Jharkhand High Court
M/S Regal Ingot Private Limited vs The Jharkhand Urja Vikas Nigam Limited on 11 June, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No.3033 of 2023
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M/s Regal Ingot Private Limited, a registered company, having its registered office at 8A, Moira Street, Moira, Kolkata, West Bengal - 700016, through its authorized signatory Mr. Pawan Kumar Agarwal, aged about 55 years, Son of Sri Banwari Lal Agarwal, Resident of Purulia Road, P.O. & P.S. - Chas & District- Bokaro ... Petitioner Versus
1. The Jharkhand Urja Vikas Nigam Limited, through its Chairman- cum-Managing Director, having its office at Engineering Building, H.E.C., Dhurwa, P.O., P.S. Dhurwa & District- Ranchi.
2. Electrical Superintending Engineer, Electric Supply Circle - Chas, Jharkhand Bijli Vitran Nigam Limited, P.O., P.S. - Chas & District- Bokaro.
3. Electrical Executive Engineer, Electric Supply Division - Chas, Jharkhand Bijli Vitran Nigam Limited, P.O., P.S. - Chas & District- Bokaro.
4. Electrical Executive Engineer (C & R), Electric Supply Circle - Chas, Jharkhand Bijli Vitran Nigam Limited, P.O., P.S. - Chas & District- Bokaro.
5. Assistant Executive Engineer (C&R), Electric Supply Division - Chas, Jharkhand Bijli Vitran Nigam Limited, P.O., P.S. - Chas & District- Bokaro.
6. Assistant Electrical Engineer, Electric Supply Sub-Division - Chas, Jharkhand Bijli Vitran Nigam Limited, P.O., P.S. - Chas & District-
Bokaro ... Respondents
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For the Petitioner : Mr. Ajit Kumar, Sr. Advocate
Ms. Tejaswita Safalta, Advocate
For the Respondents : Mr. Sachin Kumar, Advocate
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W.P.(C) No.3033 of 2023
Mr. Vivek Aditya, Advocate
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PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
By the Court:- Heard the parties.
2. This Writ Petition has been filed under Article 226 of the Constitution of India with the following prayers:-
(a) For quashing of the entire certificate proceeding arising out of Certificate Case No.01/09/17-18 as mentioned in certificate notice (Annexure-
15); for non-compliance and non-adherence of Section 4/Section 5 and Section 6 of the Public Demand Recovery Act along with other mandatory statutory procedures as prescribed and also there being absolute non-application of mind by the certificate officer and the prayer for declaration, holding the entire impugned certificate proceeding as without jurisdiction and faulty/invalid.
(b) For setting aside the electricity fine bill dated 30.09.2015 (Annexure-8 of this Writ Petition) in so far as the fine amount billed two times of assessed amount of Rs.71,97,352.50/- under Section 135 of the Electricity Act, 2003 has been added as Rs.1,43,94,705/- flatly along with the monthly bill of September 2015 without any compliance of the provisions of Section 126 of the Electricity Act, 2003 by the Respondent No.4 i.e. Electrical Executive Engineer (C&R) who had no authority and power of an "Assessing Officer" under law and who has unlawfully assessed the petitioner for the entire period of 09.04.2015 to 23.09.2015 in the garb of provisions under Section 135 of the Electricity Act, 2003; which actions are as per the petitioner, thoroughly unsustainable in law, inter alia in view of the judgment rendered by the Division Bench of this Court 2 W.P.(C) No.3033 of 2023 in the case of M/s Laxmi Business and Cement, in L.P.A. No.65 of 2009 delivered on 09.02.2023 and the petitioner further prays for quashing of demand notice dated 13.01.2017 along with the bill dated 04.01.2017 (Annexure-14 & 14/1) whereby a demand charge for disconnection period and DPS has been raised, with the outstanding fine bill amount to demand from the petitioner a sum of Rs.1,85,38,581/- and the petitioner also prays for a direction upon the respondents to await their decision in the matter until the civil liability of the petitioner, if any, is finally determined by the learned trial court under Section 154 (5) & (6) of the Act of 2003 in connection with the proceedings of Chas P.S. Case No.0439 of 2015 equivalent to G.R. Case No.2237 of 2015.
