Calcutta High Court (Appellete Side)
Md. Abdul Matin vs The West Bengal State Electricity on 18 April, 2023
In the High Court at Calcutta
Constitutional Writ Jurisdiction
Appellate Side
The Hon'ble Justice Sabyasachi Bhattacharyya
W.P.A. No. 6237 of 2022
Md. Abdul Matin
Vs.
The West Bengal State Electricity
Distribution Company Limited &others
With
W.P.A. No. 10861 of 2022
Sunil Das
Vs.
The West Bengal State Electricity
Distribution Company Limited &others
With
W.P.A. No. 6112 of 2022
Azad Ali and others
Vs.
The West Bengal State Electricity
Distribution Company Limited &others
With
W.P.A. No. 7548 of 2022
GurucharanOjha
Vs.
The West Bengal State Electricity
Distribution Company Limited &others
With
W.P.A. No. 7652 of 2022
Md. Azharuddin @ Azheruddin
Vs.
The West Bengal State Electricity
Distribution Company Limited &others
2
For the petitioners
in all the matters : Mr. Ashok Gupta,
Mr. Sailesh Kumar Gupta
For the State in
WPA No.6112 of 2022 : Mr. Amit Prokash Lahiri,
Mr. Shuvro Prokash Lahiri
For the State in
WPA No.6237 of 2022 : Ms. Jyotsna Roy Mukherjee
For the State in
WPA No.7652 of 2022 : Mr. Bibek Jyoti Basu,
Mr. Debanjan Chatterjee
For the Union of India : Mr. Dhiraj Kr. Trivedi,
Mr. Ravi Ranjan Kumar
For the WBSEDCL in
WPA No.6237 of 2022,
WPA No.10861 of 2022,
WPA No. 6112 of 2022 and
WPA No.7584 of 2022 : Mr. Srijan Nayak,
Mrs. Rituparna Maitra
For the WBSEDCL in
WPA No.7652 of 2022 : Mr. Srijan Nayak,
Mr. Sujit Sankar Koley
For the CESC Limited : Mr. Om Narayan Rai,
Mr. Debanjan Mukherji
Hearing concluded on : 16.02.2023
Judgment on : 18.04.2023
Sabyasachi Bhattacharyya, J:-
1.
The writ petitioners in all the matters have challenged the vires of
Sections 126 and 135 of the Electricity Act, 2003 (hereinafter referred
to as "the 2003 Act").
2. Learned counsel for the petitioners cite several judgments, which will
be discussed presently. It is argued that Section 126 (1) provides for a
mere 'provisional' assessment which, however, is conclusive as to the
allegation of theft of electricity against the accused, without granting
the accused person any opportunity of hearing. Such serious
allegation, which is a stigma and has far-reaching criminal
consequences against the accused person as well, is thus examined
and decided by the same person who gave the report. There is no trial
before a competent judicial forum, with due opportunity of leading
evidence and cross-examination being given to the accused. Thus, it is
argued, the said section is violative of Articles 19 and 21 of the
Constitution of India and is, thus, ultra vires the Constitution.
3. Such assessment, both at the provisional and the final stage, are done
by the Assessing Officer, who is generally an employee of the
distribution licensee. It is the same officer who submits a report, on
inspection, as to the unauthorised use of electricity by the consumer
or person concerned and thereafter assesses the amount chargeable
as electricity dues. Again, the same officer hears the person concerned
and arrives at the final assessment. Thus, it is argued, the Assessing
Officer, who is an employee of the licensee, acts as the judge, jury and
executioner. The final order is a merely mechanical reiteration of the
provisional order of assessment, without any independent application
of mind or examination worth the name.
4. Although labelled as assessment 'orders', no reasons are given by the
assessing officer who, in any event, is an agent of the licensee and is
not a competent judicial officer. Assessment 'bills' are sent by the
licensee which, under no stretch of imagination, qualify as 'orders' as
contemplated in Section 126, thus rendering the entire process an
eye-wash. The 'reasons', if any, are mere pretence of reasons - a
mechanical rubber-stamp exercise without consideration of relevant
documents and evidence.
5. The appeal provided under Section 127 of the 2003 Act against the
final order, it is argued by the petitioners, is a farce, since the accused
person does not have proper opportunity to represent his case before
the first forum.
6. Moreover, the pre-condition of deposit of 50 per cent of the total
assessed account, which may be exorbitant and arbitrary, for
preferring an appeal under Section 127 renders the said remedy
illusory.
7. Learned counsel for the petitioner next argues that Section 135 of the
2003 Act provides for criminal proceedings before a Special Court.
However, the definition of 'theft' in the said section and that of
'unauthorised use' in Section 126 overlap largely, particularly insofar
as the allegation of tampering of meter is concerned. As a
consequence, the licensees can pick and choose to enforce different
penal consequences against persons accused of the same or similar
offences at their own sweet whims. The consequences range between
payment of huge sums of money and disconnection of electricity, as
well as imprisonment and/or fine.
8. Hence, it is argued, Section 135, which provides for the harsher
punishment, ought to be struck down as ultra vires.
9. Learned counsel for the petitioners cites several judgments,including
Executive Engineer, Southern Electricity Company of Orissa Limited
(SOUTHCO) and another Vs. Sri Seetaram Rice Mill, reported at (2012) 2
SCC 108, Laxmi Chand and others Vs. Gram Panchyat, Kararia and
others, reported at AIR 1996 SC 523, etc., to argue that the
extraordinary jurisdiction of the High Court under Article 226 of the
Constitution can be exercised in appropriate cases despite availability
of an alternative remedy. Whirlpool Corporation's judgment reported at
(1998) 8 SCC 1 is also referred in such context along with Calcutta
Discount Co. Ltd. Vs. Income Tax Officer, Companies District I Calcutta
and another, reported at AIR 1961 SC 372.
10. Learned counsel cites Kotak Mahindra Bank Limited Vs. A.
Balakrishnan and another, reported at (2022) 9 SCC 186, for
contending that a judgment on different material facts gives rise to
different and distinct principles of law. In the Gujarat Division Bench
judgment cited by the CESC Limited, it is argued that theft or
pilferage of electricity was not an issue.
11. Escorts Ltd. Vs. Commissioner of Central Excise, Delhi-II, reported at
(2004) 8 SCC 335, also held in similar lines.
12. Learned counsel for the petitioner then cites Suraj Mall Mohta and Co.
Vs. A.V. VisvanathaSastri and another, reported at AIR 1954 SC 545 to
argue that as per Article 14 of the Constitution, in its application to
legal proceedings, everyone should be assured the same rules of
evidence and mode of procedure. Such principle is reiterated by
placing reliance on Chandra Bhavan Boarding and Lodging Bangalore
Vs. State of Mysore and another, reported at AIR 1970 SC 2042, K.S.
