Orissa High Court
Sub-Divisional Officer (Electrical) vs Magi Nahak .... Opposite Party (S) on 25 June, 2024
Author: S.K. Panigrahi
Bench: S.K. Panigrahi
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.9214 of 2015
(An application under Articles 226 and 227 of the Constitution of India)
Sub-Divisional Officer (Electrical), .... Petitioner (s)
Kabisuryanagar
-versus-
Magi Nahak .... Opposite Party (s)
Advocates appeared in this case through Hybrid Arrangement Mode:
For Petitioner (s) : Mr. A.K. Mishra, Adv.
For Opposite Party : Mr. B.K. Routray, Adv.
CORAM:
DR. JUSTICE S.K. PANIGRAHI
DATE OF HEARING: 24.04.2024
DATE OF JUDGMENT: -25.06.2024
Dr. S.K. Panigrahi, J.
1. The Petitioner, through this Writ Petition, challenges the award dated
25th September, 2014 passed by the Permanent Lok Adalat, Ganjam
("PLA") in P.L.A. Case No.175 of 2014 under Section 22(C)(1) of the
Legal Services Authorities Act on the ground that the purported order
is without jurisdiction and arbitrary.
I. FACTUAL MATRIX OF THE CASE:
2. The Opposite Party filed a complaint before the Permanent Lok Adalat
alleging that, on 01.08.2009, the Junior Engineer, Kabisuryanagar
conducted an inspection of his premises and found that domestic load
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was 2980 watts and commercial load was 340 watts and submitted the
report to S.D.O., Kabisuryanagar. Accordingly, a revision proposal was
sent to G.M. (Commerce) Southco Berhampur.
3. The premises of the Opposite Party were re-verified and load census
was found on main domestic load as 2920 watt and commercial load as
320 watt by the Junior Engineer, Kabisuryanagar and Asst. Engineer
Vigilance. The Opposite Party further alleged that he did not get any
reprieve by approaching to the said authority and again approached
the S.D.O. and deposited Rs.50/- for change of classification on
20.06.2009.
4. The Opposite Party then approached the Assistant Electrical Inspector,
Berhampur to seek his intervention into the matter. Based on the office
letter dated 02.09.2013, the S.D.O. inspected the premises of the
Opposite Party on 29.04.2014 and found that domestic load is 1795 watt
and commercial load is 320 watt. According to him, the line stood
disconnected since 25.02.2013 for non-payment of arrear dues of
Rs.2,15,797/- for the period from 1999 to February, 2013 and conversion
of his status on reclassification was never considered.
II. PETITIONER'S SUBMISSIONS:
5. Learned counsel for the Petitioner earnestly made the following
submissions in support of his contentions:
(i). The Opposite Party filed a P.L.A. Case No.175 of 2014 before the PLA
under Section 22(C) (1) of the Legal Services Authorities Act, 1987
praying to dismantle the service connection from his house premises
immediately with award of compensation and cost. It is undisputed
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that the Opposite Party does not want power supply whereas the PLA
below quite erroneously passed the award directing restoration of
power supply to his premises which is unwarranted.
(ii). It is submitted that the PLA case is not maintainable being barred by
statute. Section 22 (C)(1) of the L.S.A. Act states that ‚Any party to a
dispute may, before the dispute is brought before any court, make an
application to the Permanent Lok Adalat for the settlement of dispute". But/
the instant dispute, one Simanchala Nahak, on behalf of the Opposite
Party, had filed a case before the G.R.F., Berhampur vide GRF Case
No.44 of 2014. The same case has been disposed of on 06.06.2014. But,
the learned court below ignored such contention.
(iii). The Opposite Party admits that he has opened a cloth merchant shop in
the front portion of his house, situated at Mahamayee Bazar area of
Kabisuryanagar. As such, he has been using unauthorized power
supply for his business, converting tariff from domestic to commercial
without obtaining due permission from the licensee for such use.
(iv). The Opposite Party is liable to pay arrear dues of Rs.2,15,797/- for the
period from 1999 to February, 2013. When he did not pay anything
towards his above stated huge arrear, notice was issued under Section
56 of the Electricity Act and his supply was disconnected on 28.02.2013
affording him sufficient opportunity to pay the arrear dues. But, the
Opposite Party did not cooperate being an intentional defaulter.
(v). Subsequently, on 20.06.2013, at 1.30 P.M. raid was conducted by the
Petitioner along with J.E., Energy and Energy Police staff, Chhatrapur
directing that in spite of disconnection, the Opposite Party is availing
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power supply illegally and dishonestly by reconnecting the main
service wire from the nearest L.T. head line. The Opposite Party was
caught red-handed and the same service wire was seized on the spot.
As he was indulged in theft of electricity, the S.D.O., Kabisuryanagar
had lodged an F.I.R. before the Special Energy, P.S. Chhatrapur which
has been registered under Section 135 of the Electricity Act vide P.S.
