Research › Search › Judgment

Gauhati High Court · body

2015 DIGILAW 33 (GAU)

Sanyeji Ispat Ltd. v. Assam Power Distribution Company Ltd. & Ors.

2015-01-09

A.K.GOSWAMI

body2015
Heard Mr. M. K. Choudhury, learned Senior counsel, appearing for the petitioner. Also heard Mr. B. D. Das, learned Standing counsel, Assam Power Distribution Company Limited (APDCL), appearing for the respondents. 1. This writ petition is directed against a Disconnection Notice, dated 08.12.2014, issued by the respondent No. 4, namely, Area Manager, IRCA-II, under Section 56(1) of the Indian Electricity Act, 2003 (for short, 'the Act of 2003'). By the said notice, 15 days' time, from the date of service of the notice, was granted to the petitioner to pay an amount of Rs. 1,59,39,930/-. It was indicated in the notice that on failing to pay the amount within the stipulated time, power supply to the premises of the petitioner would be disconnected. 2. Against a Provisional Assessment Bill, dated 27.10.2014, an objection, though styled as an appeal, was filed before the respondent No. 4 and, thereafter, by an order dated 19.11.2014, after hearing the petitioner, final Assessment was made by the respondent No. 4 on the basis of the provisional Assessment Bill. In the said order dated 19.11.2014, the date of meter tampering was taken to be 06.03.2013. Aggrieved by the said order, the petitioner preferred an appeal, on 26.11.2014, under Section 127 of the Act of 2003, before the appellate authority. Alongwith the said appeal, an application for stay of the impugned order was also filed with a prayer for waiver of the statutory deposit of 50% of the final assessment amount, as required under the law. 3. At that stage, the impugned notice of demand, dated 08.12.2014, was issued. 4. The petitioner is an industrial unit, which is engaged in manufacture of steel billets. The petitioner was being supplied with electricity from the year 1993. On 31.07.2014, the meter of the petitioner company, bearing No. AS-897638, burnt out and, accordingly, the respondent company was informed about the same. Officials of the respondent company visited the premises of the petitioner on 31.07.2014, seized the meter and dismantled the same for checking. Thereafter, on 27.10.2014, a provisional Assessment Bill was raised by the respondent No. 4 demanding an amount of Rs. 1,59,39,930/- on the basis of the inspection report dated 04.07.2014. The assessment order was made on the basis of average maximum consumption recorded during the period from 01.01.2012 to 30.03.2012. 5. Thereafter, on 27.10.2014, a provisional Assessment Bill was raised by the respondent No. 4 demanding an amount of Rs. 1,59,39,930/- on the basis of the inspection report dated 04.07.2014. The assessment order was made on the basis of average maximum consumption recorded during the period from 01.01.2012 to 30.03.2012. 5. By filing an additional affidavit, the petitioner has brought on record that, on 24.12.2014, power supply was disconnected to the petitioner's unit although a request was made to APDCL authorities not to take any coercive measure till the writ petition was taken up for consideration as the writ petition, filed on 15.12.2014, which was listed on 19.12.2014, could not be taken up due to shortage of time. 6. Mr. Choudhury has submitted that disconnection notice, dated 08.12.2014, which was issued during the pendency of the appeal, is wholly unauthorized and, therefore, the consequential action of disconnection of electricity, on the basis of the said notice, is also unsustainable in law and, therefore, appropriate direction may be issued to restore electricity connection of the petitioner forthwith. Mr. Choudhury has also submitted that the amount demanded by way of Final Assessment Bill is not correct and, according to him, assuming, but not admitting, that there was tampering of the meter, the authorities, at the most, could have levied a bill to the tune of about Rs. 12 lakhs. In the circumstances, he has submitted that this Court may pass appropriate orders directing the appellate authority to consider the appeal, either by waiving the requirement of deposit of 50% of the assessed amount, or by directing deposit of payment of such amount as may be considered just and appropriate by this Court. 