Jharkhand High Court
Castron Technologies Ltd vs The Damodar Valley Corporation Through ... on 16 December, 2022
Author: Ravi Ranjan
Bench: Chief Justice, Sujit Narayan Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No.3704 of 2012
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Castron Technologies Ltd., having its works at Bokaro
Industrial Area, Balidih, P.O. Balidih, P.S. Balidih, Dist.
Bokaro, through one of its Directors Ashok Kumar
Choudhary, Son of Late Nil Chand Choudhary, Resident of
Chiragora, Dhanbad, P.O. & P.S. Dhanbad, Dist. Dhanbad
... ... Petitioner
Versus
1. The Damodar Valley Corporation through its Chairman,
DVC Building, VIP Road, P.O., P.S. & District Kolkata
(W.B.).
2. The Chairman, Damodar Valley Corporation, DVC
Building, VIP Road, P.O., P.S. & District Kolkata (W.B.).
3. The Chief Engineer (Commercial), Damodar Valley
Corporation, DVC Building, VIP Road, P.O., P.S. &
District Kolkata (W.B.).
4. The Superintending Engineer (Commercial), Damodar
Valley Corporation, DVC Building, VIP Road, P.O., P.S. &
District Kolkata (W.B.).
5. Assistant Engineer (Electrical), Damodar Valley
Corporation, BIADA sub-station, GOMD-IVB, Putki, P.O.
& P.S. - Putki, District-Dhanbad.
... ... Respondents
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CORAM : HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Petitioner : Mr. Navniti Kumar Singh, Sr. Advocate
Mr. Dhananjay Kumar Pathak, Advocate
For the Resp. DVC : Mr. R.N.Sahay, Senior Advocate.
Mr. Prashant Kr. Singh, Advocate
Mr. Soumitra Boroi, Advocate
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C.A.V. on 14.09.2022 Pronounced on 16.12.2022
Per Sujit Narayan Prasad, J.
The instant writ petition is under Article 226 of the Constitution of India seeking for direction upon the respondents to restore the power supply of the petitioner which has been disconnected on 25.06.2012.
Further prayer has been made for quashing of the report dated 25.06.2012 as also for showing cause that on what -2- basis and without any authentic report by a competent testing agency regarding the flaw in the CT device, the respondents can be permitted to realized the amount as mentioned in the FIR.
Further prayer has been made for quashing of the assessment order passed under Section 135 of the Electricity Act, 2003, (hereinafter to be referred to as the Act, 2003) communicated vide letter dated 02.07.2012 whereby without following the procedure prescribed by law as stipulated under Section 126 of the Act 2003 and 15.8 of the supply Code Regulation, the respondents have assessed the amount of Rs. 4,14,49,512/- and has ordered to pay the same.
2. Brief facts of the case, as per the pleadings made in the writ petition, which are required to be enumerated herein, read as under :-
The writ petitioner has got an electricity connection in HT Category with the respondent Damodar Valley Corporation (hereinafter to be referred to as DVC) vide Consumer No. 34173 for a contract demand of 3000 KVA.
On 17.12.2011, the respondents have inspected the devices and Meter in the premises of the petitioner and the respondents with the consent and agreement of the petitioner, installed a new Meter in the same series with old existing Meter of the petitioner. While commissioning of the said new meter, the C.T. ratio and P.T. ratio was also verified -3- by the respondents so as to equalize the ratio of the old as well as new meter and a joint report was also prepared on 17.12.2011, copy of which had been supplied to the representative of the petitioner.
It is the case of the writ petitioner that the monthly inspection for the purpose of taking the meter reading has been made till May 2012 and reports have been prepared which was duly signed by the authority of the respondents as well as by the representative of the petitioners. No deficiency and discrepancies was alleged against the petitioner till the month of May, 2012. But, on 20.06.2012 there had been a breakdown in the supply of electricity to the petitioner through the DVC supply line and many lightning arrestors and other devices were burnt, consequent upon the same, the devices were changed by the petitioner.
On 25.06.2012 some authorities of respondents visited the premises of the petitioner to inspect the metering unit, meter and other devices by opening the seal of the meter room on the basis of secret information regarding mischief having been done. The representative of the writ petitioner fully co-operated with the authority in the inspection. However, authorities in course of inspection, had prepared rough reports as they have not found anything adverse and such report was not even counter signed by the petitioner/ representative.
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The DVC authorities had taken shutdown of the power for the purpose of inspection but did not restore the power supply of the petitioner without disclosing any reason. The representative of the writ petitioner visited the office of respondents but they did not get any response and on next day, i.e., on 26.06.2012, the petitioner came to know from the official of respondent no.5 that an FIR has been lodged against the petitioner company by the respondent no.5 for pilfering electricity being Balidih P.S. Case no.93 of 2012 dated 26.06.2012 under Section 379 IPC and Section 135 Electricity Act.
The respondent authorities, thereafter, served assessment of demand to the tune of Rs.4.14 Crore which according to the writ petitioner, is absolutely incorrect and improper decision.
The writ petitioner, in the aforesaid background, has approached this Court by filing the instant writ petition.
3. Mr. Navniti Kumar Singh, learned senior counsel appearing for the petitioner has submitted that it is not evident from the FIR or from any other document whether the respondent no.5 has been authorized by the competent authority under Section 135 of the Act 2003. Similarly it is not evident as to whether the respondent no.5 or any other authority had authorization as assessing authority under Section 126/135 of Electricity Act, 2003. Thus, the entire -5- exercise and actions of the respondents has been sought to be declared as null and void.
The further ground has been taken by the writ petitioner that as per the Electricity Act, 2003 the assessment of loss of energy charges has to be made by an assessing authority after affording due opportunity of hearing to the petitioner, that too after service upon it a provisional assessment order but respondents have neither prepared any provisional assessment order nor it has been served upon the petitioner nor even any assessment proceeding has taken place.
The writ petitioner, in the aforesaid background, has submitted that the provisional assessment which has been made in pursuance to the provision as contained under Section 126 of the Act, 2003, is absolutely false and is not in pursuance to the provision contained therein read with Clause 15.8 of the Electricity Supply Code.
Learned counsel for the petitioner, in order to buttress his argument, has placed reliance on the judgment rendered by Hon'ble Apex Court in West Bengal state Electricity Distribution Company Limited & Others Vs Orion Metal Private Limited and Another [(2020) 18 SCC 588].
4. Mr. R.N.Sahay, learned senior counsel for the respondents, on the other hand, has submitted that the inspection which was made by the DVC team had visited the premises of the petitioner on 25.06.2012 at 11.30 hrs and -6- after taking the shutdown available at around 13.40 hrs inspected the metering cubicle Tarrif Meters etc. and during inspection by the help of CT analyzers the testing team tested both the R phase and B-phase CTS and found that CT secondary current has been diverted through this CT shot circuit arrangement, as such it is very clear case of electricity pilferage.
The contention has been raised that the spot report was prepared but even after asking the representative of the petitioner no signature was put on it and accordingly the FIR was lodged on 26.06.2012.
The contention which has been raised on behalf of the petitioner that a rough report was prepared is absolutely incorrect, rather the said report was final and that was prepared on the basis of the inspection conducted by the concerned inspecting team.
According to the respondents, the actual energy was registered as 1701382 KWH for 25 days in the month of June 2012, i.e., up to 25th June 2012 and corresponding gross bill was Rs.68,27,306/- and loss of energy due to pilferage was 5278546 KWH and, therefore, the subsequent provisional bill was issued for Rs. 4,14,49,512/- as assessed by the Government authorized assessing officer, as such the demand is correctly raised.
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Further contention has been raised that the provisional assessment order under the covering letter bearing no. GOMD-IV/commercial 629 dated 02.07.2012 under the signature of Superintending Engineer towards theft of electricity by the petitioner was sent through registered post in compliance of the provision of the Regulation, therefore the letter dated 02.7.2012 addressed to the petitioner/consumer may be treated as provisional assessment of the consumption and matter may be referred to the accessing authority and petitioner may be provided an opportunity to file an objection under section 126(3) of the Act, 2003, for the purpose of providing opportunity of hearing and thereafter proceed to take action as provided under section 126(4)(5) and (6).
