Inspection under Section 126 Electricity Act vitiated if site mahazar prepared by Sub-Engineer instead of designated Assistant Engineer Assessing Officer.

JUDGMENT :

P.M. MANOJ, J.

1. The writ petition is preferred challenging Ext.P7, P8, P9, P10, P11 and P15. Specifically, Ext.P7 is the site mahazar; P8 is the penal bill; P9 is the provisional assessment order; P10 is the calculation statement; P11 is the notice directing regularisation; and P15 is the final assessment order passed by the 2nd respondent.

2. The petitioner is engaged in the processing, production, and sale of wheat products. With the intention of entering the retail segment via 'Chakki Atta' consumer packets, the petitioner submitted an application to enhance the contract demand from 280 KVA to 400 KVA.

3. During the pendency of this application, an inspection was conducted at the petitioner’s premises on 17.01.2017 by the Anti- Power Theft Squad, Kottayam, under Section 126 of the Electricity Act. Consequently, Ext.P7 site mahazar was prepared. This was followed by Ext.P9 provisional assessment order, accompanied by Ext.P8 penal bill for Rs.1,17,36,306/- and Ext.P10 calculation statement. Subsequently, a notice directing regularisation of connected load/contract demand was issued via Ext.P11. The petitioner submitted their objections and a detailed argument note, as evidenced by Exts.P12 and P13. Notwithstanding these submissions, the 2^nd respondent proceeded to finalise the assessment.

4. The primary thrust of the petitioner’s argument is two-fold. Firstly, it is contended that the inspection conducted under Section 126 of the Electricity Act,2003 (for short ‘the Act’) is vitiated, as the inspecting authority was not the one contemplated under the provision. Furthermore, it is contended that no inspection was conducted in accordance with Regulations 77(1) and (2) of the Electricity Supply Code, 2014 (for short ‘the Supply Code’) and the inspection as carried out stands in violation of Regulation 99(8) of the Supply Code.

5. Secondly, the learned counsel for the petitioner contends that there was no 'unauthorised use of electricity' to warrant proceedings under Section 126. As defined therein, 'unauthorised use' refers to the usage of electricity by any artificial means, by a means not authorised by the concerned person or authority or licensee, through a tampered meter, for a purpose other than that authorised, or for premises other than those for which supply was granted. As no such findings were made at the petitioner’s premises, it is submitted that the petitioner falls within the exemption carved out under Regulation 153(15) of the Supply Code.

6. It is further contended that the Assessing Officer failed to inspect the premises as mandated under Section 126 of the Act and Regulation 155(2) of the Supply Code. These provisions specifically require the Assessing Officer to personally inspect the consumer’s premises before initiating provisional assessment proceedings.

7. In the present case, the site mahazar was prepared by a Sub-Engineer of the 1^st respondent, who does not qualify as an 'Assessing Officer' for the purposes of. Consequently, the mandatory statutory requirement of inspection by the designated Assessing Officer was bypassed during the inspection conducted on 17.01.2017. On these grounds, it is submitted that the orders and notices issued under Exts.P7 to P11 and P15 are ultra vires the Electricity Act and the Electricity Supply Code.

8. It is further contended that the 2^nd respondent lacked the authority to issue a penal assessment bill for excess connected load, especially since the petitioner had already applied for a load enhancement as evidenced by Ext.P6. Furthermore, the petitioner submits that the inspection was conducted in direct violation of Regul