Jharkhand High Court
M/S M.B. Enterprises vs Jharkhand Urja Vikas Nigam Ltd on 26 June, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
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L.P.A. No. 294 of 2015
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M/S M.B. Enterprises, a partnership concern, having its factory at B-
26, Industrial Estate, Adityapur Industrial Area, Jamshedpur - 832109
through one of its Partner, Shri Bimal Jumar Agarwal, son of Sri Mali
Ram Debuka, resident of Dongarsidas House, Purani Basti Road,
Jugsalai, PO and PS- Jugsalai, Town - Jamshedpur, District -
Singhbhum (East).
... ... Appellant/Petitioner
Versus
1. Jharkhand Urja Vikas Nigam Ltd, (earlier known as Jharkhand State
Electricity Board), having its office at Engineers Bhawan, HEC,
Dhurwa, Ranchi through its Chairman-cum-Managing Director, P.O. +
P.S. - Dhurwa, Ranchi.
2. The General Manager-cum-Chief Engineer, Singhbhum Area
Electricity Jharkhand Urja Vikas Nigam Ltd, having its office at
Cooperative Bank building, P.O and P.S. Bistupur, Jamshedpur.
3. The Electrical Superintending Engineer, Jharkhand Urja Vikas Nigam
Ltd (earlier known as Jharkhand State Electricity Board), Electric
Supply Circle, Singhbhum, Adityapur, PO and PS Adityapur,
Jamshedpur, District Singhbhum (East), Jamshedpur.
4. The Electrical Executive Engineer, Jharkhand Urja Vikas Nigam Ltd,
(earlier known as Jharkhand State Electricity Board), Electric Supply
Division, Singhbhum Area, Adityapur, PO and PS Adityapur, District-
Singhbhum (East) Jamshedpur.
5. The Assistant Electrical Engineer, Jharkhand Urja Vikas Nigam Ltd,
(earlier known as Jharkhand State Electricity Board), Adityapur, PO
and PS Adityapur, District- Singhbhum (East) Jamshedpur.
.... .... Respondents/Respondents
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE ARUN KUMAR RAI
.....
For the Appellant : Mr. M.S. Mittal, Sr. Advocate
For the Respondents : Mr. Mrinal Kanti Roy, Advocate
.....
C.A.V. on 11th June, 2024 Pronounced on 26/06/2024
Per Sujit Narayan Prasad, J.
Page 1 L.P.A. No. 294 of 2015
Prayer:
1. The instant appeal under clause 10 of the letters patent is directed against the order/judgment dated 30.04.2015 passed by the learned Single Judge in W.P.(C) No. 4087 of 2010, whereby and whereunder, the writ petition has been held to be not maintainable on the ground of availability of appeal to be filed under Section 127 of the Electricity Act, 2003.
Facts:
2. The brief facts of the case as per the pleading made in the writ petition which requires to be enumerated herein, reads as under:
The petitioner/appellant Firm is having its factory at Adityapur, Jamshedpur and is having a Low-Tension electrical connection granted by the Jharkhand State Electricity Board. The said factory took electricity connection from Jharkhand State Electricity Board under low tension industrial tariff having a sanctioned load of 105 HP.
The Electricity Board used to send bills to the petitioner/appellant from time to time in the relevant category of LTIS Tariff and the same has been all along paid.
Thereafter, the Energy Department of the Government of Jharkhand issued a notification under Section 78A of the Electricity Act, 2003 on 13.08.2002 Clause 4 of which deals with the concept of maximum demand load in respect of Low-Tension units. The said clause -4 was also in consonance with the provisions of Jharkhand Industrial Policy, 2001.
In pursuance to the issuance of the notification under Section 78A by the Energy Department of the Government of Jharkhand, Jharkhand State Electricity Board also issued a notification dated 29.08.2002 wherein Clause - 4 deals with the same issue. Thereafter, the Jharkhand State Electricity Board applied before the Jharkhand State Electricity Regulatory Commission as a licensee for fixation of their tarrif, thus, Jharkhand State Electricity Regulatory Commission issued a tariff order which was made Page 2 L.P.A. No 294 of 2015 applicable w.e.f. 01.01.2004. Thereafter, the Jharkhand State Electricity Board issued the tariff, wherein clauses 5(a) and 5(b) were inserted in respect of Low Tension industrial categories.
