Orissa High Court
M/S. Global Feeds (In Both The Cases) vs Manoj Kumar Das (In Contc No.1185 Of ... on 30 August, 2018
Author: S.N.Prasad
Bench: Sujit Narayan Prasad
HIGH COURT OF ORISSA: CUTTACK.
CONTC No.1185 of 2018 & W.P.(C) No.13047 of 2017
In the matter of application under Article 226 and 227 of the
Constitution of India.
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M/s. Global Feeds (in both the cases)
...... Petitioners
- Versus-
Manoj Kumar Das (in CONTC No.1185 of 2018)
Commissioner-cum-Secretary,
Government of Odisha & Ors. (in W.P.(C) No.13047 /2017)
... Opposite Parties
Counsel for Petitioners : M/s. B. S. Tripathy - 1, A. Tripathy and A.
Sahoo (in CONTC No.1185 of 2018)
M/s. Anand Ch. Swain, B. P. Panda, L. N.
Rayatsingh (in W.P.(C) No.13047 of 2017)
Counsel for Opp.Parties : M/s. Sukumar Panda, S. M. Pattnaik (in
CONTC No.1185 of 2018)
M/s. S. K. Mishra, S. Ray, B. Das, S. S.
Mohanty, S., R. Pati.
M/s. S. S. Mohanty, S. Ray, S. R. Pati and Mr.
Sukumar Panda (in W.P.(C) No.13047 of 2017).
Mr. B. P. Tripathy, Addl. Govt. Advocate.
PRESENT:
THE HONOURABLE SHRI JUSTICE SUJIT NARAYAN PRASAD
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Date of hearing : 21.08.2018 ; Date of judgment: 30.08.2018
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S. N. Prasad, J. The writ petition has been filed for following reliefs:-
(i) To quash the notification dtd.11.01.2013 issued by the Energy
Department, Government of Odisha whereby and where under certain
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amendments have been made in the notification dtd.21st May, 2004
delegating powers to the Licensee‟s Franchisee to act in
pursuance to the provision of Section 126 of the Electricity Act, 2003;
and
(ii) For quashing of the final assessment as contained under Annexure-3
dtd.10.6.2017.
2. The fact of the case in brief is that the petitioner has entered into
an agreement on 24.6.2015 with the opposite party nos.1, 2 & 3 for a contract
demand of 460 KVA / 414 KW under large industry category. On 30.03.2017,
the opposite parties had disconnected the power supply against the current
dues even without complying the provisions of law laid down under Sections
51 and 100 of the Odisha Electricity Regulatory Commission (OERC)
Distribution (Conditions of Supply) Code, 2004, (herein after referred as the
„Code, 2004‟) and after payment of cheque of the said dues together with
disconnection charges, the opposite parties had restored the power supply on
31.3.2017. Power supply has again been disconnected by the opposite parties
on 1.4.2017 without assigning any reason which led the petitioner to file a
complaint case before the Consumer Grievance Redressal Forum (CGRF),
Khurda being registered as CC Case No.134 of 2017 to adjudicate the matter,
the Forum has passed an interim order on 3.4.2017 wherein the provisional
assessment notice served upon the petitioner dtd.2.4.2017 has been placed
and after its perusal, the Forum passed an interim order directing for
restoration of power supply to the petitioner‟s premises / unit with immediate
effect, accordingly copy of the interim order was served upon opposite party
nos.3 and 5 but the power supply was not restored on the pretext that unless
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the provisional assessment amount is deposited, power supply will not be
restored.
A proceeding U/s.126 of the Electricity Act, 2003 was initiated
and after getting copy of the provisional assessment, objection was filed before
the assessing officer but the same has been rejected, the petitioner thereafter
has approached to the OMBUDSMAN-I, OERC, Bhubaneswar by filing petition
which was registered as CR case No.51 of 2017 as also he has filed an
objection to the alleged provisional assessment notice. The OMBUDSMAN has
passed direction for restoration of power supply, in pursuance thereto the
power supply has been restored to the petitioner‟s unit. The petitioner
thereafter received a notice of final assessment order on 24.4.2017 said to
have been passed on 17.4.2017 stating therein that reply or objection against
the provisional assessment, has been filed by the petitioner within 7 days.
The petitioner, has approached this court by filing writ petition
being W.P.(C) No.8081 of 2017 and this court, has quashed the final
assessment order and remitted the matter back to the Assessing Officer with a
direction that the assessing officer shall consider the objection filed by the
petitioner as under annexure-9 and pass appropriate order by according
opportunity of hearing to the petitioner as expeditiously as possible.
In terms of the aforesaid order, the competent authority has
passed a fresh order rejecting the claim, inter alia on the ground that the
petitioner failed to provide an iota of evidence to show that the their officers
have not verified the premises.
The subsequent final assessment order has been assailed by way
of the instant writ petition challenging the jurisdiction of the authority in
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exercising power conferred under Section 126 of the Electricity Act, 2003
(herein after referred as „the Act, 2003‟).
The petitioner has taken the ground that as per the provision of
explanation appended to section 126 of the Act, 2003 the State Government
can only vest power by virtue of a notification upon an officer of a State
Government or Board or Licensee but admittedly the officer of the franchisee
has exercised the power of assessing officer who has been conferred with the
aforesaid power by virtue of the notification issued by the Energy Department
vide notification dtd.11.1.2013 conferring power to the licensee‟s franchisee,
hence the aforesaid notification has been impugned questioning the
jurisdiction of the State Government in conferring power to the licensee‟s
franchisee to act as an assessing officer by taking the ground that the State
Government is only to designate an officer of the State Government or the
Board or Licensee but not the officer of the franchisee. In consequence thereof
final assessment order has also said to be without jurisdiction.
3. Per contra learned counsel appearing for the licensee, the
opposite party nos.2 and 3 and the franchisee, the opposite party no.4 has
defended such action of the franchisee on the ground that under the Act,
2003 the intent of the Act has also been dealt with by incorporating under it
the word „Franchisee‟ which means a person authorized by the „distribution
licensee‟ to distribute electricity on its behalf within the area of supply, as
such the „franchisee‟ when conferred with the power by virtue of an agreement
with the licensee to take duty of distribution of power, their jurisdiction
cannot be questioned, and the State Government through its Energy
Department, taking into consideration the definition part of the word
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„franchisee‟, has rightly issued notification on 11.1.2013 conferring power
upon the franchisee to act as an assessing officer.
