Assessing … vs Appellate … on 13 July, 2017

HIGH COURT OF ORISSA : CUTTACK

W.P.(C) NO. 13047 OF 2015

In the matter of an application under Articles 226 and 227 of
the Constitution of India.

———–

AFR
Assessing Officer-cum-Executive …….. Petitioner
Engineer (Electrical), WESCO,
Rajgangpur.

-Versus-

Appellate Authority-cum- ……… Opp. Parties
Electrical Inspector and another.

For petitioner : Mr. P.K. Mohanty, Sr. Counsel
along with M/s D.N. Mohapatra,
J. Mohanty, P.K. Pasayat,
S.N. Das and A. Das, Advocates.

For opp. parties : Mr. S.S. Das, Sr. Counsel
along with M/s (Smt.) B.Mohanty,
S. Modi and S. Das,
Advocates.

(O.P. No.2)

—————

PRESENT

THE HON’BLE DR. JUSTICE B.R. SARANGI

————————————————————————
Date of argument: 28.06.2017 : Date of Judgment:13.07.2017

————————————————————————
2

DR. B.R. SARANGI, J. M/s Satguru Metals Power Private

Limited-opposite party no.2 is a power intensive industry having

consumer No.358 (PII) RRKL/3-0191 with contract demand of

5700 KVA under the petitioner-Western Electricity Supply

Company of Orissa (for short ‘WESCO’), operating at

Rajgangpur in the district of Sundergarh. For availing such

power supply, opposite party no.2 entered into an agreement

with the petitioner on 05.06.2009. A surprise check was

conducted by the officers of the petitioner in the night of

11.12.2010 and it was detected that opposite party no.2, by

illegal and unauthorized means, abstracting power supply from

33 KV line of the distribution system as per explanation

appended to sub-section (6) of Section 126 of the Electricity

Act, 2003. Consequentially, a final assessment was done

demanding Rs.2,13,02,241/- pursuant to the order dated

29.12.2010. Due to non-payment of such amount, power supply

was disconnected to the premises of opposite party no.2 for

such unauthorized use of power as per Regulation-43 of the

OERC Distribution (Conditions of Supply) Code, 2004

(hereinafter referred to as “Code, 2004”).
3

2. Challenging such final assessment order dated

29.12.2010 and disconnection notice issued by the petitioner,

opposite party no.2 filed W.P.(C) Nos.176 and 763 of 2011

before this Court. Pursuant to the interim order of this Court,

opposite party no.2 deposited a sum of Rs.50.00 lakhs for stay

of disconnection notice. Finally, this Court did not interfere and

disposed of those writ petitions vide order dated 11.09.2012

holding as not maintainable and permitted opposite party no.2

to prefer appeal within a period of 30 days from the date of the

order against the final assessment order under Section 127 of

the Electricity Act, 2003.

3. Instead of preferring appeal before the statutory

appellate authority within the time stipulated, opposite party

no.2 challenged the order of the learned Single Judge dated

11.09.2012 by filing W.A. No. 425 of 2012 before the Division

Bench, which was also dismissed vide order dated 20.12.2012

stating inter alia that there was an efficacious alternative

remedy available to the consumer for redressal of its grievance

by filing an appeal under Section 127 of the Electricity Act,

2003. Consequentially, opposite party no.2 filed appeal under

Section 127 of the Electricity Act, 2003 and, after due
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adjudication, the appellate authority passed an order on

06.06.2015 holding that opposite party no.2 was involved in

unauthorized use of electricity only for two months, thereby

reduced the final assessment amount from Rs.2,13,02,241/- to

Rs.31,01,130/-. Being aggrieved by the said order of the

appellate authority dated 06.06.2015, this application has been

filed.

4. Mr. P.K. Mohanty, learned Senior Counsel appearing

along with Mr. P.K. Pasayat, learned counsel for the petitioner

contended that the appellate authority had not taken into

consideration the question of limitation, as there was inordinate

delay in preferring appeal, and the appeal should have been

rejected on the ground of limitation, as it was not preferred

along with the application for condonation of delay. Apart from

the same, it is further contended that the period of assessment

was not properly appreciated by the appellate authority and

more so Transmission and Distribution (T D) losses on the

basis of dump report was not appropriated on correct basis for

ascertaining the exact period of unauthorized use of electricity

in a specific case of theft of electricity by means of tapping. To

substantiate his contention, he has relied upon the judgments of
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this Court in Smt. Geeta Mishra v. State of Orissa, 2009

(Supp.-II) OLR 374, Executive Engineer, Southern

Electricity Supply Company of Orisa Limited (SOUTHCO)

v. Sri Seetaram Rice Mill, (2012) 2 SCC 108 and

Chhattisgarh State Electricity Board v. Central Electricity

Regulatory Commission, AIR 2010 SC 2061.

A date chart along with written note of argument was

filed by learned Senior Counsel for the petitioner raising several

other contentions. On query being made by this Court, Mr. P.K.

Mohanty, learned Senior Counsel confined his argument to the

points, as mentioned above. The other points stated in the

written note of argument, having not been raised before the

appellate authority, were not pressed by learned Senior Counsel

for the petitioner.

