Special Civil Application No. 14183 of 2013. Case: Satish Babubhai Patel Vs Union of India and 3 Ors.. High Court of Gujarat (India)
| Case Number | Special Civil Application No. 14183 of 2013 |
| Counsel | For Appellant: Mr. Masoom K. Shah, Advocate and For Respondents: Ms. Vacha Desai, Asstt. Government Pleader |
| Judges | Bhaskar Bhattacharya, C.J. and J. B. Pardiwala, J. |
| Issue | Code of Civil Procedure, 1908 (CPC) - Section 9; Constitution of India - Articles 14, 143, 19, 21, 226; Customs Act, 1962 - Sections 129, 129E; Electricity Act, 2003 - Sections 126, 126(5), 126(6), 127, 135, 143, 145, 153, 154, 155, 156, 176, 176(1), 176(1)(2)(u), 18(7), 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94... |
| Judgement Date | November 30, 2013 |
| Court | High Court of Gujarat (India) |
Judgment:
J. B. Pardiwala, J.
1. By this writ application under Article- 226 of the Constitution of India, the petitioner, a consumer of electricity supplied by the respondent No. 4 company, has prayed for the following reliefs:
(a) Be pleased to quash and set aside Section 126 and Section 127 of The Electricity Act, 2003 (Act No. 26 of 2003) as ultra vires the Constitution of India.
(b) Be pleased to quash and set aside the Section 145 of The Electricity Act, 2003 (Act No. 36 of 2003) as ultra vires the Constitution of India.
(c) Be pleased to quash and set aside the GSR 265(E) dated 16th April 2004. The Appeal to the Appellate Authority Rules, 2004 as ultra vires the Constitution of India and the Parent Act i.e. The Electricity Act, 2003 (Act No. 36 of 2003).
(d) Be pleased to quash and set aside Notification styled as "GU-2007-133-ELA-1103-9539-k" dated September 1, 2007 issued by Energy and Petrochemicals Department, Sachivalaya, Gandhinagar as ultra vires the Constitution of India, 1950 and Parent Act i.e. The Electricity Act, 2003 (Act No. 36 of 2003).
(e) Be pleased quash and set aside Notification styled GSR 481(E): dated 17th August 2006 the Qualifications Powers and Functions of Chief Electrical Inspectors and Electrical Inspectors Rules, 2006 the Constitution of India and the Parent Act i.e. The Electricity Act, 2003 (Act No. 36 of 2003).
(f) Be pleased to quash and set aside final Assessment Order dated 22nd February 2010 issued under S. 126 of The Electricity Act, 2003 (Act No. 36 of 2003).
(g) Pending Admission, Hearing and Final disposal of this Petition. Be pleased to grant electrical connection to the petitioner.
(h) Pending Admission, Hearing and Final disposal of this Petition. Be pleased to stay the recovery proceedings against the petitioner pursuant to the final Assessment Order dated 22.02.2010.
(i) Costs of this Petition be awarded.
(j) Such further and other relief order or direction which may be just, fit, proper and equitable in the facts and circumstances of the Petition.
Facts of the Case:
1.1 The petitioner is a consumer of electricity supplied by the respondent No. 4 company, namely, Dakshin Gujarat Vij Company Ltd., Bambhroli Sub Division, Surat. The Electricity Company has provided a single phase meter to the petitioner bearing No. 2188376 with a Customer No. 18204/11957/7. The respondent No. 4 company has also provided a three phase meter No. 4946873 bearing Customer No. 17294.11957/7 with a sanctioned load of 27 HP.
1.2 It appears that on 22/12/2009, an inspection was carried-out by the Vigilance officers of the Electricity Company at the premises of the petitioner and during the inspection it was found that the consumption of the electricity by the petitioner was more than the sanctioned load of 29 HP. Such excess consumption of electricity by the petitioner was found to be unauthorized by the Vigilance officers.
1.3 It also appears from the materials on record that pursuant to the inspection which was carried-out at the premises of the petitioner, a provisional assessment bill was raised by the electricity company for the unauthorized use of the excess load.
1.4 It is the case of the petitioner that in the provisional assessment bill there were blanks and the same was a cyclostyled final assessment order without any reference of any of the objections which were raised by the petitioner at the relevant point of time.
1.5 The petitioner, being dissatisfied with such a provisional assessment bill issued by the Electricity Company, instead of challenging the same before the Appellate Authority U/s. 127 of the Electricity Act, 2003, thought fit to challenge the same before the District Consumer Forum, Surat by filing a Complaint Case No. 97/2000.
1.6 It appears that the District Consumer Forum, Surat refused to entertain such complaint of illegal issuance of a provisional assessment Bill relying on a recent decision of the Apex Court in the case of U.P. Power Corporation Ltd., and Others Vs. Anish Ahmed reported in 2013 (9) SCALE 334 wherein the Supreme Court held that the Consumer Forum has no jurisdiction to entertain a complaint filed by a consumer or any person against assessment made U/s. 126 of the Electricity Act. In such circumstances, the District Consumer Forum, Surat rejected the complaint filed by the petitioner.