Rashid Vs. Income Tax Officer, reported at AIR 1964 SC 1190, Shree
Meenakshi Mills Ltd., Madurai Vs. Sri A.V. Visvanatha Sastri and
another, reported at AIR 1955 SC 13 and P.N. Kaushal and others Vs.
Union of India and others, reported at AIR 1978 SC 1457.
13. Hence, it is submitted that Section 135(1) of the 2003 Act is ultra-
vires, as Article 19(1)(g) of the Constitution is violated due to
unbridled power being conferred on the licensee-Authority to invoke
the provisions of Section 126 or the provisions of Section 135 of the
2003 Act in cases of theft and/or pilferage of electricity as also
unauthorised use of electricity, depending upon the "colour of the
hair" of the consumer.
14. Sri Seetaram Rice Mill's case (supra) is cited to show that Sections 126
and 135 are distinct and different provisions operating in different
fields and having no common premise in law. Hence, Section 126 and
127 of the 2003 Act constitute a complete code in themselves, as
assessment made thereunder does not fall under Section 135 of the
2003 Act. Section 126 would be applicable only to cases where there
is no theft of electricity.
15. Learned counsel for the petitioner cites Bhagwandas Tiwari Vs. State
of M.P. and others, reported at AIR 2011 MP 71, to argue that civil
liability determined by the Special Court is dependent upon the
criminal liability. Only upon the order of assessment being finally
passed and served upon the consumer, the consumer is expected to
pay the charges.
16. Next citing an unreported judgment of a co-ordinate Bench of this
Court in Gouri Sankar Roy Vs. South Bengal State Transport, learned
counsel reiterates such proposition. It was held thereinthat recovery
of dues purely on account of theft has to be made by taking recourse
to the provision of Section 154 of the 2003 Act but, if the provisional
assessment order was for the pre-theft period, the recovery would be
under Section 126.
17. Learned counsel for the petitioner, placing reliance on the judgment of
M/s. J.T.G. Alloys vs. Punjab State Power Corporation, argues that
cases of theft falling under the ambit of Section 135 do not have any
applicability of Section 126.
18. In Kerala State Electricity Board Vs. Thomas Joseph, passed on
December 12, 2022, the Supreme Court again reiterated that Section
126 is intended to cover situations other than those specifically
covered under Section 135 of the 2003 Act.
19. Learned counsel for the petitioner next cites Anita Kushwaha Vs.
Pushap Sudan, reported at AIR 2016 SC 3506, a Constitution Bench
judgment of the Supreme Court, which held that access to justice has
been recognized to be a part of the right to life in India and in all
civilised societies around the globe. Learned counsel submits that
right to life guaranteed under Article 21, as well as Article 14 of the
Constitution, which ensures equality before law and equal protection
of law, are violated by the provisions-in-question. The consumers'
right to access civil courts is deprived by Section 126 of the 2003 Act,
which infringes the said fundamental rights. The decisions cited by
the WBSEDCL, it is argued, are ex facie per incuriam in view of the
Three-Judge bench decision of the Supreme Court in Kotak Mahindra
Bank Limited (supra), read with Sri Seetaram Rice Mill's case.
20. It is submitted that the Apex Court, in Orion Metal (P) Ltd. (supra), has
"misconstrued" and/or "misread" the ratio of law laid down in Sri
Seetaram Rice Mill's case. Regarding per incuriam decisions, the
petitioners cite Secretary to Government of Kerala, Irrigation
Department and others Vs. James Varghese and others, reported at
2022 SCC OnLine SC 545. It is submitted that the principle of Audi
Alteram Partem has been violated by the provisions-in-question.
21. Learned counsel further places reliance on several judgments in the
context of Article 14 of the Constitution.
22. Citing AIR 1990 SC 882 [Municipal Corporation of Delhi Vs. Ajanta Iron
and Steel Company (Private) Limited, it is argued by the petitioner that
the allegation of theft cannot be assumed to be correct without
full-fledged trial on the issue. In the judgment reported at(2011) 8
SCC 695 [Oriental Bank of Commerce and another Vs. R.K. Uppal], it
was observed by the Supreme Court that a quasi-judicial authority is
expected to apply its judicial mind to the issues involved, which is not
possible if the assessing officer envisaged under Section 126 can also
be an employee of the licensee.
23. By relying on a Division Bench judgment of this Court reported at
(2011) 4 CHN 204 [W.B. State Electricity Distribution Company Limited
Vs. Jadavpur Tea Co. Ltd.], it is submitted that the complainant
cannot be the prosecutor and the judge at the same time. In this
context, BhajanLal, Chief Minister, Haryana Vs. M/s. Jindal Strips
Limited and others, reported at (1994) 6 SCC 19,is referred to. If
exorbitant amounts are assessed under Section 126, the right of
appeal under Section 127 of the 2003 Act becomes illusory since fifty
per cent of the exorbitant amount then has to be deposited as pre-
condition for preferring the appeal.
24. The petitioners next cite Mardia Chemicals Ltd. and others Vs. Union of
India and others, reported at (2004) 4 SCC 311, where it was held that
the deposit of seventy-five per cent of the claim as pre-condition for
preferring an appeal under Section 17 of the Securitisation and
Reconstruction of Financial Assets and Enforcement of Security
Interest Act, 2002 was oppressive, onerous and arbitrary. It is
submitted that, similarly, the pre-condition of deposit of fifty per cent
of the assessed amount as pre-condition for preferring an appeal
under Section 127 of the 2003 Act, coupled with the fact that Section
145 of the 2003 Act deprives consumers from approaching civil
courts, is equally oppressive.
25. Due to non-application of mind while passing the final order of
assessment by the assessing officer without considering the relevant
documents and with a pre-disposed mind tantamounts to non-
application of mind, which renders the assessment without
jurisdiction. In support of such contention, learned counsel cites
Tamilnad Mercantile Bank Shareholders Welfare Association Vs. S.C.
Sekar and others, reported at (2009) 2 SCC 784 and Oryx Fisheries (P)
Ltd. Vs. Union of India, reported at (2010) 13 SCC 427.
26. An exercise without jurisdiction is a nullity and does not exist in the
eye of law, it is contended. Learned counsel also relies on a co-
ordinate Bench judgment in W.B. State Electricity Distribution
Company Limited Vs. Jadavpur Tea Co. Ltd., reported at (2011) 4 CHN
204 to argue that the decision of the authority is with a closed mind,
as only the amounts suffered by the WBSEDCL are calculated.
27. It is submitted that the assessment orders are made only on the basis
of materials known to the authorities, copies of which are not given to
the consumer. Hence, the principles of natural justice and fair play
are violated as per Kothari Filaments and another Vs. Commissioner of
Customs (Port), Kolkata and others, reported at (2009) 2 SCC 192.
