J.B. Pardiwala, J. - (1.) BY this writ application under Article - 226 of the Constitution of India, the petitioner, a consumer of electricity supplied by the respondent No. 4 company, has prayed for the following reliefs: (a) Be pleased to quash and set aside Section 126 and Section 127 of The Electricity Act, 2003 (Act No. 26 of 2003) as ultra vires the Constitution of India. (b) Be pleased to quash and set aside the Section 145 of The Electricity Act, 2003 (Act No. 36 of 2003) as ultra vires the Constitution of India. (c) Be pleased to quash and set aside the GSR 265(E) dated 16th April 2004. The Appeal to the Appellate Authority Rules, 2004 as ultra vires the Constitution of India and the Parent Act i.e. The Electricity Act, 2003 (Act No. 36 of 2003). (d) Be pleased to quash and set aside Notification styled as "GU -2007 -133 -ELA -1103 -9539 -k" dated September 1, 2007 issued by Energy and Petrochemicals Department, Sachivalaya, Gandhinagar as ultra vires the Constitution of India, 1950 and Parent Act i.e. The Electricity Act, 2003 (Act No. 36 of 2003). (e) Be pleased quash and set aside Notification styled GSR dated 17th August 2006 the Qualifications Powers and Functions of Chief Electrical Inspectors and Electrical Inspectors Rules, 2006 the Constitution of India and the Parent Act i.e. The Electricity Act, 2003 (Act No. 36 of 2003). (f) Be pleased to quash and set aside final Assessment Order dated 22nd February 2010 issued under S. 126 of The Electricity Act, 2003 (Act No. 36 of 2003). (g) Pending Admission, Hearing and Final disposal of this Petition. Be pleased to grant electrical connection to the petitioner. (h) Pending Admission, Hearing and Final disposal of this Petition. Be pleased to stay the recovery proceedings against the petitioner pursuant to the final Assessment Order dated 22.02.2010. (i) Costs of this Petition be awarded. (j) Such further and other relief order or direction which may be just, fit, proper and equitable in the facts and circumstances of the Petition. Facts of the Case: 1.1 The petitioner is a consumer of electricity supplied by the respondent No. 4 company, namely, Dakshin Gujarat Vij Company Ltd., Bambhroli Sub Division, Surat. The Electricity Company has provided a single phase meter to the petitioner bearing No. 2188376 with a Customer No. 18204/11957/7. The respondent No. 4 company has also provided a three phase meter No. 4946873 bearing Customer No. 17294.11957/7 with a sanctioned load of 27 HP. 1.2 It appears that on 22/12/2009, an inspection was carried -out by the Vigilance Officers of the Electricity Company at the premises of the petitioner and during the inspection it was found that the consumption of the electricity by the petitioner was more than the sanctioned load of 29 HP. Such excess consumption of electricity by the petitioner was found to be unauthorized by the Vigilance Officers. 1.3 It also appears from the materials on record that pursuant to the inspection which was carried -out at the premises of the petitioner, a provisional assessment bill was raised by the electricity company for the unauthorized use of the excess load. 1.4 It is the case of the petitioner that in the provisional assessment bill there were blanks and the same was a cyclostyled final assessment order without any reference of any of the objections which were raised by the petitioner at the relevant point of time. 1.5 The petitioner, being dissatisfied with such a provisional assessment bill issued by the Electricity Company, instead of challenging the same before the Appellate Authority U/s. 127 of the Electricity Act, 2003, thought fit to challenge the same before the District Consumer Forum, Surat by filing a Complaint Case No. 97/2000. 1.6 It appears that the District Consumer Forum, Surat refused to entertain such complaint of illegal issuance of a provisional assessment Bill relying on a recent decision of the Apex Court in the case of U.P. Power Corporation Ltd., and Others Vs. Anish Ahmed reported in : 2013 (9) SCALE 334 wherein the Supreme Court held that the Consumer Forum has no jurisdiction to entertain a complaint filed by a consumer or any person against assessment made U/s. 126 of the Electricity Act. In such circumstances, the District Consumer Forum, Surat rejected the complaint filed by the petitioner. 1.7 It appears that thereafter the petitioner thought fit to file the present writ application raising manifold grounds as regards the provisions of the Electricity Act, 2003 and the Rules framed thereunder. 1.8 The petitioner has raised the following questions of law in this petition: 3.1 Whether Sections 126 and 127 of The Electricity Act, 2003 are unconstitutional? 