GURUVAYOOR MERCHANTS ASSO. Vs. KERALA STATE ELECTRICITY BOARD

JUDGEMENT

(1.) This writ petition has been filed challenging Exts.P9 and P10 demands issued under Sec. 126 of the Electricity Act, 2003 (hereinafter referred to as the '2003 Act') to the petitioner. According to the petitioner, there were earlier proceedings drawn up against the petitioner under Sec. 126 of the 2003 Act, leading to the issuance of Exts.P6 and P7 calling upon the petitioner to remit a sum of Rs.1,31,681.00 on the allegation that there was misuse of electricity by the petitioner by using an electric connection granted for construction of a building for other purposes. The petitioner duly paid that amount. The circumstances leading to the issue of Exts.P6 and P7 need not be dealt with in any detail for the purposes of considering the issue arising in this case. After the petitioner paid the amount demanded in Exts.P6 and P7, the petitioner was served with Exts.P9 and P10, informing the petitioner that further amounts were payable by the petitioner towards the assessment already completed on the basis of the observations of the Thrissur Regional Audit Officer that the earlier demand raised to the petitioner was not strictly in terms of the provisions contained in Sec. 126 of the 2003 Act. It is also stated in Ext.P9 that the same is being issued in terms of Regulation 134 of the Kerala Electricity Supply Code, 2014 (hereinafter referred to as the 'Supply Code, 2014'). The petitioner filed Ext.P11 objection and has approached this Court by filing the above writ petition and seeking for the following reliefs:

(2.) The learned counsel appearing for the petitioner would refer to the facts and circumstances of the case and Ext.P6 order & Ext.P7 demand and would submit that Exts.P9 and P10 are without jurisdiction and are clearly illegal. It is submitted that after an assessment is completed under Sec. 126 of the 2003 Act, the 2nd respondent has no authority to reopen the assessment and to issue further demands on the petitioner. Reliance is placed in this regard on the judgment of this Court in Jomy Thomas Manjooran v. Kerala State Electricity Board; 2013 (1) KLT 595, where it has been held that once the officer completes the assessment under Sec. 126 of the 2003 Act, he becomes 'functus officio' and it is for the Appellate Authority to look into the correctness of the assessment. It is pointed out that the said decision proceeds to hold that unless there is any statutory power conferred on the assessing officer enabling reopening, revision or re-assessment, he is not competent to deal with the matter after the issuance of the final order of assessment.

(3.) Sri. B. Pramod, the learned Standing Counsel appearing for the Kerala State Electricity Board, contends that the assessing officer under Sec. 126 of the 2003 Act is exercising quasi-judicial power. He referred to the provisions of Ss. 168 and 169 of the 2003 Act to point out that an assessing officer under Sec. 126 of the 2003 Act is protected in respect of action taken in good faith, and no suit, prosecution, or other proceeding shall lie against him for anything done in good faith purporting to be done under the Act or the Rules or regulations made thereunder. It is pointed out that by virtue of the provisions contained in Sec. 169 of the 2003 Act, the assessing officer is also treated as a public servant for the purposes of Sec. 21 of the Indian Penal Code. It is submitted that a reading of Exts.P6 and P7 cumulatively will show that the demand in Ext.P7 was not in terms of the provisions contained in Sec. 126 of the 2003 Act. It is submitted that when the mistake was noticed during an audit by the Thrissur Regional Audit Officer, the 2nd respondent had issued Exts.P9 and P10, calculating the correct amounts payable by the petitioner under Sec. 126 of the 2003 Act. It is submitted that Exts.P9 and P10 only reflect the correction of mistakes as contemplated in Regulation 134 of the Supply Code, 2014. It is submitted that under the provisions of Regulation 134 of the Supply Code, 2014, 'if the licensee establishes by review or otherwise, that it has undercharged the consumer, the licensee may recover the amount so undercharged from the consumer by issuing a bill'. It is submitted that if it is established after payment of any bill that the licensee has overcharged the consumer, the excess amount shall also be refunded to the consumer with interest at the bank rate as on the date of remittance of such excess amount. It is submitted that Ext.P9 specifically refers to Regulation 134 of the Supply Code 2014, and taking into consideration the provisions contained in Regulation 134 of the Supply Code 2014, Exts.P9 and P10 cannot be said to be illegal in any manner. It is pointed out that the determination in Ext.P6 resulted in the issuance of a wrong demand, and this was only corrected by resorting to Regulation 134 of the Supply Code 2014. It is submitted that though Exts.P6 and P7 are issued by the same authority, they are issued in different capacities. It is submitted that while Ext.P6 is issued as the assessing officer under Sec. 126 of the 2003 Act, Ext.P7 is issued as an officer of the Board demanding the amounts determined in terms of Ext.P6. It is submitted that Exts.P9 and P10 are also issued by the 2nd respondent, but again in the capacity of an officer of the Board and not as the assessing officer under Sec. 126 of the 2003 Act. It is submitted that Exts.P9 and P10 do not constitute a review of the decision taken under Sec. 126 of the 2003 Act as held by this Court in Jomy Thomas Manjooran (Supra). The learned Standing Counsel also contends that if the petitioner is in any manner aggrieved by the issuance of Exts.P9 and P10, it is for the petitioner to challenge the same before the Consumer Grievance Redressal Forum (CGRF) and thereafter before the ombudsman