28. It is submitted that there cannot be any estoppel against the statute
and even consent of parties cannot confer jurisdiction on an authority
lacking inherent jurisdiction. By placing reliance on The King Emperor
Vs. Khawaja Nazir Ahmed, reported at AIR 1945 PC 18, it is argued
that if a statute permits an authority to act in a particular way, the
act must be done in that way or should not be done at all. Here, if the
assessing officer comes to the conclusion that he is unable to arrive at
any conclusion as to the period of such unauthorised use, the
calculations in terms of Section 126(5) are arbitrary and perverse.
Articles 21 and 22 of the Constitution, it is argued, demand a fair and
just investigation by the investigating officer and a fair trial by the
courts, which is negated in cases of provisional and final orders of
assessment under Section 126.
29. The plinth of the State's submission is that where the law itself be fair
on its face and impartial in appearance, yet, if it is applied and
administered by a public authority with an evil eye and an unequal
hand so as to make unjust and illegal discrimination between persons
in similar circumstances, material to their rights, the denial of equal
justice is still within the prohibition of the Constitution.
30. In support of the proposition, learned counsel for the State places
reliance on the United States Supreme Court judgment of YickWo v.
Hopkins, Sheriff, etc. [ (1886) SCC On Line US SC 188 ]. On such
ground, the petitioners therein were discharged from custody and
imprisonment since the US Supreme Court came to the finding that
there was discrimination due to hostility to the petitioners' race and
nationality.
31. It is argued by the State that there is no such instance of arbitrariness
or discrimination in the present cases on the part of the State
authorities or the WBSEDCL, for which the State refutes the challenge
to the vires of Sections 126 and 135.
32. Learned counsel for the WBSEDCL highlights the necessity of
enunciating the new Electricity Act, 2003, which has progressive
features and seeks to strike the right balance between economic
profitability and public purpose in the context of current realities in
the Indian power sector.
33. Learned counsel distinguishes between Part XII of the 2003 Act, which
contains provisions for inspection, assessment bill and appeal under
Sections 126 and 127 of the Act, and Part XIV, which deals with
penalty and punishment and includes Section 135.
34. Under Section 154, Special Courts have been designated to determine
criminal as well as civil liabilities.
35. Whereas Section 126 deals with unauthorized use of electricity and
civil liabilities, Section 127 provides for appeal against the final
assessment upon compliance with principles of Natural Justice.
36. Section 135, on the other hand, deals with criminal liabilities.
37. 'Unauthorised use' of electricity contemplated under Section 126 is of
much wider connotation than the limited definition of 'theft' under
Section 135, it is submitted, and the standards of proof in deciding
the two are distinct. The two operate on separate legal footings and
there is no scope of 'pick and choose' by the authorities.
38. It is submitted that the petitioners in all the matters participated in
hearing and only thereafter the final assessments were made.
Therefore, there has been no violation of any principle of Natural
Justice.
39. The WBSEDCL cites Cal. Electric Supply Corpn. Ltd. and another Vs.
Kalavanti Doshi Trust and others, reported at (2011) 1 CHN 182 for the
proposition that if on the date of presentation of the writ petition the
remedy of the petitioners was totally barred, the writ court ought not
to invoke its jurisdiction under Article 226 of the Constitution of India.
40. It is submitted that in Sri Seetaram Rice Mill's Case, which was also
followed by a Division Bench of the Punjab and Haryana High Court in
LPA 1900 of 2011, there is a clear distinction between cases under
Section 126 on the one hand and Section 135 on the other. There is
no commonality between them in law and they operate in distinct
fields.
41. Learned counsel for the WBSEDCL also cites M/s. Orion Metals (supra)
to argue that all instances of unauthorised use of energy may not
amount to theft under Section 135 of the 2003 Act, but theft falls
within the definition of unauthorised use of electricity as envisaged in
Section 126. It is clear from Section 154 of the Act that a Special
Court is designated for such purpose and is empowered to determine
criminal proceedings as well as civil liability under Section 154(5).
Section 154(6), it is argued, provides for refund in case of excess
payment.
42. The validity of Sections 126 and 135 of the 2003 Act came up for
consideration before a Division Bench of the Gujarat High Court in
Ranchhod Bhai Vs. Union of India, where the vires of Sections 126 and
135 was upheld. In Satish Babubhai Patel as well, the Division Bench
of the Gujarat High Court in another case upheld the validity of
Sections 126 and 135 of the 2003 Act.
43. In Duraisami Vs. Assistant Executive Engineer, the Madras High Court
held that demand made by the licensee in case of a theft of electrical
energy, where there is some material remedy, does not render the
relevant provisions of the 2003 Act ultravires.
44. Learned Counsel for the WBSEDCL also seeks to distinguish the
judgments cited by the petitioners.
45. Although initially not a party to the writ petitions, the CESC Limited,
which is also one of the largest distribution companies in West Bengal
along with the WBSEDCL and is a stake-holder in the challenge to the
vires of Sections 126 and 135 of the 2003 Act, seeks to be heard on
the challenge to the vires. Hence, for a complete adjudication on the
issue, the CESC is heard.
46. Learned counsel for the CESC submits that the 2003 Act was enacted
for the reason of ensuring better regulatory, supervisory and revenue
recovery system, as expressed in the objects and reasons of the 2003
Act, for which there was definite concerted effort in preventing
unauthorised use of electricity on the one hand and theft on the other.
For such proposition, learned counsel relies on Executive Engineer,
Southern Electricity Supply Co. of Orissa Ltd. V. Sri Seetaram Rice Mill,
reported at (2012) 2 SCC 108.
47. By placing reliance on the statement of objects and reasons for
enacting the 2003 Act, learned counsel for the CESC stresses that
provisions relating to theft of electricity have a revenue focus, which
was also spelt out in WBSEDCL v. Orion Metal (P) Ltd., reported at
(2020)18 SCC 588.
48. Learned counsel next cites Satish Babubhai Patel v. Union of India
&Ors., reported at 2013 SCC OnLine Guj 8680, where the Gujarat High
Court upheld the vires of Sections 126 and 135. Hence, it is argued,
the issue is no longer res integra.
49. Next relying on Union of India v. Vipan Kumar Jain [ (2005) 9 SCC 579],
learned counsel for the CESC contends that there is nothing
inherently unconstitutional in permitting the assessing officer, who is
an employee of the licensee, to gather information and assess the
value of the information himself.
50. Learned counsel then cites Executive Engineer, Southern Electricity
Supply Company of Orissa Limited (SOUTHCO) & Anr. V. Sri Seetaram
Rice Mill, reported at (2012) 2 SCC 108, and WBSEDCL and Others v.
