Jharkhand High Court
Anshu Behl vs Jhakrhand State Electricity Bo on 28 November, 2014
Equivalent citations: 2015 (1) AJR 404
Author: Prashant Kumar
Bench: Prashant Kumar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 4588 of 2010
Anshu Behl wife of Pradeep Behl, R/o Lake Avenue,
Kanke Road, Po & PS- Gonda, Dist: Ranchi ... ... Petitioner
Versus
1. Jharkhand State Electricity Board through
its Chairman
2. The Secretary, JSEB
3. The General Manager-cum-Chief Engineer,
JSEB, Electric Supply Area, Ranchi
4. The Electrical Superintending Engineer,
Electric Supply Circle, JSEB
5. The Electrical Executive Engineer,
Electrical Supply Division, Ranchi Central, JSEB
6. The Assistant Electrical Engineer, Electric Supply
Sub-Division,Ranchi .............. Respondents
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CORAM: HON'BLE MR. JUSTICE PRASHANT KUMAR
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For the Petitioner: Mr. Dhananjay Kumar Pathak, Adv.
For the Respondents: Mr. Mukesh Kumar, JSEB
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5/28.11.2014This writ application has been filed for quashing the order of assessment dated 24.07.2010, whereby and whereunder, the assessing authority had concluded that petitioner unauthorizedly used electrical energy and thereby he is liable to pay Rs.35,466/- towards energy charge and fix charge.
2. It appears that petitioner had taken electrical of NDS-2 category having sanction load of 4 K.W. In the premises of petitioner, the inspection team of Electricity Board conducted an inspection on 28.5.2010. During the inspection, they found that the petitioner was extracting electricity more than sanctioned contract load, accordingly, a preliminary assessment made. It appears from annexure-2 that the provisional bill on the basis of preliminary assessment served on the petitioner and he was asked to file objection, if any, within 15 days. It further appears from annexure-2 that petitioner has not filed 2 any objection, therefore, final assessment made and it was concluded that petitioner is liable to pay Rs.35,466/- towards energy charge and fix charge. The said assessment order has been challenged in this case.
3. It is submitted by Sri Dhananjay Kumar Pathak, learned counsel for the petitioner that if connected load in the premises of petitioner exceeds the sanctioned load, then the same will not be treated as unauthorized use of electricity. Sri Pathak relied upon Clause 15.7(III) of the Jharkhand Electricity Supply Code, 2005. Hence, no assessment can be done under Section 126 of the Jharkhand State Electricity Act, 2003. Accordingly, it is submitted that the order of assessment is wholly without jurisdiction.
4. On the other hand, Sri Mukesh Kumar, learned counsel for the respondent Company submits that as per explanation of Section 126 of the Electricity Act, 2003, if petitioner uses electricity by any means not authorized by the concerned authority or licencee, then, the same comes within the purview of unauthorized use of electricity. He, accordingly, submits that since the petitioner used electricity in excess of sanctioned load, therefore, the competent authority has power to make assessment under Section 126 of the Electricity Act, 2003. It is further submitted that the petitioner has not made any objection against the preliminary assessment order. Thus, it will be presumed that the petitioner has waived his right to objection, therefore, now, he cannot challenge the assessment order.
5. Having heard the submissions, I have gone through the record of the case. It is admitted that the connected sanctioned load of petitioner's premises is only 4 K.W. It appears from 3 annexure-1 that in the premises of the petitioner, the inspection team has found that petitioner by using different means was using electricity beyond the sanctioned load i.e., 9 K.W. Thus, the inspection team has concluded that petitioner had unauthorizedly used the electrical energy, hence, he liable to pay the assessed amount.
6. Unauthorized use of electricity has been defined in Explanation-(b) of Section 126 of the Electricity Act, 2003 which runs as under:
(b) "unauthorised use of electricity" means the usage of electricity-
(i) by any artificial means; or
(ii) by a means not authorised by the concerned person or authority or licencee, 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.]
7. It is submitted by the learned counsel for the petitioner that the case of petitioner does not come within the purview of any of the Clauses of Explanation-(b). Learned counsel for the petitioner submits that in fact, as per Clause 15.7 (iii) of the Electricity Supply Code where a consumer is billed on demand basis, but the connected load exceeds the sanctioned load, then, it will not be considered as unauthorized use of electricity. Accordingly, it is submitted that the additional load of the petitioner does not come within the purview of unauthorized use of electricity. Hence, the assessing authority has no power under Section 126 of the Electricity Act, 2003 to make present assessment order. Accordingly, it is submitted that the order is 4 wholly without jurisdiction.
8. In my view, the aforesaid submission of learned counsel for the petitioner cannot be accepted, in view of the specific provision in the Electricity Act. From perusal of Explanation-(b)
(ii) of Section 126 of the Electricity Act, 2003, it is clear that if any consumer uses electricity by any means, not authorized by the authority or licencee, then, usage of electricity is unauthorized. In the instant case, the authority gave licence to the petitioner to use electricity up-to sanctioned load of 4 K.W. by using different appliances. But petitioner used electricity in excess of sanctioned load i.e., 9 K.W. which, in my view, is unauthorized use of electricity.
9. Jharkhand Electricity Regulatory Commission, Ranchi has power to frame Electricity Supply Code Regulation, 2005 under Section 181, Clause (x) of the Electricity Act, 2003. The Regulatory Commission can frame electricity supply code for the purpose mentioned under Section 50 of the Electricity Act, 2003. Section 50 of the Electricity Act, 2003 runs as follows:
[50. The Electricity Supply Code- The State Commission shall specify an Electricity Supply Code to provide for recovery of electricity charges, intervals for billing of electricity charges, disconnection of supply of electricity for non-payment thereof, restoration of supply of electricity, measures for preventing tampering, distress or damage to electrical plant or electrical line or meter, entry of distribution licensee or any person acting on his behalf for disconnecting supply and removing the meter, entry for replacing, altering or maintaining electric lines or electrical plants or meter and such other matters.]
10. A bare perusal of Section 50 of the Electricity Act, 2003, shows that Jharkhand State Electricity Regulatory Commission has no power to change the definition of unauthorized use of electricity against the wills and wishes of the principal Act. If 5 the principal Act defines unauthorized use of electricity, then, it is incumbent for the Electricity Regulatory Commission to frame Electricity Supply Code Regulation in consonance with the said Act. As noticed above, in the principal Act itself, it is mentioned that if any consumer uses electricity by any means, not authorized by the person, authority or licencee, then, it will be considered as unauthorized use of electricity. Under the said circumstances, it is not open for Jharkhand State Electricity Regulatory Commission to give any exemption to the consumer and change the provisions of the principal Act.
11. Since the petitioner has not filed any objection against the preliminary assessment order, though it appears from annexure-2 that he was asked to file objection within 15 days, it will be presumed that he waived his right to challenge the same. It further appears that petitioner has not filed any appeal under Section 127 of the Electricity Act, 2003. Accordingly, I find no merit in this writ petition, hence, the same is dismissed.
12. The petitioner is directed to deposit the assessed amount within one month from today. If the said amount is not deposited by that time, it is open for the Electricity Company to take all coercive steps against the petitioner for realising the said amount including the step for disconnection of electrical connection of petitioner's premises. It is made clear that if at earlier occasion, the petitioner would had deposited any amount against the aforesaid assessed amount, then, respondent shall adjust the same at the time of final deposit.
(Prashant Kumar, J.) Sudhir