(c) For direction upon the respondents to restore the electricity connection of the petitioner considering the fact that the petitioner has already deposited an amount of Rs.50,00,000/- in compliance of the order passed by the learned Sessions Judge, Bokaro vide order dated 15.10.2015 passed in A.B.P. No.881 of 2015 (Annexure- 10), which is of course subject to adjustment under the provisions of Section 154 (6) of the Electricity Act, 2003 and other reliefs.
3. The brief facts of the case is that the petitioner- company has set up a Ferro Alloy plant at Jamgaria, Talgaria More, Chas, Bokaro requiring maximum 1400 kilovolt-ampere from the respondents at 11KV supply and for supply of power/electricity, the petitioner-company entered into a H.T. (High- Tension) Agreement with the respondent No.1. For supply of H.T. (High- Tension) electricity, a meter was installed in the premises of the petitioner- 3 W.P.(C) No.3033 of 2023 company along with a check meter situated in the electric sub-station for the purpose of cross verification of the meter reading, of the meter installed in the premises of the petitioner-company. The meter room door seal as well as the meter seal were duly inspected by the respondents-authorities on 03.08.2015 and 03.09.2015 and no tampering or irregularity was found by the respondents. All of a sudden on 29.09.2015, the respondent No.6 along with other officials of the respondent No.1 conducted a raid in the premises of the petitioner- company. It was alleged that during the inspection, the seal of the meter was found tampered with and a Remote Sensing Device was found to be installed inside the meter due to which a loss of Rs.1,43,95,250/- was ascertained on the spot to have been suffered by the respondent- Board and an F.I.R. vide Chas P.S. Case No.439 of 2015 was lodged involving the offences punishable under Section 420 of the Indian Penal Code and under Section 135/138 of the Electricity Act, 2003. On 30.09.2015, besides the monthly electricity bill of the petitioner for an amount of Rs.14,46,461/- along with the previous month's bill of Rs.20,24,766/- thus in total Rs.34,71,227/-, another bill was also raised against the petitioner under the signature of the respondent No.4 whereby an assessment was sought to be raised for the period running between 09.04.2015 to 23.09.2015 for a sum of Rs.71,97,352/- and then the fine amount billed two times of the assessed amount, was raised for Rs.1,43,94,705/-. The Director of the petitioner- company filed Anticipatory Bail Petition and the Sessions Judge, Bokaro directed the petitioner to be released on bail upon depositing Rs.50,00,000/- without prejudice to his defence in this case. It was asserted that there was only minor difference being less than 2% of the total units consumed 4 W.P.(C) No.3033 of 2023 which may be on account of line loss and the same points out the fact that no theft or pilferage of electric energy has ever taken place and merely on the basis of a table work, the bill dated 30.09.2015 was raised by a person who is not an Assessing Officer in terms of Section 126 of the Electricity Act, 2003. The petitioner also filed W.P. (C) No.2133 of 2016 against the impugned bill in question. Vide order dated 03.05.2023, the petitioner was allowed permission to withdraw the writ petition with liberty to pursue the remedy in accordance with law and this writ petition has been filed with composite prayer. During the pendency of the said W.P. (C) No.2133 of 2016, the respondents served a demand notice for a sum of Rs.1,85,38,581/- Subsequently, Certificate Case No.01/09/17-18 was also instituted with a demand of Rs.1,48,30,907/- along with court fees of Rs.500/-.
4. Learned senior counsel for the petitioner draws the attention of this Court towards Section 126 (1) of the Electricity Act, 2003 which reads as under:-
126. Assessment.- (1) If on an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found connected or used, or after inspection of records maintained by any person, the assessing officer comes to the conclusion that such person is indulging in 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."
and submits that the same envisages that under Section 126 (1) of the Electricity Act, 2003, the 'Assessing Officer' is the person who upon coming to the conclusion on an inspection of any place or any premises that a person concerned is indulged in unathorised use of electricity, such assessing officer 5 W.P.(C) No.3033 of 2023 can provisionally assess to the best of his judgment the electricity charges payable by such person or by any other person benefitted by such use.
