Kurjibhai Mohanbhai Goti vs Dakshin Gujarat Vij Co. Ltd
2023 Latest Caselaw 1604 Guj

     C/SCA/17260/2019                              ORDER DATED: 16/02/2023




      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 17260 of 2019
                                With
             R/SPECIAL CIVIL APPLICATION NO. 17261 of 2019
                                With
             R/SPECIAL CIVIL APPLICATION NO. 17262 of 2019
                                With
             R/SPECIAL CIVIL APPLICATION NO. 17263 of 2019
                                With
             R/SPECIAL CIVIL APPLICATION NO. 17264 of 2019
                                With
             R/SPECIAL CIVIL APPLICATION NO. 17265 of 2019
                                With
             R/SPECIAL CIVIL APPLICATION NO. 17266 of 2019
                                With
             R/SPECIAL CIVIL APPLICATION NO. 17267 of 2019
                                With
             R/SPECIAL CIVIL APPLICATION NO. 17268 of 2019
                                With
             R/SPECIAL CIVIL APPLICATION NO. 17269 of 2019
                                With
             R/SPECIAL CIVIL APPLICATION NO. 17270 of 2019
                                With
             R/SPECIAL CIVIL APPLICATION NO. 17271 of 2019

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                         KURJIBHAI MOHANBHAI GOTI
                                   Versus
                        DAKSHIN GUJARAT VIJ CO. LTD.
=================================================================
Appearance:
MR JIGAR P RAVAL(2008) for the Petitioner(s) No. 1
MS LILU K BHAYA(1705) for the Respondent(s) No. 3
MR SANJAY UDHWANI, AGP for the Respondent(s) No. 1,2
=================================================================

CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                               Date : 16/02/2023

                           COMMON ORAL ORDER

1. Rule returnable forthwith. Mr. Sanjay Udhwani, learned

C/SCA/17260/2019 ORDER DATED: 16/02/2023

Assistant Government Pleader waives service of notice

of Rule for and on behalf of the respondent Nos.1 and 2

while Ms. Lilu Bhaya, learned advocate waives service

of notice of Rule for and on behalf of the respondent

No.3. With the consent of the learned advocates

appearing for the respective parties, all these petitions are

taken up for final hearing today.

2. In all these petitions, under Article 226 of the

Constitution of India, the petitioners have prayed for an

order or direction for quashing and setting aside the

entire procedure adopted by the respondents after the

inspection on 30.5.2016 as contrary to law and violative

of principles of natural justice. Further prayer is to quash

and set aside the impugned order dated 30.7.2019 passed

by the respondent No.2 and further condone the delay

that occurred in preferring the appeal u/s. 127 of the

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Electricity Act, 2003 (for short `the Electricity Act').

3. Since the issues are common, facts of Special Civil

Application No.17260 of 2019 are considered.

3.1. It is the case of the petitioner that petitioner is

having godown plot no.8 situated in block no.168 of

survey no.95 in village Saroli, Taluka Choryasi, District

Surat. He is occupying 13 godowns known as Maruti

Godown. It is his case that the business is running on the

basis of 13 separate electricity connections. An

inspection was carried out on the premises on 30.5.2016

and a supplementary bill dated 23.6.2016 was issued to

the petitioner under the provisions of Section 126 of the

Electricity Act. On receipt of the said supplementary bill

making a provisional assessment, the petitioner lodged

his objections on 5.7.2016. On 9.8.2016, a notice was

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issued by the Electricity Company asking the petitioner

to remain present on 12.8.2016 for personal hearing. It is

the case of the petitioner that the notice was received on

1.9.2016 and, therefore, he addressed a letter to the

authorities on 2.9.2016 stating that the notice was

received after the hearing date had gone. Accordingly,

the electricity company issued a fresh notice dated

10.10.2016 fixing the hearing again on 14.10.2016 at

11.40 a.m.

3.2. Once again, on 14.10.2016, the petitioner

requested the authority that since the notice for hearing

scheduled on 14.10.2016 at 11.40 am, was received at

10.40 am on the same day, the proceedings be adjourned.

