Provisional assessment under Electricity Act Section 126 invalid without inspection of consumer premises or records maintained by consumer; licensee’s internal MRI/consumer records insufficient basis.

JUDGMENT :

Ajay Mohan Goel, J.

By way of this petition, the petitioner has, inter alia, prayed for the following reliefs:-

“i. Set-aside the order dated 15.03.2021 passed by the Respondent No. 2 as being arbitrary and without any jurisdiction.
ii. As the public money is involved and the same should not be made to suffer due to the malafides of the erred officials, this Hon’ble Court may, if it pleases, direct the personal recoveries from the erred officials without prejudicing the right of the petitioner to get the timely payment/interest as per the law and order of the Ombudsman dated 05.03.2021.”

2. The case of the petitioner is that on 27.06.2015, the respondent-Board raised a demand of Rs. 1,52,12,681/- from the petitioner on the grounds that during the scrutiny of the MRI energy data obtained from the energy meter installed in the premises of the petitioner with effect from August 2014 to May 2015, it was observed that energy meter was tampered to record the actual energy consumer during that period. According to the petitioner, after the receipt of the said demand, the petitioner agitated the same by way of various representations and when no response was received thereto, it approached the Consumer Grievance Redressal Forum in the month of August, 2015, against the said demand. The Consumer Forum dismissed the complaint of the petitioner on 20.12.2016 for want of jurisdiction. The petitioner thereafter approached the Divisional Commissioner by way of an Appeal and the Divisional Commissioner after hearing the parties, dismissed the same on the ground of jurisdiction on 14.03.2019 by stating that the demand raised by the Board was not as per the provisions of Section 126 of the Electricity Act, 2003 and, therefore, the Divisional Commissioner could not adjudicate the same under Section 127 of the Electricity Act. The petitioner feeling aggrieved, again approached the learned Consumer Grievance Redressal Forum citing the order passed by the Divisional Commissioner, but the Consumer Grievance Redressal Forum dismissed the complaint of the petitioner on 20.08.2020 without going into the merits thereof by observing that the petitioner should approach the learned Divisional Commissioner as the issue was of tampering, as was alleged by the Board. It is further the contention of the petitioner that against order dated 20.08.2020, passed by the Consumer Grievance Redressal Forum, it again preferred an Appeal before the learned Ombudsman. During the pendency of the proceedings before the learned Ombudsman on 26.02.2021, respondent No.2 set aside their demand by withdrawing the notice.

3. It is further the contention of the petitioner that after withdrawal of the said demand relating to the alleged tampering of the meter, respondent No.2 again in order to harass the petitioner, issued provisional assessment notice dated 15.03.2021 for an amount of Rs.4,55,18,952/- on the same cause and feeling aggrieved, the petitioner has approached this Court against the same.

4. Learned Senior Counsel appearing for the petitioner submitted that the impugned order Annexure P-10 is non est in the eyes of law as the provisional assessment order was passed by the Authority without adhering to the provisions of Section 126 of the Electricity Act, which makes the provisional order void ab initio. Learned Senior Counsel took the Court through the provisions of of the Electricity Act and submitted that the procedure prescribed therein was bre