Orissa High Court
Assessing Officer-Cum-Executive ... vs Appellate Authority-Cum-Electrical ... on 13 July, 2017
Author: B.R. Sarangi
Bench: B.R. Sarangi
HIGH COURT OF ORISSA : CUTTACK
W.P.(C) NO. 13047 OF 2015
In the matter of an application under Articles 226 and 227 of
the Constitution of India.
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AFR
Assessing Officer-cum-Executive ........ Petitioner
Engineer (Electrical), WESCO,
Rajgangpur.
-Versus-
Appellate Authority-cum- ......... Opp. Parties
Electrical Inspector and another.
For petitioner : Mr. P.K. Mohanty, Sr. Counsel
along with M/s D.N. Mohapatra,
J. Mohanty, P.K. Pasayat,
S.N. Das and A. Das, Advocates.
For opp. parties : Mr. S.S. Das, Sr. Counsel
along with M/s (Smt.) B.Mohanty,
S. Modi and S. Das,
Advocates.
(O.P. No.2)
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PRESENT
THE HON'BLE DR. JUSTICE B.R. SARANGI
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Date of argument: 28.06.2017 : Date of Judgment:13.07.2017
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DR. B.R. SARANGI, J. M/s Satguru Metals & Power Private
Limited-opposite party no.2 is a power intensive industry having
consumer No.358 (PII) RRKL/3-0191 with contract demand of
5700 KVA under the petitioner-Western Electricity Supply
Company of Orissa (for short 'WESCO'), operating at
Rajgangpur in the district of Sundergarh. For availing such
power supply, opposite party no.2 entered into an agreement
with the petitioner on 05.06.2009. A surprise check was
conducted by the officers of the petitioner in the night of
11.12.2010and it was detected that opposite party no.2, by illegal and unauthorized means, abstracting power supply from 33 KV line of the distribution system as per explanation appended to sub-section (6) of Section 126 of the Electricity Act, 2003. Consequentially, a final assessment was done demanding Rs.2,13,02,241/- pursuant to the order dated 29.12.2010. Due to non-payment of such amount, power supply was disconnected to the premises of opposite party no.2 for such unauthorized use of power as per Regulation-43 of the OERC Distribution (Conditions of Supply) Code, 2004 (hereinafter referred to as "Code, 2004").
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2. Challenging such final assessment order dated 29.12.2010 and disconnection notice issued by the petitioner, opposite party no.2 filed W.P.(C) Nos.176 and 763 of 2011 before this Court. Pursuant to the interim order of this Court, opposite party no.2 deposited a sum of Rs.50.00 lakhs for stay of disconnection notice. Finally, this Court did not interfere and disposed of those writ petitions vide order dated 11.09.2012 holding as not maintainable and permitted opposite party no.2 to prefer appeal within a period of 30 days from the date of the order against the final assessment order under Section 127 of the Electricity Act, 2003.
3. Instead of preferring appeal before the statutory appellate authority within the time stipulated, opposite party no.2 challenged the order of the learned Single Judge dated 11.09.2012 by filing W.A. No. 425 of 2012 before the Division Bench, which was also dismissed vide order dated 20.12.2012 stating inter alia that there was an efficacious alternative remedy available to the consumer for redressal of its grievance by filing an appeal under Section 127 of the Electricity Act, 2003. Consequentially, opposite party no.2 filed appeal under Section 127 of the Electricity Act, 2003 and, after due 4 adjudication, the appellate authority passed an order on 06.06.2015 holding that opposite party no.2 was involved in unauthorized use of electricity only for two months, thereby reduced the final assessment amount from Rs.2,13,02,241/- to Rs.31,01,130/-. Being aggrieved by the said order of the appellate authority dated 06.06.2015, this application has been filed.
4. Mr. P.K. Mohanty, learned Senior Counsel appearing along with Mr. P.K. Pasayat, learned counsel for the petitioner contended that the appellate authority had not taken into consideration the question of limitation, as there was inordinate delay in preferring appeal, and the appeal should have been rejected on the ground of limitation, as it was not preferred along with the application for condonation of delay. Apart from the same, it is further contended that the period of assessment was not properly appreciated by the appellate authority and more so Transmission and Distribution (T & D) losses on the basis of dump report was not appropriated on correct basis for ascertaining the exact period of unauthorized use of electricity in a specific case of theft of electricity by means of tapping. To substantiate his contention, he has relied upon the judgments of 5 this Court in Smt. Geeta Mishra v. State of Orissa, 2009 (Supp.-II) OLR 374, Executive Engineer, Southern Electricity Supply Company of Orisa Limited (SOUTHCO) v. Sri Seetaram Rice Mill, (2012) 2 SCC 108 and Chhattisgarh State Electricity Board v. Central Electricity Regulatory Commission, AIR 2010 SC 2061.
