Disposed

M/S Hindustan National Glass and Industries Limited v. the Maharashtra State Electricity Distribution Company Limited and Ors.

Bombay HC24 Feb 2012FA/240/2012

Case brief

AI extract

What is this about?

The High Court disposed of an appeal challenging an electricity assessment order by directing the appellant to deposit 50% of the amount. This facilitates cross-examination of the inspecting officer and a fresh assessment order within four weeks, obviating the need for a formal appeal.

What did the court decide?

Appellant to deposit 50% of assessment within one week; assessing officer to allow cross-examination and pass fresh order within four weeks.

M/S Hindustan National Glass and Industries Limited Vs… — Company and Corporate | Bombay HC (2012)

¶1

1 24012

¶2

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

¶3

vgm

¶4

CIVIL APPELLATE JURISDICTION

¶5

FIRST APPEAL NO. 240 OF 2012 WITH

¶6

CIIVL APPLICATION NO. 557 OF 2012

¶7

Hindusthan National Glass & Industries Limited ...Appellant

¶8

V/s.

¶9

The Maharashtra State Electricity Distribution Company Limited & Ors. ...Respondents

¶10

Mr. M.S. Karnik for the Appellant

¶11

Mr. S.K. Chari i/by M/s. M.V. Kini & Co. for the Respondent

¶12

CORAM: A.M. KHANWILKAR AND

¶13

N.M. JAMDAR, JJ. DATE: FEBRUARY 24, 2012

¶14

P.C .:-

¶15

This appeal takes exception to the judgment and decree of

¶16

the 6^th Joint Civil Judge, Senior Division, Nashik, dated 31^st January, 2012 in Special Civil Suit No. 798 of 2011.

¶17

The appellant had filed suit for declaration that defendant Nos. 3 and 5 had no authority to make assessment without personally

¶18

2 24012

¶19

inspecting the premises and demand made by defendant Nos. 3 to 5 is illegal and void ab initio . On that declaration, permanent injunction was claimed against the said defendants to restrain them from disconnecting the power supply of the plaintiff’s factory premises on the basis of assessment and bill dated 17^th September, 2011.

¶20

The said suit has, however, been dismissed on the basis of preliminary objection raised by the respondent-Company regarding jurisdiction of the Civil Court to try and decide the said suit. The appellant, in the present appeal, has assailed the reasons and the order passed by the Civil Court in the suit.

¶21

At the hearing of the appeal, the counsel for the appellant conceded that the suit could not be proceeded by the appellant. However, he submits that it would still be open to the appellant to pursue remedy of a statutory appeal. He submitted that manifest error has been committed by defendant Nos. 3 and 5 in passing the assessment order under challenge. In that, the inspection report was prepared by authorised person other than the assessing officer himself. In that case, before passing of the assessment order, it was imperative to not only furnish the inspection report to the appellant, being occupier or possessor

¶22

3 24012

¶23

of the premises in question, but also to allow the appellant to crossexamine the said officer, who had inspected the premises, instead of the assessing officer himself.

¶24

To buttress this submission, the appellant relies on the decision of Division Bench of this Court in the case of Reliance Energy Ltd. & Anr. v. Chief Engineer (Electrical), PWD Department & Anr. , reported in 2006 (6) Mh.L.J. 479. In paragraph 7 of the said decision, the Court observed thus:-

¶25

“7. ... If the Assessing Officer, however, seeks to rely on the inspection report prepared by such other authorised person, than the Assessing officer, though can make a provisional assessment, will have to direct the company to support the provisional assessment by evidence that there has been unauthorised use of electricity for the presumption to be created under section 126(5). The person other than Assessing officer who carries out the inspection, apart from the report prepared by such person, should be made available to the respondents for testing the genuineness of the said evidence and or report, if the person, occupier or possessor of the premises or place seeks such an opportunity. ”

¶26

Considering the above exposition, the counsel for the appellant contends that the filing of appeal would be a mere formality. The Appellate Authority would be obliged to set aside the assessment order, and relegate the appellant before the assessing officer to pass fresh

¶27

4 24012

¶28

assessment order after following the procedure stated in the abovesaid decision of the High Court.

¶29

The learned counsel for the appellant submits that he is conscious of the fact that, unless the appellant were to deposit 50% of the amount mentioned in the assessment order, the appellant may not be allowed to pursue the remedy of appeal. As regards the delay in pursing the remedy of appeal, it is submitted that the time spent by the appellant in pursuing the remedy of such appeal from 19^th October, 2011 till the disposal of the present appeal may have to be excused by the Appellate Authority.

¶30

The learned counsel further submits that the appellant is willing to deposit 50% of the amount mentioned in the assessment order with respondent No. 1 as condition precedent, in which case, the assessing officer of respondent No. 1 may treat the assessment order impugned in the suit as only provisional assessment, and allow the appellant to cross-examine the officer, who had inspected its premises, and, after giving fair opportunity to the appellant, pass a fresh assessment order as may be warranted in the fact situation of the case. In case the assessing officer was to reiterate the position stated in his earlier

¶31

5 24012

¶32

assessment order, the appellant would then consider of questioning the validity of the opinion before the Appellate Authority against that decision in accordance with law.

¶33

We find this suggestion of the appellant as more than just and reasonable. No prejudice will be caused to respondent No.1, if the appellant were to deposit 50% of the amount mentioned in the impugned assessment order with respondent No. 1 within one week from today. On such deposit being made, the assessing officer shall treat the impugned assessment order as only provisional assessment and then provide opportunity to the appellant to cross-examine the officer, who had inspected the premises. He shall then allow the appellant to urge such grounds as may be available in law, which can be considered by the assessing officer on their own merits, and pass fresh assessment order. The 50% amount, which will be deposited by the appellant, will have to be adjusted towards the liability of the appellant arising under the fresh assessment order, if any. This arrangement would obviate the requirement of filing formal appeal before the Appellate Authority against the assessment order, which is impugned in the suit, and also expedite the process of recovery of the remainder amount payable by the

¶34

6 24012

¶35

appellant, if any, as per the fresh assessment order to be passed by the assessing officer.

¶36

Indeed, the appellant will be free to question the fresh assessment order, in view of the arrangement provided in this order. The appellant concedes that that appeal will be filed after depositing the entire remainder amount mentioned in the fresh assessment order within one week from the fresh assessment order, without prejudice to the remedy of filing appeal, and would be entitled for adjustment, if the appellant were to succeed in that appeal.

¶37

The fresh assessment order to be passed by the assessing officer within four weeks from the date of deposit of 50% amount of the assessment order impugned in the suit by the appellant. The appellant, through counsel, undertakes that the appellant shall extend full cooperation to the assessing officer for passing of fresh assessment order within four weeks from the date of deposit of the amount. The appellant undertakes that no request for adjournment will be made on any count before the assessing officer so as to facilitate him to pass fresh assessment order within the specified time.

¶38

7 24012

¶39