3.2 Whether the GSR 265(E) dated 16th April, 2004. The Appeal to the Appellate Authority Rules, 2004 is ultra vires the Constitution of India and the Parent Act i.e. The Electricity Act, 2003 (Act No. 36 of 2003) 3.3 Whether the Notification styled as "GU -2007 -133 -ELA -1103 -9539 -k" dated September 1, 2007, issued by the Energy and Petrochemicals Department, Sachivalaya, Gandhinagar is ultra vires the Constitution of India and the Parent Act i.e. The Electricity Act, 2003 (Act No. 36 of 2003) 3.4 Whether the Notification styled as GSR dated 17th August 2006, prescribing the Qualifications, Powers and Functions of the Chief Electrical Inspectors and Electrical Inspectors Rules, 2006 is ultra vires the Constitution of India and the Parent Act i.e. The Electricity Act, 2003 (Act No. 36 of 2003). 3.5 Whether fill in the blank, cyclostyle orders can be passed under Sec. 126? 3.6 Whether the Provisional Assessment Order and final Assessment Order is legal, when the Assessing Officer himself carried out the inspection? 3.7 Whether the Appellate Authority constituted under the Act, 2003 is violative of the Constitutional Principles as he has no knowledge of law? 3.8 Whether the Appellate authority i.e. the Chief Electrical Inspector and other Electrical Inspectors are biased as they are appointed by the State Government and also the Appellate Authority under the Scheme of the Act? 3.9 Whether a reasoned order is required to be passed in the final Assessment Order? 3.10 Whether the period of 12 months for extending the unauthorized used by a guess work when the perfect estimate is not possible as provided in Sec. 126 is arbitrary and unreasonable? 3.11 Whether the disconnection of the petitioner's electricity supply without any notice in writing is permissible in law? 3.12 Whether the Assessing Officers can appoint Officers of the licensee?
(2.) SUBMISSIONS on behalf of the petitioner: 2.1 Mr. Masoom K. Shah, the learned advocate appearing for the petitioner, vehemently submitted that Sec. 126 and 127 of the Electricity Act, 2003 deserves to be struck -down as unconstitutional because the scheme of Sec. 126 and 127 is unworkable since there is no judicial scrutiny envisaged. Mr. Shah submitted that not only there is no judicial scrutiny envisaged so far as the scheme of Sec. 126 and 127 of the Act, 2003 is concerned, but the jurisdiction of the Civil Court has also been barred by virtue of the provisions of Sec. 145 of the Act, 2003. 2.2 Mr. Shah submitted that there is only one layer of adjudication so far as the Assessment Order is concerned and the same is treated to be final. According to him such being the position, the pre -requisite of depositing 50% of the bill amount of the provisional assessment before the Appellate Authority is arbitrary and unreasonable. Mr. Shah submitted that the same is ultra vires Articles - 14, 19 and 21 of the Constitution of India. 2.3 Mr. Shah also submitted that the Assessing Officers are appointed by the State Government and on their final assessment, the Consumer is made to deposit 50% of the disputed amount before the consumer is heard by the Appellate Authority. According to Mr. Shah such a scheme could be termed as arbitrary and unreasonable. He would submit that the Assessing Officers who work for the company itself would definitely act in a bias manner so as to benefit the electricity company. 2.4 Mr. Shah has challenged the validity of Sec. 126 of the Act, 2003 on the ground that the concept of period of 12 months immediately preceding the date of inspection for the purpose of assessment once the Assessing Officer reaches to the conclusion that unauthorized use of electricity has taken place is more a guesswork rather than a legal and reasonable approach. 2.5 Mr. Shah submitted that the provisions of Sec. 126(5) of the Act, 2003 defies all logic because every month the inspector would come and record the reading of the meter on the basis of which the bill is being prepared and if that is so and nothing is found to be wrong, then suddenly one fine morning the consumer cannot be asked to pay an amount upto the extent of 12 months. This, according to Mr. Shah, could be termed as arbitrary and against the Wednesbury principle of reasonableness. 2.6 Mr. Shah submitted that the Central Government, in exercise of the powers conferred by Clause -4(2) of Sec. 176 of the Electricity Act, 2003, issued a Notification dated 16/4/2004 by which the State Government has been authorized for the purpose of appeal U/s. 127 of the Act to constitute an Appellate Authority consisting of one or more persons, such that one of the persons shall have knowledge of matter related to assessment of electricity charges and none of them should be directly related to the affairs of the territorial jurisdiction of the Licensee or supplier of the electricity. According to Mr. Shah, this could not have been done because the Parliament has delegated the said power to the Central Government. Once such power has been delegated to the Central Government, then the Central Government has no power to sub -delegate the same in favour of the State Government for the purpose of constituting an appellate authority. 