Nazar A.K. v. Kerala State Electricity Board Limited and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 27TH DAY OF JULY 2016/5TH SRAVANA, 1938** ## **W.A.No. 1348 of 2016 () IN W.P.(C).21945/2016 --------------------------------------------** ## **W.P.(C).NO.21945/2016 of HIGH COURT OF KERALA DATED 29-06-2016** ## **APPELLANT(S)/PETITIONER:** **----------------------------------------** **NAZAR A.K., S/O. KOCHAHAMMAD, AGED 48 YEARS, C/O. ADAM METALS, PUNAMKULANGARA, WEST VENGOLA P.O., ERNAKULAM DISTRICT-683556.** ## **BY ADV. SRI.K.A.MOHAMED HARIS** ## **RESPONDENT(S)/RESPONDENTS:** **------------------------------------------------** **1. KERALA STATE ELECTRICITY BOARD LIMITED VYDHYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM-695 004.** **2. THE ASSISTANT ENGINEER, ELECTRICAL SECTION, KSEB, VAZHAKULAM, MUDICAKAL P.O., ERNAKULAM DISTRICT-683547.** **3. THE EXECUTIVE ENGINEER, ELECTRICAL DIVISION, KSEB, PERUMBAVOOR - 683 543** **4. THE DEPUTY CHIEF ENGINEER, ELECTRICAL CIRCLE, PERUMBAVOOR, KERALA STATE ELECTRICITY BOARD, ERNAKULAM DISTRICT - 682 001** **5. THE CHIEF ENGINEER, KSEB, VYDHYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM-695 004.** ## **R1-R5 BY ADV. SRI.JAICE JACOB,SC,KERALA STATE ELECTRICITY BOARD** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 27-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Bb** **“CR”** ## **P.R. RAMACHANDRA MENON & ANIL K. NARENDRAN, JJ.** ....................................................................... **W.A.No.1348 of 2016** ......................................................................... **Dated this the 27[th] July, 2016** ## **JUDGMENT** ## Anil K. Narendran,J. The appellant is the petitioner in W.P.(C)No.21945/2016. The appellant is an industrial consumer under the 2[nd] respondent with Consumer No.11454 (LT-IVA Tariff) with an approved connected load of 119.363 KW and contract demand of 134 KVA, which was brought under ToD (Time of Day) tariff during September 2013. The appellant has approached this Court in that Writ Petition, mainly seeking a writ of certiorari to quash Ext.P4 final assessment order and Ext.P4(a) consequential demand made by the 2[nd] respondent and to declare that the assessment of 2 time penalty for unauthorised load is not applicable to LT-IVA consumers under ToD tariff, wherein there is provision to collect 1.5 time penalty for the excess load. 2. The learned Single Judge, by the judgment dated 29.06.2016, dismissed the Writ Petition reserving the right of the appellant to file appeal under Section 127 of the Electricity Act, 2003 W.A.No.1348 of 2016 : 2 : against Exts.P4 and P4(a). Feeling aggrieved by the judgment of the learned Single Judge, the appellant is before this Court in this Writ Appeal. 3. We heard the arguments of the learned counsel for the appellant/petitioner and also the learned Standing Counsel for the Kerala State Electricity Board (KSEB), representing the respondents. 4. The pleadings and materials on record would show that, on 23.04.2016 the Anti Power Theft Squad (APTS), Palakkad along with the KSEB officials of Electrical Section, Vazhakkulam inspected the appellant's premises and detected an unauthorised additional connected load of 125.326 KW. Based on the findings in Ext.P1 site mahazar prepared by the APTS, the appellant was issued with Ext.P2 provisional assessment order of the 2[nd] respondent, for a total sum of Rs.9,57,480/-. On receipt of Ext.P2 provisional assessment order, the appellant submitted Ext.P3 objections. 5. On 28.05.2016 the 2[nd] respondent conducted a personal hearing and recorded Ext.P3(a) statement of the authorised representative of the appellant. After considering Exts.P3 and P3(a) the 2[nd] respondent issued Ext.P4 final assessment order and Ext.P4(a) W.A.No.1348 of 2016 : 3 : consequential demand, confirming the provisional assessment made in Ext.P2, for Rs.9,57,480/-. Challenging Ext.P4 final assessment order and Ext.P4(a) consequential demand the appellant has approached this Court in W.P.(C)No.21945/2016 seeking various reliefs. 6. Section 126 of the Electricity Act, 2003 (hereinafter referred to as 'the Act') deals with assessment of unauthorised use of electricity. As per sub-section (1) of Section 126, if on an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found 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 unauthorised use of electricity, he shall provisionally assess to the best of his judgment the electricity charges payable by such person or by any other person benefited by such use. Sub-section (2) of Section 126 provides that, the order of provisional assessment shall be served upon the person in occupation or possession or in charge of the place or premises in such manner as may be prescribed. Sub-section (3) of Section 126 provides further that, the person, on whom an order has been served under sub-section (2) of Section 126, shall be entitled to file objections, if W.A.No.1348 of 2016 : 4 : 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. 7. Section 127 of the Act provides for an appeal to the appellate authority against the final order of assessment made under Section 126 of the Act. Sub-section (1) of Section 127 provides that, any person aggrieved by a final order made under Section 126 of the Act may, within thirty days of the said order, prefer an appeal in such form, verified in such manner and accompanied by such fee as may be specified by the State Electricity Regulatory Commission, to an appellate authority as may be prescribed. Sub-section (2) of Section 127 provides further that, no appeal against an order of assessment under sub-section (1) of Section 127 shall be entertained unless an amount equal to half of the assessed amount is deposited in cash or by way of bank draft with the licensee and documentary evidence of such deposit has been enclosed along with the appeal. Going by subsection (3) of Section 127, the appellate authority shall dispose of the W.A.No.1348 of 2016 : 5 : appeal after hearing the parties and pass appropriate order and send copy of the order to the assessing officer and the appellant. 