The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) NO. 36229 OF 2023 M/s. Santuka Foods Pvt. Ltd., Jajpur …. Petitioner Mr. Bikash Jena, Advocate -versus- TPCODL, Bhubaneswar and another …. Opp. Parties Mr. Lalit Kumar Maharana, Advocate (For TPCODL) CORAM: JUSTICE K.R. MOHAPATRA Order No. ORDER 12.07.2024 6. 1. This matter is taken up through hybrid mode. 2. The Petitioner in this writ petition seeks to assail the Letter No.CED/Legal 3254 dated 11th October, 2023 (Annexure- 17) issued by the Manager, CED, TPCODL, Jobra, Cuttack- Assessing Officer communicating the final assessment made under Section 126 of the Electricity Act, 2003 (for brevity ‘the Act’) against the Petitioner-Company.
Legal Reasoning
3. Mr. Jena, learned counsel for the Petitioner submits that pursuant to the notification dated 11th January, 2013 issued by the Energy Department, Government of Odisha, the erstwhile distribution company, namely, CESU, appointed one River Side Utility Pvt. Limited as the Assessing Officer, who made provisional assessment under Section 126 of the Act in respect of the Petitioner-Company. Basing upon the said assessment, final assessment order was also passed. Assailing the same, the
Decision
Petitioner preferred W.P.(C) No.18465 of 2016, which was disposed of vide order dated 17th May, 2023 with the following observation: Page 1 of 6 “4. For there is no dispute in the decision on the issue involved herein through the above decisions, the case at hand is also decided in terms of the decision in M/s. Global Feeds Feedback Energy Distribution Company Pvt. Ltd. (supra) and being confirmed by Writ Appeal Nos.28/2019 and 509/2018, the same shall be governed ultimately by the decision recorded herein. Contesting O.P. is directed to work out the claim of the Petitioner in terms of the direction at Paragraph-96 of the decision in M/s. Global Feeds Feedback Energy Distribution Company Pvt. Ltd. (supra) by working it out within three months of receipt of the copy of this order along with copy of the decisions indicated herein above.” 4. In M/s. Global Feeds Feedback Energy Distribution Company Pvt. Ltd. (FEDCO) and another –v- Commissioner- cum-Secretary, Government of Odisha, Energy Department and others, reported in 2018 SCC Online Ori.405, this Court quashed the notification dated 11th January, 2013 issued by the Energy Department and also held the provisional as well as final assessment made by the franchisee-Assessing Officer to be illegal. Since W.P.(C) No. 18465 of 2016 filed by the Petitioner was disposed of in terms of the direction in M/s. Global Feeds Feedback Energy Distribution Company Pvt. Ltd. (supra), the provisional as well as final assessment made by the franchisee- Assessing Officer becomes illegal. But, the licensee (TPCODL), basing upon the provisional assessment made by the franchisee- Assessing Officer passed the final assessment order under Annexure-17. Hence, the same is without jurisdiction, vitiated and is liable to be set aside. Deposits made by the Petitioner pursuant to the final assessment order passed by the franchisee- Assessing Officer should be refunded forthwith. Page 2 of 6 5. Mr. Maharana, learned counsel for TPCODL vehemently objects to the same and raises a preliminary objection with regard to maintainability of the writ petition submitting that admittedly the impugned order under Annexure-17 has been passed by the Manager, CED, TPCODL, Jobra, Cuttack-Assessing Officer, who is competent to pass a final order of assessment. Thus, the impugned order under Annexure-17 cannot be held be without jurisdiction. As such, the Petitioner has an efficacious statutory remedy under Section 127 of the Act to prefer an appeal against the final assessment order. Deposits already made by the Petitioner will be adjusted towards statutory deposit for filing the appeal. Thus, the Petitioner need not make any statutory deposit for filing the appeal. He further submits that in M/s. Global Feeds Feedback Energy Distribution Company Pvt. Ltd. (supra), this Court while setting aside the notification dated 11th January, 2013 holding it to be without jurisdiction, categorically held at Paragraph-97 as under: “97. This Court is also conscious of the fact that in between the year 2013 to till date of passing of this order, several inspections might have been done and orders might have been passed U/s. 127 of the Act, 2003, hence making it clear that this order will not affect the adjudication already made by the authority in exercise of powers conferred under Section 126 or 127 of the Act, 2003, keeping the legal position into its the consideration prospective over-ruling.” judgment will have that 6. Thus, W.P.