Partly allowed

M/S Cachar Alloys v. Assam Power Distribution Company Limited and 5 Ors.

Gauhati HC9 Mar 2022WP(C)/1271/2022

Case brief

AI extract

What is this about?

The petitioner, an electricity consumer booked for theft, challenged a provisional assessment order. The court held that such a consumer retains the right to appeal under Section 127 of the Electricity Act, 2003. It allowed the appeal to be filed with the competent appellate authority and condoned the delay.

What did the court decide?

The petitioner was allowed to prefer an appeal under Section 127 of the Electricity Act, 2003 before the competent Appellate Authority by March 25, 2022, and delay was condoned.

M/S Cachar Alloys Vs Assam Power Distribution Company… — Consumer Protection | Gauhati HC (2022)

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GAHC010028102022

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/1271/2022

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M/S CACHAR ALLOYS

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HAVING ITS REGISTERED OFFICE-12, M.S. ROAD, FANCY BAZAR, GUWAHATI, PIN-781001, REPRESENTED BY ONE OF ITS PARTNER, SHRI RAKESH KUMAR SURANA, S/O LATE SURAJMAL SURANA, R/O SURAJKUNJ (KK), 12, M.S. ROAD, FANCY BAZAR, GUWAHATI-781001, KAMRUP(M), ASSAM

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VERSUS

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ASSAM POWER DISTRIBUTION COMPANY LIMITED AND 5 ORS A GOVERNMENT OF ASSAM UNDERTAKEN COMPANY DULY INCORPORATED UNDER THE COMPANIES ACT, 1956 HAVING ITS HEAD OFFICE AT BIJULEE BHAWAN, PALTANBAZAR, GUWAHATI-781001, REPRESENTED BY ITS MANAGING DIRECTOR

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2:CHIEF GENERAL MANAGER (COOMERCIAL AND EE) APDCL 5TH FLOOR BIJULEE BHAWAN PALTANBAZAR GUWAHATI-781001 ASSAM 3:GENERAL MANAGER SILCHAR ZONE APDCL SILCHAR-15 ASSAM 4:SUB-DIVISIONAL ENGINEER UDORBOND ELECTRICAL SUB-DIVISION APDCL UDORBOND

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CACHAR

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5:ASST. GENERAL MANAGER CACHAR IRCA ASSAM POWER DISTRIBUTION COMPNAY LIMITED CACHAR ELECTRICAL CIRCLE SILCHAR 15 ASSAM 6:CHIEF EXECUTIVE OFFICER CACHAR ELECTRICAL CIRCLE APDCL MEHERPUR SILCHAR-18 CACHAR ASSA

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Advocate for the Petitioner : MR. B K DAS

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Advocate for the Respondent : SC, APDCL

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BEFORE

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HON’BLE MR. JUSTICE MANASH RANJAN PATHAK

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09.03.2022

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Heard Mr. B. K. Das, learned counsel for the petitioner and Mr. K. P. Pathak, learned Standing Counsel, APDCL for the respondent Nos. 1 to 6.

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The petitioner is a registered partnership firm and is having a MSME (Micro Small and Medium Enterprise) unit at Village - Pangram Part - III, Udarbond in the district of Cachar, Assam, where it manufactures M.S. Ingots (Mild Steel Ingots).

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Respondent APDCL is supplying electricity to the said manufacturing unit of the petitioner at Udarbond installing a meter in its premises vide Consumer No. 152010060553 with sanction load of 3400 KW (Kilo Watt).

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Relating to electrical connection, electrical load, electrical meter etc., the respondent APDCL on 01.10.2021 made joint inspection in the premises of the said manufacturing unit of the petitioner at Udarbond and from the forensic report of the Directorate of Forensic Science, Assam,

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Kahilipara dated 17.11.2021 sufficient evidence was found against the petitioner to conclude that it, as consumer of electricity, supplied by the respondent APDCL, tempered with the metering system (electrical meter) and thereby committed theft of power (electricity).

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After such finding of the Directorate of Forensic Science, Assam, dated 17.11.2021, the respondent APDCL on 08.12.2021 issued provisional estimate of consumption of power to the petitioner relating to its manufacturing unit at Udarbond with Consumer No. 152010060553 for the period from 01.10.2020 to 30.09.2021 for an amount of Rs. 76,45,218/- under the provision of Section 126 of the Electricity Act, 2003 with the detail calculation made under the provision of Clause 7.4.3 of the Assam Electricity Regulatory Commission (Electricity Supply Code) Regulations 2017 [in short AERC (ESC) Regulation 2017], fixing the due date as 15.12.2021, intimating that the petitioner is entitled to file an objection within seven days from the date of serving the said order and if it does not want to file an objection and accept the assessed order, in that case the petitioner was requested to pay the amount of the assessment bill within seven days from the date of presentation of the order, further informing the petitioner that failure on its part to pay the said amount as determined in the assessment bill, the same shall be treated as arrear dues against the petitioner and its service connection would be disconnected as per Section 56 of the 2003 Act, after expiry of fifteen days from the last date specified for payment, that is twenty two days from the date of serving the said order.