Orion Metal Private Limited and Another [ (2020) 18 SCC 588 ], to
distinguish between Sections 126 and 135 and argues that there is no
commonality between them in law. They operate in different and
distinct fields and operate parallelly. The argument that Section 135
provides for harsher penalties is not tenable in the eye of law, since
proceedings under the two provisions have different scopes.
51. It is further argued that the provisions of Sections 126 and 127 of the
2003 Act constitute between themselves a complete code in itself.
Section 126 has a purpose to achieve, that is, to put an implied
restriction on unauthorised consumption of electricity.
52. To test the constitutionality of an enactment, the CESC argues that its
true nature and character, the area in which it is intended to operate,
its purport and intent have to be determined. Moreover, it must be
presumed that every statute is constitutionally valid. On these
propositions, learned counsel cites HamdardDawakhana v. Union of
India, reported at AIR 1960 SC 554.
53. Learned counsel contends that the petitioners have challenged the
vires of Sections 126 and 135 two decades after the enactment of the
2003 Act, during which period the provisions withstood the test of
time. Moreover, the challenge to the vires of the said provisions has
already been negated by the Gujarat High Court.
54. Citing PGF Ltd. V. Union of India, reported at (2015) 13 SCC 50, it is
contended that the Supreme Court noted that on very many occasions
a challenge to a provision of law, as to its constitutionality, with a view
to thwart the applicability and rigour of those provisions,serves as an
escape route from the applicability of those provisions of law and
thereby create an impediment for the authorities and the institutions
concerned. The Court, while deciding such challenge, should also
examine the extent of financial implications by virtue of the operation
of the provision vis-à-vis the State and alleged extent of sufferance by
the person who seeks to challenge based on the alleged invalidity of
the provision with particular reference to the vires.
55. Sections 126 and 135 have been introduced in tune with the will of
the people and are aimed at enhancing recovery of lost revenue and
minimizing revenue loss.
56. For a complete adjudication on the vires of Sections 126 and 135in
the context of Section 154, the exact content of the said provisions is
required to be set out:
"126. Assessment.--(1) If on an inspection of any place or premises or after
inspection of the equipments, gadgets, machines, devices found connected or
used, or after inspection of records maintained by any person, the assessing
officer comes to the conclusion that such person is indulging in unauthorised
use of electricity, he shall provisionally assess to the best of his judgment the
electricity charges payable by such person or by any other person benefited by
such use.
(2) The order of provisional assessment shall be served upon the person
in occupation or possession or in charge of the place or premises in such
manner as may be prescribed.
(3) The person, on whom an order has been served under sub-section
(2), shall be entitled to file objections, if any, against the provisional
assessment before the assessing officer, who shall, after affording a
reasonable opportunity of hearing to such person, pass a final order of
assessment within thirty days from the date of service of such order of
provisional assessment, of the electricity charges payable by such person.
(4) Any person served with the order of provisional assessment may,
accept such assessment and deposit the assessed amount with the licence
within seven days of service of such provisional assessment order upon him:
(5) If the assessing officer reaches to the conclusion that unauthorised
use of electricity has taken place, the assessment shall be made for the entire
period during which such unauthorised use of electricity has taken place and
if, however, the period during which such unauthorised use of electricity has
taken place cannot be ascertained, such period shall be limited to a period of
twelve months immediately preceding the date of inspection.
(6) The assessment under the section shall be made at a rate equal to
twice the tariff applicable for the relevant category of services specified in sub-
section (5).
Explanation.--For the purposes of this section,--
(a) "assessing officer" means an officer of a State Government or
Board or licensee, as the case may be, designated as such by the State
Government;
(b) "Unauthorised use of electricity" means the usage of electricity--
(i) by any artificial means; or
(ii) by means not authorised by the concerned person or authority
or licensee; or
(iii) through a tampered meter; or
(iv) for the purpose other than for which the usage of electricity was
authorised; or
(v) for the premises or areas other than those for which the supply
of electricity was authorised.
135. Theft of electricity.--1) Whoever, dishonestly,--
(a) taps, makes or causes to be made any connection with overhead,
underground or underwater lines or cables, or service wires, or service
facilities of a licensee or supplier, as the case may be; or
(b) tampers a meter, installs or uses a tampered meter, current reversing
transformer, loop connection or any other device or method which interferes
with accurate or proper registration, calibration or metering of electric current
or otherwise results in a manner whereby electricity is stolen or wasted; or
(c) damages or destroys an electric meter, apparatus, equipment, or wire
or causes or allows any of them to be so damaged or destroys as to interfere
with the proper or accurate metering of electricity; or
(d) uses electricity through a tampered meter; or
(e) uses electricity for the purpose other than for which the usage of
electricity was authorised,
so as to abstract or consume or use electricity shall be punishable with
imprisonment for a term which may be extend to three years or with fine or
with both:
Provided that in a case where the load abstracted, consumed, or used or
attempted abstraction or attempted consumption or attempted use--
(i) does not exceed 10 kilowatt, the fine imposed on first conviction shall
not be less than three times the financial gain on account of such
theft of electricity and in the event of second or subsequent
conviction the fine imposed shall not be less than six times the
financial gain on account of such theft of electricity;
(ii) exceeds 10 kilowatt, the fine imposed on first conviction shall not be
less than three times the financial gain on account of such theft of
electricity and in the event of second or subsequent conviction, the
sentence shall be imprisonment for a term not less than six months,
but which may extend to five years and with fine not less than six
times the financial gain on account of such theft of electricity:
Provided further that in the event of second and subsequent conviction of a
person where the load abstracted, consumed, or used or attempted
abstraction or attempted consumption or attempted use exceeds 10 kilowatt,
such person shall also be debarred from getting any supply of electricity for a
period which shall not be less than three months but may extend to two years
and shall also be debarred, from getting supply of electricity for that period
from any other source or generating station:
Provided also that if it is proved that any artificial means or means not
authorised by the Board or licensee or supplier, as the case may be, exist for
the abstraction, consumption or use of electricity by the consumer, it shall be
presumed, until the contrary is proved, that any abstraction, consumption or
use of electricity has been dishonestly caused by such consumer.
(1-A) Without prejudice to the provisions of this Act, the licensee or
supplier, as the case may be, may, upon detection of such theft or electricity,
immediately disconnect the supply of electricity:
Provided that only such officer of the licensee or supplier, as authorised
for the purpose by the Appropriate Commission or any other officer of the
licensee or supplier, as the case may, of the rank higher than the rank so
authorised shall disconnect the supply line of electricity:
Provided further that such officer of the licensee or supplier, as the case
may be, shall lodge a complaint in writing relating to the commission of such
offence in police station having jurisdiction within twenty-four hours from the
time of such disconnection:
Provided also that the licensee or supplier, as the case may be, on
deposit or payment of the assessed amount or electricity charges in
accordance with the provisions of this Act, shall, without prejudice to the
obligation to the lodge the complaint as referred to in the second proviso to this
clause, restore the supply line of electricity within forty-eight hours of such
deposit or payment.