5. Mr. S.S. Das, learned Sr. Counsel appearing along

with Smt. B. Mohanty, learned counsel for opposite party no.2,

referring to the appeal memo filed in its counter affidavit as

Annexure-H/2 contended that column-9 thereof clearly

explained the delay in preferring the appeal. It is further

contended that the provisions of Section 125 of the Electricity

Act, 2003 stand completely different from that of Section 127 of
6

the said Act and, as such, there was no delay in preferring the

appeal under Section 127 of the Electricity Act and in the facts

of the present case the judgment relied upon by the petitioner

in Chhattisgarh State Electricity Board (supra) is squarely

applicable to opposite party no.2. The reasons for not filing the

appeal within the prescribed period, as mentioned in the appeal

memo itself, having been considered by the appellate authority,

no illegality or irregularity was committed so as to warrant

interference by this Court. It is further contended that pursuant

to the interim order passed by this Court in the earlier writ

petitions, i.e., W.P.(C) No.176 and 763 of 2011, opposite party

no.2 deposited Rs.50.00 lakhs pursuant to the order dated

18.03.2011 and subsequently deposited an amount of

Rs.56,51,120/- in order to prefer statutory appeal. Thereby,

opposite party no.2 has already deposited more than one crores

of rupees against the order passed by the appellate authority to

deposit a sum of Rs.31,01,130/-. As the petitioner had not

challenged the order passed by the appellate authority, the

same is binding on it and, therefore, excluding Rs.31,01,130/-

(which was directed by the appellate authority to be paid by

opposite party no.2), the balance amount should be refunded to
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opposite party no.2. It is further contended that this Court

passed an order on 13.04.2017 to the following effect-

“in course of hearing, a question was raised as
to whether the opposite party consumer was
drawing the power supply unauthorizedly and
that whether the inspection was caused in his
presence and he was a signatory to the same so
as to admit the fact that he was drawing the
power unauthorizedly”.

but no satisfactory reply has been given by the petitioner to the

above query made by this Court. Consequentially, he prayed for

dismissal of the writ petition. To substantiate his contention, he

placed reliance on the judgment of the apex Court in Collector,

Land Acquisition, Anantnag v. Mst. Katiji, AIR 1987 SC

1353.

6. Having heard learned counsel for the parties and

after perusing the records, since pleadings between the parties

have been exchanged, with the consent of the learned counsel

for the parties, this writ petition is being disposed of finally at

the stage of admission.

7. For just and proper adjudication of the matter,

relevant provisions of the Act and Rules are quoted below:

The Electricity Act, 2003.

Section 126: (Assessment): — (1) If on an inspection of
any place or premises or after inspection of the equipments,
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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 judgment the
electricity charges payable by such person or by any other
person benefited by such use.

(2) The order of provisional assessment shall be served upon
the person in occupation or possession or in charge of the
place or premises in such manner as may be prescribed.

(3) The person, on whom an order has been served under
sub- section (2) shall be entitled to file objections, if any,
against the provisional assessment before the assessing
officer, who shall, after affording a reasonable opportunity of
hearing to such person, pass a final order of assessment
within thirty days from the date of service of such order of
provisional assessment of the electricity charges payable by
such person.

(4) Any person served with the order of provisional
assessment, may, accept such assessment and deposit the
assessed amount with the licensee within seven days of
service of such provisional assessment order upon him:

(5) If the assessing officer reaches to the conclusion that
unauthorised use of electricity has taken place, the
assessment shall be made for the entire period during which
such unauthorized use of electricity has taken place and if,
however, the period during which such unauthorised use of
electricity has taken place cannot be ascertained, such
period shall be limited to a period of twelve months
immediately preceding the date of inspection.

(6) The assessment under this section shall be made at a
rate equal to 1[twice] the tariff rates applicable for the
relevant category of services specified in sub-section (5).
Explanation.- For the purposes of this section,-

(a) “assessing officer” means an officer of a State
Government or Board or licensee, as the case may be,
designated as such by the State Government;

(b) “unauthorised use of electricity” means the usage of
electricity –

(i) by any artificial means; or

(ii) by a means not authorised by the concerned person or
authority or licensee; or

(iii) through a tampered meter; or

(iv) for the purpose other than for which the usage of
electricity was authorised; or
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(v) for the premises or areas other than those for which the
supply of electricity was authorized.”

Section 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.

(3) The appellate authority referred to in sub-section (1)
shall dispose of the appeal after hearing the parties and pass
appropriate order and send copy of the order to the
assessing officer and the appellant.

(4) The order of the appellate authority referred to in sub-
section (1) passed under sub-section (3) shall be final.

(5) No appeal shall lie to the appellate authority referred to
in sub-section (1) against the final order made with the
consent of the parties.

(6) When a person defaults in making payment of assessed
amount, he, in addition to the assessed amount shall be
liable to pay, on the expiry of thirty days from the date of
order of assessment, an amount of interest at the rate of
sixteen per cent, per annum compounded every six months.”

xx xx xx

Section 135. (Theft of Electricity):-(1) Whoever,
dishonestly.