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On 08/09.12.2021 the respondent APDCL lodged an FIR before the Officer-in-Charge of Udarbond Police Station against the petitioner for tempering the metering system relating to its Consumer No. 152010060553and the same is pending for investigation.

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Though the petitioner on 10.12.2021 through RTGS made payment of Rs. 76,45,218/- in favour of the Assistant General Manager, IRCA, Cachar Division, APDCL, Silchar pertaining to said provisional assessment bill dated 08.12.2021 for its Consumer No. 152010060553 and prayed for early restoration of power supply to its said industry, but such payment was made on protest.

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Being aggrieved with said provisional assessment of electricity bill dated 08.12.2021 made under Section 126 of the 2003 Act by the respondent APDCL, the petitioner on 10.12.2021 submitted an objection against the same before the Assistant General Manager, IRCA, Cachar, APDCL, CAR, Cachar. After hearing the petitioner, the Assistant General Manager, IRCA, Cachar Division, APDCL (CAR), Cachar passed an speaking order under No. APDCL/ AGM/Cachar IRCA/T8/2021-22/597 dated 29.12.2021 holding that the provisional assessment bill served upon the

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petitioner found to be in order as per Clause 7.4.2 of the AERC (ESC) Regulation 2017 and the same should be considered as final assessment bill and further held that the petitioner has been booked under Section 135 of the 2003 Act.

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Against the same, the petitioner preferred an appeal before the Assistant General Manager, IRCA, Cachar Division, APDCL, Silchar and wanted to deposit the requisite fee in preferring such appeal as provided under Section 127 of the 2003 Act.

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However, the Assistant General Manager, IRCA, Cachar Division, APDCL, Silchar by its communications dated 13.01.2022, 18.01.2022 and 28.01.2022 informed the petitioner that since the assessment of charges of theft has already been calculated under Section 126 of the 2003 Act; as it has already been booked under Section 135 of said 2003 Act; since a police case was lodged at Udarbond Police Station in which police investigation is going on and following the Clause 11.(e) of the letter No. MD/APDCL/Law Cell/58/ 2021/26 dated 08.07.2021 of the APDCL wherein it is categorically stated that “if a person is booked under Section 135 of the Electricity Act 2003, there is no provision to appeal before the Appellate Authority”, therefore the said authority expressed its inability to receive the said appeal of the petitioner and also expressed its inability to accept the money required to be deposited in preferring such appeal under Section 127 of the said 2003 Act.

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In the said back drop, the petitioner has preferred this writ petition against the speaking order dated 29.12.2021 passed by the Assistant General Manager, IRCA, Cachar Division, APDCL, Silchar.

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During the deliberation of the matter Mr. K P Pathak, learned Standing Counsel, APDCL placed before the Court that the State Government in the Power (Electricity) Department vide Notification No.PEL.117/2011/93 dated 24.12.2021 designated Sri Nirmaljit Das, retired CJM (PP&D), APDCL as the “Appellate Authority” of Assam Power Distribution Company Limited for a period of two years with effect from taking over charge by him and it is stated before the Court that in terms of the said order dated 24.03.2021 the concerned person has already taken over charge as the “Appellate Authority” of APDCL.

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Pursuant to the order dated 03.03.2022, Mr. K P Pathak, learned Standing Counsel, APDCL by placing the communication No. MD/APDCL/Law Cell/23/2022/09 dated 08.03.2022 issued by the Assistant General Manager, (Law), APDCL placed before the Court that whenever a theft of

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electricity is detected under Section 135 of the Electricity Act 2003 for determination of loss of electricity incurred, the Power Distribution Companies have to rely on the procedure laid down under the Section of 126 of said 2003 Act and serve an assessment bill to the consumer.

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By the said communication dated 08.03.2022, the authority in the respondent APDCL have also clarified that even though under Section 135 of the said 2003 Act, theft of electricity is identified as a criminal offence, but the consumer is at liberty to approach the Appellate Authority formed under Section 127 of said 2003 Act to adjudicate upon the assessment bill.

