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Rajasthan High Court · body

2022 DIGILAW 1513 (RAJ)

Shashi Gupta v. Ajmer Vidyut Vitran Nigam Ltd.

2022-05-11

VINIT KUMAR MATHUR

body2022
ORDER : 1. The case comes up on an application (Inward No. 01/2022) for early hearing of the matter. 2. For the reasons mentioned in the application, the same is allowed. 3. With the consent of the learned counsel for the parties, the matter is being heard and decided finally today itself. 4. Brief facts giving rise to the present writ petition are that the factory premises of the petitioner was inspected by the Vigilance Department of the respondents on 16.07.2003 and certain infirmities were found in the electricity meter. It was reported by the Inspecting Team that the petitioner’s electricity meter had been tampered with. A report to that effect was prepared which is placed on record as Annexure-2. 5. In pursuance of the Annexure-2, straightaway, a demand of Rs. 3,62,603/- was raised against the petitioner. Against the raising of the said demand by the respondents vide Annexure-3 dated 11.08.2003, the present writ petition has been filed. 6. Mr. J.L. Purohit, learned senior counsel submits that the action of the respondents in straightaway raising the demand vide Annexure-3 is in contravention of Section 126 of the Electricity Act, 2003 (hereinafter referred to as “the Act of 2003”). 7. Learned senior counsel further submits that after the inspection was conducted by the respondents, on the basis of the report so prepared, the respondents were supposed to make the provisional assessment and the order of provisional assessment was required to be served upon the petitioner to afford the reasonable opportunity of hearing to the person concerned before passing a final order of assessment of the electricity charges payable by such person. Learned senior counsel further submits that the petitioner was not served with the provisional assessment order and no opportunity of hearing was afforded to the petitioner before raising the demand and, therefore, the final assessment order in the present case has not been passed. 8. In support of his contentions, learned senior counsel relies upon the judgment of this Court in case of M/s. Shiv Parwati Marble and Others vs. Ajmer Vidhyut Vitaran Nigam Limited and Another, 2010 (3) WLC 308 (Raj.). 9. Learned senior counsel prays that since the action of the respondents is in contravention of the provisions of the Act of 2003, therefore, the demand raised vide Annexure-3 may be quashed and set-aside. 10. 9. Learned senior counsel prays that since the action of the respondents is in contravention of the provisions of the Act of 2003, therefore, the demand raised vide Annexure-3 may be quashed and set-aside. 10. Per contra, learned counsel for the respondents submits that on the inspection being conducted by the Vigilance Department of the respondents, the electricity meter was found tampered with which shows that there was theft of electricity in the factory premises of the petitioner and, therefore, the order of demand of Rs. 3,62,603/- (Annexure-3) is just, proper and correct. He further submits that the petitioner was served with a copy of provisional assessment which is annexed with the reply to the writ petition, however, he is not in a position to show the actual service of copy of provisional assessment upon the petitioner. 11. Learned counsel further submits that since the petitioner committed theft of electricity, no leniency in the present case is required to be extended in favour of the petitioner. He, therefore, prays that the present writ petition may be dismissed. 12. I have considered the submissions made at the Bar and have gone through the relevant documents placed on record. 13. On the inspection being conducted of the premises of the petitioner by the Vigilance Department, it was found that the electricity meter of the petitioner was tampered with and, therefore, a report to that aspect was prepared which is placed on record as Annexure-2. In these circumstances, the respondents were required to proceed against the petitioner in consonance with Section 126 of the Act of 2003 which for brevity is reproduced 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. (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 this 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. (ii) by a means not authorised by the concerned person or authority or licensee. (iii) through a tampered meter. (iv) for the purpose other than for which the usage of electricity was Authorized. (v) for the premises or areas other than those for which the supply of electricity was authorised. 14. The provisions are clear to the extent that if a person is indulging in an unauthorized use of electricity, the authorities shall provisionally assess, to the best of its judgment, the electricity charges payable by such person or by any other person benefited by such use. 14. The provisions are clear to the extent that if a person is indulging in an unauthorized use of electricity, the authorities shall provisionally assess, to the best of its judgment, the electricity charges payable by such person or by any other person benefited by such use. In the present case, though the provisional assessment order is placed on record with the reply, but the fact that it was served upon the petitioner, is not reflected from the record. In any case, the provisional assessment order passed by the authorities has now been served upon the petitioner along with the reply. 