Thereafter, in supersession of earlier tariff of year 2004, the Jharkhand State Electricity Regulatory Commission approved another tariff schedule for the licensee Jharkhand State Electricity Board effective from 01.05.2010. In the said tariff of 2010, the petitioner/appellant falls under low tension industrial and medium power service (LTIS) category of consumer.
Further, the petitioner/appellant vide its letter dated 28.06.2010 wrote to the Assistant Electrical Engineer to raise bills from June, 2010 onwards on the basis of demand load tariff. But, the board has not responded to the letter of the petitioner/appellant.
After such application, an inspection was carried out in the premises of the petitioner/appellant on 10.07.2010 where the total installed load of the petitioner/appellant was determined to be 157 HP as against the sanctioned load of 105 HP. There was no allegation of any nature whatsoever regarding any theft or any manipulation in the petitioner's premises, in fact, although it was a surprise inspection done by an anti-power team by Jharkhand State Electricity Board but no allegation of any nature was made.
Further, the petitioner/appellant received a letter No. 737 dated 22.07.2010 written by Electrical Executive Engineer, Adityapur, Jamshedpur stating therein that load in the petitioner's premises was 157 HP against the sanctioned load of 105 HP and as such it was stated that the petitioner/appellant would be charged Rs. 3,41,923/- as per the provisions of Indian Electricity Act.
Thereafter, the appellant/petitioner filed a writ petition being WPC No. 4087 of 2010 and after filing of the same, the petitioner/appellant received Page 3 L.P.A. No 294 of 2015 a bill for the month of July 2010 which was raised on the basis of load of 157 HP.
Further, in view of the Clause 4 of the Resolution dated 13.08.2002 issued by the Energy Department, State of Jharkhand, the petitioner/appellant is entitled to avail the benefit of maximum demand load instead of maximum connected load.
It is the case of the appellant/petitioner that the action of the respondents in making an inspection and concluding that installed load was more than the sanctioned load is bad in law in view of the new provisions introduced in 2010 tariff of Jharkhand Electricity Board.
Further during the pendency of the writ petition, the Board filed a counter-affidavit from which it was evident that the respondents have passed an ex-parte assessment order on 20.01.2011 and from the perusal of the final assessment order it is evident that it was an ex-parte assessment order and no appropriate opportunity was given to the petitioner/appellant nor any document has been annexed by the respondents in their counter affidavit establishing that a proper opportunity of hearing was given to the petitioner/appellant.
Further, except the notice dated 22.07.2010 no other notice was given to the petitioner/appellant.
It is also the case of the appellant/petitioner that the respondent Board has levied penalty treating the petitioner/appellant to be a high tension consumer which is absolutely illegal and against the provisions of the Act.
The learned Single Judge, after hearing the parties, has directed the petitioner/appellant to file appeal before the Chief Electrical Inspector, Jharkhand against the final assessment order against which the present appeal has been filed.
3. It is evident from the factual aspect that the petitioner/appellant Firm is having its factory at Adityapur, Jamshedpur and is having a Low-Tension Page 4 L.P.A. No 294 of 2015 electrical connection granted by the Jharkhand State Electricity Board and the Electricity Board used to send bills to the petitioner/appellant from time to time in the relevant category of LTIS Tariff and the same has been all along paid.
Thereafter, the Energy Department of the Government of Jharkhand issued a notification under Section 78A of the Electricity Act, 2003 on 13.08.2002, Clause 4 of which deals with the concept of maximum demand load in respect of Low-Tension units. In pursuance to the issuance of the notification under Section 78A by the Energy Department of the Government of Jharkhand, Jharkhand State Electricity Board also issued a notification dated 29.08.2002 wherein Clause - 4 deals with the same issue. Thereafter, the Jharkhand State Electricity Board applied before the Jharkhand State Electricity Regulatory Commission as a licensee for fixation of their tarrif, thus, Jharkhand State Electricity Regulatory Commission issued a tariff order which was made applicable w.e.f. 01.01.2004. Thereafter, the Jharkhand State Electricity Board issued the tariff, wherein clauses 5(a) and 5(b) were inserted in respect of Low Tension industrial categories.
