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Judgment
That the present Writ application has been filed for the following reliefs:-
"(i)For quashing of the order dated 6.4.2022 passed by the Additional Collector, Bhagalpur in Appeal Case No. 01 of 2021-22, whereby and whereunder the Appellate Authority has failed to direct the licensee to revise the energy bill with effect from 19.6.2013.
(ii)For a direction to the respondent authorities to revise the energy bill by applying correct category, as also deducting the delayed payment surcharge from the final energy bill dated 2.12.2022.
(iii)To hold and declare that the respondent authorities cannot levy delayed payment surcharge on incorrect bill amount and any delayed payment surcharge is payable for the delay in making payment of a correct energy bill, as has been held by this Hon'ble Court in the case of M/s. Gaya Roller Flour Mills.
(iv)For a direction to the respondent authorities to adjust the extra amount paid by the petitioner, in future energy bills, and for any other relief or reliefs for which the petitioner may be found entitled to in the facts and circumstances of the case."
The brief facts culled out of the Writ petition are that the petitioner is a domestic electricity consumer of the South Bihar Power Distribution Company Limited. On 19.06.2013, an inspection was conducted at the petitioner’s premises, wherein the connected load was found to be 8 K.W. against the sanctioned load of 3 K.W. and the premises was treated, as falling under the Non-Domestic Service category on the ground that tenants were residing therein. Consequently, a provisional assessment of Rs.46,166/- was raised under Section 126 of the Electricity Act, 2003 (hereinafter referred to as "the Act").
The petitioner objected to the assessment and thereafter approached the Consumer Grievances Redressal Forum. On 21.02.2017, a fresh inspection found the connected load to be 5.305 K.W. and the electricity to be used for domestic purposes. The Forum, by order dated 06.07.2017, directed authorities to revise the bill from 21.02.2017 under the Domestic category, but did not adjudicate the period, prior thereto on the ground that the earlier inspection involved proceedings under Section 126 of the Act.
The petitioner, thereafter, approached this Court in C.W.J.C. No.10605 of 2019, wherein, by order dated 25.02.2020, liberty was granted to avail the remedy of appeal under Section 127 of the Electricity Act, 2003. The petitioner preferred Appeal Case No.01 of 2021-22, which was dismissed by order dated 06.04.2022 and upheld the assessment of Rs.46,166/-.
The petitioner subsequently paid the disputed bill of Rs.3,89,920/- on 27.12.2022 and challenged the assessment, consequential billing, particularly the application of the Non-Domestic tariff and the delayed payment surcharge.
The Learned counsel for the petitioner further submits that, even assuming the inspection dated 19.06.2013 to be under Section 126 of the Act, the assessment could not have been continued beyond the permissible period and the bills ought to have been revised once the subsequent inspection established the actual load and domestic use.
It is also submitted that the delayed payment surcharge levied on the disputed and subsequently revisable bills is illegal, particularly in view of the law laid down by this Court in Gaya Roller Flour Mills, reported in 1995 (2) PLJR 715.
The Learned counsel for the petitioner, therefore, submits that the impugned order of the Appellate Authority and the consequential demand deserve to be set aside and the respondents be directed to revise the bills by applying the Domestic tariff and to refund/adjust the excess amount paid by the petitioner.
A counter affidavit was filed on behalf of the respondents The Learned counsel for the respondents submits that the inspection dated 19.06.2013 was duly conducted by the competent authority, wherein the connected load was found to be 8 K.W. against the sanctioned load of 3 K.W. and the premises was occupied by tenants. Accordingly, the assessment under Section 126 of the Act, was rightly made in accordance with the applicable tariff.
The Learned counsel for the respondents further submits that the petitioner had already availed the statutory remedies, before the Consumer Grievances Redressal Forum and thereafter before the Appellate Authority under Section 127 of the Act, which was upheld by the Appellate Authority vide order dated 06.04.2022. The petitioner, therefore, cannot seek interference with the assessment in the present Writ proceeding.
It is submitted that the subsequent inspection dated 21.02.2017 and the consequential revision of bills do not invalidate the earlier inspection or assessment, which related to the position found on 19.06.2013.
The Learned counsel for the respondents also admitted that the petitioner has already paid the outstanding amount of Rs.3,89,920/- and subsequently applied for a fresh electricity connection. In view of this, there is no ground for interference with the impugned order or for grant of any further relief and, therefore, prays to dismiss the Writ petition.
A Rejoinder to the counter affidavit was filed on behalf of the petitioner, contending that the payment of Rs.3,89,920/- was made under protest only for obtaining electricity connection and, therefore, such payment cannot be treated as acceptance of the disputed demand.
The Learned counsel for the petitioner submits that the principal issue is whether the petitioner could be subjected to penal assessment under the Non-Domestic tariff for the period between the inspections dated 19.06.2013 and 21.02.2017. It is contended that the respondents raised the demand of Rs.46,166/- without deciding the petitioner’s objection and without passing a final assessment order as required under Section 126 of the Act.