They have submitted that in the agreement entered in between the
licensee and the franchisee, the licensee has conferred power to delegate
power to exercise as an assessing officer under the provision of section 126 of
the Act, 2003 and in view thereof also the jurisdiction of the franchisee cannot
be disputed by the petitioner.
It has been submitted that the petitioner had approached to this
court on earlier round by filing two writ petitions; in one of the writ petition,
i.e. W.P.(C) No.6174 of 2017 the provisional assessment dtd.3.4.2017 as also
the gazette notification dtd.11.1.2013 had been assailed but the writ petition
has been withdrawn with liberty to approach before appropriate forum
ventilating his grievance. Thereafter another writ petition was filed being
W.P.(C) No.8081 of 2017 assailing the final assessment order dtd.17.4.2017, a
co-ordinate Bench of this court, although has quashed the final assessment
order on the ground that the objection filed by the petitioner has not been
taken into consideration, remanded the matter with a direction upon the
authority to take final decision after considering the objection, as such it has
been submitted that the present writ petition is the 3rd writ petition wherein
the issue of jurisdiction of the notification dtd.11.1.2013 has been assailed
which cannot be said to be maintainable after withdrawal of the first writ
petition i.e. W.P.(C) No.6174 of 2017.
4. Mr. B. P. Tripathy, learned Additional Government Advocate,
who has been allowed time to establish the jurisdiction of the State
Government in issuing the notification dtd.11.1.2013 in supersession of the
earlier notification dtd.21.5.2004 conferring power upon the licensee‟s
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franchisee, has tried to impress upon the court that the franchisee is not a
new concept, rather franchisee has been given legal identity by virtue of
the Act, 2003 and when franchisee has been given authorization for
distribution of electricity and if there is any unauthorized use of the same,
franchisee can invoke its jurisdiction and considering that aspect of the
matter, the notification dtd.11.1.2013 has conferred power upon the
franchisee to act as an assessing officer under the provision of section 126 of
the Act 2003.
It has been submitted that franchisee since involved in the
distribution of power, as such there will be no difference in between the
distribution licensee and franchisee so far as nature of work is concerned.
5. Heard the learned counsel for the parties, perused the materials
available on record and on appreciation of their rival submissions, the
following question needs to be answered by this court;
(i) Whether the writ petition under Article 226 of the constitution of India
is maintainable in a matter of final assessment done in pursuance to
the power conferred U/s.127 of the Act, 2003.
(ii) Whether the notification dtd.11.1.2013, so far as it relates to conferring
power upon the licensee‟s franchisee, will be said to be in consonance
with the explanation (a) of the provision of section 126 of the Act, 2003.
(iii) Whether the order of final assessment is fit to be quashed on the
ground of lack of jurisdiction to exercise the power of assessing officer
by the licensee‟s franchisee.
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6. This court, in order to answer the issue, has thought it proper to
first have a discussion with respect to the intent of the Legislation in
enactment of the Act, 2003.
Prior to coming into effect the Act, 2003, there were Acts in the
name of Indian Electricity Act, 1910 and the Electricity Supply Act, 1948 and
for determination of tariffs, the Electricity Regulatory Commission Act, 1998
was enacted. It was thought by the Parliament, after looking into the
performance of the State Electricity Boards which have deteriorated on
account of various factors, even though there were enactments like the Act,
1910 and Act, 1948 as also the Regulatory Commission Act, 1998 but it was
difficult for the State Government to put prohibition in the deteriorating
performance of the Boards and the difficulties in efficient discharge of
functions, as such in order to provide a better, professional and regulatorism,
the policy of encouraging private sector participation in generation,
transmission and distribution of electricity with the objective of distancing
regulatory responsibilities for the government by transferring the same to the
regulatory commission and to achieve the aforesaid aim the Act, 2003 has
been enacted which mainly provided for private sector participation, private
transmission licensees for rural and remote areas, stand-alone systems for
generation and distribution, the constitution of an appellate tribunal, more
regulatory powers for the State Electricity Regulatory Commissions and
provisions relating to theft of electricity. The additional provisions have been
introduced in the Act, 2003 in relation to misuse of power and punishment of
mal practices such as over consumption of sanctioned electric load which are
not covered by the provision relating to theft, all of which had significant
bearing upon the revenue focus intended by the Legislature.
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Under the Act, 2003 the concept has been introduced to distribute
the work load of distribution licensee by allotting the work of distribution to
the franchisee.
„Franchisee‟ has been defined under the provision of section 2(27)
which means a person authorized by a distribution licensee to distribute
electricity on its behalf in a particular area within his area of supply.
„Distribution Licensee‟ has been defined under section 2 (17)
which means a licensee authorized to operate and maintain a distribution
system for supplying electricity to the consumers in his area of supply.
„Licensee‟ has been defined under the provision of section 2(39)
which means a person who has been granted a licence U/s.14.
Part IV of the Act, 2003 speaks with respect to licensing under
which section 12 speaks regarding authorized persons to transmit, supply,
etc. electricity which speaks that no person shall (a) transmit electricity; or (b)
distribute electricity; or (c) undertake trading in electricity unless he is
unauthorized to do so by a licence issued U/s.14 or is exempt U/s.13.
Section 13 speaks regarding the power to exempt.
Section 14 speaks regarding grant of licence which shall be
provided by the appropriate commission on application made to it U/s.15 to
any person (a) to transmit electricity as a transmission Licensee; or (b) to
distribute electricity as a distribution licensee; or (c) to undertake trading in
electricity as an electricity trader, in any area which may be specified in the
licence.
9
The 7th proviso to section 14 (to which the present issue pertains)
provides that in a case where a distribution licensee proposes to
undertake distribution of electricity for a specified area within his area of
supply through another person, that person shall not be required to obtain
any separate licence from the concerned State Commission and such
distribution licensee shall be responsible for distribution of electricity in his
area of supply.