3.3. It is the case of the petitioner that thereafter,

on 30.12.2016, the petitioner received a forwarding letter

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issuing a supplementary bill as per final assessment. That

forwarding letter was issued on the basis of the hearing

as per the letter on 24.12.2016 which hearing notice the

petitioner had never received. On the date of the

communication of the forwarding letter dated 30.10.2016

the petitioner made a representation on 6.10.2017, and

thereafter filed an appeal u/s.127 of the Electricity Act in

the year 2019 i.e. on 29.5.2019. It was stated in the

memo of appeal that it was only on the basis of an RTI

Application that the order of the final assessment was

served and therefore the appeal was beyond time.

3.4. By a communication dated 30.7.2019, the

appellate authority rejected the appeal on the ground that

the appeal was beyond time. Hence, the petition.

4. Mr. Jigar Raval, learned counsel for the petitioners

would make the following submissions:

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4.1. Mr. Raval would submit that the order /

forwarding letter dated 30.12.2016 when read indicates

that an order was passed, a copy of which was attached

to the letter, after hearing the petitioner. In fact, neither

any hearing took place on 24.12.2016 nor any order was

communicated to the petitioner and, therefore, it was a

pure case of violation of principles of natural justice.

4.2. Mr. Raval would further submit that in light

of a specific grievance that no order was communicated,

on having received an order under the RTI Act on

5.5.2019, the appeal was filed on 29.5.2019. The appeal

therefore ought to have been entertained without raising

the contention of it being time barred.

4.3. Mr. Raval would therefore submit that the

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order of the appellate authority rejecting the appeal as

time barred be quashed and set aside and the proceedings

be remanded to the competent authority.

4.4. In support of his submission that the relevant

period of limitation has to run from the date when the

party is actually aware of the order is well settled

inasmuch as, knowledge of the order is an essential

requirement of fair play and natural justice, Mr. Raval

relied on a decision in the case of Chandrakant

Shankerlal Shah v. Liquidator Anand Peoples Co-Op.

Bank Limited reported in 2014(5) GLR, 3710. Mr.

Raval also relied on a decision of the Division Bench of

this Court dated 19.1.2023 in SCA No.20505/2022 in

the case of Neha Enterprise v. State of Gujarat to

submit that the orders have to be supported by reasons

and therefore an order without reasons is no order and

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hence it would be violative of principles of natural

justice.

4.5. Mr. Raval would further submit that clauses

7.42 and 7.43 of the Electricity Supply Code specifically

indicate that the final assessment order shall be served on

the consumer under proper receipt alongwith the

speaking order. In absence of this, the order of the

appellate authority and the final order are in violation of

principles of natural justice and must be quashed and set

aside.

4.6. Mr. Raval would rely on the provisions of

section 29 of the Limitation Act, 1963 in support of his

submission that where a special law prescribed a period

of limitation, the provisions contained in sections 4 to 24

shall apply only insofar as to the extent to which they are

not expressly excluded. The provisions of section 5 of

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the Limitation Act, 1963 therefore applies to the facts of

this case.

4.7. With regard to service of the order and the

presumption u/s.27 of the General Clauses Act, 1897,

Mr. Raval would rely on a decision of the Hon'ble

Supreme Court in the case of VN Bharat v. DDA and

another reported in AIR 2009 (SC), 1233. He would

submit that since the petitioner has denied the

presumption of service of notice because no proof of

service except names of the petitioners have been

produced with slips, the burden to prove service shifts

back on the respondent.

4.8. Mr. Raval also relied on a decision in the case

of A Rama Rao and others v. Raghu Nath Patnaik

and others reported in 2007(9) SCC, 521. He relied on

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para 9 thereof to submit that unless the postman is

examined, the burden of refusal cannot be discharged.

5. Ms. Lilu Bhaya, learned counsel for the respondent -

Electricity Company would submit that the orders are

just and proper. She would further submit that the final

bills were duly discharged by the respondents by RPAD

and received by the petitioners on 9.1.2017. The

statement of the petitioners on oath that the bills have not

been received is incorrect. In fact, their own

representation dated 16.1.2007 indicates the fact that they

made such a representation on 16.1.2007 within a week

thereafter and have admitted of having received the final

assessment bill in their representation, the contention of

the petitioners of they having not received the bills is

misconceived. It is clearly an after thought. Even in para

3.14 of the petition, they have admitted that against the

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final bill, a representation was made.