In order to buttress his argument, reliance has been placed on the Judgment rendered by the Hon'ble Apex Court in Executive Engineer Southern Electricity Supply Company Orissa Ltd. (SOUTHCO) & Anr. Vs. Sri Seetaram Rice Mill [(2012) 2 SCC 108].
The further plea of the respondent DVC is that the judgment upon which reliance has been placed on behalf of the writ petitioner upon the judgment rendered by Hon'ble Apex Court in West Bengal state Electricity Distribution Company Limited & Ors. Vs Orion Metal Private Limited and Another (Supra), but even in the said judgment also at paragraph 12 to 16 it has been held that the parallel -8- proceeding is permissible under Section 126 and 135 of the Act, 2003. Therefore, the assessment of unauthorized use of electricity by the petitioner/consumer, being a parallel proceeding, is maintainable under section 126 of the Act, 2003 along with a proceeding under Section 135 of the Act, 2003.
5. Reply to the counter affidavit has been filed by the petitioner wherein the plea has been taken by rebutting the stand inter alia taken by the respondents in the counter affidavit that the petitioner company has subsequently been acquitted from the criminal case and the trial court while coming to the conclusion of acquitting the petitioner company from the criminal liability, has found that the evidence placed by the prosecuting agency is not sufficient to prove the charge. There is specific finding also by the trial court discarding the evidence which has been produced before the trial court by the prosecuting agency, i.e., the wire etc. Therefore, contention has been raised on behalf of the petitioner that the writ petitioner has been honourably exonerated from the criminal charges, which also suggests that the action of the respondent DVC is nothing but only to harass and in that view of the matter also, after acquittal of the petitioner company from the criminal charges, there is no justification in keeping the demand pending against the writ petitioner as is being said by the respondents in their counter -9- affidavit saying the same to be treated as provisional assessment under the provision of Section 126 of the Act, 2003.
Learned counsel appearing for the petitioner has submitted that the moment the FIR has resulted into honourable acquittal of the petitioner company on the basis of lack of evidence, the entire liability as is being now raised in the garb of assessment being made under Section 126 of the Act, 2003, requires interference by this Court.
Learned counsel for the petitioner further submits that the writ petitioner has already deposited 50% of the tentative assessment amount of loss, i.e., Rs.75 lacs for restoration of proper supply in pursuance to the interim order dated 26.07.2012. The said deposit was subject to result of the writ petition. Since the writ petitioner has been acquitted honourably in the criminal case, as such, nothing remains therein to take the plea of unauthorized use of electricity in the light of the provision of Section 126(3) of the Act, 2003. The demand which is being made by way of provisional assessment under Section 126(3) of the Act, 2003 requires interference also for the reason that the process as stipulated under Section 126 of the Act, 2003 has not been followed since the petitioner company has not been provided opportunity to file objection, as required to be filed in view of the provision of Section 126(3) of the Act, 2003.
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Since the respondent DVC has flouted the statutory provision even while casting liability upon the writ petitioner regarding the assessment being made under Section 126 of the Act, 2003, in that view of the matter also, the assessment so made under Section 126 of the Act, 2003 requires interference and is fit to be quashed and set aside and in consequence thereof, the amount which has been deposited to the tune of Rs.75 lacs in the light of interim order dated 26.07.2012 and further Rs. 25 lacs at the time of getting anticipatory bail by virtue of the order passed in A.B.A. No.3213 of 2012, is required to be refunded back in favour of the writ petitioner.
6. We have heard the learned counsel for the parties, perused the documents available on record as also the finding recorded by the learned Single Judge in the impugned order.
7. This Court has gathered from the material available on record and the argument advanced on behalf of the petitioner, the following grounds in questioning the assessment so made under Section 126 of the Act, 2003:-
(i) The provision stipulated under Section 126 of the Act, 2003 has not been followed since the writ petitioner has not been provided an opportunity to file objection as required to be filed under Section 126(3) of the Act, 2003.
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(ii) The inspection so made under Section 126 (1) of the Act, 2003 cannot be construed to be an inspection made in strict sense as per the provision stipulated under Section 126 of the Act, 2003 since there is no signature of the representative of the petitioner company in the so called provisional assessment.
(iii) The writ petitioner has been acquitted in the criminal case and once there is honourable acquittal in the criminal case, even on that pretext the writ petitioner cannot be held liable to make payment of assessment so made under Section 126 of the Act, 2003.
8. While on the other hand, the respondents have taken the ground that the main contention of the writ petitioner that there is violation of the statutory provision of not providing opportunity to file objection to the writ petitioner, the same cannot be considered to be a sustainable ground for interfering with the demand, rather the best course available will be to provide an opportunity to the writ petitioner to file objection.
Such ground has been taken mainly for the reason that the very object and intent of the Electricity Act, 2003 is to secure public money and avoid theft/unauthorized use of electricity.
The writ petitioner, therefore, is raising the technical issue and, if that be so, the opportunity can be provided to
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the writ petitioner instead of quashing the demand raised by the respondents against the writ petitioner.
There is no bearing of proceeding initiated under Section 135 of the Act, 2003 on the proceeding initiated under Section 126 of the Act, 2003 since both run parallely on different context. Even if the writ petitioner has been acquitted in the criminal case, then also the writ petitioner cannot be allowed to escape from its liability with respect to the unauthorized use of electricity as is being covered under the provision of Section 126 of the Act, 2003.
9. This Court, on the basis of the aforesaid grounds, as has been agitated on behalf of the petitioner, is first required to answer the following issues :-
(i) Whether the institution of FIR under Section 135 of the Act, 2003 has any bearing upon the assessment so made under Section 126 of the Act, 2003?
(ii) Since the writ petitioner has been acquitted from the criminal case, can he be allowed to escape from its liability with respect to unauthorized use of electricity in view of the provision of Section 126 of the Act, 2003?
(iii) Whether merely because there is procedural lacunae as provided under Section 126 of the Act, 2003, the entire demand on technical ground can be quashed and set aside without taking into consideration the very object and intent of the Electricity Act, 2003 which per se is for avoiding the
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electricity theft and misutilization of electricity and thereby misutilization of public money?
10. This Court, before entering into the aforesaid issues, is required to refer herein that the electricity supply in India was governed by three enactments, namely, Indian Electricity Act, 1910, the Electricity (Supply) Act, 1948 and the Electricity Regulatory Commission Act, 1998.
The Indian Electricity Act, 1910, created the basic framework for the electric supply industry in India which was then in its fancy.
The Act envisaged growth of the electricity through private licensee. It created the legal framework for laying down of wires and other works relating to the supply of electricity. The Electricity Supply Act, 1948 mandated the creation of State Electricity Board having the responsibility of arranging the supply of electricity in the State. But, over a period of time, however, the performance of the State Electricity Boards has deteriorated substantially on account of various factors. For instance, the power to fix tariff vests with the State Electricity Boards, they have generally been unable to take decision on tariffs in a professional and independent manner and tariff determination practice has been done by the State Governments.
To address this issue and to provide for distancing of Government from determination of tariffs, the Electricity
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Regulatory Commission Act was enacted in 1998. It created the Central Electricity Regulatory Commission and has enabling provision through which the State Governments can create State Electricity Regulatory Commission. But different States have undertaken reforms through their own Reform Acts by separating Boards into separate generation, transmission and distribution companies. With the policy of encouraging private sector's participation in generation, transmission and distribution and the objective of distancing the regulatory responsibility from the Government to the Regulatory Commission, the need for harmonizing and rationalizing the provisions in the Indian Electricity Act, 1910, the Electricity (Supply) Act, 1948 and the Electricity Regulatory Commission Act, 1998 in a new self-contained comprehensive legislation arose. Accordingly, it became necessary to enact a new legislation for regulating the electricity supply in the country which would replace the existing laws, preserve its core features other than those relating to the mandatory existence of State Electricity Boards and the responsibility of the State Government and the State Electricity Boards with respect to regulating licenses. There is also need to provide for newer concepts like power trading and open access.
