Syriac Kurian v. Union of India & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MRS. JUSTICE SHIRCY V. TUESDAY, THE 25TH DAY OF OCTOBER 2016/3RD KARTHIKA, 1938 WA.No. 705 of 2014 IN WP(C).31523/2013 ------------------------------------------AGAINST THE JUDGMENT IN WP(C) 31523/2013 of HIGH COURT OF KERALA DATED 06-01-2014 -------- ## APPELLANT/WRIT PETITIONER: ---------------------------------- SYRIAC KURIAN, AGED 58 YEARS, SON OF KURIAN,MALAYILHOUSE, KEERAMPARA, KOTHAMANGALAM, ERNAKULAM DISTRICT BY ADV. SRI.C.P.SAJI ## RESPONDENTS/RESPONDENTS/RESPONDENTS: ----------------------------------------------------- ## 1. UNION OF INDIA REPRESENTED BY THE SECRETARY TO MINISTRY OF POWER,SHRAM SAKTHI BHAVAN,RAFI MARG,NEW DELHI 110001 2. THE DEPUTY CHIEF ENGINEER, ELECTRICAL CIRCLE,KERALA STATE ELECTRICITY BOARD,ERNAKULAM,KOCHI 682 018 ## 3. THE ASSISTANT ENGINEER KERALA STATE ELECTRICITY BOARD,ELECTRICAL SECTION,KEERAMPARA P.O,KOTHAMANGALAM,PIN 686 681 ## 4. SUB ENGINEER KERALA STATE ELECTRICITY BOARD,ELECTRICAL SECTION,KEERAMPARA,KOTHAMANGALAM PIN 686 681 R1 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL R2,R3,R4 BY SRI.JAICE JACOB,SC,KERALA STATE ELECTRICITY BOARD THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 25-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **ANTONY DOMINIC & SHIRCY V., JJ.** -----------------------------------------------W. A. No.705 of 2014 -----------------------------------------------Dated this the 25[th] day of October, 2016 ## **JUDGMENT** ## **Antony Dominic, J.** 1. aThis appeal is filed by the petitioner in W.P.(C) No.31523 of 2013. In the writ petition, the petitioner challenged Ext.P8 proceedings of the third respondent issued in exercise of his powers under Section 126 of the Electricity Act, 2003, for short, the “Act”. Ext.P8 was challenged mainly on the ground that the inspection which led to the proceedings culminating in Ext.P8 was not by the assessing officer designated under Section 126(6)(a) of the Act. The appellant also contended that the provision of Section 127(2) requiring deposit of half of the assessed amount as a condition to maintain an appeal under Section 127(1) is unconstitutional. Both these contentions were rejected by the learned single Judge. It is this judgment -2- W. A. No.705 of 2014 which is under challenge. 2. In this appeal, the appellant reiterates his contention on both the aforesaid issues. Insofar as the first issue as to whether inspection under Section 126(1) should be conducted by the assessing officer himself is concerned, that question has to be answered in the light of the language of Section 126(1) which reads thus: “ **126. Assessment.** — (1) 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 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.” 3. A reading of the above provision shows that all that the legislature has mandated is that there should be 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 W. A. No.705 of 2014 -3- person and the assessing officer should come to a conclusion that such person is indulging in unauthorised use of electricity. A close reading of this provision reveals that though it is the inspection which triggers action for unauthorised use of electricity, but such inspection is not required to be done only by the assessing officer himself. On the other hand, once the inspection is conducted by a competent officer, on that basis, it is for the assessing officer to come to his conclusion whether such person has indulged in unauthorised use of electricity. Therefore, from the language of the provision, we are unable to come to the conclusion that the inspection should be by the assessing officer himself. Apart from the above, we also find that the judgment under appeal has been referred to and concurred by another Division Bench of this Court with judgment in W.A. No.1450 of 2016. 4. The appellant relied heavily on the judgment of the Apex Court in **Executive Engineer and Another v. Sri.** W. A. No.705 of 2014 -4- **Seetaram Rice Mill [2011 KHC 4978]** to support the contention that the inspection should be by the assessing officer. A reading of the judgment shows that the question whether the inspection under Section 126 should be by the assessing officer himself was not an issue that was raised or considered by the apex Court in the aforesaid judgment. On the other hand, from the paragraphs of the judgment which are relied on by the appellant, to contend that the assessing officer has to conduct the inspection it is evident that the Apex Court has merely reiterated the provisions of Section 126 of the Act. Since the judgment is only an authority what it actually decided and not what logically follows therefrom, we cannot accept the plea that the judgment in the case of **Seetaram Rice Mill** (cited supra) laid down the proposition as contended by the appellant. 5. Similar is the case with respect to the Calcutta High Court's judgment in **C. E. S. C. Ltd. v. ABDOS Trading Co. Pvt. Ltd. [2013 KHC 2443]** . Insofar as this judgment is W. A. No.705 of 2014 -5- concerned, apart from following the judgment of the Apex Court, the Calcutta High Court has not decided this issue. Even otherwise a reading of paragraph 5 of the judgment itself shows that the Calcutta High Court has clarified that they were not called upon to decide the issue and have also not expressed any final opinion in the matter. Therefore, this contention of the appellant is unacceptable. 6. The second contention raised is regarding constitutional validity of Section 127(2). Section 127(1) and (2) of the Act read thus: “ **127. Appeal to Appellate Authority.** — (1) Any person aggrieved by the final order made under section 126 may, within thirty days of the said order, prefer an appeal in such form, verified in such manner and be accompanied by such fee as may be specified by the State Commission, to an appellate authority as may be prescribed. (2) No appeal against an order of assessment under sub-section (1) shall be entertained unless an amount equal to 3 [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.” W. A. No.705 of 2014 -6- 7. While Section 127(1) confers an appellate remedy against the final order passed under Section 126, subsection 2 thereof imposes a condition requiring the appellant, to deposit an amount equal to half of the assessed amount in cash or by way of demand draft with the licensee as a condition for entertaining an appeal. The question is whether such a condition is constitutionally invalid. Having considered this issue, we find that appeal is a statutory remedy and it is always open to the Parliament to impose conditions for availing of the appellate remedy. Such conditions are liable to be upheld so long as the same passes the constitutional test of the reasonableness and non-arbitrariness. Such conditions requiring remittance of amounts as condition for maintaining appeals, are not unknown. Similar provisions are available in the Customs Act, Central Excise Act, Sales Tax Act, Income Tax Act and such other enactments. While in these enactments, power of waiver has been confined on appellate authorities, there are W. A. No.705 of 2014 -7- enactments such as Payment of Gratuity Act which require deposit of full amount ordered by the controlling authority as condition for maintaining appeal. These provisions have also stood the test of judicial scrutiny. Therefore, the provision of Section 127(2) requiring deposit of half of the assessed amount in the order under Section 126(1) cannot be said to suffer from any constitutional invalidity. Therefore, we are unable to hold that Section 127(2) suffers from any unconstitutionality for it being declared as such. 8. We do not find any illegality in the impugned judgment for interference in this appeal. Appeal fails and is dismissed accordingly. Sd/- **ANTONY DOMINIC JUDGE** Sd/- **SHIRCY V. JUDGE** kns/- //TRUE COPY// P.S. TO JUDGE W. A. No.705 of 2014 -8-