A date chart along with written note of argument was filed by learned Senior Counsel for the petitioner raising several other contentions. On query being made by this Court, Mr. P.K. Mohanty, learned Senior Counsel confined his argument to the points, as mentioned above. The other points stated in the written note of argument, having not been raised before the appellate authority, were not pressed by learned Senior Counsel for the petitioner.
5. Mr. S.S. Das, learned Sr. Counsel appearing along with Smt. B. Mohanty, learned counsel for opposite party no.2, referring to the appeal memo filed in its counter affidavit as Annexure-H/2 contended that column-9 thereof clearly explained the delay in preferring the appeal. It is further contended that the provisions of Section 125 of the Electricity Act, 2003 stand completely different from that of Section 127 of 6 the said Act and, as such, there was no delay in preferring the appeal under Section 127 of the Electricity Act and in the facts of the present case the judgment relied upon by the petitioner in Chhattisgarh State Electricity Board (supra) is squarely applicable to opposite party no.2. The reasons for not filing the appeal within the prescribed period, as mentioned in the appeal memo itself, having been considered by the appellate authority, no illegality or irregularity was committed so as to warrant interference by this Court. It is further contended that pursuant to the interim order passed by this Court in the earlier writ petitions, i.e., W.P.(C) No.176 and 763 of 2011, opposite party no.2 deposited Rs.50.00 lakhs pursuant to the order dated 18.03.2011 and subsequently deposited an amount of Rs.56,51,120/- in order to prefer statutory appeal. Thereby, opposite party no.2 has already deposited more than one crores of rupees against the order passed by the appellate authority to deposit a sum of Rs.31,01,130/-. As the petitioner had not challenged the order passed by the appellate authority, the same is binding on it and, therefore, excluding Rs.31,01,130/- (which was directed by the appellate authority to be paid by opposite party no.2), the balance amount should be refunded to 7 opposite party no.2. It is further contended that this Court passed an order on 13.04.2017 to the following effect-
"in course of hearing, a question was raised as to whether the opposite party consumer was drawing the power supply unauthorizedly and that whether the inspection was caused in his presence and he was a signatory to the same so as to admit the fact that he was drawing the power unauthorizedly".
but no satisfactory reply has been given by the petitioner to the above query made by this Court. Consequentially, he prayed for dismissal of the writ petition. To substantiate his contention, he placed reliance on the judgment of the apex Court in Collector, Land Acquisition, Anantnag v. Mst. Katiji, AIR 1987 SC 1353.
6. Having heard learned counsel for the parties and after perusing the records, since pleadings between the parties have been exchanged, with the consent of the learned counsel for the parties, this writ petition is being disposed of finally at the stage of admission.
7. For just and proper adjudication of the matter, relevant provisions of the Act and Rules are quoted below:
The Electricity Act, 2003.
"Section 126: (Assessment): --- (1) If on an inspection of any place or premises or after inspection of the equipments, 8 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 unauthorized 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 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 unauthorized 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 1[twice] the tariff rates applicable for the relevant category of services specified in sub-section (5). Explanation.- For the purposes of this section,-
(a) "assessing officer" means an officer of a State Government or Board or licensee, as the case may be, designated as such by the State Government;
(b) "unauthorised use of electricity" means the usage of electricity -
(i) by any artificial means; or
(ii) by a means not authorised by the concerned person or authority or licensee; or
(iii) through a tampered meter; or
(iv) for the purpose other than for which the usage of electricity was authorised; or 9
(v) for the premises or areas other than those for which the supply of electricity was authorized."
"Section 127. (Appeal to Appellate Authority): --- (1) Any person aggrieved by the final order made under section 126 may, within thirty days of the said order, prefer an appeal in such form, verified in such manner and be accompanied by such fee as may be specified by the State Commission, to an appellate authority as may be prescribed.
(2) No appeal against an order of assessment under sub-
section (1) shall be entertained unless an amount equal to 3[half of the assessed amount] is deposited in cash or by way of bank draft with the licensee and documentary evidence of such deposit has been enclosed along with the appeal.
(3) The appellate authority referred to in sub-section (1) shall dispose of the appeal after hearing the parties and pass appropriate order and send copy of the order to the assessing officer and the appellant.