Apart from that, the other object was to restrict the misutilization and loss of revenue to the Electricity Boards.
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11. After a period of time the performance of Electricity Boards has deteriorated substantially on account of various factors, one of the factors was the theft of the electricity and in order to meet out the situation, the provision of Section 126 has been incorporated in the new Act which provides a provision to deal with a situation of use of electricity unauthorisedly apart from the penalties to be imposed on account of theft of electricity as per the provision made under Section 135. Section 126 reads as under:
―126.Assessment-(1) If on an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found connected or uses, 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
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days of service of such provisional assessment order upon him.
(5) If the assessing officer reaches to the conclusion that unauthorized 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 unauthorized use of electricity has taken place cannot be ascertained, such period shall be limited to a period of twelve months immediately preceding the date of inspection.
(6) The assessment under this section shall be made at a rate equal to [twice] the tariff 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 person or authority or licensee concerned; or
(iii) through a tampered meter; or
(iv) for the purpose other than for which the usage of electricity was authorised; or
(v) for the premises or areas other than those for which the supply of electricity was authorised.‖ The definition of ―unauthorized use of electricity‖ with explanation ‗(b)' of Section-126 of the Act, 2003 is as follows:-
―(b) ―unauthorized use of electricity‖ means the usage of electricity-
(i) by any artificial means; or
(ii) by a means not authorized by the concerned person or authority or licensee; or
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(iii) through a tampered meter; or
(iv) for the purpose other than for which the usage of electricity was authorized; or
(v) for the premises or areas other than those for which the supply of electricity was authorized.‖ Part XIV of the Act, 2003 provides theft of electricity which is relevant in the present case as follows:-
"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 damaged or destroyed as to interfere with the proper or accurate metering of electricity; or
(d) uses electricity through a tampered meter; or
(e) uses electricity for the purpose other than for which the usage of electricity was authorized, 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 find 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;
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(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 authorized shall disconnect the supply line of electricity:
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
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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.‖
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12. The issue about applicability of Section 126 and 135 of the Electricity Act, 2003 arose in case of Executive Engineer Southern Electricity Supply Company Orissa Ltd. (SOUTHCO) & Anr. v. Sri Seetaram Rice Mill (Supra).
In the aforesaid case the Hon'ble Apex Court had the occasion to consider the distinction between the unauthorized use of electricity as provided in Section 126 of the Act, 2003 and theft of electricity as provided under Section 135 of the Act, 2003. While dealing with the issue it has been laid down at para 24 to 30 which reads as under:-
"24. Upon their plain reading, the marked differences in the contents of Sections 126 and 135 of the 2003 Act are obvious. They are distinct and different provisions which operate in different fields and have no common premise in law. We have already noticed that Sections 126 and 127 of the 2003 Act read together constitute a complete code in themselves covering all relevant considerations for passing of an order of assessment in cases which do not fall under Section 135 of the 2003 Act.
25. Section 135 of the 2003 Act falls under Part XIV relating to ―offences and penalties‖ and title of the section is ―theft of electricity‖. The section opens with the words ―whoever, dishonestly‖ does any or all of the acts specified under clauses (a) to (e) of sub-section (1) of Section 135 of the 2003 Act so as to abstract or consume or use electricity shall be punishable for imprisonment for a term which may extend to three years or with fine or with both. Besides imposition of punishment as specified under these provisions or the proviso thereto, sub-section (1-A) of Section 135 of the 2003 Act provides that without prejudice to the provisions of the 2003 Act, the licensee or supplier, as the case may be, through officer of rank authorised in
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this behalf by the appropriate commission, may immediately disconnect the supply of electricity and even take other measures enumerated under sub- sections (2) to (4) of the said section. The fine which may be imposed under Section 135 of the 2003 Act is directly proportional to the number of convictions and is also dependent on the extent of load abstracted.
26. In contradistinction to these provisions, Section 126 of the 2003 Act would be applicable to the cases where there is no theft of electricity but the electricity is being consumed in violation of the terms and conditions of supply leading to malpractices which may squarely fall within the expression ―unauthorised use of electricity‖. This assessment/proceedings would commence with the inspection of the premises by an assessing officer and recording of a finding that such consumer is indulging in an ―unauthorised use of electricity‖. Then the assessing officer shall provisionally assess, to the best of his judgment, the electricity charges payable by such consumer, as well as pass a provisional assessment order in terms of Section 126(2) of the 2003 Act.
27. The officer is also under obligation to serve a notice in terms of Section 126(3) of the 2003 Act upon any such consumer requiring him to file his objections, if any, against the provisional assessment before a final order of assessment is passed within thirty days from the date of service of such order of provisional assessment. Thereafter, any person served with the order of provisional assessment may accept such assessment and deposit the amount with the licensee within seven days of service of such provisional assessment order upon him or prefer an appeal against the resultant final order under Section 127 of the 2003 Act. The order of assessment under Section 126 and the period for which such order would be passed has to be in terms of sub-sections (5) and (6) of Section 126 of the 2003 Act. The Explanation to Section 126 is of some significance, which we shall
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deal with shortly hereinafter. Section 126 of the 2003 Act falls under Part XII and relates to investigation and enforcement and empowers the assessing officer to pass an order of assessment.
28. Section 135 of the 2003 Act deals with an offence of theft of electricity and the penalty that can be imposed for such theft. This squarely falls within the dimensions of criminal jurisprudence and mens rea is one of the relevant factors for finding a case of theft. On the contrary, Section 126 of the 2003 Act does not speak of any criminal intendment and is primarily an action and remedy available under the civil law. It does not have features or elements which are traceable to the criminal concept of mens rea.
29. Thus, it would be clear that the expression ―unauthorised use of electricity‖ under Section 126 of the 2003 Act deals with cases of unauthorised use, even in the absence of intention. These cases would certainly be different from cases where there is dishonest abstraction of electricity by any of the methods enlisted under Section 135 of the 2003 Act. A clear example would be, where a consumer has used excessive load as against the installed load simpliciter and there is violation of the terms and conditions of supply, then, the case would fall under Section 126 of the 2003 Act. On the other hand, where a consumer, by any of the means and methods as specified under Sections 135(a) to 135(e) of the 2003 Act, has abstracted energy with dishonest intention and without authorisation, like providing for a direct connection bypassing the installed meter, the case would fall under Section 135 of the Act.
30. Therefore, there is a clear distinction between the cases that would fall under Section 126 of the 2003 Act on the one hand and Section 135 of the 2003 Act on the other. There is no commonality between them in law. They operate in different and distinct fields. The assessing officer has been vested with the powers to pass provisional and final order of assessment in cases
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of unauthorised use of electricity and cases of consumption of electricity beyond contracted load will squarely fall under such power. The legislative intention is to cover the cases of malpractices and unauthorised use of electricity and then theft which is governed by the provisions of Section 135 of the 2003 Act.‖ It is further evident from the judgment rendered in the case of Sri Seetaram Rice Mill (supra) wherein while considering the acts enumerated under Section 135 of the aforesaid Act, 2003 with reference to the word ―dishonesty‖ occurring at the commencement of Section 135 of the Act 2003 and if the dictionary meaning of the word ―dishonest‖ would be taken, at paragraph 35 the Hon'ble Supreme Court has held as follows:-
"35. All these explanations clearly show that dishonesty is a state of mind where a person does an act with an intent to deceive the other, acts fraudulently and with a deceptive mind, to cause wrongful loss to the other. The act has to be of the type stated under sub-sections (1)(a) to (1)(e) of Section 135 of the 2003 Act. If these acts are committed and that state of mind, mens rea, exists, the person shall be liable to punishment and payment of penalty as contemplated under the provisions of the 2003 Act. In contradistinction to this, the intention is not the foundation for invoking powers of the competent authority and passing of an order of assessment under Section 126 of the 2003 Act.‖ So far as ambit and scope of Section 126 with reference to word ―unauthorized use‖ means at paragraph 37 to 40 the Hon'ble Supreme Court has held as follows:-
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"37. Wherever the assessing officer arrives at the conclusion that unauthorised use of electricity has taken place, the assessment shall be made for the entire period during which such unauthorised use of electricity has taken place and if such period cannot be ascertained, it shall be limited to a period of 12 months immediately preceding the date of inspection and the assessment shall be made at the rate equal to twice the tariff applicable for the relevant category of service specified under these provisions. This computation has to be taken in terms of Sections 126(5), 126(6) and 127 of the 2003 Act. The complete procedure is provided under these sections. Right from the initiation of the proceedings till preferring of an appeal against the final order of assessment and termination thereof, as such, it is a complete code in itself.
