(An Application Under Articles ... vs M/S Maa Kirandevi Agro Foods (P) ...
2021 Latest Caselaw 11083 Ori

          IN THE HIGH COURT OF ORISSA AT CUTTACK
                  WRIT PETITION (CIVIL) No.12128 of 2016
   (An application under Articles 226 and 227 of the Constitution of India)
            The Executive Engineer (Elect.),
            NESCO Utility, Rairangpur Electrical Division,
            Rairangpur, Mayurbhanj                   .......           Petitioner
                                            -Versus-
            M/s Maa Kirandevi Agro Foods (P) Ltd.
            and another                        .......           Opposite Parties
       Advocates appeared in this case:-
              For Petitioner           : Mr. Suresh Chandra Dash

              For Opposite Parties : Mr. Lalit Kumar Maharana
                                                  (For O.P. No.1)


                     CORAM: MR JUSTICE K.R. MOHAPATRA
                                 JUDGMENT

th 29 October, 2021

K.R.MOHAPATRA, J

1. The Petitioner, namely, Executive Engineer (Electrical), NESCO Utility, Rairangpur Electrical Division (at present TPNODL), has filed this writ petition assailing the order dated 1st March, 2016 (Annexure-7) passed by the Appellate Authority, namely, Superintending Engineer- cum-Electrical Inspector, Keonjhar (Opposite Party No.2) in Appeal Case No.AAC-06 of 2015 filed under Section 127 of the Electricity Act, 2003 (for short, 'the Act').

2. The genesis of the writ petition emanates from a proceeding under Section 126 of the Act initiated against M/s. Maa Kiranevi Agro Foods Private Limited (a proprietary unit)-Opposite Party No.1.

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3. The averments made in the writ petition reveal that the Opposite Party No.1-Unit (for short, 'the Consumer') has a power supply of 555 KVA. The Proprietor of the Consumer has another Unit, namely, M/s Preeti Pragnya Stone Crusher with a contract demand of 126 KVA. Both the Units situate adjacent to each other. There was disconnection of power supply to the Crusher Unit at the relevant time. While conducting physical verification of the electrical installation to the Consumer Unit, namely, M/s. Maa Kirandevi Agro Foods Private Limited by the Vigilance squad of the NESCO Utility (for short, 'the Licensee') on 21st March, 2015, it was detected that the Consumer through underground cable had extended power supply to his Crusher Unit unauthorizedly through a three phase four wire cable violating Regulations 72 and 106 of the Odisha Electricity Regulatory Commission Distribution (Conditions of Supply) Code, 2004 (for short, 'the Code'). Consequentially, Vigilance squad snapped the power supply to the Crusher Unit. Upon verification, a report was submitted by the Vigilance squad on 21st September, 2015 vide Annexure-1. On the basis of said verification report, the Petitioner being the Assessing Officer of the Licensee, proceeded under Section 126 of the Act and provisionally assessed an amount of Rs.7,38,110/- on the Consumer, which was communicated vide his letter No.1475 dated 15th October, 2015 (Annexure-2 series) asking the Consumer to file objection within a period of seven days. Responding to the same, the Consumer filed its objection on 26th October, 2015 and also filed W.P.(C) No.19642 of 2015 against the provisional assessment made by the Petitioner as well as disconnection of power supply under Section 135(1A) of the Act. The said writ petition was disposed of vide order dated 4th November, 2015 with the following direction:-

"Considering the contentions raised by learned counsel for the petitioner and after going through the records, it

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appears that the provisional assessment is still pending and the Petitioner has paid substantial amount pursuant to the notice of disconnection in Annexure-2 dated 16.09.2015. In spite of that power supply has been disconnected to his premises. Therefore, liberty is granted to the petitioner to move the authority, who is in seisin over the matter by bringing notice that pursuant to disconnection notice issued under Annexure-2, he has deposited a substantial amount. By filing properly constituted application, if the petitioner brings this fact to the notice of the authority by way of an application, the authority shall do well to consider the same and pass appropriate order as expeditiously as possible.

With the aforesaid observation and direction, the writ petition is disposed of."