Thereafter, in supersession of earlier tariff of year 2004, the Jharkhand State Electricity Regulatory Commission approved another tariff schedule for the licensee Jharkhand State Electricity Board effective from 01.05.2010. In the said tariff of 2010, the petitioner/appellant falls under low tension industrial and medium power service (LTIS) category of consumer.
Further, the petitioner/appellant vide its letter dated 28.06.2010 wrote to the Assistant Electrical Engineer to raise bills from June, 2010 onwards on the basis of demand load tariff. But, the board has not responded to the letter of the petitioner/appellant.
After such application, an inspection was carried out in the premises of the petitioner/appellant on 10.07.2010 where the total installed load of the Page 5 L.P.A. No 294 of 2015 petitioner/appellant was determined to be 157 HP as against the sanctioned load of 105 HP.
Further, the petitioner/appellant received a letter No. 737 dated 22.07.2010 written by Electrical Executive Engineer, Adityapur, Jamshedpur stating therein that load in the petitioner's premises was 157 HP against the sanctioned load of 105 HP and as such it was stated that the petitioner/appellant would be charged Rs. 3,41,923/- as per the provisions of Indian Electricity Act.
Thereafter, the appellant/petitioner filed a writ petition being WPC No. 4087 of 2010 and after filing of the same, the petitioner/appellant received a bill for the month of July 2010 which was raised on the basis of load of 157 HP. The learned Single Judge has held the writ petition to be not maintainable on the ground of availability of appeal to be filed under Section 127 of the Electricity Act, 2003 against which the present appeal has been preferred.
Argument on behalf of the Appellant:
4. It has been contended that the unit has provisionally inspected on 10th July, 2010 whereby the total installed load of the petitioner/appellant was tendered to be 157 HP as against the sanctioned load of 105 HP but there was no allegation whatsoever regarding theft or any manipulation said to be exercised for the purpose of unauthorized use of electricity.
It has further been contended that it is not a case of the utilizing the electricity said to be unauthorized, rather, based upon the industrial policy implemented by the Energy Department of the State of Jharkhand has used the electricity on the basis of the demand for which as per the requirement under the Supply Code, a show cause was to be given for the purpose of calling upon the consumers to make payment of the electricity on account of its consumption excess to the sanctioned load.
5. It has further been contended that the appeal which is to be filed under Section 127 of the Electricity Act, 2003 can only by filed if there is Page 6 L.P.A. No 294 of 2015 unauthorised use of electricity as per the explanation furnished under Section 146 of the Electricity Act, 2003, but none of the ingredient is there said to be consumption of the electricity unauthorizedly using the same as such it is not a case where any ingredient of Section 126 is available and in that view of the matter, the appeal under Section 127 will not lie, rather, writ petition will lie under Article 226 of the Constitution of India.
6. The learned Single Judge has not appreciated the aforesaid fact and merely on the basis of the objections so made on behalf of the respondent in the counter-affidavit as under paragraph-14 wherein the ground has been taken that the use of the electricity exceeding the sanctioned load of 105 HP will be said to be unauthorized use of electricity in view of the explanation furnished under Explanation II(B) of Section 126 and has refused to entertain the writ petition on merit by relegating the writ petitioner to prefer appeal under Section 127 of the Electricity Act, 2003, which is not sustainable in the eyes of law.
Argument on behalf of the Respondents:
7. The learned counsel appearing for the respondent has submitted by making to the reference to the inspection report which is only on the basis of the unauthorized use of electricity, since, the electricity was consumed exceeding the sanctioned load of 105 HP.
8. The aforesaid aspect of the matter has been brought to the notice of the learned Single Judge by making the specific plea in the counter affidavit under paragraph-14 by making reference of the condition stipulated under Explanation II(B) of the Section 126 of the Electricity Act, 2003.