(C) No.18465 of 2016 filed by the Petitioner was disposed of directing the Opposite Party (TPCODL) to work out the claim of the Petitioner in terms of the direction at Page 3 of 6 Paragraph-96 of the decision in M/s. Global Feeds Feedback Energy Distribution Company Pvt. Ltd. (supra). This Court consciously did not set aside the provisional as well as final assessment order already passed. Further, Paragraph-96 of M/s. Global Feeds Feedback Energy Distribution Company Pvt. Ltd. (supra) reads as under: “96. In view thereof, in the present writ petition the assessing officer is hereby directed to take final decision in accordance with law after hearing Franchisee as also the Petitioner within reasonable period, preferably within period of eight weeks from the date of receipt of copy of this order.” 7. Thus, in terms of the observation of this Court at paragraph-96, a final decision was taken by the Assessing Officer duly appointed vide notification dated 21st May, 2004 by the Energy Department, Government of Odisha. As such, the impugned order cannot be held to be either vitiated or without jurisdiction, as alleged. He, therefore, prays for dismissal of the writ petition. 8. Taking note of the submissions made by learned counsel for the parties, this Court finds that assailing the provisional as well as final assessment order passed by the Franchisee- Assessing Officer, namely, River Side Utility Private Ltd., the Petitioner had filed W.P.(C) No.18465 of 2016, which was disposed of vide order dated 17th May, 2023 with the direction as quoted above. In the said order, the Hon’ble Division Bench of this Court consciously did not quash either the provisional or final assessment order passed under Section 126 of the Act. However, considering that the Franchisee-Assessing Officer did not have any jurisdiction to make an assessment, this Court Page 4 of 6 directed the Opposite Party (TPCODL) to work out the claim of the Petitioner in terms of the direction at paragraph-96 of the decision in M/s. Global Feeds Feedback Energy Distribution Company Pvt. Ltd. (supra). As reproduced above, paragraph-96 of the judgment passed in M/s. Global Feeds Feedback Energy Distribution Company Pvt. Ltd. (supra) clearly stipulates that the Assessing Officer has to take a final decision in accordance with law after hearing the Franchisee so also the Petitioner within a reasonable period. Thus, giving an opportunity of hearing to the Petitioner, final order of assessment under Annexure-17 has been passed. At paragraph-97 of M/s. Global Feeds Feedback Energy Distribution Company Pvt. Ltd. (supra), this Court being conscious of the fact that from the year 2013 till date of passing of that order, several inspections might have been done and orders might have been passed under Section 126 or Section 127 of the Act, it is made clear therein that this order will not affect the adjudication already made by the authority in exercise of powers conferred under Section 126 or 127 of the Act, keeping the legal position in mind that the judgment will have its prospective over-ruling. Thus, on a conspectus of the observation in M/s. Global Feeds Feedback Energy Distribution Company Pvt. Ltd. (supra) and the direction in W.P. (C) No. 18465 of 2016, this Court finds that only scope left with the Assessing Officer of TPCODL was to make a final assessment on the basis of the provisional assessment already made. 9. In that view of the matter, the impugned order passed by the Assessing Officer under Annexure-17 cannot be held to be without jurisdiction or vitiated. However, the Petitioner has a Page 5 of 6 remedy under Section 127 of the Act to prefer an appeal. As in the meantime statutory period has elapsed, this Court disposes of this writ petition with a direction that in the event an appeal is filed within a period of three weeks hence, the same shall be considered on its own merit without insisting upon the condonation of delay in filing the appeal. As submitted by Mr. Maharana, learned counsel for TPCODL, the Petitioner need not make any statutory deposit to prefer the appeal. 10 With the aforesaid observation and direction, this writ petition is disposed of. Urgent certified copy of this order be granted on proper application. bks (K.R. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: BIJAY KUMAR SAHOO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 19-Jul-2024 19:23:24 Page 6 of 6