(2) Any officer of the licensee or supplier as the case may be, authorised
in this behalf by the State Government may--
(a) enter, inspect, break open and search any place or premises in
which he has reason to believe that electricity has been or is being
used unauthorisedly;
(b) search, seize and remove all such devices, instruments, wires and
any facilitator or article which has been or is being used for
unauthorised use of electricity;
(c) examine or seize any books of account or documents which in his
opinion shall be useful for or relevant to, any proceedings in respect
of the offence under sub-section (1) and allow the person from
whose custody such books of account or documents are seized to
make copies thereof or take extracts therefrom in his presence.
(3) The occupant of the place of search or any person of his behalf shall
remain present during the search and a list of all things sized in the course of
such search shall be prepared and delivered to such occupant or person who
shall sign the list:
Provided that no inspection, search and seizure of any domestic places
or domestic premises shall be carried out between sunset and sunrise except
in the presence of an adult male member occupying such premises.
(4) The provisions of the Code of Criminal Procedure, 1973, relating to
search and seizure shall apply, as far as may be, to searches and seizure
under this Act.
154. Procedure and power of Special Court.--(1) Notwithstanding
anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every
offence punishable under sections 135 to 140 and section 150 shall be triable
only by the Special Court within whose jurisdiction such offence has been
committed.
(2) Where it appears to any court in the course of any inquiry or trial
that an offence punishable under sections 135 to 140 and section 150 in
respect of any offence that the case is one which is triable by a Special Court
constituted under this Act for the area in which such case has arisen, it shall
transfer such case to such Special Court, and thereupon such case shall be
tried and disposed of by such Special Court in accordance with the provisions
of this Act:
Provided that it shall be lawful for such Special Court to act on the
evidence, if any, recorded by any court in the case of presence of the accused
before the transfer of the case to any Special Court:
Provided further that if such Special Court is of opinion that further
examination, cross-examination and re-examination of any of the witnesses
whose evidence has already been recorded, is required in the interest of
justice, it may re-summon any such witness and after such further
examination, cross-examination or re-examination, if any, as it may permit, the
witness shall be discharged.
(3) The Special Court may, notwithstanding anything contained in sub-
section (1) of section 260 or section 262 of the Code of Criminal Procedure,
1973 (2 of 1974), try the offence referred to in sections 135 to 140 and section
150 in a summary way in accordance with the procedure prescribed in the
said Code and the provisions of sections 263 to 265 of the said Code shall, so
far as may be, apply to such trial:
Provided that where in the course of a summary trial under this sub-
section, it appears to the Special Court that the nature of the case is such that
it is undesirable to try such case in summary way, the Special Court shall
recall any witness who may have been examined and proceed to re-hear the
case in the manner provided by the provisions of the said Code for the trial of
such offence:
Provided further that in the case of any conviction in a summary trial
under this section, it shall be lawful for a Special Court to pass a sentence of
imprisonment for a term not exceeding five years.
(4) A Special Court may, with a view to obtaining the evidence of any
person supposed to have been directly or indirectly concerned in or privy to,
any offence tender pardon to such person on condition of his making a full and
true disclosure of the circumstances within his knowledge relating to the
offence and to every other person concerned whether as principal or abettor in
the commission thereof, and any pardon so tendered shall, for the purposes of
section 308 of the Code of Criminal Procedure, 1973 (2 of 1974), be deemed to
have been tendered under section 307 thereof.
(5) The Special Court shall determine the civil liability against a
consumer or a person in terms of money for theft of energy which shall not be
less than an amount equivalent to two times of the tariff rate applicable for a
period of twelve months preceding the date of detection of theft of energy or
the exact period of theft if determined whichever is less and the amount of civil
liability so determined shall be recovered as if it were a decree of civil court.
(6) In case the civil liability so determined finally by the Special Court is
less than the amount deposited by the consumer or the person, the excess
amount so deposited by the consumer or the person, to the Board or licensee
or the concerned person, as the case may be, shall be refunded by the Board
or licensee or the concerned person, as the case may be, within a fortnight
from the date of communication of the order of the Special Court together with
interest at the prevailing Reserve Bank of India prime lending rate for the
period from the date of such deposit till the date of payment.
Explanation.-- For the purposes of this section, "civil liability" means
loss or damage incurred by the Board or licensee or the concerned person, as
the case may be, due to the commission of an offence referred to in sections
135 to 140 and section 150."
57. It is evident from Section 126(1) of the 2003 Act that the provisional
assessment is made on the basis of inspection made by the assessing
officer, who must be a part of the inspecting team, and it is the
conclusion of the assessing officer which is provisionally accepted in
respect of unauthorised use of electricity. The provisional assessment
is to be "to the best of his judgment".
58. Hence, the best judgment rule is applicable and elaborate reasoning is
not required to be given in the provisional assessment order.
59. That apart, the argument of the petitioner that the principles of
natural justice are violated cannot be applicable to the provisional
assessment stage, since the accused person is served a copy of the
assessment order and has an opportunity under Section 126(3) to file
objectionand to have a reasonable opportunity of hearing, only after
which a final order of assessment is passed.
60. It must be kept in mind that sub-sections (5) and (6) of Section 126
clearly stipulate the exact basis of calculation in the event the period
of unauthorised use cannot be ascertained. Hence, some amount of
credence has to be given to the judgment of the assessing officer, upon
giving opportunity of hearing to the affected person.
61. However, the exercises is not judicial in nature and, as such, the
detailed reasons required in, and the rigours of, an order passed by a
court of law or judicial tribunal cannot be applied to assessments
under Section 126 of the 2003 Act. It cannot be said merely on such
premise that the provision is ultravires the Constitution.
62. Insofar as the argument of it being open to the assessing authority, at
his sweet will, to clamp Section 126 or Section 135, which have
different penal consequences, is also not acceptable, since the two
provisions operate in separate fields.
63. The law has been crystallized on the subject, which is evident from the
judgments cited by the parties.
64. In Sri Seetaram Rice Mill's case, the Supreme Court categorically held
that the provisions of Section 126, read with Section 127 of the 2003
Act, are a code in themselves. Right from the initiation of the
proceedings by conducting an inspection, to the right to file an appeal
before the appellate authority, all matters are squarely covered under
the said provisions, which specifically provide the method of
computation of the amount that a consumer would be liable to pay for
excessive consumption of the electricity and for the manner of
conducting the assessment proceedings. Thus, Section 126 has a
purpose to achieve, that is, to put an implied restriction on such
unauthorised consumption of electricity. The Supreme Court held
that this defined legislative purpose cannot be permitted to be
frustrated by interpreting a provision in a manner not intended in law.
