Rajasthan High Court - Jodhpur
M/S. Lakshya Industries vs Jodhpur Vidhyut Vit. Nigam Ltd. And Ors ... on 9 April, 2025
[2025:RJ-JD:18401]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 4630/2017
M/s Lakshya Industries, G 1, 4-5, RIICO Industrial Area, Napasar,
Bikaner. Through its Proprietor Ramkishan son of Shri
Ramchandra, aged about 45 years, Resident of 5-D-180, JNV
Colony, Bikaner.
----Petitioner
Versus
1. Jodhpur Vidyut Vitran Nigam Limited, New Power House
Road, Jodhpur (Rajasthan). Through its Managing Director.
2. The Zonal Chief Engineer (T&C), RVPN, Jodhpur.
3. The Zonal Chief Engineer (B.Z.), Jodhpur Vidyut Vitran
Nigam Limited, Bikaner (Rajasthan).
4. The Superintending Engineer (District Circle), Jodhpur
Vidyut Vitran Nigam Limited, Bikaner (Rajasthan).
5. The Executive Engineer (Vigilance-D.C)., Jodhpur Vidyut
Vitran Nigam Limited, Bikaner (Rajasthan).
6. The Assistant Engineer (O & M), Jodhpur Vidyut Vitran
Nigam Limited, Napasar, Bikaner (Rajasthan).
----Respondents
For Petitioner(s) : Mr. K.R. Saharan, Adv.
For Respondent(s) : Mr. Vikram Choudhary, Adv.
HON'BLE MR. JUSTICE SANDEEP SHAH
Order (Downloaded on 16/04/2025 at 09:21:31 PM) [2025:RJ-JD:18401] (2 of 9) [CW-4630/2017] 09/04/2025
1. The petitioner has filed this writ petition with the following prayer:-
"It is, therefore, most humbly and respectfully prayed that this Writ petition may kindly be allowed and:-
(i) by an appropriate writ, order or direction, the VCR dated 06.01.2016 (Annexure-1), provisional assessment dated 21.02.2016 (Annexure-2) and notice dated 10.08.2016 (Annexure-5), issued by the respondent department may kindly be quashed and set aside.
(ii) by an appropriate writ, order or direction, the order dated 29.09.2016 (Annexure-8) and order dated 16.02.2017 (Annexure-15), passed by the respondent department may kindly be quashed and set aside.
(iii) by an appropriate writ, order or direction, the respondent department may kindly be directed to refund back the disputed amount of Rs. 1,68,913/- and penalty amount deposited by the petitioner alongwith interest @ 24% per annum.
(iv) by an appropriate writ, order or direction, the respondent department may kindly be directed to referrer the matter before the Settlement Committee.
(v) Any other appropriate order or direction as may be deemed just and proper by the Hon'ble Court in the facts and circumstances of the case may also kindly be passed in favour of the petitioner.
(vi) Costs of this writ petition may be awarded in favour of the petitioner."
2. Brief facts of the case as pleaded in the petition and as argued by the counsel for the petitioner are that the petitioner had obtained an electricity connection with the capacity of 59 HP in the year 2011 from the respondent- Jodhpur Vidyut Vitran Nigam Limited. On 06.01.2016, at around 02:00 PM, the vigilance committee conducted an inspection on the site of the petitioner and found that the petitioner was consuming electricity load of 86.6 HP and, thereafter, prepared a Vigilance Check Report (hereinafter referred to as "VCR"), wherein a note was made for preparing the assessment, as per the Section 126 of the Electricity Act, 2003 (hereinafter referred to as "the Act of 2003") and, thereafter, to undertake the recovery. It was stated in the report that a caretaker on behalf of the petitioner was present there, (Downloaded on 16/04/2025 at 09:21:31 PM) [2025:RJ-JD:18401] (3 of 9) [CW-4630/2017] however, he refused to sign the VCR. It has further been averred that thereafter provisional assessment order dated 21.02.2016 for amount to the tune of Rs.1,68,912.50/- was raised by the respondent department. However, the case of the petitioner is that, he was never served the copy of the above mentioned provisional assessment order and straightaway in the month of July, 2016 an amount of Rs.1,50,851.10/- was added in the monthly electricity bill while showing it as the due amount for the last month. It was on 10.08.2016 that the petitioner received a notice under Section 126 of the Act of 2003 directing him to deposit the sum of Rs.1,68,913/-, being the assessment amount, in seven days of receipt of the notice. On receiving the same petitioner submitted an appeal-cum-representation before the Superintending Engineer (B/C), Jodhpur Discom, Bikaner submitting that the gate keeper was present at the time of inspection and was having no knowledge whatsoever and, therefore, he has refused to sign. It was further submitted that there was no discrepancy in the load and, therefore, re-inspection may undertaken. The petitioner further gave out the details of the load which was mentioned in the VCR and which was present (as per the petitioner) at the site in question. The Superintending Engineer (B/C), Jodhpur Discom, Bikaner made a note upon the representation directing the petitioner to deposit 50% amount. In pursuant to the noting and as per the provisions of 127 of the Act of 2003, the petitioner was deposited the 50% amount on 17.08.2016 itself and also deposited Rs.500/- as registration fees on 22.08.2016.