38. We have already indicated that the provisions of Section 126 do not attract the principles of criminal jurisprudence including mens rea. These provisions primarily relate to unauthorised use of electricity and the charges which would be payable in terms thereof. To determine the controversy in the present case, it will be essential to examine the implication of the expression ―unauthorised use of electricity‖ as contained in Explanation (b) of Section 126 of the 2003 Act.
39. In order to explain these expressions, it will be necessary for us to refer to certain other provisions and the Regulations as well. These expressions have to be understood and given meaning with reference to their background and are incapable of being fairly understood, if examined in isolation. It is always appropriate to examine the words of a statute in their correct perspective and with reference to relevant statutory provisions. The expression ―unauthorised use of electricity‖ on its plain reading means use of electricity in a manner not authorised by the licensee of the Board. ―Authorisation‖ refers to the permission
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of the licensee to use of electricity, subject to the terms and conditions for such use and the law governing the subject.
40. To put it more aptly, the supply of electricity to a consumer is always subject to the provisions of the 2003 Act, State Acts, Regulations framed thereunder and the terms and conditions of supply in the form of a contract or otherwise. Generally, when electricity is consumed in violation of any or all of these, it would be understood as ―unauthorised use of electricity‖. But this general view will have to be examined in the light of the fact that the legislature has opted to explain this term for the purposes of Section 126 of the 2003 Act. The said provision, along with the Explanation, reads as under:
―126. Assessment.--(1) If on an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found connected or used, or after inspection of records maintained by any person, the assessing officer comes to the conclusion that such person is indulging in unauthorised use of electricity, he shall provisionally assess to the best of his judgment the electricity charges payable by such person or by any other person benefited by such use.
(2) The order of provisional assessment shall be served upon the person in occupation or possession or in charge of the place or premises in such manner as may be prescribed.
(3) The person, on whom an order has been served under sub-section (2), shall be entitled to file objections, if any, against the provisional assessment before the assessing officer, who shall, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment within thirty days from the date of service of such order of provisional assessment, of the electricity charges payable by such person. (4) Any person served with the order of provisional assessment may, accept such assessment and deposit
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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 unauthorised use of electricity has taken place and if, however, the period during which such unauthorised use of electricity has taken place cannot be ascertained, such period shall be limited to a period of twelve months immediately preceding the date of inspection.
(6) The assessment under this section shall be made at a rate equal to twice the tariff 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 person or authority or licensee concerned; or
(iii) through a tampered meter; or
(iv) for the purpose other than for which the usage of electricity was authorised; or
(v) for the premises or areas other than those for which the supply of electricity was authorised.‖ It is thus evident that the supply of electricity to a consumer is always subject to the provisions of the 2003 Act, State Acts regulations from thereunder and the terms and conditions of supply in the form of a contract or otherwise, when electricity consumed in violation of any or of these it would be understood as unauthorized use of electricity.
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The Hon'ble Apex Court in the aforesaid judgment has dealt with the meaning of unauthorized use of electricity which reads as under:
"41. The ―unauthorised use of electricity‖ means the usage of electricity by the means and for the reasons stated in sub-clauses (i) to (v) of clause (b) of the Explanation to Section 126 of the 2003 Act. Some of the illustratively stated circumstances of ―unauthorised use‖ in the section cannot be construed as exhaustive. The ―unauthorised use of electricity‖ would mean what is stated under that Explanation, as well as such other unauthorised user, which is squarely in violation of the abovementioned statutory or contractual provisions.
42. Black's Law Dictionary (8th Edn.) defines ―unauthorised‖ as ―done without the authority, made without actual, implied or apparent authority‖. ―Unauthorised‖ is a concept well recognised under different statutes, for example, under Section 31-A of the Delhi Development Act, 1957 (the DDA Act) the authority has the power to seal the ―unauthorised‖ development, if the misuser of the premises would come within the ambit of unauthorised development. But if such misuse does not come within the ambit of ―unauthorised development‖, such power is not available to the authority. Simpliciter misuse, therefore, may not fall within the ambit of unauthorised development under the provisions of the DDA Act.
43. In M.C. Mehta v. Union of India this Court held that if the misuse was in violation of the permission, approval or sanction or in contravention of any conditions, subject to which the said permission/approval has been granted in terms of Section 30 of the DDA Act, then it will be ―unauthorised use‖. We have primarily referred to this case to support the reasoning that ―unauthorised development‖ is one which is contrary to a master plan
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or zonal development plan as was the case under the DDA Act. Just as the right to develop a property is controlled by the restrictions of law as well as the terms and conditions of the permission granted for that purpose, the use of electricity is similarly controlled by the statutory provisions and the terms and conditions on which such permission is granted to use the electricity.
44. The unauthorised use of electricity in the manner as is undisputed on record clearly brings the respondent ―under liability and in blame‖ within the ambit and scope of Section 126 of the 2003 Act. The blame is in relation to excess load while the liability is to pay on a different tariff for the period prescribed in law and in terms of an order of assessment passed by the assessing officer by the powers vested in him under the provisions of Section 126 of the 2003 Act.
45. The expression ―means‖ used in the definition clause of Section 126 of the 2003 Act can have different connotations depending on the context in which such expression is used. In terms of Black's Law Dictionary (8th Edn.) p. 1001, ―mean‖ is--―of or relating to an intermediate point between two points or extremes‖ and ―meaning‖ would be ―the sense of anything, but esp. of words; that which is conveyed‖. The word ordinarily includes a mistaken but reasonable understanding of a communication. ―Means‖ by itself is a restrictive term and when used with the word ―includes‖, it is construed as exhaustive. In those circumstances, a definition using the term ―means‖ is a statement of literal connotation of a term and the courts have interpreted ―means and includes‖ as an expression defining the section exhaustively. It is to be kept in mind that while determining whether a provision is exhaustive or merely illustrative, this will have to depend upon the language of the section, scheme of the Act, the object of the legislature and its intent.
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46. ―Purposive construction‖ is certainly a cardinal principle of interpretation. Equally true is that no rule of interpretation should either be overstated or overextended. Without being overextended or overstated, this rule of interpretation can be applied to the present case. It points to the conclusion that an interpretation which would attain the object and purpose of the Act has to be given precedence over any other interpretation which may not further the cause of the statute. The development of law is particularly liberated both from literal and blinkered interpretation, though to a limited extent.
47. The precepts of interpretation of contractual documents have also undergone a wide-ranged variation in the recent times. The result has been subject to one important exception to assimilate the way in which such documents are interpreted by Judges on the common sense principle by which any serious utterance would be interpreted by ordinary life. In other words, the common sense view relating to the implication and impact of provisions is the relevant consideration for interpreting a term of document so as to achieve temporal proximity of the end result.
48. Another similar rule is the rule of practical interpretation. This test can be effectually applied to the provisions of a statute of the present kind. It must be understood that an interpretation which upon application of the provisions at the ground reality, would frustrate the very law should not be accepted against the common sense view which will further such application.
49. Once the court decides that it has to take a purposive construction as opposed to textual construction, then the legislative purpose sought to be achieved by such an interpretation has to be kept in mind. We have already indicated that keeping in view the legislative scheme and the provisions of the 2003 Act, it will be appropriate to adopt the approach of purposive construction on the facts of this case. We
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have also indicated above that the provisions of Section 126 of the 2003 Act are intended to cover the cases over and above the cases which would be specifically covered under the provisions of Section 135 of the 2003 Act.
