M/S Jalan Iron And Steel Company vs Assam Power Distribution Company ...
2022 Latest Caselaw 987 Gua

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GAHC010019432022




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

                                 Case No. : WP(C)/1859/2022

            M/S JALAN IRON AND STEEL COMPANY
            A PARTNERSHIP FIRM DULY REGISTERED UNDER THE INDIAN
            PARTNERSHIP ACT, 1932 HAVING ITS PRINCIPAL PLACE OF BUSINESS
            AND FACTORY/INDUSTRIAL UNIT AT DEUDUAR, N.H. 31, VILL AND P.O.-
            DORAKOHORA, DIST- KAMRUP(R), ASSAM, DULY REPRESENTED BY ONE
            OF ITS PARTNERS NAMELY SRI ABHISEKH JALAN, SO SRI RAMAVTAR
            JALAN, R/O EXOTICA APARTMENT, ZOO ROAD, GUWAHATI, DIST-
            KAMRUP, ASSAM



            VERSUS

            ASSAM POWER DISTRIBUTION COMPANY LIMITED AND 2 ORS
            A GOVERNMENT OF ASSAM UNDERTAKING DULY INCORPORATED
            UNDER THE COMPANIES ACT, 1956 HAVING ITS OFFICE AT BIJULEE
            BHAWAN, PALTAN BAZAR, GUWAHATI-781001, DULY REPRESENTED BY
            ITS MANAGING DIRECTOR

            2:THE CHIEF EXECUTIVE OFFICER
             RANGIA ELECTRICAL CIRCLE
             IRCA
            APDCL
             RANGIA

            3:THE ASSISTANT GENERAL MANAGER
            T AND C DIVISION
            APDCL
             RANGI

Advocate for the Petitioner   : MR D K MISHRA

Advocate for the Respondent : SC, APDCL
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                                     BEFORE
                    HONOURABLE MR. JUSTICE MANISH CHOUDHURY

                                      ORDER

Date : 22.03.2022

Heard Mr. D.K. Mishra, learned Senior Counsel assisted by Mr. B. Prasad, learned counsel for the petitioner and Mr. K.P. Pathak, learned Standing Counsel, Assam Power Distribution Company Limited [APDCL] for all the respondents.

2. The petitioner has approached this Court by this writ petition, preferred under Article 226 of the Constitution of India, assailing a provisional assessment bill dated 02.09.2021 [Annexure-14] and the final order of assessment dated 22.09.2021 [Annexure-19]. By the provisional assessment bill dated 02.09.2021, the respondent authorities in the APDCL had assessed an amount of Rs. 6,97,91,678.76/- purportedly in terms of the provisions contained in sub-section [1] of Section 126 of the Electricity Act, 2003. The final order of assessment dated 22.09.2021 has been passed in terms of the provisions contained in sub- section [3] of Section 126 of the Electricity Act, 2003.

3. The petitioner, a partnership firm, has stated that it is in the business of manufacture and sale of M.S. Steel Ingot and has an industrial unit at Dorakohora, District - Kamrup [Rural]. For the purpose of running the industrial unit, it has got a 33 KV dedicated line installed with a connected load of 3880 KW and contract demand of 3250 KVA for the purpose of billing, energy meter and connected CT PT Set and transformer. It is the case of the petitioner that earlier the energy meter was numbered as Meter no. 14077404 and the same was replaced on 08.02.2021 with Meter no. 18183042 and the said fact is reflected in an inspection report dated 08.02.2021.

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4. Mr. Mishra, learned Senior Counsel for the petitioner has submitted that when an inspection was carried out on 31.08.2021 by the inspecting officials of the respondent APDCL, the meter was showing 'Display Out' continuously. The inspecting officials had broken the seals of the meter and thereafter, prepared the inspection report [Annexure-8]. The Assessing Authority prepared the provisional assessment bill dated 02.09.2021 for the afore-mentioned amount by taking the bill period from 08.02.2021 to 31.08.2021. After hearing the petitioner, the Assessing Officer passed the final order of assessment dated 22.09.2021. It is his contention that there was an inspection of the meter on 08.02.2021 followed by an inspection report [Annexure-1]. There were two subsequent inspections on 05.04.2021 and on 27.04.2021. The respondent authorities had also prepared inspection reports to that effect which the petitioner has annexed as Annexure-2 and Annexure-3 respectively. It is his contention that neither on 05.04.2021 nor on 27.04.2021, the inspecting officials of the respondent APDCL had found any kind of irregularities/faults in the meter. By referring to the Assam Electricity Regulatory Commission [Electricity Supply Code] Regulations, 2017, more particularly, to Clause 7.4.2 thereof, he has submitted that the period of assessment in respect of the impugned provisional assessment bill as well as the impugned final order of assessment ought to have been made from the date of previous inspection to the date of detection of alleged irregularities/faults, assuming for the sake of argument that there were irregularities/faults in the meter. When inspection was carried out on 27.04.2021, no irregularities were detected. It is his contention that the period of assessment, mentioned in the impugned provisional assessment bill as well as in the impugned final order of assessment, from 08.02.2021 to 31.08.2021 is erroneous resulting in a higher amount even if it is assumed that some Page No.# 4/7

irregularities/faults were detected in the meter. Since the respondent authorities in the APDCL have violated a statutory provision contained in the Electricity Supply Code, made in exercise of the powers conferred by Section 50 of clause [x] of sub-section [2] of Section 181 of the Electricity Act, 2003 both the impugned provisional assessment bill and the impugned final order of assessment are liable to be interfered with. It is his submission that the entire inspection, carried out on 31.08.2021, was videographed and by referring to some of the photographs taken during such inspection, he has submitted that the concerned meter was found intact with seals prior to the breakage of the meter. As such, the entire inspection is to be termed as illegal.