Case No.9 dated 22.06.2013 and G.R. Case No.41/2013, pending trial in
the court of the Special Judge-cum-1st A.D.J., Berhampur.
(vi). The Opposite Party is a regular offender. In an earlier occasion he had
committed the same mischief by reconnecting the main service wire
from the L.T. pole, when his supply has been disconnected due to
default in payment of arrear dues.
(vii). The PLA has committed grave error and extreme judicial impropriety
by not granting appropriate opportunities to the Petitioner to put forth
their case with observance of the principle of natural justice and basic
tenets of the Law of Evidence. Since this matter pertains to electricity
service, hence, the matter was not prima facie maintainable before the
learned Permanent Lok Adalat and it absolutely lacks jurisdiction to
entertain the lis both under the Indian Electricity Act as well as the
Legal Services Authorities Act. The Petitioner pointed out the same
requesting the authority to decide the question of jurisdiction and
maintainability. The PLA in a most perfunctory manner not only
entertained the matter but also decided the main case in a perverse
manner.
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(viii). The PLA has failed to appreciate that it has no jurisdiction to entertain
in any manner. The complaint is a case to be considered under the
Electricity Act and its Rules and Regulations and not under the Legal
Services Authorities Act.
(ix). The PLA had assumed jurisdiction by mechanically incorporating the
elements of settlement and failure thereof. It is clear from the very
reading of the Act that only the litigation which has elements of
settlement can only be entertained by the Permanent Lok Adalat. The
order itself shows that the element of settlement in a dispute has been
mechanically introduced in the award to make the alleged litigation
amenable to adjudication by the Permanent Lok Adalat without the
Petitioner's consent.
III. SUMISSION OF OPPOSITE PARTY:
6. Per contra, learned counsel for the Opposite Party intently made the
following submissions:
(i). The Petitioner has no locus standi and rationale to file the instant Writ
Petition after an inordinate delay of more than seven months
challenging the award dated 25.09.2014 passed by the Permanent Lok
Adalat for public utility Services, (P.L.A. Case No.175/2014).
(ii). The petitioner most illegally and trampling under feet, the minimum
legality and legitimacy, managed to obtain the stay operation of the
award in PLA Case No.175 of 2014 behind the back of this Opposite
Party.
(iii). Pursuant to the award, the Petitioner is to restore power supply to the
premises of the Opposite Party, which was illegitimately and
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unlawfully disconnected on 28.02.2013 without notice. Had the power
supply been restored to the Opposite Party, the Petitioner would not
have suffered any loss and injury, rather, by the atrocious and
vindictive action of the Petitioner against this octogenarian who has
unnecessarily suffered mental agony.
(iv). The Petitioner unnecessarily has made brazen attempts to create
confusions by raising bogus points designating the same as substantial
questions of great public importance arising for consideration by this
Court.
(v). The allegation made against the Petitioner is totally irrelevant to the
issue, in as much as, the P.L.A. (PUS) Ganjam was concerned with the
disconnection of power supply on 28.02.2013, as the terminal point and
the action under Section 135 of the Electricity Act allegedly has been
initiated on 20.06.2013 i.e. about four months of illegal disconnection of
power supply. The alleged subsequent misconduct said to have been
committed by the Opposite Party warranting action under Section 135
of the Electricity Act, in no stretch of imagination, conjustify and
legalize the misconducts of the Petitioner i.e. illegal disconnection of
the power supply on 25.02.2013/28.02.2013 and deficiency of service.
(vi). The Petitioner has made baseless and false allegations against the
learned PLA (PUS), Ganjam that they have entered into the
technicalities of tampering of meter and rendering a peculiar finding
without any basis on such technical issue on which it had absolutely no
expertise although in fact there is no such dispute of meter tampering.
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Rather it is simply a case of billing dispute and change of classification
relatable to pure questions of law.
(vii). The learned PLA (PUS) Ganjam at Berhampur has been pleased to pass
the unique award and this Opposite Party is obliged to fervently
prayed before this Court to accept the same and this Writ Petition is
liable to be dismissed.
IV. COURT'S ANALYSIS AND REASONS:
7. For decision of this case, Section 126, 127 and 145 of the Electricity Act,
2003 are relevant and they are reproduced hereinbelow:-
"Section 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 unauthorised
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
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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
unauthorised 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
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)." (Emphasis Supplied)
8. In a similar case of this nature in Tata Power Delhi Distribution
Limited v. Rampal,1 the High Court of Delhi spelt out the jurisdiction
of the Permanent Lok Adalat vis-à-vis Sections 126 and 145 of the
Electricity Act which has been put succinctly:
"30. Besides, the provisions of section 145 of the Electricity
Act also stand in the way of the forum having entertained the
dispute. Since the case at hand relates to misuse of electricity,
it is covered under section 126 of the Electricity Act. The
dispute is therefore amenable to determination by the
assessing officer under section 126, by the appellate authority
under section 127 and by the adjudicating officer under
section 143 of the Electricity Act, by reason of which even the
jurisdiction of Civil Court was barred under section 145. So
the Presiding Officer could not have entertained the dispute
and no injunction could have been granted.
