Judgment:
R.K. Merathia, J.
1. Heard the parties at length finally.
2. This writ petition has been filed for quashing the letter No. 533/HESA dated 15.2.2008 (Annexure 11) based on the decision of the Respondents-Board dated 14.2.2008 (Annexure-A), informing the petitioner that the assessment order passed by the then Electrical Superintending Engineer vide his order No. 78 dated 27.10.2005, has been withdrawn by the Apex Board on the ground that in view of the notification dated 26.8.2004, designating the Executive Engineer as the assessing officer, he had no jurisdiction to pass that order; and the matter will be heard afresh by the General Manager-cum-Chief Engineer, Hazaribagh. Petitioner has further prayed for direction to raise bill on the basis of the said order No. 78 dated 27.10.2005 passed by the Electrical Superintending Engineer.
3. Mr. M.S. Mittal, learned Counsel, appearing for the petitioner, submitted as follows. A team of officers used to come every month for taking meter reading. The last meter reading was taken on 31.5.2005. After three days only i.e. on 3.6.2005 a team of officers held a purported inspection. It was not said in the inspection report that there was any pilferage of electricity by the petitioner. As there was harassment and illegal demand, a Sanha ( No. 101/05) dt. 04.06.2005 was lodged in the Police Station by one of the employee of petitioner against officers of the Board. Then on 4th June, 2005, an F.I.R. was lodged at about 6 p.m. in the evening alleging pilferage and loss to the Board to the tune of Rs. 1.93 Crore. The petitioner filed a writ petition for quashing the said inspection report being W.P.(C) No. 3041 of 2005.
During the pendency of the said writ petition a show cause notice was served on the petitioner from the office of the Superintending Engineer and accordingly, the writ petition was dismissed as premature on 22.6.2005, as no bill was raised on the basis of the said inspection report. Pursuant to the said notice, petitioner filed its show cause on 23.6.2005. The Executive Engineer was also noticed and he along with other officers, took part in hearing on behalf of the Board, before the Superintending Engineer who is higher in rank than the Executive Engineer. No objection was raised by any officer of the Board that the Superintending Engineer was not the assessing officer. The matter was heard on various dates. After hearing the petitioner and the Executive Engineer and considering the documents produced by the parties, the Superintending Engineer assessed the amount of alleged pilferage by his order dated 27.10.2005. Now this order has been withdrawn and petitioner has been asked to appear before the General Manager-cum-Chief Engineer for a fresh hearing, which is arbitrary, illegal and mala fide. The Superintending Engineer acted as an adjudicator and the Board was a party before him and therefore, the Board cannot withdraw the order of the Superintending Engineer of it's own. If the Board was aggrieved by the said assessment made by the Superintending Engineer, it could file appeal before the Chief Electrical Inspector within 30 days of the said order but the Board has taken the impugned action after more than 2 years. On the basis of a subsequent notification, dated 13.7.2006, the Board can not reopen the matter. Neither the amount mentioned in the F.I.R, can be said to be the amount assessed by the assessing officer, nor the F.I.R. can be said to be an order of provisional/final assessment required to be passed and served in terms of Section 126 of the Electricity Act 2003 (the Act for short) but the Board has become obsessed about the very big amount mentioned in the F.I.R. The assessment may be same, may be more, and may be less. Only because the amount assessed by the Superintending Engineer, is much less than the amount mentioned in the F.I.R., the Board is bent upon reopening the assessment, on the purported ground of lack of jurisdiction, though in other cases, the Board has accepted the assessment done by the Superintending Engineer. Moreover, in the cases, where the consumers have challenged the orders passed by the Superintending Engineer, the consistent stand of the Board is that such orders were appealable order as per Section 127 of the Act. Though there was no pilferage, but in order to avoid further litigation and harassment, instead of preferring appeal, petitioner requested for issuance of bill on the basis of said assessment so that the same can be paid and the chapter may be closed.
4. On the other hand, Mr. V.P. Singh, learned senior counsel, appearing for the Board, submitted as follows. By a notification dated 26.8.2004 the Executive Engineer was designated as the assessing officer in terms of Section 126 of the Act, and therefore the assessment order passed on 27.10.2005, by the Superintending Engineer was without jurisdiction; and null and void. Subsequently another notification was issued on 13.7.2006, under which, for different categories of consumers, different authorities were designated as 'assessing officers', under Section 126 of the Act, but the General Manager-cum-Chief Engineer and Chief Engineer (Commerce & Revenue) were designated as assessing officer for all the categories of consumers. Therefore, the order of Superintending Engineer has rightly been withdrawn and the petitioner has been asked to appear for fresh hearing before the General Manager. Moreover if the impugned letters are quashed, the void and illegal order of the Superintending Engineer will revive, which should not be allowed by this Court. He relied on the following judgments on this aspect : [1966]2SCR172 Gadde Venkateswara Rao v. Government of Andhra Pradesh and Ors. Jagan Singh v. State Transport Appellate Tribunal, Rajasthan and Anr. and 1988 PLJR 923 Promod Kumar and Ors. v. State of Bihar and Ors.
5. Thus the main question involved in this writ petition is whether the order of assessment dated 27.10.2005, passed by the Superintending Engineer could be withdrawn by the Board, being a party to the assessment proceedings, on the ground that it was without jurisdiction?
