Guruvayoor Merchants Association v. Kerala State Electricity Board

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE GOPINATH P.`** # **`WEDNESDAY, THE 28[TH] DAY OF FEBRUARY 2024 / 9TH PHALGUNA,`** ## **`1945 WP(C) NO. 12972 OF 2016`** ## **`PETITIONER:`** ## **`GURUVAYOOR MERCHANTS ASSOCIATION`** ``` (REG.NO.265/82), REPRESENTED BY ITS PRESIDENT, T.N.MURALI, S/O.NARAYANAN, AGED 56 YEARS, INNER RING ROAD, GURUVAYOOR – 680 101, RESIDING AT THOKKATH HOUSE, GURUVAYOOR P.O, PIN 680 101. ``` ``` BY ADVS. ``` ``` SRI.C.A.CHACKO SMT.C.M.CHARISMA SMT.MEGHA K.XAVIER ``` ## **`RESPONDENTS:`** - **`1 KERALA STATE ELECTRICITY BOARD REPRESENTED BY ITS SECRETARY, VAIDYUTHI BHAVAN, THIRUVANANTHAPURAM- 695 001.`** - **`2 THE ASSISTANT ENGINEER ELECTRICAL SECTION, GURUVAYOOR- 680 101.`** - **`3 THE SUB ENGINEER ELECTRICAL SECTION, GURUVAYOR -680 101. BY ADV. B. PRAMOD (SC)(KSEB)`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON ``` ``` 28.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P(C)No.12972 of 2016 -2- ## **‘C.R.’** ## **J U D G M E N T** This writ petition has been filed challenging Exts.P9 and P10 demands issued under Section 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 Section 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/- 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 W.P(C)No.12972 of 2016 -3- 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 Section 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: - i. “Issue a writ of certiorari or any other appropriate writ, order or direction to quash Ext.P9 and P10 after calling for the records leading to its issuance as it is against Section 126 of the Electricity Act, 2003. - ii. Issue a writ of mandamus or any other appropriate writ, order or direction to 2[nd] respondent to consider Ext.P11 representation submitted by the petitioner. And - iii.Issue such other reliefs as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case”. W.P(C)No.12972 of 2016 -4- 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 Section 126 of the 2003 Act, the 2[nd] 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 Section 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 W.P(C)No.12972 of 2016 -5- assessment. 3. Sri. B. Pramod, the learned Standing Counsel appearing for the Kerala State Electricity Board, contends that the assessing officer under Section 126 of the 2003 Act is exercising quasi-judicial power. He referred to the provisions of Sections 168 and 169 of the 2003 Act to point out that an assessing officer under Section 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 Section 169 of the 2003 Act, the assessing officer is also treated as a public servant for the purposes of Section 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 Section 126 of the 2003 Act. It is submitted that when the mistake was noticed during an audit by the W.P(C)No.12972 of 2016 -6- Thrissur Regional Audit Officer, the 2[nd] respondent had issued Exts.P9 and P10, calculating the correct amounts payable by the petitioner under Section 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 W.P(C)No.12972 of 2016 -7- 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 Section 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 2[nd] respondent, but again in the capacity of an officer of the Board and not as the assessing officer under Section 126 of the 2003 Act. It is submitted that Exts.P9 and P10 do not constitute a review of the decision taken under Section 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 W.P(C)No.12972 of 2016 -8- Redressal Forum (CGRF) and thereafter before the ombudsman 4. Having heard the learned counsel for the petitioner and the learned Standing Counsel for the respondents, I am certain that the petitioner is entitled to succeed. The contention of the learned Standing Counsel appearing for the respondents that while completing an assessment under Section 126 of the 2003 Act, the assessing officer acts as a quasi-judicial authority cannot be doubted. Therefore, the issuance of Exts.P6 and P7 can only be treated as a culmination of the proceedings initiated under Section 126 of the 2003 Act. It cannot be held that Ext.P7, which was issued along with Ext.P6, is an order separate from the proceedings under Section 126 of the 2003 Act. This will be more clear from a reading of the provisions of Section 126 of the 2003 Act, which to the extent relevant are extracted below:- “Section 126: Assessment: --- (1) If on an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found W.P(C)No.12972 of 2016 -9- connected or used, or after inspection of records maintained by any person, the assessing officer comes to the conclusion that such person is indulging in unauthorized use of electricity, he