2.7 Mr. Shah submitted that in the aforesaid context the legislature in its wisdom was aware that in most of the States the Electricity Companies are owned by the State and with a view to providing a fair hearing with due compliance of the principles of natural justice, the said power for appointment of an Appellate Authority was, therefore, delegated to the Central Government. Mr. Shah relied on the legal maxim "Delegatus non potest delegare", meaning that "no delegated powers can be further delegated". 2.8 Mr. Shah, in the aforesaid context, further submitted that such sub -delegation is not permissible because the State Government has been conferred with the responsibility to appoint the Assessing Officer and therefore, the legislature in its wisdom conferred the power of appointment of the appellate authority to the Central Government and with a view to strike the balance, the legislature, therefore, thought fit to confer the power upon the Central Government to appoint the Appellate Authority. Therefore, according to Mr. Shah, the Notification dated 16/4/2004 is an example of excessive delegation. 2.9 Mr. Shah submitted that the State Government, on the strength of the Notification dated 16/4/2004 issued by the Central Government has appointed Chief Electric Inspector and other Electric Inspectors as the Appellate Authorities and such persons have no knowledge of law because they are neither lawyers nor retired Judges. According to Mr. Shah they have no judicial mind and, therefore, it is difficult for them to understand the legal concept of fair hearing. 2.10 Mr. Shah challenging the Final Assessment Order dated 22/2/2010 submitted that the same is nothing but a proforma order with blanks all over the place. 2.11 Mr. Shah also submitted that the decision of the Assessing Officer could be termed as a quasi judicial decision and therefore, it should contain reasons while over -ruling the objections raised by the Consumer. No reasons are recorded for reaching to a particular conclusion and nothing is being discussed so far as the objections which are raised by the consumer are concerned. 2.12 Mr. Shah last submitted that Sec. 145 of the Act, 2003 which bars the jurisdiction of the Civil Court so far as any matter which an Assessing Officer referred to in Sec. 126 or an Appellate Authority referred to in Sec. 127 of the Act or the Adjudicating Officer appointed under the Act is empowered to determine is concerned, the same is arbitrary and unreasonable. According to him, having regard to the scheme of the Act, the Civil Court's jurisdiction could not have been barred and the legislature ought to have kept the option open for the consumer to challenge such arbitrary or illegal assessment before the competent Civil Court where the consumer would get the opportunity to lead necessary evidence and the authority would also be a legal mind. Having heard the learned Counsel appearing for the petitioner and having gone through the materials on record, including the provisions of the Electricity Act, 2003 and the Rules framed thereunder, the only question that falls for our consideration in this petition is, whether the petitioner is entitled to any of the reliefs prayed for in this petition.
(3.) BEFORE , we proceed to consider the submissions on merit, it will be expedient for the better adjudication of the issues, to look into the Electricity Act, 2003, more particularly the statement of objects and reasons. 4.1 The Electricity Act, 2003 is an Act to consolidate the laws relating to generation, transmission, distribution, trading, use of electricity and for development of electricity industry promoting competition even while ensuring supply of electricity to all areas duly protecting the interests of the consumer. It also is a law to ensure transparent policies and for providing two tire redressal mechanism at the Central as well as the State levels. The statement of objects and reasons for the Act would show that the radical reforms in generation and transmission of electricity are sought to be ushered in by the new legislation on the principles of de -licensing and open access in transmission. It also provides for the State Regulatory Commission, Central Regulatory Commission and an Appellate Tribunal to review the decisions of Regulatory Commissions. 4.2 The Act is divided into XVIII parts. Part -III deals with generation of Electricity, part IV with licensing method and Part -(V) deals with transmission of electricity. The fixation and administration of tariff is contained in Part -VII. Part X, which contains Sections - 76 to 109 provides for Constitution, powers and functions of the Central Commission and State Commission. An overall view of the Act especially the parts referred to herein would show that the Act brought in structural changes in generation, distribution and transmission of electrical energy. There is a distinct trichotomy among these three aspects of Electricity. The Act also broadly deals with generation separately and transmission separately. Except in the matter of levying the surcharge for crop subsidy, the Act does not make any distinction between a generating company and captive generating company.;