Jharkhand High Court: A Single Judge bench comprising of Chandrashekhar, J. allowed a civil writ petition challenging legality of provisional assessment order passed by the respondent under Section 135 of the Electricity Act, 2003.

Brief facts of the case were that an electricity breakdown in the petitioner’s premises was rectified by the respondent’s officials and a report was prepared recording slight damage in meter chambering unit. However, at this stage, the report stated that the meter reading was correct and there was proper sealing; no evidence of electricity theft was found. An inspection was carried out by the respondents a few months later in the appellant’s premises, and on the basis of an inspection report, a case was lodged under Sections 379, 420 and 353 of the Penal Code, 1860 and under Sections 135, 137 and 138 of the Electricity Act. A provisional assessment order was passed by the respondent under Section 135 of the Electricity Act directing the petitioners to pay Rs 3,23,71,524. The said order was challenged by the petitioner as being devoid of jurisdiction and illegal in the present writ petition.

Relying on the judgment of Hon’ble Apex Court in Sanwarmal Kejriwal v Vishwa Co-operative Housing Society Ltd., (1990) 2 SCC 288, the court observed that challenge to an assessment order on the ground of lack of jurisdiction must be grounded in lack of jurisdictional facts and the same rests on the averments taken in the plaint or claim application. As such, the jurisdictional facts in the inspection report would be the facts that connect the consumer to the theft of electricity and the subjective satisfaction of the authorized officer in relation to the same must be reflected in the inspection report.

After a comprehensive analysis of Section 135(1-A) of the Act, the court observed that a provisional assessment order can be sustained only if the inspection report records a finding on the theft of electricity and evidence in support thereof.

It was also observed that Electricity Act is a special statute created to discourage electricity thefts and loss accruing to the Electricity Boards as a result thereto. It is for this reason that the provisions of the Act have been couched in a wide manner to include every incidence of unauthorized use of electricity within its ambit. The Act provides for drastic measures such as – disconnection of electricity; lodging of F.I.R.; provisional assessment order; consumer does not have an opportunity to object to the assessment order; no appeal lies against the said order, and electricity supply is resumed only on payment of assessed amount.

The Court relied on State v Brijesh Singh, (2017) 10 SCC 779 to opine that in such a scenario, the Act must be given a wholesome interpretation to achieve a fine balance between literal and purposive construction. Thus, in view of wide amplitude of the provisions of the Act, there must be a strict compliance of the procedural aspects.

It was held that the theft of electricity must be apparent and visible on a bare reading of the inspection report. If a strenuous exercise is required to infer the theft, then the matter shall be investigated and decided in trial; but before completion of such trial, the authorized officer cannot raise a presumption of theft clothing himself with jurisdiction to pass a provisional assessment order.

On the strength of aforesaid, it was opined that the inspection report in the present case did not record satisfaction of the authorized officer and also, there was no mens rea. As such, the provisional assessment order was quashed for being illegal and void and the respondent was directed to resume the supply of electricity to the petitioner on payment of Rs 25 lakhs adjustable against its future bills. [Himadri Steel Pvt. Ltd. v Jharkhand Urja Vikas Nigam Limited,2018 SCC OnLine Jhar 1184, Order dated 05-09-2018]

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