Gauhati High Court
Page No.# 1/32 vs Assam Power Distribution Company Ltd. ... on 26 March, 2025
Page No.# 1/32
GAHC010154362019
2025:GAU-AS:3441
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/186/2019
M/S. SHREE SHYAM ISPAT
A PARTNERSHIP FIRM DULY REGISTERED UNDER THE INDIAN
PARTNERSHIP ACT, 1932 HAVING ITS PRINCIPAL PLACE OF BUSINESS
AND FACTORY/INDUSTRIAL UNIT AT INDUSTRIAL GROWTH CENTRE,
CHATTABARI, CHAYGAON IN THE DIST. OF KAMRUP, ASSAM AND CITY
OFFICE AT 205, ROYAL PLAZA, CHRISTIAN BASTI, G.S. ROAD, GUWAHATI-
5 DULY REP. BY ONE OF ITS PARTNERS NAMELY SRI RAMESH PATWARI,
SON OF LATE GOVINDLAL PATWARI, A RESIDENT OF REHABARI,
GUWAHATI- 781008, GUWAHATI CITY, DIST.- KAMRUP(M), ASSAM.
VERSUS
ASSAM POWER DISTRIBUTION COMPANY LTD. AND 2 ORS
A GOVERNMENT OF ASSAM UNDERTAKING DULY INCORPORATED
UNDER THE COMPANIES ACT, 1956 HAVING ITS OFFICE AT BIJULEE
BHWAN, PALTAN BAZAR, GUWAHATI DULY REP. BY ITS CHAIRMAN-CUM-
MANAGING DIRECTOR.
2:THE ASSESSING OFFICER/AREA MANAGER
IRCA-II APDCL MALIGAON
GUWAHATI- 781012.
3:ASSISTANT GENERAL MANAGER
T AND C DIVISION APDCL
AMINGAON KAMRUP
Advocate for the Petitioner : MR D K MISHRA, MR. S K KEJRIWAL,MS. S KEJRIWAL
Advocate for the Respondent : SC, APDCL,
Page No.# 2/32 BEFORE HONOURABLE THE CHIEF JUSTICE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR Date of hearing : 18.03.2025 Date of Judgment & Order : 26.03.2025 JUDGMENT & ORDER (CAV) (N. Unni Krishnan Nair, J.) Heard Mr. D. K. Mishra, learned senior counsel, assisted by Mr. S. K. Kejriwal, learned counsel, appearing on behalf of the appellant. Also heard Mr. P. N. Goswami, learned Addl. Advocate General, Assam; and Mr. K. P. Pathak, learned standing counsel, Assam Power Distribution Company Limited, appearing on behalf of their respective respondents.
2. The present intra-Court appeal has been instituted by the appellant, herein, assailing the judgment & order, dated 04.06.2019, passed by the learned Single Judge in WP(c)4798/2014, dismissing the same, thereby, refusing to interfere with the orders impugned therein.
3. The brief facts requisite for adjudication of the issue arising in the present proceeding, is noticed as under:
The appellant, herein, is a partnership Firm duly registered under the Indian Partnership Act, 1932, having its principal business and factory at Industrial Growth Centre, Chattabari, Chaygaon, in the District of Kamrup, Assam. The appellant is involved in the business of manufacture and sale of Iron Ingots.
Page No.# 3/32 On establishment of the said factory of the appellant; it had applied before the respondent authorities, for sanction of necessary power supply and the respondent authorities after observing all formalities, sanctioned load of 2975 KW (equivalent to 3500 KVA), to the appellant, herein. Thereafter, the electric line was charged on 01.10.2013. The appellant, herein, started its commercial production from 08.10.2013. For the purpose of billing, a Meter bearing No. ASA77936, was installed near the factory premises of the appellant, herein.
The authorities of the respondent No. 1, on noticing an abnormal transmission loss occasioning from the electricity distributed from Chattabari 33 KV Sub-Station; the Assistant General Manager, Mirza Electrical Division, Assam Power Distribution Company Limited, vide communication, dated 01.01.2014, informed the matter to the Chief Executive Officer, Guwahati Electrical Circle-II, Assam Power Distribution Company Limited. The Area Manager i.e. respondent No. 2, vide communication, dated 07.01.2014, had intimated the authorities of respondent No. 1 that there was an anomaly detected in the consumption of electricity by the appellant, herein.
Basing on the said detection of an anomaly in the consumption of electricity by the appellant, herein; an inspection was directed to be carried-out by the competent authority of the respondent No. 1 Company and accordingly, an inspection was carried-out at the factory premises of the appellant, herein, on 08.01.2014, by a committee constituted for the purpose.
Page No.# 4/32 On conclusion of the inspection, the committee had prepared an inspection report, dated 08.01.2014, and therein, it was observed that there was tampering of the paper seals on the meters and also a crack was found on the right side of the cover of the meters of the appellant, herein. However, it was recorded that the percentage of error on testing of the existing meter of the appellant, herein, was found to be within limit.
It is to be noted that the said inspection was so made in the presence of a representative of the appellant, herein.
Basing on the inspection report so prepared on 08.01.2014; a notice was issued to the appellant, herein, on 09.01.2014, by the authorized Officer of the respondent No. 1 Company wherein, it was alleged that the appellant was directly or indirectly involved in the act of malpractice as defined in the AERC(Electricity Supply Code & Related Matters) Regulations, 2004, (1st Amendment)2007, read with Section 50 of the Electricity Act, 2003.
The appellant, herein, vide its representation, dated 13.01.2014, responded to the notice, dated 09.01.2014, and therein, denied the allegations so levelled against it. Upon receipt of the representation, dated 13.01.2014; the Assessing Officer proceeded to make an initial assessment of the bill of the appellant who was a consumer under Chattabari 33 KV Sub-Station. On an initial assessment so made; a net assessment bill of Rs.
17497969.75, came to be issued to the appellant, herein, on 13.01.2014.