51. The primary object of the expression ―means‖ is intended to explain the term ―unauthorised use of electricity‖ which, even from the plain reading of the provisions of the 2003 Act or on a common sense view cannot be restricted to the examples given in the Explanation. The legislature has intentionally omitted to use the word ―includes‖ and has only used the word ―means‖ with an intention to explain inter alia what an unauthorised use of electricity would be. It must be noticed that clause (iv) of Explanation (b) and sub- section (5) of Section 126 of the 2003 Act were both amended/substituted by the same amending Act 26 of 2007, with a purpose and object of preventing unauthorised use of electricity not amounting to theft of electricity within the meaning of Section 135 of the 2003 Act. This amendment, therefore, has to be given its due meaning which will fit into the scheme of the 2003 Act and would achieve its object and purpose.
52. The expression ―means‖ would not always be 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 a 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.‖ The meaning of word ―means‖ as has been considered by the Hon'ble Apex Court in the case of K. V. Muthu v.
Angamuthu Ammal [(1997) 2 SCC 53] wherein at paragraph
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10 the Hon'ble Apex Court has explained the word ―means‖ as follows:-
―10. Apparently, it appears that the definition is conclusive as the word ―means‖ has been used to specify the members, namely, spouse, son, daughter, grandchild or dependant parent, who would constitute the family. Section 2 of the Act in which various terms have been defined, opens with the words ―in this Act, unless the context otherwise requires‖ which indicates that the definitions, as for example that of ―family‖, which are indicated to be conclusive may not be treated to be conclusive if it was otherwise required by the context. This implies that a definition, like any other word in a statute, has to be read in the light of the context and scheme of the Act as also the object for which the Act was made by the legislature.‖ The word dishonestly as defined under Section 135 also needs to be dealt with, the word dishonestly defined under section 24 of the Indian Penal Code states that whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person is said to do that thing dishonestly.
In the case of Dr. S. Dutt vs. State of U.P [AIR 1966 SC 523] the Hon'ble Apex Court has defined the word dishonestly, as a person who does intent with the intention of causing wrongful gain to one person or wrongful loss to another person.
In another judgment in the case of Ramratan and Ors.
vs. The State of Bihar & Anr. [AIR 1965 SC 926], the Hon'ble Apex Court has observed that a person is said to do a
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thing dishonestly when he does intent with the intention of causing wrongful gain to one person or wrongful loss to another person.
13. As per the provision of Sub section 2 to 5 of Section 126 of the Act the order of provisional assessment shall be served upon the persons in occupation or possession or in charge of the place of premises in such manner as may be prescribed while the procedure is also contemplated in the case of theft following under any of the Acts, enumerated under Section 135(1) a 2(e).
Part XIV of the Electricity Act, 2003 relates to offences and penalties and Section 135 provides theft of electricity.
Section 135(1) provides that whoever dishonestly, 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 tampers a meter or installs or use a tampered meter which enforce with accurate and provide registered, calibration or metering of electricity current or otherwise relates in a manner whereby electricity is stolen or wasted, damages or destroys electric meter, 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.
Section 135(2) provides that any officer, authorized in this behalf by the State Government, may enter, inspect,
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break upon and storage any place or premises in which he has reason to play with electricity is used unauthorisedly, and search and seized remove of such devices, instruments, wires or article which has been or is being used for unauthorized use of electricity. Under Section 135(4) the provisions of the Code of criminal procedure, relating to search and seizure, shall apply to searches and seizure under the Act. Under Section 147 the penalties imposed under Electricity Act, 2003 shall be in addition to and not in derogation to, any liability in respect of payment of compensation.
Part XV relates to special courts and Section 153 to the constitution of special courts.
Under Section 153(1) the State Government may, for the purpose of providing speedy trial of offence, refer to in section 135 to 139 by notification in the official gazette, constitute as many special courts as may be necessary for such area or areas, as may be specified in the notification.
Section 154 prescribes the procedure and power of special courts and under sub section (1) every offence punishable under Section 135 to 139, shall be triable only by the special courts.
Section 154(4) enables the special court to determine the civil liability against a consumer, or a person, in terms of money for theft of energy which shall not be less than an
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amount equivalent to two times tarrif rate applicable for a period of twelve months providing the date of detection of theft of energy or the exact period of theft if determined, whichever is less and the amount of civil liability so determined shall be recovered as if it were decreed to the civil court.
In the explanation of Section 154 ―civil liability‖ is defined to mean the loss or damage incurred by the Board or the licensee or the concerned person, as the case may be, due to commission of an offence referred under Section 135 to
139. Here it also needs to refer the judgment rendered by Constitution Bench of Hon'ble Apex Court in the case of Tinsukhia Electric Supply Co. Ltd. vs. State of Assam and Others, reported in (1989) 3 SCC 709 where at para 118 and 120 it has been laid down that the provision of a statute must be so construed as to make it effective and operative, which reads as under:
"118. The courts strongly lean against any construction which tends to reduce a statute to futility. The provision of a statute must be so construed as to make it effective and operative, on the principle ―ut res magis valeat quam pereat‖. It is, no doubt, true that if a statute is absolutely vague and its language wholly intractable and absolutely meaningless, the statute could be declared void for vagueness. This is not in judicial review by testing the law for arbitrariness or unreasonableness under Article 14; but what a court of construction, dealing with the language of a statute,
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does in order to ascertain from, and accord to, the statute the meaning and purpose which the legislature intended for it.‖ ―Unless the words were so absolutely senseless that I could do nothing at all with them, I should be bound to find some meaning and not to declare them void for uncertainty.‖ ―120. It is, therefore, the court's duty to make what it can of the statute, knowing that the statutes are meant to be operative and not inept and the nothing short of impossibility should allow a court to declare a statute unworkable.‖ It is, thus, evident from the proposition laid down by Hon'ble Apex Court that provision as contained under Section 126 of the Act, 2003 is to run parallel to Section 135.
While Section 126 of the Act, 2003 relates with the unauthorized use of electricity which has the intent of mens rea but, on the other hand, if there is theft of electricity knowingly, then it will come under the fold of Section 135 of the Act, 2003.
The same view has recently been reiterated by Hon'ble Apex Court in the case of West Bengal state Electricity Distribution Company Limited Vs Orion Metal Private Limited and Another (Supra), wherein at paragraph 12 to 16 it has been held that the parallel proceeding is permissible under Section 126 and 135 of the Act, 2003. Paragraphs 12 to 16 read as hereunder:-
―12. A perusal of the aforesaid provisions and on giving a conjoint reading of the same, it appears to us that after an inspection of any place or any premises of any consumer, when the assessing officer comes to a
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conclusion that the consumer is indulging in unauthorised use of electricity, the provisional assessment to the best of his judgment is to be made in accordance with Section 126(1) of the Act and such provisional assessment shall be served upon the person in occupation of the premises. After giving an opportunity to file objections to the provisional assessment, the assessing officer is empowered to pass a final order of the assessment assessing the loss of energy, on account of unauthorised use of energy. The unauthorised use of electricity is defined under Section 126(6)(b) of the Act. It is clear from the aforesaid definition that unauthorised use of electricity means, the usage of electricity by any artificial means or by a means not authorised by the person or authority or licensee concerned; or through a tampered meter; or for the purpose other than for which the usage of electricity was authorised; or for the premises or areas other than those for which the supply of electricity was authorised.