The principle of purposive interpretation would have to be applied in
preference to textual interpretation of the provisions of Section 126.
65. The Supreme Court went on to observe that the objects and reasons
for enacting an Act are relevant considerations for the court while
applying various principles of interpretation of statutes. In this
context, it is argued that the discussion of the Standing Committee of
Energy, 2001 was also considered while enacting the 2003 Act, which
concluded that there is a need to provide safeguards to check the
misuse of powers by unscrupulous elements. The Supreme Court
further held that the provisions of Section 126 of the 2003 Act are
self-explanatory, intended to cover situations other than the situations
specifically covered under Section 135.
66. In Orion Metal (P) Ltd. (supra), it was held by the Supreme Court that
the term "unauthorised use of energy" is of wide connotation. There
may be cases of unauthorised use, not amounting to theft, namely,
exceeding the sanctioned load or using the electricity in the premises
where it is not authorised. But at the same time, when there is an
allegation of unauthorised use of energy by tampering the meter, such
cases of unauthorised use of energy include 'theft' as defined under
Section 135 of the Act. The power conferred on authorities for making
assessments under Section 126(1) and the power of the Special Court
to determine the civil liability under Section 154(5) of the 2003 Act in
cases of theft cannot be said to be parallel to each other.
67. The Supreme Court also held in Orion Metal (P) Ltd. (supra) that in
cases of loss of energy on account of unauthorised use of energy not
amounting to theft, it is always open for the authorities to assess the
loss of energy by resorting to the power under Section 126(1) of the
Act. In cases where the allegation is of unauthorised use of energy
amounting to theft, apart from assessing in proceedings under Section
126(1) of the Act, a complaint also can be lodged alleging theft of
energy as defined under Section 135(1) of the Act. In such cases, the
Special Court is empowered to determine civil liability under Section
154(5) of the Act and on such determination, the excess amount, if
any deposited by the petitioner, is to be refunded to the consumer.
68. The Division Bench of the Gujarat High Court in Ranchhod Bhai Vs.
Union of India dealt with a challenge thrown to the vires of Sections
126 and 135 of the 2003 Act. The scheme of the act was considered
and the principle laid down in Orion Metal (P) Ltd. (supra) was
reiterated. The court considered the issue as to whether legislatures
have abdicated their power in favour of execution by delegating such
legislative power to private persons and whether a private person has
been delegated with the power of administering criminal justice
system, for which the relevant provisions of law and the notifications,
resolutions and provisions made thereunder were considered. The
Division Bench of the Gujarat High Court held that it cannot be stated
that the authorities have been provided with unbridled power, as
inspection is made under Section 126 in presence of the user of
unauthorised electricity and in presence of other witnesses. Before
the final assessment, a provisional assessment order is to be made,
opportunity of objection and hearing is to be given to the person and
then only the final order is passed, the legality and propriety of which
can be challenged in an appeal under Section 127. Foolproof
procedure having been laid down under the Act and the Rules framed
thereunder, the delegation of such power cannot be held to be
arbitrary, the court found.
69. It was also observed that the officer of the licensee or supplier,
whoever may be authorised, has not been empowered to take
administration of criminal justice in his hands, for which Special
Courts have been constituted under Section 153 of the 2003 Act, for
trial of such offence under Section 135. The procedure to be adopted
by the Special Court has also been prescribed under Section 154,
which has also been empowered with the power of the court of
sessions under Section 155. Against this decision, it was held, appeal
and revision is maintainable before the High Court under Section 156.
70. Thus, the vires of the said Sections were upheld.
71. Another Division Bench of the same (Gujarat) High Court in Satish
Babubhai Patel (supra) reiterated the proposition laid down in
Ranchhod Bhai's case. From a reading of the Explanation below
Section 126, it was held that 'assessing officer' means an officer of the
State Government or the Board or licensee, as the case may be,
designated by the State Government. Assessment of electricity
charges in case a person indulges in unauthorised use of electricity is
not a duty of the legislature and it cannot be said in normal course
that there is an 'abdication' of power or assessment in conferring the
power to the delegate. The question decided was whether the power of
assessment has been delegated by the legislature in favour of the
licensee including an officer of the licensee. However, it was held to be
evident from the Explanation below Section 126 that the 'assessing
officer' has been defined to be an officer of the State Government or
Board or licensee, who is to be designated by the State Government.
The Division Bench went on to observe that it is a settled law that the
legislature, as a part of its legislative function, can confer powers to
make rules and regulations for carrying the enactment into operation
and effect. Thus, the vires of Sections 126 and 135 was upheld
following Ranchhod Bhai's case.
72. It is trite law, as reiterated in Kusum Ingots and Alloys Limited (supra),
that an order passed by any High Court in India on a writ petition
questioning the constitutionality of a parliamentary act, whether
interim or final, keeping in view Article 226(2), will have effect
throughout the territory of India subject, of course, to the applicability
of the Act.
73. Hence, in the present case, since two Division Benches of the Gujarat
High Court have categorically upheld the constitutionality of Sections
126 and 135 of the 2003 Act, judicial propriety demands that the ratio
of the said judgment sought not to be deviated from, following the
principle of Kusum Ingots and Alloys Limited (supra).
74. Again, in Vipan Kumar Jain's case, while considering similar
provisions of the Income Tax Act, 1961, the Supreme Court observed
that even though it could be said in a sense that the assessing officer
was acting on behalf of the Revenue, nevertheless, there is no
presumption of bias in such a situation. It was held there is nothing
inherently unconstitutional in permitting the assessing officer to
gather the information and to assess the value of the information
himself. The Supreme Court held therein that the assessing officer's
decision on the basis of material to which he had been witness in the
course of the raid is not the final word in the matter, since the
assessment order is appealable under the provisions of the statute
itself and ultimately by way of judicial review. The question of bias
has to be decided on the facts of each case.
75. Such proposition is apt for the present case as well and applies
squarely to the case at hand. The same ratio, as laid down by the
Supreme Court, is fully applicable with regard to Section 126
assessments as well, vis-à-vis the 2003 Act.
76. As held by a Five-Judge Bench of the Supreme Court in Hamdard
Dawakhana's case, to ascertain the constitutionality of an enactment
on the ground of violation of the Articles in Part III of the Constitution
requires an assessments of its true nature and character, including its
subject-matter, the area in which it is intended to operate, its purport
and intent. Another principle which was reiterated in the said
judgment is that while examining the constitutionality of a statute it
must be assumed that the legislature understands and appreciates
the need of the people and the laws it enacts are directed to solve
problems which are made manifest by experience and the elected
representatives assembled in a legislature enact laws which they
consider to be reasonable for the purpose for which they are enacted.