(a) taps, makes or causes to be made any connection with
overhead, underground or under water lines or cables, or
service wires, or service facilities of a licensee or supplier as
the case may be; or

(b) tampers a meter, installs or uses a tampered meter,
current reversing transformer, loop connection or any other
device or method which interferes with accurate or proper
registration, calibration or metering of electric current or
otherwise results in a manner whereby electricity is stolen or
wasted; or

(c) damages or destroys an electric meter, apparatus,
equipment, or wire or causes or allows any of them to be so
10

damaged or destroyed as to interfere with the proper or
accurate metering of electricity,

(d) uses electricity through a tampered meter; or

(e) uses electricity for the purpose other than for which the
usage of electricity was authorised, so as to abstract or
consume or use electricity shall be punishable with
imprisonment for a term which may extend to three years or
with fine or with both:

READ  Rachana Vs. Jayesh on 16 October, 2008

Provided that in a case where the load abstracted,
consumed, or used or attempted abstraction or attempted
consumption or attempted use –

(i) does not exceed 10 kilowatt, the fine imposed on first
conviction shall not be less than three times the financial
gain on account of such theft of electricity and in the event
of second or subsequent conviction the fine imposed shall
not be less than six times the financial gain on account of
such theft of electricity;

(ii) exceeds 10 kilowatt, the fine imposed on first conviction
shall not be less than three times the financial gain on
account of such theft of electricity and in the event of second
or subsequent conviction, the sentence shall be
imprisonment for a term not less than six months, but which
may extend to five years and with fine not less than six
times the financial gain on account of such theft of
electricity:

Provided further that in the event of second and subsequent
conviction of a person where the load abstracted, consumed,
or used or attempted abstraction or attempted consumption
or attempted use exceeds 10 kilowatt, such person shall also
be debarred from getting any supply of electricity for a
period which shall not be less than three months but may
extend to two years and shall also be debarred from getting
supply of electricity for that period from any other source or
generating station:

Provided also that if it is proved that any artificial means or
means not authorized by the Board or licensee or supplier,
as the case may be, exist for the abstraction, consumption
or use of electricity by the consumer, it shall be presumed,
until the contrary is proved, that any abstraction,
consumption or use of electricity has been dishonestly
caused by such consumer.

(1A) Without prejudice to the provisions of this Act, the
licensee or supplier, as the case may be, may, upon
detection of such theft of electricity, immediately disconnect
the supply of electricity:

Provided that only such officer of the licensee or supplier, as
authorized for the purpose by the Appropriate Commission
or any other officer of the licensee or supplier, as the case
may be, of the rank higher than the rank so authorised shall
disconnect the supply line of electricity:
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Provided further that such officer of the licensee or supplier,
as the case may be, shall lodge a complaint in writing
relating to the commission of such offence in police station
having jurisdiction within twenty four hours from the time of
such disconnection:

Provided also that the licensee or supplier, as the case may
be, on deposit or payment of the assessed amount or
electricity charges in accordance with the provisions of this
Act, shall, without prejudice to the obligation to lodge the
complaint as referred to in the second proviso to this clause,
restore the supply line of electricity within forty-eight hours
of such deposit or payment.]

(2) Any officer of the licensee or supplier as the case may
be, authorized in this behalf by the State Government may –

(a) enter, inspect, break open and search any place or
premises in which he has reason to believe that electricity
has been or is being, used unauthorisedly;

(b) search, seize and remove all such devices, instruments,
wires and any other facilitator or article which has been, or
is being, used for unauthorized use of electricity;

(c) examine or seize any books of account or documents
which in his opinion shall be useful for or relevant to, any
proceedings in respect of the offence under sub-section (1)
and allow the person from whose custody such books of
account or documents are seized to make copies thereof or
take extracts therefrom in his presence.

(3) The occupant of the place of search or any person on his
behalf shall remain present during the search and a list of all
things seized in the course of such search shall be prepared
and delivered to such occupant or person who shall sign the
list:

Provided that no inspection, search and seizure of any
domestic places or domestic premises shall be carried out
between sunset and sunrise except in the presence of an
adult male member occupying such premises.
(4) The provisions of the Code of Criminal Procedure, 1973,
relating to search and seizure shall apply, as far as may be,
to searches and seizure under this Act.”

xx xx xx

Section 163. (Power for licensee to enter premises
and to remove fittings or other apparatus of licensee):

– (1) A licensee or any person duly authorised by a licence
may, at any reasonable time, and on informing the occupier
of his intention, enter any premises to which electricity is, or
has been, supplied by him, of any premises or land, under,
over, along, across, in or upon which the electric supply-
12

lines or other works have been lawfully placed by him for the
purpose of –

(a) inspecting, testing, repairing or altering the electric
supply-lines, meters, fittings, works and apparatus for the
supply of electricity belonging to the licensee; or

(b) ascertaining the amount of electricity supplied or the
electrical quantity contained in the supply; or

(c) removing where a supply of electricity is no longer
required, or where the licensee is authorised to take away
and cut off such supply, any electric supply-lines, meters,
fittings, works or apparatus belonging to the licensee.
(2) A licensee or any person authorised as aforesaid may
also, in pursuance of a special order in this behalf made by
an Executive Magistrate and after giving not less than
twenty-four hours notice in writing to the occupier, –

(a) enter any premises or land referred to in sub-section (1)
for any of the purposes mentioned therein;

(b) enter any premises to which electricity is to be supplied
by him, for the purpose of examining and testing the electric
wires fittings, works and apparatus for the use of electricity
belonging to the consumer.