13. It is clear from the reading of Section 126(6)(b)(iii) of the Act that instances of use of energy through a tampered meter is included in the definition of unauthorised use of electricity. If that is so, there is no reason, for excluding the power of the authorities for making assessment under Section 126(1) of the Act to assess the loss of energy, where electricity is used through a tampered meter. All instances of unauthorised use of energy may not amount to theft of electricity within the meaning of Section 135 of the Act, but at the same time, the theft of electricity which is covered by Section 135 of the Act, will fall within the definition of unauthorised use of electricity. As per Section 135(1-A) of the Act, without prejudice to the other provisions of the Act, the licensee or supplier, as the case may be, upon detection of theft of electricity, is empowered to disconnect the power supply immediately. Further, as per the third proviso to Section 135(1-A) of the Act, the licensee or supplier, as
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the case may be, on deposit or payment of assessed amount or electricity charges, without prejudice to the obligation to lodge a complaint, can restore the power supply electricity within forty-eight (48) hours of deposit/payment of such amount. Thus, it is clear that the authorities under the Act are empowered to make a provisional and final assessment by invoking power under Section 126(1) of the Act, even in cases where electricity is unauthorisedly used by way of theft. When a consumer deposits the assessed amount, the licensee or the supplier has to restore the power supply. The assessed amount referred to in the aforesaid proviso, relates to assessment which is contemplated under Section 126(1) of the Act only. There is apparent distinction between Section 126 and Section 135 of the Act. Section 126 forms part of the scheme which authorises electricity supplier to ascertain loss in terms of revenue caused to it by the consumer by his act of ―unauthorised use of electricity‖ whereas Section 135 deals with offence of theft if he is found to have indulged himself in the acts mentioned in clauses (a) to (e) of sub-section (1) of Section 135 of the Electricity Act. Further, it is also clear from Section 154 of the Act, which prescribes procedure and power of the Special Court, that the Special Court is empowered to convict the consumer and impose a sentence of imprisonment. The Special Court, in cases, where a criminal complaint is lodged, is also empowered to determine civil liability under Section 154(5) of the Act. As per Section 154(6) of the Act, in case civil liability so determined by the Special Court is less than the amount deposited by the consumer or the person, the excess amount so deposited by the consumer or the person, shall be refunded by the licensee or the person concerned, as the case may be. Merely because the Special Court is empowered to determine civil liability under Section 154(5) of the Act, in cases where a complaint is lodged, it cannot be said that there is no power conferred on
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authorities to make provisional assessment/final assessment under Section 126 of the Act.
14. In Southern Electricity Supply Co. of Orissa Ltd. v. Sri Seetaram Rice Mill [(2012) 2 SCC 108], this Court has considered the scope of the Explanation to Section 126(b)(iv) of the 2003 Act. In the aforesaid case, as there was no allegation of theft, this Court has held consumption in excess of sanctioned/contracted load, comes within the meaning of unauthorised use of electricity as per Explanation (b)(iv) of Section 126 of the Electricity Act, 2003. Drawing a distinction between Section 126 to that of Section 135 of the Act, paras 29 and 61 of the aforesaid judgment read as under : (SCC pp. 125 & 134) ―29. Thus, it would be clear that the expression ―unauthorised use of electricity‖ under Section 126 of the 2003 Act deals with cases of unauthorised use, even in the absence of intention. These cases would certainly be different from cases where there is dishonest abstraction of electricity by any of the methods enlisted under Section 135 of the 2003 Act. A clear example would be, where a consumer has used excessive load as against the installed load simpliciter and there is violation of the terms and conditions of supply, then, the case would fall under Section 126 of the 2003 Act. On the other hand, where a consumer, by any of the means and methods as specified under Sections 135(a) to 135(e) of the 2003 Act, has abstracted energy with dishonest intention and without authorisation, like providing for a direct connection by passing the installed meter, the case would fall under Section 135 of the Act.
***
61. Unauthorised use of electricity cannot be restricted to the stated clauses under the Explanation but has to be given a wider meaning so as to cover cases of violation of the terms and conditions of supply and the Regulations and
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provisions of the 2003 Act governing such supply. ―Unauthorised use of electricity‖ itself is an expression which would, on its plain reading, take within its scope all the misuse of the electricity or even malpractices adopted while using electricity. It is difficult to restrict this expression and limit its application by the categories stated in the Explanation. It is indisputable that the electricity supply to a consumer is restricted and controlled by the terms and conditions of supply, the Regulations framed and the provisions of the 2003 Act.‖
15. We also do not find any valid reason for making a distinction as made by the High Court in applying Section 126 of the Act. From the scheme of the Act, it appears that after inspection team notices unauthorised use of energy by tampering the meter, the authorities can disconnect the power supply immediately and make immediate assessment for loss of energy, by invoking power under Section 126(1) of the Act. The term ―unauthorised use of energy‖ is of wide connotation. There may be cases of unauthorised use of energy, not amounting to theft, which are cases viz. exceeding the sanctioned load or using the electricity in the premises where its use is not authorised, etc. But at the same time, when there is an allegation of unauthorised use of energy by tampering the meter, such cases of unauthorised use of energy include ―theft‖ as defined under Section 135 of the Act. The power conferred on authorities for making assessment under Section 126(1) of the Act and power to determine civil liability under Section 154(5) of the Act, cannot be said to be parallel to each other. In this regard, we are of the view that the High Court has committed an error in recording a finding, that both proceedings cannot operate parallelly. In a given case where there is no theft of energy, amounting to unauthorised use of energy, in such cases no complaint of theft can be lodged as contemplated under Section 135 of the Act. In such cases for loss of
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energy, on account of unauthorised use of energy not amounting to theft, it is always open for the authorities to assess the loss of energy by resorting to power under Section 126(1) of the Act. In cases where allegation is of unauthorised use of energy amounting to theft, in such cases, apart from assessing the proceedings under Section 126(1) of the Act, a complaint also can be lodged alleging theft of energy as defined under Section 135(1) of the Act. In such cases, the Special Court is empowered to determine civil liability under Section 154(5) of the Act. On such determination of civil liability by the Special Court, the excess amount, if any, deposited by the petitioner, is to be refunded to the consumer. It is a settled principle that to prove the guilt of the accused in a criminal proceeding, authorities have to prove the case beyond reasonable doubt and the element of mens rea is also to be established. On the other hand, such a strict proof is not necessary for assessing the liability under Section 126(1) of the Act.
16. For the aforesaid reasons, this civil appeal is allowed and the judgment and order dated 18-12-2017 passed by the High Court of Calcutta in Orion Metal (P) Ltd. v. W.B. State Electricity Distribution Co. Ltd. [2017 SCC OnLine Cal 20455] and the corrected order dated 7-2-2018 [2018 SCC OnLine Cal 15176], are set aside. No order as to costs.‖
14. In the given facts of the case, the fact is admitted that there was inspection of the petitioner premises where the electricity was being supplied, however, the same inspection has been disputed by the writ petitioner on the ground of non-observance of the provision as contained under Section 126 read with Clause 15.8 of the Electricity Supply Code.
Sub-section (1) of Section 126 of the Act, 2003, as has been quoted and referred hereinabove, contains a provision
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that if an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found connected or used, or after inspection of records maintained by any person, the assessing officer comes to the conclusion that such person is indulging in 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.
Sub-section (2) thereof provides that 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.
Sub-section (3) thereof provides that 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.
Sub-section (4) thereof provides that 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.
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Sub-section (2) provides that if the assessing officer reaches to the conclusion that unauthorized 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 unauthorized 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.
While Sub-section (6) thereof provides that the assessment under this section shall be made at a rate equal to [twice] the tariff applicable for the relevant category of services specified in sub-section (5).
The Assessing Officer has been defined as under
‗Explanation' as also the unauthorized use of electricity has been defined.
15. The Supply Code has been brought in force which contains under Clause 15.8 the procedure to be followed while taking recourse of Section 126 of the Act, 2003. For ready reference, the said clause is being referred as hereunder :-
―15.8 Method for assessment of electricity charges in case of theft of electricity
(i). Whenever a case of theft of energy is detected, the Authorized officer shall carry out assessment, in accordance with the procedure as laid down in the sections below:
Procedure for booking a case of theft of electricity
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(ii). The Licensee or supplier shall publish the list of the Authorized officers prominently in all the Offices and the Photo Identity Card issued to such officers shall indicate so.
(iii). An Authorized officer, suo motu or on receipt of reliable information regarding theft of electricity shall promptly conduct inspection of such premises.
