Page No.# 1/7 vs The Assam State Electricity Board ...
2022 Latest Caselaw 846 Gua

                                                              Page No.# 1/7

GAHC010039832022




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                         Case No. : WP(C)/1488/2022

         PANNA PAUL AND ANR
         S/O- LATE PRABHAT CHANDRA PAUL, PARTNERS OF CLASSIC
         INDUSTRIES INDUSTRIAL INFRASTRUCTURE DEVELOPMENT CENTRE,
         MALINIBEEL, SILCHAR, DIST. CACHAR, ASSAM

         2: BISWAJIT PAUL
          S/O- LATE PRABHAT CHANDRA PAUL
          PARTNERS OF CLASSIC INDUSTRIES INDUSTRIAL INFRASTRUCTURE
         DEVELOPMENT CENTRE
          MALINIBEEL
          SILCHAR
          DIST. CACHAR
         ASSA

         VERSUS

         THE ASSAM STATE ELECTRICITY BOARD AND 5 ORS
         REPRESENTED BY ITS CHAIRMAN, BIJULI BHAWAN, PALTANBAZAR,
         GUWAHATI.

         2:THE MANAGING DIRECTOR
         ASSAM POWER DISTRIBUTION COMPANY LTD.
          BIJULI BHAWAN
          PALTANBAZAR
          GUWAHATI.

         3:THE GENERAL MANAGER
          BARAK VALLEY ZONE
         ASSAM POWER DISTRIBUTION COMPANY LIMITED (CAZ)
          SILCHAR
          CACHAR
         ASSAM

         4:THE DEPUTY GENERAL MANAGER
                                                                                   Page No.# 2/7

             CACHAR ELECTRICAL CIRCLE
             ASSAM POWER DISTRIBUTION COMPANY LTD.
             (CAZ)
             MEHERPUR
             SILCHAR
             CACHAR
             ASSAM

            5:THE ASSISTANT GENERAL MANAGER
            ASSAM POWER DISTRIBUTION COMPANY LTD. (IRCA)
            APDCL (CAZ)
             BADARPURGHAT
             CACHAR
            ASSAM

            6:SUB DIVISIONAL OFFICER

             ASSAM POWER DISTRIBUTION COMPANY LIMITED
             BADARPURGHAT
             CACHAR
             ASSA

Advocate for the Petitioner   : MR. S P CHOUDHURY

Advocate for the Respondent : SC, APDCL

BEFORE HON'BLE MR. JUSTICE MANASH RANJAN PATHAK

10/03/2022

Heard Mr. S P Choudhury, learned counsel for the petitioners and Mr. B Choudhury, learned Standing counsel, APDCL for all the respondent Nos. 1 to 6.

Petitioners are having a Small Scale Industrial Unit under the name and style of M/S. Classic Industries at Industrial Infrastructure Development Center, Malini Beel, Silchar, Cachar over a plot of land given to them on lease by the Assam Industrial Development Corporation on 27.12.2008. Petitioners have the requisite sanction load of electricity of 100 KVA with a transformer so as to run their said manufacturing unit.

Page No.# 3/7

It is submitted by the petitioners that the respondents in the APDCL on 09.01.2011 raised an electricity bill for the period from 01.12.2011 to 01.01.2012 for an amount of Rs. 6,15,786/- specifying the due date of payment as 27.01.2012.

While replying to the legal notice issued on behalf of the petitioners, the Assistant General Manager, IRCA, APDCL, CAZ, Badarpurghat on 31.01.2012 informed the petitioners that they have been found to have made magnetic tamper/interference with the electric meter w.e.f. 17.09.2011 and restored on 03.10.2011 and since the meter accuracy test done at the site showed the meter to be correct, the provisional bill made earlier was revised and accordingly, issued the said bill dated 09.01.2011 to the petitioners.

Part XII of the Electricity Act, 2003, consisting of Sections 126 to 134 relates to Investigation and Enforcement. Section 126 of the said 2003 Act relates to Assessment and it stipulates that:-

"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 unauthorised 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 unauthorised use of electricity has taken place cannot be ascertained, such period shall be Page No.# 4/7

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 rates 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 a 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."

Instead of preferring any such objection against the provisional assessment before the concerned assessing officer, the petitioners preferred a writ petition being WP(C) No. 2739/2012 against the said provisional bill dated 09.01.2011 amounting to Rs.6,15,786/-

raised by the respondents APDCL as well as against the finding of the respondents APDCL regarding magnetic tamper/interference with the electric meter of said Industrial Unit of the petitioners.

In the said WP(C) No. 2739/2012, the Court on 08.06.2012 while issuing notice to the respondents in the APDCL observed that pendency of the said case shall not be a bar to have the meter tested under Clause 4.2.1.4.2 of the terms and conditions and in the interim, directed that subject to payment of 25% of the arrear dues, the respondents shall not take any coercive measure to disconnect power supply with the rider that the petitioners will continue to pay their current bills.