Page No.# 5/32 The appellant vide communication, dated 20.01.2014, raised its grievance against the said bill as well as the manner in which the penalty was so assessed therein. The appellant, herein, also highlighted that the penalty as assessed was on the higher side and requested for assessing the penalty at a rate equal to twice the tariff applicable.
It is to be noted that in the initial assessment bill; the Assessing Officer had referred to the provisions of Section 135 of the Electricity Act, 2003. The said anomaly on coming to the notice of the authorities of the respondent No. 1 Company; the General Manager(Com-Rev), Assam Power Distribution Company Limited, Guwahati, issued a communication, dated 21.01.2014, to the respondent No. 2 i.e. the Assessing Officer, that the assessment bill was to be served as per Section 126 of the Electricity Act, 2003, and the assessment was to be made at a rate equal to twice the tariff applicable for the relevant category of services. It was also provided, therein, that for prosecuting someone under Section 135 of the Electricity Act, 2003; a complaint or a report by the police to the Court, is necessary, and for which, an First Information Report(FIR) was required to be lodged.
Accordingly, a hearing was held by the Assessing Officer on 23.01.2014, wherein, a representative of the appellant, herein, was also present. On recording the contentions raised in the hearing by the representative of the appellant, herein, as well as the authorities of the respondent No. 1 Company; the Assessing Officer, vide communication, dated 21.01.2014, forwarded to the appellant, the final assessment bill of Rs. 10124878.75 as per Section 126 of the Electricity Act, 2003. It was also provided in the said communication dated 21.01.2014, that, in the event, Page No.# 6/32 an appeal is to be preferred, the same can be so preferred before the appellate authority, Assam Power Distribution Company Limited, Bijulee Bhawan, Guwahati, for consideration with a pre-deposit of 50% of the assessed amount and an appeal admission fee of Rs. 100 in the office of the respondent No. 2.
The appellant, herein, preferred an appeal against the final assessment bill, submitted by the Assessing Officer on 18.02.2014. The appellate authority, vide order, dated 18.02.2014, proceeded to admit the appeal and directed the appellant, herein, to serve copies of the appeal on the respondent No. 2 and the inspecting officers.
The appellate authority, vide order, dated 19.05.2014, on appreciating the materials brought on record; proceeded to draw a conclusion that the meters involved, be tested/inspected thoroughly by opening the covers to ascertain as to whether any external circuit was implanted to manipulate the actual consumption, so as to prove commission of any malpractice. Accordingly, it was directed that the testing/thorough inspection be conducted by the Deputy General Manager, Guwahati Electrical Circle-II, Assam Power Distribution Company Limited, with the technical expert of the manufacturer of the said meters in the laboratory of the Assistant General Manager, T&C Division, Guwahati Electrical Circle-II, in the presence of the appellant, herein, and others concerned and detail report with photographs/video as evidence, be submitted for issuance of final orders.
It is seen that in terms of the directions passed by the appellate Page No.# 7/32 authority vide order, dated 19.05.2014; the said meters were inspected in the presence of a representative of the appellant, herein, on 23.05.2015, and as per the instructions of the expert of the manufacturer of the meter, photographs of the paper and plastic seals and various sides of the meters were taken. Thereafter, the meter covers were opened one by one and photographs of the printed circuit boards and positions of various components inside the meters, were taken. Thereafter, the photographs so taken, were submitted to the expert of the company for further analysis.
On analyzing the photographs of the meters, in question; the manufacturer i.e. Secure Meters Ltd., vide communication, dated 25.08.2014, opined that on analysis of the photographs, it was noticed that there was evidence of tampering of the meters and one of the original PCBs(smaller) has been replaced by new PCBs.
The appellate authority, thereafter, vide order, dated 08.09.2014, after appreciating the materials brought on record, by drawing a conclusion that the tampering of the meters was proved by the demand curve which had clearly shown that only 350 KVA was used by the appellant, herein, against a demand of 2800 KVA, proceeded to reject the appeal preferred by the appellant, herein. The appellate authority for rejection of the said appeal, had also noted that a foreign circuit was installed in the meters, in question, which was corroborated by the manufacturer's representative.
Being aggrieved by the final assessment bill as well as the order of the appellate authority; the appellant, herein, had approached the writ Court by way of instituting a writ petition being WP(c)4798/2014.
Page No.# 8/32 The learned Single Judge upon considering the issue arising in the matter and on hearing the parties to the proceeding and upon perusal of the materials brought on record, was pleased vide judgment & order, dated 04.06.2019, to dismiss the writ petition being WP(c)4798/2014, upholding the order of the appellate authority as well as the final assessment bill so submitted by the Assessing Officer to the appellant, herein.
Being aggrieved, the appellant, herein, has instituted the present intra-Court appeal before this Court.
4. The judgment & order, dated 04.06.2019, passed by the learned Single Judge in WP(c)4798/2014, being under challenge in the present proceeding; the operative portion, thereof, is extracted hereinbelow:
"18. From the pleadings and the materials on record it is found that the meter in question was tampered and the Demand Curve shows that only 350KVA of energy was used against a demand of 2880 KVA and that a foreign circuit was installed in the meter and accordingly, penalty was imposed by the assessment authority. While upholding the said penalty, the appellate authority in its judgment dated 08.09.2014 has recorded all the facts and the ground taken in this writ petition were also grounds taken in the appeal which have been duly considered and answered by the Appellate Authority. No glaring irregularity or perversity is found with the said findings, which are findings of fact. A writ court exercising its jurisdiction under Section 226 of the Constitution of India cannot decide matters which involves disputed questions of fact. Further, as rightly contended on behalf of Corporation that matters which are highly technical in nature are involved and it may not be proper on the part of this Court to interfere with such action which requires technical expertise.
19. In view of the aforesaid facts and circumstances, this Court is of the view that the present is not a fit case for interference and accordingly, the writ petition stands dismissed.
20. However liberty is granted to the petitioner to approach the assessing authority with the additional grounds which were urged in the present writ petition, if so advised. In case such approach is made, the assessing authority would decide the matter independently and without being prejudice or influenced by any observation made in this order.
