asap'i ^^@r—f r/<^~'iS-f^l AMENDED WRIT PETITION IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION N0. 3451/2003 Fiied PETITIONER |/5-r)i° . o3-si-|^> 's:.^.'^---- ..*,«i<wcate ,.,^,..dt,^ 'i J, ^'^^,f R.toA.H.y) RESPONDENTS --^ M/s Bansal RiceMill, through: Partner Shri Satyaprakash Agrawal, ageQ about 51 years son of Shri T.R. Bansal, Industrial Estate, Durg, Distt. Durg (Chhattisgarh) VERSUS The Chhattisgarh State Power Distribution Company ', Limited, through: its Secretary, Raipur, Chhattisgarh Superintendent Engineer (Durg 'Circle) Chhattisgarh State Power Distribution Company Limited, Durg (C.G.) Executive Engineer (Division no. 1) Chhattisgarh State Power Distribution Company Limited, Distt. Durg (Chhattisgarh) Assistant Engineer (Tech.) Chhattisgarh State Power Distribution Company Limited, Distt. Durg (Chhattisgarh) WRITPETITION UNDERARTICLES 226/227 OFTHE CONSTITUTIOJM_QF INDIA •'^ V. --»? 6 '»>. .!' sl 1^.//y? t.,^sy:fy <1* mOH COURT OF CHHATTISGARH AT BILASPUR PETITIONER WRITPETITION No. 3451 of2003 M/s. Bansal Rice Mill. VERSUS RESPONDENTS The Chhattisgarh State Power Distribution Company Limited & Others. WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OFINDIA SB: Hon'ble Shri Satish K. Asnihotri, J. Present: Shri P.P.Sahu, Advocate for the petitioner. Shri Alok Bakshi, Advocate for the respondents. ORDER(ORAL) (Passed on 19th day of November, 2010) 1. The petitioner impugns the demand notice dated 01.08.2003 (Annexure P/4), whereby, the electricity charges of the petitioner-firm has been reassessed to the tune ofRs. 3,88,800/-. 2. The brieffacts, in nutshell, are that the petitioner is a paUnership firm engaged in business of milling rice from paddy. For runaing of the plant, the petitioner-firm entered into an agreement with the then Chhattisgarh State Electricity Board for supply of electricity. The petitioner was depositing the electricity charges regulariy and there was no complaint ofany electricity thefit or tampering. On 30.07.2003, fhe officials of the respondent made a siirprise check wherein they found that the seal ofthe meter was tampered. Thereafter, a demand of arrears of the bill amountmg to Rs. 3,88,800/- was issued to the petitioner for consumption of 34,864 units more fhan what was paid by the petitioner. Thus, fhis petition. 3. Shri Sahu, leamed counsel appearing for the petitioner submits that the officers of fhe respondent-Company made inspection of the meter on 10.06.2003, wherein no irregularity was noticed by the authorities. Thereafter, the vigilance cell of the respbndent-Board made an inspection on 30.07.2003 and found that the seal of the meter was tampered with. Thus, a re-assessment of tbe electricity charges was done on the basis of maximum units for the past six months taking consumption of the units is arbita-ary, illegal and without authority of law. 4. Shri Sahu further submits that sub section (5) of section 126 under part XII offhe Electricity Act, 2003 (hereinafter referred to as 'the Act, 2003') provides for investigation and assessment. Under section 126(5) ofthe Act, 2003, there is a contemplation ofaffording of an opportunity of hearing for rebuttal by the person, occupier or possessor of such premises or place, in the instant case, the petitioner. Shri Sahu further submits that the assessing officer, who ascertained the period of unauthorized consumption, invoked deeming provision that in absence of a certain period, it has to be presumed that the electricity was unauthorisedly used for three months immediately preceding the date of inspection in case of domestic and agricultural services and for a period ofsix months immediately preceding the date of inspection for all other categories of services. In the case on hand, when there is no dispute that the inspection was done by the authorities offhe respondent-Board on 10.06.2003, from no sta-etch of imagination, the petitioner could be imposed the charges of maximum units for the last six months. Even otherwise, the petitioner was not BIW s> afforded an opportunity to put forward his case for rebuttal of the allegations. 5. Shri Sahu next submits that the entire amount as demanded by the respondent-Board was deposited in order to avoid disconnection as it was a commercial venture and disconnection would have caused severe loss to the petitioner. 