5.1. Inviting the Court's attention of Sections 126

and 127 of the Electricity Act, Ms. Bhaya would submit

that what is required was communication of final

assessment which was evidently communicated as is

expressly stated in the final order dated 30.12.2016

annexed to the petitions. What was communicated was a

final assessment of the amount to be paid based on a

provisional assessment and, therefore, the argument of

learned counsel for the petitioners that reasoned order

was not communicated is not just and proper.

5.2. Ms. Bhaya would submit that in light of the

decision of this Court in the case of Keshavlal Fulabhai

Vyas v. Deputy Engineer (O&M) in SCA

No.20295/2021 dated 4.1.2023, the Limitation Act and

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the power to condone delay does not appear in the

scheme of section 127 of the Electricity Act.

6. Having considered the submissions of the learned

advocates for the respective parties, the question that

needs to be considered is whether (1) the order / bill

dated 30.12.2016 was communicated to the

petitioners and, therefore, whether the order rejecting

the application / appeal on the ground of it being

barred by delay is just and proper. (2) whether it was

open for the authorities to condone the delay in filing

the appeal on the basis of the communication of the

order through RTI in the year 2019. (3) whether a

presumption can be drawn under section 27 of the

General Clauses Act, 1897 of the order having been

served and, therefore, the time for filing an appeal to

have run from the date of 30.12.2016.

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7. The first two questions are inter related. It is the case

of the petitioners that pursuant to the inspections, a

final bill was forwarded on 30.12.2016 and no order

was communicated nor was a hearing held though

stated on 24.12.2016. On this count, the application

dated 16.1.2017 made by the petitioners to the

competent authorities under the Act needs

consideration. It is expressly admitted in the

representation so made on 6.1.2017 that the

petitioners were aware of a final bill of assessment

issued on 30.12.2016. The fact that a representation

was made on 16.1.2017 speaks of the conduct of the

petitioners and there cannot be any other conclusion

but of the petitioners being in the knowledge of the

order / bill.

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8. As far as the reliance placed by the learned counsel

for the petitioners on the judgments of this Court in

the case of Chandrakant Shankerlal Shah (Supra)

and Neha Enterprise (Supra), both cases were

under the Gujarat Co-Op. Societies Act, 1961 and the

GST Act respectively and the question of law that

was decided was that an order without reasons would

tantamount to violation of principles of natural

justice. The question whether in exercise of powers

u/s.126 of the Electricity Act does the authority

require to pass a reasoned order. Reading of Section

126 indicates that on an inspection of any place or

premises, if the assessing officer comes to the

conclusion that the 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. The order of

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provisional assessment shall be served upon the

person. The petitioners herein have not disputed of

the non service of the provisional assessment orders.

In other words, the exercise of provisional

assessment after carrying out the inspection in their

presence has been made.

9. On the basis of provisional assessment on service of

such an order, the person is entitled to file objections

and after affording a reasonable opportunity of

hearing, a final order of assessment has to be passed

within thirty days from the date of service of the

order of provisional assessment.

10. In the facts on hand, this is not the case of the

petitioners except by demonstrating that the earlier

notices of 9.8.2016 and 10.10.2016 were served after

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the date of hearing. From the admission of the

petitioners themselves and their conduct of having

made a representation on 16.1.2017 itself apparently

raises a presumption from their conduct that they

were aware of the order of assessment. Even though

the order of assessment is an order, it is only a

mathematical assessment of the bill and no reasons

need be assigned akin to judicial / quasi judicial

orders. Therefore, on the conduct as well as the

nature of assessment it cannot be said that the order

dated 30.12.2016 and the orders of the appellate

authority dated 30.7.2019 refusing the condone delay

are bad. It is difficult to believe the stand of the

petitioners that they received the orders in the year

2019 on making an application under the RTI Act.

Indolence on their conduct is writ large.

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11. Even otherwise as held by this Court in the case of

Keshavlal Fulabhai Vyas (Supra) there is no power

for the authorities to condone the delay under the

provisions of Section 127 of the Act.

