The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 17-Jul-2023 17:28:22 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 10127 OF 2011 Executive Engineer (Electrical) NESCO, Keonjhar …. Petitioner Mr. Suresh Chandra Dash, Advocate -versus- Appellate Authority-cum-Dy. Electrical Inspector (T & D), Jajpur Road and another …. Opp. Parties None CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 14.07.2023 9. 1. This matter is taken up through hybrid mode. 2. Order dated 11th June, 2010 (Annexure-8) passed by the Appellate Authority-cum-Deputy Electrical Inspector (T & D), Jajpur-Opposite Party No.1 under the Electricity Act, 2003 (for brevity ‘the Act’) in A.F.O. No.3 of 2009-10 is under challenge in this writ petition. 3. It is submitted by Mr. Dash, learned counsel that the Petitioner was an Electricity Distribution Company and Opposite Party No.2 was a consumer under it. An inspection was conducted on 18th March, 2009 in the premises of the Opposite Party No.2, which is a rice huller and on verification, the inspecting team found that the meter was tampered and Petitioner was availing power supply by tampering the energy meter by controlling through an external device, which was kept in a nearby grocery shop. Accordingly, provisional assessment was made under Section 126 of the Act. The Opposite Party No.2 submitted its objection before the assessing officer, vide annexure-3. In the said objection, Opposite Party No.2 had stated that his premises was never Page 1 of 4 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 17-Jul-2023 17:28:22 // 2 // inspected and there was no tampering in the meter, as alleged. It was also stated therein that the Consumer-Opposite Party No.2 was paying the electricity bill regularly as per the bill raised. On receiving such objection, the Opposite Party No.2 was supplied with the verification report vide letter No.2726 dated 21st May, 2009 (Annexure-4). Upon receipt of the copy of the verification report under Annexure-1, Opposite Party No.2 had never raised any objection to the same before the Superintending Engineer as per Regulation 52 of the OERC Distribution (Conditions of supply) Code, 2004 (for brevity ‘the Code, 2004’). The Assessing Officer upon consideration of the objection filed by the Opposite Party No.2, made a final assessment. Assailing the same, the Opposite Party No.2 filed appeal under Section 127 of the Act in A.F.O. No.3 of 2009-10. The appellate authority without taking into consideration the presumption under Regulation 56(7) of the Code, 2004 to the effect that the consumer is liable for any tampering in the meter and that the consumer had not raised any objection to the verification report as per Regulation 52 of the Code, 2004, passed a cryptic order vide Annexure-8. It is submitted that no cogent reason has been assigned to set aside the final assessment order passed by the assessing officer. 4. Mr. Dash, learned counsel for the Petitioner further submits that the appellate authority while adjudicating the appeal erroneously came to a conclusion that while preparing the verification report, if the consumer did not cooperate, the inspecting team could have taken assistance of outsiders as witnesses to the same. It is also erroneously held that if there is an allegation of tampering of meter, meter room could have been sealed and apparatus, through which the consumer was getting Page 2 of 4 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 17-Jul-2023 17:28:22 // 3 // external power supply, should have been removed following due procedure in presence of the outside witnesses. The grounds on which the final assessment order was set aside are not sustainable in the eye of law, as the Consumer-Opposite Party No.2 had himself not complied with the Regulation 52 of the Code, 2004. A presumption under law arises against the consumer in view of the provision under Regulation 56(7) of the Code, 2004. These material aspects were not taken into consideration by the appellate authority while adjudicating the matter. Hence, the impugned order under Annexure-8 is not sustainable. 5. None appears for the Opposite Party No.2, although he is represented through learned counsel. 6. Considering the submission of Mr. Dash, learned counsel for the Petitioner and on perusal of the record, it appears that inspection/verification report under Annexure-1 was not signed by the Consumer-Opposite Party No.2. There is nothing on record to show that the Consumer-Opposite Party No.2 had not cooperated with the inspecting team while conducting verification. Of course, there is an endorsement under Serial No.8 of Annexure-1 that “party present and refused to sign”. But, there is no independent witness to the said report. There is also an endorsement in the said report to the effect that a copy of the verification report is pasted on the consumer’s wall. It also appears that upon receipt of the provisional assessment order, the Opposite Party No.2 filed its objection stating that his premises was never inspected and he was paying the electricity bill regularly as per the bill raised. 7. Upon receipt of the said objection, a verification report was supplied to Opposite Party No.2 vide Annexure-4. Since by that time, the assessment proceeding was pending, the Consumer- Page 3 of 4 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 17-Jul-2023 17:28:22 ms // 4 // Opposite Party No.2 was not required to raise any objection under Regulation 52 of the Code, 2004 as alleged by Mr. Dash, learned counsel for the Petitioner. Admittedly, there is no independent witness to the inspection report. 8. Mr. Dash, learned counsel for the Petitioner, however, submits that it is not possible to get an independent witness in the premises of the Opposite Party No.2. When there is an allegation that the Opposite Party No.2 was obtaining electricity through external devices, which was kept nearby the grocery shop, the owner or any employee of that of the said grocery shop could have been made witness to the said verification report. On perusal of the order under Annexure-8, it appears that the appellate authority has discussed the rival contentions of the parties and arrived at the impugned conclusion. 9. Since the verification report under Annexure-1 was not signed by any independent witness and there is no endorsement to the effect that in spite of effort the inspecting team could not get any independent witness; the inspection report itself, which is the basis of raising the final assessment, is vulnerable. As such, this Court finds that the appellate authority has committed no error in rejecting the final assessment order. Thus, I find no infirmity in the same. 10. Accordingly, the writ petition being devoid of any merit stands dismissed. 11. Interim order dated 4th May, 2011 passed in Misc. Case No.6218 of 2011 stands vacated. Urgent certified copy of this order be granted on proper application. (K.R. Mohapatra) Judge Page 4 of 4