(4) The order of the appellate authority referred to in sub- section (1) passed under sub-section (3) shall be final. (5) No appeal shall lie to the appellate authority referred to in sub-section (1) against the final order made with the consent of the parties.
(6) When a person defaults in making payment of assessed amount, he, in addition to the assessed amount shall be liable to pay, on the expiry of thirty days from the date of order of assessment, an amount of interest at the rate of sixteen per cent, per annum compounded every six months."
xx xx xx "Section 135. (Theft of Electricity):-(1) Whoever, dishonestly.
(a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee or supplier as the case may be; or
(b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or
(c) damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so 10 damaged or destroyed as to interfere with the proper or accurate metering of electricity,
(d) uses electricity through a tampered meter; or
(e) uses electricity for the purpose other than for which the usage of electricity was authorised, so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or with both:
Provided that in a case where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use -
(i) does not exceed 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction the fine imposed shall not be less than six times the financial gain on account of such theft of electricity;
(ii) exceeds 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction, the sentence shall be imprisonment for a term not less than six months, but which may extend to five years and with fine not less than six times the financial gain on account of such theft of electricity:
Provided further that in the event of second and subsequent conviction of a person where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use exceeds 10 kilowatt, such person shall also be debarred from getting any supply of electricity for a period which shall not be less than three months but may extend to two years and shall also be debarred from getting supply of electricity for that period from any other source or generating station:
Provided also that if it is proved that any artificial means or means not authorized by the Board or licensee or supplier, as the case may be, exist for the abstraction, consumption or use of electricity by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of electricity has been dishonestly caused by such consumer.
(1A) Without prejudice to the provisions of this Act, the licensee or supplier, as the case may be, may, upon detection of such theft of electricity, immediately disconnect the supply of electricity:
Provided that only such officer of the licensee or supplier, as authorized for the purpose by the Appropriate Commission or any other officer of the licensee or supplier, as the case may be, of the rank higher than the rank so authorised shall disconnect the supply line of electricity:11
Provided further that such officer of the licensee or supplier, as the case may be, shall lodge a complaint in writing relating to the commission of such offence in police station having jurisdiction within twenty four hours from the time of such disconnection:
Provided also that the licensee or supplier, as the case may be, on deposit or payment of the assessed amount or electricity charges in accordance with the provisions of this Act, shall, without prejudice to the obligation to lodge the complaint as referred to in the second proviso to this clause, restore the supply line of electricity within forty-eight hours of such deposit or payment.] (2) Any officer of the licensee or supplier as the case may be, authorized in this behalf by the State Government may -
(a) enter, inspect, break open and search any place or premises in which he has reason to believe that electricity has been or is being, used unauthorisedly;
(b) search, seize and remove all such devices, instruments, wires and any other facilitator or article which has been, or is being, used for unauthorized use of electricity;
(c) examine or seize any books of account or documents which in his opinion shall be useful for or relevant to, any proceedings in respect of the offence under sub-section (1) and allow the person from whose custody such books of account or documents are seized to make copies thereof or take extracts therefrom in his presence. (3) The occupant of the place of search or any person on his behalf shall remain present during the search and a list of all things seized in the course of such search shall be prepared and delivered to such occupant or person who shall sign the list:
Provided that no inspection, search and seizure of any domestic places or domestic premises shall be carried out between sunset and sunrise except in the presence of an adult male member occupying such premises. (4) The provisions of the Code of Criminal Procedure, 1973, relating to search and seizure shall apply, as far as may be, to searches and seizure under this Act."
xx xx xx "Section 163. (Power for licensee to enter premises and to remove fittings or other apparatus of licensee):
- (1) A licensee or any person duly authorised by a licence may, at any reasonable time, and on informing the occupier of his intention, enter any premises to which electricity is, or has been, supplied by him, of any premises or land, under, over, along, across, in or upon which the electric supply-12
lines or other works have been lawfully placed by him for the purpose of -
(a) inspecting, testing, repairing or altering the electric supply-lines, meters, fittings, works and apparatus for the supply of electricity belonging to the licensee; or
(b) ascertaining the amount of electricity supplied or the electrical quantity contained in the supply; or
(c) removing where a supply of electricity is no longer required, or where the licensee is authorised to take away and cut off such supply, any electric supply-lines, meters, fittings, works or apparatus belonging to the licensee. (2) A licensee or any person authorised as aforesaid may also, in pursuance of a special order in this behalf made by an Executive Magistrate and after giving not less than twenty-four hours notice in writing to the occupier, -
(a) enter any premises or land referred to in sub-section (1) for any of the purposes mentioned therein;
(b) enter any premises to which electricity is to be supplied by him, for the purpose of examining and testing the electric wires fittings, works and apparatus for the use of electricity belonging to the consumer.
