Satish Babubhai Patel vs Union Of India & on 30 November, 2013

[Cites 50, Cited by 3]

Gujarat High Court

Satish Babubhai Patel vs Union Of India & on 30 November, 2013

Bench: Bhaskar Bhattacharya

  
	 
	 SATISH BABUBHAI PATEL....Petitioner(s)V/SUNION OF INDIA
	 
	 
	 
	 
	 
	 
	 
	 
	

 
 


	 


	C/SCA/14183/2013
	                                                                    
	                           CAV JUDGEMNT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 14183 of 2013 FOR APPROVAL AND SIGNATURE:

HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ?

To be referred to the Reporter or not ?

Whether their Lordships wish to see the fair copy of the judgment ?

Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?

Whether it is to be circulated to the civil judge ?

================================================================ SATISH BABUBHAI PATEL....Petitioner(s) Versus UNION OF INDIA &

3....Respondent(s) ================================================================ Appearance:

MR MASOOM K SHAH, ADVOCATE for the Petitioner(s) No. 1 MS.

VACHA DESAI, ASSTT. GOVERNMENT PLEADER for the Respondent(s) No. 2 ================================================================ CORAM:

HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date :30/11/2013 CAV JUDGEMNT (PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) By this writ application under Article-226 of the Constitution of India, the petitioner, a consumer of electricity supplied by the respondent no.4 company, has prayed for the following reliefs :

"(a) Be pleased to quash and set aside Section 126 and Section 127 of The Electricity Act, 2003 ( Act no.26 of 2003) as ultra vires the Constitution of India.

(b) Be pleased to quash and set aside the Section 145 of the The Electricity Act, 2003 (Act no.36 of 2003) as ultra vires the Constitution of India.

(c) Be pleased to quash and set aside the GSR 265(E) dated 16th April 2004, The Appeal to the Appellate Authority Rules, 2004 as ultra vires the Constitution of India and the Parent Act i.e The Electricity Act, 2003 ( Act no.36 of 2003).

(d) Be pleased to quash and set aside Notification styled as GU-2007-133-ELA-1103-9539-k dated September 1, 2007, issued by Energy and Petrochemicals Department, Sachivalaya, Gandhinagar as ultra vires the Constitution of India, 1950 and Parent Act i.e The Electricity Act, 2003 (Act no.36 of 2003).

(e) Be pleased quash and set aside Notification styled GSR 481(E) dated 17th August 2006 the Qualifications Powers and Functions of Chief Electrical Inspectors and Electrical Inspectors Rules, 2006 the Constitution of India and the Parent Act ie The Electricity Act, 2003 (Act no.36 of 2003).

(f) Be pleased to quash and set aside final Assessment Order dated 22nd February 2010 issued under S. 126 of The Electricity Act, 2003 (Act no.36 of 2003).

(g) Pending Admission, Hearing and Final disposal of this Petition, Be pleased to grant electrical connection to the petitioner.

(h) Pending Admission, Hearing and Final disposal of this Petition, Be pleased to stay the recovery proceedings against the petitioner pursuant to the final Assessment Order dated 22.02.2010.

(i) Costs of this Petition be awarded.

(j) Such further and other relief, order or direction which may be just, fit, proper and equitable in the facts and circumstances of the Petition.

2. Facts of the Case :

2.1 The petitioner is a consumer of electricity supplied by the respondent no.4 company, namely, Dakshin Gujarat Vij Company Ltd., Bambhroli Sub Division, Surat. The Electricity Company has provided a single phase meter to the petitioner bearing No.2188376 with a Customer No.18204/ 11957/7. The respondent no.4 company has also provided a three phase meter No.4946873 bearing Customer No.17294.11957/7 with a sanctioned load of 27 HP.

2.2 It appears that on 22/12/2009, an inspection was carried-out by the Vigilance Officers of the Electricity Company at the premises of the petitioner and during the inspection it was found that the consumption of the electricity by the petitioner was more than the sanctioned load of 29 HP. Such excess consumption of electricity by the petitioner was found to be unauthorized by the Vigilance Officers.

2.3 It also appears from the materials on record that pursuant to the inspection which was carried-out at the premises of the petitioner, a provisional assessment bill was raised by the electricity company for the unauthorized use of the excess load.

2.4 It is the case of the petitioner that in the provisional assessment bill there were blanks and the same was a cyclostyled final assessment order without any reference of any of the objections which were raised by the petitioner at the relevant point of time.

2.5 The petitioner, being dissatisfied with such a provisional assessment bill issued by the Electricity Company, instead of challenging the same before the Appellate Authority U/s.127 of the Electricity Act, 2003, thought fit to challenge the same before the District Consumer Forum, Surat by filing a Complaint Case No.97/2000.

2.6 It appears that the District Consumer Forum, Surat refused to entertain such complaint of illegal issuance of a provisional assessment Bill relying on a recent decision of the Apex Court in the case of U.P. Power Corporation Ltd., and Others Vs. Anish Ahmed reported in 2013(9) SCALE -334 wherein the Supreme Court held that the Consumer Forum has no jurisdiction to entertain a complaint filed by a consumer or any person against assessment made U/s.126 of the Electricity Act. In such circumstances, the District Consumer Forum, Surat rejected the complaint filed by the petitioner.

2.7 It appears that thereafter the petitioner thought fit to file the present writ application raising manifold grounds as regards the provisions of the Electricity Act, 2003 and the Rules framed thereunder.

2.8 The petitioner has raised the following questions of law in this petition :

3.1 Whether Sections 126 and 127 of The Electricity Act, 2003 are unconstitutional ?

3.2 Whether the GSR 265 (E) dated 16th April, 2004, The Appeal to the Appellate Autohrity Rules, 2004 is ultra vires the Constitution of India and the Parent Act ie The Electricity Act, 2003 ( Act no.36 of 2003) 3.3 Whether the Notification styled as GU-2007-133-ELA-1103-9539-k dated September 1, 2007, issued by the Energy and Petrochemicals Department, Sachivalaya, Gandhinagar is ultra vires the Constitution of India and the Parent Act i.e The Electricity Act, 2003 (Act no.36 of 2003) 3.4 Whether the Notification styled as GSR 481 (E) dated 17th August 2006, prescribing the Qualifications, Powers and Functions of the Chief Electrical Inspectors and Electrical Inspectors Rules, 2006 is ultra vires the Constitution of India and the Parent Act ie The Electricity Act, 2003 (Act no.36 of 2003).

3.5 Whether fill in the blank, cyclostyle orders can be passed under Sec. 126?

3.6 Whether the Provisional Assessment Order and final Assessment Order is legal, when the Assessing Officer himself carried out the inspection?

3.7 Whether the Appellate Authority constituted under the Act, 2003 is violative of the Constitutional Principles as he has no knowledge of law?

3.8 Whether the Appellate authority i.e the Chief Electrical Inspector and other Electrical Inspectors are biased as they are appointed by the State Government and also the Appellate Authority under the Scheme of the Act?

3.9 Whether a reasoned order is required to be passed in the final Assessment Order ?

3.10 Whether the period of 12 months for extending the unauthorized used by a guess work when the perfect estimate is not possible as provided in Sec. 126 is arbitrary and unreasonable?

3.11 Whether the disconnection of the petitioner s electricity supply without any notice in writing is permissible in law?

