Judgment:
CWP No.12766 o”
1. IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION :
01. .7.2013 Paramjit Singh ...Petitioner Versus State of Punjab and others ...Respondents CORAM: HON'BLE MR.JUSTICE RAJIV NARAIN RAINA PRESENT: Mr.Pankaj Jain, Advocate for the petitioner ...Notes:
1. Whether to be referred to the reporters or not?.
2.Whether the judgment should be reported in the Digest?...RAJIV NARAIN RAINA, J.
Although a long story has been narrated in the writ petition based on a political rivalry between the wife of the petitioner, a contestant to the Zila Parishad and Panchayat Samiti elections notified by the State of Punjab inter alia for Village Ghawaddi in District Ludhiana on 19.5.2013 as a candidate of the party in opposition on the one hand and the leaders of the ruling party on the other.
It is alleged that the petitioner was roped in a false case of unauthorized use of electricity in his agricultural fields.
It is averred that the Local MLA directed the 5th respondent, a Junior Engineer with the Punjab State Power Corporation Ltd., respondent no.2 to implicate the petitioner in CWP No.12766 o”
2. a false case.
The 5th respondent is said to have raided the premises of the petitioner at the behest of the local MLA to inspect the electricity meter and make out a case of theft of energy.
It is said that since the respondent could not implicate the petitioner in a case of theft of electricity, a false case has been prepared that the petitioner has indulged in unauthorized use of electricity.
Besides this, an FIR was also registered against the petitioner, his supporters and 25 other persons under Sections 186, 353, 148, 149, 506 of the IPC.
The provisional assessment order has been passed under Section 126 of the Electricity Act, 2003 (for short “the Act”.) asking him to pay Rs.1,01,022/- (P-3).In the background of the above facts pleaded in the petition, it is argued by learned counsel for the petitioner that the 5th respondent had no jurisdiction to check the premises with respect to petitioner’s account no.13/663.
It is only the Assessing Officer named in the Notification dated 27.12.2004 (P-4) who could carry out the checking/inspection.
The notification (P-4) issued under Section 126 of the Act is meant for implementation of the provisions under Section 126 of the Act for LT consumers like the petitioner.
The Assessing Officer can only be the Assistant Engineer/Assistant Executive Engineer/Executive Engineers of Operation Wing of the area as mentioned in the Schedule to the Notification.
The short controveRs.as pressed by the learned counsel for the petitioner for determination of this Court is whether the provisions of Section 126 of the Act read with notification dated 27.12.2004 authorizes a Junior Engineer to carry out an inspection.
He relies on the bare reading of Section 126 of the Act which falls in the chapter of “Investigation and CWP No.12766 o”
3. Enforcement”.
of the Act.
For this we would need to go to Section 126(1) of the Act which reads as follows:- “126(1).If on an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found connected or used, or after inspection of records maintained by any person, the assessing officer comes to the conclusion that such person is indulging in unauthorized use of electricity, he shall provisionally assess to the best of his judgment the electricity charges payable by such person or by any other person benefited by such use.”
Learned counsel does not dispute that the impugned provisional order of assessment for unauthorized use of electricity has been issued and signed by the Assistant Executive Engineer, Distribution Sub Division Sarinh.
He submits that it is only when the Assessing Officer who after inspection of any place or premises etc., comes to the conclusion that a person is indulging in unauthorized use of electricity, he shall provisionally assess, to the best of his judgment, the electricity charges payable.
He points out to the impugned notice dated 15.5.2013 (P-3) to urge that the Assistant Executive Engineer/Assessing Officer has relied on the checking done by the Junior Engineer-5th respondent on 12.5.2013 on which inspection, the Junior Engineer found the following violation: “Meter was found to be connected with 24 hours supply pole”.Section 126(1) consists of two parts.
The fiRs.part depends in its enforcement on “Inspection”.The second part is based on the fiRs.part and authorizes the Assessing Officer to proceed, to the best of his judgment, on the assessment if he comes to the conclusion that a person has indulged in unauthorized use of electricity.
In the opinion of this Court, the Assessing Officer defined under Explanation (a) to mean an Officer of the State Government or Board or CWP No.12766 o”
4. Licensee, as the case may be, designated as such by the State Government, is not personally required to make spot checking.
If this were true, then Section 126(1) would have opened with the words- if the Assessing Officer on an inspection of any place or premises…… comes to the conclusion that a person has indulged in unauthorized use of electricity”.The word “on”.
used in the beginning of the Section is disjunctive of the jurisdiction vesting in the Assessing Officer.
Therefore, an inspection could well be done by a Junior Engineer and that would form relevant material for the Assessing Officer to act under Section 126(1) of the Act.
This is what Assessing Officer has done.
Therefore, I do not find any merit in the contention of Mr.Pankaj Jain that the provisional notice of assessment deserves to be quashed only for the reason that the Junior Engineer made the inspection.
This settles the legal issue raised.
Mr.Jain then relies upon one line in paragraph 36 of the decision of the Supreme Court in Executive Engineer Southern Electricity Supply Company of Orissa Ltd (SouthCo.and another versus Sr.Seetaram Rice Mill, (2012) 2 S C C 10.in which it is mentioned while dealing with Section 126 of the Act that it contemplates several steps to be taken.
The fiRs.of which is that an Assessing Officer is to conduct inspection of a place or premises and the equipments, gadgets, machines, devices found connected used in such place, and then, the stage would be reached for formation of a conclusion that such person has indulged in unauthorized use of electricity.
The close reading of the judgment does not indicate that the pointed issue raised by Mr.Jain in this case was debated or decided in the aforesaid case.
It is well settled that a judgment is a precedent on what it actually decides and not what may naturally flow from it.
The judgment is CWP No.12766 o”
5. of little help to the petitioner.
The question whether there has been unauthorized use of electricity does not call for determination by this Court at this stage.
The petitioner can file objections to the provisional order of assessment within the notice period and after the final order is passed, an appeal is maintainable before the competent authority.
The writ petition is premature and is dismissed as such.
The petitioner would remain at liberty to file reply to the impugned notice and to take his remedy of appeal under Section 127 of the Act on merits.
Nothing in this order would be taken as an expression on the merits of the case.
(RAJIV NARAIN RAINA) JUDGE 0 .7.2013 MFK