(3) Where a consumer refuses to allow a licensee or any person authorised as aforesaid to enter his premises or land in pursuance of the provisions of subsection (1) or, sub-
section (2), when such licensee or person has so entered, refuses to allow him to perform any act which he is authorised by those subsections to perform, or fails to give reasonable facilities for such entry or performance, the licensee may, after the expiry of twenty-four hours from the service of a notice in writing on the consumer, cut off the supply to the consumer for so long as such refusal or failure continues, but for no longer."
Relevant part of Section 3 of Limitation Act, 1963 "3. Bar of limitation- (1) Subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has been set up as a defence."
Regulation 51 of the OERC Condition and Supply Code-2004 "51. Access to Consumer's Premises- For carrying out general inspection, repair and testing, the Engineer or the staff authorized by him shall be entitled to enter the premises of a consumer after informing the consumer or occupier. In case of unauthorized addition and alteration of equipment, theft and misappropriation of Energy, diversion of power by passing of Meter for consumption of electricity, the Engineer or his staff can disconnect the power of the premises in pursuance of a special 13 order in this behalf made by an Executive Magistrate in accordance with the Section 163 of the Act."
8. The admitted fact, as unfolded from the factual matrix delineated above, is that opposite party no.2 is a consumer of electricity under the petitioner and categorized as power intensive industry as per the provisions contained in the Electricity Act, 2003 read with the Code, 2004 governing the field. Due to unauthorized use of electricity, which came to light pursuant to an inspection conducted in the premises of opposite party no.2 on 11.12.2010 at 11 PM, provisional assessment was made under Section 126 (1)(2) of the Electricity Act, 2003 imposing penalty of Rs.2,13,02,241/- under Section 126(3) of the said Act. The same was refuted by opposite party no.2 stating that no inspection was done because the unit was not running at the relevant point of time and it was under lock and key, and that on an erroneous assumption of unauthorized use of power, such provisional assessment was done by the Assessing Officer. Such provisional assessment order was confirmed and final assessment was made without considering the objection raised by opposite party no.2. Consequentially, disconnection notice was issued which was challenged before this Court in W.P.(C) Nos.176 and 763 of 2011 and pursuant to 14 the interim order passed by this Court, a sum of Rs.50.00 lakhs was deposited in order to avoid disconnection of power supply. Finally, those writ petitions were disposed of as not maintainable granting liberty to opposite party no.2 to prefer appeal within 30 days from the date of passing of the order before the appellate authority under Section 127 of the Electricity Act, 2003. But opposite party no.2 preferred writ appeal, instead of appeal under Section 127 of the Act, which was also dismissed. Consequentially, opposite party no.2 preferred statutory appeal on 28/31.01.2013 and the appellate authority passed the order impugned, as indicated hereinbefore.
9. The primary contention of Mr. P.K. Mohanty, learned Senior Counsel for the petitioner is that Section 127 (1) clearly stipulates that any person aggrieved by a final order made under Section 126 may, within thirty days of the said order, prefer an appeal and, as such, against the final order, opposite party no.2 did not prefer appeal within time prescribed under the statute. Rather, he approached this Court by filing writ petitions and even if, while disposing the writ petitions, this Court granted 30 days time to prefer appeal, instead of complying with the same, opposite party no.2 preferred writ 15 appeal and only after disposal of the writ appeal he filed appeal under Section 127 of the Act which is much beyond the thirty days period, as prescribed under the Electricity Act, 2003 and as provided by this Court in writ appeal. Thereby, the appellate authority could not have been entertained but dismissed the appeal, as the same was barred by limitation. It is stated that Sub-section (1) of Section 3 of Limitation Act, 1963 clearly envisages that subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has been set up as a defence.