7. Mr. B. D. Das, on the other hand, submits that CMIR analysis has indisputably pointed to tampering of the meter on 06.03.2013 and, therefore, based on the aforesaid, assessment order was made and there is no infirmity in the same. It is also submitted by him that when the statute demands deposit of 50% of the assessed amount as a pre-condition for entertainment of the appeal, any appeal, without such deposit, cannot be said to be an appeal in the eye of law and, therefore, issuance of the notice dated 08.12.2014, cannot be held to be unjustified and unauthorized in law. According to him, the appeal filed by the petitioner is inchoate and cannot be considered to be an appeal. According to him, the appeal filed by the petitioner is inchoate and cannot be considered to be an appeal. Accordingly, he submits that having regard to the prayers made in the writ petition, no interference is called for with regard to the notice dated 08.12.2014. 8. Mr. Das, however, submits that since the petitioner was an ongoing industry, he may not have any objection if this Court passes an order restoring the electricity connection of the petitioner on deposit of Rs. 20 lakhs at the first instance. He also submits that a period of six months may be granted to the petitioner for deposit of 50% of the statutory amount for entertainment of the appeal and, if, within the period of six months from today, 50% of the assessed amount, required to be deposited for entertaining the appeal, is not deposited, the authorities may be permitted to take actions, as authorized under the law, including disconnection of electricity connection afresh. 9. Mr. Choudhury, learned Senior counsel for the petitioner readily accepts the concession given by Mr. Das. 10. Even though Mr. Das has given some concession in the matter, which has been accepted by Mr. Choudhury, this Court feels obligated, having regard to challenge made in the writ petition and the submissions advanced with regard to the disconnection notice, dated 08.12.2014, to record findings in this regard. 11. Section 127(2) of the Act of 2003 reads as follows: “127(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.” 12. The Webster's New 20th Dictionary (Unabridged Second Edition), amongst others, defines the term “entertain” as “to receive or admit, with a view to consider and decide; to take into consideration; as to entertain a proposal.” In the case of Hindustan Corporation Bank Ltd. vs. Punnu Sahu (Dead) through LRs, reported in AIR 1970 SC 1984, the Apex Court laid down that the word “entertain” would mean “to adjudicate upon or proceed to consider on merits”. 13. 13. The legislative intent is clear that no appeal against any order of assessment, under sub-Section 1 of Section 127 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 is enclosed alongwith the appeal. An appeal filed, without complying with the requirements of Section 127(2) of the Act of 2003, cannot be adjudicated upon or decided on merit. There is no provision also empowering the appellate authority to dispense with or waive the requirement of deposit of 50% of assessed amount. Therefore, the argument of Mr. Choudhury that an appeal filed without complying with the pre-conditions of such an appeal is also to be considered as an appeal pending for adjudication and, therefore, the authorities are precluded from taking any coercive steps, cannot be accepted. In the considered opinion of the Court, the disconnection notice dated 08.12.2014 was rightly issued. 14. Having held so, this following order is passed in terms of agreement between the parties: (i) The petitioner will deposit a sum of Rs. 20 lakhs, by way of bank draft, within a period of three days from today and, on such deposit, electricity connection shall be restored to the premises of the petitioner within a period of one day. (ii) The petitioner is given time for a period of six months from today to pay, either in lump sum or in installments, as may be convenient to the petitioner, 50% of the Assessment Bill and, on such deposit, the appellate authority will take the appeal on record, entertain the same and adjudicate on merits within a period of three months. If, within a period of six months from today, deposit of the 50% of the assessed amount is not made, the APDCL authorities will be entitled to take such consequential actions against the petitioner, as may be permitted in law, including disconnection of electricity. 15. It is also made clear that this Court has expressed no opinion on merits save and except on the question of legality of the notice dated 08.12.2014. 16. The petitioner will be entitled to raise before the appellate authority all the grounds, as urged in the appeal, or any question of law that may be involved. 17. With the above observations and directions, this writ petition stands disposed of.