M/S. Shiv Alloys Steel vs Assam Power Distribution Company ...
2021 Latest Caselaw 2898 Gua

GAHC010143242021




                   Case No. WA/286/2021

M/S. SHIV ALLOYS STEEL
A PARTNERSHIP FIRM DULY REGD. UNDER THE INDIAN
PARTNERSHIP ACT, 1932 HAVING ITS PRINCIPAL PLACE OF
BUSINESS AND FACTORY/INDUSTRIAL UNIT AT WEST
BORAGAON, GUWAHATI-33 IN THE DISTRICT OF KAMRUP,
ASSAM DULY REP. BY ONE OF ITS PARTNERS NAMELY SRI
DIPAK DAS, SON OF LATE BOGARAM DAS,
MAA ASHIRBAD APARTMENT, VIGYAN PATH,
WEST BORAGAON, GUWAHATI-781033,
DIST.- KAMRUP, ASSAM


VERSUS


ASSAM POWER DISTRIBUTION COMPANY LTD. AND 2 ORS. A
GOVERNMENT OF ASSAM UNDERTAKING DULY
INCORPORATED UNDER THE COMPANIES ACT, 1956 HAVING
ITS OFFICE AT BIJULEE BHAWAN,
PALTANBAZAR, GUWAHATI-1,
DULY REP. BY ITS MANAGING DIRECTOR.

2:THE AREA MANAGER
IRCA-II,APDCL (LAR),
JALUKBARI
GUWAHATI-781012.

3. THE ASSISTANT GENERAL MANAGER
T AND C DIVISION,
GEC-II AMINGAON,
GUWAHATI-31

Advocate for the Appellant : MR D K MISHRA, SENIOR ADVOCATE
Advocate for the Respondents : MR. P. N. GOSWAMI, SC, APDCL


                                                       Page 1 of 11
                       BEFORE
           HONOURABLE THE CHIEF JUSTICE
       HONOURABLE MR. JUSTICE SOUMITRA SAIKIA
                       ORDER

Date : 16-11-2021

Heard Mr. D. K. Mishra, learned senior counsel, appearing for the appellant. Also heard Mr. P. N. Goswami, learned Standing counsel, APDCL, appearing for the respondents.

2. This is an appeal against the order dated 12.09.2021, passed by the learned Single Judge in WP(C) 3427/2021, by which the writ petition filed by the appellant/writ petitioner was dismissed.

3. The brief facts of the case are that the appellant/writ petitioner is a partnership firm and a consumer of the respondent Assam Power Distribution Company Limited (APDCL). It had filed a writ petition challenging, inter alia, the order of assessment made by the Assessing Officer of the APDCL, which was made after inspection of the factory premises of the writ petitioner on 09.06.2021. Initially a provisional assessment bill dated 15.06.2021, amounting to Rs. 2,78,95,505/- (Rupees Two Crore Seventy Eight Lakhs Ninety Five Thousand Five Hundred Five), was raised against the writ petitioner as per the procedure

laid down in section 1261 of the Electricity Act, 2003 (hereinafter referred to as "Electricity Act"), though after hearing the objections of the petitioner the final assessment order was passed. The writ petitioner had challenged the Final Assessment Order of the Assessing Officer dated 07.07.2021, which was made after the objections raised by the assesse had been considered by the assessing authority.

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 unauthorized 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 licensee within seven days of service of such provisional assessment order upon him. (5) If the assessing officer reaches to the conclusion that unauthorized use of electricity has taken place, the assessment shall be made for the entire period during which such unauthorized use of electricity has taken place and if, however, the period during which such unauthorized 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 this 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 purpose 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) "unauthorized use of electricity" means the usage of electricity -

(i) by any artificial means; or

(ii) by a means not authorized 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 authorized; or

(v) for the premises or areas other than those for which the supply of electricity was authorized.

4. The learned Single Judge heard the arguments of the learned counsel for the petitioner in detail, including the objections of the learned counsel for the APDCL that, in fact, the writ petition itself was not maintainable at this stage since there is a specific provision of appeal under section 127 of the Electricity Act, which reads as under:

"127. Appeal to appellate authority. - (1) Any person aggrieved by the final order made under section 126 may, within thirty days of the said order, prefer an appeal in such form, verified in such manner and be accompanied by such fee as may be specified by the State Commission, to an appellate authority as may be prescribed. (2) No appeal against an order of assessment under sub-section (1) shall be entertained unless an amount equal to half of the assessed amount is deposited in cash or by way of bank draft with the licensee and documentary evidence of such deposit has been enclosed along with the appeal. (3) The appellate authority referred to in sub- section (1) shall dispose of the appeal after hearing the parties and pass appropriate order and send copy of the order to the assessing officer and the appellant.

(4) The order of the appellate authority referred to in sub-section (1) passed under sub-section (3) shall be final.

(5) No appeal shall lie to the appellate authority referred to in sub-section (1) against the final order made with the consent of the parties. (6) When a person defaults in making payment of assessed amount, he, in addition to the assessed amount, shall be liable to pay, on the expiry of thirty days from the date of order of assessment, an amount of interest at the rate of sixteen per cent per annum compounded every six months."

5. The writ petition was dismissed by the learned Single Judge as not maintainable on the ground that a statutory remedy in the form of appeal against the assessment order is provided under section 127 of the Electricity Act  the remedy was not availed by the petitioner. This order of the learned Single Judge is presently in appeal before this court.