21. Accordingly, the writ petition stand disposed of."
Page No.# 9/32
5. Assailing the judgment & order, dated 04.06.2019, passed by the learned Single Judge in WP(c)4798/2014; Mr. Mishra, learned senior counsel, appearing for the appellant, herein, at the outset, has submitted that there were no materials available on record to indicate even remotely unauthorized use of electricity by the appellant, herein, and accordingly, there was no occasion for the Assessing Officer to initiate proceedings invoking the provisions of Section 126 of the Electricity Act, 2003, and issue the assessment bill under challenge, to the appellant, herein.
6. Mr. Mishra, learned senior counsel, by referring to the inspection report, dated 08.01.2014, by projecting that the inspection team having found on testing of the meters, in question, the percentage of error to be within the limit, which was contended to reflect that there was no tampering with the meters at the hands of the appellant, herein, has submitted that there was no occasion for the respondents, herein, to initiate proceedings under the provisions of Section 126 of the Electricity Act, 2003, against the appellant, herein, in-as-much as, no material was available even remotely indicating unauthorized use of electricity by the appellant, herein.
7. Mr. Mishra, learned senior counsel, by referring to the notice, dated 09.01.2014, which alleges that the appellant, herein, was directly or indirectly involved in an act of malpractice and such malpractice alleged to have been committed by the appellant, was projected to be revealed from a statement enclosed as Annexure-1 to the said notice, dated 09.01.2014, has submitted that the said statement purportedly enclosed as Annexure-1, was never forwarded to the appellant, herein, and the said aspect of the Page No.# 10/32 matter was raised by the appellant, in its representation, dated 13.01.2014, so preferred by it, against the notice, dated 09.01.2014. The learned senior counsel has, accordingly, submitted that the said statement enclosed to the Show Cause Notice, dated 09.01.2014, not being furnished to the appellant, herein; its defence in the matter, was seriously prejudiced.
8. Mr. Mishra, learned senior counsel, by referring to the initial assessment bill prepared by the respondent No. 2, has submitted that the same was so prepared by the respondent No. 2, by invoking, amongst others, the provisions of Section 135 of the Electricity Act, 2003. By referring to Section 135 of the Electricity Act, 2003, Mr. Mishra, learned senior counsel, has submitted that the same pertains to theft of electricity and for the purpose of invoking the provisions of Section 135 of the Electricity Act, 2003, it is mandatorily required by the concerned authority to lodge a complaint in writing relating to commission of such offence before the Police Station having jurisdiction over the area, in question, within 24 hours from the time of such disconnection of electricity. The learned senior counsel has further clarified that no criminal proceeding came to be instituted against the appellant, herein. Accordingly, it has been contended by Mr. Mishra, learned senior counsel, that the assessment bill having been so issued, invoking the provisions of Section 135 of the Electricity Act, 2003, without complying with the procedure mandated; the exercise as initiated, stood vitiated.
9. Mr. Mishra, learned senior counsel, has submitted that the entire action leading to the inspection made in the factory premises of the appellant, herein, on 08.01.2014, was on a projection that there was an Page No.# 11/32 abnormal transmission loss to the extent of 19.11% from Chattabari 33 KV Sub-Station from which electricity was supplied to the appellant. The learned senior counsel has further submitted that the respondent No. 2, to cover-up such abnormal loss; had proceeded to institute proceedings against the appellant, herein, although in the inspection report of the inspection made in the factory premises of the appellant, on 08.01.2014, there was no material coming on record demonstrating unauthorized use of electricity by the appellant, herein. The learned senior counsel has, therefore, submitted that the final assessment bill as made by the Assessing Officer, though made under the provisions of Section 126 of the Electricity Act, 2003; the same was not permissible in the absence of any material being brought on record demonstrating unauthorized use of the electricity by the appellant, herein, in terms of the provisions of Section 126 of the Electricity Act, 2003.
10. Mr. Mishra, learned senior counsel, has further submitted that being aggrieved by the final assessment order as made under the provisions of Section 126 of the Electricity Act, 2003, by the respondent No. 2 as the Assessing Officer; the appellant, herein, had approached the appellate authority under Section 127 of the Electricity Act, 2003, by way of preferring an appeal on 18.02.2014. The learned senior counsel has submitted that before the appellate authority, there was no material brought on record, to counter the contentions made by the appellant, in its appeal, dated 18.02.2014. However, the appellate authority, acting in excess of its jurisdiction, without authority, vide order, dated 07.03.2014, proceeded to permit the respondents, herein, to submit additional evidence, if any, on 15.05.2014.
Page No.# 12/32
11. Mr. Mishra, learned senior counsel, has submitted that on 15.05.2014; the respondent authorities had submitted the energy audit report of 33 KV Bhalukghata-Chattabari Feeder along with the consumer meter as installed for billing purposes, for supply of electricity to the factory of the appellant, herein, along with the check meter, which was then physically inspected by the appellate authority and all others present and the only abnormality noticed was that there was fine cut of paper seal fixed in left and right side of the meter cover and there was evidence of breakage in the meter cover. The appellate authority, thereafter, vide order, dated 19.05.2014, had directed for testing/thorough inspection of the meters to be conducted by the Deputy General Manager, Guwahati Electrical Circle-II, with the technical expert of the manufacturer of the said meters, in question, in the laboratory of the Assistant General Manager(Com-Rev), Guwahati Electrical Circle-II. The said testing/thorough inspection was directed to be made in the presence of the appellant, herein, the Assessing Officer and the inspecting officers.
12. Mr. Mishra, learned senior counsel, by referring to the Minutes of the testing/thorough investigation so held on 23.05.2014, in pursuance of the directions passed by the appellate authority vide order, dated 19.05.2014, has submitted that the data of the meter, on being downloaded also; did not bring on record, any abnormality. The learned senior counsel has further submitted that the authorities, thereafter, as per the instructions of the expert of the manufacturers of the meters, in question, proceeded to take the photographs of paper and plastic seals and various sides of the meters involved. After that, the meter covers were opened one by one and photographs of the printed circuit boards and positions of various components inside the meters, were taken. Thereafter, the aforesaid Page No.# 13/32 photographs were submitted to the expert of the company, for further analysis.