3.12 Whether the Assessing Officers can appoint Officers of the licensee?

3. Submissions on behalf of the petitioner:

3.1 Mr. Masoom K. Shah, the learned advocate appearing for the petitioner, vehemently submitted that Sec. 126 and 127 of the Electricity Act, 2003 deserves to be struck-down as unconstitutional because the scheme of Sec. 126 and 127 is unworkable since there is no judicial scrutiny envisaged. Mr. Shah submitted that not only there is no judicial scrutiny envisaged so far as the scheme of Sec. 126 and 127 of the Act, 2003 is concerned, but the jurisdiction of the Civil Court has also been barred by virtue of the provisions of Sec. 145 of the Act, 2003.

3.2 Mr. Shah submitted that there is only one layer of adjudication so far as the Assessment Order is concerned and the same is treated to be final. According to him such being the position, the pre-requisite of depositing 50% of the bill amount of the provisional assessment before the Appellate Authority is arbitrary and unreasonable. Mr.Shah submitted that the same is ultra vires Articles-14, 19 and 21 of the Constitution of India.

3.3 Mr. Shah also submitted that the Assessing Officers are appointed by the State Government and on their final assessment, the Consumer is made to deposit 50% of the disputed amount before the consumer is heard by the Appellate Authority. According to Mr. Shah such a scheme could be termed as arbitrary and unreasonable. He would submit that the Assessing Officers who work for the company itself would definitely act in a bias manner so as to benefit the electricity company.

3.4 Mr. Shah has challenged the validity of Sec. 126 of the Act, 2003 on the ground that the concept of period of 12 months immediately preceding the date of inspection for the purpose of assessment once the Assessing Officer reaches to the conclusion that unauthorized use of electricity has taken place is more a guesswork rather than a legal and reasonable approach.

3.5 Mr. Shah submitted that the provisions of Sec. 126(5) of the Act, 2003 defies all logic because every month the inspector would come and record the reading of the meter on the basis of which the bill is being prepared and if that is so and nothing is found to be wrong, then suddenly one fine morning the consumer cannot be asked to pay an amount upto the extent of 12 months. This, according to Mr. Shah, could be termed as arbitrary and against the Wednesbury principle of reasonableness.

3.6 Mr. Shah submitted that the Central Government, in exercise of the powers conferred by Clause-4(2) of Sec. 176 of the Electricity Act, 2003, issued a Notification dated 16/4/2004 by which the State Government has been authorized for the purpose of appeal U/s.127 of the Act to constitute an Appellate Authority consisting of one or more persons, such that one of the persons shall have knowledge of matter related to assessment of electricity charges and none of them should be directly related to the affairs of the territorial jurisdiction of the Licensee or supplier of the electricity. According to Mr. Shah, this could not have been done because the Parliament has delegated the said power to the Central Government. Once such power has been delegated to the Central Government, then the Central Government has no power to sub-delegate the same in favour of the State Government for the purpose of constituting an appellate authority.

3.7 Mr. Shah submitted that in the aforesaid context the legislature in its wisdom was aware that in most of the States the Electricity Companies are owned by the State and with a view to providing a fair hearing with due compliance of the principles of natural justice, the said power for appointment of an Appellate Authority was, therefore, delegated to the Central Government. Mr.Shah relied on the legal maxim Delegatus non potest delegare , meaning that no delegated powers can be further delegated .

3.8 Mr. Shah, in the aforesaid context, further submitted that such sub-delegation is not permissible because the State Government has been conferred with the responsibility to appoint the Assessing Officer and therefore, the legislature in its wisdom conferred the power of appointment of the appellate authority to the Central Government and with a view to strike the balance, the legislature, therefore, thought fit to confer the power upon the Central Government to appoint the Appellate Authority. Therefore, according to Mr. Shah, the Notification dated 16/4/2004 is an example of excessive delegation.

3.9 Mr. Shah submitted that the State Government, on the strength of the Notification dated 16/4/2004 issued by the Central Government has appointed Chief Electric Inspector and other Electric Inspectors as the Appellate Authorities and such persons have no knowledge of law because they are neither lawyers nor retired Judges. According to Mr. Shah they have no judicial mind and, therefore, it is difficult for them to understand the legal concept of fair hearing.

3.10 Mr. Shah challenging the Final Assessment Order dated 22/2/2010 submitted that the same is nothing but a proforma order with blanks all over the place.

3.11 Mr. Shah also submitted that the decision of the Assessing Officer could be termed as a quasi judicial decision and therefore, it should contain reasons while over-ruling the objections raised by the Consumer. No reasons are recorded for reaching to a particular conclusion and nothing is being discussed so far as the objections which are raised by the consumer are concerned.

3.12 Mr. Shah last submitted that Sec. 145 of the Act, 2003 which bars the jurisdiction of the Civil Court so far as any matter which an Assessing Officer referred to in Sec. 126 or an Appellate Authority referred to in Sec. 127 of the Act or the Adjudicating Officer appointed under the Act is empowered to determine is concerned, the same is arbitrary and unreasonable. According to him, having regard to the scheme of the Act, the Civil Court s jurisdiction could not have been barred and the legislature ought to have kept the option open for the consumer to challenge such arbitrary or illegal assessment before the competent Civil Court where the consumer would get the opportunity to lead necessary evidence and the authority would also be a legal mind.

4. Having heard the learned Counsel appearing for the petitioner and having gone through the materials on record, including the provisions of the Electricity Act, 2003 and the Rules framed thereunder, the only question that falls for our consideration in this petition is, whether the petitioner is entitled to any of the reliefs prayed for in this petition.

5. Before, we proceed to consider the submissions on merit, it will be expedient for the better adjudication of the issues, to look into the Electricity Act, 2003, more particularly the statement of objects and reasons.

5.1 The Electricity Act, 2003 is an Act to consolidate the laws relating to generation, transmission, distribution, trading, use of electricity and for development of electricity industry promoting competition even while ensuring supply of electricity to all areas duly protecting the interests of the consumer. It also is a law to ensure transparent policies and for providing two tire redressal mechanism at the Central as well as the State levels. The statement of objects and reasons for the Act would show that the radical reforms in generation and transmission of electricity are sought to be ushered in by the new legislation on the principles of de-licensing and open access in transmission. It also provides for the State Regulatory Commission, Central Regulatory Commission and an Appellate Tribunal to review the decisions of Regulatory Commissions.

5.2 The Act is divided into XVIII parts. Part-III deals with generation of Electricity, part IV with licensing method and Part-(V) deals with transmission of electricity. The fixation and administration of tariff is contained in Part-VII. Part X, which contains Sections-76 to 109 provides for Constitution, powers and functions of the Central Commission and State Commission. An overall view of the Act especially the parts referred to herein would show that the Act brought in structural changes in generation, distribution and transmission of electrical energy. There is a distinct trichotomy among these three aspects of Electricity. The Act also broadly deals with generation separately and transmission separately. Except in the matter of levying the surcharge for crop subsidy, the Act does not make any distinction between a generating company and captive generating company.

6. We shall now consider Sec.126 of the Act which falls within Part-XII Investigation and Enforcement , more particularly the scope of the Section.

6.1 Section 126 of the Electricity Act, 2003 provides that if it is found by the Officer that a consumer is indulging in unauthorized use of electricity, he will make provisional assessment and thereafter a demand has to be made. Unauthorized use of electricity has been defined in Sec. 126(6), Explanation- Clause (b) and the definition for all practical purposes includes theft of electricity as is understood.