(3) Where a consumer refuses to allow a licensee or any
person authorised as aforesaid to enter his premises or land
in pursuance of the provisions of subsection (1) or, sub-
section (2), when such licensee or person has so entered,
refuses to allow him to perform any act which he is
authorised by those subsections to perform, or fails to give
reasonable facilities for such entry or performance, the
licensee may, after the expiry of twenty-four hours from the
service of a notice in writing on the consumer, cut off the
supply to the consumer for so long as such refusal or failure
continues, but for no longer.”

Relevant part of Section 3 of Limitation Act, 1963

“3. Bar of limitation- (1) Subject to the provisions contained in
Sections 4 to 24 (inclusive), every suit instituted, appeal
preferred, and application made after the prescribed period shall
be dismissed, although limitation has been set up as a defence.”

Regulation 51 of the OERC
Condition and Supply Code-2004

“51. Access to Consumer’s Premises- For carrying out general
inspection, repair and testing, the Engineer or the staff
authorized by him shall be entitled to enter the premises of a
consumer after informing the consumer or occupier. In case of
unauthorized addition and alteration of equipment, theft and
misappropriation of Energy, diversion of power by passing of
Meter for consumption of electricity, the Engineer or his staff can
disconnect the power of the premises in pursuance of a special
13

order in this behalf made by an Executive Magistrate in
accordance with the
Section 163 of the Act.”

8. The admitted fact, as unfolded from the factual

matrix delineated above, is that opposite party no.2 is a

consumer of electricity under the petitioner and categorized as

power intensive industry as per the provisions contained in the

Electricity Act, 2003 read with the Code, 2004 governing the

field. Due to unauthorized use of electricity, which came to light

pursuant to an inspection conducted in the premises of opposite

party no.2 on 11.12.2010 at 11 PM, provisional assessment was

made under Section 126 (1)(2) of the Electricity Act, 2003

imposing penalty of Rs.2,13,02,241/- under Section 126(3) of

the said Act. The same was refuted by opposite party no.2

stating that no inspection was done because the unit was not

running at the relevant point of time and it was under lock and

key, and that on an erroneous assumption of unauthorized use

of power, such provisional assessment was done by the

Assessing Officer. Such provisional assessment order was

confirmed and final assessment was made without considering

the objection raised by opposite party no.2. Consequentially,

disconnection notice was issued which was challenged before

this Court in W.P.(C) Nos.176 and 763 of 2011 and pursuant to
14

the interim order passed by this Court, a sum of Rs.50.00 lakhs

was deposited in order to avoid disconnection of power supply.

Finally, those writ petitions were disposed of as not

maintainable granting liberty to opposite party no.2 to prefer

appeal within 30 days from the date of passing of the order

before the appellate authority under Section 127 of the

Electricity Act, 2003. But opposite party no.2 preferred writ

appeal, instead of appeal under Section 127 of the Act, which

was also dismissed. Consequentially, opposite party no.2

preferred statutory appeal on 28/31.01.2013 and the appellate

authority passed the order impugned, as indicated hereinbefore.

9. The primary contention of Mr. P.K. Mohanty, learned

Senior Counsel for the petitioner is that Section 127 (1) clearly

stipulates that any person aggrieved by a final order made

under Section 126 may, within thirty days of the said order,

prefer an appeal and, as such, against the final order, opposite

party no.2 did not prefer appeal within time prescribed under

the statute. Rather, he approached this Court by filing writ

petitions and even if, while disposing the writ petitions, this

Court granted 30 days time to prefer appeal, instead of

complying with the same, opposite party no.2 preferred writ
15

appeal and only after disposal of the writ appeal he filed appeal

under Section 127 of the Act which is much beyond the thirty

days period, as prescribed under the Electricity Act, 2003 and as

provided by this Court in writ appeal. Thereby, the appellate

authority could not have been entertained but dismissed the

appeal, as the same was barred by limitation. It is stated that

Sub-section (1) of Section 3 of Limitation Act, 1963 clearly

envisages that subject to the provisions contained in Sections 4

to 24 (inclusive), every suit instituted, appeal preferred, and

application made after the prescribed period shall be dismissed,

although limitation has been set up as a defence.

Reference has been made to Smt. Geeta Mishra

(supra), in paragraph-6 whereof this Court has held that in

terms of Section 3 of the Limitation Act, 1963 no Court shall

have jurisdiction to entertain any suit or application if the same

has been filed after expiry of the period of limitation. The High

Court could not have ignored the said jurisdiction fact.

Reference has also been made to Section 125 of the Electricity

Act, 2003 wherein it is specifically stated that any person

aggrieved by any decision or order of the appellate tribunal may

file an appeal to the Supreme Court within sixty days from the
16

date of communication of the decision or order of the appellate

tribunal to him. Reference has also been made to Chhatisgarh

State Electricity Board (supra). In paragraph-11 thereof, it is

stated that proviso to Section 125 empowers the apex Court to

entertain an appeal filed within a further period of 60 days if it is

satisfied that there was sufficient cause for not filing appeal

within the initial period of 60 days. This shows that the period of

limitation prescribed for filing appeals under Sections 111 (2)

and 125 is substantially different from the period prescribed

under the Limitation Act for filing suits etc. It is evident that

Electricity Act is a special legislation within the meaning of

Section 29 (2) of the Limitation Act, which lays down that where

any special or local law prescribes for any suit, appeal or

application a period of limitation different from the one

prescribed by the schedule, the provisions of Section 3 shall

apply as if such period were the period prescribed by the

schedule and provisions contained in Sections 4 to 24 shall

apply for the purpose of determining any period of limitation

READ  N Narayanan vs Adjudicating Officer, Sebi on 26 April, 2013

prescribed for any suit, appeal or application unless they are not

expressly excluded by the special or local law.
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10. On perusal of the provisions contained in Sections