13. Mr. Mishra, learned senior counsel, has submitted that the steps as taken by the respondent authorities in the matter, were so taken in clear violation of the Electricity Act, 2003, in-as-much as, the appellate authority did not have the jurisdiction to require production of additional evidence. The learned senior counsel has, thereafter, submitted that the said aspect of the matter was highlighted by the appellant, herein, before the appellate authority vide its written arguments. The learned senior counsel has submitted that after the hearing of the matter was concluded by the appellate authority on 26.08.2014, noticing the materials so produced by the respondent authorities as well as the opinion of the manufacturer of the meters, in question; the appellant, herein, had submitted an additional written argument and therein; objected to such procedure being adopted in the matter for consideration of the appeal so preferred by it before the appellate authority. It has been submitted by the learned senior counsel that the contentions raised by the appellant, herein, were ignored by the appellate authority.
14. Mr. Mishra, learned senior counsel, by referring to the final order, dated 08.09.2014, has submitted that the conclusion reached therein, for the purpose of rejecting the appeal preferred by the appellant, herein, are all perverse. The learned senior counsel has further submitted that the materials considered by the appellate authority for the purpose of rejecting the appeal of the appellant, herein, are materials brought on record behind the back of the appellant, herein.
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15. Mr. Mishra, learned senior counsel, basing on the submissions as made hereinabove, has projected that the Assessing Officer while preparing the final assessment bill as well as the appellate authority while considering the appeal so preferred by the appellant, herein, did not have before them, any material to demonstrate that the appellant, had, in any manner, resorted to unauthorized use of electricity. The learned senior counsel has further submitted that the meter, admittedly, being installed outside the premises of the appellant, herein, in absence of cogent material being brought on record, demonstrating that the appellant, herein, had accessed the internal parts of the meters, in question; mere tampering in the side seals and a crack being found in the meter covers, no adverse conclusion in the matter, could have been drawn against the appellant, herein.
16. Mr. Mishra, learned senior counsel, has further submitted that in the inspection report, dated 08.01.2014, it having been categorically recorded that the existing meter on being tested on load, percentage error being found to be within the normal limit; there was no requirement of any further testing of the meters concerned and the steps so taken by the respondent authorities and the manner in which it was so taken, was only to cause prejudice to the appellant, herein, and to cover-up the fault on their part for the abnormal transmission loss occasioning.
17. In the above premises, Mr. Mishra, learned senior counsel, has submitted that the assessment made by the Assessing Officer by invoking the provisions of Section 126 of the Electricity Act, 2003, as well as the orders of the appellate authority rejecting the appeal of the appellant, herein, would call for an interference in the matter.
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18. Mr. Mishra, learned senior counsel, by referring to the conclusions drawn by the learned Single Judge in the judgment & order, dated 04.06.2019, in WP(c)4798/2014, has submitted that the conclusions so drawn by the learned Single Judge are perverse and the same was so drawn without appreciating the contentions raised before it by the appellant, herein, and accordingly, in view of the fact that no material having been brought on record to demonstrate unauthorized use of electricity by the appellant, herein, and the same being only projected by the respondents, herein, basing on a presumption which again is devoid of any material particulars; the judgment & order, dated 04.06.2019, passed by the learned Single Judge in WP(c)4798/2014, would also call for an interference from this Court.
19. Mr. Mishra, learned counsel for the appellant, in support of his submissions, has placed reliance on the following conclusions:
(i). Ram Chander Prasad Sharma v. State of Bihar & anr ., reported in AIR 1967 SC 349;
(ii).
State of Orissa v. Binapani Devi & ors ., reported in
MANU/SC/0332/1967;
(iii). Shakti Cold Storage & ors. v. Bihar State Electricity Board, reported in MANU/BH/0291/2008 [High Court of Patna]; and
(iv). M/s. SM Cement Industries v. Assam Power Distribution Company Limited[judgment & order, dated 11.09.2020, in WP(c) 3364/2020] [Gauhati High Court]
20. Per contra, Mr. Goswami, learned Addl. Advocate General, Assam, has, at the outset, submitted that although in the initial assessment bill prepared by the Assessing Officer, the provisions of Section 135 of the Electricity Act, 2003, was so recorded; the same was on account of an Page No.# 16/32 error. The learned Addl. Advocate General, Assam, has further submitted that the said aspect of the matter coming to the knowledge of the higher authorities of the respondent No. 1 Company; the Deputy General Manager(Com-Rev), Guwahati Electrical Circle-II, vide communication, dated 21.01.2014, had informed the Assessing Officer that the assessment bill is to be served as per the provisions of Section 126 of the Electricity Act, 2003, and the same should be at a rate equal to twice the tariff applicable for the relevant category of services. The learned Addl. Advocate General, Assam, has further submitted that thereafter, the proceedings in the matter was so carried-out strictly in accordance with Section 126 of the Electricity Act, 2003.
21. Mr. Goswami, learned Addl. Advocate General, Assam, has submitted that the appellate authority for a better appreciation of the contentions raised before it by the appellant, herein, as well as by the respondent Company; had proceeded to direct for testing/thorough inspection of the meters, in question, and on such testing, it having come to the forefront that there was a foreign circuit inserted in the meters and the same having been corroborated by the Manufacturer of the meters, in question, to be not a circuit so incorporated in the meters by it, it was apparent that there was a tampering of the meters, in question, by the appellant, herein, and the same was only for the purpose of unauthorized use of electricity. The learned Addl. Advocate General, Assam, has submitted that the submissions as made by the appellant, herein, before the learned Single Judge as well as the submissions made in the present proceeding, are all based on facts and there was no submission so made with regard to the jurisdiction of the appellate authority, and/or, the Assessing Officer to pass the orders so assailed in the writ petition being WP(c)4798/2014.