5. Learned senior counsel for the petitioner draws the attention of this Court towards Explanation (a) of the Section 126 of the Electricity Act, 2003 which reads as under:-
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;
and submits that the 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.
6. Learned senior counsel for the petitioner further draws the attention of this Court towards Annexure-9 which is the notification No.1584 dated 30.07.2006 and submits that in respect of High Tension (H.T.) on 11 KV power supply, the Electrical Superintending Engineer of the Supply Circle of the respondent No.1 is the Assessing Officer in terms of Section 126 of the Electricity Act, 2003.
7. Learned senior counsel for the petitioner next draws the attention of this Court towards Annexure- A of the counter-affidavit which is the inspection report and submits that the same was not made by the Superintending Engineer of the Electric Supply Circle.
8. Learned senior counsel for the petitioner next draws the attention of this Court towards Annexure-5 which is the provisional bill kept at page-124 (Annexure-8) and submits that the said provisional assessment was made by the Electrical Executive Engineer (C&R), Electric Supply Circle, Chas and 6 W.P.(C) No.3033 of 2023 Assistant Electrical Engineer (C&R), Electric Supply Circle, Chas who are not the Assessing Officers in terms of Section 126 of the Electricity Act, 2003.
9. Learned counsel for the respondents fairly submits that neither the Electrical Executive Engineer (C&R), Electric Supply Circle, Chas nor the Assistant Electrical Engineer (C&R), Electric Supply Circle, Chas is not the "Assessing Officer" in terms of Section 126 of Electricity Act, 2003 so far as H.T. connection is concerned but it is submitted by the learned counsel for the respondents that assessment made by an officer of the respondent No.1- Board who is not the Assessing Officer in terms of Section 126 of the Electricity Act, 2003 will neither obliterate the illegal act of omission and commission committed by the petitioner nor absolve the petitioner of the liability of committing the theft of electricity and the respondents have the right to get the provisional assessment done by a competent Assessing Officer in terms of Section 126 of the Electricity Act, 2003. Hence, in case this Court quashes the certificate proceeding of Certificate Case No.01/09/17-18 and the bill vide Annexure-8, then liberty be given to the respondents to proceed in accordance with law for the acts of omission and commission committed by the petitioner- company to an Assessing Officer.
10. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that it is evident from the Annexure-9 of this writ petition; which is also fairly submitted by the learned counsel for the respondents; that the Electrical Executive Engineer (C&R), Electric Supply Circle, Chas or the Assistant Electrical Engineer (C&R), Electric Supply Circle, Chas are not the Assessing 7 W.P.(C) No.3033 of 2023 Officers in terms of Section 126 of the Electricity Act, 2003. Therefore, this Court has no hesitation in holding that the bill raised by them in terms of Section 126 of the Electricity Act, 2003, dated 30.09.2015 copy of which has been kept at Annexure-8, is not sustainable in law; they being not the "Assessing Officer" in terms of section 126 of the Electricity Act, 2003. Accordingly, electricity fine bill dated 30.09.2015 (Annexure-8 of this Writ Petition) is quashed and set aside.
11. Since the Certificate Case No.01/09/17-18 has been instituted in respect of the demand made on the basis of the said bill, consequently this Court is of the considered view; that this is a fit case where the entire proceedings of Certificate Case No.01/09/17-18 be also quashed and set aside. Accordingly, the entire proceedings of Certificate Case No.01/09/17-18 is also quashed and set aside.
12. Further, since the petitioner-company has already deposited Rs.50,00,000/- with the respondents, in terms of the order passed in the anticipatory bail petition, filed by the petitioner and the petitioner is ready and willing to pay the future bills to be raised by the respondents in respect of the consumption of electric energy, hence, this is a fit case where respondents be directed to restore electric connection of the petitioner-company subject to adjustment of Rs.50,00,000/- already deposited by the petitioner; under Section 154 (6) of the Electricity Act, 2003.
13. It is made clear that this order will not stand in the way for the respondents to get a fresh provisional assessment being made by a competent "Assessing Officer" in accordance with law.
8 W.P.(C) No.3033 of 2023
14. This Writ Petition stands disposed of accordingly.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 11th of June, 2024 AFR/ Animesh 9 W.P.(C) No.3033 of 2023