After going through the provisions as referred herein above, it is
evident that the „Distribution Licensee‟ after getting the licence under the
provision of Section 14 of the Act, 2003, may act as a licensee to operate and
maintain a distribution system for supply of electricity to the consumers in
his area of supply. The distribution licensee may authorize a person to
distribute electricity on its behalf in a particular area within his area of supply
but the responsibility to supply would be only upon the „Distribution
Licensee‟, meaning thereby if the distribution licensee authorizes any person
to act on his behalf for distribution of power supply, the only act which is to
be performed by such person (franchisee) is for distributing the power supply
and no other action to be taken by the aforesaid franchisee which would be
evident from 7th proviso to Section 14 of the Act, 2003 wherein it has been
provided that "no licence is required to be obtained separately from the
concerned State Commission and the distribution licensee shall be
responsible for distribution of electricity in his area of supply, "meaning
thereby the person or franchisee will act as an agent of the distribution
licensee and it is the distribution licensee who would only be responsible for
violation of any of the provision of the Act, 2003 to the Commission being the
licensing authority in pursuance to section 14 of the Act, 2003".
10
As has been referred while dealing with the scope of Act, 2003
that one of the main intent of the Legislature to come out with the
provision of Act, 2003 is also to prohibit the unauthorized use of electricity
and for that under Part-XII of the Act, 2003 under „Investigation and
enforcement‟ provision has been inserted for assessment as under the
provision of section 126 which stipulates as follows:-
"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 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 a notice has been served under
subsection (2) shall be entitled to file objections, if any, against the
provisional assessment before the assessing officer, who shall, after
affording a reasonable opportunity of hearing to such person, pass a
final order of assessment within thirty days from the date of service of
such order of provisional assessment of the electricity charges payable
by such person.
(4) Any person served with the order of provisional assessment,
may, accept such assessment and deposit the assessed amount with the
licensee within seven days of service of such provisional assessment
order upon him:
(5) If the assessing officer reaches to the conclusion that
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 it, 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) "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."
Section 127 of the Act, 2003 reads as follows:-
"127. Appeal to Appellate Authority - (1) Any person aggrieved by
a final order made under section 126 may, within thirty days of the said
order, prefer an appeal in such form, verified in such manner and be
accompanied by such fee as may be specified by the State Commission,
to an appellate authority as may be prescribed.
(2) No appeal against an order of assessment under sub-section
(1) shall be entertained unless an amount equal half of the assessed
amount is deposited in cash or by way of bank draft with the licensee
and documentary evidence of such deposit has been enclosed along with
the appeal.
(3) The appellate authority referred to in sub-section (1) shall
dispose of the appeal after hearing the parties and pass appropriate
order and send copy of the order to the assessing officer and the
appellant.
(4) The order of the appellate authority referred to in sub-section
(1) passed under sub-section (3) shall be final.
(5) No appeal shall lie to the appellate authority referred to in
subsection (1) against the final order made with the consent of the
parties.
(6) When a person default in making payment of assessed
amount, he, in addition to the assessed amount shall be liable to pay, on
the expiry of thirty days from the date of order of assessment, an
amount of interest at the rate of sixteen per cent per annum compounded
every six months."
Section 126 of the Act, 2003 confers power to make 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 any other person benefited by such use.
Sub-section 2 of Section 126 contains the provision that the order
of provisional assessment shall be served upon the person in occupation or
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possession or in charge of the place or premises in such manner as may be
prescribed.
Subsection 3 contains the provision that the person, on whom a
notice has been served under subsection (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.
Subsection 4 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.
While subsection 5 provides regarding the best assessment and if
the period is not ascertained, the period shall be limited to twelve months
immediately preceding the date of inspection. Sub-section 6 provides the
provision of assessing the quantum.
Explanation (a) defines "assessing officer" which means an officer
of a State Government or Board or licensee, as the case may be, designated as
such by the State Government.
Section 127 of the Act, 2003 contains the provision to file appeal
against the final assessment order passed U/s.126 of the Act, 2003.
In the background of these legal provisions, this court is
proceeding to answer the questions as formulated herein above.
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7. ISSUE No.I
This issue relates to maintainability of the writ petition.
However, the parties have not raised this plea, but this court,
thinks it proper before going into the jurisdictional aspect and the factual
aspect, to deal with this issue.
As per the legal provision as discussed herein above, Section 126
provides power of making provisional / vis-à-vis final assessment, conferring
power upon the assessing officer to act as a quasi-judicial authority. While
section 127 provides the power of appeal against the final assessment order
passed under Section 126.
The provision of section 126 pertains to assessment in case of
unauthorized use of electricity against which appeal lies U/s.127.
It is evident from the content of the provisions as contained
U/s.126 and 127 that it is self-contained code and after the order passed
U/s.127 against the final assessment order passed U/s.126 of the Act, 2003
no appeal will lie before the Regulatory Commission since that is beyond the
purview of the provision of Section 86 of the Act, 2003 which does not say
about preferring an application before the State Commission if the dispute
related to an order passed U/s.127 of the Act, 2003, for ready reference the
provision of Section 86 which contains the provision related to function of the
State Commission is being referred herein below:-
"86. Functions of State Commission - (1) The State
Commission shall discharge the following functions, namely: -
(a) determine the tariff for generation, supply, transmission
and wheeling of electricity, wholesale, bulk or retail, as the
case may be, within the State:
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Provided that where open access has been permitted to a
category of consumers under section 42, the State
Commission shall determine only the wheeling charges
and surcharge thereon, if any, for the said category of
consumers;
(b) regulate electricity purchase and procurement process of
distribution licensees including the price at which electricity
shall be procured from the generating companies or
licensees or from other sources through agreements for
purchase of power for distribution and supply within the
State;
(c) facilitate intra-State transmission and wheeling of
electricity;
(d) issue licences to persons seeking to act as transmission
licensees, distribution licensees and electricity traders with
respect to their operations within the State;
(e) promote co-generation and generation of electricity from
renewable sources of energy by providing suitable
measures for connectivity with the grid and sale of
electricity to any person, and also specify, for purchase of
electricity from such sources, a percentage of the total
consumption of electricity in the area of a distribution
licence;
(f) adjudicate upon the disputes between the licensees, and
generating companies and to refer any dispute for
arbitration;
(g) levy fee for the purposes of this Act;
(h) specify State Grid Code consistent with the Grid Code
specified under clause (h) of sub-section (1) of section 79;
(i) specify or enforce standards with respect to quality,
continuity and reliability of service by licensees;
(j) fix the trading margin in the intra-State trading of
electricity, if considered, necessary; and
(k) discharge such other functions as may be assigned to it
under this Act.