Presumption, therefore, is in favour of the constitutionality of an
enactment.
77. Another perspective, as rightly argued by the CESC Limited, cannot be
brushed away in the present case. The petitioners in all the present
writ petitions have long exceeded the limitation period for preferring
challenge to the final orders of assessment under Section 127 of the
2003 Act and have directly taken recourse to the present writ
petitions. In PDF Limited (supra), the Supreme Court aptly held that
challenge to the validity of a statute, particularly by unscrupulous
litigants raising such challenge only to avoid compliance, is to be
taken note of.
78. The law, as crystallised in the above decisions, hold the field and
cannot be deviated from.
79. Thus, the challenge of the petitioners to the vires of Section 126 and
135 of the 2003 Act fails on several grounds. Although there is some
overlapping between the two Sectionswith regard to cases of
tampering, there is no question of applying double standards for the
same offence. In cases where ingredients of theft as well as
unauthorised use of electricity are both satisfied, the authorities can
take steps by making assessment orders under Section 126 and
proceeding with the criminal trial under Section 135 before the Special
Court. The argument that the complainant is the prosecutor as well
as the judge does not hold good, since the Special Court designated
for such purpose has been empowered with the powers of a Sessions
Judge and a full-fledged criminal trial is conducted before arriving at
the conclusion that a person is guilty of theft of electricity. Thus, the
allegation of theft, having criminal consequences, is not decided at all
by any officer of the licensee.
80. Insofar as the provisional assessment under Section 126(1) is
concerned, there is no scope of hearing the accused person at that
juncture, since the provisional assessment orders are not conclusive.
In fact, a right of hearing is given to the consumer and an opportunity
is also given for the consumer to file its written objection, prior to
assessing the final order. If right of hearing is to be given to the
consumer even before the provisional assessment is made, it would
unnecessarily prolong an otherwise summary procedure and the
expeditious time-line envisaged in the statute shall be defeated.
81. Section 126(5) of the 2003 Act clearly delineates the procedure and
method of computation with regard to such assessment, which cannot
be said to be ex facie absurd or disproportionate.
82. Moreover, the assessing officer shall be an appointee of the State
Government, be it an officer of the Government or the licensee.
Hence, there is an independent air about the assessing officer, who
does not function merely in the capacity of an employee of the
licensee.
83. In fact, the same logic is applicable to several other statutes. Glaring
examples are the powers given to an Estate Officer under the Public
Premises (Eviction of Unauthorised Occupants) Act, 1971 and powers
conferredon the banks and financial institutions under the
Securitisation and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002.
84. In view of the above discussions, it cannot be said that the assessing
officer has unbridled power to exercise according to his whims and
fancies in arriving at the final order of assessment. Hence, it is
illogical to argue that the final order is merely a farce, requiring the
Section itself to be struck down.
85. On the other hand, Section 127 of the 2003 Act provides an
independent appellate authority for challenge against the final
assessment order. Hence, such orders are not inscrutable by superior
forums.
86. Insofar as the fifty per cent mandatory deposit envisaged under
Section 127(2) for preferring an appeal is concerned, the same cannot
be said to be exorbitant. In fact, such stipulation is squarely
inconsonance with the purpose and objects of the 2003 Act, as
discussed in Sri Seetaram Rice Mill's case.
87. It would be entirely arbitrary for the court to sit in judgment, in a
proceeding under Article 226 of the Constitution, over the propriety of
the quantum required as pre-deposit for appeal under Section 127.
Certain decisions are best left to the legislature to decide in its own
prudence, to maintain a balance of separation of powers, which is the
bulwark of the Indian Constitution. The presumption ought to be that
since the Legislature, in its wisdom, has fixed a particular amount as
pre-requisite for preferring an appeal (which is not prima facie
astronomically high), the same is backed by reasonable technical
research and takes forward the purpose and objects of the statute,
one of which is to deter rampant misuse and pilferage of energy, which
is a limited commodity.
88. As regards the argument that orders under Section 126 are required
to be backed up by reasons, it is well-settled that summary orders in
the nature of an order of assessment under Section 126 need not be
backed by elaborate reasoning on the same footing as the orders of a
judicial forum or a court of law. The bills sent by the licensee are the
outcome of orders of provisional and final assessment and, as such, it
cannot be said that those are beyond the scope of the contemplation
of the 2003 Act. Particularly, it has to be kept in mind that the
Supreme Court categorically held in Sri Seetaram Rice Mill's case that
Sections 126 and 127 are a complete code in themselves.
89. That apart, findings under Section 126per se do not indict a person of
theft, which charge has criminal consequences. The assessing officer
merely calculates the loss suffered by the licensee for the
unauthorized use of electricity. The question, whether the charge of
theft has been established, is left for the decision of the Special Court,
which holds a full-fledged criminal trial. Thus, there is no scope of
violation of Articles 19 or 21 of the Constitution of India in any
manner whatsoever.
90. It is also provided in Section 114 of the Evidence Act that official and
judicial acts have a presumption of correctness. Hence, there is no
reason for the assessing officer appointed by the State, irrespective of
whether he or she is a functionary of the licensee, to be presumed to
conduct investigation in an unfair manner. The reasons given in the
final order of assessment cannot be labelled as 'rubber stamp reasons'
or 'pretence of reasons' as argued by the petitioners on such ground
alone. Rather, there is some justification in functionaries of licensees,
who are themselves technical personnel holding acumen on the
subject, to be entrusted with the task of assessing such loss.
91. The Supreme Court has held time and again that Sections 126 and
135 operate on different footings and both proceedings can run
parallelly in cases where there is overlapping between the allegations
of theft and unauthorized use of electricity. However, per se such
inter-play between the Sections cannot render the same ultravires the
Constitution of India.
92. Insofar as the judgments cited by the petitioner are concerned, the
same do not have any material bearing on the case for the reasons
discussed below.
93. The judgment rendered by the Supreme Court in Kerala State
Electricity Board (supra) deals with the question whether the
consumption of electricity by the respondents (consumers) therein in
excess of the connected load/contracted load would amount to
unauthorized use of electricity under explanation (b) to Section 126(6)
of the 2003 Act.
94. The Supreme Court elaborately discussed the relevant provisions and
considered the alleged inconsistency between the rules and
regulations and the statute. Such decision, as such, cannot have any
material bearing on the present consideration. The petitioner had
sought to advance general propositions with regard to violation of
Article 14 of the Constitution of India, which are not applicable to the
present case at all. In case of Kerala State Electricity Board (supra),
the KERC Regulation 153(15) of the 2014 Code, was declared invalid,
being inconsistent with Section 126. Such proposition does not
render the Section itself unconstitutional, rather, it reiterates the
validity of the Section, on the anvil of which the State Regulation was
declared to be invalid.