shall provisionally assess to the best of his judgement the electricity charges payable by such person or by any other person benefited by such use. ## (2) …… (3) The person, on whom an order has been served under sub- section (2) shall be entitled to file objections, if any, against the provisional assessment before the assessing officer, who shall, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment within thirty days from the date of service of such order of provisional assessment of the electricity charges payable by such person. (4) Any person served with the order of provisional assessment, may, accept such assessment and deposit the assessed amount with the licensee within seven days of service of such provisional assessment order upon him: ## (5) … (6) The assessment under this section shall be made at a rate equal to twice the tariff rates applicable for the relevant category of services specified in sub-section (5).” ## (Emphasis is mine) W.P(C)No.12972 of 2016 -10- A reading of Section 126 of the 2003 Act (especially the words upon which I have placed emphasis) indicates that it is a self-contained code and deals with the issuance of an order as well as a demand which has to be paid by the consumer on the culmination of proceedings, subject to any appellate or other remedies available to the consumer. It is clear from a reading of the provisions extracted above that once an adjudication in terms of Section 126 of the 2003 Act is completed, there cannot be any re-opening, revision or review of the same on the premise that a mistake had been committed while demanding the amounts payable. This is more so because, even according to the learned Standing Counsel for the respondents, the assessing officer is a quasi-judicial authority and therefore, the officers of the Board are equally bound as consumers with the adjudication contemplated under the provisions of Section 126 of the 2003 Act. Therefore, it does not lie in the hands of the 2[nd] respondent to thereafter issue Exts.P9 W.P(C)No.12972 of 2016 -11- and P10 on the premise that the demands raised in Ext.P7 were, in fact, a mistake and further amounts were to be paid by the petitioner following the proceedings under Section 126 of the 2003 Act. The submission of the learned Standing Counsel with reference to Regulation 134 of the Supply Code, 2014, is equally fallacious. Regulation 134 of the Supply Code, 2014, deals with a situation where a bill is issued without adjudication and in the normal course. It cannot, obviously, apply to an adjudication under Section 126 of the 2003 Act, for the reason that the adjudication under Section 126 of the 2003 Act contemplates a procedure where the consumer is given notice, a provisional assessment order is issued, a right to file objections is provided, a personal hearing is contemplated, and thereafter a bill is issued in terms of the provisions contained in that Section. Further, as already noticed above, the provisions of Section 126 of the 2003 Act are a complete code in itself, and no provision of the Supply Code 2014 can be said to authorise the issuance of Exts.P9 W.P(C)No.12972 of 2016 -12- and P10, as has been done in the facts and circumstances of this case. 5. The contention of the learned Standing Counsel 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 is only to be rejected. I consider this objection on the ground of alternative remedy to be of no occasion, as it is well settled that when proceedings are challenged on the ground of lack of jurisdiction, the alternative remedy is not a bar for the entertainment of a writ petition under Article 226 of the Constitution of India. In **Calcutta Discount Co. Ltd. v. ITO, (1961) 41 ITR 191,** a five Judge Bench of the Supreme Court, when dealing with a plea of alternate remedy, held as under:- “ **27.** Mr Sastri mentioned more than once the fact that the Company would have sufficient opportunity to raise this question viz. whether the Income Tax Officer had reason to believe that underassessment had resulted from non-disclosure of material facts, before the W.P(C)No.12972 of 2016 -13- Income Tax Officer himself in the assessment proceedings and if unsuccessful there before the appellate officer or the Appellate Tribunal or in the High Court under Section 66(2) of the Indian Income Tax Act. The existence of such alternative remedy is not however always a sufficient reason for refusing a party quick relief by a writ or order prohibiting an authority acting without jurisdiction from continuing such action. 