4. Pursuant to the aforesaid order, the Consumer filed fresh objection to the provisional assessment before the Assessing Officer on 19th November, 2015. Considering his objection, the Assessing Officer passed the final order of assessment of Rs.7,38,110/- to be paid by the Consumer under Section 126(3) of the Act and communicated the same vide his letter No.1639 dated 20th November, 2015 (Annexure-4) to the Consumer. It is contended in the writ petition that instead of availing the statutory remedy under Section 127 of the Act, the Consumer again moved this Court in W.P.(C) No.22281 of 2015 assailing the spot verification report as well as the final assessment order. The writ petition was disposed of on 22nd December, 2015 with the following direction:-

"Considering the submissions of learned counsel for the parties and on perusing materials available on record, it appears that vide Annexure-11, the petitioner has only made an application on 19.11.2015 and he has never asked for restoration of power supply to his premises in compliance to the order dated 04.11.2015 in W.P.(C) No.19642 (sic) of 2015, rather the said application is in the form of objection to the proposed final assessment order made under Section 126 of the Indian Electricity Act. On consideration of the same, the final assessment order has been passed by the authority on 20.11.2025, copy of which is served on the Petitioner on the very same day. Therefore, this Court finds no illegality or irregularity to have been committed by the opposite parties in violating the orders of this Court. Since the final order of

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assessment has been passed, which is an appealable one, if the petitioner so advised, may take recourse to the provisions of law as per the Indian Electricity Act. So far as restoration of power supply to its premises is concerned, the petitioner may move an appropriate application before the appropriate authority, who shall consider the same and pass appropriate order in accordance with law.

With the aforesaid observation, the Writ Petition stands disposed of.

Personal appearance of Sri Manas Ranjan Mohanty, Executive Engineer, and Sri Chitta Ranjan Jena, Asst. Manager, Commerce of Rairangpur Electrical Division of NESCO is dispensed with."

Thereafter, the Consumer preferred appeal on 16th January, 2016 before the Appellate Authority under Section 127 of the Act. The said appeal was registered as AAC-06 of 2015 after deposit of the statutory amount of Rs.3,69,055/- with the Licensee on 5th January, 2016.

5. Though the Petitioner filed its show cause raising the issue of maintainability of the appeal both on the ground of limitation as well as on merit, the Appellate Authority without considering the objection filed by the Petitioner, allowed the appeal vide order dated 1st March, 2016 under Annexure-7 and directed the Petitioner for withdrawal of final assessment order dated 20th November, 2015 including DPS amount. It also directed to refund 50% statutory amount along with reconnection charge of Rs.3,000/- deposited by the Consumer with further direction to continue to provide power supply to the Consumer. Being aggrieved, this writ petition has been filed.

6. It is contended by Mr. Dash, learned counsel for the Petitioner that memo of appeal under Annexure-5 was filed beyond the statutory period of 30 days from the date of the final order of assessment. The appeal memo did not accompany a petition for condonation of delay. Thus, the memo of appeal ought to have been rejected at the outset. The finding of

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the Appellate Authority to the effect that the final assessment is illegal as it is made beyond the 30 days of provisional assessment, is also not sustainable. It is submitted that the provisional assessment was made and communicated on 15th October, 2015 and thereafter the Consumer moved this Court against the provisional assessment in W.P.(C) No.19642 of 2015, which was disposed of on 4th November, 2015 granting liberty to the Consumer to file objection. The Consumer filed its objection on 19th November, 2015 and on the very next day, i.e., on 20th November, 2015, the final assessment order was communicated to the Consumer. As such, the impugned appellate order is an outcome of total non-application of mind. It is further submitted that the Proprietor of the Consumer Unit namely, Mr. Babish Prusty has another Unit in the name and style Preeti Pragnya Stone Crusher. Notice was served on the Proprietor in the address of the Consumer Unit and was received by him without any objection at any point of time. Thus, the finding that verification was carried out and served in the premises of M/s Preeti Pragnya Stone Crusher, whereas the provisional as well as final assessment order was made in respect of M/s Kirandevi Agro Foods Private Limited, is not correct and sustainable.

