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Madhya Pradesh High Court · body

2020 DIGILAW 957 (MP)

Prakash Singh v. State of M. P.

2020-09-25

VIVEK RUSIA

body2020
ORDER 1. The petitioner has filed the present petition being aggrieved by demand notice dated 20.2.2020 issued by Assistant Engineer,Airport Zone, M.P. Paschim Vidyut Vitaran Co. for recovery penal amount of Rs.1,10,830/- under section 126 of Indian Electricity Act. 2. The petitioner is HT consumer of M.P. Paschim Vidyut Vitaran Co. That on 23.9.2020 a surprise check was conducted on his premises and irregularities in consumption of load were found and on the basis of the assessment of load the impugned demand has been issued to the petitioner, hence the present petition before this Court. 3. Learned counsel for the petitioner submits that the aforesaid calculation has been made treating the electricity meter as M.R.D.M. meter or smart meter, but the fact remains that the petitioner's premises is having an old meter. 4. Shri Prasanna Prasad, learned counsel appearing for the respondents submits that though the demand of Rs.1,10,830/- was made from the petitioner, but thereafter, the respondents have again calculated the amount and finally, it came to Rs.88,880/-. The fresh demand notice has been sent to the petitioner and a copy has also been filed in this writ petition He further submits that the petitioner is having remedy of appeal under section 127 of the Act against the aforesaid order before the appellate authority. The demand was sent to the petitioner, but he has refused to acknowledge it, hence the writ petition be dismissed. 5. The Supreme Court of India in the case of U.P. Power Corpn. Ltd. v. Anis Ahmad, (2013) 8 SCC 491 has held as under :- 39. Section 126 of the Electricity Act, 2003 empowers the assessing officer to make assessment in the case of “unauthorised use of electricity”. It provides that 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 assess the electricity charges payable by such person or by any other person benefitted by such use, the section 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 benefited 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 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 unauthorised 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 the section shall be made at a rate equal to twice the tariff applicable for the relevant category of services specified in sub-section (5). (6) The assessment under the section shall be made at a rate equal to twice 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 person or authority or licensee concerned; 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 authorised.” 40. Section 145 of the Electricity Act, 2003 bars the jurisdiction of the civil court to entertain any suit or proceeding in respect of any matter which an assessing officer referred to in section 126*. A separate provision of appeal to the appellate authority has been prescribed under section 127 so that any person aggrieved by the final order made under section 126, may within thirty days of the said order, prefer an appeal, which reads as under: 127. Appeal to appellate authority.—(1) Any person aggrieved by a 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. (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 subsection (1) against the final order made with the consent of the parties. (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 subsection (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 interestat the rate of sixteen per cent, per annum compounded every six months.” 6. Therefore, it is clear that after notice of provisional assessment to the person indulged in unauthorised use of electricity, the final decision by an assessing officer, who is a public servant, on the assessment of “unauthorised use of electricity” is a “quasi-judicial” decision and does not fall within the meaning of “consumer dispute” under section 2(1)(e) of the Consumer Protection Act, 1986. 7. Since the petitioner is having remedy of appeal under the Electricity Act, therefore, this petition is disposed of without commenting anything on the merits of the case. Let the petitioner prefer an appeal within a week from today before the appellate authority. If such an appeal is preferred within a week from today,then there shall be no disconnection of the electricity supply to the petitioner till the decision of the appeal. 8. With the aforesaid, this petition stands disposed of.