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2008 DIGILAW 710 (KAR)

R. Radhakrishna v. General Manager, BESCOM

2008-11-18

D.V.SHYLENDRA KUMAR

body2008
Judgment :- Shylendra Kumar, J. The matter is taken up for disposal with the consent of learned Counsel for the parties. 2. This writ petition is by a consumer of power that is being supplied by Bangalore Electricity Supply Company. 3. The vigilance squad of the predecessor of the present company, namely, Karnataka Power Transmission Corporation Limited had visited the premises of the petitioner with an installation carrying RR No. C4P 1560 and found that the petitioner was using load over and above what had been permitted by the company. The vigilance squad also found that the seal of the calibration meter had been manipulated. It is in this background, the then competent officer – Assistant Executive Engineer of the company raised back billing demand dated 13.2001 for a sum of Rs.1,23,354/-. 4. That demand was subject matter of litigation before the authorities as well as before this court and it is the latest round of such order as perAnnexure-C dated 30.5.2008 which is challenged in the present writ petition where under the demand at the earliest point of time is confirmed though on this occasion reasonings are given to sustain the demand. 5. Thepresent order dated 30.5.2008 is sequel to the order passed by this court in WP No.16354 of 2005 disposed of on 29.1.2008 directing the respondent to examine the objections raised by the petitioner to the demand and then to pass orders within three months from the date of the objection filed by the petitioner. 6. Thegrievance of the petitioner in the present writ petition as submitted by Sri. Raghupathy, learned Counsel is that even while passing the present order, the petitioner had not been given an opportunity of personal hearing and except for this not many other grounds can be examined in this writ petition. 7. Sri. N K Gupta, learned Counsel appearing for the respondent – present company erstwhile Karnataka Power Transmission Corporation Limited points out while the order is a proper order, petitioner also has the remedy of appeal under section 127 of the Electricity Act, 2003 [for short `the Act]. 8. 7. Sri. N K Gupta, learned Counsel appearing for the respondent – present company erstwhile Karnataka Power Transmission Corporation Limited points out while the order is a proper order, petitioner also has the remedy of appeal under section 127 of the Electricity Act, 2003 [for short `the Act]. 8. While learned Counsel for the respondents – company is right in his submission that the petitioner can definitely avail of the appellate remedy under Section 127 of the Act and this court would normally relegate aggrieved persons to avail of the statutory remedies, in the present case, having regard to the considerable length of litigation that has gone on from the year 2001 and as the remedy as pointed out under Section 127 of the Act in respect of an order passed under Section 126 of the Act and Annexure-C is to be necessarily treated to be an order under the provisions of Section 126 of the Act, what is noticed is that there is an admitted infraction of the provisions of Section 126 [3] of the Act. 9. Section 126 of the Act 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 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 benefitted 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 a notice has been served under sub-Section(2), shall be entitled to file .objections, if any, against the provisional assessment before the assessing officer, who may, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment of the electricity charges payable by such person. .(3) The person, on whom a notice has been served under sub-Section(2), shall be entitled to file .objections, if any, against the provisional assessment before the assessing officer, who may, after affording a reasonable opportunity of hearing to such person, pass a final order of 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: .Provided that in case the person deposits the assessed amount, he shall not be subjected to any further liability or any action by any Authority whatsoever. .(5) If the assessing officer reaches to the conclusion that unauthorised use of electricity has taken place, it shall be presumed that such unauthorised use of electricity was continuing for a period of three months immediately preceding the date of inspection in case of domestic and agricultural services and for a period of six months immediately preceding the date of inspection. for all other categories ofservices, unless the onus is rebutted by the person, occupier or possessor of such premises or place. .(6) The assessment under this section shall be made at a rate equal to one-and-half times 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. 10. The statute expressly stipulates an opportunity of hearing to a person on whom is served a provisional assessment order which in this case can be taken to be the back billing demand and to provide an opportunity not only to file objections but also to participate in the personal hearing to be accorded by the Authority which has passed the provisional order and who has to pass the final order on examination and after hearing. 11. 11. In the present case, while former requirement of giving opportunity to filing objections has been complied as per the directions given by this court in the earlier round of litigation, the further requirement of personal opportunity of hearing is still not fulfilled. 12. An opportunity of hearing is not an empty formality but one which is an enabling provision in favour of a consumer, particularly, in the wake of back billing demand which is quasi criminal in nature, in the sense, that there is a misuse or theft of electricity supplied by the company and in the manner of use of the power supplied by the company. Therefore, before a demand of this nature is confirmed in terms of the final assessment order after the provisional assessment order, an opportunity which is contemplated under the statute should necessarily be accorded and if not the order automatically suffers from this defect. 13. It is not necessary to compel the petitioner to avail of the alternative remedy under such circumstances, but the impugned order at Annexure-C dated 30.5.2008 passed by the second respondent is quashed by issue of a writ of certiorari, only to remand the matter to the assessing authority who can fix a date for which purpose the petitioner shall appear before the second respondent — assessing authority as on 30.12.2008 which date is agreed to by Sri. Raghupathy, learned Counsel for the petitioner and Sri. N K Gupta, learned Counsel for the respondents and the assessing authority to dispose of the matter in accordance with law after hearing the petitioner and after taking into consideration the objections already filed and further submissions made at the time of personal hearing. 14. Sri. Raghupathy, learned Counsel for the petitioner submits that the power connection in the meanwhile has been discontinued and Sri. N K Gupta, learned Counsel for the respondents very graciously submits that in view of this order, the power supply company will restore power to the petitioner which shall be done forthwith but not later than three days from today. 15. Writ petition is allowed. Rule issued and made absolute.