6.1 It is further contended by Mr. Dash, learned counsel for the Petitioner that the Appellate Authority has no locus standi to complain against the inventory or the result of inspection made under Annexure-1, which is the basis of initiation of proceeding under Section 126 of the Act. The competent authority is the 'designated authority' of the Licensee, who is authorized to enquire into the matter of the complaint against correctness of the enquiry or the result of inspection. Since no complaint was ever made, as has been enunciated under Regulation 52 of the Code, 2004, the Appellate Authority could not have made any

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observation with regard to correctness of the verification report under Annexure-1. Mr. Dash, learned counsel also contended that the final assessment order was passed on consent, as the Consumer accepting the same had deposited a substantial amount before the Licensee and had prayed for restoration of power supply to its Unit. He therefore, prayed for setting aside the appeal order under Annexure-7 and to uphold the final assessment order under Annexure-4.

7. Mr. Maharana, learned counsel for the Consumer-Opposite Party No.1 referring to its counter affidavit submitted that the issue with regard to limitation raised by the Petitioner is not sustainable. It is his submission that if on a plain reading of the appeal memo the ground of condonation of delay in filing the appeal is made out, the Appellate Authority has jurisdiction to consider the same and condone the delay. In support of his submission, he relied upon a decision of this Court in the case of Assessing Officer-cum-Executive Engineer (Electrical), WESCO, Rajgangpur Vs. Appellate Authority-cum- Electrical Inspector and another, reported in 2017 (Supp.II) OLR 243 and contended that if the appeal memo contains sufficient ground for condonation of delay in filing the appeal under Section 127 of the Act, the same can be entertained by the Appellate Authority even if the appeal memo is not accompanied with a petition for condonation of delay. He also relied upon the order of the Hon'ble Supreme Court in Civil Appeal No.9198 of 2018 (Sesha Nath Singh and another Vs. Baidyabati Sheoraphuli Cooperative Bank Ltd. and another in Civil Appeal No. 9198 of 2018), wherein it has been held that a formal application for condonation of delay under Section 5 of the Limitation Act, 1963 is not mandatory. Delay can be condoned if sufficient cause is shown.

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7.1 It is further contended that Assessing Officer must be a member of the Inspection Team at the time of detecting pilferage or the unauthorized use of electricity, so that he can pass an order of assessment not only on the basis of the papers placed before him, but also after actually visiting the site at the time of detection of the illegality. In the instant case, admittedly the Petitioner, who is the Assessing Officer, did not accompany the Inspection Team which prepared the report, on the basis of which the assessment proceeding was initiated. In support of his case, he relied upon a decision in the case of M/s Global Feeds Feedback Energy Distribution Company Private Limited and another Vs. Commissioner-cum-Secretary, Government of Odisha, Energy Department and others, reported in 2019 (II) OLR 127, wherein this Court has held as under:-

"9-(b). In the Narayan Chandra Kundu case (supra) of Hon'ble Calcutta High Court, the virus of notification was not challenged and question was as to whether the prosecutor U/s. 135 of the E. Act can be the assessing officer U/s. 126 of the Act. While analyzing the same it is observed that "Legislature has intended that the assessing officer must be a person who was actually a member of the inspection team at the time of detecting the pilferage or the unauthorized use of electricity so that he can pass the order of assessment not on the basis of papers placed before him but after actually visiting the sight at the time of detection of the illegality."

In view of Hon'ble Apex Court's observation that Assessing Officer can make inspection and the Hon'ble Calcutta High Court's view that the Assessing Officer should be a member of the inspection team, the view taken by learned Single Judge in the impugned judgment to the effect that inspection and assessment can be done by the same person or even by a different person does not run contrary."

(emphasis supplied)

7.2 He also placed reliance on the order passed by Hon'ble Supreme Court in the case of the Executive Engineer and another Vs. M/s Sri

W.P.(C) No. 12128 of 2016 // 8 //

Seetaram Rice Mill, reported in (2012) 2 SCC 108, wherein in paragraph-

23, it has been held as follows:-

"23. Having dealt with the principle of interpretation of these provisions and the distinction between Sections 126 and 135 of the 2003 Act, we shall now discuss the ambit and scope of Section 126. The provisions of Section 126 contemplate the following steps to be taken :

(i) An assessing officer is to conduct inspection of a place or premises and the equipments, gadgets, machines, devices found connected or used in such place.