Reference has been made to Smt. Geeta Mishra (supra), in paragraph-6 whereof this Court has held that in terms of Section 3 of the Limitation Act, 1963 no Court shall have jurisdiction to entertain any suit or application if the same has been filed after expiry of the period of limitation. The High Court could not have ignored the said jurisdiction fact. Reference has also been made to Section 125 of the Electricity Act, 2003 wherein it is specifically stated that any person aggrieved by any decision or order of the appellate tribunal may file an appeal to the Supreme Court within sixty days from the 16 date of communication of the decision or order of the appellate tribunal to him. Reference has also been made to Chhatisgarh State Electricity Board (supra). In paragraph-11 thereof, it is stated that proviso to Section 125 empowers the apex Court to entertain an appeal filed within a further period of 60 days if it is satisfied that there was sufficient cause for not filing appeal within the initial period of 60 days. This shows that the period of limitation prescribed for filing appeals under Sections 111 (2) and 125 is substantially different from the period prescribed under the Limitation Act for filing suits etc. It is evident that Electricity Act is a special legislation within the meaning of Section 29 (2) of the Limitation Act, which lays down that where any special or local law prescribes for any suit, appeal or application a period of limitation different from the one prescribed by the schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the schedule and provisions contained in Sections 4 to 24 shall apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application unless they are not expressly excluded by the special or local law. 17
10. On perusal of the provisions contained in Sections 125 and 127 of the Electricity Act, it appears that they are totally different from each other and considered on different context altogether. Part-XI of the Electricity Act, 2003 deals with appellate tribunal for electricity and Section 111 deals with appeal to appellate tribunal, whereas Section 125 of the said chapter deals with appeal before the Supreme Court. More so, the order passed by the appellate tribunal under Part-XI of the Electricity Act, 2003 is appealable before the Supreme Court under Section 125 of the Act itself. Section 125 comes under Part-XI of the Electricity Act, 2003 whereas Section 127 comes under Part-XII, i.e., Investigation and Enforcement under the Electricity Act, 2003. On perusal of the said provisions, Section 127 of the Act provides that any person aggrieved by a final order under Section 126 may prefer appeal within a period of thirty days in the prescribed form, verified in such manner and be accompanied by such fee as may be specified by the State Commission.
11. A copy of the appeal memo, which was filed before the appellate authority, has been annexed by opposite party no.2 as Annexure-H/2 to the counter affidavit. In coloumn-9 18 thereof the reason for delay in preferring the appeal has been explained to the following effect:
"The Appellant challenged the said provisional assessment order vide Writ Application No.176 of 2011 in the Hon'ble High Court of Odisha, Cuttack. The said writ application was disposed of with a direction to appeal before the appellate Tribunal. The said order was challenged in writ appeal No.425 of 2012 in the Hon'ble High Court of Odisha. The writ appeal is disposed of on dated 20.12.2012 to appeal before the appellate Tribunal under 127 of the Electricity Act, 2003. The certified copy is obtained on dated 21.01.2013 and the appeal is preferred today before the Hon'ble Tribunal as 23.01.2013 to 27.01.2013 were holidays."
In view of such explanation given for preferring appeal beyond the prescribed limitation period, it is evident that sufficient cause has been shown and the appeal has been rightly entertained by the appellate authority.
Reference has been made by learned counsel for opposite party no.2 to the ratio decided in Collector, Land Acquisition, Anantanag (supra). In paragraph-3 of the said judgment the apex Court has held as follows:-
"The legislature has conferred the power to condone delay by enacting Section 5 of the Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on 'merits'. The expression 'sufficient cause' employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice--that being the life- purpose for the existence of the institution of courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other courts in the hierarchy.19
And such a liberal approach is adopted on principle as it is realised that:
(1) Ordinarily a litigant does not stand to benefit by lodging an appeal late.
(2) Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
(3) 'Every day's delay must be explained' does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.
(4) When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. (5) There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
(6) It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the 'State' which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even- handed manner. There is no warrant for according a step-motherly treatment when the 'State' is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file-pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant- 20
non-grata status. The courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression 'sufficient cause'. So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even-handed justice on merits in preference to the approach which scuttles a decision on merits."
12. Considering from different angle that Section 14 of the Limitation Act is applicable to the present context, as the matter was pending before this Court in writ application, as well as in writ appeal, the said period is liable to be excluded while computing the period of limitation in view of the provisions contained in Section 14 of the Limitation Act, which reads thus.
"14. Exclusion of time of proceeding bona fide in court without jurisdiction. --
(1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to 21 a fresh suit instituted on permission granted by the court under rule 1 of that Order where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature. Explanation.-- For the purposes of this section,--
(a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted;
(b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding;
(c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction."