6. We have heard Mr. D. K. Mishra, learned senior counsel for the appellant in great detail. He was primarily answering the objections raised again by Mr. P. N. Goswami, learned counsel for the APDCL, on the maintainability of the writ appeal in view of statutory remedy provided under section 127 of the Electricity Act. Mr. Mishra would argue that the order dated 15.06.2021

of the assessing authority is not an assessment order under section 126, but it is actually an order under section 135 of the Electricity Act, whereby theft of electricity has been alleged and, therefore, it will be a matter covered under section 135 of the Electricity Act. He would also refer to the guidelines framed by the APDCL vide Circular dated 18.05.2021. Referring to Clause 11 of the aforesaid guidelines, which deals with "unauthorised use/theft of electricity", he would argue that as per sub-clause (f) of Clause 11 of the guidelines no remedy lies for the petitioner/appellant for an appeal when a matter is covered under section 135 of the Electricity Act. The learned counsel would argue that in Clause 11(f) of the aforesaid guidelines it has been stated that "No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which an assessing officer referred to in section 126 or an appellate authority referred to in section 127 or the adjudicating officer appointed under this Act is empowered by or under this Act to determine and no jurisdiction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act." He would then submit that under the facts and circumstance of the case, since it is a case of theft as per

the APDCL, there is no effective remedy for the appellant/writ petitioner as provided under the statute.

Mr. Mishra, learned senior counsel for the appellant has also argued upon the aspect of jurisdiction of the assessing authority on the ground that the assessing officer was not having relevant materials such as "inspection-cum-observation report" and, therefore, any action taken by him in absence of this report would mean an action without jurisdiction.

We have gone through section 126 of the Electricity Act and find that it does not speak of any inspection- cum-observation report. Therefore, we are in agreement with the learned Single Judge that there was no jurisdictional error as argued on behalf of the appellant.

Learned senior counsel for the appellant would then argue that the allegation against the appellant is of theft of electricity, yet an assessment order has been passed and a Bill has been served upon him under section 126 of the Electricity Act. He would also argue that there is yet another provision under section 154 of the Electricity Act and the procedure and power of Special Court have been defined, and a procedure to deal with offences committed, inter alia, under section 135 of the Electricity Act has been given. He would also argue that under the provisions of section 154(5) and 154(6), the Special Court is to "finally determine", the civil liability

against the consumer for causing loss or damage incurred from the theft of electricity. As such there is an anomaly in the statute itself as there is no clarity as to term "final authority", or who is the final authority inasmuch as sub-section (3) of section 126 of the Electricity Act provides that the assessing officer shall, after affording a reasonable opportunity of hearing to such assesse, pass a "final order". On the other hand, section 154(6) provides that the Special Court is to "finally determine" the civil liability against the consumer for causing loss or damage incurred from the theft of electricity.

7. In reply to these arguments of the learned counsel for the appellant, Mr. Goswami, learned counsel for the APDCL has cited the judgment of the Hon‟ble Apex Court in the case of West Bengal State Electricity Distribution Company Ltd. and Others vs. Orion Metal Pvt. Ltd. and Another, reported in (2019) SCC Online SC 1077, and he would submit that section 126 and 127 of the Electricity Act are clearly distinct from section 135 thereof. Mr. Goswami would argue that section 126 of the Electricity Act deals with the matter regarding assessment of electricity bill after inspection of the place or premises of the consumer and section 127 provides for remedy to the consumer to challenge such assessment by way of appeal before the appropriate appellate

authority. However, section 135 specifically relates to "theft" of electricity. In order to show the distinction between section 126/127 and section 135 of the Electricity Act, Mr. Goswami has also pointed out to sub- section (6)(b) of section 126, wherein "unauthorised use of electricity" has been defined as under:

"126. 6(b) „unauthorized use of electricity‟ means the usage of electricity -

(i) by any artificial means; or

(ii) by a means not authorized 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 authorized; or

(v) for the premises or areas other than those for which the supply of electricity was authorized."

At the same time, "theft of electricity" has been elaborately defined in section 135 of the Electricity Act, wherein tampering of meter is also included within the meaning of "theft of electricity". In other words, learned counsel for the respondent APDCL would argue that in a case where there is tampering of meter, it is a case of unauthorised use of electricity which has to be determined under the provisions of section 126 and 127 of the Electricity Act. However, the penal consequences will depend upon its examination in a criminal court where all the factors, including mens rea etc. etc. have to be decided. In other words, learned counsel for the

APDCL would argue that whereas all the cases of unauthorised use of electricity are not "theft of electricity" but all cases of "theft of electricity" definitely include "unauthorised use of electricity". At this stage, this court has been informed by the learned counsel for the APDCL that FIR has already been filed against the writ petitioner/ appellant under Section 135 of the Electricity Act.

8. Mr. Goswami would thus submit that there should be no confusion as to the two distinct proceedings under the Electricity Act. One is of assessment and the other is of penal procedure for theft of electricity. Presently the appellant has been given an assessment order under Section 126 of the Act, which is appealable under Section 127 of the Act.

9. After considering the rival submissions of the parties, we are of the opinion that presently the remedy available to the writ petitioner/appellant is an appeal under section 127 of the Electricity Act, where he will have a liberty to place all his points, including whether due process under section 126 had been adopted or not and whether the quantum of assessment is in order. As a statutory remedy of appeal is provided to the writ petitioner/appellant, we are in agreement with the opinion of the learned Single Judge that the writ

petitioner/appellant should approach the appellate authority first for redressal of his grievance.

10. In view of the above, we dismiss this appeal.

               JUDGE                    CHIEF JUSTICE




Comparing Assistant