(ii) The formation of a conclusion that such person has indulged in unauthorized use of electricity.

(iii) The assessing officer to provisionally assess, to the best of his judgment, the electricity charges payable by such person.

(iv) The order of provisional assessment to be served upon the person concerned in the manner prescribed, giving -

him an opportunity to file objections, if any, against the provisional assessment.

(v) The assessing officer has to afford a reasonable opportunity of being heard to such person and pass a final order of assessment within 30 days from the date of service of such order of provisional assessment.

(vi) The person, upon whom the provisional order of assessment is served, is at liberty to pay the said amount within seven days of the receipt of such order and where he files such objections, final order of assessment shall be passed, against which such person has a right of appeal under Section 127 of the 2003 Act within the prescribed period of limitation."

7.3 He also pressed into service the case law in Narayan Chandra Kundu Vs. State of West Bengal and others, reported in AIR 2007 Cal 298 and Hasi Mazumdar and another Vs. the West Bengal State Electricity Board and others, reported in AIR 2006 Cal 59. He further objecting to the submission of Mr. Dash, learned counsel for the Petitioner to the effect that assessment order was passed on consent

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submitted that merely because the Consumer-Opposite Party No.1 has made part payment of the final assessment amount, it cannot be construed to be a tacit consent to the final order of assessment. In support of his case, he relied upon a decision in the case of Patna High Court in the case of Bihar State Electricity Board through its Chairman and others Vs. State of Bihar through Energy Secretary, Energy Department, Government of Bihar and others, reported in 2018 SCC Online Pat 5373, in which it is held that mere payment of penalty/ fee/arrear amount cannot lead to an inference that the provisional assessment had been consented to thereby barring compounding fee was merely with a view to avoid criminal trial and/or reconnection of electricity supply. The order of final assessment clearly discloses that it was a contested one.

8. When the assessment took place on the basis of a report of spot verification which was not in conformity with Section 126 of the Act, the authenticity and legality of the same can be challenged at any stage even at the appellate stage and appellate authority has jurisdiction to look into the legality of the verification report while adjudicating the appeal. In view of the above, he prayed for dismissal of the writ petition.

9. The first issue raised by learned counsel for the Petitioner is that the appeal under Section 127 of the Act was incompetent as the memorandum of appeal was filed beyond the statutory period without accompanying a petition for condonation of delay. Thus, it is to be considered as to whether the Appellate Authority has the power to entertain an appeal under Section 127 of the Act after the statutory period, when the memo of appeal did not accompany a petition for condonation of delay. Admittedly, the final assessment order was passed on 20th November, 2015 and the appeal was presented before the Appellate Authority on 6th January, 2016 along with statutory deposit (50% of the

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final assessment along with fees). Thus, it is clear that the appeal was presented beyond the statutory period. Further, Section 127 of the Act does not make any provision for condonation of delay. In the case of Assessing Officer-cum-Executive Engineer (Electrical), WESCO, Rajangpur (supra), this Court discussing the scope and ambit of Sections 126 and 127 of the Act as well as different provisions of the Limitation Act, held as follows:-

"14. From the above, it is evident that the apex Court has also taken note of the judgment of the apex Court in State of Goa v. Western Builders, JT 2001 (8) SC 271 and also in Consolidated Engineering Enterprises v. Principal Secretary, Irrigation Department, JT 2008 (6) SC 22 and has come to a conclusion that the policy of Section 14 is to afford protection to a litigant against the bar of limitation when he institutes a proceeding which, by reason of some technical defect, cannot be decided on merits and is dismissed. Therefore, while considering the provisions of Section 14 of the Limitation Act, proper approach will have to be adopted and the provisions will have to be interpreted so as to advance the cause of justice rather than abort the proceedings. It will be well to bear in mind that an element of mistake is inherent in the invocation of Section 14. The section is intended to provide relief against the bar of limitation in cases of mistaken remedy or selection of a wrong forum. On reading of Section 14 of the Act it becomes clear that the legislature has enacted the said section to exempt a certain period covered by a bona fide litigious activity. Needless to say that in the present context Section 5 of the Limitation Act may not have any application, but while applying such provisions condonation of delay has to be made on showing the "sufficient case". But the said provision is not applicable to the case of this nature, as because due to pendency of the writ application & writ appeal before this Court the petitioner approached the appellate authority at a belated stage. Reason for approaching the appellate authority is because of the pendency of the writ application & writ appeal before this Court. Therefore, the petitioner is entitled to avail the benefit of Section 14 of the Limitation Act to exempt the period covered by bona fide litigious activity."

