Orissa High Court
The Assessing Officer-Cum-Sub vs Appellate Authority-Cum-Executive ... on 12 April, 2023
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) NO. 36284 OF 2022
The Assessing Officer-cum-Sub- .... Petitioners
Divisional Officer (Electrical),
Balasore and another
Mr. Prasanta Kumar Tripathy, Advocate
-versus-
Appellate Authority-cum-Executive .... Opp. Parties
Engineer-cum-Deputy Electrical
Inspector, Balasore and another
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 12.04.2023 3. 1. This matter is taken up through hybrid mode.
2. Judgment and order dated 20th August, 2022 (Annexure-
8) passed by the Appellate Authority-cum-Executive Engineer- cum-Deputy Electrical Inspector, Balasore in AAC Case No.4 of 2016 is under challenge in this writ petition, whereby the Appellate Authority set aside the final assessment order passed by the Assessing Officer and directed that the amount deposited by the Appellant-Opposite Party No.2 should be refunded through adjustment in subsequent energy bills of Appellant- Opposite Party No.2.
3. Mr. Tripathy, learned counsel submits that the Petitioners assail the order under Annexure-2 on two grounds; viz, firstly that the appellate authority has committed an error on record in holding that calculation sheet was not supplied to the provisional assessment order to the Opposite Party No.2.
Page 1 of 6// 2 // Secondly, the person, who inspected the premises of Opposite Party No.2, is not required to pass the final assessment order. It is his submission that on the allegation of over drawl of electricity and tampering of meter, the premises of the Opposite Party No.2 was inspected by one M.K. Jethi, Assistant Manager, MRT, NESCO, Balasore. He was an Assistant Manager when he inspected the premises. As per the notification dated 21st May, 2004 (Annexure-1) published in the official gazette, the Assistant Engineer/Assistant Manager of the concerned distribution company has been designated as the Assessing Officer for single phase/low transmission consumer category. Thus, there is no illegality committed by the erstwhile NESCO in inspecting the premises of the Opposite Party No.2. Accordingly, on the basis of the inspection report, provisional assessment was made and it was served on the Opposite Party No.2 along with the calculation sheet. The Opposite Party No.2 thereafter contested the provisional assessment order and taking into consideration the materials available on record in its proper prospective, final assessment of Rs.86,314.48 was made by the Assessing Officer, who was in the rank of Assistant Manager. Being aggrieved, the Opposite Party No.2 preferred an appeal before the appellate authority under Section 127 of the Electricity Act, 2003 (for brevity 'the Act') in ACC Case No. 4 of 2016. Amongst other, the appellate authority held that Shri M.K. Jethy, Assistant Manager, MRT, NESCO, Balasore, who inspected the premises of the Opposite Party No.2, was not the Assessing Officer. Hence, the final assessment order is vitiated. It is his submission that in view of the language and tenor of the Page 2 of 6 // 3 // provision under Section 126 of the Act, the person who inspected the premises need not be the Assessing Officer. It is the only requirement that the Assessing Officer should be in the rank of Assistant Engineer/Assistant Manager of the distribution company. In support of his case, Mr. Tripathy, learned counsel relied upon the case of M/s. Global Feeds -v- Manoj Kumar Das, Commissioner-cum-Secretary, Government of Odisha and others in CONTC No.1185 of 2018 and W.P.(C) No.13047 of 2017, disposed of vide order dated 30th August, 2018 wherein this Court held as under:
"It is in this context the provision of section 126 is also to be taken into consideration which provides that if on an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found corrected 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 any other person benefited by such use and the aforesaid assessing officer has been authorized to take final decision by passing final assessment order.
Thus, it is evident that under the provision of Section 126(1) there are two parts; (i) first part is inspection and (ii) second part is its assessment. The aforesaid provision nowhere provides that the inspection and the assessment is to be done by the same person, meaning thereby it can be done by the same person or even by different person."
