The High Court, vide impugned judgment, accepted the case of the respondent and held that the words unauthorized use of electricity and means as provided in Explanation to Section 126 of the 2003 Act were exhaustive.
On this basis, the appellant passed the order of provisional assessment by taking the companytracted demand as that applicable to large industry.
And Whereas you are further entitled u s 126 4 to deposit the aforesaid amount within 7 days and upon such deposit being made within 7 days, you shall number be subject to any further liability or any action by any authority whatsoever.
The respondent also challenged the maintainability and sustainability of the order of provisional assessment in calculating the dump charges for a period of 15 months from June 2008 to August 2009 on the basis of dump charges relating to large industry while the respondent was classified as medium scale industry.
Overdrawal of MD would number fall under the scope of unauthorized use of electricity as defined under the 2003 Act, and the appellants had numberjurisdiction to issue the intimation in question and pass the assessment order in terms of Section 126 of the 2003 Act.
It was also the companytention raised by the respondent before the High Court that the provisions of Section 126 of the 2003 Act were number attracted in the present case at all.
The dump report dated 10th June, 2009 and the intimation dated 25th July, 2009 had been sent showing overdrawal of MD where, according to the appellants, the respondent had companysumed electricity by means unauthorized by the licencee overdrawal of maximum demand and thereby breached the Agreement and, therefore, the provisional assessment order and the intimation were fully justified.
In the dump report dated 10 th June, 2009, it was stated that there was unauthorized use of electricity and Maximum Demand hereinafter MD had been companysumed up to 142 KVA.
Calibration of meter done and error found within limit.
The relevant part of the said provisional assessment order reads as under And Whereas you are entitled to file objections against the aforesaid provisional assessment order under Section 126 3 of Electricity Act, 2003, within 30 days from receipt hereof and further entitled to appear before the undersigned for an opportunity of being heard on 25.08.2009 during working hours from 11.00 AM to 5.00 PM.
These officers issued a dump report by numbericing as follows Dump of the Meter taken.
The respondent did number file its objections reply but challenged the said provisional assessment order and the intimation of unauthorized use before the High Court of Orissa, Cuttack by filing writ petition No.
It was also companytended that numberinspection had been companyducted in the business premises till date of dump, i.e., 10th June, 2009 when unauthorized use of electricity was found.
Intimation bearing No.853 had also been issued on the same day which informed the respondent that there was unauthorized use of electricity falling squarely within the ambit of provisions of Section 126 of the 2003 Act.
WP C No.12175 of 2009 on the grounds of lack of authority and jurisdiction on the part of the Executive Engineer to frame the provisional assessment by alleging unauthorized use of electricity since 4th June, 2008.
Vide the provisional assessment order dated 25th July, 2009, assessment was made under Section 126 1 of the 2003 Act for unauthorized use of electricity, the respondent was required to file objections, if any, and to also pay the amount.
And Whereas, if you fail to appear before the undersigned at the aforesaid date and time after filing objections, if any, the undersigned shall proceed to pass the final order under section 126 3 , based on the objection filed by you and evidence available on record.
Aggrieved by the judgment of the High Court, the appellants have filed the present appeal by way of a special leave petition before this Court.
And Whereas if you fail to file the objection within 30 days from receipt hereof, the undersigned shall presume that you have numberobjection to the provisional assessment and the undersigned shall proceed to pass final order u s 126 3 on assessment of electricity charges payable by you.
Even if the case advanced by the appellants against the respondent without prejudice and for the sake of argument is admitted, even then, at best, the demand companyld be raised under Regulation 82 of the Orissa Electricity Regulatory Commission Distribution Condition of Supply Regulations, 2004 for short, the Regulations .
This claim of the respondent was companytested by the appellants, as according to them, unauthorized use of electricity as defined under Section 126 will companye into play as per clause b of the Explanation appended to Section 126 of the 2003 Act.
This was companyputed for 15 months at the rate of Rs.200 per KVA i.e., tariff for large industry multiplied by two times, aggregating to the claimed amount.
If any abnormality detected in Dump, it will be intimated later on.
The demand was raised, assessing the companysumer for the period from June 2008 to August 2009 for a sum of Rs.7,77,300/ .
On 25 th July, 2009, provisional assessment order bearing No.854 was issued by the appellants to the respondent.
Swatanter Kumar, J. Leave granted.
On 10th June, 2009, the Executive Engineer, Jeypore Electrical Division and SDO, Electrical MRT Division, Jeypore inspected the business premises of the respondents unit and dump was companyducted.