From the above, it is evident that the Hon'ble Supreme Court in the case of State of Goa Vs. Western Builders, reported in JT 2001 (8) SC 271, made it clear that the policy of Section 14 is to afford protection to a

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litigant against the bar of limitation when he institutes a proceeding which, by reason of some technical defect, cannot be decided on merit.

9. In the light of the observation made in the aforesaid case law the memorandum of appeal (Annexure-5) filed by Opposite Party No.1- Consumer is scrutinized, which reveals that in paragraph-5 of the appeal memo, the Opposite Party No.1 had categorically stated that against the final assessment order it moved this Court in W.P.(C) No.22281 of 2015. The said writ petition was disposed of on 22nd December, 2015 upholding action of the Assessing Officer and granting liberty to the Opposite Party No.1-Consumer to take recourse to the provisions of the Act assailing final assessment order. The appeal was filed within 30 days from the date of disposal of the writ petition. Thus, Section 14 of the Limitation Act is squarely applicable to the case of Opposite Party No.1-Consumer for consideration of condonation of delay in filing the appeal. The principles of Sections 5 and 14 of the Limitation Act can be invoked to grant relief to an applicant by purposively construing 'sufficient cause' in a case, where applicability of the aforesaid provisions are not expressly or by necessary implication barred. Further, Section 5 does not contemplate any application. In absence of a formal application, the provision can also be invoked, if the applicant has explained the delay providing sufficient cause. As discussed above, the writ petition in W.P.(C) No.22281 of 2015 was filed on 11th December, 20215 against final assessment order dated 12th November, 2015 and disposed of on 22nd December, 2015. The appeal was filed on 6th January, 2016. Thus, the reason for not filing the appeal within the statutory period has been well-explained in the memorandum of appeal. As such, this Court finds that the Appellate Authority has committed no error in deciding the appeal on merit.

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10. It is the admitted case of the parties that the Petitioner, who was the Assessing Officer, did not accompany the vigilance squad which inspected the Consumer's premises. Law is well-settled in the case of M/s Sri Seetaram Rice Mill (supra) that the Assessing Officer must be a member of the inspection team at the time of detecting pilferage or the unauthorized use of electricity, so that he can pass an order of assessment not merely on the basis of the papers placed before him, but by visiting the site of alleged pilferage or the unauthorised use of the electricity. It has been held in the case of Narayan Chandra Kundu Vs. State of West Bengal and others, reported in AIR 2007 Cal 298 that "....After going through the provisions contained in Sections 126 and 135 of the Act we find that the legislature has intended that the Assessing Officer must be a person who was actually a member of the inspection team at the time of detecting the pilferage or the unauthorised use of the electricity so that he can pass the order of assessment not on the basis of papers placed before him but after actually visiting the site at the time of detection of the illegality....." In the case of Sri Seetaram Rice Mill (supra), it is held in paragraph-23 that Section 126 of the Act contemplates the steps to be taken, which include 'the Assessing Officer is to conduct inspection of the place or premises and the equipments, gadgets, machines, devices found connected or used in such place.' (emphasis supplied). Relying upon the said observation, this Court in M/s Global Feeds Feedback Energy Distribution Company Private Limited (supra) categorically held that the Assessing Officer should be a member of the inspection team. The Petitioner, who was the Assessing Officer being not a member in the inspection team, the verification report on the basis of which the provisional assessment was made, is vitiated. In the case of State of Punjab Vs. Davider Pal Singh Bhulla and others etc., reported in (2011) 14 SC 770 it is held as follows:-

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"72. It is a settled legal proposition that if initial action is not in consonance with law, all subsequent and consequential proceedings would fall through for the reason that illegality strikes at the root of the order. In such a fact-situation, the legal maxim "sublato fundamento cadit opus" meaning thereby that foundation being removed, structure/work falls, comes into play and applies on all scores in the present case."