6.2 Sub-Sec.(1) of Sec. 126 authorizes the Assessing Officer to inspect any place or premises, gadgets, machines, devices and may come to a conclusion that a consumer is indulging in unauthorized use of electricity. In such a case, the Assessing Officer has to provisionally assess to the best of his judgment, the electricity charges payable by such a person. After so doing, such provisional assessment order has to be served on the person who, under sub-section (3) is entitled to file objections against the provisional Assessment Order before the Assessing Officer. The Assessing Officer may then afford an opportunity and pass a Final Order of Assessment of the electricity charges payable by such person. Sub-Sec.1 to 4 do not compel the person to pay any amount, if he wants to file objection and invite final assessment order.

6.3 In assessing the value of the energy provisionally, as seen from Sub-Sec.(1) of Sec. 126, the Assessing Officer has to do it to the best of his judgment. The power of Assessing Officer is not controlled or circumscribed by sub-sec.5. Sub-sec.5 of the Sec.126 takes care of altogether a different situation. It contains the deeming provision; a presumption. If the Assessing Officer has no proper material or mechanism used or pilferage of energy is of such a nature that the Assessing Officer cannot reasonably fix the period during which there has been unauthorized use of electricity, in such cases, he can presume that there has been a continuous unauthorized use of energy for a period of three months or six months, as the case may be. The presumption contained in Sub-sec.5 does not in any manner prevent or prohibit the Assessing Officer while provisionally assessing the electricity charges payable by such person under Sub-sec.1 of Sec. 126 after determining actual energy pilfered.

6.4 Sub-sec.6 of Section 126 stipulates that the assessment of value of the energy pilfered should be made at the rate equal to one times the tariff applicable to the relevant category of services.

6.5 The Explanation to Sec.126 of the Act defines the Expression Unauthorized use of electricity and the definition includes four categories as specified in Sub-para-B to the Explanation. It has been defined to mean the usage of electricity (i) by any artificial means, (ii) by means not authorized by the concerned person or authority of licensee, (iii) through a tampered meter and

(iv) for the purpose other than for which the usage of electricity was authorized.

7. We are not impressed by the submission of Mr. Shah that Section 126 of the Act deserves to be declared as ultra vires as the legislature has conferred unbridled and uncontrolled power on the Assessing Officers, and the assessment is always bias because the Assessing Officers are appointed by the Government.

8. It is now well settled that a power which is discretionary is not necessarily discriminatory and abuse of power should not be easily assumed where the discretion is vested in the public officials.

There is a presumption that public officials will discharge their duties honestly and in accordance with the rules of law, that unless the contrary were shown, the administration of a particular law would be done "not with an evil eye and unequal hand". There might be cases where improper execution of power will result in discriminatory treatment and injustice to the consumers, but, the possibility of such a discriminatory treatment cannot necessarily invalidate the legislation and where there is an abuse of such power, the parties aggrieved are not without ample remedies under the law, and what will be struck down in such cases will not be the provision which invests the authorities with such power, but the abuse of the power itself. [See Pannalal Binjraj Vs. Union of India, 1957 SC 397].

9. A Constitution Bench of the Supreme Court, in the case of State of Punjab Vs. Khan Chand, reported in AIR 1974 SC 543, made the following observations in context with abuse of power by the public officials.

37. Dealing with the Equality Clause in the Constitution of the U.S.A. Professor Willis has said (Willis, "Constitutional Law", pp. 536-7) :

"Perhaps the best view on the subject is that 'due process' and 'equality' are not violated by the mere conference of unguided power, but only by its arbitrary exercise by those upon whom it is conferred (see Plymouth Coal Co. v. Pennsylvania (1914) 232 U.S. 531").

The theory behind this proposition is that although the conferment of discretionary power without guideline might result in its being exercised in a discriminatory manner, no one will presume that it will be so exercised. On the other hand, the presumption is that public functionaries will administer the law properly. Courts do not strike down a provision in a statute on the assumption that the person invested with power under it would exercise it "with an evil eye and unequal hand". The heart of the matter is that in such a case the law itself is not bad, because it is capable of being administered in an impartial and reasonable manner as this case illustrates. So long as courts are open in this country and the doctrine of abuse of power is there, there need be no apprehension that any power will be exercised arbitrarily or in a discriminatory manner merely because the power is apparently capable of being so exercised. It is perfectly open to the State Government or an honest officer to whom the power is delegated to exercise it in a reasonable and non-discriminatory manner. Why then should the Court be anxious to strike down the law? The Court's power is properly invoked if a person is actually aggrieved by the exercise of the power under the law. We should not exercise our power to strike down a law on hypothetical considerations of what a bad officer might do. In determining the constitutionality of an Act, we would construe it in such a manner as to sustain it and every possible presumption will be indulged in for that purpose. Our attempt must be to preserve and not destroy. Respect for a coordinate branch of the Government as well as the presumption of constitutionality demands it. Before a duly enacted law can be judicially nullified, it must be forbidden by some explicit restriction in the Constitution. Our duty of deference to those who have the responsibility for making the laws has great relevance in this context. The attitude of judicial humility which this consideration enjoins is not an abdication of the judicial function. It is a due observance of its limits. As Marshall said: "No questions can be brought before a judicial tribunal of greater delicacy than those which involve the constitutionality of legislative acts". And, as I said, a just respect for the legislature requires that the obligation of its laws should not be unnecessarily and wantonly assailed."

10. In Mafatlal Industries Ltd. and Ors. v. Union of India and Ors. (1997 [5] SCC 536), a Bench of 9 Judges observed that mere possibility of abuse of a provision by those in charge of administering it cannot be a ground for holding a provision procedurally or substantively unreasonable.

11. In Collector of Customs v. Nathella Sampathu Chetty (1962 (3) SCR

786) the Hon'ble Supreme Court observed:

"The possibility of abuse of a statute otherwise valid does not impart to it any element of invalidity." It was said in State of Rajasthan v. Union of India (1977 (3) SCC 592) "it must be remembered that merely because power may sometimes be abused, it is no ground for denying the existence of power. The wisdom of man has not yet been able to conceive of a Government with power sufficient to answer all its legitimate needs and at the same time incapable of mischief."

(Also see: Commissioner, H.R.E. v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Meth (1954 SCR 1005).

12. As observed in Maulavi Hussien Haji Abraham Umarji v. State of Gujarat (2004 (6) SCC 672), Unique Butle Tube Industries (P) Ltd. v. U.P. Financial Corporation and Ors. 2003 (2) SCC 455 and Padma Sundara Rago (dead) and Ors. v. State of T.N. and Ors. (2002 (3) SCC 533), while interpreting a provision, the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of the process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary.

13. Thus, the afore-noted decisions make it plain and clear that the mere possibility or likelihood of abuse of power does not make the provision ultra vires or bad in law. There is a distinction between existence of power and exercise thereof. The legality or otherwise of the power must be decided by considering the nature of power, the extent thereof, the body or authority on whom it has been conferred, the circumstances under which it can be exercised and all other considerations which are relevant and germane to the exercise of such power.

14. At this stage, it may not be out of place to mention that in the past, the Constitutional validity of Section 126 of the Act, 2003 was a subject matter of challenge before a Division Bench of this Court in Ranchhodbhai Haribhai Sutariya Vs. Union of India (Special Civil Application No. 13931 of 2009 and allied matters) decided on 26th April, 2011.