8. Section 127 of the Act, therefore, provides for an efficacious remedy to a person who is aggrieved by the final order of assessment issued by the assessing officer under Section 126 of the Act for unauthorised use of electricity. In such circumstances, the learned Single Judge cannot be found fault with in dismissing the Writ Petition reserving the right of the appellant to file appeal against the final order of assessment, by invoking the provisions under Section 127 of the Act. 9. However, we notice that, the provisions under sub-section (3) of Section 126 of the Act mandate the assessing officer to consider the objections, if any, filed by the person concerned against the provisional order of assessment, and finalise the assessment after affording such person a reasonable opportunity of hearing. Such an order passed by the assessing officer is open to challenge in an appeal filed by the person aggrieved, under Section 127 of the Act. Therefore, absence of reasons in the order of final assessment virtually deny and deprive an opportunity to the person concerned to know how the W.A.No.1348 of 2016 : 6 : assessing authority has dealt with his objections to the provisional order of assessment and why the decision has gone against him. Further, the absence of reasons in the order of final assessment, render it virtually impossible for the authority constituted under Section 127 of the Act to exercise its appellate power in adjudging the validity of the final order of assessment. 10. In **Breen v. Amalgamated Engineering Union (1971 (1) All. E.R. 1148)** Lord Denning, M.R. Observed that, the giving of reasons is one of the fundamentals of good administration. In **Alexander Machinery (Dudley) Ltd. v. Crabtree (1974 ICR 120)** it was observed that, failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at. 11. Following the principle laid down in the decisions referred to supra, the Apex Court in **Chairman and Managing Director, United Commercial Bank and others Vs. P.C.Kakkar (2003) 4 SCC 364)** held that, reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the 'inscrutable face W.A.No.1348 of 2016 : 7 : of the sphinx', it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out. The 'inscrutable face of a sphinx' is ordinarily incongruous with a judicial or quasi-judicial performance. 12. In **B.A.Linga Reddy v. Karnataka State Transport Authority (2015 (4) SCC 515)** , the Apex Court after referring to its earlier decisions on the subject has reiterated that, the rule of reason is anti-thesis to arbitrariness in action and is a necessary concomitant of the principles of natural justice. If a statutory or public authority/functionary does not record the reasons, its decision would be rendered arbitrary, unfair, unjust and violating Articles 14 and 21 of the Constitution of India. It is the duty of such authority/functionary to give reasons and to pass a speaking order that excludes arbitrariness in action. W.A.No.1348 of 2016 : 8 : 13. In the instant case, on receipt of Ext.P2 provisional assessment order, the appellant submitted Ext.P3 objection. The said objections were reiterated in the personal hearing conducted by the 2[nd] respondent on 28.05.2016, which is discernible from Ext.P3(a) statement recorded by the 2[nd] respondent after hearing the authorised representative of the appellant. However, nothing is discernible from Ext.P4 final assessment order to infer that the said order is one passed by the said respondent after considering the objections raised by the appellant against the provisional assessment made in Ext.P2. In Ext.P4 there is non-consideration of the objections raised by the appellant in Exts.P3 and P3(a), except mentioning some of his contentions in the second page of the said order. 14. In **Commissioner of Police, Bombay v. Gordhandas Bhanji (AIR 1952 SC 16)** the Apex court held that, public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of W.A.No.1348 of 2016 : 9 : those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. 15. Following the principle laid down in Gordhandas Bhanji's case (supra), the Apex Court reiterated in **Mohinder Singh Gill v. Chief Election Commissioner (1978 (1) SCC 405)** that, when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, gets validated by additional grounds later brought out. 16. The learned Standing Counsel for the KSEB attempted to supplement the reasoning in Ext.P4 final assessment order by way of an affidavit filed on behalf of the respondents dated 13.6.2016, in order to make it appear that the said order is one supported by reasoning. Such a course is not legally permissible in view of the principle laid down by the Apex Court in Mohinder Singh Gill's case (supra). In that view of the matter, we find no reason to sustain Ext.P4 final assessment order and Ext.P4(a) consequential demand. W.A.No.1348 of 2016 : 10 : In the result, this Writ Appeal is disposed of setting aside Ext.P4 final assessment order and Ext.P4(a) consequential demand made by the 2[nd] respondent and the said respondent is directed to re-consider Ext.P3 objection filed by the appellant and pass a 'reasoned' final assessment order, as expeditiously as possible, at any rate within a period of one month from the date of receipt of a certified copy of this judgment, after affording the appellant an opportunity of being heard. The Writ Petition will stand allowed to the above extent. All the contentions raised by both the sides are left open to be raised before the 2[nd] respondent. No order as to costs. Sd/- **P.R. RAMACHANDRA MENON, JUDGE** Sd/- **ANIL K. NARENDRAN, JUDGE** Bb/30.07.2016 True copy P.A.to Judge