(2) The State Commission shall advise the State
Government on all or any of the following matters, namely :-
(i) promotion of competition, efficiency and economy in
activities of the electricity industry;
(ii) promotion of investment in electricity industry;
(iii) reorganization and restructuring of electricity industry in
the State;
(iv) matters concerning generation, transmission, distribution
and trading of electricity or any other matter referred to the
State Commission by that Government.
(3) The State Commission shall ensure transparency while
exercising its powers and discharging its functions.
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(4) In discharge of its functions, the State Commission shall
be guided by the National Electricity Policy, National Electricity
Plan and tariff policy published under section 3."
The other related provision, as provided under the Act, 2003, is
Section 42. Sub-section 5 of Section 42 provides provision to constitute a
Forum for redressal of grievance of the consumers in accordance with the
guidelines as may be specified by the State Commission and sub-section 6
provides that any consumer who is aggrieved with the order passed by the
grievance redressal forum can file representation before the authority to be
known as OMBUDSMAN to be appointed or designated by the State
Commission.
Since the provision of section 126 is not related to any dispute in
the nature of electricity bill or coming under the scope of Section 42,
application would not be filed before the Grievance Redressal Forum or the
OMBUDSMAN, hence as has been observed by Hon‟ble Supreme Court in the
case of Executive Engineer & Anr. Vrs. M/s. Sri Seetaram Rice Mill,
passed in Civil Appeal No.8859 of 2011 the writ will lie before the High Court
under Article 226 of the Constitution of India.
Further the petitioner has questioned the very jurisdiction of the
assessing officer which has been conferred upon him in the present case by
virtue of the notification dtd.11.1.2013 and as has already been decided by
the Hon‟ble Apex Court in several decisions, leading one is the judgment
rendered in the case of Whirlpool Corporation Vrs. Registrar of Trade
Marks, reported in (1998) 8 SCC 1 wherein ratio has been laid down that if
there is any jurisdictional error of the authority, the writ will lie even if there
is availability of alternative remedy of appeal.
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This court, while assessing the aforesaid legal position and after
going through the issue raised by the petitioner which relates to
questioning the jurisdiction of the franchisee acting as an assessing officer,
has found that the ratio laid down by Hon‟ble Supreme Court in Whirlpool
Corporation‟ case (supra) is squarely applicable, hence is of the view that the
writ is maintainable.
Issue No.1 is answered accordingly.
8. ISSUE No.II
This issue pertains to the legality and propriety of the decision of
the Government which has been taken by virtue of notification dtd.11.1.2013
conferring power upon the licensee‟s franchisee to act as an assessing officer.
It is evident from the definition of „Distribution Licensee‟ and
„Franchisee‟ as has been discussed in the preceding paragraphs and at the
risk of repetition it is being reiterated that the „Distribution Licensee‟ means a
licensee authorized to operate and maintain the distribution system for supply
of electricity to the consumers in his area of supply but simultaneously the
„Franchisee‟ has also been incorporated under the Act, 2003 which means a
person authorized by a distribution licensee to distribute electricity on its
behalf in a particular area within his area of supply.
It is further evident from the provision of Section 14 which confers
power upon the Commission to grant licence. Under proviso 7 to the aforesaid
provision, if the distribution licensee is willing to engage a person for supply of
electricity, there is no need to get separate licence from the concerned State
Commission as per the provision of section 14 of the Act, 2003 and such
distribution licensee shall be responsible for distribution of electricity in his
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area of supply, meaning thereby the whole accountability and responsibility
for supply of electricity would be upon the distribution licensee and
franchisee will only act as an agent of the distribution licensee which clarifies
the position that the franchisee has only been given the power to supply
electricity in the area of the licensee and no other works.
This is also been fortified from the explanation part as under (a) of
Section 126 of the Act, 2003 wherein the legislature has defined the meaning
of „assessing officer‟ for acting under the provision of Section 126 which
means an officer of the State Government, or Board or licensee, as the case
may be, designated as such by the State Government.
This explanation (a) as contained under section 126 thus
authorizes the State Government to designate an officer of State Government
or of a Board or of licensee to act as an assessing officer, hence the State
Government is only to designate an officer from these three establishments
either from the state Government, or the Board or the licensee. The insertion
of "Board" has been given due to the reason that when the Act, 2003 was
promulgated at that time in certain State Electricity Board was functioning.
In the light of this legal position, the argument which has been
advanced on behalf of opposite parties including the opposite party - state,
the author of notification dtd.11.1.2013 to the effect that an agreement has
been entered in between the licensee and the franchisee for distribution of
electricity in the area, implied meaning would be that the Franchisee would
act and discharge his duty as that of a distribution licensee and further in the
agreement entered on 7th January, 2013, the power to act in pursuance to the
provision of Section 126 or 135 has also been vested upon the franchisee and
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keeping that fact into consideration the notification dtd.11.1.2013 has been
issued, hence there is no infirmity in the same.
This court, after discussing elaborately the legal position as above,
is also conscious with the other legal position which stipulates that if any
stipulation or provision has been made under the statute, things is to be done
strictly in accordance with the provision of law, reference in this regard may
be made to the judgment rendered in the case of Babu Verghese and others
vrs. Bar Council of Kerala & others, reported in (1999) 3 SCC 422 wherein
at paragraph 31 and 32 their Lordships have been pleased to hold as follows:-
"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 vs. Taylor (1875) 1 Ch D 426 which was followed by
Lord Roche in Nazir Ahmad vs. King Emperor (1963) 63 Indian Appeals
372; AIR 1936 PC 253 who stated as under :
"Where 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 & Anr. vs. State of Vindhya Pradesh 1954 SCR 1098;
AIR 1954 SC 322 and again in Deep Chand vs. State of
Rajasthan1962(1) SCR 662; AIR 1961 SC 1527. These cases were
considered by a Three-Judge Bench of this Court in State of Uttar
Pradesh vs. Singhara Singh & Ors. AIR 1964 SC 358; (1964) 1 SCWR 57
and the rule laid down in Nazir Ahmad's case (supra) was again upheld.
This rule has since been applied to the exercise of jurisdiction by courts
and has also been recognised as a salutary principle of administrative
law."