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22. Mr. Goswami, learned Addl. Advocate General, Assam, by referring to the additional affidavit filed in the matter by the respondents, herein, has submitted that the electricity supply consumed by the appellant, as reflected, therein, would go to reveal that there was a marked increase in such consumption of electricity after the inspection was carried-out on 08.01.2014, and on change of the meter installed in the factory of the appellant. The learned Addl. Advocate General, Assam, has further submitted that w.e.f. 01.10.2013 to 01.12.2013, the consumption of electricity was abnormally low and resultantly, the transmission loss of the Feeder, in question, was abnormally high. However, after the inspection carried-out on 08.01.2014, and the change of the meters, in question; it was found that while the consumption of electricity by the appellant, herein, had increased substantially, and consequently, the transmission loss had come down to normal limits.
23. Mr. Goswami, learned Addl. Advocate General, Assam, by referring to the contention of the appellant, herein, that while notice, dated 09.01.2014, was served upon it, the statement showing its involvement enclosed as Annexure-1, was not so served; has, by referring to the original records produced by him in the matter, submitted that the Annexure-1 to the notice, dated 09.01.2014, pertains to documents which were already served upon the appellant, herein. The learned Addl. Advocate General, Assam, has, therefore, submitted that the submission of the appellant that prejudice was caused to the interest of appellant, herein, on account of not being furnished with the statement enclosed as Annexure-1, is clearly perverse.
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24. Mr. Goswami, learned Addl. Advocate General, Assam, has further submitted that the writ Court while exercising its certiorari jurisdiction, is required to note that the error alleged should be self-evident one and is not needed to be established by lengthy and complicated arguments. It was further submitted by the learned Addl. Advocate General, Assam, that, if two opinions were so conceivable from the materials available on record, the same would not amount to a patent error. The learned Addl. Advocate General, Assam, has also submitted that the certiorari jurisdiction is not called to be exercised by the writ Court as a matter of course and the writ Court would be justified in refusing the writ of certiorari if no failure of justice had occasioned.
25. Mr. Goswami, learned Addl. Advocate General, Assam, has further submitted that the jurisdiction to issue a writ of certiorari is supervisory and not appellate and the writ Court while considering a writ application for issuance of a writ of certiorari, will not act as an appellate Court and re- appreciate the evidence available on record. There being no allegation of exercise of jurisdiction by the authorities concerned, in excess of what was conferred on them and further, there being no allegation of violation of principles of natural justice; Mr. Goswami, learned Addl. Advocate General, Assam, has submitted that the impugned judgment & order, dated 04.06.2019, passed by the learned Single Judge in WP(c)4798/2014, would not call for an in the matter, in-as-much as, the learned Single Judge on appreciating the materials coming on record, had proceeded to draw a conclusion that there was no glaring irregularity or perversity with the findings of the Assessing Officer as well as the appellate authority in the matter and the writ Court while exercising its jurisdiction under Article 226 of the Constitution of India, cannot decide matters which involves disputed Page No.# 19/32 questions of fact. The learned Addl. Advocate General, Assam, has further submitted that the learned Single Judge had also concluded that the matters which are highly technical in nature being involved, it would not be proper for the writ Court to interfere with such action which requires technical expertise. It has been further submitted by the learned Addl. Advocate General, Assam, that the said conclusion of the learned Single Judge being not erroneous and/or perverse, would not call for any interference by this Court in the present intra-Court appeal.
26. In support of his submissions; Mr. Goswami, learned Addl. Advocate General, Assam, has placed reliance on the following decisions of the Hon'ble Supreme Court:
(i). Surya Dev Rai v. Ram Chander Rai & ors ., reported in (2003) 6 SCC 675; and
(ii). General Manager, Electrical Rengali Hydro Electric Project, Orissa & ors., reported in (2019) 10 SCC 695.
27. We have heard the learned counsels appearing for the parties and perused the materials available on record as well as the decisions relied upon by the parties to the proceeding.
28. At the outset, the contention of Mr. Mishra, learned senior counsel for the appellant, with regard to the inspection report, dated 08.01.2014, is being considered.
29. It is the contention of Mr. Mishra, learned senior counsel that the Page No.# 20/32 inspection report, dated 08.01.2014, having brought on record that the meters, in question, on being tested; the percentage of error being found to be within the limit prescribed, it was not permissible to draw a presumption that the appellant, herein, had, in any manner, tampered with the meters, in question. It is the further contention of the learned senior counsel that basing on the conclusions as recorded in the inspection report, dated 08.01.2014, it was not permissible for the respondents to proceed against the appellant in the matter. The said contention of the learned senior counsel, would not mandate an acceptance, in-as-much as, the Committee conducting the inspection on 08.01.2014, in its report, dated 08.01.2014, had only recorded its preliminary observations on examination of the meters, in question. At that stage, it was not permissible for the Committee to record its final conclusions, in-as-much as, the meters were required to be further examined.
30. Accordingly, the said contention of Mr. Mishra, learned senior counsel, that basing on the inspection report, dated 08.01.2014, it was not permissible to initiate proceedings against the appellant, herein, under the provisions of the Electricity Act, 2003; would not mandate an acceptance.
31. The further contention of Mr. Mishra, learned senior counsel, that the defence of the appellant, herein, was prejudiced on account of it not being furnished with the statement enclosed as Annexure 1 to the notice, dated 09.01.2014, is being examined.
32. A perusal of the records as produced by the respondents before us, in the matter, goes to reveal that there exists no such statement in the Page No.# 21/32 records which was relied upon by the respondents in support of the notice, dated 09.01.2014, and what was relied upon were only documents including the inspection report, dated 08.01.2014, which was already available with the appellant, herein. Accordingly, the said contention of the learned senior counsel for the appellant, would also not mandate an acceptance.