9. Further, the ground has been taken that the assessment which has been made based upon the inspection will only be said to be under Section 126 of the Electricity Act, 2003 and if there is any inspection, the appeal will be the only remedy to be filed under Section 127 of the Electricity Act, 2003.
Page 7 L.P.A. No 294 of 2015
10. The fact about the appeal which will lie against the assessment made under Section 127 has already been settled by the Hon'ble Apex Court by holding that Section 126 and 127 are self-contained code.
11. The learned counsel for the respondent, on the basis of the aforesaid submission, has submitted that if the learned Single Judge after taking into consideration the inspection report as under Annexure-6 to the paper book, if has come to a conclusion that the alternative statutory remedy of appeal is available under Section 127 of the Electricity Act, 2003 and if in that view of the matter, the writ petition has not been entertained to be adjudicated on merit, it cannot be said to suffer from an error.
Analysis:
12. This Court has heard learned counsel for the parties, gone across the finding recorded by the learned Single Judge in the impugned order as also the pleading made in the writ petition and the instant memo of appeal.
13. The question which requires consideration herein is that as to whether the inspection report effected as has been appended dated as Annexure-6 can be said to be within the fold of Section 126 of the Electricity Act, 2003, so that the remedy is to file appeal under Section 127.
14. This Court is conscious with the fact that if the inspection of unauthorized use of electricity, if on inspection conducted by the licensee has found the unauthorized use of electricity then based upon the provisional assessment and the final assessment, the appeal is to lie under Section 127 of the Electricity Act, 2003.
15. This Court for better appreciation of the fact needs to refer the provision of Sections 126 and 127 of the Electricity Act, 2003 which reads as under:
"Section 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 judgement the electricity charges payable by such person or by any other person benefited by such use.
Page 8 L.P.A. No 294 of 2015 (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:
(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 unauthorized 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.
(6) The assessment under this section shall be made at a rate equal to 1[twice] the tariff rates 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 authorized."
Section 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.
Page 9 L.P.A. No 294 of 2015 (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."
16. It is evident from the provision of Section 126 of the Electricity Act, 2003 that the authorized officer has been empowered to conduct an inspection in order to assess as to whether the unauthorized use of electricity is being done or not.
17. It is evident from the provision of Section 126(1) that if the authorities have found in course of inspection that the electricity will be used is being consumed by inserting/connecting any device or by any unauthorized means, then the authorized officer is to assess the consumption of electricity.
18. The final assessment will be there subject to objection which will be invited in view of the provision of Section 126(3) of the Electricity Act, 2003. The "unauthorized use of electricity" has been referred under the explanation as under different categories, which are:
(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 authorized.
19. It is further evident after going through the provision of Section 127 of the Electricity Act, 2003 that if the provisional assessment is there having been made under Section 126 of the Electricity Act, 2003, the same is to be Page 10 L.P.A. No 294 of 2015 questioned by the consumer by filing an appeal under Section 127 of the Act, 2003.
20. The issue of Section 126 and 127 of the Act has been dealt with by the Hon'ble Apex Court in the case of Kerala State Electricity Board and Ors. vs. Thomas Joseph and Ors., 2022 SCC OnLine SC 1737, whereby and whereunder it has been held that provision as contained under Section 126 of the Act, 2003 and Section 127 of the Act are the self-contained Code, which means that if the one or the other consumers is aggrieved with the assessment so made under Section 126 then the statutory remedy is available under Section 127 of Electricity Act, 2003 and only thereafter, the other forum that is the writ jurisdiction of the High Court can be invoked. Relevant paragraph of the aforesaid judgment is being referred as under:
"56. The principles of law discernible from the aforesaid may be summarised as under:
(1) The provisions of Section 126, read with Section 127 of the Act, 2003 become a Code in themselves. It specifically provides the method of computation of the amount that a consumer would be liable to pay for excessive consumption of electricity and for the manner of conducting assessment proceeding. Section 126 of the Act, 2003 has been enacted with a purpose to achieve i.e., to put an implied restriction on such unauthorised consumption of electricity. (2) The purpose of Section 126 of the Act, 2003 is to provide safeguards to check the misuse of powers by unscrupulous elements. The provisions of Section 126 of the Act, 2003 are self-explanatory. They are intended to cover situations, other than, the situations specifically covered under Section 135 of the Act, 2003. In such circumstances, the Court should adopt an interpretation which should help in attaining the legislative intent.