(Downloaded on 16/04/2025 at 09:21:31 PM) [2025:RJ-JD:18401] (4 of 9) [CW-4630/2017]
3. The matter was, thereafter, placed before the Settlement Committee, and the Settlement Committee had dismissed the appeal-cum-representation of the petitioner while observing that the same was not filed within a period of 30 days and there was no clarity as to whether 50% amount was deposited or not. Further, the amount of Rs.1000/- being the registration fees was not deposited by the petitioner.
4. It is the case of the petitioner that, thereafter, he filed a review petition and the review petition also came to be dismissed. However, in the meanwhile a show cause notice for dereliction of duty was issued to Sh. P.K. Mathur, Executive Engineer (Vigilance District Circle), JVVNL, Bikaner stating therein that though VCR was filled on 06.1.2016, the assessment notice was sent after seven months i.e. on 10.08.2016 and that the application was submitted by the petitioner before the settlement committee on 17.08.2016 and, therefore, the case of the petitioner could not be heard as it was beyond the period of 30 days. Thus, the show cause notice was issued as to why the assessment was not submitted within 30 days of the inspection of the area in question. Thereafter, the status report was sought by the Chief Engineer, Jodhpur Discom, Bikaner wherein the Executive Engineer has clearly specified that the notice was issued to the petitioner on 10.08.2016 only and it was done after six months of the inspection being undertaken. It was further stated that the petitioner on 17.08.2016, the petitioner had submitted submitted an application before the Superintending Engineer for considering the matter before the settlement committee and had also deposited the registration fees and 50% of the demand amount. It (Downloaded on 16/04/2025 at 09:21:31 PM) [2025:RJ-JD:18401] (5 of 9) [CW-4630/2017] was further emphasized that the petitioner had submitted the application within the statutory period of 30 days. It is further the case of the petitioner that he had deposited the residual amount of Rs.95,853/- on 17.02.2017 as he was being threatened that his electricity connection will be disconnected.
5. Learned counsel for the petitioner, in view of the facts stated above, raises four fold submissions :-
(i) The VCR was not correctly prepared and does not bear the signature of the petitioner or his employee who was present there.
(ii) The petitioner never received the provisional assessment order dated 21.02.2016 and it was for the first time when the bill of month of July, 2016 came then he came to know the amount and upon inquiry made came to know about the vigilance check being done and amount been assessed.
(iii) The petitioner, thus, filed a representation-cum-
appeal before the settlement committee and also deposited the 50% amount on 17.08.2016 as also the registration fees of Rs.500/- on 22.08.2016. Thus, after receiving the notice under Section 126 of the Act of 2003 on 10.08.2016, within a period of 30 days, the amount was deposited and therefore, it was incumbent upon the part of the settlement committee to decide the case of the petitioner on merits rather than dismissing it on the ground of limitation.
(iv) As per the show cause notice dated 30.01.2017 (Annexure-12) and the status report dated 03.02.2017 (Annexure-13), it is clear that the petitioner had done the (Downloaded on 16/04/2025 at 09:21:31 PM) [2025:RJ-JD:18401] (6 of 9) [CW-4630/2017] needful within the time frame of 30 days and the officers of the respondents themselves have admitted that the order dated 21.02.2016 was never served upon the petitioner and, therefore, his appeal should have been considered by the settlement committee.
6. The petitioner has thus prayed for quashing of the VCR dated 06.01.2016, the provisional assessment order dated 21.02.2016 and notice dated 10.08.2016 as also the order passed by the Divisional Chief Engineer, Jodhpur Discom, Bikaner dated 29.09.2016 and the order passed by the reviewing authority dated 16.02.2017.
