2006 Supreme(Bom) 1168

IN THE HIGH COURT OF BOMBAY
F. I. Rebello and Mrs. V. K. Tahilramani, JJ
RELIANCE ENERGY LTD. And another - Petitioners.
Vs.
CHIEF ENGINEER (ELECTRICAL), PWD DEPARTMENT and another - Respondents.
Advocate Appeared
For respondent No.1: R. W Sawant, Government Pleader
For respondent No.2: V. P. Vaze

Headnote:Electricity Act, 2003 - Sections 126(1) and 135(2) - Unauthorised use of electricity - Inspection of premises and provisional assessment - Apart from the Assessing officer, the inspection carried out by an officer authorised by the State Government under Section 135(2) can also be the basis for making a provisional assessment under Section 126(1) of the Act. - It is open to persons other than those notified under Section 126 of the Electricity Act to carry out an inspection in terms of Section 135(2). Courts while considering the provisions of the Act must take into consideration the object of the enactment. Considering the large number of consumers the company serves and the need for the generating companies to recover from persons who make unauthorised use of electricity, their legal dues. It will, therefore, be possible to read Section 126 to mean that the assessing officer need not restrict himself to the inspection carried out personally by the Assessing Officer as notified in the explanation to Section 126, but can rely on the record and inspection carried out by an officer authorised under Section 135(2) of the Act in the discharge of his duties. The only limitation would be that in such a case, the report prepared by such other authorised officer will have to be made available to the consumer and its evidentiary value will have to be proved by the generating company by allowing such other authorised officer to be examined by the assessee. In these circumstances, to give effect to the object of the Act, it is possible to read into Section 126(1) that apart from the Assessing Officer, the inspection carried out by an officer authorised by the State Government under Section 135(2) can also be the basis for making a provisional assessment under Section 126(1) of the Act.

       Electricity Act, 2003 - Sections 126(5), 56(1) and 145 and Limitation Act, Schedule - Unauthorised use of electricity - The power of Assessing Officer is limited to detection of unauthorised use and to pass an order of recovery for the period of three months or six months as the case may be preceding the inspection and detection of unauthorised use - The remedy of the company to make recovery for additional periods for unauthorised use is not limited - Civil Court has jurisdiction to entertain a suit for dues for any other period which in law is recoverable and not barred by the law of limitation. - All that Section 126(5) of the Electricity Act sets out is that the Assessing Officer if he reaches the conclusion that there is unauthorised use of electricity, then considering the presumption can hold that there is assessment of such unauthorised use of electricity which was continuing for a period of three months or six months, immediately preceding the date of inspection as set out earlier. This presumption of three months or six months can be rebutted by the person, occupier or possessor of such premises or place. This would indicate that the section does not prohibit the recovery for the period under which company could have normally recovered its dues in terms of the schedule to the Limitation Act. The embargo is limited to the extent of raising presumption which also is rebuttable presumption for the period of three months or six months respectively. Section 126(5) is therefore, not a special provision provided for limitation independent of the provisions of the Limitation Act. The consequence of such assessment are, for that period, in terms of Section 126(6), the assessment is at a rate equal to one and a half times the applicable tariff. The remedy of the company to make recovery for additional periods for unauthorised use is not limited. A careful reading of Section 145, will show that the ouster of jurisdiction is in respect of detection of unauthorised use. Neither Section 126 or Section 127, ousts the jurisdiction of the civil Court for entertaining a suit at the instance of a generating company for any other period, which in law is recoverable and not barred by the law of limitation as is clear from a reading of Section 56(1) of the Act. To limit the right of the company to make recovery for a limited period of three months or six months as the case may be in the absence of an express bar of recovery for a period beyond three months or six months, would defeat the object of the Act and the rights of the generating company.