The Learned counsel for the petitioner relies upon the decision of the Hon’ble Supreme Court in Southern Electricity Supply Co. of Orissa Ltd. v. Sri Seetaram Rice Mill, reported in (2012) 2 SCC 108, in support of the submission that only a final assessment order under Section 126 of the Act is appealable under Section 127. The Learned counsel, therefore, submits that the impugned order dated 06.04.2022 is unsustainable in law and is liable to be set aside.
The Hon'ble Supreme Court in Southern Electricity Supply Co. of Orissa Ltd. (supra) has held as under:
"78.Once the order of assessment is finally passed and is served upon the consumer, he is expected to pay the said charges unless, being aggrieved from such an order, he prefers an appeal under Section 127 of the 2003 Act. The appeal under Section 127 would lie only against the final order passed under Section 126 that too within 30 days of the said order. The appeal shall be filed, maintained and dealt with in accordance with the procedure specified in Section 127 of the 2003 Act. A bare reading of the provisions of Section 127 shows that it is the final order made under Section 126 which is appealable under Section 127 of the 2003 Act. In other words, issuance of a notice or a provisional order of assessment as may be made by the assessing officer in terms of sub-section (1) to sub-section (3) of Section 126 of the 2003 Act would not be the order against which an appeal would lie."
87.Having dealt with and answered determinatively the questions framed in the judgment, we consider it necessary to precisely record the conclusions of our judgment which are as follows:
1.Wherever the consumer commits the breach of the terms of the Agreement, Regulations and the provisions of the Act by consuming electricity in excess of the sanctioned and connected load, such consumer would be “in blame and under liability” within the ambit and scope of Section 126 of the 2003 Act.
2.The expression “unauthorised use of electricity means” as appearing in Section 126 of the 2003 Act is an expression of wider connotation and has to be construed purposively in contrast to contextual interpretation while keeping in mind the object and purpose of the Act. The cases of excess load consumption than the connected load inter alia would fall under Explanation (b)(iv) to Section 126 of the 2003 Act, besides it being in violation of Regulations 82 and 106 of the Regulations and terms of the Agreement.
3.In view of the language of Section 127 of the 2003 Act, only a final order of assessment passed under Section 126(3) is an order appealable under Section 127 and a notice-cum-provisional assessment made under Section 126(2) is not appealable.
4.Thus, the High Court should normally decline to interfere in a final order of assessment passed by the assessing officer in terms of Section 126(3) of the 2003 Act in exercise of its jurisdiction under Article 226 of the Constitution of India.
5.The High Court did not commit any error of jurisdiction in entertaining the writ petition against the order raising a jurisdictional challenge to the notice/provisional assessment order dated 25-7-2009. However, the High Court transgressed its jurisdictional limitations while travelling into the exclusive domain of the assessing officer relating to passing of an order of assessment and determining the factual controversy of the case.
6.The High Court having dealt with the jurisdictional issue, the appropriate course of action would have been to remand the matter to the assessing authority by directing the consumer to file his objections, if any, as contemplated under Section 126(3) and require the authority to pass a final order of assessment as contemplated under Section 126(5) of the 2003 Act in accordance with law."
Heard the Learned counsel for the parties and perused the materials available on record.
Upon consideration of the rival submissions and the materials available on record, this Court finds that the issue in the present Writ petition is whether a final assessment order under Section 126 of the Act, was ever passed by the competent Assessing Officer.
The record indicates that pursuant to the inspection dated 19.06.2013, a provisional assessment of Rs.46,166/- was raised. The petitioner had filed objection thereto, but there is nothing on record to show that, thereafter, the Assessing Officer considered the objection, afforded an opportunity of hearing and passed a final assessment order in terms of Section 126 of the Act.
The Hon’ble Supreme Court in Southern Electricity Supply Co. of Orissa Ltd. (supra) has categorically held that an appeal under Section 127 o the Act lies only against a final order of assessment under Section 126 of the Act and that a notice or provisional assessment is not appealable under Section 127 of the Act.
In the present case, in the absence of a final assessment order under Section 126 of the Act, the exercise of appellate jurisdiction under Section 127 of the Act culminating in the impugned order dated 06.04.2022 cannot be sustained. The subsequent inspection dated 21.02.2017 and the findings recorded therein also cannot substitute the statutory requirement of passing a final assessment order on the objection raised by the petitioner against the provisional assessment.
Accordingly, the impugned order dated 06.04.2022 passed in Appeal Case No.01 of 2021-22 is set aside. The matter is remitted to the competent Assessing Officer, who shall consider the objection filed by the petitioner against the provisional assessment and, after affording due opportunity of hearing to the petitioner, pass a reasoned final assessment order in accordance with Section 126 of the Act, and the law laid down by the Hon’ble Supreme Court in Southern Electricity Supply Co. of Orissa Ltd. (supra).
It is made clear that this Court has not expressed any opinion on the merits of the alleged unauthorized use of electricity or the amount of assessment, which shall be determined by the competent authority in accordance with law.
Accordingly, this Writ petition is allowed with the aforesaid observations.
Interlocutory Application(s), if any, shall stand disposed of.