In the judgment rendered in the case of State of Jharkhand vrs.
Ambay Cements, reported in (2005) 1 SCC 368 their Lordships have been
pleased to hold at paragraph 26 as follows:-
"26. Whenever the statute prescribes that a particular act
is to be done in a particular manner and also lays down that failure to
comply with the said requirement leads to severe consequences, such
requirement would be mandatory. It is the cardinal rule of interpretation
that where a statue provides that a particular thing should be done, it
should be done in that manner prescribed and not in any other way. It is
also settled rule of interpretation that where a statute is penal in
character, it must be strictly construed and followed. Since the
requirement, in the instant case, of obtaining prior permission is
19
mandatory, therefore, non-compliance with the same must result in
cancelling the concession made in favour of the grantee, the respondent
herein."
In the judgment rendered in the case of Zuari Cement Ltd.
Vrs. Regional Director, ESIC, Hyderabad, (Civil Appeal No.5138-40 of 2007),
reported in (2015) 7 SCC 690, their Lordships have been pleased to hold at
paragraphs 14 and 15 as follows:-
"14. As per the scheme of the Act, appropriate Government alone
could grant or refuse exemption. When the statute prescribed the
procedure for grant or refusal of exemption from the operation of the Act,
it is to be done in that manner and not in any other manner. In State of
Jharkhand and Others vs. Ambay Cements and Another, (2005) 1 SCC
368, it was held that
"26.....It is the cardinal rule of interpretation that where a statute
provides that a particular thing should be done, it should be done
in the manner prescribed and not in any other way".
15. In Babu Verghese and Others vs. Bar Council of Kerala and
Others, (1999) 3 SCC 422, it was 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, (45 LJCH 373) which was followed by Lord
Roche in Nazir Ahmad v. King Emperor, (AIR 1936 PC 253) who stated
as under:
"......where 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 Vindhya Pradesh, (AIR 1954 SC 322), and
again in Deep Chand v. State of Rajasthan (AIR 1961 SC 1527). These
cases were considered by a three- Judge Bench of this Court in State of
U.P. v. Singhara Singh (AIR 1964 SC 358) and the rule laid down in
Nazir Ahmad‟s case (AIR 1936 PC 253) was again upheld. This rule has
since been applied to the exercise of jurisdiction by courts and has also
been recognised as a salutary principle of administrative law.".
These judgments laid down the proposition of law that there
cannot be any deviation of any statutory provision and the action is to be
taken strictly in pursuance to the provisions of law.
Here in the instant case, the first notification has been issued by
the State of Odisha through its Energy Department on 21 st May, 2004 by
20
which the assessing officer has been defined strictly in terms of the provision
as contained in Explanation (a) to section 126 of the Act, 2003 conferring
power to act as an assessing officer who is working as Engineer under the
Distribution Licensee, the said notification has been issued invoking the
power conferred by Explanation (a) of Section 126 of the Act, 2003, the
contents of the aforesaid notification is being referred herein below:-
No.4982-R&R-II-16/2003-In exercise of the
powers conferred by Explanation (a) to Section 126 of the Electricity Act
2003 (36 of 2003), the State Government do hereby designate the
Officers for the purpose of the Section 126 of the Act in the State of
Orissa in respect of power Distribution area of respective category of
consumers mentioned against each in column (2) thereof with effect from
the date of publication of this notification in the Orissa Gazette.
Sl. No. Category Assessing officer
(1) (2) (3)
1 Single Phase Assistant Engineer /
Low Transmission Consumer Assistant Manager of the
Concerned Distribution
Companies and above.
2 Three Phase / Executive Engineer /
High Tension Consumers manager of concerned
Distribution Companies and
above.
The second notification has been issued on 11.1.2013 invoking
the jurisdiction as conferred by item (a) of Explanation of Section 126 of the
Act, 2003 by making following amendments to the notification of the
Government of Odisha in Energy Department No.4982 dtd.21 st May, 2004 (as
quoted above):-
"In the said notification the words "Distribution Companies"
appearing in the 1st Para as well as under Column (3) of the Schedule
thereof against Serial Nos."1" and "2" shall respectively be substituted
by the words & brackets namely-
21
"Distribution Licensee or Supplier (including Licensee‟s
Franchisee)‟ and "Distribution Licensee or equivalent Officers of Supplier
(including Licensee‟s Franchisee)"."
Thus by virtue of the notification dtd.11.1.2003 the
distribution licensee or supplier (including licensee‟s franchisee) and
distribution licensee or equivalent officer of supplier (including licensee‟s
franchisee) is there by which Franchisee has been given power of assessing
officer as under Section 126 of the Act, 2003.
The insertion of the „Licensee‟s Franchisee‟ under the notification
dtd.11.1.2013 has given the occasion to the petitioner to assail the aforesaid
notification on the ground that the franchisee cannot be said to be an officer
either of the State Government or the Board or the Licensee.
It is evident from the aforesaid notification that the same has been
issued in terms of the provision of item (a) to explanation U/s.126 of the Act,
2003 but after going across the explanation as under (a) to Section 126 of the
Act, 2003, it is evident that the legislation only confers power upon the State
Government to designate an officer either of a State Government or officer of a
Board or officer of a licensee to act as an assessing officer and therefore, no
other functionaries can be included by virtue of notification issued by the
state government invoking the power conferred under (a) appended to the
explanation to section 126 of the Act, 2003.
The contention raised by the opposite parties that the Franchisee
and Distribution Licensee are the same, as such there is no difference and no
prejudice is being caused to the consumer if the franchisee has been
delegated power to act an as assessing officer, but the question is that the
power of delegation or to sub-delegate born from the statute and if there is no
22
provision to delegate the power and if delegation is made, the same will be
said to be without jurisdiction.