6. From the files provided by the Board, the following facts appear. The petitioner's premises was inspected on 3.6.2005. An F.I.R. was lodged on 4.6.2005, alleging pilferage. On the basis of the direction of the Chief Engineer (A.P.D.R.P.) in the letter No. 321 dated 7.6.2005, the Superintending Engineer, issued notice to the petitioner, for assessment of the amount of alleged pilferage. Petitioner filed show cause. The Executive Engineer appeared on behalf of the Board. The General Manager-cum-Chief Engineer, Ranchi, also by his letter No. 1431 dated 30.6.2005 directed the Superintending Engineer to expedite the assessment proceedings. The Parties were heard. No objection was raised by the Board that the Superintending Engineer had no jurisdiction to assess the amount. The superintending Engineer by his order dated 27.10.2005 assessed the amount. The officers of the Board laboured under the belief that the Superintending Engineer was competent to pass order under Section 126 of the Act. But as the amount assessed in the case of petitioner and some other consumers was much less than the amount alleged in the F.I.R., an enquiry was made. In the enquiry report dated 13.4.2006 it was inter alia observed that though the Superintending Engineer was not designated as assessing officer but any other officer was also not designated as such, and in that situation, the Chief Engineer (A.P.D.R.P.), under his said letter dated 7.6.2005, directed the Superintending Engineer who was the billing authority also, to give opportunity of hearing to the consumers before serving a bill under Clause 16.9 of the tariff 1993, and pass a reasoned order and serve bill and accordingly the Superintending Engineer assessed the amounts. It was also observed that the officer who lodged F.I.Rs. should be asked to explain as to what was the basis for calculation of the amounts mentioned in the F.I.Rs., so that the position of the Board may not become weak before the courts; and that the amounts assessed by the Superintending Engineer was much less than the amounts indicated in the F.I.Rs. due to which the F.I.Rs. may become weak; and that the Superintending Engineer did not keep in view the amounts mentioned in the F.I.Rs; and that the assessment done by him was not as per Section 126(5) of the Act. Then it appears that the aforesaid notification dated 13.7.2006 was issued, designating different authorities as assessing officers for different categories of consumers. Then by the letter dated 15.2.2008, petitioner was informed that the said order of Superintending Engineer dated 27.10.2005 was withdrawn on the ground that in view of the notification dated 26.8.2004 designating the Executive Engineer as the assessing authority, he had no jurisdiction to pass that order, and petitioner was directed to appear before the General Manger-cum-Chief Engineer, Hazaribagh for fresh hearing. This action has been challenged in this writ petition.
7. From the joint reading of Sections 126 & 127 of the Act, it appears that the Board is one of the party to the assessment proceedings, which may travel upto appellate authority, where the 'parties' are to be heard. As per Section 126 of the Act, the assessing officer is required to pass the 'order' of provisional assessment and serve it on the person concerned, for filing objection if any. Naturally, therefore, the order of provisional assessment is to be a reasoned order, so that objection can be filed properly and effectively. Then, after affording reasonable opportunity of hearing, the assessing officer is required to pass 'order' of final assessment. Such order is also to be supported with reasons, as appeal lies against such order. The appellate authority is required to dispose of the appeal 'after hearing the parties'. Thus, the assessing officer and the appellate authority act as quasi-judicial authorities. The Board is one of the party before them, and therefore it could not withdraw the order passed by the Superintending Engineer even if according to the Board, the order was without jurisdiction. No provision could be shown, under which, the Board could do that. If the Board so wished, it could move the competent authority/court seeking declaration that such order was without jurisdiction.
The following portion of the judgment reported in : (1992)ILLJ283SC , State of Punjab v. Gurudev Singh is relevant:
7...For the purpose of these cases, we may assume that the order of dismissal was void, inoperative and ultra vires, and not voidable. If an act is void or ultra vires it is enough for the court to declare it so and it collapses automatically. It need not be set aside. The aggrieved party can simply seek a declaration that it is void and not binding upon him. A declaration merely declares the existing state of affairs and does not 'quash' so as to produce a new state of affairs.
8. But nonetheless the impugned dismissal order has at least a de facto operation unless and until it is declared to be void or nullity by a competent body or court. In Smith v. East Elloe Rural District Council Lord Radcliffe observed: (All ER p. 871)
An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity on its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.9. Apropos to this principle, Prof. Wade states: 'the principle must be equally true even where the 'brand' of invalidity' is plainly visible; for there also the order can effectively be resisted in law only by obtaining the decision of the court. Prof. Wade sums up these principles:
The truth of the matter is that the court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the court may refuse to quash it because of the plaintiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case the 'void' order remains effective and is, in reality, valid. It follows that an order may be void for one purpose and valid for another; and that it may be void against one person but valid against another.10. It will be clear from these principles, the party aggrieved by the invalidity of the order has to approach the court for relief of declaration that the order against him is inoperative and not binding upon him. He must approach the court within the prescribed period of limitation. If the statutory time limit expires the court cannot give the declaration sought for.
8. In the facts, circumstances and the legal position, noticed above, in my opinion, the answer to the question would be in the negative, i.e., the Board, being a party to the assessment proceedings, could not withdraw the order dated 27.10.2005, passed by the Superintending Engineer, of it's own, even if it was without jurisdiction according to the Board. Accordingly the impugned letter, dated 15.2.2008 is quashed. Till the said order dated 27.10.2005, is declared to be illegal and without jurisdiction by a competent authority/court, it cannot be said that quashing of the said letter dated 15.2.2008, will amount to revival of an illegal order, as contended by Mr. Singh.
However the Board will be at liberty to move the competent authority/court in accordance with law and in that event, this order will not stand in it's way but if such action is to be taken, it should be taken within four weeks, as the matter is hanging for a longtime.
9. It is also made clear that the observations, made in this order is only for the purpose of deciding the question posed in paragraph 5, and therefore this order will neither prejudice the parties in any proceedings, nor will affect their rights and obligations under the law.
10. With these observations and findings, this writ petition is allowed. Let the files be returned to learned Counsel of the Board.