125 and 127 of the Electricity Act, it appears that they are

totally different from each other and considered on different

context altogether. Part-XI of the Electricity Act, 2003 deals

with appellate tribunal for electricity and Section 111 deals with

appeal to appellate tribunal, whereas Section 125 of the said

chapter deals with appeal before the Supreme Court. More so,

the order passed by the appellate tribunal under Part-XI of the

Electricity Act, 2003 is appealable before the Supreme Court

under Section 125 of the Act itself. Section 125 comes under

Part-XI of the Electricity Act, 2003 whereas Section 127 comes

under Part-XII, i.e., Investigation and Enforcement under the

Electricity Act, 2003. On perusal of the said provisions, Section

127 of the Act provides that any person aggrieved by a final

order under Section 126 may prefer appeal within a period of

thirty days in the prescribed form, verified in such manner and

be accompanied by such fee as may be specified by the State

Commission.

11. A copy of the appeal memo, which was filed before

the appellate authority, has been annexed by opposite party

no.2 as Annexure-H/2 to the counter affidavit. In coloumn-9
18

thereof the reason for delay in preferring the appeal has been

explained to the following effect:

“The Appellant challenged the said provisional assessment
order vide Writ Application No.176 of 2011 in the Hon’ble High
Court of Odisha, Cuttack. The said writ application was
disposed of with a direction to appeal before the appellate
Tribunal. The said order was challenged in writ appeal No.425
of 2012 in the Hon’ble High Court of Odisha. The writ appeal
is disposed of on dated 20.12.2012 to appeal before the
appellate Tribunal under 127 of the
Electricity Act, 2003. The
certified copy is obtained on dated 21.01.2013 and the appeal
is preferred today before the Hon’ble Tribunal as 23.01.2013
to 27.01.2013 were holidays.”

In view of such explanation given for preferring appeal beyond

the prescribed limitation period, it is evident that sufficient

cause has been shown and the appeal has been rightly

entertained by the appellate authority.

Reference has been made by learned counsel for

opposite party no.2 to the ratio decided in Collector, Land

Acquisition, Anantanag (supra). In paragraph-3 of the said

judgment the apex Court has held as follows:-

“The legislature has conferred the power to
condone delay by enacting
Section 5 of the Limitation
Act of 1963 in order to enable the courts to do
substantial justice to parties by disposing of matters on
‘merits’. The expression ‘sufficient cause’ employed by
the legislature is adequately elastic to enable the courts
to apply the law in a meaningful manner which
subserves the ends of justice–that being the life-
purpose for the existence of the institution of courts. It
is common knowledge that this Court has been making
a justifiably liberal approach in matters instituted in this
Court. But the message does not appear to have
percolated down to all the other courts in the hierarchy.

19

And such a liberal approach is adopted on principle as it
is realised that:

(1) Ordinarily a litigant does not stand to benefit by
lodging an appeal late.

(2) Refusing to condone delay can result in a
meritorious matter being thrown out at the very
threshold and cause of justice being defeated. As
against this when delay is condoned the highest that
can happen is that a cause would be decided on merits
after hearing the parties.

(3) ‘Every day’s delay must be explained’ does not
mean that a pedantic approach should be made. Why
not every hour’s delay, every second’s delay? The
doctrine must be applied in a rational common sense
pragmatic manner.

(4) When substantial justice and technical
considerations are pitted against each other, cause of
substantial justice deserves to be preferred for the
other side cannot claim to have vested right in injustice
being done because of a non-deliberate delay.
(5) There is no presumption that delay is occasioned
deliberately, or on account of culpable negligence, or on
account of mala fides. A litigant does not stand to
benefit by resorting to delay. In fact he runs a serious
risk.

(6) It must be grasped that judiciary is respected
not on account of its power to legalise injustice on
technical grounds but because it is capable of removing
injustice and is expected to do so.

Making a justice-oriented approach from this
perspective, there was sufficient cause for condoning
the delay in the institution of the appeal. The fact that it
was the ‘State’ which was seeking condonation and not
a private party was altogether irrelevant. The doctrine
of equality before law demands that all litigants,
including the State as a litigant, are accorded the same
treatment and the law is administered in an even-
handed manner. There is no warrant for according a
step-motherly treatment when the ‘State’ is the
applicant praying for condonation of delay. In fact
experience shows that on account of an impersonal
machinery (no one in charge of the matter is directly hit
or hurt by the judgment sought to be subjected to
appeal) and the inherited bureaucratic methodology
imbued with the note-making, file-pushing, and
passing-on-the-buck ethos, delay on its part is less
difficult to understand though more difficult to approve.
In any event, the State which represents the collective
cause of the community, does not deserve a litigant-
20

non-grata status. The courts therefore have to be
informed with the spirit and philosophy of the provision
in the course of the interpretation of the expression
‘sufficient cause’. So also the same approach has to be
evidenced in its application to matters at hand with the
end in view to do even-handed justice on merits in
preference to the approach which scuttles a decision on
merits.”

