The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 21-May-2024 10:28:05 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.11000 OF 2024 Rusabha Kumar Mohapatra …. Petitioner Mr. Samir Kumar Mishra, Senior Advocate being assisted by Ms. Sushrita Sahoo, Advocate -versus- TPNODL, Balasore and others
Legal Reasoning
…. Opp. Parties Mr. Lalit Kumar Maharana, Advocate (For TPNODL) CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 20.05.2024 2. 1. This matter is taken up through hybrid mode. 2. The Petitioner in this writ petition seeks to assail the final assessment order dated 24th August, 2023 (Annexure-5) issued by the Assessing Officer, TPNODL. 3. Mr. Mishra, learned Senior Advocate appearing for the Petitioner submits that power connection to the premises was made in the name of father of the Petitioner, namely, Khagendra Nath Mahapatra. By the time physical verification was made, said consumer, namely, Khagendra Nath Mahapatra was dead. After physical verification, provisional assessment was made and without intimating the Petitioner, the said amount was added in the energy bill of the Petitioner. Although final assessment order was passed since 24th August, 2023, but it was never communicated to the Petitioner. Thus, the Petitioner could not know about the final assessment order. For non-payment of the amount as per the final assessment order, power connection has been disconnected to the premises of the Petitioner since 19th Page 1 of 4 // 2 // Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 21-May-2024 10:28:05 January, 2024. However, the Petitioner through his lawyer sent a notice to the Opposite Parties to waive out the illegal demand of Rs.48,904/- and restore the power supply to the residence of the Petitioner. In reply, the Petitioner was communicated with the final assessment order. On receipt of final assessment order, the Petitioner finding no other alternative has filed this writ petition. 4. It is his submission that the entire assessment proceeding was against a dead person. Hence, the same is vitiated. No opportunity of hearing to the Petitioner was ever given either to participate in the assessment proceeding or to have his say in the matter. In that view of the matter, final assessment order under Annexure-5 is liable to be set aside. 5. Mr. Maharana, learned counsel for the TPNODL submits that the Petitioner had knowledge of the assessment proceeding throughout. Power connection was provided in the name of Khagendra Nath Mahapatra vide Consumer No.323221060133. He was a domestic consumer under Electrical Section, Kamarda- I. His premise was verified by TPNODL Vigilance Team on 13th July, 2023 at 4 P.M. During verification, it was found that the consumer was availing power supply unauthorizedly by direct hooking from nearest LT line. The electricity used by the consumer was more than the contract demand of 3.5 KW. Thus, notice of provisional assessment was served on the consumer on 24th July, 2023 amounting to Rs.48,904/-. Since the consumer did not appear before the assessing officer, final order was passed on 24th August, 2023 under Annexure-5 treating the provisional assessment to be final. Since the final assessment Page 2 of 4 // 3 // Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 21-May-2024 10:28:05 amount was not deposited, power connection was disconnected to the premises of the Petitioner. The department had no occasion to know that the consumer had died in the meantime, as submitted by learned counsel for the Petitioner. It was never intimated to TPNODL that the consumer, namely, Khagendra Nath Mahapatra had died, either at the time of physical verification or during the assessment proceeding. Since notice of provisional assessment was served on the consumer’s address, which was treated to be sufficient, the assessment proceeding continued. Thus, there is no procedural error in the assessment proceeding. If the Petitioner is aggrieved by the final assessment order, he could have filed an appeal under Section 127 of the Electricity Act, 2003 (for brevity ‘the Act’). As such, the writ petition is not maintainable. 6. Taking into consideration the rival contentions of the parties, this Court is of the considered opinion that if the consumer, namely, Khagendra Nath Mahapatra was died on the date of physical verification, it should have been intimated to the TPNODL Vigilance Team, who conducted the physical verification on 13th July, 2023. Notice of provisional assessment was also served in the address of the consumer. But, no one turned up to intimate the Assessing Officer about the death, if any, of the consumer. 7. Thus, this Court is constrained to hold that it was not possible on the part of the TPNODL Verification Team to identify who is the consumer. It is the duty of the person, in whose presence physical verification was conducted to intimate Page 3 of 4 // 4 // Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 21-May-2024 10:28:05 the death, if any, of the consumer on the date of the physical verification. That having not been done and no intimation being given by the Petitioner at any point of time during the assessment proceeding about the death of the consumer, this Court does not find any infirmity in continuing with the assessment proceeding. Thus, this Court does not find any procedural irregularity in passing the final assessment order under Annexure-5. If the Petitioner is still aggrieved by the impugned order under Annexure-5, he is at liberty to file an appeal under Section 127 of the Act. 8. Accordingly, this Court disposes of the writ petition with an observation that in the event the appeal is filed following due procedure as provided under law within a period of two weeks hence, the same shall be considered accordingly without insisting upon the delay in filing the appeal. Urgent certified copy of this order be granted on proper application. ms (K.R. Mohapatra) Judge Page 4 of 4