Further there is no jurisdiction of the State Government to vest
power upon any authority which is inconsistent with the provision of law, here
it needs to refer the finding given by this court in an Arbitration Petition being
ARBP No.19 of 2016 wherein at paragraph 11 it has been observed as
follows:-
"11. From a plain reading of Sub-sections (27) and (39) of Section
2 of the Electricity Act, 2003, which define „franchise‟ and „licencee‟
respectively, it would be clear that the „franchise‟ is distinct from the
„licencee‟, which alone is authorized to distribute electricity. Seventh
proviso to Section 14 of the Electricity Act, 2003 also makes it clear that
though the licencee may appoint another person for distribution of
electricity on its behalf, but it is the licencee which shall be responsible
for distribution, meaning thereby that franchise (even when it distributes
electricity on behalf of the licencee) would not automatically become a
licencee. Thus the submission of the learned counsel for the opposite
party that the matter should be referred to the OERC for arbitration, is
not justified in law, as the present dispute cannot be said to be between
two licencees."
Thus it is evident that this court has taken into consideration the
provision of subsection 27 and 39 of Section 2 of Act, 2003 and thereafter
taking note of the 7th proviso to section 14, has came to finding that the
franchisee would not automatically become a licensee.
This court is conscious of the fact with respect of the objective of
the provision of section 126 which is mainly for prohibiting unauthorized use
of electricity but that does not mean that the State Government will act and
take its own decision which is contrary and inconsistent with the central
legislation.
The contention of the opposite parties that in the first writ
petition, i.e. W.P.(C) No.6174 of 2017 the notification dtd.11.1.2013 has been
challenged but the said writ petition was withdrawn, hence this writ petition
23
is not maintainable, but this court is not in agreement with such submission
of learned counsel for the opposite parties for the reason that when the
issue of jurisdictional error is there and if things has been done and sought to
be done contrary to the statutory provision, the same has to be rectified so
that the things must go in pursuance to the provision of law, meaning thereby
the principle of illegality which ought not to have been perpetuated needs to
be followed and this court, after taking into consideration this principle and
considering the fact that as per the discussion made herein above, the State
Government is having no jurisdiction to confer power upon the franchisee
being inconsonance with the provision as contained under Explanation (a) to
section 126 and if it would be allowed to continue this court will allow to
perpetuate the illegality.
Further under the provision of section 126 the adjudicating power
has been vested in exercise of quasi-judicial power and it is settled that the
quasi-judicial power can only be exercised if provided by virtue of a provision
of statute, it cannot be exercised by virtue of a notification if issued by the
State Government, inconsistent with the provision of law.
It is relevant to refer here the object of insertion of Section 126,
which is to restrict the unauthorized use of electricity and for that inspection
vis-à-vis the adjudicatory power has been given. If the adjudicatory power to
assess the consumption, provisional or final, would be allowed to remain
before the franchisee, difficulty would arise as because franchisee is by virtue
of an agreement, i.e. a contract for a period of fifteen years and if on the basis
of inspection done by it any adjudication lying pending before the franchisee
in the capacity of assessing officer, after completion of the period of contract
the entire adjudication will be jeopardized and after coming of new franchisee
24
in its place, it will not take any accountability and even if the accountability
will be taken by the subsequent franchisee, further adjudication in
the eye of law will not be proper and that is the reason Statute has taken care
for authorizing the power of assessing officer to an officer of the State
Government, or of the Board or of the Licensee who happens to be permanent
and substantive in nature.
The further issue will arise that the franchisee in case of
completion of tenure will not be accountable to any court of law, party if
aggrieved with the adjudication made by the franchises either U/s.126 or 127
of the Act, 2003 and the adjudication done by the said franchisee will be
difficult to be decided by the court of law as because after the provision of
Section 126 or 127, remedy available to the aggrieved consumer is before the
High Court under Article 226 of the Constitution of India.
9. This court has also considered the prejudice part of the franchise.
It is not in dispute that the agreement in between the licensee and franchisee
has been entered into on 07.01.2013 and after the date of entering into the
aforesaid agreement, the notification has come on 11.1.2013, as such the date
when the franchise has entered with an agreement with the distribution
licensee, no power of adjudication in exercise of the provision as contained
under Section 126 of the Act, 2003 has been conferred upon it. Rather it is
only subsequent to the aforesaid agreement, hence the franchisee cannot
raise any dispute that there is violation of any terms and conditions of the
aforesaid contract.
It is also seen by this court in the aforesaid agreement that
however reference has been made in the Agreement by conferring power upon
the franchise to act in pursuance to the provision of section 126 and 135 of
25
the Act, 2003 but even taking note of that terms and conditions contained in
the Agreement, the day when the Agreement was executed, no such
notification was in existence, hence the aforesaid terms and conditions of the
said agreement cannot be said to be inconsistent with any valid order or
notification.
Moreover, the franchisee is concerned with the distribution part
and by issuing the notification dtd.11.1.2013 he has been delegated with the
further power of adjudication which cannot be allowed to be given to the
franchisee in view of the discussion made herein above.
10. This court, taking into consideration the larger issue and the
interest of the licensee also thinks it proper that the State Government
through its Energy Department, while issuing the notification dtd.11.1.2013,
has not taken care of this aspect of the matter, thereby the entire scope and
objective of inserting the provision of section 126 and 127 has been
overlooked.
In view thereof, the notification dtd.11.1.2013, so far as it relates
to conferring power to franchisee to act as an assessing officer is held to be
inconsistent with the explanation (a) to the provision of Section 126 of the Act,
2003 being without jurisdiction, hence the same is quashed.
Issue no.II has been answered accordingly.
11. ISSUE No.III
This issue pertains to the effect of the assessment made on the
basis of the inspection conducted by the Franchisee.
26
Now the question arises before this court as to whether the
franchisee is empowered to conduct inspection or not and if the answer
would be affirmative, the assessing officer, as per competency, as has been
decided while answering issue no.ii will adjudicate upon the same and if the
answer would be in negative, the entire process will be said to be vitiated.
While dealing with this issue, this court intends to take into
consideration first the scope of section 126 and 135 of the Act, 2003 which
has been discussed at the very beginning of this judgment, one of the main
objective is to prevent unauthorized use of electricity for the purpose for which
the new Act in the shape of Act, 2003 has been enacted upon containing
therein the provision of Section 126.
This court, after considering the scope of unauthorized use of
electricity, has also taken care of the theft part as provided under the
provision of Section 135 of the Act, 2003 which relates to theft of electricity.
Theft of electricity is one part which also relates to unauthorized use of
electricity but with intention while unauthorized use of electricity means
exceeding the contract load without intention, as per the provision of section
126.
