SRI SEETARAMA RICE MILL Vs. EXECUTIVE ENGINEER

JUDGEMENT

(1.) The petitioner in the present writ application has called in question the initiation of proceeding as well as passing of the provisional order of assessment under sub-section (1) of Section 126 of the Elec tricity Act, 2003 (described in short as 'the Act') by the Executive Engineer, Jeypore Electricial Division, Jeypore, the opposite party No. 1 on the allegation of overdrawal of maximum demand. The petitioner has also assailed the intimation bearing No. 853 dated 25-7-2009 under Annexure-3 issued by the opposite party No.l alleging unauthorized use of electricity by means not authorized by licensee (overdrawal of maximum de mand) under sub-clause (ii) of clause (b) of the Explanation appended to Section 126 of the Act.

(2.) Uncontroverted facts giving rise to the present petition are that the petitioner is a small scale industrial unit engaged in pro duction of rice and thus the petitioner is a consumer having contract load/demand of 99 KW, and it was classified as medium indus try relating to supply of power with a con tract demand of 99 KW as the same is below 110 KW. The petitioner's industrial unit was inspected by the Executive Engineer (in-charge) and the S. D. O., Electrical MRT Division, Jeypore on 10-6-2009 and dump was conducted. Basing upon the results found from the dump showing increase in the con nected load, the opposite party No. 1 issued an intimation bearing No. 853 dated 25-7-2009 intimating the petitioner regarding unauthorised use of electricity u/S. 126 of the Act, i.e., by means not authorized by lic ensee (overdrawal of maximum demand) vide Annexure-3. On the same day, the peti tioner has been issued and served with a pro visional assessment order bearing No. 854 dated 25-7-2009 under Annexure-4 by the opposite party No. 1 whereby the petitioner has been assessed provisionally fastening li ability to the extent of Rs. 7,77,300/- for the period from June, 2008 to August, 2009 treat ing the petitioner as a large industry on the ground that as per the dump report, the maxi mum demand has raised to 142 KVA since 4-6-2008 at 16.00 hours. While assessing provisionally, the opposite party No. 1 fur ther directed the petitioner to file objection, if any, against the provisional assessment order u/S. 126(3) of the Act within 30 days from thereceipt of the provisional assessment order and the petitioner was also called upon to deposit the aforesaid amount within seven days.

(3.) Learned counsel for the petitioner submitted that under Annexure-3, commission of unauthorised use of electricity by means not authorized by license (overdrawal of maximum demand) has been alleged. But as per the provisions of law contained in Sec tion 126 of the Act, the overdrawal of maxi mum demand does not come within the ambit and sphere of "unauthorized use of electric ity". By so submitting, the petitioner has as sailed the authority and jurisdiction of the opposite party No. 1 invoking sub-section (1) of Section 126 of the Act on the ground of unauthorized use of electricity on the alle gation of overdrawal of maximum demand. The petitioner further submitted that 'unau thorized use of electricity' has been defined in sub-clause (b) of the Explanation to Sec tion 126 which is not meant for the allega tion of overdrawal of maximum demand and for overdrawal of maximum demand, a con sumer can be penalized as indicated in the electricity energy bill. The petitioner further submitted that since sub-clause (ii) of Clause (b) of the Explanation to Section 126 does not treat the "overdrawal of maximum de mand" to be 'unauthorized use of electric ity', the opposite party No. 1 should not have put an amendment in the statute by indicat ing "overdrawal of maximum demand" in the bracket against sub-clause (ii) of Clause (b). The petitioner also submitted that the assess ment as per Section 126 comes into play if there is any 'unauthorized use of electricity' and on the allegation of overdrawal of maxi mum demand than the contract demand as agreed upon by a consumer, the said overdrawal of maximum demand will be taken into task by regulation 82 of Orissa Electricity Regulatory Commission Distribu tion (Condition of Supply), 2004 and in any circumstances, there should not have been any provisional assessment u/S. 126 of the Act on the undisputed allegation of over drawal of maximum demand. Accordingly, the petitioner has prayed to quash the inti mation under Annexure-3 and the provisional assessment order under Annexure-4 as well.