6. On the other hand, Shri Bakshi, leamed counsel appearing for the respondents submits that only auto re-setting ofthe meter was done on the basis of remarks noted by the Audit Executive Engiaeer on 10.06.2003 aud no inspection was done on that date. With regard to affording opportunity of hearing, Shri Bakshi submits that it is true that no notice was issued prior to re-assessment and issuance of impugned demand notice, but since the petitioner has deposited the entire money without any protest, the petitioner cannot be permitted to raise the issue after deposit ofthe money. 7. Be that as it may, by depositing the entire money as demanded by the respondent-Board, it cannot be held that the petitioner has waived of his right to challenge the alleged illegal and arbitrary assessment made by the respondent-Board under the provisions of section 126 of the Act, 2003. 8. Section 126 ofthe Act, 2003, reads as under: "126. Assessment.—(1)If pn an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found cdnriected or usefl, or after inspection of records maintained by any person, the assessing officer comes to the concliision that such person is mdulgin^ in unauthorised use of electricily, he shal other pi >y y (2) The order ofproyisional assessment shall be seryed upon the person in occupation or possession or in charge ofthe place or premises in such manner as may be prescribed. (3) The person, on whom _a notice has been served under sub-section (2), shall be entitled to file objections, if any, agamst the provisional assessment beTore theassessing officer, who may, after affording a reasonable opportunity of hearing to such perspn, pass a fmal or3er of_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: Provided that in case the person deposits the assessed amount, he shall not be subjecfed tp any further liability or any action by any authority whatsoever. (5) If the assessing officer reaches to the conclusion fhat unauthorised use bf electricity has taken place, it shall be presumed that such unauthdrised use of electricity was continuing for a period of three months immediately precedmg the 3ate of inspection in cases pf domestic and agricultural services and for a penod of six months immediately preceding the date ofinspection for all other categories of services, unless the onus is rebutted by the person, occupier or possessor of such premises 6r place. [6) The assessment under the section shall be made at a rate eaual to one-and-half times the tariff applicable for . the releyant category of services specified in sub-section (5). Explanation.—Forthe purposes ofthis section,— (a) "assessing officer" means an officer of a State Govemment br Board or licensee, as the case may be, designated as such by the State Govemment; (6) "unauthorised use of electricity" means the usage ofelectricity— (i) by any artificial means; or (w) by a means not authorised by the concemed persoii or authority or licensee; or (u7) through atampered meter; or (w) fpr the puqiose other fhan for which the usage of electricity was authorised." 9. Sub-section (5) of section 126 of the Act, 2003 clearly provides for an opportunity to the consumer or any other person who is in occupation ofthe plaee to rebut the allegations, which admittedly has not been done in this case as no material has been produced by the respondents to establish that before issue of demand notice, aa opportunity of hearing was afforded to the petitioner. It is also not the case ofthe respondents that any opportimity of hearing was afforded to the Amit petitioner before re-assessment and further before raising the demand for payment. lO.Further, depositing of the money as demanded by the respondent- Board cannot prohibit the petitioner to challenge the re-assessment done under the provisions ofsection 126 ofthe Act, 2003. It appears that the entire exercise was done not in accordance with the provisions oflaw, while reassessing the electricity charges. ll.Thus, having regard to the facts situation ofthe case, ifthe impugned demand notice dated 01.08.2003 (Annexure P/4) has not been given effect to, the same shall not be given effect till the petitioner is afforded an opportunity ofhearing to rebut the allegationsand a fresh order is passed, thereon under the provisions oflaw. 12.With fhe above obseryations and directions, the writ petition is disposed of. No order asto costs. Sd/- satish K. Agnifaotri Judse ''f-iS'.Sf^ 1