15. The main contention before the Division Bench in the said case was that the electricity companies, which make the allegations, and their officers having been appointed as Assessing Officers, the electricity companies prove their own allegations by themselves. It was also contended before the Division Bench that there is no chance even to say that the bill is incorrect or the charge is incorrect. There is little chance being given to explain the matter. In many cases, the electricity company would remove the meters even without sealing, and if they were sealed, the witnesses were the employees of the company and no independent evidence would be taken. It was argued that therefore, the electricity company plays the role of a complainant, investigator, prosecutor and the judge for determination as provided under Section 126 of the Act.

16. It was also argued that the provisions of Section 126 of the Act were ultra vires Article 14 of the Constitution of India, since unbridled and uncontrolled power has been vested with the electricity supply company. It was also submitted that no person can be a judge of his own cause. There was also a submission of likelihood of bias, and in accordance with the principles of natural justice, if there was a likelihood of bias, such person should be incapacitated from adjudicating this issue.

17. The Division Bench of this Court while answering the submissions which were canvassed on behalf of the petitioners first took note of Section 126 of the Act, along with Section 127 (appeal to Appellate Authority), Section 135 (theft of electricity), Section 143, which prescribes power to adjudicate under which appropriate Commission can appoint any of its member to be an adjudicating officer for holding an enquiry for the purpose of imposing any penalty, Section 145 which bars the jurisdiction of the Civil Court in any matter which an Assessing Officer referred to in Section 126 or an Appellate Authority referred to in Section 127 or the adjudicating officer appointed under the Act is empowered by to determine and The Electricity Rules, 2005, various other Notifications issued under the Act, and held as under:-

28.

The Parliament u/Sec.126 (Part-XII - Investigation and Enforcement') has not delegated any power to the State to make inspection of any place or premises to take inspection of equipments, gadgets, machines, devices, etc. On the other hand, such power has been delegated by the Parliament to the assessing officer, who on such inspection may come to the conclusion that such person is indulging in unauthorised use of electricity. The assessing officer has to make a provisional assessment u/sub-Sec.(2), and then, after service of notice upon the person, and hearing the objections, if any, filed and after affording a reasonable opportunity of hearing to such person, he is required to pass final order of assessment u/sub-Sec.(3) of Sec.126. The aggrieved person has a right to prefer appeal to the Appellate Authority u/Sec.127 against the final order, as may be passed u/Sec.126.

29. From the Explanation below Sec.126, it will be evident for the purpose of said Section that `assessing officer' means an officer of State Government or Board or licensee, as the case may be, designated as such by the State Government. The meaning of `unauthorised use of electricity' has also been defined in the said Explanation. Assessment of electricity charges in case a person indulges in unauthorised use of electricity is not a duty of the Legislatures. Therefore, in normal course, it cannot be stated that there is an `abdication' of power or `assessment' in conferring the power to the delegatee. The question is whether the power of assessment has been delegated by the Legislature in favour of the licensee, including any officer of the licensee, i.e., respondent companies herein. This will be evident from the Explanation below Sec.126, quoted and discussed above, wherein `assessing officer' has been defined to be an officer of the State Government or Board or Licensee, who is to be designated by the State Government.

30. It is a settled law that the Legislature, as a part of its legislative function, can confer powers to make rules and regulations for carrying the enactment into operation and effect. While Legislature exercises such power, it also lays down the policy and principles providing the rule of conduct, and while it may further provide that on certain data or facts being found and ascertained by the Executive or authority, the operation of the Act can be brought into force.

31. In the present case, in exercise of powers conferred u/Sec.126 and in light of Explanation below Sec.126, the Government of Gujarat has designated the officers as assessing officers by order dated 5th June 2004. Such power of assessment being not the power of the Legislature, and as such power can be delegated under the Act, it has been delegated in favour of the assessing officer, but it cannot be alleged that the Legislature has abdicated its power. The question of abdication arises only if the Legislature or a particular authority who is delegated with such power, instead of exercising the same, has sub-delegated such power without any such authority. That question does not arise in the present case.

32. We have already noticed that the question of assessment of electricity charges payable by a person indulging in unauthorised use of electricity cannot be made by the Legislature (Parliament in the present case). It will have to utilise any outside agency to the extent it finds it necessary for doing things, which the Legislature is unable to do itself or finds it inconvenient to do. Legislature is supposed to do everything which is ancillary and necessary to the full exercise of its power of legislation. To that extent it cannot abdicate its legislative function. However, while entrusting such power to an outside agency, it has only to see that it acts as a subordinate authority and is guided by norms and rules. In the present case, the manner in which the provisional assessment is to be made has been prescribed in Gujarat Electricity (Manner of Service of Provisional Assessment Order) Rules, 2004 by notification dated 5th June 2004. For service of the final order prescription has also been made under the Gujarat Electricity (Manner of service of notice, order or document) Rules, 2004, and therefore, it cannot be stated that the authorities have been provided with unbridled power, as inspection is made u/Sec.126 in presence of the user of unauthorised electricity and in presence of other witnesses. Before the final assessment, a provisional assessment order is to be made, opportunity of objection and hearing is to be given to the person, and then only, the final order is passed, the legality and propriety of which can be challenged in an appeal u/Sec.127. Foolproof procedure having been laid down under the Act and the Rules framed thereunder, as referred to above, the delegation of such power cannot be held to be arbitrary.

33. So far as Sec.135 is concerned, learned counsel for the petitioners assail the same mainly on the ground that a private person cannot be allowed to take into administration of criminal justice in its hands. In the case of Union Carbide (supra), Supreme Court observed the essence of doctrine of stifling prosecution, i.e. no private person should be allowed to take the administration of criminal justice out of the hands of the judges and place it in his own hands. The judgment was based on a Calcutta High Court decision in Rameshwar Marwari v. Upendranath Das Sarkar reported in AIR 1926 CAL 455 and Supreme Court decision in V. Narasimha Raju v. V. Gurumurthy Raju reported in AIR 1963 SC 107 and Ouseph Poulo v. Catholic Union Bank Ltd. reported in AIR 1965 SC 166.

34. We have noticed that in the case of Ouseph Poulo (supra) Supreme Court observed that no Court of law can allow a private party to take administration of law in its own hands and settle the question as to whether a particular offence has been committed or not for itself.

35. Sec.135 deals with theft of electricity. Thereunder no power has been vested with any individual to take the administration of criminal justice into his own hands. Sub-Sec. (1) of Sec.135 is a penal provision, which prescribe punishment, as may be imposed, if theft of electricity is detected and proved. The licensee or supplier has been empowered to disconnect the supply of electricity u/Sec.1A. For detection of theft of electricity officers of the licensee or supplier has been empowered u/sub-Sec.(2) to enter, inspect, break open and search any place or premises in which he has reason to believe that electricity has been used or being used unauthorisedly and to search, seize and remove all such devices, instruments, etc., and to examine or seize any books of account or documents, etc. Under sub-Sec.(3) the occupant of the place of search is required to be present during the search and a list of all things so seized in the search be prepared and the occupant's signature is obtained on the list.