12. Considering from different angle that Section 14 of

the Limitation Act is applicable to the present context, as the

matter was pending before this Court in writ application, as well

as in writ appeal, the said period is liable to be excluded while

computing the period of limitation in view of the provisions

contained in Section 14 of the Limitation Act, which reads thus.

“14. Exclusion of time of proceeding bona fide in
court without jurisdiction. —

(1) In computing the period of limitation for any suit the
time during which the plaintiff has been prosecuting with
due diligence another civil proceeding, whether in a court
of first instance or of appeal or revision, against the
defendant shall be excluded, where the proceeding relates
to the same matter in issue and is prosecuted in good
faith in a court which, from defect of jurisdiction or other
cause of a like nature, is unable to entertain it.

(2) In computing the period of limitation for any
application, the time during which the applicant has been
prosecuting with due diligence another civil proceeding,
whether in a court of first instance or of appeal or
revision, against the same party for the same relief shall
be excluded, where such proceeding is prosecuted in good
faith in a court which, from defect of jurisdiction or other
cause of a like nature, is unable to entertain it.

(3) Notwithstanding anything contained in rule 2 of Order
XXIII of the Code of Civil Procedure, 1908 (5 of 1908),
the provisions of sub-section (1) shall apply in relation to
21

a fresh suit instituted on permission granted by the court
under rule 1 of that Order where such permission is
granted on the ground that the first suit must fail by
reason of a defect in the jurisdiction of the court or other
cause of a like nature. Explanation.– For the purposes of
this section,–

(a) in excluding the time during which a former civil
proceeding was pending, the day on which that
proceeding was instituted and the day on which it ended
shall both be counted;

(b) a plaintiff or an applicant resisting an appeal shall be
deemed to be prosecuting a proceeding;

(c) misjoinder of parties or of causes of action shall be
deemed to be a cause of a like nature with defect of
jurisdiction.”

13. Similar question had come up for consideration in

Kartik K. Parekh v. Special Director, Directorate of

Enforcement, AIR 2012 SC 683 and the apex Court in

paragraphs 26 and 27 of the judgment came to hold as follows:

“26. The question whether Section 14 of the Limitation Act
can be relied upon for excluding the time spent in
prosecuting remedy before a wrong forum was considered
by a two-Judge Bench in
State of Goa v. Western Builders
(AIR 2006 SC 2525 : 2006 AIR SCW 3436) (supra) in the
context of the provisions contained in Arbitration and
Conciliation Act, 1996. The Bench referred to the provisions
of the two Acts and observed:

“19. There is no provision in the whole of the Act
which prohibits discretion of the court. Under
Section
14 of the Limitation Act if the party has been
bonafidely prosecuting his remedy before the court
which has no jurisdiction whether the period spent in
that proceedings shall be excluded or not. Learned
counsel for the respondent has taken us to the
provisions of the Act of 1996: like
Section 5, Section
8(1),
Section 9, Section 11, sub-sections (4), (6),
22

(9) and sub-section (3) of Section 14, Section 27,
Sections 34, 36, 37, 39(2) and (4), Section 41, sub-
section (2),
Sections 42 and 43 and tried to
emphasise with reference to the aforesaid sections
that wherever the legislature wanted to give power
to the court that has been incorporated in the
provisions, therefore, no further power should lie in
the hands of the court so as to enable to exclude the
period spent in prosecuting the remedy before other
forum. It is true but at the same time there is no
prohibition incorporated in the Statute for curtailing
the power of the court under
Section 14 of the
Limitation Act. Much depends upon the words used in
the Statute and not general principles applicable. By
virtue of
Section 43 of the Act of 1996, the Limitation
Act applies to the proceedings under the Act of 1996
and the provisions of the
Limitation Act can only
stand excluded to the extent wherever different
period has been prescribed under the Act, 1996.
Since there is no prohibition provided under
Section
34, there is no reason why
Section 14 of the
Limitation Act (sic not) be read in the Act of 1996,
which will advance the cause of justice. If the
Statute is silent and there is no specific prohibition
then the Statute should be interpreted which
advances the cause of justice.”

27. The same issue was again considered by the three-
Judge Bench in
Consolidated Engineering Enterprises v.
Principal Secretary, Irrigation Department (AIR 2009 SC
(Supp) 396 : 2008 AIR SCW 4182) (supra) to which
reference has been made hereinabove. After holding that
Section 5 of the Limitation Act cannot be invoked for
condonation of delay, Panchal, J. (speaking for himself and
Balakrishnan, C.J.) observed:

“21. Section 14 of the Limitation Act deals with
exclusion of time of proceeding bona fide in a court
without jurisdiction. On analysis of the said section,
it becomes evident that the following conditions must
be satisfied before
Section 14 can be pressed into
service:

(1) Both the prior and subsequent
proceedings are civil proceedings prosecuted
by the same party;

23

(2) The prior proceeding had been
prosecuted with due diligence and in good
faith;

(3) The failure of the prior proceeding was
due to defect of jurisdiction or other cause of
like nature;

(4) The earlier proceeding and the latter
proceeding must relate to the same matter in
issue and;

(5) Both the proceedings are in a court.

