June 6, 2002 suffered from procedural impropriety. According to him, the maximum demand to the extent 197 KVA for the aforesaid period was not sustainable in accordance with the provisions of clause 22(G) of the general conditions of supply of the respondent company. According to him, the maximum demand to the extent 197 KVA for the aforesaid period was not sustainable in accordance with the provisions of clause 22(G) of the general conditions of supply of the respondent company. According to him, of maximum demand recorded at the time of inspection/checking of the premises in question was not available. Therefore, the contract connected load should have been taken into consideration for assessment of theft of electricity in question. According to him, it was 120 KVA. IT is further submitted by him that in the final bill for assessment of theft of electricity under reference the load factor was taken @49%. But in accordance with the provisions of Clause 22(G) of the general conditions of supply of the respondent company it should have been 80%. IT is also submitted by him that in the final bill for assessment of theft of electricity in question the power factor was taken into account @ 0.83 which should have been 0.85 in accordance with the provisions of Clause 22(G) of the General Conditions of Supply of West Bengal State Electricity Board. IT is further submitted by him that electricity duty was assessed on the sum total of energy consumed plus penalty in deviation from the general conditions of supply of the respondent company. 14. ON the other hand it is submitted by Mr. B. Mitra, learned Advocate appearing on behalf of the respondent company that the petitioner company laid a distribution main in addition to existing two Nos. of cable while augmenting its transformer capacity from 300 KVA from 500 KVA and the additional cable was directly from LT bushing of transformer installed by the petitioner up to distribution panel. It was ready for supply of power since one end of the cables had been terminated in distribution panel while the other end was ready for connection at LT bushing of transformer. It is also submitted by him that though the Chief Electrical Engineer of the respondent company agreed for approval of augmentation of the transformer of the petitioner having capacity of 500 KVA, the petitioner company did not respondent to the terms and conditions offered by the respondent authority for increasing of its contract demand from 120 KVA to 200 KVA during the instruction of connection of aforesaid third cable of LV bushing of the transformer was detected. According to him, theft of energy was admitted by the petitioner company by its communication dated June 6, 2002. According to him, in view of the above the respondent No.2 rightly come to a conclusion that the maximum demand should be to the extent of 197 KVA. It is also submitted by him that the final assessment of theft of electricity in question taking into consideration the load factor and power factor as 49% and 0.83 respectively gave benefits to the petitioner company. No material is produced before this court by him to support the stand of the respondent company to assess electricity duty on penalty also. 15. I have heard the learned counsels appearing for the respective parties at length and I have given my careful consideration to the facts and circumstances of this case. For adjudication of the issues of maximum demand, percentage of load factor and quantum of power factor, the provisions of clause 22(G) of the general conditions of supply of the respondent company are set aside below: "22(G) Method of charging in causes of theft of energy for supply of energy of high and Extra high voltage: Maximum Demand:- For the purpose of assessment of maximum demand for the month either contracted demand or contracted connected load of the consumer as the case may be, or maximum demand recorded at the time of inspection/checking which ever is higher shall be taken as maximum demand. For the purpose of converting of maximum demand from KW to KVA power factor shall be taken as 0.85. Energy Charges -Quantity of electricity consumer per month shall be worked out as under:- MD x H x LP x D Where MD = Maximum demand in KW arrived at as above. H Number of hours 8, 16 or 24 depending on number of shifts the consumer's unit is actually working. LF= Load factor to be taken as 80%. D= Number of days between 25 and 30 per month, as the case may be." 16. IN terms of the above provisions, the maximum demand should have been contracted demand or connected load or maximum demand recorded at the time of inspection/checking whichever was higher. LF= Load factor to be taken as 80%. D= Number of days between 25 and 30 per month, as the case may be." 16. IN terms of the above provisions, the maximum demand should have been contracted demand or connected load or maximum demand recorded at the time of inspection/checking whichever was higher. It appears from the impugned order that the respondent no.2 took into consideration the admitted facts that the connected demand of consumption of electricity of the petitioner at the premises in question was 120 KVA but installation of a transformer having capacity of 500 KVA was undisputed. Considering the installed connected load the respondent authority thought it fit to reduce the maximum demand to the extent 300 KVA. Thought the contract demand at that point of time was 120 KVA, there was no doubt or dispute that Y-phase of LTCT found burnt while two Nos. LT cables were connected from low voltage bushing and terminated to distribution box enrouting the meter system of the respondent No. 1. They further found that the third cable came up to the distribution box directly and the other end of the cable was ready for connection to the low voltage bushing. That apart a mark of connection of third cable in the LV bushing of the transformer was found. IN view of the above the observation of the respondent No.2 came to a conclusion that connected load was more than the connected demand. But at the same breadth he ruled out the possibility of connected load to the extent 500 KVA to come to a conclusion that it should have been 300 KVA. The actual quantum of theft is a disputed questions of fact which cannot be decided by a court sitting in writ jurisdiction. At the same time the court cannot ignore the admission of theft of electricity by the petitioner company by communication dated June 6, 2002(at page 108 of this writ application) connecting the third cable directly to the LV bushing. Therefore, the quantum theft was of a figure more than 120 KVA in the above facts and circumstances. The conclusion of the respondent' No.2 on this issue cannot be interfered with. 17. SO far as the load factor and power factor are concerned, I find that clause 22(G) of the general conditions of supply of the respondent company provided for 80% and 0.85 respectively. The conclusion of the respondent' No.2 on this issue cannot be interfered with. 17. SO far as the load factor and power factor are concerned, I find that clause 22(G) of the general conditions of supply of the respondent company provided for 80% and 0.85 respectively. Therefore, the final assessment taking into consideration the load factor and power factor as 49% and 0.83 cannot be sustained in law. 18. NO material is produced before this court to show that electricity duty could be assessed oh penalty apart from taking into consideration energy consumed, therefore, such action services procedural impropriety. 19. IN view of the discussions and observations made hereinabove the impugned order passed by the respondent No.2 and the final bill raised thereof are quashed and set aside partially. The respondent authority is directed to pass an order afresh within one month after giving opportunity of hearing to the petitioner company through its authorised representative taking into consideration the load factor and power factor as 80% and 0.85 respectively as also calculating the electricity duty on the assessment of consumption of energy only before taking into account the penalty. After final assessment of theft of energy by the petitioner company in terms of the aforesaid directions, if any amount is payable by the petitioner company to the respondent company the same will carry interest at the highest prevailing rate payable on fixed deposit by a Nationalised Bank from the date preceding the date on which the same became due and payable till the date of actual payment. On the other hand, if any amount is refundable to the petitioner company the same will also carry interest at the same; rate from the date of its payment till the actual date of refund. 20. THIS writ application is thus disposed of. There will be, however, no order as costs. Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard. Application disposed of.