M/s. Laxmi Business & Cement Company Ltd., a company v. Jharkhand Urja Vikas Nigam Limited (formerly known as

: Mr. N.K. Pasari, Advocate Ms. Sidhi Jalan, Advocate Mr. Naveen Toppo, Advocate For the Respondent-JUVNL : Mr. M.K. Roy, Sr. S.C Mr. Shubham Choudhary, Advocate -------- O R D E R 4th May 2022 Per, Shree Chandrashekhar, J. M/s. Laxmi Business & Cement Company Limited which was the writ petitioner is the appellant before us.

2. W.P.(C) No. 2224 of 2010 which was filed by the appellant was dismissed by an order dated 19th February 2015 and a direction was issued to it to pay the entire amount of provisional 2 L.P.A No. 177 of 2015 assessment which was made on the basis of the theft case lodged against the Company.

3. In the order dated 19th February 2015 passed in W.P.(C) No. 2224 of 2010, the writ Court has held as under: “12. From perusal of First Information Report, it is clear that at the time of inspection, police officers present along with the inspection team. Thus, in my view, the contention of learned counsel for the petitioner that the officers of the Board broke the door of the metering unit and installed PVC wires with a view to falsely implicate the petitioner in a theft case is not acceptable. Moreover, aforesaid allegation made by the petitioner against the inspecting team is a question of fact, which can be looked into by the trial court while appreciating the evidence led by the petitioner in his defence. In my view, at this stage, in the writ jurisdiction, it is not open for this court to quash the inspection report on the basis of aforesaid disputed question of fact. 13. The next contention of the learned counsel for the petitioner that before making provisional assessment order, it is necessary for the Board to take recourse of Clause 13.4.3 of the Regulation, 2005 and send the meter for testing in a National Laboratory is misconceived. From the plain reading of the provisions contained in Clause 13.4 of the Regulation, 2005, it is clear that the same relates to the testing of the meter, if the meter is defective. The instant case relates to theft of electricity, thus, in this case, provisions of section 135 of the Act will apply. As per section 135 (1A) of the Act, in case of theft, it is open for the Assessing Officer to disconnect the electric connection in the premises and make assessment of the loss and serve a bill upon the consumer (petitioner). Clause 15.8 of the Regulation, 2005, prescribes the method and formula (LxHxFxD) for assessment in case of theft of electricity. 14. From perusal of assessment order as contained in Annexure-11, it appears that the Assessing Officer made assessment applying the aforesaid formula. Thus, prima facie, I find no illegality in the same. The Division Bench of this Court in M/s Shyam Lal Iron & Steel Company (Supra) had approved the aforesaid method of assessment in case of theft. Thus, the contention of learned counsel for the petitioner that the assessment has not been made in accordance with law is not acceptable. However, the aforesaid assessment can be challenged by the petitioner before the Special Court as per provisions contained in Section 154(5)(6) of the Act. At this stage, I do not find any reason to interfere with the aforesaid assessment. 15. In view of the discussions made above, I find no merit in this writ application. Accordingly, the same is dismissed. 16. As noticed above, petitioner has already deposited Rs. 25,00,000/- (rupees twenty-five lacs) vide order dated 18.05.2010, he is directed to deposit rest of the assessed amount within one month from today. If said amount is not deposited by the petitioner, within the aforesaid period, it is open for the electricity Board to disconnect the electric connection of the petitioner's premises and take all other coercive steps for realization of the assessed amount.” 3 L.P.A No. 177 of 2015

4. Before the writ Court the Company had an interim order passed in I.A No. 2023 of 2010 by which the respondents were directed to resume electricity supply at the premises of the Company subject to deposit of Rs.25 Lakhs. It appears that during pendency of the writ petition final form was submitted in the criminal case which was instituted against the Company on an allegation of theft of electricity and as would appear from order dated 19th February 2015 passed in W.P.(C) No. 2224 of 2010 the said final form was accepted by the Court.

5. In the present Letters Patent Appeal, the appellant has raised several issues in law but those need not be adverted to by us on account of afflux of time. We are not inclined to refer to various provisions under the Electricity Act, 2003 also for the reason that the prayers made before the writ Court were primarily directed against the inspection report and a direction for sending the meter installed at the appellant's premises for testing. These issues involve serious disputed questions of fact which, in our opinion, cannot be decided merely on the basis of the affidavits filed by the parties. Moreover, final assessment of the civil liability shall take place on conclusion of the criminal case as held by the Hon'ble Supreme Court in “West Bengal State Electricity Distribution Company Limited & Ors. v. Orion Metal Private Limited & Anr.” (2020) 18 SCC 588.

6. Mr. N.K. Pasari, the learned counsel for the appellant has tendered a copy of the order dated 20th February 2017 passed in W.P.(Cr.) No. 61 of 2015 to inform the Court that further proceeding in G.R No. 1394 of 2010 on the basis of which T.R No. 493 of 2014 commenced has been stayed by this Court.

7. Mr. N.K. Pasari, the learned counsel for the appellant takes us through the orders passed in G.R No. 1394 of 2010 which according to him would disclose strange proceedings before the criminal Court. It appears that on 21st October 2011 the final form submitted on the ground of mistake of fact was accepted by the criminal Court. In the said order, the Court has specifically indicated that no protest petition was filed against submission of 4 L.P.A No. 177 of 2015 final form. Still on an application moved by the investigating officer seeking permission to carry on further investigation permission was granted and a supplementary charge-sheet was filed on the basis of which by an order dated 10th November 2014 cognizance of the offence was taken and summons were issued to Anil Agarwal, Director of the Company. The order taking cognizance dated 10th November 2014 was impugned by the Director of the Company in W.P.(Cr.) No. 61 of 2015 and, as noticed above, by an order dated 20th February 2017 further proceeding in G.R. No. 1394 of 2010 has been stayed by this Court. We further find that by an order dated 5th May 2015 the Company was granted further interim relief to the extent recovery of Rs.15,06,254/- was stayed by a co-ordinate Bench.

8. In our opinion, any executive or quasi judicial order which ensues civil consequences to the other party must be made following the rules of natural justice which in the present case may be in the shape of a post-decisional hearing. There is no provision for affording opportunity to the assessee before provisional bill on the allegation of theft of electricity is raised under 3rd proviso to section 135(1-A) of the Electricity Act, 2003. However, in view of the aforesaid developments, we are inclined to grant one opportunity to the appellant to file its objection to the provisional assessment order under 3rd proviso to section 135 (1-A) of the Electricity Act, 2003. We are inclined to do so for the reason that the writ petition on this aspect was dismissed primarily for the reason that no specific challenge was made by the Company to the provisional assessment order by which it was required to pay Rs. 55, 06, 254/-. This of course would be a limited opportunity mainly regarding calculation error and/or method of calculation not provided under the Electricity Supply Code Regulation, 2005.

9. Accordingly, we grant liberty to M/s. Laxmi Business & Cement Company Limited to submit its objection to the provisional assessment bill dated 5th May 2010 within eight weeks which shall be dealt with by the Electrical Superintending Engineer by a separate order, which shall remain open to challenge by the 5 L.P.A No. 177 of 2015 appellant, if so advised.

10. With the aforesaid liberty to the appellant, L.P.A No. 177 of 2015 stands disposed of. (Shree Chandrashekhar, J.) (Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi Dated: 4th May 2022 R.K/Amit N.A.F.R