5. In response, Mr. Pathak, learned Standing Counsel, APDCL has submitted that both the impugned provisional assessment bill and the impugned final order of assessment have been made in consonance with the provisions contained in Section 126 of the Electricity Act, 2003 read with the provisions of the Electricity Supply Code. His primary contention is that since there is a provision in preferring an appeal before the appellate authority under Section 127 of the Electricity Act, 2003, and the primary focus has to be on the aspect of revenue, this writ petition should not be entertained. The petitioner should have approached the appellate authority raising all such issues. As it is a condition precedent to deposit an amount equal to half of the assessment amount for preferring an appeal, this writ petition has been preferred by the petitioner in order to by-pass the said statutory provision. It is his contention that while preparing the provisional assessment bill as well as passing the final order of assessment, the Assessing Authority had come to a finding that there was tempering with the check meter with the installation of an external RF circuit inside CT PT set, which was detected on 06.09.2021. It is his submission Page No.# 5/7

that in any view of the matter, since there is temporary disconnection of electricity supply to the industrial unit of the petitioner, no interim order is called for till the disposal of the writ petition.

6. I have considered the submission of the learned counsel for the parties. The issues raised in the writ petition call for further examination.

7. Issue notice of motion, returnable on 25.04.2022.

8. As Mr. Pathak, learned Standing Counsel, APDCL has appeared and accepted notice on behalf of all the respondents, no formal notice need to be issued to the respondents. Mr. Prasad, learned counsel for the petitioner shall furnish requisite nos. of extra copies of the writ petition with all annexures to Mr. Pathak, within 3 [three] working days from today.

9. I have also considered the submissions of the learned counsel for the parties on the interim relief.

10. Mr. Mishra, learned Senior Counsel for the petitioner has submitted that the industrial unit of the petitioner has suffered immensely as the electricity connection to the petitioner's industrial unit was disconnected on 31.08.2021 immediately after completion of the inspection carried out on that date. The petitioner did not seek legal remedy earlier as there was no industrial activity in the industrial limit of the petitioner due to the then prevailing Covid-19 pandemic situation. It is his submission that as the question he has raised is relatable to violation of a statutory provision relating to the period of assessment for an assessment bill to be made under the provisions of Section 126 of the Electricity Act read with the Electricity Supply Code, the petitioner is ready to deposit 50% of the amount mentioned in final order of assessment. It Page No.# 6/7

is his contention that if the proper period is taken, assuming but not admitting, there was some irregularities/faults with the meter, then the amount of assessment would be much lesser. It is also his submission that 'display out' does not in any manner indicate towards tempering of the meter, not to speak of theft of electricity, and nothing can be made attributable to the petitioner for such 'display out'.

11. In response, Mr. Pathak has vehemently objected by submitting that if it is a case of theft of electricity then the entire amount is required to be deposited as per the provisions of Section 135 of the Electricity Act, 2003.

12. Whether it is a case of unauthorized use of electricity or if yes, whether apart from unauthorized use of electricity, it is also a case of theft of electricity, can only be considered such issues and will be considered on receipt of responses in the counter affidavits and/or at a later stage in a detailed hearing. It is noticed that the Electricity Supply Code has been made in exercise of the powers conferred by Section 50 of Clause X and sub-section [2] of Section 121 of the Electricity Act, 2003. As per Clause 7.4.2, in case of the provisional assessment, if the Assessment Officer suspects that unauthorized use of electricity has taken place, he has to make provisional assessment and serve an assessment report to the consumer. One of the requirements for the Assessment Officer to consider while considering the period of assessment if he reaches a conclusion that unauthorized use of electricity has taken place, is to take into consideration the period from the date of previous inspection, if any, by the officer of the licensee to the date of detection and has to arrive at the actual period [duration] of unauthorized use of electricity to the extent possible and to the best of his judgment. It has emerged from the records that Page No.# 7/7

inspections of the matter carried out at the industrial unit of the petitioner on 08.02.2021, 05.04.2021, 27.04.2021 and 31.08.2021 respectively. When inspections were carried out on 05.04.2021 and 27.04.2021, it appears that the inspecting officials of the license, APDCL did not find any irregularities/faults in the meter and, as such, the petitioner has made out a prima facie case with regard to the period [duration] of assessment.

13. Having considered all the aspects in its entirety and keeping the interests of both the parties, this Court is of the view that an interim order to the extent of restoration of electricity supply, subject to deposit of 50% of the amount mentioned in the impugned final order of assessment, is called for. It is accordingly ordered that the electricity connection to the industrial unit of the petitioner be restored within a period of 72 hours after deposit of 50% of the assessment amount of Rs. 6,97,91,678.76/- by the petitioner.

14. Mr. Pathak, learned Standing Counsel, APDCL has submitted that the said amount shall be deposited by the petitioner before the Managing Director, APDCL.

15. The respondent authorities shall file their responses in the meantime.

16. The question of maintainability of the writ petition as raised by the learned Standing Counsel, APDCL is kept open for consideration along with other issues.

JUDGE

Comparing Assistant