33. Having drawn the said conclusions, it is required to notice the provisions of Sections 126 and 127 of the Electricity Act, 2003, having relevance to the issue arising in the present proceeding. The provisions of Sections 126 and 127 of the Electricity Act, 2003, being relevant, is extracted hereinbelow:
"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 the assessed amount with the licensee within seven days of service of such provisional assessment order upon him. 2[***] [(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.] Page No.# 22/32 (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 concerned person or authority or licensee; or
(iii) through a tampered meter; or [(iv) for the purpose other than for which the usage of electricity was authorised; or
(v) for the premises or areas other than those for which the supply of electricity was authorised.]
127. Appeal to appellate authority. (1) Any person aggrieved by the final order made under section 126 may, within thirty days of the said order, prefer an appeal in such form, verified in such manner and be accompanied by such fee as may be specified by the State Commission, to an appellate authority as may be prescribed. (2) No appeal against an order of assessment under sub-section (1) shall be entertained unless an amount equal to [half of the assessed amount] is deposited in cash or by way of bank draft with the licensee and documentary evidence of such deposit has been enclosed along with the appeal.
(3) The appellate authority referred to in sub-section (1) shall dispose of the appeal after hearing the parties and pass appropriate order and send copy of the order to the assessing officer and the appellant.
(4) The order of the appellate authority referred to in sub-section (1) passed under sub- section (3) shall be final.
(5) No appeal shall lie to the appellate authority referred to in sub-section (1) against the final order made with the consent of the parties.
(6) When a person defaults in making payment of assessed amount, he, in addition to the assessed amount, shall be liable to pay, on the expiry of thirty days from the date of order of assessment, an amount of interest at the rate of sixteen per cent. per annum compounded every six months."
34. A perusal of the provisions of Section 126 of the Electricity Act, 2003, would go to reveal 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 a conclusion that the person is indulging in unauthorised use of electricity, he shall provisionally assess to the best of Page No.# 23/32 his judgment, the electricity charges payable by such person, or, by any other person benefited by such use. The said provisional assessment is required to be served upon the person in occupation, or, possession, or, in charge of the place, or, premises in such manner as may be prescribed. 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.
35. "Unauthorized use of electricity" has been defined in explanation under sub-Section(6) of Section 126 of the Electricity Act, 2003. It is relevant to notice that in terms of Clause(b) of the explanation below sub- section(6) of Section 126 of the Electricity Act, 2003; "unauthorized use of electricity" would also mean usage through a tampered meter.
36. Having noticed the provisions of Section 126 of the Electricity Act, 2003; we proceed to examine the initial assessment bill prepared by the Assessing Officer. On an examination of the initial assessment bill, it is seen that the same was so prepared by invoking the provisions of Section 135 of the Electricity Act, 2003. A perusal of the provisions of Section 135 of the Electricity Act, 2003, mandates that for invocation of the said provision and disconnection of electricity line; a criminal proceeding is required to be so instituted by the licensee against the defaulter within 24 hours of such disconnection. Admittedly, in the present case, no criminal proceeding was instituted against the appellant, herein, in the matter. However, the said issue coming to the notice of the authorities of the respondent No. 1, vide Page No.# 24/32 communication, dated 21.01.2014; the Assessing Officer was informed that the initial assessment bill should be served as per the provisions of Section 126 of the Electricity Act, 2003, and the same should be at the rate equal to twice the tariff applicable for the relevant category of services, which again is in tune with the prescriptions so made in the provisions of Section 126 of the Electricity Act, 2003. It is seen that after the issuance of the communication, dated 21.01.2014, the Assessing Officer had proceeded in the matter strictly in accordance with the provisions of Section 126 of the Electricity Act, 2003. The steps taken by the Assessing Officer in the matter after issuance of the communication, dated 21.01.2014, would go to reveal that the grievance of the appellant, herein, with regard to the invocation of the provisions of Section 135 of the Electricity Act, 2003, while issuing the initial assessment bill; stood redressed.
37. It is also revealed from the records that the appellant, herein, had filed his objection in the matter in terms of the provisions of Sub-section(3) of Section 126 of the Electricity Act, 2003, and thereafter, was also provided for an opportunity of hearing by the Assessing Officer. The Assessing Officer, on conclusion of the hearing so held in the matter, proceeded to issue the final assessment bill on 21.01.2014, to the appellant, herein, by invoking the provisions of Section 126 of the Electricity Act, 2003. Accordingly, it is seen that the Assessing Officer had complied with the provisions of Section 126 of the Electricity Act, 2003, in issuing the final assessment bill, in question.
38. The appellant, herein, being aggrieved by the final assessment bill so made under the provisions of Section 126 of the Electricity Act, 2003, by Page No.# 25/32 the Assessing Officer, had instituted an appeal before the prescribed appellate authority on 18.02.2014. The contention of the learned senior counsel for the appellant is that the appellate authority had exceeded its jurisdiction in proceeding to require the Assessing Officer and other respondents, to produce additional evidence with regard to the tampering of the meters installed in the factory premises of the appellant, herein. The said issue would require an examination and accordingly, we have perused the records produced by the learned Addl. Advocate General, Assam, pertaining to the proceedings before the appellate authority.
39. On a perusal of the records as well as the orders of the appellate authority available in the records of the present intra-Court appeal; we find that the appellant, herein, had all along appeared and had taken part in the proceedings before the appellate authority. The appellate authority, vide order, dated 19.05.2014, had passed the following directions:
"ORDER Date: 19/05/2014 The appeal came up for hearing on 7.03.2014 & 15.05.2014. The Appellant, the Respondent and the Inspecting officers were present during hearing.
During the hearing on 7.03.2014 the appeal of the appellant was heard in presence of the Respondent and the Inspecting officers. The statements of the respondents and the inspecting officers were recorded and some relevant information regarding CMRI analysis of the all industries connected to the 33/11 KV Chatabari Substation was asked to submit by the respondent. Further the inspecting officer namely the AGM T&C Division, GEC-II was asked to submit additional evidence of tempering of meter if any on 15.05.2014.