1.7 It appears that thereafter the petitioner thought fit to file the present writ application raising manifold grounds as regards the provisions of the Electricity Act, 2003 and the Rules framed thereunder.
1.8 The petitioner has raised the following questions of law in this petition:
3.1 Whether Sections 126 and 127 of The Electricity Act, 2003 are unconstitutional?
3.2 Whether the GSR 265(E) dated 16th April, 2004. The Appeal to the Appellate Authority Rules, 2004 is ultra vires the Constitution of India and the Parent Act i.e. The Electricity Act, 2003 (Act No. 36 of 2003)
3.3 Whether the Notification styled as "GU-2007-133-ELA-1103-9539-k" dated September 1, 2007, issued by the Energy and Petrochemicals Department, Sachivalaya, Gandhinagar is ultra vires the Constitution of India and the Parent Act i.e. The Electricity Act, 2003 (Act No. 36 of 2003)
3.4 Whether the Notification styled as GSR 481(E): dated 17th August 2006, prescribing the Qualifications, Powers and Functions of the Chief Electrical Inspectors and Electrical Inspectors Rules, 2006 is ultra vires the Constitution of India and the Parent Act i.e. The Electricity Act, 2003 (Act No. 36 of 2003).
3.5 Whether fill in the blank, cyclostyle orders can be passed under Sec. 126?
3.6 Whether the Provisional Assessment Order and final Assessment Order is legal, when the Assessing officer himself carried out the inspection?
3.7 Whether the Appellate Authority constituted under the Act, 2003 is violative of the Constitutional Principles as he has no knowledge of law?
3.8 Whether the Appellate authority i.e. the Chief Electrical Inspector and other Electrical Inspectors are biased as they are appointed by the State Government and also the Appellate Authority under the Scheme of the Act?
3.9 Whether a reasoned order is required to be passed in the final Assessment Order?
3.10 Whether the period of 12 months for extending the unauthorized used by a guess work when the perfect estimate is not possible as provided in Sec. 126 is arbitrary and unreasonable?
3.11 Whether the disconnection of the petitioner's electricity supply without any notice in writing is permissible in law?
3.12 Whether the Assessing officers can appoint officers of the licensee?
2. Submissions on behalf of the petitioner:
2.1 Mr. Masoom K. Shah, the learned advocate appearing for the petitioner, vehemently submitted that Sec. 126 and 127 of the Electricity Act, 2003 deserves to be struck-down as unconstitutional because the scheme of Sec. 126 and 127 is unworkable since there is no judicial scrutiny envisaged. Mr. Shah submitted that not only there is no judicial scrutiny envisaged so far as the scheme of Sec. 126 and 127 of the Act, 2003 is concerned, but the jurisdiction of the Civil Court has also been barred by virtue of the provisions of Sec. 145 of the Act, 2003.
2.2 Mr. Shah submitted that there is only one layer of adjudication so far as the Assessment Order is concerned and the same is treated to be final. According to him such being the position, the pre-requisite of depositing 50% of the bill amount of the provisional assessment before the Appellate Authority is arbitrary and unreasonable. Mr. Shah submitted that the same is ultra vires Articles- 14, 19 and 21 of the Constitution of India.
2.3 Mr. Shah also submitted that the Assessing officers are appointed by the State Government and on their final assessment, the Consumer is made to deposit 50% of the disputed amount before the consumer is heard by the Appellate Authority. According to Mr. Shah such a scheme could be termed as arbitrary and unreasonable. He would submit that the Assessing officers who work for the company itself would definitely act in a bias manner so as to benefit the electricity company.
2.4 Mr. Shah has challenged the validity of Sec. 126 of the Act, 2003 on the ground that the concept of period of 12 months immediately preceding the date of inspection for the purpose of assessment once the Assessing officer reaches to the conclusion that unauthorized use of electricity has taken place is more a guesswork rather than a legal and reasonable approach.
2.5 Mr. Shah submitted that the provisions of Sec. 126(5) of the Act, 2003 defies all logic because every month the inspector would come and record the reading of the meter on the basis of which the bill is being prepared and if that is so and nothing is found to be wrong, then suddenly one fine morning the consumer cannot be asked to pay an amount upto the extent of 12 months. This, according to Mr. Shah, could be termed as arbitrary and against the Wednesbury principle of reasonableness.
2.6 Mr. Shah submitted that the Central Government, in exercise of the powers conferred by Clause-4(2) of Sec. 176 of the Electricity Act, 2003, issued a Notification dated 16/4/2004 by which the State Government has been authorized for the purpose of appeal U/s. 127 of the Act to constitute an Appellate Authority consisting of one or more persons, such that one of the persons shall have knowledge of matter related to assessment of electricity charges and none of them should be directly related to the affairs of the territorial jurisdiction of the Licensee or supplier of the electricity. According to Mr. Shah, this could not have been done because the Parliament has delegated the said power to the Central Government. Once such power has been delegated to the Central Government, then the Central Government has no power to sub-delegate the same in favour of the State Government for the purpose of constituting an appellate authority.
2.7 Mr. Shah submitted that in the aforesaid context the legislature...
To continue reading
Request your trial