......
34. In view of the above discussion this court is of the opinion
that :
2020 SCC OnLine Del 675
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........
d. Fourthly, since the statute provides the mechanism to
address the dispute at hand under the scheme of section 126
and 127 of the Electricity Act, a Lok Adalat could not have
entered upon any form of adjudication of the dispute and
could not have granted interim relief."
9. In yet another case, Interglobe Aviation Ltd. v. N. Satchidanand,2 the
Supreme Court has explained the essential nature of the proceedings
before a Permanent Lok Adalat:
"27. The nature of proceedings before the Permanent Lok
Adalat is initially a conciliation which is non-adjudicatory in
nature. Only if the parties fail to reach an agreement by
conciliation, the Permanent Lok Adalat mutates into an
adjudicatory body, by deciding the dispute. In short, the
procedure adopted by the Permanent Lok Adalats is what is
popularly known as "CON-ARB" (that is, "conciliation-cum-
arbitration") in the United States, where the parties can
approach a neutral third party or authority for conciliation
and if the conciliation fails, authorise such neutral third party
or authority to decide the dispute itself, such decision being
final and binding. The concept of "CON-ARB" before a
Permanent Lok Adalat is completely different from the concept
of judicial adjudication by the courts governed by the Code of
Civil Procedure. The Permanent Lok Adalat not being a
"court", the provision in the contract relating to exclusivity of
jurisdiction of courts at Delhi will not apply."
10. Further, in Maharashtra State Electricity Distribution Company Ltd.
through Additional Executive Engineer v. Badrinath Pema Rathod,3 the
Bombay High Court has held that the primary role of the Permanent
Lok Adalat is to settle dispute through conciliatory methods and in
(2011) 7 SCC 463
2022 SCC OnLine Bom 103
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case the conciliation fails, then it is not within the power of the
Permanent Lok Adalat to adjudicate the matter on merits:
"15. In the light of the aforesaid statutory scheme, when the
application preferred by the respondent before the Permanent
Lok Adalat related to an incident, which resulted in
registration of an offence in the Electricity Act, the
Permanent Lok Adalat had entertained the dispute for the
purpose of conciliation and settlement, but did not attempt
any conciliation and in it's absence, proceeded to adjudicate
the dispute, despite a bar being imposed under sub-section (8)
of Section 22 (C). The Permanent Lok Adalat has, thus,
clearly fallen into an error in adjudicating the dispute
instituted by the applicant on it's merits, when it could not
effect the conciliation/settlement between the parties. The said
order, therefore, cannot be sustained."
11. Moreover, the aforementioned directive in the award is flawed for two
reasons. Firstly, the Permanent Lok Adalat has neglected to carry out
conciliation proceedings, which it is obligated to conduct. It is only at
the conclusion of such proceedings, if the parties reach at a settlement
resolving the dispute, that the Permanent Lok Adalat is empowered to
issue an award. Secondly, in instances where the parties are unable to
reach an agreement through conciliation, the Permanent Lok Adalat is
then required to adjudicate the dispute, provided that the dispute does
not pertain to any criminal offence.
12. After going through the law laid down by the Supreme Court and
various High Courts, it is quite vivid that the provisions contemplated
under Sections 126 and 127 of the Electricity Act constitute a complete
code in itself and there is remedy of appeal against the final assessment
order. The order of the Permanent Lok Adalat is thus an outlier in the
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established scheme of things of the Electricity Act. Thus, the Permanent
Lok Adalat ought not to have taken cognizance of the complaint when
the purported case was already pending trial in the court of the Special
Judge-cum-1st A.D.J., Berhampur; out of the provisional framework of
the Electricity Act.
V. CONCLUSION:
13. The Permanent Lok Adalat is not competent to maintain an application
under Section 22 of Legal Services Authorities Act, 1987 against the
pendency of the trial in the court of the Special Judge-cum-1st A.D.J.,
Berhampur; out of the provisional framework of the Electricity Act.
14. For the foregoing reasons, the impugned award dated 25.09.2014
passed by the Permanent Lok Adalat, Ganjam in P.L.A. Case No.175 of
2014 is not sustainable, therefore, the present Writ Petition is allowed
and the impugned order passed by the Permanent Lok Adalat is set
aside.
15. The Opposite Party shall first await outcome of the trial in the Court of
the learned Special Judge-cum-1st A.D.J., Berhampur and after that, he
is at liberty to prefer appeal before the appropriate authority.
16. With the aforesaid observation(s), this Writ Petition stands disposed of.
No cost(s).
17. Interim order passed earlier stands vacated.
( Dr. S.K. Panigrahi )
Judge
Orissa High Court, Cuttack,
Dated the 25th June, 2024/
Location: ORISSA HIGH COURT, CUTTACK
Date: 05-Jul-2024 16:36:06