(iv). The inspection team of the Licensee or supplier, headed by such Authorised officer shall carry along with them their Visiting Cards and Photo Identity Cards. Photo Identity Card should be shown and Visiting Card handed over to the consumer before entering the premises. Photo Identity Card of the Authorised Officer shall clearly indicate that he has been nominated as Authorized officer as per provisions of Section 135 of the Act.
(v). The Authorised officer shall prepare a report giving details such as connected load, condition of meter seals, working of meter and mention any irregularity noticed (such as tampered meter, artificial means adopted for theft of energy).
(vi). The report shall clearly indicate whether sufficient evidence substantiating the fact that theft of energy was found or not. The details of such evidence should be recorded in the report.
(vii). No case for theft shall be booked only on account of seals on the meter missing or tampered or breakage of glass window, unless corroborated by consumption pattern of consumer and such other evidence as may be available.
(viii). In case sufficient evidence is found to establish direct theft of electricity, Licensee or Supplier as per Section 135 sub-clause (1A) of the Act shall disconnect the supply and seize all material evidence including wires/cables, meter, service line etc., from the premises and 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. The Authorized
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officer of the Licensee or Supplier shall within two days from date of inspection, file a case against the consumer in designated Special Court as per the provisions of Section 135 of the Act. Copy of filing shall be served on the consumer under proper receipt within two days of such filing.
(ix). The Authorized officer shall assess the energy consumption as per the assessment formula given in ANNEXURE-I to these Regulations, for the entire period during which such theft of electricity has taken place and if, however, the period during which such theft of electricity has taken place can not be ascertained, such period shall be limited to 12 (twelve) months immediately preceding the date of inspection and prepare assessment order on twice (2) the rates as per applicable tariff and serve on the person under proper receipt. In case of a regular metered connection, where a case of theft of electricity is detected, units allowed to be recorded in the meter for which bills have been raised by the licensee to the person during the period, for which the assessment is made, shall be duly credited to the consumer.
(x). In case of suspected theft, the Authorised officer shall remove the old meter under a seizure memo and seal it in the presence of the consumer/ his representative and the Authorised officer and the consumer have to sign on the seal borne on the meter. The Licensee or supplier shall continue the supply to the consumer with a new meter. The old meter shall be tested in the presence of the consumer and the Authorised officer at a third party facility approved by the Commission which shall give a test report, in writing, which alongwith photographs/ videographs shall constitute evidence thereof. The Authorised officer shall record reasons to suspect theft in the premises in his report.
(xi). The report shall be signed by the Authorized officer and each member of the inspection team and the same must be handed over to the consumer or
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his/her representative at site immediately under proper receipt. In case of refusal by the consumer or his/her representative to either accept or give a receipt, a copy of inspection report must be pasted at a conspicuous place in/outside the premises and photographed. Simultaneously, the report shall be sent to the consumer under Registered Post/Speed Post on the day or the next day of the inspection.
Provided that, in case of suspected theft, if the consumption pattern for last one year is reasonably uniform and is not less than 75% of the assessed consumption, no further proceedings shall be taken and the decision shall be communicated to the consumer under proper receipt within three days and connection shall be restored through original meter.
(xii). After detailed examination of the evidence and the consumption pattern of the consumer, if the Licensee or supplier is convinced that a prima-facie case is made out for the abstraction, consumption or use of electricity dishonestly against the consumer, the Licensee or supplier shall, within seven days of inspection, serve a provisional assessment order assessed as per clause 15.8 (xxi) of these Regulations alongwith show cause notice to the consumer, giving reasons, as to why a case of theft should not be booked against such consumer giving full details for arriving at such decision and points on which reply has to be submitted. The notice should clearly state the time, date and place at which the reply has to be submitted and the designation of the person to whom it should be addressed.
(xiii). Incase show cause notice is not served even after thirty days from date of inspection by the Licensee or supplier, the case of suspected theft shall be considered as dropped and no further action can be initiated against the consumer.
(xiv). Theft shall not be limited to physical interference with the meter found during physical inspection. It shall also include theft committed by resorting to
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external methods such as remote control/ high voltage injection etc. which interfere with the accurate registration of energy consumed. Theft of electricity may be established by analysis of metering data down- loaded by a third party facility approved by the Commission. In case theft of energy is determined by way of meter down load, the provisional assessment order assessed as per clause 15.8 (xxi) of these Regulations alongwith show cause notice will be sent to the consumer/user. The notice should clearly state the time, date and place at which the reply has to be submitted and the designation of the person to whom it should be addressed.
(xv). The person, on whom an order has been served under clause 15.8 (xii) and (xiv) of these Regulations shall be entitled to file objections, if any, against the provisional assessment before the Authorized officer, who shall, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment.
Consumer's reply submission (xvi). The consumer shall submit his/ her reply within fifteen days of receipt of show cause notice to the concerned officer mentioned in clause 15.8 (xii) and
(xiv) of these Regulations.
(xvii). In such cases where the consumer files objections against the provisional assessment order, the process of hearing shall be as per clause 15.8 (xviii) and (xix) of these Regulations.
Hearing in case of suspected theft (xviii). Within five days from the date of submission of consumers' reply, the Licensee or supplier shall arrange a hearing with the consumer. The consumer may be given another opportunity in case he fails to appear for the hearing. In case, the consumer fails to appear for the second time, the Licensee may proceed against the consumer.
(xix). During the hearing, the Authorized officer shall give due consideration to the facts submitted by the
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consumer and pass, within five working days, a speaking order as to whether the case of theft is established or not. The order shall contain the brief of inspection report, submissions made by consumer in his written reply and oral submissions during hearing and reasons for acceptance or rejections of the same. Assessment (xx). In case of the decision based on the consumer's reply / hearing wherein the case of theft is not established, no further proceedings shall be required and electricity connection shall be restored through original meter.
(xxi). Where it is established that there is a case of theft of energy based on the consumer's reply / hearing, the Authorized officer shall assess the energy consumption as per the assessment formula given in ANNEXURE-I to these Regulations, for the entire period during which such theft of electricity has taken place and if, however, the period during which such theft of electricity has taken place can not be ascertained, such period shall be limited to 12 (twelve) months immediately preceding the date of inspection and prepare assessment order on twice (2) the rates as per applicable tariff and serve on the person under proper receipt. In case of a regular metered connection, where a case of theft of electricity is detected, units allowed to be recorded in the meter for which bills have been raised by the licensee to the person during the period, for which the assessment is made, shall be duly credited to the consumer.
(xxii). The consumer shall be required to make the payment within seven days of its proper receipt. (xxiii). The Licensee or supplier, as the case may be, on deposit or payment of the assessed amount or electricity charges in accordance with the provision of these regulations, shall, without prejudice to the obligation to lodge the complaint as referred to in the second proviso to the clause 13(A) (1A) of the Electricity (Amendment) Act, 2007, restore the supply
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line of electricity within forty eight hours of such deposit or payment.
(xxiv). If the person does not make payment within the stipulated time, the Licensee or supplier shall proceed to recover its dues against the assessment order. (xxv). In all cases where theft of electricity has been detected, the Licensee or supplier shall file the case with Appropriate Court for decision in the matter unless the offence is compounded under Section 152 of the Act.
(xxvi). In case of default by the person in payment of assessed amount, the person, in addition to the assessed amount, shall be liable to pay, on 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 pending adjudication by Appropriate Court.‖
16. The plea which is being taken on behalf of the writ petitioner that the procedure as laid down under Section 126 of the Electricity Act, 2003 read with Clause 15.8 of the Supply Code, has not been followed since there is no provisional assessment reason being that nothing was communicated to the writ petitioner or its representative and, therefore, the vital opportunity to make an objection as was to be made in view of the provision of Section 126(3) has not been provided and, therefore, there is gross violation of statutory provision as contained under Section 126 and in that view of the matter, the entire demand is unwarranted.