15. This Court finds that after the service of the provisional assessment order, the petitioner was required to appear before the authority concerned and file his objections. Since no opportunity was afforded to the petitioner to place his case before the Assessing Officer and straightaway, an order for recovery of an amount of Rs. 3,62,603/- was passed, the same is in contravention of the provisions of Section 126 of the Act of 2003. 16. This Hon’ble Court in the case of M/s. Shiv Parwati Marble and Others (Supra) held as under: 13. A bare perusal of the provisions of Section 126(1) of the Act goes to show 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 provisionally assess to the best of his judgment the electricity charges payable by such person or by any other person benefited by such use. 14. As per the provisions of Sub-Section (2) of Section 126, the provisional assessment order is required to be served upon the person in the manner prescribed. Sub-Section (3) of Section 126 provides that the person concerned is entitled to raise objections, if any, against the provisional assessment order before the assessing officer, who is under an obligation to afford a reasonable opportunity of hearing to the person concerned before passing a final order of assessment of the electricity charges payable by such person, unless the person served with the order of provisional assessment accepts such assessment and deposits such amount within 7 days of service of provisional assessment order upon him. 15. 15. Therefore, acting fairly in consonance with the principles of natural justice while serving the provisional assessment order, the person concerned must be apprise by the respondents that he is entitled to file objections, if any, against the provisional assessment order within a period of 30 days from the service of the provisional assessment order. A perusal of the alleged provisional assessment orders placed on record do not disclose as to how the quantum of the electricity used unauthorisedly by committing an act of theft has been arrived at by the assessing officer. It is not even the case of the respondents that while serving the provisional assessment orders passed as aforesaid, the petitioners were ever apprised that they are entitled to file objections, if any, against the provisional assessment order. Thus, the respondents cannot be permitted to contend that since the petitioners have not filed objections to the provisional assessment orders within the stipulated period therefore, the same has to be treated as final assessment orders for all intent and purposes. 16. The liability for payment of electricity charges for unauthorised use of the electricity has to be assessed strictly in accordance with the provisions of Section 126 of the Act. Thus, without passing the final assessment orders in terms of Section 126(3) of the Act, the petitioners cannot be compelled to deposit the amount under the provisional assessment orders unless, the same is accepted by them in pursuance of the notices issued. The respondent authority is under an obligation to pass final assessment orders considering the objections, if any, raised and giving a due opportunity of hearing to the petitioners. 17. Since, the authorities have not passed the final assessment order and straightaway have raised the demand vide Annexure-3 without affording an opportunity of hearing to the petitioner, the action of the respondents in raising the said demand cannot be sustained. 18. In view of the discussions made above, the demand raised by the respondents vide demand order dated 11.08.2003 (Annexure-3) is quashed and set-aside. The respondents are directed to afford an opportunity of hearing to the petitioner in pursuance of the provisional assessment and the final assessment order be passed and if after the final assessment, any amount is liable to be recovered, demand notice be issued to the petitioner. Since the amounts of Rs. 1,50,000/- and Rs. The respondents are directed to afford an opportunity of hearing to the petitioner in pursuance of the provisional assessment and the final assessment order be passed and if after the final assessment, any amount is liable to be recovered, demand notice be issued to the petitioner. Since the amounts of Rs. 1,50,000/- and Rs. 75,000/- have already been deposited by the petitioner in pursuance of the interim orders passed by this Court, the same shall be adjusted in the case of the petitioner at the time of final assessment, if so required. 19. The writ petition stands disposed of in the above terms. 20. The stay petition and other pending applications, if any, shall also stand disposed of accordingly.