However, without taking any liberty from the Court, the petitioners had withdrawn their said writ petition WP(C) No. 2739/2012 on 05.06.2017 and accordingly, the said WP(C) No. 2739/2012 of the petitioners was dismissed on 05.06.2017on its withdrawal.

In the present case, the petitioners are aggrieved by the communication dated Page No.# 5/7

17.02.2022 issued by the Assistant General Manager, IRCA Division, Cachar Electrical Circle, APDCL, CAR, Cachar issuing Defaulter notice under Section 56(1) of the Electricity Act, 2003 stating that they are paying regular electricity dues issued by the respondents in the APDCL and since there is no such provision for appeal under the said 2003 Act, the petitioners have preferred this writ petition.

The petitioners have also filed a representation before the Assistant General Manager, APDCL, IRCA, Silchar annexing the list of billing status (Annexure-11 to this petition) and the same reflects that the petitioners did not pay the electricity dues for the period from 01.12.2011 to 01.01.2012 amounting to Rs. 6,15,786/-. Further, the petitioners neither paid the current electricity bills for the period from 01.06.2012 to 01.03.2013, nor did they file any objection before the assessing authority with regard to such electricity bills as provided under Section 126(3) of the 2003 Act.

The Annexures annexed to this writ petition clearly reflects that those bills for the period from 01.12.2011 to 01.01.2012 amounting to Rs.6,15,786/- and for the period from 01.06.2012 to 01.03.2013 have not been paid by the petitioners to the respondents APDCL.

It is to be noted herein that in WP(C) No. 2739/2012 preferred by the petitioners, though the Court by order dated 08.06.2012 passed in the same, directed the petitioners to pay 25% of the arrear dues and the current bills regularly, which was dismissed on 05.06.2017 on withdrawal of the said writ petition by them, but the petitioners did not comply with the order of the Court dated 08.06.2012 passed in said WP(C) No. 2739/2012 while it was pending for adjudication.

Though, the question of theft of electricity (magnetic tampering) of the electrical meter was one of the issue in WP(C) No. 2739/2012 on the basis of which on due enquiry, the authorities in the APDCL found such magnetic tampering committing theft of electricity by the petitioners and accordingly issued the said provisional bill amounting to Rs. 6,15,786/- involved in said WP(C) No. 2739/2012 and since the said WP(C) No. 2739/2012 was withdrawn by the petitioners on 05.06.2017 without taking any leave of the Court, therefore, as per the law of acquiescence, the petitioners have accepted in committing theft of electricity by magnetic tampering/interference of the electrical meters connected to its said Page No.# 6/7

Industrial Unit.

Regarding the provisions of Section 56(1) of the Electricity Act, 2003, it is an admitted position that the petitioners have not filed any such objection against the bills raised by the respondents in the APDCL on different dates for the period from 01.06.2012 to 01.03.2013 as provided under Section 126(3) of the said 2003 Act.

A Division Bench of this Court in the case of M/s. Shiv Alloys Steel Vs. Assam Power Distribution Company Ltd. and 2 Others . while upholding the order of the learned Single Judge dated 12.09.2021 passed in WP(C) No. 3427/2021 observed that remedy available to the consumer/appellant is an appeal under Section 127 of the Electricity Act, where the said consumer will has 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. Since a statutory remedy of appeal is provided to the concerned consumer/writ petitioner/appellant, therefore, the Hon'ble Division Bench, i.e. the Writ Appellate Court was in agreement with the opinion of the learned Single Judge that the writ petitioners/ appellant should approach the Appellate Authority first for redressal of its grievances.

During the deliberation of the matter, Mr. B. Choudhury, learned Standing Counsel, APDCL also placed before the Court that the State Government in the Power (Electricity) Department in December 2021 designated Sri Nirmaljit Das, retired CJM (PP&D), APDCL as the "Appellate Authority" of the Assam Power Distribution Company Limited under Section 127 of the Electricity Act, 2003 with effect from taking over charge by him and it is stated before the Court that the concerned person has already taken over charge as the "Appellate Authority" of respondent APDCL.

After hearing the learned counsel for the parties and considering all the aspects of the matter, the Court found that no such illegality has been committed by the respondents in the APDCL in issuing such default notice on 17.02.2022 under Section 56(1) of the Electricity Act, 2003 since the petitioners have not yet paid any such dues for the period from 01.06.2012 to 01.03.2013 without filing any objection before the concerned assessing authority.

Accordingly, this writ petition, being devoid of merit, stands dismissed.

The interim order passed earlier by this Court on 28.02.2020 in the present proceeding Page No.# 7/7

is hereby recalled/stands vacated.

Needless to say that the petitioners may approach the concerned Assessing Authority against any such provisional assessment made by the respondents APDCL as provided under Section 126(3) of the Electricity Act, 2003 or they may approach the concerned Appellate Authority as provided under the said 2003 Act.

JUDGE

Comparing Assistant