13. Similar question had come up for consideration in Kartik K. Parekh v. Special Director, Directorate of Enforcement, AIR 2012 SC 683 and the apex Court in paragraphs 26 and 27 of the judgment came to hold as follows:
"26. The question whether Section 14 of the Limitation Act can be relied upon for excluding the time spent in prosecuting remedy before a wrong forum was considered by a two-Judge Bench in State of Goa v. Western Builders (AIR 2006 SC 2525 : 2006 AIR SCW 3436) (supra) in the context of the provisions contained in Arbitration and Conciliation Act, 1996. The Bench referred to the provisions of the two Acts and observed:
"19. There is no provision in the whole of the Act which prohibits discretion of the court. Under Section
14 of the Limitation Act if the party has been bonafidely prosecuting his remedy before the court which has no jurisdiction whether the period spent in that proceedings shall be excluded or not. Learned counsel for the respondent has taken us to the provisions of the Act of 1996: like Section 5, Section 8(1), Section 9, Section 11, sub-sections (4), (6), 22 (9) and sub-section (3) of Section 14, Section 27, Sections 34, 36, 37, 39(2) and (4), Section 41, sub- section (2), Sections 42 and 43 and tried to emphasise with reference to the aforesaid sections that wherever the legislature wanted to give power to the court that has been incorporated in the provisions, therefore, no further power should lie in the hands of the court so as to enable to exclude the period spent in prosecuting the remedy before other forum. It is true but at the same time there is no prohibition incorporated in the Statute for curtailing the power of the court under Section 14 of the Limitation Act. Much depends upon the words used in the Statute and not general principles applicable. By virtue of Section 43 of the Act of 1996, the Limitation Act applies to the proceedings under the Act of 1996 and the provisions of the Limitation Act can only stand excluded to the extent wherever different period has been prescribed under the Act, 1996. Since there is no prohibition provided under Section 34, there is no reason why Section 14 of the Limitation Act (sic not) be read in the Act of 1996, which will advance the cause of justice. If the Statute is silent and there is no specific prohibition then the Statute should be interpreted which advances the cause of justice."
27. The same issue was again considered by the three- Judge Bench in Consolidated Engineering Enterprises v. Principal Secretary, Irrigation Department (AIR 2009 SC (Supp) 396 : 2008 AIR SCW 4182) (supra) to which reference has been made hereinabove. After holding that Section 5 of the Limitation Act cannot be invoked for condonation of delay, Panchal, J. (speaking for himself and Balakrishnan, C.J.) observed:
"21. Section 14 of the Limitation Act deals with exclusion of time of proceeding bona fide in a court without jurisdiction. On analysis of the said section, it becomes evident that the following conditions must be satisfied before Section 14 can be pressed into service:
(1) Both the prior and subsequent proceedings are civil proceedings prosecuted by the same party;23
(2) The prior proceeding had been prosecuted with due diligence and in good faith;
(3) The failure of the prior proceeding was due to defect of jurisdiction or other cause of like nature;
(4) The earlier proceeding and the latter proceeding must relate to the same matter in issue and;
(5) Both the proceedings are in a court.
22. The policy of the section is to afford protection to a litigant against the bar of limitation when he institutes a proceeding which by reason of some technical defect cannot be decided on merits and is dismissed. While considering the provisions of Section 14 of the Limitation Act, proper approach will have to be adopted and the provisions will have to be interpreted so as to advance the cause of justice rather than abort the proceedings. It will be well to bear in mind that an element of mistake is inherent in the invocation of Section 14. In fact, the section is intended to provide relief against the bar of limitation in cases of mistaken remedy or selection of a wrong forum. On reading Section 14 of the Act it becomes clear that the legislature has enacted the said section to exempt a certain period covered by a bona fide litigious activity. Upon the words used in the section, it is not possible to sustain the interpretation that the principle underlying the said section, namely, that the bar of limitation should not affect a person honestly doing his best to get his case tried on merits but failing because the court is unable to give him such a trial, would not be applicable to an application filed under Section 34 of the Act of 1996.
The principle is clearly applicable not only to a case in which a litigant brings his application in the court, that is, a court having no jurisdiction to entertain it but also where he brings the suit or the application in the wrong court in consequence of bona fide mistake or (sic of) law or defect of procedure. Having regard to the intention of the legislature this Court is of the 24 firm opinion that the equity underlying Section 14 should be applied to its fullest extent and time taken diligently pursuing a remedy, in a wrong court, should be excluded.