28. In the present case the Company contends that the conditions precedent for the assumption of jurisdiction under Section 34 were not satisfied and come to the court at the earliest opportunity. There is nothing in its conduct which would justify the refusal of proper relief under Article 226. When the Constitution confers on the High Courts the power to give relief it becomes the duty of the courts to give such relief in fit cases and the courts would be failing to perform their duty if relief is refused without adequate reasons. In the present case we can find no reason for which relief should be refused.” **(Emphasis is mine)** I am clear in my mind that Exts.P9 and P10 proceedings of the 2[nd] respondent are clearly without jurisdiction, as after an assessment is completed in terms of the provisions contained in Section 126 of the 2003 Act, it is not open to W.P(C)No.12972 of 2016 -14- the 2[nd] respondent to initiate any further proceedings on the ground that the calculation of the amounts payable by the consumer in terms of the provisions contained in Section 126 of the 2003 Act was erroneous. In **Jomy Thomas Manjooran (Supra),** it was held as follows: “6. Under S.126 of the Act, the Assessing Officer is empowered to make a best judgment assessment of the electricity charges payable, on a person who has been found indulging in unauthorised use of electricity. Sub-s.(1) requires the Assessing Officer to make the assessment on a provisional basis and to serve an order of provisional assessment on the consumer. Subs.(3) envisages procedure for finalisation of the assessment, after giving opportunity to file objections and opportunity of personal hearing. Sub-s.(5) deals with the extent of penalty which can be assessed, and sub-s.(6) deals with the quantum of penalty. Explanation contained therein clarify the term, ‘unauthorised use of electricity’. S.127 of the Act provides for a statutory appeal against the final assessment. The above provisions will clearly indicate that a self contained code is prescribed regarding the procedure to be adopted, when unauthorised use of electricity is detected. The Assessing Officer, empowered through notification issued under the Act, is discharging a quasi-judicial function in finalising the assessment. Once the Assessing Officer finalises the W.P(C)No.12972 of 2016 -15- assessment, he become ‘functus officio’ in the matter and it is for the appellate authority to look into correctness of the assessment. 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 issuance of final order of assessment. 7. It is pertinent to note that the statute had not even conferred any power on the Authorised Officer to rectify mistake if any occurred in the final assessment. In many decisions of this court and the honourable Supreme Court it is held that, procedure contemplated under S.126 is a self contained code. In **Executive Engineer, Southern Electricity Supply Company of Orissa Limited (SOUTHCO) & Anr. v. Sri.Seetaram Rice Mill** ((2012) 2 SCC 108) it is held that a complete procedure is provided under S.126 and 127, right from initiation of the proceedings till preferring of an appeal against the final order of assessment and its termination. As such it is a complete code in itself. It is sated (sic) that the assessment proceedings would commence with inspection in the premises and it ends with a best judgment assessment of the electricity charges payable, made by the Assessing Officer. Learned counsel for the petitioner contended that, distinct from any other fiscal statutes, neither the Electricity Act, 2003 nor any Rules or Regulations confer any power on the Assessing Officer for reopening or revision of the assessment. There is not W.P(C)No.12972 of 2016 -16- even a power conferred for correction of mistake. It is obvious that exercise of power vested on the Assessing Officer ends with finalisation of the assessment. Power to modify the assessment is vested only with the appellate authority under S.127. Since there is no provision enabling a reopening, revision or rectification of the assessment, the impugned proceedings is one issued without jurisdiction, is the contention. 8. Learned standing counsel appearing for the respondent Board is also not in a position to point out any provision conferring power on the Authorised Officer for reopening or reassessment or rectification. Even assuming that the impugned proceedings is only to the extent of correcting a mistake occurred in the assessment and that what is demanded is only the amount which escaped assessment, can such rectification be sustained, is the question. I am persuaded to concur with the view that even assuming that there occurred a mistake apparent on the face of the record, it cannot be rectified by the Assessing Officer, unless power is conferred through any statutory provisions. Even in cases where specific provisions are provided in fiscal statutes, this court had repeatedly