"2. Taking into consideration the judgment of the Calcutta High Court in case of Sudipta Koley v. Smt. M Bhowmick and Anr. passed in WP No.84 of 2019 passed by the Division Bench on the question of whether Section 127 of the Indian Electricity Act provides for condonation of delay, the Division Bench held as under:

"35. Finally, adverting to section 127, we find that an appeal has to be filed within 30 (thirty) days. Neither does section 127 enlarge the period of limitation, as in section 125, nor does it confer power on the appellate authority, in similar vein as in section 111, to condone the delay in preferring an appeal (irrespective of the length of delay but subject of course to satisfaction that the appellant was prevented by sufficient cause from preferring the appeal earlier). The concept of condonation of delay is completely absent insofar as section 127 is concerned.

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36. Section 181(1) of the 2003 Act confers power on the State Commissions to frame regulations, not inconsistent with the provisions of the 2003 Act and the rules, to carry out the provisions of such Act subject also to the condition of a prior notification. Sub-section (2) of section 181 lists the matters in respect whereof regulations could be made by the State Commissions. Clause (zo) permits regulations to be brought into existence in respect of the form of preferring the appeal, the manner in which such form shall be verified and the fee for preferring the appeal under subsection (1) of section 127.

37. We have been shown the West Bengal Electricity Regulatory Commission (Conduct of Business) Regulations, 2013. Paragraphs 3.1.1 and 3.1.2 under Chapter III of such Regulations refers to matters as in clause (zo) of section 181(2). The Regulations also do not speak of power being conferred on an appellate authority exercising jurisdiction under section 127 to condone the delay in preferring an appeal, assuming that the State Commission has the power to so confer.

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38. Chhatisgarh State Electricity Board (Supra) is an authority for the proposition that the 2003 Act is a self- contained comprehensive legislation. Having read the provisions of the 2003 Act, to the extent relevant, and discussed the same in some detail, we are clear in our mind about the legislative intent that

(i) section 5 of the 1963 Act in terms does not apply to an appeal under section 111 of the 2003 Act, although the principles underlying section 5 are applicable to such appeal;

(ii) section 5 in terms does not have any applicability in respect of an appeal under section 125 of the 2003 Act, although the principles of section 5 could apply in an appropriate case where an appeal thereunder is preferred between 61 (sixty-one) and 120 (one hundred twenty) days of communication of the decision or order to the appellant and he seeks condonation of delay showing sufficient cause;

(iii) neither the terms of nor the principles underlying section 5 have any application in respect of

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an appeal under section 127thereof. We also hasten to add that the fact of the 2003 Act not expressly excluding the provisions of the 1963 Act is of no relevance.

If in the same Act, i.e. the 2003 Act, the legislature has consciously and expressly made provision for application of section 5 principles (sections 111 and 125) and such a provision is not made for an appeal under section 127, it necessarily follows that the legislature did not intend to give such benefit in respect of an appeal under section 127. We hold so on the basis of the dicta of the Supreme Court decision reported in (2004) 4 SCC 252 [Gopal Sardar v. Karuna Sardar].

39. In view of such discussion, we are unable to hold that a time-barred appeal under section 127 of the 2003 Act may be considered on merit by the appellate authority upon condonation of delay. The appellate authority has not been empowered to condone delay, as is the case of an appeal under section 111.

40. The off-shoot of the aforesaid conclusion is that the decisions of learned Single Judges of this Court in

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Omevati Devi Agarwal (supra) and Shree Gopal Engineering Works Limited (supra) do not lay down good law. We concur with the opinions expressed by coordinate Benches of this Court in Kalavanti Doshi Trust (supra) and Pranab Kumar Sarkar (supra) that delay in preferring an appeal under section 127 of the 2003 Act cannot be condoned by the appellate authority since it is not empowered to do so. We, however, wish to deal with a particular observation in Kalavanti Doshi Trust (supra) before concluding our judgment.

41. We now answer the questions formulated by the learned Judge in chronological order:

Answer to question 1: The language of the particular section has to be seen in juxtaposition to the language in which the other sections are couched. The language of section 125 permits condonation of delay beyond 60 (sixty) days but limited to 120 (one hundred twenty) days' delay, whereas section 127 does not permit condonation of delay at all.