95. Reliance placed by the petitioner on Sri Seetaram Rice Mill's case is
misplaced, since the same clearly upholds the constitutionality of the
sections-in-question.
96. The petitioner has cited several judgments, thereby resorting to
unnecessary repetition on the proposition that the writ petition under
Article 226 of the Constitution is maintainable in several cases, if the
criteria stipulated therein are fulfilled.
97. However, there is nothing on record to indicate that the petitioners'
time-barred challenge to their respective final orders of assessment by
way of the writ petitions, thereby obliquely bypassing the statutory
remedy of Section 127 of the 2003 Act,has exposed any gross lacunae
on the part of the authority fit for interference under Article 226.
98. In Suraj Mall Mohta and Co. (supra) it was held, on the anvil of Article
14 of the Constitution, that the same rule of evidence and mode of
procedure should be applied and available to everyone.
99. Such ratio is not attracted to the present case, since no distinction is
made between persons between whom Sections 126 and 135 are
respectively applicable. The two provisions do not provide mutually
exclusive remedies, unlike the Income Tax Act provision discussed in
Suraj Mall (supra) and Minakhshi's case.
100. There is no comparable yardstick between the said judgments and the
case at hand, since Sections 126 and 135 operate in different fields,
although there are overlapping features insofar as tampering of meter
is concerned.
101. P.N. Kaushal's case, cited by the petitioner, speaks about
unreasonable restrictions on the right to carry on business being
violative of Article 19 of the Constitution. In the present case,
however, there is nothing unreasonable nor any restriction on
business, nor is there any unbridled power conferred on the licensee
to invoke either Section 126 or Section 135 according to their whims
and fancies. The Sections operate in specific modes as stipulated in
the statute and there are several safeguards and checks in
functionality of the Sections. Inasmuch as K.S. Rashid's case is
concerned, the same follows the ratio of Suraj Mall Mohta and Co.
(supra) and need not be discussed separately in an elaborate manner.
102. Inasmuch as the Division Bench decision of the Madhya Pradesh High
Court is concerned, which was cited by the petitioner, the civil liability
contemplated in Section 154 is to be determined by a Special Court
and is dependent upon criminal liability being fixed under Section 135
of the 2003 Act. Hence, it cannot be said that the assessment made
under Section 126 for unauthorised use operates within the same
scope as determination of civil liability for theft under Section 154.
The assessment under Section 154 is made not by an officer of the
licensee but by a designated Special Court. In fact, the deposit made
initially by the consumer is subjected to the final assessment made by
the Special Court and the excess amount, if any, is to be refunded to
the consumer under Section 154 (6) of the 2003 Act.
103. As regards the proposition that access to justice is a part of the right
to life, the said ratio, as reiterated in Anita Kushwaha (supra), is well-
settled and is undisputed. However, the petitioners have failed to
demonstrate any manner in which access to justice has been curtailed
by operation of Sections 126 and 135 of the 2003 Act.
104. The judgments cited on the doctrine of per incuriam is entirely
irrelevant in the present context, since Sri Seetaram Rice Mill's case,
relied on by the petitioners to distinguish Orion Metal (P) Ltd.
(supra),bolsters the constitutionality of Sections 126 and 135.
105. Particular instances of illegality committed by particular assessing
officers in certain cases cannot render the statute itself
unconstitutional. It is not the sections-in-question which encourage
such unconstitutionality but stray acts of particular officers in certain
cases. Hence, the vires of Sections 126 and 135 cannot be said to be
vitiated by such individual instances of illegality, if any. The Division
Bench judgment of this Court in Jadavpur Tea Co. Ltd.(supra)
proceeded on the line that a final order was passed with closed mind.
However, the provisional and final orders of assessment under Section
126 need not necessarily be so, since a right of hearing is given to the
consumer, including a right to file objection, which is to be considered
while passing the final order of assessment.
106. In any event, Section 127 provides a right of appeal against the same.
The fifty per cent deposit pre-requisite is not ex facie contrary to law.
Even appellate courts, under Order XLI Rule 5 (3) (c) of the Code of
Civil Procedure, are empowered to direct deposit of security amount as
pre-condition for stay. In fact, Order XVI Rule 1 (3) of the Code
provides that where the appeal is against a decree for payment of
money, the appellant shall deposit the amount disputed in the appeal
or furnish security therefor. Again, Order XVI Rule 5 (1) stipulates
that an appeal shall not operate as a stay of proceedings under a
decree or order appealed from, unless stay order is actually passed.
Hence, for all practical purposes, an appeal even under the Civil
Procedure Code against a money decree is rendered infructuous
unless the full decretal amount is secured.There is no conceivable
reason why only fifty per cent shall not be deposited while filing an
appeal under Section 127 of the 2003 Act. Individual instances of
erroneous assessment cannot be cited to invalidate the provision
itself.
107. It is reiterated that the level of reasoning by the assessing officer while
passing a final order of assessment cannot be equated with that a
court of law and/or a judicial forum, in view of the inherent nature of
such exercise, the guidelines for exercise of which are stipulated in
Section 126(5) and (6) and by the Regulations formulated by the
concerned Regulatory Commissions.
108. Such exercise cannot be said to be ex facie orders without authority,
which would render them a nullity. The judgments including Vinay
Tiyagi (supra) cited by the petitioner with regard to fair and proper
investigation pertain to criminal proceedings. It is a fundamental
principle of criminal jurisprudence, which has been fully honoured in
Sections 153 and 154 of the 2003 Act, by designation of Special
Courts for adjudication of allegations of criminal offences including
theft, as stipulated under Sections 135 to 140 of the 2003 Act,
following the full rigour of a criminal trial,and consequential
determination of civil liability.
109. Hence, on a comprehensive assessment of the arguments made by the
parties in the light of the cited judgments, it is evident that Sections
126 and 135, as held by the Division Benches of the Gujarat High
Court, pass the test of constitutionality with flying colours.
110. Insofar as the individual cases of the writ petitioners are concerned,
the present writ petitioners have long overshot the limitation period
for preferring challenges under Section 127 of the 2003 Act. Moreover,
there is nothing indicated in the impugned assessments which reek of
palpable arbitrariness or patent perversity. As such, no
interferenceunder Article 226 is deserved in any of the cases even on
merits. Hence,WPA No.6237 of 2022, WPA No.10861 of 2022, WPA No.
6112 of 2022, WPA No.7584 of 2022 and WPA No.7652 of 2022are
dismissed on contest without any order as to costs.
111. Urgent certified server copies, if applied for, be issued to the parties
upon compliance of due formalities.
( Sabyasachi Bhattacharyya, J. )