36. The officer of the licensee or supplier, whoever may be authorised, has not been empowered to take administration of criminal justice in his hands. For trial of such offence u/Sec.135, the State Government has been empowered to constitute Special Courts u/Sec.153 of the Act. The procedure which is to be adopted by the Special Court has also been prescribed u/Sec.154, which has also been empowered with the power of court of sessions u/Sec.155. Against this decision, appeal and revision is maintainable before High Court u/Sec.156. If the aforesaid provision is read with Rule 12 of the Electricity Rules, 2005, as noticed and quoted in the earlier paragraphs, it will be evident that police is to take cognizance of the offence. The power of investigation is also vested with the police; an officer of the licensee or supplier is merely an informant in the matter of theft of electricity. In view of such specific provisions enacted under the law, the allegation as being made by the petitioners that a private party has been allowed to take administration of criminal justice in his hands cannot be accepted. We find no abdication of power by the Legislature in enacting Sec.126 of the Electricity Act, 2003, nor the allegation that u/Sec.135, a private person has been delegated power to administer criminal justice, can be sustained. Consequential notifications, rules issued there under, for the very same reason, cannot be held to be illegal. We uphold Sections 126 and 135 of the Electricity Act, 2003 and the Gujarat Electricity (Manner of Service of Provisional Assessment Order) Rules, 2004 and the Gujarat Electricity (Manner of service of notice, order or document) Rules, 2004 issued by different notifications all dated 5th June 2004. In absence of any merit, all the writ petitions are dismissed, but there shall be no order as to costs. Notice is discharged."

18. In view of the afore-noted decision of the Division Bench of this Court, the challenge to the constitutional validity of Section 126 of the Act should necessarily fail.

19. We are also not impressed by the submission of Mr. Shah, the learned Advocate appearing on behalf of the petitioner with regard to the Notification dated 16th April, 2004, issued by the Central Government, in exercise of the powers conferred by clause (v) of sub-section (2) of Section 176 of the Act, framing Rules called "Appeal to the Appellate Authority Rules, 2004" for appointment of the Appellate Authority under Section 127 of the Act, is concerned.

20. The sum and substance of the contention of Mr. Shah is that under Section 176 of the Act, the Central Government may, by Notification, make Rules for carrying out the provisions of the Act, and Section 176, clause (2) sub-clause (u) empowers the Central Government to appoint an authority to whom the appeal shall be filed under sub-section (1) of Section 127 of the Act. Thus, according to Mr. Shah, the Central Government has been delegated with the power under Section 176 clause (2) sub-clause (u) to appoint the Appellate Authority under sub-section (1) of Section 127 of the Act, but by virtue of the Notification dated 16th April, 2004, the Central Government has sub-delegated the power in favour of the State Government for the purpose of appointing the Appellate Authority under Section 127 of the Act.

21. According to Mr. Shah, if a power has been delegated, then there cannot be any further sub-delegation. According to Mr. Shah, the legal maxim "delegatus non potest delegare , means sub-delegation of the delegated power is not permissible unless the person on whom the power conferred is permitted to delegate expressly or by necessary intendment.

22. To appreciate the aforesaid submission in this regard, it would be profitable for us to look into the provisions of Section 176(1) and (2) (u) of the Act, 2003 and the Notification itself. We quote Section 176 (1) (2)(u) of the Act, and the the entire Notification as under:-

"Sec.

176. Power of Central Government to make rules.--

(1) The Central Government may, by notification, make rules for carrying out the provisions of this Act.

(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:--

(a) to (t) ....... ......

(u) the authority to whom the appeal shall be filed under sub-section (1) of Section 127;"

"(Contains amendment vide Notification No.GSR 537(E) dated 7th September, 2006) Government of India Ministry of Power New Delhi, the 16th April, 2004.

Notification G.S.R. 265(E). In exercise of powers conferred by clause (u) of sub-section (2) of section 176 of the Electricity Act,2003, (36 of 2003) the Central Government hereby makes the following rules prescribing the appellate authority for preferring appeal against the orders of the assessing officer, namely:-

1. Short title and commencement,- (1) These rules may be called Appeal to the Appellate Authority Rules, 2004.

(2) They shall come into force on the date of their publication in the Official Gazette.

2. Definitions.-

(1) In these rules unless the context otherwise requires,-

(a) Act means the Electricity Act, 2003;

(b) section means a section of the Act.

(2) Words and expression used and not defined in these rules but defined in the Act, 2003 shall have the meanings respectively assigned to them in Act.

3. Appellate Authority.- For the purpose of appeal under section 127, the State Government may, by notification in the Official Gazette, constitute an Appellate Authority consisting of one or more persons such that one of the persons shall have knowledge of matters related to assessment of electricity charges and none of them shall be directly related to the affairs of the territorial jurisdiction of the licensee or supplier of the electricity .

Sd/-

(Ajay Shankar) Additional Secretary to the Government of India F.No.23/63/2003-R&R"

23. So far as the principle of the maxim "delegatus non potest delegare , is concerned, the same rests on the principle that a person who wishes to act through another confers a power on that other person, who otherwise would have to do himself. This does not however, imply that a person who delegates parts with his power or his authority to another so as to denude himself of his rights, or to totally abdicate that power in favour of the other. Delegation of power, in other words, could always be abrogated by the grantor at any time, or he could, if he so chooses act himself to the exclusion of the agent or the person to whom he has delegated.

24. We are of the opinion that there is no sub-delegation by virtue of the Notification dated 16th April, 2004. By Notification dated 16th April, 2004, the Central Government, in exercise of the delegated power has merely asked the State Government to constitute an Appellate Authority consisting of one or more persons, such with one of the persons shall have knowledge of matters related to assessment of electricity charges and none of them shall be directly related to the affairs of the territorial jurisdiction of the licensee or supplier of the electricity. Therefore, it could be said that the Central Government has asked the State Government to appoint such persons as the Appellate Authority, who are well versed with the matters related to the assessment of electricity charges. The State Government would merely act according to the Rules and would appoint an appropriate person who is well versed with the matters of assessment of electricity charges.

25. In the present case, the rule making authority has not effaced itself and there is in fact no delegation of any essential legislative function. The rule making authority by framing rules, which is to the effect that the State Government may, by notification in the official gazette, constitute an appellate authority consisting of one or more persons such with one of the persons shall have knowledge of matters related to assessment of electricity charges and none of them shall be directly related to the affairs of the territorial jurisdiction of the licensee or supplier of the electricity, exercised the real legislative function and laid down a clear policy. All that was left to the State Government to do by Notification was to appoint the appellate authority as suggested by the Central Government.

26. The Supreme Court in re Art. 143, Constitution of India and Delhi Laws Act (1912) etc. in a Special Reference, reported in AIR 1951 SC 332, has laid down the extent to which it is permissible to a legislative or a rule making authority to leave to the executive to frame provisions in order to implement the Act passed by the Legislature or the Rules framed by the rule making authority. In our opinion, in the present case, the Central Government has not gone beyond what was held permissible by the Supreme Court in the case mentioned above. It is well known that considering the necessities of modern life the Legislature or the rule making authority cannot contemplate all the future contingencies and it has been held permissible to allow provisions being made in order to implement an Act of the Legislature or a rule framed by a rule making authority. Thus, in our opinion, therefore, there is no substance in the submission of the learned counsel appearing for the petitioner.