The proviso to section 125 cannot be read in a manner so as to clothe

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an appellate authority under section 127 to condone the delay. The result arising out of preferring an appeal under section 125 beyond 120 (one hundred twenty) days and under section 127 beyond 30 (thirty) days would be similar, i.e., the delay cannot be condoned.

Answer to question 2: It is true that Chhatisgarh State Electricity Board (supra) arose out of an appeal under section 125 whereas Kalavanti Doshi Trust (supra) involved interpretation of section 127. The factual dissimilarities notwithstanding, there would be no change in the result in view of our answer to the preceding question.

Answer to question 3: In Mukri Gopalan (supra), the Supreme Court held that the appellate authority under section 18 of the Kerala Buildings (Lease and Rent Control) Act, 1965 was not a persona designate but it was functioning as a court and hence section 5 was automatically applicable. Collector, Land Acquisition, Anantnag (supra) was a civil appeal arising out of a

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judgment and order passed by the relevant high court, to which section 5 of the 1963 Act did apply. The appellate authority under section 127 not being a 'court', the referred decisions cannot be called in aid in the context of section 127. That apart, Mukri Gopalan (supra) has been held not to lay down good law by the Supreme Court in its decision reported in (2015) 7 SCC 58 [M.P. Steel Corporation v.

Commissioner of Central Excise] and then again in Ganesan (supra).

Answer to question 4: Popular Construction (supra) involved interpretation of section 34 of the Arbitration and Conciliation Act, 1996. The provision prescribing the period of limitation resembles the provision in section 125.

Popular Construction (supra) and Chhatisgarh State Electricity Board (supra) have read pari materia provisions in sync with each other. However, the law that applies to section 125 per se is not applicable to section

127. Popular Construction (supra), therefore, has no application here.

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Answer to question 5: The provisions of the 1963 Act need not have been expressly excluded by the legislature in its application to the 2003 Act, for the reasons discussed above. The conclusion in paragraph 38 provides a complete answer to this question and hence we refrain from repeating the same.

Answer to question 6: Although section 17 of the SARFAESI Act, 2002 refers to an appeal, the learned Judge is right in observing that the proceeding thereunder is to be treated as a suit, as held by the Supreme Court in its decision reported in (2004) 4 SCC 311 [Mardia Chemicals & ors. v.

Union of India & ors.]. However, a proceeding under section 17 of the SARFAESI Act, 2002 being a suit, it is not akin to a proceeding under section 127 of the 2003 Act which is an appeal conferring a statutory right to challenge an order of assessment made under section 126.

42. Before parting, we wish to deal with the observation in Kalavanti Doshi Trust (supra) that a writ court

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should not by invoking jurisdiction under Article 226 of the Constitution of India revive a barred remedy, is the settled law. The observation in our view narrows the amplitude of Article 226 of the Constitution of India. Mr. Sanyal was called upon to address us under what circumstances law had been previously settled that writ jurisdiction cannot be exercised to revive a barred remedy. We received no answer.

43. We need to clarify the position. Take the case of a consumer who, despite the remedy of an appeal under section 127 being available, invokes the writ jurisdiction by challenging an order of assessment passed under section 126 of the 2003 Act within 20 (twenty) days of such order and prima facie satisfies the Court that any of the conditions for entertaining a writ petition despite such existence of an alternative remedy is present whereupon the same is admitted with interim relief being granted; however, at the stage of final hearing [say after 6 (six) months], the learned Judge is persuaded by the company not to hear the writ petition on merits in view of availability of the alternative appellate remedy which leads to dismissal of the same on this ground only. By such time, the limitation to approach the

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appellate authority under section 127 has set in and by reason of non-

attraction of principles underlying section 5 of the 1963 Act, the remedy of appeal has become barred. In such a situation, can the writ court not grant leave to the consumer to avail the appellate remedy and direct the appellate authority to hear the appeal on merits? The answer, to our mind, should be in the affirmative or else for entertainment of the writ petition by the court and for its subsequent dismissal later, on the above ground, the consumer would be non-suited.