In the instant case, the inspection report being vitiated for the reasons stated above, the provisional assessment order as well as the final assessment order passed on the basis of the said report is not sustainable.

11. Section 126(3) of the Act provides that the Assessing Officer after affording a reasonable opportunity to the assessee, should pass final order of assessment within 30 days from the date of service of such order of provisional assessment of electricity charges payable by such person. In the instant case, admittedly, the provisional assessment order was served on the Consumer on 15th October, 2015 and the final assessment order was passed and communicated on 20th November, 2015, which is beyond the statutory period. Although no explanation has been offered for such delay, learned counsel for the Petitioner in course of argument contended that it is due to delay on the part of the assessee in filing the objection to the provisional assessment order, delay was caused in passing the final assessment order. It is submitted by Mr. Dash, learned counsel for the Petitioner that assailing the provisional assessment order and disconnection of power supply the Consumer had preferred W.P.(C) No. 19642 of 2015, which was disposed of on 4th November, 2015. The Consumer-Opposite Party No.1 in reply to the provisional assessment submitted his objection on 26th October, 2015 and again on 19th November, 2015. The matter was adjourned from time to time on his request. However, after giving opportunity of hearing to the Consumer, the final order of assessment was passed on 20th November, 2015. Thus, the delay in passing the final assessment order is attributable to the

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Consumer and not to the Assessing Officer. Such a contention is not acceptable, inasmuch as neither there was any restraint order in W.P.(C) No.19642 of 2015 passed by this Court nor there was any impediment on the part of the Assessing Officer to pass the final assessment order within the statutory period of 30 days more particularly when the Consumer had already filed his initial reply/objection on 26th October, 2015.

12. On perusal of the materials on record, more particularly spot verification report as at Annexure-1, it appears that Inspection Team had visited the premises of M/s Preeti Pragnya Stone Crusher and not the premises of the Consumer-Opposite Party No.1, namely, M/s Kirandevi Agro Foods Private Limited. Although it is contended by Mr. Dash, learned counsel for the Petitioner that the Proprietor of both the Units is Mr. Babish Prusty, who received the spot verification report without any objection, but it is apparent that the premises of the Consumer-Opposite Party No.1 was never visited by the inspection team. Section 126 (1) of the Act clearly stipulates that 'if on the inspection of any place or premises' as well as the equipments, gadgets, machines devices, it is found connected or used or after inspection of the records maintained by any person, the Assessing Officer comes to a conclusion that such person is indulged in unauthorized use of electricity, he shall provisionally assess the charges payable for such use. In the instant case, the premises of the Consumer-Opposite Party No.1 was never visited or inspected. It is on the basis of the spot verification report of the Crusher unit of the Proprietor of the Consumer-Opposite Party No.1, the provisional assessment was made, which is in violation of Section 126(2) of the Act.

13. In course of hearing, a feeble argument was advanced by Mr. Dash, learned Counsel for the Petitioner that since the Consumer- Opposite Party No.1 accepting the final assessment order had paid a part

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of the dues assessed, the final assessment order itself can be construed to be an order passed on consent. Relying upon Section 127(5) of the Act Mr. Dash, therefore submitted that no appeal shall lie to the Appellate Authority against final order of assessment made with consent of the parties. On perusal of the final order of assessment under Annexure-4 dated 20th November, 2015, it is crystal clear that it was contentious one. Further, it is clarified in the order under Annexure-4 that the Consumer was required to pay the finally assessed amount of Rs.7,38,110.80 within 30 days from receipt of the said order and may prefer an appeal under Section 127 of the Act within 30 days subject to production of proof of payment equal to 50% of the finally assessed amount. In view of the above, the contention raised by Mr. Dash, learned counsel for the Petitioner merits no consideration.

14. In view of the discussions made above, I find no infirmity in the impugned order under Annexure-7 passed by the Appellate Authority under Section 127 of the Act. Thus, the writ petition being devoid of any merit fails and is accordingly dismissed, but in the circumstances, there shall be no order as to costs.

(K.R. Mohapatra) Judge

Orissa High Court, Cuttack.

Dated the 29th October, 2021/S.S. Satapathy

W.P.(C) No. 12128 of 2016