On earlier occasion, before this court, the dispute arose with
respect to the simultaneous proceeding to be initiated under the provision of
section 126 and 135 of the Act, 2003. This court has passed an order taking
the view that the proceeding under section 126 and 135 cannot go
simultaneously since the scope of both the provisions is altogether different
but when the judgment rendered by this court has been scrutinized by
Hon‟ble Supreme Court in the case of Sita Ram Rice Mill (supra) it has been
27
held by Hon‟ble Apex Court that the scope of section 126 and 135 although
different but can go simultaneously.
The Hon‟ble Apex Court, while dealing with the aforesaid facts in
detail, has laid down at paragraphs 23, 50, 61 and 87 as follows:-
23. By applying these principles to the provisions of this case
requiring judicial interpretation, we find no difficulty in stating that the
provisions of Section 126 of the 2003 Act should be read with other
provisions, the Regulations in force and they should be so interpreted as
to achieve the aim of workability of the enactment as a whole while
giving it a purposive interpretation in preference to textual interpretation.
50. In other words, the purpose sought to be achieved is to
ensure stoppage of misuse / unauthorized use of the electricity as well
as to ensure prevention of revenue loss. It is in this background that the
scope of the expression "means" has to be construed. If we hold that the
expression "means" is exhaustive and cases of unauthorized use of
electricity are restricted to the ones stated under Explanation (b) of
Section 126 alone, then it shall defeat the very purpose of the 2003 Act,
inasmuch as the different cases of breach of the terms and conditions of
the contract of supply, Regulations and the provisions of the 2003 Act
would escape the liability sought to be imposed upon them by the
legislature under the provisions of Section 126 of the 2003 Act. Thus, it
will not be appropriate for the courts to adopt such an approach.
61. Unauthorized 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 provisions of the 2003 Act governing
such supply. "Unauthorized 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.
87. Having dealt with and answered determinatively the
questions framed in the judgment, we consider it necessary to precisely
record the conclusions of our judgment which are as follows:-
1. Wherever the consumer commits the breach of the terms of the
Agreement, Regulations and the provisions of the Act by
consuming electricity in excess of the sanctioned and connected
load, such consumer would be "in blame and under liability"
within the ambit and scope of section 126 of the 2003 Act.
2. The expression "unauthorized use of electricity means" as
appearing in Section 126 of the 2003 Act is an expression of
wider connotation and has to be construed purposively in
contrast to contextual interpretation while keeping in mind the
object and purpose of the Act. The cases of excess load
consumption than the connected load inter alia would fall under
Explanation (b)(iv) to Section 126 of the 2003 Act, besides it being
28
in violation of Regulations 82 and 106 of the Regulations and
terms of the Agreement.
3. In view of the language of Section 127 of the 2003 Act, only a
final order of assessment passed under section 126(3) is an
order appealable under section 127 and a notice-cum-provisional
assessment made under section 126(2) is not appealable.
4. Thus, the High Court should normally decline to interfere in a
final order of assessment passed by the assessing officer in
terms of section 126(3) of the 2003 Act in exercise of its
jurisdiction under Article 226 of the Constitution of India.
5. The High Court did not commit any error of jurisdiction in
entertaining the writ petition against the order raising a
jurisdictional challenge to the notice / provisional assessment
order dtd.25.7.2009. However, the High Court transgressed its
jurisdictional limitations while travelling into the exclusive
domain of the assessing officer relating to passing of an order of
assessment and determining the factual controversy of the case.
6. The High Court having dealt with the jurisdictional issue, the
appropriate course of action would have been to remand the
matter to the assessing authority by directing the consumer to file
his objections, if any, as contemplated under section 126(3) and
require the authority to pass a final order of assessment as
contemplated under section 126(5) of the 2003 Act in accordance
with law."
12. It is not in dispute that the distribution licensee has been
empowered to authorize a person to distribute electricity in the area
pertaining to the said distribution licensee, the said power can be exercised by
the distribution licensee in view of the 7th proviso of section 10 of the Act,
2003 which read with the definition of franchise as contained in section 2(27)
of the said Act.
In this context the provision of regulation 51 and 52 of the OERC
Distribution (Conditions of Supply) Code 2004 also needs to be referred which
speaks as follows:-
"51. Access to Consumer's Premises - For carrying out general
inspection, repair and testing, the Engineer or the staff authorized by
him shall be entitled to enter the premises of a consumer after informing
the consumer or occupier. In case of unauthorized addition and alteration
of equipment, theft and misappropriation of energy, diversion of power
by passing of meter for consumption of electricity, the Engineer or his
staff can disconnect the power of the premises in pursuance of a special
order in this behalf made by an Executive Magistrate in accordance with
the Section 163 of the Act.
29
52. Preparation of Inventory of Licensee's Installation or
Inspection Report - During the checking and verification of the electrical
installation in the premises of the consumer, including the
supply line and meter, a complete inventory shall be prepared
of all connected equipment, apparatus, machinery, forming integral
part of the installation in the premises of the consumer. The consumer or
his representative shall be requested to sign the inventory or inspection
report. If the consumer or his representative refuses to sign the inventory
or the inspection report, an endorsement to that effect shall be made by
the engineer on the body of the report. A copy of the said report shall be
affixed at the consumer‟s premises. In such cases, the consumer shall be
deemed to have been served with a copy of the report. Within one month
of service of the report as aforesaid, the consumer shall be entitled to
complain against the correctness of the inventory or the result of the
inspection to the designated authority of the licensee, who shall enquire
into the matter of the complaint and decide on the correctness or
otherwise of the report."
It is evident from the aforesaid provision that the Engineer or staff
can inspect the premises by entering into it.
It is not in dispute that by virtue of the stipulation made in the
SBD as referred herein below and the agreement entered in between the
licensee and franchisee, who is to act by entering into the premises of the
consumer in order to prevent theft of electricity and tampering with the meter.
However, under the provision of Regulation 51, the authority has been given
to the Engineers or the staff authorized by him to enter into the premises,
„Engineer‟ has been defined under the Code, 2004 but „Staff‟ has not been
defined, as such this court, after taking into consideration the content of SBD,
as referred herein below, as well as the condition of agreement, is of the view
that the power to inspect the premises of the consumer lies with the
franchisee also.
