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 Signature Not Verified Digitally Signed Page 1 of 11 Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-Jul-2024 16:36:06 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 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 2 of 11 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-Jul-2024 16:36:06 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 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 3 of 11 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-Jul-2024 16:36:06 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.
Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 4 of 11 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-Jul-2024 16:36:06
(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 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 5 of 11 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-Jul-2024 16:36:06 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. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 6 of 11 Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK Date: 05-Jul-2024 16:36:06 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 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 7 of 11 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-Jul-2024 16:36:06 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 :
1
2020 SCC OnLine Del 675 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 8 of 11 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-Jul-2024 16:36:06 ........
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 2 (2011) 7 SCC 463 3 2022 SCC OnLine Bom 103 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 9 of 11 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-Jul-2024 16:36:06 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 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 10 of 11 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-Jul-2024 16:36:06 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/ Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 11 of 11 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-Jul-2024 16:36:06