44. We are conscious that the delay in preferring an appeal under section 127 within 30 (thirty) days could result in the person, against whom an adverse order under section 126 has been passed, being left without the statutory appellate remedy; however, we are also of the opinion that such a person would not find himself totally without any remedy. A final order of assessment under section 126 could be a subject of judicial review, if any of the conditions for entertainment of a writ petition (existence of an efficacious alternative remedy notwithstanding) is satisfied. If indeed the writ petitioner satisfies the writ court that for genuine reasons he could not avail the remedy of appeal

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and seeks a writ of certiorari to have the impugned order quashed, the writ court may in its discretion entertain the writ petition and judicially review the decision making process drawing inspiration from the Constitution Bench decision of the Supreme Court reported in AIR 1961 SC 1506 [A.V.

                   Venkateswaran          v.      Ramchand
                   Sobhraj      Wadhwani]        and     other

Constitution Bench decisions referred to therein. However, if the writ court is approached long after the final order of assessment under section 126 is made and proper explanation for the belated approach is either not shown or the court is satisfied that the petitioner disabled himself to pursue the appellate remedy for his own fault, the court may not entertain the writ petition at all.

45. The reference is answered accordingly. Let the records of the writ petition be placed before the learned Judge having determination to hear it, immediately.

3. In light of the aforesaid position of law, no fault can be found in the impugned communication.

4. The petition is accordingly dismissed."

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12. The other aspect that now needs to be considered is

the conduct of the petitioners and the presumption

under section 27 of the General Clauses Act.

13. Ms. Lilu Bhaya, learned counsel for respondent has

placed on record a photo copy of the journal of the

Registration Branch of the Department of Posts

which indicates that the petitioners were dispatched

the final assessment bill / order dated 30.12.2016 on

6.1.2017. The contention of the petitioners that the

assertion of service being denied would shift back on

the respondents is a submission which is recorded for

rejection. Section 27 of the General Clauses Act,

1897 prescribes that any document which is to be

served by force the service shall be deemed to be

effected by properly addressing, pre-paying and

posting by registered post a letter containing the

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document, unless the contrary is proved. In the facts

of this case, apparent from the communication dated

16.1.2017, the presumption of service in fact is

admitted.

14. From the record it is evident that the envelopes have

been sent by registered post containing the address of

the petitioners. There is no refusal and it is not

necessary always to produce the postman who tried

to affect service as held by the Supreme Court in the

case of Puwada Venketeswara Rao v. Chidemana

Venkata Ramana reported in AIR 1976 SC, 869.

In light of this decision and the position of law

therefore even otherwise it is not open for the

petitioners to contend that there was no service of the

orders or the notices and that therefore there is

violation of principles of natural justice. Paragraph

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Nos.9 and 10 of the judgment of the Supreme Court

read as under:

"9. In Nirmalabala Debi v. Provat Kumar Basa(1), it was held by the Calcutta High Court, that a letter sent by registered post, with the endorsement "refused" on the cover, could be presumed to have been duly served upon the addressee without examining the postman who had tried to effect service. What was held there was that the mere fact that the latter had come back with the endorsement "refused" could not raise a presumption of failure to serve. On the other hand, the presumption under section 114 of the Evidence Act would be that, in the ordinary course of business, it was received by the addressee and actually refused by him. This is also a correct statement of the law.

10. The two decisions are reconcilable.

The Calcutta High Court applied a rebuttable presumption which had not been repelled by any evidence. In the Bombay case, the presumption had been held to have been rebutted by the evidence of the defendant on oath so that it meant that the plaintiff could not succeed without further evidence. The Andhra Pradesh High Court had applied the ratio disdained of the Bombay case because the

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defendant-appellant before us had deposed that he had not received the notice. It may be that, on a closer examination of evidence on record, the Court could have reached the conclusion that the defendant had full knowledge of the notice and had actually refused it knowingly. It is not always necessary, in such cases, to produce the postman who tried to effect service. The denial of service by a party may be found to be incorrect from its own admissions or conduct. We do not think it necessary to go into this question any further as we agree with the High Court on the first point argued before us."

15. For all the aforesaid reasons, all these petitions are

dismissed with no order as to costs. Rule is

discharged.

(BIREN VAISHNAV, J) VATSAL