(3) The purpose sought to be achieved with the aid of the provisions of Section 126 of the Act, 2003 is to ensure stoppage of misuse/unauthorised use of the electricity as well as to ensure prevention of revenue loss.
(4) The overdrawal of electricity is prejudicial to the public at large, as it is likely to throw out of gear the entire supply system, undermining its efficiency, efficacy and even-increasing voltage fluctuations. (5) The expression 'unauthorised use of electricity' means as it appears in Section 126 of the Act, 2003. It is an expression of wider connotation and principle construed purposively in contrast to contextual interpretation, while keeping in mind the object and purpose of the Act, 2003."
Page 11 L.P.A. No 294 of 2015
21. This Court, in view of the specific provision, is now proceeding to consider the inspection report for the purpose of reaching to the conclusion as to whether the said inspection report can be said to be on the basis of the unauthorized use of electricity. The unauthorized use of electricity has already been defined under the explanation as has been quoted and referred hereinabove.
22. This Court has gone across the inspection report wherefrom it is evident that the inspecting authorized officer has not found insertion of any device connected for the purpose of unauthorized use of electricity or any disruption, rather, the specific report has been given that instead of the contract sanctioned load of 105 HP, the appellant was utilizing the electricity of 157 HP.
23. Thus, it is evident that if any of the conditions as referred under the explanation part as under Section 126 of the Act, 2003 will be available in the inspection report then certainly such inspection report will be said to be conducted under the provision of Section 126 of the Electricity Act, 2003.
But if none of the condition is available, after going through the inspection report then all the inspection report cannot be said in absence of any conditions available to be done under the provisions of Section 126.
24. Now, the question would be that if in such circumstances the use of electricity is being done unauthorizedly, then how to protect the revenue loss of licensee.
25. For the purpose of taking care of the aforesaid fact, the provision has been made in Supply Code as notified on 28th July, 2005 by way of Electricity Supply Code (Regulation), 2005 wherein a specific provision has been made as under Clause 15.7 (iii) which stipulates with respect to the consumption that is the following activities shall not be considered as unauthorized use of electricity where a consumer is being on demand basis but the connected load exceeds the sanctioned load. In such cases one month notice is to be served by the licensee indicating additional load to be regularized by the consumer.
Page 12 L.P.A. No 294 of 2015 It is thus evident from the aforesaid provision that in a case where the electricity consumer is billed on demand basis but the connected load exceeds the sanction load, in such circumstances, one month notice is to be served by licensee indicating additional load to be regularized by the consumer.
26. The Supply Code having been relied upon by the learned counsel for the petitioner, however, the learned counsel appearing on behalf of the respondent has submitted that the said condition will not be applicable unless the consumer have entered into an agreement which has been provided under the tariff of the year 2005.
27. Mr. M.S. Mittal, learned Senior Counsel appearing for the appellant has submitted that the tariff of 2005 will not be applicable after supersession of the said tariff by the tariff of 2010 wherein there is no stipulation to have an agreement before seeking exemption under the Supply Code as under
15.7 (iii).
28. The question which is to be considered herein only on the issue as to whether the writ petition will be maintainable or the appeal under Section 127 of the Electricity Act, 2003 will lie. Certainly, if the inspection report reflects any unauthorized use of electricity as per the explanation of unauthorized use of electricity as contained under Section 126 of the Electricity Act, 2003, then the remedy available to the consumer is to file appeal under Section 127. But if the inspection report does not suggest any unauthorized use of electricity based upon the stipulation made under the explanation, then the remedy available will be under Article 226 of the Constitution of India.
29. It is evident from the inspection report that there is no stipulation having been made in the said report of unauthorized use of electricity and it is not the case of the licensee also, rather, the admitted case of the licensee is that the use of electricity can be said to be unauthorized, since, the electricity was used exceeding the sanctioned demand of 105 HP and in that view of Page 13 L.P.A. No 294 of 2015 the matter, the show cause notice has been issued which has been assailed by the writ petitioner by filing the writ petition.