27. We are also not impressed by the submission of Mr. Shah that the Notification dated 1st September, 2007, issued by the Energy and Petrochemicals Department of the State Government, appointing the Appellate Authority for the purpose of appeal under Section 127 of the Act is concerned. We quote below the Notification:-

"ENERGY AND PETROCHEMICALS DEPARTMENT Notification Sachivalaya, Gandhinagar, 1st September, 2007.

ELECTRICITY ACT, 2003.

No. GU-2007-133-ELA-1103-9539-K :- WHEREAS, by virtue of powers conferred by clause (u) of sub-section (2) of section 176 of the Electricity Act, 2003 ( 36 of 2003 ), the Central Government has framed the Appeal to the Appellate Authority Rules, 2004 and subsequently amended the said Rules by the Appeal to the Appellate Authority (Amendment) Rules, 2006.

AND WHEREAS, under rule 3 of the said rules, it has been provided that the State Government may, for the purpose for appeal under section 127, by notification in the Official Gazette, constitute an Appellate Authority consisting of one or more persons such that one of the persons shall have knowledge of matters related to assessment of electricity charges and none of them shall be directly related to the affairs of the territorial jurisdiction of the licensee or supplier of the electricity.

NOW, THEREFORE, in pursuance of the provisions of the Appeal to the Appellate Authority (Amendment) Rules, 2006 and the provisions of sub-section (1) of Section 127 of the Electricity Act, 2003, and in supersession of Govt. Notification, Energy & Petrochemicals Department No. GU-2005-4-ELA-1103-9539-K, dated the 10th January, 2005, the Government of Gujarat hereby designates the Gazetted Officer specified in column 2 of the Schedule appended hereto to be an Appellate Authority, to exercise the powers within the jurisdiction specified against them in column 3 of the Schedule, for the purpose of appeal under section 127 of the said Act.

Amongst the Appellate Authority specified in column 2 of the Schedule, the Chief Electrical Inspector shall be the Appellate Authority for the amount above Rs.10 lacs, the Deputy Chief Electrical Inspectors shall be the Appellate Authorities for the amount above Rs.5 lacs and up to 10 lacs, the Electrical Inspectors shall be the Appellate Authorities for the amount above Rs.1 lac and up to 5 lacs and the Assistant Electrical Inspectors shall be the Appellate Authorities for the amount up to Rs.1 lac of final assessment made under section 126 of the Electricity Act, 2003."

28. It appears that by virtue of the afore-noted Notification dated 1st September, 2007, the State Government has appointed the Chief Electrical Inspector for the whole of the State of Gujarat as the Appellate Authority and, thereafter, Deputy Chief Electrical Inspector, Electrical Inspector and Assistant Electrical Inspector as the Appellate Authority in the various Districts of the State. This contention should fail only on the ground that the same has been done by virtue of the Notification dated 16th April, 2004 referred to above, the validity of which has been upheld by us.

29. The above takes us to deal with the contention canvassed on behalf of the petitioner that Section 127 of the Act, 2003 should be struck down as ultra vires, as it imposes an onerous condition of a pre-deposit of 50% of the assessment amount before the appeal could be entertained by the Appellate Authority. The submission is that such stringent conditions would defeat the very purpose of the appeal and hence, invites the frown of Article 14 of the Constitution of India. It is also asserted that the Parliament should have conferred the appellate authority with the power to waive the full amount depending upon the nature of the case, and the same not having been provided, the provision is ultra vires Article 14 of the Constitution of India. It is also submitted that the concept of undue hardship has not been kept in view and further, the various circumstances are not being taken into consideration, which makes the legislation unconstitutional. It was also argued that there is a possibility of abuse of power and unworkability of the provision.

30. We are not impressed by the above referred submission canvassed on behalf of the petitioner because it is now well settled that the right of appeal is the creature of the statute. Without a statutory provision creating such a right, the person aggrieved is not entitled to file an appeal. Had it been a case where the legislature would have imposed such a condition before the final assessment is carried out under Section 126 of the Act, then perhaps there could have been some scope to argue that such a condition could not be imposed in the very first round of adjudication. It is not so so far as the present case is concerned. It is only after the Assessing Officer adjudicates and passes the final assessment order holding the consumer guilty of unauthorized use of electricity and if the consumer is dissatisfied, or aggrieved by such assessment intends to file an appeal, then such a condition of pre-deposit of 50% of the assessment amount could not be termed as onerous so as to declare it as ultra vires.

31. In the aforesaid context, we may refer with profit to certain citations in the field, which pertain to the conditions imposed while providing for appeal as a statutory remedy.

32. In Anant Mills Co. Ltd. v.

State of Gujarat, (1975) 2 SCC 175 : (AIR 1975 SC 1234), the Apex Court has opined thus:

"The right of appeal is the creature of a statute. Without a statutory provision creating such a right the person aggrieved is not entitled to file an appeal. We fail to understand as to why the legislature while granting the right of appeal cannot impose conditions for the exercise of such right. In the absence of any special reasons there appears to be no legal or Constitutional impediment to the imposition of such conditions. It is permissible, for example, to prescribe a condition in criminal cases that unless a convicted person is released on bail, he must surrender to custody before his appeal against the sentence of imprisonment would be entertained. Likewise, it is permissible to enact a law that no appeal shall lie against an order relating to an assessment of tax unless the tax had been paid."

33. The Constitution Bench in Nand Lal and another v. State of Haryana and others, AIR 1980 SC 2097, while dealing with the conditions imposed in preferring an appeal or revision, has ruled thus:

"It is well settled by several decisions of this Court that the right of appeal is a creature of a statute and there is no reason why the legislature while granting the right cannot impose conditions for the exercise of such right so long as the conditions are not so onerous as to amount to unreasonable restrictions rendering the right almost illusory(vide the latest decision in Anant Mills Ltd. v. State of Gujarat, AIR 1975 SC 1234). Counsel for the appellants, however, urged that the conditions imposed should be regarded as unreasonably onerous especially when no discretion has been left with the appellate or revisional authority to relax or waive the condition or grant exemption in respect thereof in fit and proper cases and, therefore, the fetter imposed must be regarded as unconstitutional and struck down. It is not possible to accept this contention for more than one reason. In the first place, the object of imposing the condition is obviously to prevent frivolous appeals and revision that impede the implementation of the ceiling policy; secondly, having regard to sub-sections (8) and (9) it is clear that the cash deposit or bank guarantee is not by way of any exaction but in the nature of securing mesne profits from the person who is ultimately found to be in unlawful possession of the land; thirdly, the deposit or the guarantee is correlated to the land holdings tax (30 times the tax) which, we are informed, varies in the State of Haryana around a paltry amount of Rs. 8 per acre annually; fourthly, the deposit to be made or bank guarantee to be furnished is confined to the land holdings tax payable in respect of the disputed area i.e. the area or part thereof which is declared surplus after leaving the permissible area to the appellant or petitioner. Having regard to those aspects, particularly the meagre rate of the annual land tax payable, the fetter imposed on the right of appeal/revision, even in the absence of a provision conferring discretion on the appellate/revisional authority to relax or waive the condition, cannot be regarded as onerous or unreasonable. The challenge to S. 18(7) must, therefore, fail." [Emphasis supplied]