23. At this stage it would be relevant to ascertain whether there is any express provision in the Act of 1996, which excludes the applicability of Section 14 of the Limitation Act. On review of the provisions of the Act of 1996 this Court finds that there is no provision in the said Act which excludes the applicability of the provisions of Section 14 of the Limitation Act to an application submitted under Section 34 of the said Act. On the contrary, this Court finds that Section 43 makes the provisions of the Limitation Act, 1963 applicable to arbitration proceedings. The proceedings under Section 34 are for the purpose of challenging the award whereas the proceeding referred to under Section 43 are the original proceedings which can be equated with a suit in a court. Hence, Section 43 incorporating the Limitation Act will apply to the proceedings in the arbitration as it applies to the proceedings of a suit in the court. Sub-section (4) of Section 43, inter alia, provides that where the court orders that an arbitral award be set aside, the period between the commencement of the arbitration and the date of the order of the court shall be excluded in computing the time prescribed by the Limitation Act, 1963, for the commencement of the proceedings with respect to the dispute so submitted. If the period between the commencement of the arbitration proceedings till the award is set aside by the court, has to be excluded in computing the period of limitation provided for any proceedings with respect to the dispute, there is no good reason as to why it should not be held that the provisions of Section 14 of the Limitation Act would be applicable to an application submitted under Section 34 of the Act of 1996, more particularly where no provision is to be found in the Act of 1996, which excludes the applicability of Section 14 of the Limitation Act, to an application made under Section 34 of the Act. It is to be noticed that the powers under Section 34 of the Act can be exercised by the court only if the aggrieved party makes an application. The jurisdiction under Section 34 of the 25 Act, cannot be exercised suo motu. The total period of four months within which an application, for setting aside an arbitral award, has to be made is not unusually long. Section 34 of the Act of 1996 would be unduly oppressive, if it is held that the provisions of Section 14 of the Limitation Act are not applicable to it, because cases are no doubt conceivable where an aggrieved party, despite exercise of due diligence and good faith, is unable to make an application within a period of four months. From the scheme and language of Section 34 of the Act of 1996, the intention of the legislature to exclude the applicability of Section 14 of the Limitation Act is not manifest. It is well to remember that Section 14 of the Limitation Act does not provide for a fresh period of limitation but only provides for the exclusion of a certain period. Having regard to the legislative intent, it will have to be held that the provisions of Section 14 of the Limitation Act, 1963 would be applicable to an application submitted under Section 34 of the Act of 1996 for setting aside an arbitral award."
14. From the above, it is evident that the apex Court has also taken note of the judgment of the apex Court in State of Goa v. Western Builders, JT 2001 (8) SC 271 and also in Consolidated Engineering Enterprises v. Principal Secretary, Irrigation Department, JT 2008 (6) SC 22 and has come to a conclusion that the policy of Section 14 is to afford protection to a litigant against the bar of limitation when he institutes a proceeding which, by reason of some technical defect, cannot be decided on merits and is dismissed. Therefore, while considering the provisions of Section 14 of the Limitation Act, proper approach will have to be adopted and the 26 provisions will have to be interpreted so as to advance the cause of justice rather than abort the proceedings. It will be well to bear in mind that an element of mistake is inherent in the invocation of Section 14. The section is intended to provide relief against the bar of limitation in cases of mistaken remedy or selection of a wrong forum. On reading of Section 14 of the Act it becomes clear that the legislature has enacted the said section to exempt a certain period covered by a bona fide litigious activity. Needless to say that in the present context Section 5 of the Limitation Act may not have any application, but while applying such provisions condonation of delay has to be made on showing the "sufficient case". But the said provision is not applicable to the case of this nature, as because due to pendency of the writ application & writ appeal before this Court the petitioner approached the appellate authority at a belated stage. Reason for approaching the appellate authority is because of the pendency of the writ application & writ appeal before this Court. Therefore, the petitioner is entitled to avail the benefit of Section 14 of the Limitation Act to exempt the period covered by bona fide litigious activity. 27
15. The above being the settled position of law, in view of the explanation given in clause-9 of the appeal memo the appellate authority having entertained the appeal disposed of the same on merits by affording opportunity of hearing to the parties, the petitioner cannot and could not have raised ground of limitation at this point of time. Consequentially, the primary contention raised by the learned counsel for the petitioner that the appeal preferred by opposite party no.2 was barred by limitation, cannot sustain in the eye of law.