30. This Court is not questioning the jurisdiction of the licensee in issuing the show cause, rather, if the excess electricity has been used, then the remedy as per the Supply Code has been given to the licensee to show cause for regularizing the contract load.
31. But the question herein is that can on that pretext it be said that the inspection report is under the provision of Section 126 ascertaining the fact of unauthorized use of electricity based upon the explanation of unauthorized use of electricity as provided under Section 126 (3).
32. The unauthorized use of electricity has been defined category-wise and when we have assessed the said category in order to reach to a conclusion as to whether the unauthorized use of electricity based upon its consumption exceeding the sanctioned load can be said to be unauthorized use of electricity within the meaning of Section 126 of the Electricity Act. But we have not found any of the condition as stipulated under the explanation as contained in Section 126 of the Act, 2003, rather, as per the licensee, the inspection was conducted and in course of inspection it was found that exceeding to the sanctioned load, more electricity was being used.
The licensee based upon the said inspection report have issued show cause by issuing the bill which has been assailed by filing the writ petition.
33. Therefore, this Court is of the view that unauthorized use of electricity will be said to be there within the meaning of Section 126 as under explanation then only the writ petition cannot be entertained on the availability of statutory remedy as provided under Section 127 of the Act, 2003. But none of the conditions as stipulated under the explanation as contained under Section 126 of the Electricity Act, 2003, is available.
34. Therefore, merely because the inspection was conducted, it will be said to be under Section 126 of the Electricity Act, 2003 as is being contended on Page 14 L.P.A. No 294 of 2015 behalf of the licensee, the same cannot be said to be justified argument, rather, it is misconceived one.
35. The licensee has filed an affidavit wherein the ground has been taken that the condition stipulated under the unauthorized use of electricity as under II (B) of the explanation is available.
36. But, in course of argument Mr. Mrinal Kanti Roy has fairly admitted that the condition as stipulated under condition II(B) of the explanation is not available after going through the said inspection report.
Conclusion:
37. Therefore, this Court is of the view that merely on account of inspection, the same will be said to be under Section 126 for the purpose of coming to the conclusion of unauthorized use of electricity, the same cannot be said to be the import of the provision of Section 126.
38. The learned Single Judge, merely on by going through the stand taken by the licensee in the counter-affidavit as referred hereinabove and without appreciating the applicability of condition No. II (B) of the explanation as contained under Section 126 of the Electricity Act, 2003 has not entertain the writ petition on the ground of availability of alternative remedy as under Section 127 of the Act, 2003 by way of filing an appeal.
39. Thus, it is evident that if the unauthorized use of electricity is there and based upon the inspection report, if it comes to the notice of the authorized officer, the final assessment, if made, the same can only be challenged by filing an appeal under Section 127 of the Act, 2003 since Section 126 and Section 127 of the Electricity Act are the self-contained Code, as per the judgment referred hereinabove Kerala State Electricity Board and Ors. vs. Thomas Joseph and Ors. (supra).
40. This Court since has arrived at a conclusion that the unauthorized use of electricity is there, but the same cannot be said to be under the fold of categories as stipulated under Section 126 under its explanation, hence, the dismissal of the writ petition on the ground of availability of alternative Page 15 L.P.A. No 294 of 2015 remedy under Section 127 of Electricity Act, 2003, cannot be said to be just and proper.
41. This Court, therefore, is of the view that the impugned order needs to be interfered with.
42. Accordingly, the impugned order is hereby quashed and set aside.
43. The writ petition is restored for adjudication of the issue on merit, in accordance with law.
44. In the result, the instant appeal stands disposed of with the aforesaid observation.
45. Pending interlocutory application(s), if any, also stands disposed of.
(Sujit Narayan Prasad, J.)
I Agree,
(Arun Kumar Rai, J.) (Arun Kumar Rai, J.)
Saurabh / A.F.R.
Page 16 L.P.A. No 294 of 2015