22. The policy of the section is to afford
protection to a litigant against the bar of limitation
when he institutes a proceeding which by reason of
some technical defect cannot be decided on merits
and is dismissed. While considering the provisions of
Section 14 of the Limitation Act, proper approach will
have to be adopted and the provisions will have to
be interpreted so as to advance the cause of justice
rather than abort the proceedings. It will be well to
bear in mind that an element of mistake is inherent
in the invocation of
Section 14. In fact, the section is
intended to provide relief against the bar of limitation
in cases of mistaken remedy or selection of a wrong
forum. On reading
Section 14 of the Act it becomes
clear that the legislature has enacted the said section
to exempt a certain period covered by a bona fide
litigious activity. Upon the words used in the section,
it is not possible to sustain the interpretation that the
principle underlying the said section, namely, that
the bar of limitation should not affect a person
honestly doing his best to get his case tried on
merits but failing because the court is unable to give
him such a trial, would not be applicable to an
application filed under
Section 34 of the Act of 1996.
The principle is clearly applicable not only to a case
in which a litigant brings his application in the court,
that is, a court having no jurisdiction to entertain it
but also where he brings the suit or the application in
the wrong court in consequence of bona fide mistake
or (sic of) law or defect of procedure. Having regard
to the intention of the legislature this Court is of the
24

firm opinion that the equity underlying Section 14
should be applied to its fullest extent and time taken
diligently pursuing a remedy, in a wrong court,
should be excluded.

23. At this stage it would be relevant to
ascertain whether there is any express provision in
the Act of 1996, which excludes the applicability of
Section 14 of the Limitation Act. On review of the
provisions of the Act of 1996 this Court finds that
there is no provision in the said Act which excludes
the applicability of the provisions of
Section 14 of the
Limitation Act to an application submitted under
Section 34 of the said Act. On the contrary, this
Court finds that
Section 43 makes the provisions of
the
Limitation Act, 1963 applicable to arbitration
proceedings. The proceedings under
Section 34 are
for the purpose of challenging the award whereas the
proceeding referred to under
Section 43 are the
original proceedings which can be equated with a
suit in a court. Hence,
Section 43 incorporating the
Limitation Act will apply to the proceedings in the
arbitration as it applies to the proceedings of a suit
in the court. Sub-section (4) of
Section 43, inter alia,
provides that where the court orders that an arbitral
award be set aside, the period between the
commencement of the arbitration and the date of the
order of the court shall be excluded in computing the
time prescribed by the
Limitation Act, 1963, for the
commencement of the proceedings with respect to
the dispute so submitted. If the period between the
commencement of the arbitration proceedings till the
award is set aside by the court, has to be excluded in
computing the period of limitation provided for any
proceedings with respect to the dispute, there is no
good reason as to why it should not be held that the
provisions of
Section 14 of the Limitation Act would
be applicable to an application submitted under
Section 34 of the Act of 1996, more particularly
where no provision is to be found in the Act of 1996,
which excludes the applicability of
Section 14 of the
Limitation Act, to an application made under
Section
34 of the Act. It is to be noticed that the powers
under
Section 34 of the Act can be exercised by the
court only if the aggrieved party makes an
application. The jurisdiction under
Section 34 of the
25

Act, cannot be exercised suo motu. The total period
of four months within which an application, for
setting aside an arbitral award, has to be made is
not unusually long.
Section 34 of the Act of 1996
would be unduly oppressive, if it is held that the
provisions of
Section 14 of the Limitation Act are not
applicable to it, because cases are no doubt
conceivable where an aggrieved party, despite
exercise of due diligence and good faith, is unable to
make an application within a period of four months.
From the scheme and language of
Section 34 of the
Act of 1996, the intention of the legislature to
exclude the applicability of
Section 14 of the
Limitation Act is not manifest. It is well to remember
that
Section 14 of the Limitation Act does not
provide for a fresh period of limitation but only
provides for the exclusion of a certain period. Having
regard to the legislative intent, it will have to be held
that the provisions of
Section 14 of the Limitation
Act, 1963 would be applicable to an application
submitted under
Section 34 of the Act of 1996 for
setting aside an arbitral award.”

14. From the above, it is evident that the apex Court has

also taken note of the judgment of the apex Court in State of

Goa v. Western Builders, JT 2001 (8) SC 271 and also in

Consolidated Engineering Enterprises v. Principal

Secretary, Irrigation Department, JT 2008 (6) SC 22 and

has come to a conclusion that the policy of Section 14 is to

afford protection to a litigant against the bar of limitation when

he institutes a proceeding which, by reason of some technical

defect, cannot be decided on merits and is dismissed.

Therefore, while considering the provisions of Section 14 of the

Limitation Act, proper approach will have to be adopted and the
26

provisions will have to be interpreted so as to advance the

cause of justice rather than abort the proceedings. It will be

well to bear in mind that an element of mistake is inherent in

the invocation of Section 14. The section is intended to provide

relief against the bar of limitation in cases of mistaken remedy

or selection of a wrong forum. On reading of Section 14 of the

Act it becomes clear that the legislature has enacted the said

section to exempt a certain period covered by a bona fide

litigious activity. Needless to say that in the present context

Section 5 of the Limitation Act may not have any application,

but while applying such provisions condonation of delay has to

be made on showing the “sufficient case”. But the said

provision is not applicable to the case of this nature, as because

due to pendency of the writ application writ appeal before this

Court the petitioner approached the appellate authority at a

belated stage. Reason for approaching the appellate authority

is because of the pendency of the writ application writ appeal

before this Court. Therefore, the petitioner is entitled to avail

the benefit of Section 14 of the Limitation Act to exempt the

period covered by bona fide litigious activity.
27

15. The above being the settled position of law, in view

of the explanation given in clause-9 of the appeal memo the

appellate authority having entertained the appeal disposed of

the same on merits by affording opportunity of hearing to the

parties, the petitioner cannot and could not have raised ground

of limitation at this point of time. Consequentially, the primary

contention raised by the learned counsel for the petitioner that

the appeal preferred by opposite party no.2 was barred by

limitation, cannot sustain in the eye of law.