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Mr. Pathak, learned Standing Counsel, APDCL has placed the copy of the Order dated 16.11.2021 passed by the Hon’ble Division Bench in Writ Appeal No. 286/2021 submitting that the Hon’ble Division Bench considering the fact that against the concerned appellant although there is a case of theft of electricity under Section 135 of the 2003 Act, but the said consumer/ appellant has the remedy to prefer an appeal under Section 127 of the 2003 Act where he will have a liberty to place all his points, including whether due process under section 126 had been adopted or not and whether the quantum of assessment is in order. The Hon’ble Division Bench of this Court in the said Order dated 16.11.2021 also considered the fact that as a statutory remedy appeal is provided to the concerned consumer and the Hon’ble Division Bench in its Order dated 16.11.2021 came to the agreement that the consumer appellant should approach the Appellate Authority first for redressal of his grievances and thereby uphold the order dated 12.09.2021 passed in WP(C) No. 3427/2021 whereby the learned single Judge dismissed the said WP(C) No. 3427/2021 directing its petitioner to prefer an appeal under Section 127 of the 2003 Act against the final assessment order of the concerned assessing officer passed under Section 126 of the Electricity Act, 2003.

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At this stage, Mr. Das, learned counsel for the petitioner submitted that against the said speaking order dated 29.12.2021 though he preferred the appeal under Section 127 within time before the Assistant General Manager, IRCA, Cachar Division, APDCL, Silchar but the said authority did not accept the said appeal on the ground that the petitioner was already booked under Section 135 of said 2003 Act for the theft of electricity and now as the time limit prescribed under Section 127 of the said 2003 Act in preferring an appeal under the said provision is already over, if it prefers an appeal, the same will be dismissed as time barred and in that case it will be remedy less. Mr. Das learned counsel for the petitioner submitted that the present petition filed under Article 226 of the Constitution of India therefore, should be considered interfering with the

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impugned speaking order dated 29.12.2021 passed by the respondent APDCL.

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It is seen that against the said speaking order dated 29.12.2021 passed by the Assistant General Manager, IRCA, Cachar Division, APDCL, Silchar, the petitioner within the time limit specified by Section 127 of the Electricity Act, 2003 preferred the appeal but before the same authority who passed the said speaking order dated 29.12.2021, i.e., the Assistant General Manager, IRCA, Cachar Division, APDCL, Silchar; though it is not the correct forum of the respondent APDCL to consider such appeal under Section 127 of the said 2003 Act. Moreover, the said authority did not consider the appeal of the petitioner expressing its inability to receive the same on a conclusion that if a person is booked under Section 135 of the Electricity Act 2003, there is no provision to appeal before the Appellate Authority as mentioned in a clause in a letter of the respondent APDCL dated 08.07.2021, noted above, instead of returning the said appeal to the petitioner informing it to approach proper forum as it is not the appellate authority nor forwarded the said appeal of the petitioner before the appropriate appellate authority.

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After hearing the learned counsels for the parties and considering the above, the petitioner is allowed to prefer an appeal before the competent Appellate Authority constituted under Section 127 of the Electricity Act 2003 to adjudicate assessment bill in the respondent APDCL against the impugned speaking order No. APDCL/AGM/CacharIRCA/T-8/2021-22/597 dated 29.12.2021 passed by the Assistant General Manager, IRCA, Cachar Division, APDCL (CAR), Silchar, on or before 25.03.2022 with a certified copy of this order.

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In the event of preferring such appeal by the petitioner under Section 127 of the Electricity Act 2003 on or before 25.03.2022 before the competent Appellate Authority of respondent APDCL as noted above, the said Appellate Authority shall consider and dispose of such appeal of the petitioner following the provisions of the Electricity Act 2003, the relevant Regulations in that regard and in accordance with law, intimating it about the outcome of the same.

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Against the impugned speaking order dated 29.12.2021 passed by the Assistant General Manager, IRCA, Cachar Division, APDCL, Silchar passed under Section 126 of the Electricity Act 2003 Act as the petitioner preferred the appeal under Section 127 of the said 2003 Act but wrongly before the same authority who passed the said impugned speaking order dated 29.12.2021, but within time limit prescribed under Section 127 of the of the Electricity Act 2003 Act, therefore, the Court in exercise of its power under Article 226 of the Constitution of India

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condoned the delay till date in preferring such appeal by the petitioner against the said speaking order dated 29.12.2021 as provided under Section 127 of said 2003 Act.

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With the above observation and direction, this writ petition stands disposed of.

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JUDGE

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Comparing Assistant

M/S Cachar Alloys v. Assam Power Distribution Company Limited and 5 Ors.

Case brief

What is this about?

What did the court decide?

M/S Cachar Alloys v. Assam Power Distribution Company Limited and 5 Ors.

Case brief

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What did the court decide?

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