34. In Vijay Prakash D. Mehta and another v. Collector of Customs (Preventive), Bombay, AIR 1988 SC 2010, the Apex Court was dealing with the provisions contained in Section 129E of the Customs Act, 1962 wherein the said provision provided that a person desirous of preferring an appeal was required to deposit, with the proper officer, the duty demanded or the penalty levied. There was also a stipulation that in any particular case, if the Collector (Appeals) or the appellate tribunal is of the opinion that the deposit of the duty demanded or the penalty levied would cause undue hardship to such person, the appellate authority may dispense with such deposit, subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of the revenue. While dealing with the said provision, their Lordships have opined thus:

"The aforesaid Section provides a conditional right of appeal in respect of an appeal against the duty demanded or penalty levied. Although the Section does not expressly provide for rejection of the appeal for non-deposit of duty or penalty, yet it makes it obligatory on the appellant to deposit the duty or penalty, pending the appeal, failing which the Appellate Tribunal is fully competent to reject the appeal. See, in this connection, the observations of this Court in respect of Section 129 prior to substitution of Chapter XV by the Finance Act, 1980 in Navin Chandra Chhotelal v. Central Board of Excise and Customs and Ors., 1981 (8) ELT 679 (SC). The proviso, however, gives power to the Appellate Authority to dispense with such deposit unconditionally or subject to such conditions in cases of undue hardships. It is a matter of judicial discretion of the Appellate Authority."

Thereafter, their Lordships, while dealing with the right of appeal, have opined thus:

"Right to appeal is neither an absolute right nor an ingredient of natural justice the principles of which must be followed in all judicial and quasi-judicial adjudications. The right to appeal is a statutory right and it can be circumscribed by the conditions in the grant."

35. In view of the above, the contention as regards declaring Section 127 of the Act as ultra vires also fails.

36. We are also not impressed by the submission of Mr. Shah that Section 145 of the Act, which bars the jurisdiction of the Civil Court in any matter falling within the ambit of Section 126 or Section 127 of the Act is concerned, deserves to be declared as ultra vires the constitution of India, as the same could be termed as arbitrary and unreasonable.

37. It is now well settled that the question as regards ouster of a jurisdiction of the Civil Court must be construed having regard to the scheme of the Act, as also the object and purport it seeks to achieve.

38. In Dhulabhai and ors. Vs. State of M.P and anr.

reported in (1968) 3 SCR 662, the Supreme Court summarised the following principles relating to the exclusion of jurisdiction of the Civil Court.

(a) Where the statute gives a finality to the orders of the special tribunals, the civil court's jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunals has not acted in conformity with the fundamental principles of judicial procedure.

(b) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the Civil Court.

Where there is no express exclusion, the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case, it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not.

(c) Challenge to the provisions of the particular Act as ultra vires cannot be brought before tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the tribunals.

(d) When the provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.

(e) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected, a suit lies.

(f) Questions of the correctness of the assessment, apart from its constitutionality, are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case, the scheme of the particular Act must be examined because it is a relevant enquiry.

(g) An exclusion of the jurisdiction of the civil court is not readily to be inferred unless the conditions above set down apply.

39. Taking into consideration the peculiar features of the Electricity Act, and more particularly the technical aspects involved so far as the assessment under Section 126 of the Act, is concerned, in our view, the legislature thought fit to bar the jurisdiction of the Civil Court so far as matters falling within Section 126 and Section 127 of the Act is concerned, and it could not be said that on such ground alone Section 145 of the Act should be struck down as ultra vires the Constitution.

40. Section 145 of the Electricity Act, 2003 would read as under:-

"145.

Civil Court not to have jurisdiction :-

No Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which an assessing officer referred to in Section 126 or an appellate authority referred to in Section 127 or the adjudicating officer appointed under this Act is empowered by or under this Act to determine and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act".

41. Section 126 of the said Act would deal with the determination of the loss. Section 127 of the Act deals with the appellate forum under which the aggrieved party can file an appeal. A reading of Section 145 of the Act would clearly indicate that no Civil Court shall have the jurisdiction to entertain any suit or proceeding in respect of any other matter, which the Assessing Officer referred to in Section 126 or an appellate authority referred to in Section 127 is empowered to determine or act, only on such conditions being satisfied the jurisdiction of the Civil Court as well as any other forum is ousted.

42. This question regarding the civil courts or any other forums having jurisdiction to deal with the situation on hand fell for consideration before the Apex Court in the case of Punjab State Electricity Board v. Ashwani Kumar, 1997 (5) JT (SC) 182. The Apex Court while interpreting the scope of Section 9 of the Code of Civil Procedure was of the opinion that by necessary implication the cognizance of the civil Court as contemplated in the present set of circumstances is ousted. As a consequence, the Apex Court held that the civil Court in the circumstances will not be justified in entertaining the complaint or giving a declaration when an adequate remedy is provided under the Act for the redressal of the grievances. The relevant discussion is to be found at para 10 which reads as hereunder :

"10.

The question then arises : whether the Civil Court would be justified in entertaining the suit and issue injunction as prayed for? It is true, as contended by Shri Goyal, learned senior counsel, that the objections were raised in the written statement as to the maintainability of the suit but the same given up. Section 9 of C.P.C. provides that Civil Court shall try all suits of civil nature, subject to pecuniary jurisdiction, unless their cognizance is expressly or by necessary implication is barred. Such suit would not be maintainable. It is true that ordinarily, the Civil Court has jurisdiction to go into and try the disputed questions of civil nature, where the fundamental fairness of procedure has been violated. The statutory circulars adumbrated above do indicate that a fundamental fairness of the procedure has been prescribed in the rules and is being followed. By necessary implications, the cognizance of the civil cause has been excluded. As a consequence, the Civil Court shall not be justified in entertaining this suit and giving the declaration without directing the party to avail of the remedy provided under the Indian Electricity Act and the Indian Electricity (Supply) Act and the instructions issued by the Board in that behalf from time to time as stated above."

43. In the aforesaid context, we may also refer to a decision of this Court in the case of Plasto Processors and anr. Vs. Gujarat Electricity Board and ors. 2005 (2) GLR 993. A learned Single Judge of this Court made the following observations:-

"The jurisdiction of the Civil Court is expressly excluded in respect of the matters to be decided by the assessing officer under Section 126 or the appellate authority under Section 127 or the adjudicating officer under Sec. 143, but it cannot be held that even if the action is ultra vires the powers under Sec. 126 or 127 or if the action is in breach of the statutory provisions of the Act, the jurisdiction of the civil Court shall stand excluded. In any event, it is apparent that until the decision is rendered by the assessing officer or by the appellate authority or the adjudicating officer under this Act, the jurisdiction of the civil Court stands expressly excluded. However, if the decision is taken by the appellate authority finally upon the assessment made and if as per the consumer exercise of power is ultra vires the provisions of the Act or in breach of the statutory provisions of the Act, at that stage, but after final decision under Sec. 127 of the new Act the jurisdiction cannot be said to be as excluded. Jurisdiction of the Civil Court will normally stand excluded in respect of matters which the assessing officer has to decide under Sec. 126 or the appellate authority has to decide under Sec. 127 of the new Act, but after the decision, if the provisions of the new Act have not been complied with and/or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure, the Civil Court will have jurisdiction, but only to that extent and it will in any case not grant injunction against any authority exercising power under the Act. In view of Sec. 145 of the new Act, the jurisdiction of the Civil Court is excluded for matters where the assessing officer has to decide under Sec. 126 or the appellate authority has to decide under Sec. 127 of the Act or the adjudicating officer has to decide under Sec. 143 of the new Act, but, after the decision is rendered by the assessing officer or the appellate authority or the adjudicating officer, as the case may be, the Civil Court will have the jurisdiction only in those cases where the provisions of the new Act have not been complied with or the assessing officer or the appellate authority have not acted in conformity with the fundamental principles of judicial procedure. In any case, in all cases, the Civil Court shall not grant injunction in respect of any action taken or to be taken in pursuance of the powers conferred by or under the new Act."