16. In paragraph-11 of Chhattisgarh State Electricity Board (supra), it has been specifically stated that the brief analysis of the scheme of the Electricity Act shows that it is a self-contained comprehensive legislation, which not only regulates generation, transmission and distribution of electricity by public bodies and encourage public sector participation in the process but also ensures creation of special adjudicatory mechanism to deal with the grievance of any person aggrieved by an order made by an adjudicating office under the Act except under Section 127 or an order made by the appropriate commission. The apex Court having clarified the position excluding Section 127 of the Electricity Act from the special 28 adjudicating mechanism, the applicability of Limitation Act vis-à- vis the rigorous of the limitation prescribed under the said Act should be considered liberally. Moreover, paragraph-11 specifically deals with the provisions contained under Section 125 of the Electricity Act, which is not applicable to the present context. As such, the ratio decided in Chhattisgarh State Electricity Board (supra) is not applicable to the present context because the same was dealt with Section 125 of the Electricity Act, 2003 whereas the case in hand relates to Section 127 of the said Act. In view of such position, this Court is of the considered view that the appellate authority having entertained the appeal by considering the reasons for delay in preferring the same, which has been well explained in the appeal memo, this Court finds no illegality or irregularity in the same and negatives the contention raised by learned counsel for the petitioner.
17. The next contention was raised by learned counsel for the petitioner that opposite party no.2, having consumed the electricity by tapping, the same amounts to commission of theft of power as contemplated under Section 135 of the Electricity Act, but no material was produced before this Court to draw such conclusion with regard to theft of electricity by opposite 29 party no.2. On the other hand, it is the case of the petitioner that at 11 PM on 11.12.2010 an inspection was conducted in presence of the WESCO staff, wherein opposite party no.2 was found to be using electricity unauthorizedly, for which provisional assessment was made under Section 126 (1) of the Act, and that there is a difference between theft of electricity vis-à-vis unauthorized use of power of a consumer. Be that as it may, if opposite party no.2 was using electricity unauthorizedly and an inspection was caused at 11 PM on 11.12.2010, the same should have been done in presence of the consumer- opposite party no.2 as required under the law. In spite of the order passed by this Court on 13.04.2017, nothing has been produced by the petitioner to substantiate that inspection was conducted in presence of the consumer and he was a signatory to the inspection report for unauthorized use of power.
18. In Executive Engineer, Southern Electricity Supply Company of Orissa Limited (supra), the apex Court had the occasion to deal with the construction of words "unauthorized use" and "means". In paragraphs-36 to 51 of the said judgment, the apex Court vividly discussed the same and observed that by using expression "means" would not always be 30 open to such a strict construction that the terms mentioned in a definition clause under such expression would have to be inevitably treated as being exhaustive. There can be large number of cases and examples where even the expression "means" can be construed liberally and treated to be inclusive but not completely exhaustive of the scope of the definition, of course, depending upon the facts of a given case and the provisions governing that law.
19. Reliance was also placed on the judgment dated 01.02.2012 of the High Court of Punjab and Haryana rendered in CWP No. 14151 of 2010 (Gurpreet Kaur v. PSEB and others), which deals with the provisions contained in sub- section (5) of Section 126 of the Electricity Act, 2003, which says that wherever the period of unauthorized use is not ascertainable, the maximum period of 12 months has been prescribed for calculating the amount of theft of energy. But, here is a case where unauthorized use of power has been ascertained by the authority concerned, while adjudicating the matter and determined the liability of consumer-opposite party no.2, and in appeal itself the appellate authority reduced the 31 penalty from Rs.2,13,02,241/- to Rs.31,01,130/- considering the materials available on record.
20. As it transpires, the appellate authority has directed to pay a sum of Rs.31,01,130/- in place of Rs.2,13,02,241/-. Opposite party no.2 having deposited Rs.50,00,000/- on 18.03.2011, pursuant to interim order passed by this Court in WP(C) No. 176 and 763 of 2011, and subsequently a sum of Rs.56,51,120/- through RTGS in order to file appeal under Section 127(2) of the Electricity Act, in total opposite party no.2 had deposited a sum of Rs.1,06,51,120/-. Therefore, excluding Rs.31,01,130/-, the balance amount of Rs.75,49,990/- is to be refunded or adjusted in the future electricity bill, which would be prepared on the basis of the actual consumption of electricity by opposite party no.2.
21. For the reasons ascribed hereinbefore, this Court finds no merits in the writ application, which is accordingly dismissed. No order to cost.
Sd/-
(DR. B.R. SARANGI ) JUDGE The High Court of Orissa, Cuttack Dated the 13th July, 2017/Ashok/GDS True copy Sr. Steno