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
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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”).
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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
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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:
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-
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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
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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
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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
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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
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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
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
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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.
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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
21a 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