44. We are in respectful agreement with the view taken by the learned Single Judge of this Court, quoted above. Therefore, the challenge to the constitutional validity of Section 145 of the Act should also necessarily fail.

45. It is a well settled position of law that a statute can be invalidated or held unconstitutional -

(i) if it is ultra vires the Parent Act;

(ii) if it is contrary to the statutory provisions other than those contained in the Parent Act;

(iii) if law making power has been exercised in bad faith;

(iv) if it is not reasonable and it goes against the legislative policy; and

(v) if it does not fulfill the object and purpose of the enabling Act.

46. The Constitution Bench of this Court in Mohd. Hanif Quareshi v. State of Bihar [AIR 1958 SC 731] while dealing with the meaning, scope and effect of Article 14, reiterated what was already explained in earlier decisions that to pass the test of permissible classification, two conditions must be fulfilled, namely,

(i).

the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and

(ii).

such differentia must have rational relation to the object sought to be achieved by the statute in question. The Court further stated that classification might be founded on different basis, namely, geographical, or according to objects or occupations or the like and what is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration.

47. In Mohd. Hanif Quareshi [AIR 1958 SC 731], the Constitution Bench further observed that there was always a presumption in favour of constitutionality of an enactment and the burden is upon him, who attacks it, to show that there has been a clear violation of the constitutional principles. It stated in para 15 of the Report as under: (AIR pp. 740-41)

15. & The courts, it is accepted, must presume that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds. It must be borne in mind that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest and finally that in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation.

48. The above legal position has been reiterated by a Constitution Bench in Mahant Moti Das v. S.P. Sahi [AIR 1959 SC 942]

49. In Hamdard Dawakhana v. Union of India [AIR 1960 SC 554], inter alia, while referring to the earlier two decisions, namely, Bengal Immunity Co. Ltd. [AIR 1955 SC 661] and Mahant Moti Das [AIR 1959 SC 942], it was observed in para 8 of the Report as follows:

(Hamdard Dawakhana case [AIR 1960 SC 554], AIR p. 559)

8.

Therefore, when the constitutionality of an enactment is challenged on the ground of violation of any of the articles in Part III of the Constitution, the ascertainment of its true nature and character becomes necessary i.e. its subject-matter, the area in which it is intended to operate, its purport and intent have to be determined. In order to do so it is legitimate to take into consideration all the factors such as history of the legislation, the purpose thereof, the surrounding circumstances and conditions, the mischief which it intended to suppress, the remedy for the disease which the legislature resolved to cure and the true reason for the remedy&.

In Hamdard Dawakhana, the Court also followed the statement of law in Mahant Moti Das and the two earlier decisions, namely, Charanjit Lal Chowdhury v. Union of India [AIR 1951 SC 318] and State of Bombay v. F.N. Balsara [AIR 1951 SC 318] and reiterated the principle that presumption was always in favour of constitutionality of an enactment.

50. In one of the recent cases in Karnataka Bank Ltd., [(2008) 2 SCC 254] while referring to some of the above decisions, in para 19 of the Report, this Court held as under: (SCC pp. 262-63)

19. The rules that guide the constitutional courts in discharging their solemn duty to declare laws passed by a legislature unconstitutional are well known. There is always a presumption in favour of constitutionality, and a law will not be declared unconstitutional unless the case is so clear as to be free from doubt; to doubt the constitutionality of a law is to resolve it in favour of its validity . Where the validity of a statute is questioned and there are two interpretations, one of which would make the law valid and the other void, the former must be preferred and the validity of law upheld. In pronouncing on the constitutional validity of a statute, the court is not concerned with the wisdom or unwisdom, the justice or injustice of the law. If that which is passed into law is within the scope of the power conferred on a legislature and violates no restrictions on that power, the law must be upheld whatever a court may think of it. (See State of Bombay v. F.N. Balsara. [AIR 1951 SC 318])

51. We are also not impressed by the submission of Mr. Shah that the Appellate Authority, namely the Chief Electrical Inspector and other Electrical Inspectors are always bias towards the consumers, as they are appointed by the State Government. According to Mr. Shah, the appeal, which is provided under the provisions of Section 127 of the Act against the final assessment order passed under Section 126 of the Act could not be termed as an efficacious remedy, and more particularly, when Section 127 of the Act mandates deposit of 50% of the amount assessed by the assessing officer in exercise of his power under Section 126 of the Act.

52. The rule against the bias is an offshoot of the principle of natural justice. Bias by interest, which disqualifies an authority, falls into two broad classes:

(a) where the authority has a pecuniary interest in the subject matter of the litigation;

(b) where from kindred or other cause, the authority may have a bias in favour of one of the parties.

53. In cases of the present nature, we are concerned with that kind of bias which falls category (b). This rule is based on the maxim "nemo judex in causa sua", which means that no man can be a judge in his own cause. Only by virtue of the fact that the appellate authority, namely the Chief Electrical Inspector and other Electrical Inspectors are officers appointed by the State Government, there cannot be a presumption that in all cases they would act in a bias manner trying to favour the Electricity company. It would depend from cases to cases and in a particular case, if there is material to establish bias, then it could always be corrected by a superior Court.

54. It follows that in determining the question of personal bias, the Court should see whether there is undisputed material which is likely to give rise to a reasonable apprehension of bias in the mind of the person complaining of bias taking care that the apprehension is not vague, whimsical or capricious. The Court will have to satisfy of three things before recording a finding of bias against an authority, namely,

(i) there is uncontroverted and undisputed material;

(ii) the material is such as is likely to give rise to a reasonable apprehension in the mind of the person complaining of bias; and

(iii) the apprehension is not a vague, whimsical or capricious suspicion.

Thus, we reject such contention of Mr. Shah so far as the appellate authority being bias is concerned.

55. It appears that the petitioner has also challenged the legality and validity of the final assessment order dated 22nd February, 2010, issued under Section 126 of the Act, 2003. It also appears that on conclusion of the arguments on 11th September, 2013, and while making the judgment CAV, we had made it clear in our order dated 11th September, 2013, that we have not taken into consideration the remedy pleaded in paragraph 10 Clause (f) and other consequential reliefs and the pendency of this application would not stand in the way of the petitioner in separately challenging the assessment order dated 22nd February, 2010, passed under Section 126 of the Electricity Act, 2013, before the appropriate forum, in accordance with law. We also clarified that we had not gone into the merit of the order dated 22nd February, 2010.

In such circumstances, we have not touched the challenge to the legality and validity of the order dated 22nd February, 2010.

56. In the overall view of the matter, we are of the opinion that there is no merit in any of the contentions raised on behalf of the petitioner and the petition should fail.

57. In the result, this petition fails and is hereby rejected. However, in the facts and circumstances of the case, there shall be no order as to costs.

(BHASKAR BHATTACHARYA, C.J.) (J.B.PARDIWALA, J.) Mohandas Page 44 of 44

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Gujarat High Court