16. In paragraph-11 of Chhattisgarh State Electricity

Board (supra), it has been specifically stated that the brief

analysis of the scheme of the Electricity Act shows that it is a

self-contained comprehensive legislation, which not only

regulates generation, transmission and distribution of electricity

by public bodies and encourage public sector participation in the

process but also ensures creation of special adjudicatory

mechanism to deal with the grievance of any person aggrieved

by an order made by an adjudicating office under the Act except

under Section 127 or an order made by the appropriate

commission. The apex Court having clarified the position

excluding Section 127 of the Electricity Act from the special
28

adjudicating mechanism, the applicability of Limitation Act vis-à-

vis the rigorous of the limitation prescribed under the said Act

should be considered liberally. Moreover, paragraph-11

specifically deals with the provisions contained under Section

125 of the Electricity Act, which is not applicable to the present

context. As such, the ratio decided in Chhattisgarh State

Electricity Board (supra) is not applicable to the present

context because the same was dealt with Section 125 of the

Electricity Act, 2003 whereas the case in hand relates to Section

127 of the said Act. In view of such position, this Court is of the

considered view that the appellate authority having entertained

the appeal by considering the reasons for delay in preferring the

same, which has been well explained in the appeal memo, this

Court finds no illegality or irregularity in the same and negatives

the contention raised by learned counsel for the petitioner.

17. The next contention was raised by learned counsel

for the petitioner that opposite party no.2, having consumed the

electricity by tapping, the same amounts to commission of theft

of power as contemplated under Section 135 of the Electricity

Act, but no material was produced before this Court to draw

such conclusion with regard to theft of electricity by opposite
29

party no.2. On the other hand, it is the case of the petitioner

that at 11 PM on 11.12.2010 an inspection was conducted in

presence of the WESCO staff, wherein opposite party no.2 was

found to be using electricity unauthorizedly, for which

provisional assessment was made under Section 126 (1) of the

Act, and that there is a difference between theft of electricity

vis-à-vis unauthorized use of power of a consumer. Be that as it

may, if opposite party no.2 was using electricity unauthorizedly

and an inspection was caused at 11 PM on 11.12.2010, the

same should have been done in presence of the consumer-

opposite party no.2 as required under the law. In spite of the

order passed by this Court on 13.04.2017, nothing has been

produced by the petitioner to substantiate that inspection was

conducted in presence of the consumer and he was a signatory

to the inspection report for unauthorized use of power.

18. In Executive Engineer, Southern Electricity

Supply Company of Orissa Limited (supra), the apex Court

had the occasion to deal with the construction of words

“unauthorized use” and “means”. In paragraphs-36 to 51 of the

said judgment, the apex Court vividly discussed the same and

observed that by using expression “means” would not always be
30

open to such a strict construction that the terms mentioned in a

definition clause under such expression would have to be

inevitably treated as being exhaustive. There can be large

number of cases and examples where even the expression

“means” can be construed liberally and treated to be inclusive

but not completely exhaustive of the scope of the definition, of

course, depending upon the facts of a given case and the

provisions governing that law.

19. Reliance was also placed on the judgment dated

01.02.2012 of the High Court of Punjab and Haryana rendered

in CWP No. 14151 of 2010 (Gurpreet Kaur v. PSEB and

others), which deals with the provisions contained in sub-

section (5) of Section 126 of the Electricity Act, 2003, which

says that wherever the period of unauthorized use is not

ascertainable, the maximum period of 12 months has been

prescribed for calculating the amount of theft of energy. But,

here is a case where unauthorized use of power has been

ascertained by the authority concerned, while adjudicating the

matter and determined the liability of consumer-opposite party

no.2, and in appeal itself the appellate authority reduced the
31

penalty from Rs.2,13,02,241/- to Rs.31,01,130/- considering

the materials available on record.

20. As it transpires, the appellate authority has directed

to pay a sum of Rs.31,01,130/- in place of Rs.2,13,02,241/-.

Opposite party no.2 having deposited Rs.50,00,000/- on

18.03.2011, pursuant to interim order passed by this Court in

WP(C) No. 176 and 763 of 2011, and subsequently a sum of

Rs.56,51,120/- through RTGS in order to file appeal under

Section 127(2) of the Electricity Act, in total opposite party no.2

had deposited a sum of Rs.1,06,51,120/-. Therefore, excluding

Rs.31,01,130/-, the balance amount of Rs.75,49,990/- is to be

refunded or adjusted in the future electricity bill, which would be

prepared on the basis of the actual consumption of electricity by

opposite party no.2.

21. For the reasons ascribed hereinbefore, this Court

finds no merits in the writ application, which is accordingly

dismissed. No order to cost.

Sd/-

(DR. B.R. SARANGI )
JUDGE

The High Court of Orissa, Cuttack
Dated the 13th July, 2017/Ashok/GDS True copy

Sr. Steno

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