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Judgment
,
Dr. A.K. Mishra, J",
The Order dated 13.07.2017 in dismissing the writ petition bearing W.P.(C) No.13047 of 2015 by the learned Single Judge is assailed in this appeal,
by the appellant-petitioner. By such dismissal, the prayer to interfere with the order of appellate authority U/s.127 of the Electricity Act, 2003 was not",
acceded to.,
Facts are encapsulated thus:-,
M/s. Satguru Metals & Power Pvt. Ltd. is a power intensive industry at Gariamal under Rajgangpur Sub-Division. For,
electricity consumption it had entered into an agreement on 5.6.2009 with Western Electricity Supply Company of Odisha (in short „WESCO‟) and,
thereby was allotted Consumer No.358 P(II) RRKL/3-0191 with contract demand of 5700 KVA.,
2.(a) On 11.12.2010, a surprise inspection was conducted by the present appellant-assessing officer in presence of police and other officers.",
Abstraction of power supply from 33KV line of the distribution system by means of taping (hooking) was detected. Connected insulated copper,
conductor, ropes, hand gloves, cement plastic bags, foot wears were detected. The officers could not enter inside as the consumer-company did not",
co-operate and Inventory Report was pasted on the wall.,
2.(b) On 21.12.2010, the assessing officer-cum-Executive Engineer, RED Rajgangpur issued a provisional assessment order U/s.126(1) and 126(2) of",
the Electricity Act, 2003 demanding Rs. 2,23,02,241/- for unauthorised abstraction of electricity. The consumer-company had filed objection on",
27.12.2010 raising plea that there was no inspection and assessment for making demand was illegal.,
2.(c) On 29.12.2010, rejecting such objection, the provisional assessment order was made final U/s. 126(3) of the Electricity Act, 2003.",
2.(d) Against such final order of assessment and disconnection notice, the consumer-company filed writ petitions bearing W.P.(C) Nos.176 and 763 of",
2011 and pursuant to the interim order passed by the writ court, the consumer had deposited Rs.50.00 lakhs for restoration of power supply. On",
11.09.2012, both writ petitions were disposed of giving liberty to the consumer-company to prefer the appeal U/s. 127 of the Electricity Act, 2003",
within a period of 30 days from the date of order.,
2.(e) The consumer-company instead of preferring appeal U/s.127 of the Electricity Act, 2003, filed writ appeal bearing W.A. No.425 of 2012 which",
was dismissed on 20.12.2012. Thereafter on 31.01.2013, the consumer-company had preferred the appeal U/s.127 of the Electricity Act bearing",
No.A.F.O.-3 of 2012-13 before the appellate authority-cum-S.E.-cum-Electrical Inspector, Rourkela. The appellate authority vide its order dated",
6.6.2015 considered the appeal as directed by the High Court and held that the consumer-company was not provided with the mandatory reasonable,
opportunity to appear before the Assessing Officer for making the provisional order final as per Section 126(3) of the Electricity Act, 2003.",
2.(f) The appellate authority also ascertained the unauthorised use of electricity on the basis of dump report submitted by Assessing Officer. For,
working out the same, he took the difference of meter reading of Sundargarh Sub-station and consumer M/s. Satguru Metals and Power Pvt. Ltd.",
with T & D loss, and found that unaccounted energy was drawn from the system and thereby energy was unauthorisedly consumed by the consumer-",
company. He concluded that the period of such abnormal drawal was from the month of November, 2010 till the time of disconnection i.e. on",
11.12.2010. Accordingly, he fixed the penalty twice of the applicable rates of energy charges, which was calculated to be Rs.31,01,130/-.",
The said order of the appellate authority was challenged in the writ petition bearing W.P.(C) No.13047 of 2015. Before the learned Single Judge,",
the contention was confined to only two points i.e. (i) acceptance of appeal after prescribed period U/s.127 of the Electricity Act, 2003 and (ii)",
ascertainement of the unauthorised use of electricity on the basis of dump report ignoring 12 months presumption as done by the Assessing Officer.,
No other point was advanced as mentioned in the impugned judgement at para-4 by the learned Single Judge.,
3.(a) Learned Single Judge distinguishing the decision of the Hon‟ble Apex Court in the case of Chhattisgarh State Electricity Board vrs. Central,
Electricity Regulatory Commission reported in AIR 2010 SC 2061 on the basis of the distinctive features between Sections 125 and 127 of the,
Electricity Act, 2003, held that the appeal memorandum had contained the explanation for the delay for not filing the appeal within 30 days from the",
date of order of the writ petition and writ appeal being a continuation of the appeal, the pending appeal period was to be excluded under Section 14 of",
the Limitation Act. Accordingly, he concluded that the petitioner could not have raised the ground of limitation in preferring appeal U/s.127 of I.E. Act",
in the writ court.,
3.(b) On the second point, learned Single Judge has categorically held that the period of unauthorised use of electricity where ascertainable, 12 months",
period as provided U/s.126(5) of I.E. Act is not applicable to calculate the amount of unauthorised use of electricity and for that learned Single Judge,
relied upon the judgment rendered by the Hon‟ble High Court of Punjab and Haryana in the case of Gurpreet Kaur vrs. PSEB and others) reported in,
AIR 2013 Punjab & Haryana 11.,
Before us, learned counsel for the appellant Mr. P.K. Tripathy also raised same two points and vociferously submitted that the learned Single Judge",
has not properly appreciated the decision rendered in the case of Chhatisgarh State Electricity Board (supra) and as the period of unauthorised use of,
Electricity could not have been ascertained, the calculation of penalty on the basis of the period of twelve 12 months immediately preceding the date of",
inspection as done by the Assessing Authority could not have been negatived.,
Learned Senior Counsel for the respondent No.2, Mr. Sourya Sundar Das repelled the above contention on the ground stated in the impugned",
judgment. At the same breath, Mr. Das wanted us to set aside the impugned judgment and the appellate order exercising jurisdiction under Order 41",
Rule 22 of C.P.C. because of the fact that once the provision U/s.126 of I.E. Act has been resorted, the question of disconnection U/s. 135 of the",
Electricity Act, 2003 did not arise as decided in the decision reported in 2012 2 SCC 108 in the case of Executive Engineer, SOUTHCO and another",
vrs. Seetaram Rice Mill.,
5.(a) Both the learned counsel for the parties relied upon the decision of Seetaram Rice Mill (supra) and Chhatisgarh State Electricity Board (supra),
and made us to read the law therefrom in the light of their submissions.,
Keeping the jurisdiction of this writ appeal in view and materials placed and annexed to the writ petition, we bestow our thought over two points",
urged. The provisions of Electricity Act, 2003 are relevant and the two decisions cited by both the parties do not pose any problem for making it",
applicable to the facts of this case with the plain and unambiguous meaning and spirit of the Act. Judgment of a Court is not to be construed like,
statutes. The statement of Law enunciated in a judgement in determining the disputes is the ratio decidendi which carries the force of precedent for,
others.,
In Seetaram Rice Mill case, the meaning of “unauthorised use of electricityâ€, has been analysed and is stated to construe purposively in contrast",
to conceptual interpretation. The ratio has been reiterated in para-87 of the decision.,
126(5) of Electricity Act,2003 prior to its
amendment","126(5) of Electricity Act, 2003 substituted
by the Electricity (Amendment) Act, 2007
I f 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 dates 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 of services, unless the onus is
rebutted by the person, occupier or
possessor of such premises or place","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.