13. The Ministry of Power, government of India has also formulated a
Standard Bidding Document giving therein the terms and conditions in a
standard form authorizing the franchisee to act as a distribution licensee. The
aforesaid standard bid document has come in the month of June, 2012 under
the caption heading „Standard Bidding Document for Appointment of Input
30
Based Urban Distribution Franchise‟ wherein the rights and authorities of
franchisee has also been incorporated which is being referred herein
below:-
"Rights and Authorities of a Franchisee
3.2.20 Initiating necessary action, in accordance with the Electricity
Act, to prevent the theft of power, interference with meters and
extinguishing public lamps, theft of electric lines and material etc;
3.2.21 To enter into a tripartite agreement with the Utility and the
Generator and pay wheeling charges to [Name of the Utility], if required,
in case power is brought into the Franchise Area by purchasing the same
from sources other than [Name of the Utility] ;
3.2.22 Charging the consumers in the form of a Reliability Charge per
unit for purchase of power from sources other than [Name of the Utility]
to be decided through public hearing process and prior approval of the
[Name of the State Regulatory Commission].
3.2.23 For the activities outsourced by [name of utility] to any agencies
prior to appointment of Distribution Franchisee as indicated in Table 12
above, if the Distribution Franchisee does not agree to continue with such
outsourced activities, [name of utility] will cancel such outsourced
agreements with the concerned agencies and termination cost; as
specified in the contract between the [name of utility] and concerned
agencies; shall be borne by the [name of utility].
3.2.24 To continue and complete the works in progress for Capital
Investment already in pipeline on behalf of the Utility and to deduct the
investments made by Franchisee on such works from the input energy
amount payable to the utility."
14. The distribution licensee herein has entered with the franchisee
an agreement on 7.1.2013, on the basis of the aforesaid standard bid
document and the terms and conditions contained therein containing a
condition to exercise the power under Section 126 and 135 as also to initiate
necessary action to prevent of power, interference with meters etc.
The terms and conditions contained in the Standard Bid
Document read with the agreement dtd.7.1.2013 clarifies the position that the
franchisee has been conferred with the power of distribution to act on behalf
of distribution licensee and once the distribution work has been assigned and
is being assigned to a franchisee or a person, the inspection of the premises
for any purposes whatsoever is required to be performed by such person or
31
the franchises. When the power of inspection is there pertaining to looking
into to prevent the theft of power, interference with meters and
extinguishing public lamps, that of electric lines and materials, etc., it cannot
be disputed that the franchisee has got no power to inspect the premises. And
if the power of inspection would not be given to the franchisee, it will lead to
wide spread unauthorized use of electricity and theft further when the
franchisee is supplying power on behalf of the distribution licensee, he will be
accountable to the distribution licensee so far as the loss of electricity or theft
or proper power supply is concerned, as such the inspection would be treated
as an integral part of distribution work which is to be exercised by the
distribution licensee and it cannot be segregated from distribution work.
The part of inspection is being treated to be legal by this court also
for another reason that the petitioner, on earlier occasion, had also filed writ
petition being W.P.(C) No.6174 of 2017 questioning the jurisdiction of the
authority while exercising power of assessing officer as also the provisional
assessment but the said writ petition was withdrawn with liberty to approach
before the appellate authority, in terms thereof, the petitioner has approached
before the appellate authority by filing objection and thereafter an order has
been passed under the provision of Section 127 of the Act, 2003. The order
passed U/s.127 of the Act, 2003 has again been challenged in another writ
petition being W.P.(C) No.8081 of 2017 on the ground that the objection filed
by the petitioner has not properly been considered by the assessing officer,
meaning thereby the petitioner has nowhere questioned the authority of the
franchisee in inspecting the premises and further his only ground to assail the
decision taken by the appellate authority under the provision of Section 127
was that his objection has not properly been considered, meaning thereby he
32
has got no grievance regarding the inspection part rather his only concern is
with its proper consideration.
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 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 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.
In view thereof, as has been dealt with by this court in the
preceding paragraph that by virtue of the standard bid document, the
agreement and the provision as contained in regulation 51 and 52 of the Code
2004, the franchisee can inspect the premises, hence inspection done by the
franchisee in the present case would not be held to be vitiated and that is not
the case of the petitioner also that the inspection needs to be declared to be
invalid, rather the sole grievance raised by the petitioner is with respect to the
power of assessing officer to be exercised by the franchisee whether it is in
consonance with the explanation (a) of the provision of Section 126 of the Act,
2003 or not, which has been answered while answering issue no.II.
33
This court after dealing with the situation is of the view that the
inspection made by the franchisee is not held to be illegal. However, the
provisional assessment made by the franchisee -assessing officer, as under
the provision of section 126 or under Section 127 of the Act, 2003 will be held
to be illegal in view of the fact that the franchisee is having no jurisdiction to
exercise the power of assessing officer as has been answered while answering
Issue No.II, hence the provisional assessment or final assessment made under
the provision of Section 126 or 127 of the Act, 2003 is held to be illegal.
However, as has been held herein above that the inspection cannot be held to
be illegal, hence the competent authority, as per the prevalent notification
dtd.21.5.2004 is directed to take a fresh decision in the light of the inspection
report already available in accordance with law as provided under the
statutory provisions.
This court is conscious of the interest of the franchisee, as such
he will be held to be necessary party to defend their inspection and the
unauthorized use of electricity or the theft of electricity before the competent
assessing officer, as such he will be required to be heard by the competent
authority wherein the franchisee will defend the same and the assessing
officer, after hearing the franchisee as also the consumer, shall take decision
in accordance with law.
In view thereof, in the present writ petition the assessing officer is
hereby directed to take final decision in accordance with law after hearing
Franchisee as also the petitioner within reasonable period, preferably within
period of eight weeks from the date of receipt of copy of this order.
15. This court is also conscious of the fact that in between the year
2013 to till date of passing of this order, several inspections might have been
34
done and order might have been passed U/s.127 of the Act, 2003, hence
making it clear that this order will not affect the adjudication already
made by the authority in exercise of powers conferred under Section 126 or
127 of the Act, 2003, keeping the legal position into consideration that the
judgment will have its prospective over-ruling.
The writ petition as well as the contempt case are accordingly
disposed of.
...................
S.N.Prasad, J.
Orissa High Court, Cuttack, Dated the 30th August, 2018 / Manas.