The further admitted fact is that for the said allegation an FIR was also instituted being Balidih P.S. Case no.93 of
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2012, however, the aforesaid criminal case has finally culminated into acquittal of the writ petitioner.
The judgment of the trial court has been appended to the paper book which this Court has considered and found therefrom that the prosecuting agency has failed to establish the charges on the ground of inadmissibility of the evidence.
17. The writ petitioner, in view of such acquittal as also in view of the fact that the procedure as laid under Section 126 of the Act, 2003 read with Clause 15.8 of the Electricity Supply Code, is insisting to interfere with the impugned demand with a prayer to direct the respondent DVC to refund the amount already deposited by virtue of interim order dated 26.07.2012 to the tune of Rs.75 lacs and at the time of getting anticipatory bail to the tune of Rs.25 lacs by virtue of order passed in A.B.A. No.3213 of 2012.
Therefore, main plea of the writ petitioner for interfering with the demand first is acquittal of the writ petitioner from the criminal charges and second is non-observance of the process stipulated under Section 126 of the Act, 2003 read with Clause 15.8 of the Electricity Supply Code.
18. The aforesaid contention could have been accepted when the proceeding initiated under Section 135 of the Act, 2003 pertaining to theft of electricity is having any bearing upon the proceeding initiated under Section 126 of the Act, 2003 for unauthorized use of electricity. But that is not the
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legal position, as has been held by Hon'ble Apex Court in West Bengal state Electricity Distribution Company Limited Vs Orion Metal Private Limited and Another (Supra) and in Executive Engineer Southern Electricity Supply Company Orissa Ltd. (SOUTHCO) & Anr. v. Sri Seetaram Rice Mill (Supra), rather the proposition has been laid down by interpreting the provision of Section 126 and 135 of the Act, 2003 by taking into consideration the reason for enactment of the Electricity Act, 2003 in supersession of the Indian Electricity Act, 1910, the Electricity (Supply) Act, 1948 and the Electricity Regulatory Commission Act, 1998 that is to prevent the misutilization of electricity in both ways, i.e., by preventing the theft by dealing with the issue of theft under Section 135 while simultaneously to deal with such consumption which is being made unauthorizedly to be dealt with under the provision of Section 126 of the Act, 2003.
19. This Court, therefore, is of the view that what is being contended on behalf of the petitioner that merely because the writ petitioner was acquitted from the criminal case, there cannot be any liability under Section 126 of the Act, 2003 is not fit to be accepted in view of the law laid down by the Hon'ble Apex Court in West Bengal State Electricity Distribution Company Limited Vs Orion Metal Private Limited and Another (Supra) and in Executive Engineer
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Southern Electricity Supply Company Orissa Ltd. (SOUTHCO) & Anr. v. Sri Seetaram Rice Mill (Supra) and, therefore, the same is hereby rejected.
20. Now the second question is that the procedure as stipulated under Section 126 of the Act, 2003, i.e., providing copy of the provisional assessment as has been made under Sub-section (1), to be communicated to the concerned in view of provision of Sub-section (2) for the purpose of filing objection in view of the provision of Sub-section (3) since has not been followed, therefore, the demand so made is unwarranted.
21. This Court, in order to go into the issue deeper, has called upon the records pertaining to the inspection so conducted which is said to be in the light of the provision of Section 126 of the Act, 2003, as would appear from the order dated 26.04.2022 by virtue of the same the record of inspection has been produced. The same has been perused by this Court which is one page report showing certain figures along with signature of the engineers of the inspecting team. But as to whether the same has been served upon the person in occupation or possession or in charge of the place or premises in such manner as may be prescribed as provided under Section 126(2) of the Act, 2003 is not clear.
The writ petitioner is taking the plea that the copy of the said provisional report has never been served upon him while
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on the other hand, the plea of the respondent DVC is that the representative of the petitioner unit has refused to receive it.
22. The writ petitioner, thus, is taking the plea of non- observance of the statutory provision as provided under Section 126 of the Act, 2003 while countering the said plea the learned senior counsel appearing on behalf of respondent DVC has submitted that since the very issue pertains to revenue of the licensee, i.e., DVC, and on such technical ground the entire demand may not be interfered with, rather it would be just and proper to remand the matter before the assessing authority for taking a decision after following the provision as contained under Section 126 of the Act, 2003 by taking into consideration the object and aim of enactment of the Act, 2003 which is for the purpose of unauthorized use of electricity or theft of electricity.
23. This Court, therefore, is now to consider that as to whether on technical ground the entire proceeding initiated under Section 126 of the Act, 2003 requires interference, if the process laid down under Section 126 of the Act, 2003 has not been followed and if it is being quashed, then whether it be remitted before the respondents for taking a fresh decision after observing the statutory mandate as provided under Section 126 of the Act, 2003.
24. The law is well settled that on technicality no one can be allowed to take plea for his advantage, rather the object of the
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governing Act is to be considered as a whole. Herein, the Electricity Act has been enacted also for one important factor, i.e., after a period of time the performance of Electricity Boards has deteriorated substantially on account of various facts, one of the factors was theft of electricity and unauthorized use of electricity and that is the reason the provision of Section 126 has been inserted in the Act for assessment of the unauthorized use of electricity, if the electricity are being used unauthorizedly without any intention.
In the given facts of the case, it is the case of the writ petitioner that the provisional assessment, if any, the copy of the same ought to have been supplied to the writ petitioner so that objection could have been filed and only thereafter, if there will be any final assessment of the unauthorized use of electricity then only the demand ought to have been raised. But the copy of the provisional assessment since has not been supplied, as required to be supplied under Section 126(2) of the Act, 2003 and, as such, in absentia of the same, there should not have been any demand on behalf of the respondents upon the writ petitioner.
25. This Court is not in disagreement with the aforesaid contention by taking into consideration the provision as contained under Section 126 of the Act, 2003 and a decision is required to be taken strictly in accordance with the
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statutory provision on the basis of the principle that when a statute provides that a particular thing should be done, it should be done in the manner prescribed and not in any other manner, as has been held by Hon'ble Apex Court in State of Uttar Pradesh vs. Singhara Singh and Ors., [AIR (1964) SC 358], wherein at paragraph 8 it has been held as under:
―8. ... ... its result is that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted....‖ Further the Hon'ble Apex Court in Babu Verghese and Ors. vs. Bar Council of Kerala and Ors., [(1999) 3 SCC 422], at paragraphs 31 & 32 held as under:
―31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor which was followed by Lord Roche in Nazir Ahmad v. King Emperor who stated as under:
―[W]here a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all.‖
32. This rule has since been approved by this Court in Rao Shiv Bahadur Singh v. State of V.P. and again in Deep Chand v. State of Rajasthan. These cases were considered by a three-judge bench of this Court in State of U.P. v. Singhara Singh and the rule laid down
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in Nazir Ahmad case was again upheld. This rule has since been applied to the exercise of jurisdiction by courts and has also been recognized as a statutory principle of administrative law.‖
26. Admittedly, from perusal of the records it appears that the copy of the provisional assessment has not been supplied to the writ petitioner, however, plea is being taken on behalf of the respondents that the representative of petitioner had refused to accept it while the petitioner is claiming that the same has not been supplied.
This Court is not entering into the said controversy but the fact remains that the demand has been issued without considering the objection and without making final assessment, therefore, the demand requires interference.
27. This Court deems it fit and proper to remit the matter before the competent authority i.e., Chief Engineer (Commercial), Damodar Valley Corporation (Respondent No.3), to take fresh decision strictly in accordance with the procedure laid down under Section 126 of the Act, 2003 without being prejudiced by the order passed by this Court, within a period of three months from the date of receipt of the copy of this order.
So far as the prayer made about refund of amount already deposited by the writ petitioner is concerned, the
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same will depend upon the final decision to be taken by the respondent DVC, as directed hereinabove.
28. Accordingly, the instant writ petition stands disposed of.
(Dr. Ravi Ranjan, C.J.) I agree (Dr. Ravi Ranjan, C.J.) (Sujit Narayan Prasad, J.) Birendra/ A.F.R.