7. Per contra, learned counsel for the respondents makes submissions that there was no ambiguity in the vigilance checking done and the preparation of the VCR on 06.01.2016. The VCR was prepared based upon the load which was being shown at the relevant time. It is further the case of the respondents that the representative of the petitioner was present there, however, he refused to sign the VCR sheet and, therefore, a noting in this regard was made. The respondents though admitted that the 50% amount was paid by the petitioner, however, submits that the petitioner was well aware about the VCR and thus also of the provisional assessment notice dated 21.02.2016. However, the appeal against the same was filed way after a long delay in the month of August, 2016 which was beyond the statutory period of 30 days. As regards the show cause notice and the status report, the respondents have stated that it is an inter departmental correspondence and no benefit of the same can be taken by the (Downloaded on 16/04/2025 at 09:21:31 PM) [2025:RJ-JD:18401] (7 of 9) [CW-4630/2017] petitioner. The counsel for the respondents has thus supported the order impugned.
8. This Court having considered the arguments raised by the learned counsel for both the parties as also the pleading of the case and after perusing the record, is of the opinion that as far as the provisional assessment notice dated 21.02.2016 is concerned there is nothing on record to show that the same was served upon the petitioner. The respondents have not even placed on record any postal receipt qua the same, in spite of the specific assertion made by the petitioner in para 5 of the petition that provisional assessment order was never served upon him and he came to know qua the same only when he received the bill of the month of July, 2016. Rather the factual report dated 03.02.2017 (Annexure- 13 to the writ petition) will also reveal that it is an admitted position that the petitioner received the first notice on 10.08.2016 under Section 126 of Act of 2003 and, thereafter, within a period of seven days he had filed the appeal (Annexure-4) before the concerned authority and also deposited the 50% amount vide Annexure-6 on 17.08.2016 itself. Not only this, on 22.08.2016 the registration fees of Rs.500/- was also deposited by the petitioner. In spite of this, the appeal filed by the petitioner was rejected by the settlement committee only on the ground of delay without into going on the merits of the case.
9. As far as the provision for appeal is concerned the same is provided under Section 127 of the Electricity Act, 2003 which provides as under:-
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 (Downloaded on 16/04/2025 at 09:21:31 PM) [2025:RJ-JD:18401] (8 of 9) [CW-4630/2017] 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."
10. A perusal of Section 127 of the Act of 2003 will reveal that the prerequisite for entertaining of an appeal is that the 50% of the assessed amount is deposited as also the person aggrieved should prefer appeal within 30 days of the said final order passed under Section 126 of the Act of 2003. The provisions further makes it clear that no further appeal is provided against the above mentioned order.
11. As per the facts available on record, it is an admitted position that the provisional assessment order dated 21.02.2016 was never served upon the petitioner and the notice under Section 126 of the Act of the 2003 dated 10.08.2016 was served to the petitioner and immediately the petitioner filed an application/appeal before the settlement committee who had endorsed a note of depositing of the 50% amount. Which was done by the petitioner on 17.08.2016 itself and also the registration fees of the Rs.500/- was deposited on 22.08.2016. (Downloaded on 16/04/2025 at 09:21:31 PM)
[2025:RJ-JD:18401] (9 of 9) [CW-4630/2017]
12. In that view of the matter the order dated 29.09.2016 rejecting the appeal of the petitioner on the ground of limitation cannot be sustained and the order in question deserves to be quashed and set aside. As far as the registration fees being Rs.1000/- and not Rs.500/-, it is too hyper-technical plea and the same could had been rectified while asking the petitioner to deposit residual Rs.500/- additionally while adjudicating the appeal itself.
13. In that view of the matter, without entertaining the merits of the case with regard to the veracity and genuineness of the VCR dated 06.01.2016 the matter is remanded to the Settlement Committee, Bikaner for adjudicating the appeal/representation filed by the petitioner i.e. Annexure-4 dated 10.08.2016 expeditiously and considering the case of the petitioner on merits afresh. The petitioner shall appear before the Settlement Committee on 05.05.2025 for making his submissions before the authority concerned and the authority concerned shall thereafter decide the appeal preferably within a period of 3 months thereafter.
14. Accordingly, the present writ petition is disposed of. No order as to cost.
(SANDEEP SHAH),J 334-mohit/-
(Downloaded on 16/04/2025 at 09:21:32 PM) Powered by TCPDF (www.tcpdf.org)