held that, exercise of the power of rectification should be limited only to the extent of error apparent on the face of records. In the case of S.15 of the Kerala Building Tax Act, 1975, a Division Bench of this court in **Kurian George v. Tahsildar** ; W.P(C)No.12972 of 2016 -17- (1995 (2) KLT 457) held that, once an original assessment is made under the provisions of the Act, a subsequent notice proposing assessment by adopting another method cannot be sustained, even if it is found that the latter method would yield more tax than the earlier one. In the said case this court found that, the mistake was found out not by the assessing authority, but it was sought to be rectified on the basis of a report of an auditor who found that the alternative method should have been adopted instead of the one already adopted by the assessing authority. It was held that the mistake pointed out by an Auditor is not a glaring, obvious or self evident one, which falls within the ambit of an error apparent on the face of records, contemplated under S.15, which enables rectification. This court held that, at the time of earlier assessment all materials were available before the authority and the authority was supposed to be aware of all the materials. Once the tax is assessed by adopting one of the methods envisaged under the statutory provision, he cannot review or reopen the assessment on the ground that there was a mistake, on the basis of advise of the auditor. It is also held that under the power to rectify a mistake apparent on the face of record, the Assessing Officer has no jurisdiction to reopen the assessment on the advise of any superior authority. This court held that, a mistake apparent on the face of record means an arithmetic error, clerical error, slip or inadvertent omission or in the case where latter enactment enables authority to modify the original W.P(C)No.12972 of 2016 -18- assessment or in the case where an earlier assessment was made not on application of any valid principles of law. But the assessing officer has no authority to rectify any mistake by taking an alternative view when two views are possible or when under the latter view it is found that more amount could have been assessed. The mistake envisaged as apparent from the record should be a mistake which is not discovered by reasoning on examining arguments on points of law or on facts. This court emphatically held that reopening or review of assessment is not permissible if the relevant statute does not confer such power on any authority. 9. xxxx xxxx xxxx 10. xxxx xxxx xxxx 11. Conclusions on the basis of the above discussions is that, the 2[nd] respondent is not empowered to revise, reopen or rectify the assessment of penalty once finalised under S.126 of the Electricity Act 2003, especially on the basis of an instruction issued by the Audit Officers, because of lack of jurisdiction conferred under the statute enabling such revision, reopening or rectification. Further the second respondent cannot impose penalty at the rate applicable to LT VIII Tariff on the basis that unauthorised extension was detected at the time of inspection. Therefore it is held that Exhibit. P11 is unsustainable in law, and hence the same is hereby quashed”. W.P(C)No.12972 of 2016 -19- Therefore, it is clear that the 2[nd] respondent had no jurisdiction to issue Exts.P9 and P10. Therefore, I overrule the objections raised to the maintainability of the writ petition on the ground that the petitioner/consumer had an alternative remedy before the CGRF and thereafter before the electricity ombudsman. Writ petition will stand allowed. Exts.P9 and P10 are quashed. I make it clear that this will not prevent the board from availing any other remedy available to it under law if it has a case that the demand in Ext.P7 was erroneous. ats **Sd/GOPINATH P. JUDGE** W.P(C)No.12972 of 2016 -20- ## **`APPENDIX OF WP(C) 12972/2016`** ## **`PETITIONER’S EXHIBITS`** - **`EXHIBIT P1 TRUE COPY OF THE SITE MAHAZAR PREPARED BY 3RD RESPONDENT DATED 15.7.2015`** - **`EXHIBIT P2 TRUE COPY OF PROVISIONAL ASSESSMENT BILL DATED 20.7.2015`** - **`EXHIBIT P3 TRUE COPY OF NOTICE ISSUED BY 2ND RESPONDENT`** - **`EXHIBIT P4 TRUE COPY OF NOTICE DATED 22.7.2015 ISSUED BY 2ND RESPONDENT`** - **`EXHIBIT P5 TRUE COPY OF OBJECTION MADE BEFORE THE 2ND RESPONDENT ON 27.7.2015`** - **`EXHIBIT P6 TRUE COPY OF FINAL ASSESSMENT ORDER DATED 9.9.2015`** - **`EXHIBIT P7 TRUE COPY OF CALCULATION STATEMENT DATED 14.9.2015`** - **`EXHIBIT P8 TRUE COPY OF RECEIPT DATED 22.9.2015 EXHIBIT P9 TRUE COPY OF COMMUNICATION DATED 26.2.2016`** ``` EXHIBIT P10TRUE COPY OF BALANCE AMOUNT BILL DATED 26.2.2016 AND NEW CALCULATION STATEMENT EXHIBITP11TRUE COPY OF REPRESENTATION DATED 23.3.2016 ```