During hearing on 15.05.2014 the respondent submitted the information as called for along with the Energy Audit report of the 33 KV Bhalukghata -Chatabari feeder. The AGM T&C Division, GEC-II presented the Consumer meter and the Check meter which were resealed on 8.01.2014 with the signature of the appellant's representative to show the evidence of tempering. These two meters bearing no. ASA77936 and ASA77960 were physically inspected by all present during hearing and the abnormality with fine cut of paper seal fixed in left and right side of the meter cover and the evidence of breakage in the meter cover is noticed and recorded.
Page No.# 26/32 Having gone through the relevant documents of CMRI reports of al industries connected to the said 33/11 KV substation, the Energy Audit Report of 33 KV Bhalukghata Chatabari Feeder and the two meters in question it is concluded that both the meters be tested / inspected 1 thoroughly by opening the covers to ascertain whether any external circuit is implanted to manipulate the actual consumption so that malpractice committed is proved.
Under the above circumstances it is hereby ordered that the testing / thorough inspection be conducted by the DGM Guwahati Electrical Circle -II with the technical expert of the manufacturer of the said meters in question in the laboratory of the AGM T&C Division GEC-II in presence of the appellant, respondent and the Inspecting officers immediately and the detail report with photographs/ video etc as evidence be submitted for issue of final order."
40. A perusal of the order, dated 19.05.2014, would go to reveal that that the appellant, herein, had not objected to the directions so issued for testing/thorough inspection of the meters, in question, for the purpose of ascertaining as to whether any external circuit was implanted to manipulate the actual consumption so recorded in the meters concerned. Thereafter, it is seen that the appellant had also participated in the proceedings without raising any objection in the testing of the meters so carried-out by the authorities concerned in terms of the directions passed by the appellate authority on 19.05.2014.
41. The testing/thorough inspection of the meters, in question, was carried-out on 23.05.2014, in the presence of a representative of the appellant, herein. The Minutes drawn, thereof, being relevant, is extracted hereinbelow:
"MINUTES OF THE TESTING/THROUGH INSPECTION HEADED BY CEO, GEC-II WITH THE TECHNICAL EXPERT FROM SECURE METERS LTD.
Members from respondent side
1) Sri Bikash Borpujari, CEO, GEC-II
2) Sri Bimal Choudhury, AGM, MED.
3) Sri Partha Pratim Sarma, AGM, T&C Division, Amingaon.
4) Mrs. Bandana Goswami, AM, IRCA-II.
Page No.# 27/32
5) Sri Himangshu Baishya, Manager, IRCA-II.
Representative from appellant side (M/S Shree Shyam ISpat, Chattabari).
1) Mr. M. K. Agarwal Technical Experts from Secure Meters Ltd.
1) Sri Nimai mai Patra.
2) Sri Himangshu Deka..
On today, the 23rd May, 2014, the observation of the two meters bearing meter no. ASA77936 (main meter) and ASA77960 (check meter) were carried out as per the interim order of the appellate authority dated 19/05/2014. The testing was started with downloading of the meter data of the above two meters through CMRI for submission to Secure Meters Ltd.
As per the instruction of the expert of the Secure Meters Ltd, photographs of paper and plastic seals and various sides of both the meters were taken. After that meter covers were opened one by one and photographs of the printed circuit boards and positions of various components inside the meter were taken. The aforesaid photographs were submitted to the expert of the company for further analysis. All the above procedures were firmly observed by the representative of the appellant."
42. A perusal of the Minutes of the testing/thorough inspection so carried- out on 23.05.2014, would go to reveal that the procedure adopted, therein, was not objected to by representative of the appellant, herein, and he had also accepted such procedure by appending his signature in the Minutes so prepared. It is seen that the appellant, herein, in its written argument, so submitted on 26.08.2014, before the appellate authority; had not questioned the manner in which the meters were so tested on 23.05.2014, by the Committee in pursuance of the directions passed by the appellate authority on 19.05.2014. In the written argument, the appellant, herein, had only submitted that during the testing of the meters, in question, no anomaly, whatsoever, with the meters, involved, was so detected by the inspection team so as to level an allegation of malpractice/tampering against the appellant, herein. On dismantling of the meters examined, and Page No.# 28/32 photographs taken of the components and circuits thereof, being handed- over to the expert of the manufacturer of the meters, in question, for further analysis, was also not questioned by the appellant, herein.
43. The appellate authority had finally heard the matter on 26.08.2014. After the hearing was concluded in the matter on 26.08.2014, and therein, it having been brought on record that the expert of the manufacturer of the meters, in question, had, on an analysis of the photographs of the meters so taken on its dismantling, on 23.05.2014, in the presence of a representative of the appellant, herein; had projected that it was noticed that there was tampering of the meters, in-as-much as, in the meters, the original PCBs have been replaced by new PCBs, the appellant, herein, vide an additional written statement, on 30.08.2014, had submitted before the appellate authority, that the testing/thorough inspection of the meters, as produced, was conducted by the authorities/Manufacturers of the meters behind the back of the appellant, herein, in violation of the provisions of the supply Code and no notice, in this connection, was given to the appellant.
44. It is seen that the said contention of the appellant, herein, as made in its additional written statement, dated 30.08.2014, was clearly an afterthought, in-as-much as, on dismantling of the meters and the photographs taken of its components and circuits, which were so taken in the presence of the representative of the appellant, on 23.05.2014, no objection, in this connection, was raised by the appellant, herein, till 26.08.2014, when the matter was finally heard by the appellate authority. It is only on the opinion of the manufacturer that there was tampering of Page No.# 29/32 the meters, in question, and the original PCBs were replaced by new PCBs had come on record that the appellant, herein, had proceeded to submit the additional written statement on 30.08.2014. The projection as made by the appellant, herein, in its additional written statement on 30.08.2014, in the facts and circumstances involved, would not mandate acceptance.