(emphasis supplied) 3.1 He also relied upon the decision in the case of Kerala State Electricity Board and others -v- Thomas Joseph alias Thomas M.J. and others in Civil Appeal Nos.9252-9253 of Page 3 of 6 // 4 // 2022, wherein the Hon'ble Supreme Court confirmed the order in which Kerala High Court, amongst other observed as under:
"9. After holding as aforesaid, the High Court summarized its final conclusion, as under:
31. For the reasons stated hereinbefore, we hold as follows:
(i) The presence of the assessing officer at the time of inspection and detection of unauthorized use of electricity in the premises of a consumer is not a mandatory requirement for initiating assessment proceedings under Section 126(1) of the Act.
xxx xxx xxx" 3.2 He, therefore, submits that the person who inspected the
premises of Opposite Party No.2 need not be the Assessing Officer, but law requires that inspection should be done by an Assistant Engineer/Assistant Manager of the distribution company and assessment shall also be done by an officer in the rank of Assistant Engineer/Assistant Manager of the distribution company. The appellate authority failed to appreciate the same and passed the impugned order, which is not sustainable in law.
4. Heard Mr. Tripathy, learned counsel for the Petitioner and perused the materials on record. Before delving into the issue as to whether the person, who visited the premises of the consumer, should be the Assessing Officer or not, this Court feels it appropriate to deal with the case law in The Executive Engineer (Elect.), NESCO Utility, Rairangpur Electrical Division, Rairangpur, Mayurbhanj -v- M/s Maa Kirandevi Agro Foods (P) Ltd. and another in W.P.(C) No.12128 of 2016, wherein this Court relying upon the decision in the case of the Executive Engineer and another Vs. M/s Sri Seetaram Rice Mill, reported in (2012) 2 SCC 108, held that the person Page 4 of 6 // 5 // who inspected the premises should be the Assessing Officer and has assigned reason thereto, which reads as under:
"10. It is the admitted case of the parties that the Petitioner, who was the Assessing Officer, did not accompany the vigilance squad which inspected the Consumer's premises. Law is well-settled in the case of M/s Sri Seetaram Rice Mill (supra) that the Assessing Officer must be a member of the inspection team at the time of detecting pilferage or the unauthorized use of electricity, so that he can pass an order of assessment not merely on the basis of the papers placed before him, but by visiting the site of alleged pilferage or the unauthorised use of the electricity. It has been held in the case of Narayan Chandra Kundu Vs. State of West Bengal and others, reported in AIR 2007 Cal 298 that "....After going through the provisions contained in Sections 126 and 135 of the Act we find that the legislature has intended that the Assessing Officer must be a person who was actually a member of the inspection team at the time of detecting the pilferage or the unauthorized use of the electricity so that he can pass the order of assessment not on the basis of papers placed before him but after actually visiting the site at the time of detection of the illegality....." In the case of Sri Seetaram Rice Mill (supra), it is held in paragraph- 23 that Section 126 of the Act contemplates the steps to be taken, which include 'the Assessing Officer is to conduct inspection of the place or premises and the equipments, gadgets, machines, devices found connected or used in such place.' (emphasis supplied). Relying upon the said observation, this Court in M/s Global Feeds Feedback Energy Distribution Company Private Limited (supra) categorically held that the Assessing Officer should be a member of the inspection team. The Petitioner, who was the Assessing Officer being not a member in the inspection team, the verification report on the basis of which the provisional assessment was made, is vitiated. In the case of State of Punjab Vs. Davider Pal Singh Bhulla and others etc., reported in (2011) 14 SC 770 it is held as follows:-
"72. It is a settled legal proposition that if initial action is not in consonance with law, all subsequent and consequential proceedings would fall through for the reason that illegality strikes at the root of the order. In such a fact-situation, the legal maxim "sublato fundamento cadit opus" meaning thereby Page 5 of 6 // 6 // that foundation being removed, structure/work falls, comes into play and applies on all scores in the present case."
5. The case law of the Hon'ble Supreme Court is not applicable to the case at hand as Clause-1 (quoted above) of the order of Kerala High Court was not under challenge before the Hon'ble Supreme Court. Further, the co-ordinate Bench of this Court while arriving at the aforesaid conclusion did not take into consideration the ratio already settled by this Court as referred to above.
6. In view of the above, even if it is held that the calculation sheet was provided along with provisional assessment order to the Opposite Party No.2, but the fact remains that Shri M.K. Jethy, Assistant Manager, MRT, NESCO, Balasore, who inspected the premises of Opposite Party No.2, was not the Assessing Officer. As such, the final assessment order is vitiated. Thus, Appellate Authority has committed no error in holding that assessment proceeding is vitiated and setting aside the said assessment order.
7. Accordingly, the writ petition being devoid of any merit stands dismissed.
Urgent certified copy of this order be granted on proper application.
(K.R. Mohapatra)
bks Judge
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