45. The appellate authority, on conclusion of the hearing on 26.08.2014, proceeded to pass its final order, on 08.09.2014, rejecting the appeal so preferred by the appellant, herein. The operative portion of the order, dated 08.09.2014, is extracted hereinbelow:
"And final hearing was held on 26.08.2014. The appellant and the respondents were present. The case in brief is that when AGM, Mirza Electrical Division found that there is a loss of 19.11% in the 33 KV Bhalukghkata chattabari feeder in the month of October & November 2013, he (AGM) reported the matter to CEO, GEC-II on 07.01.2014. on 08.01.2014, T&C Division Amingaon visited the site of M/s Shree Shyam Ispat IGC and checked physically the metering system of M/S Shree Shyam Ispat. He found that both the paper seals at lateral sides of the meter were torn. Some cracks were found on the right side of the meter. Meter was tested with H.T Accucheck on load and the % age error was found within allowable limit. CMRI was taken for computer analysis. The existing meter was replaced with a new laboratory tested meter. Finding the malpractice committed AGM of IRCA of GEC-II served a disconnecting notice on
09.01.2014 and served an assessment bill on 13.01.2014. The amount of 1st assessment bill was Rs.17497969.00.(one crore seventy four lakh ninety seven thousands nine hundreds sixty nine only) A first hearing was held before IRCA on 21.04.2014 and the party requested AGM IRCA to consider a 3% T&D loss which was agreed. Final assessment bill become Rs 10124878.75 after the hearing. Aggrieved at the decision, the party made an appeal before Appellate Authority. Before this final hearing, two previous hearing were also held on 07.03.2014 and 15.05.2014.
After going through all the documents & photograph provided by the respondents and also the hearing all the arguments made by the lawyer of appellant, the appellate authority came to the conclusion that the meter was tempered which is proved by the demand curve. The demand curve clearly shows that only 350 KVA was used against a demand of 2880 KVA which in very surprising. Farther from the photographs it was found that foreign circuit was installed in the meter which is also corroborated by manufactures representative that original PCB was changed by new PCB in the meter Farther the check meter which is a property of APDCL was also tempered but it is irrelevant as it is a check meter only. So the appeal is rejected and penalty imposed by IRCA is upheld. Farther the consumer is ordered to shift the metering system with APDCL's help into their premise for safe custody of the meter"
Page No.# 30/32
46. A perusal of the conclusions drawn by the appellate authority in its order, dated 08.09.2014, would go to reveal that it had come to a definite finding that there was tampering in the meters concerned. Such tampering of the meters would be required to be construed to be "unauthorized use of electricity" as defined under sub-Section(b) of the explanation below of sub-Section(6) of Section 126 of the Electricity Act, 2003, which further goes to validate the invocation of the powers under sub-Section(1) of Section 126 of the Electricity Act, 2003, by the Assessing Officer.
47. At this stage, we would reiterate that the appellant, herein, was neither aggrieved by the order, dated 19.05.2014, issued by the appellate authority, nor, by the procedure so adopted while testing/thorough examination of the meters concerned on 23.05.2014, by the authorities in the presence of the representative of the appellant, herein. Accordingly, the conclusions reached by the appellate authority being based on materials coming on record and the appellant, herein, being a part of the process involved; we do not find any error in the conclusions so reached by the appellate authority. In view of the materials coming on record, we are of the considered view that the Assessing Officer as well as the appellate authority had not acted in the matter beyond their jurisdiction.
48. Consequently, we are of the considered view that no error can be attributed to the respondent authorities in proceeding to invoke the provisions of sub-Section (1) of Section 126 of the Electricity Act, 2003, in the matter, against the appellant, herein.
49. Having recorded the above-noted conclusions, we proceed to examine Page No.# 31/32 the judgment & order, dated 04.06.2019, passed by the learned Single Judge in WP(c)4798/2014.
50. On a perusal of the conclusions drawn by the learned Single Judge in the impugned judgment & order, dated 04.06.2019, in WP(c)4798/2014; we find that the same are not perverse to the records of the case. The learned Single Judge, in our considered view, had rightly upheld the order, dated 08.09.2014, issued by the appellate authority, in the matter. It is also to be noted that the decision of the learned Single Judge, cannot be faulted on the well-recognized grounds for invoking the certiorari jurisdiction of the Court Article 226 of the Constitution of India. The view drawn by the learned Single Judge, being a plausible view; the same would be called upon to be disturbed in the present intra-Court appeal.
51. In this connection, reliance is placed on the decision of the Hon'ble Supreme Court in the case of Airport Authority of India v. Pradip Kumar Banerjee, reported in 2025 SCC Online SC 232, wherein, it has been held by the Hon'ble Supreme Court that in an intra-Court appeal, the finding of fact of the learned Single Judge, unless such finding is concluded by the appellate Bench to be perverse, would not be called to be disturbed. It has been further held that merely because another view or a better view is possible; there should be no interference with or disturbance of the order passed by the learned Single Judge unless both sides agree for a fairer approach on relief.
52. Applying the decision of the Hon'ble Supreme Court, referred to above, to the facts of the present case, we having not found any perversity Page No.# 32/32 with regard to the conclusions reached by the learned single Judge in the impugned judgment and the view taken by the learned single Judge being a plausible view; we are not persuaded by the submissions of the learned senior counsel for the appellant, to take a different view in the matter. Accordingly, we are of the considered view that the judgment & order, dated 04.06.2019, passed by the learned Single Judge in WP(c)4798/2014, would not warrant any interference.
53. In view of the discussions made hereinabove; the decisions relied upon by the learned counsels appearing for the parties are not being discussed, herein. The decisions relied upon by the learned senior counsel for the appellant, in our considered view, in the facts and circumstances involved, would also not advance the case of the appellant, herein.
54. In view of the above discussions, we are of the considered view that the present intra-Court appeal preferred by the appellant, herein, is devoid of any merit and accordingly, the same stands dismissed. However, there shall be no order as to costs.
55. Records furnished by Mr. Goswami, learned Addl. Advocate General, Assam, be returned forthwith.
JUDGE CHIEF JUSTICE Comparing Assistant