A. K. Mishra, J. - (1.) This common judgment is passed for both the writ appeals being preferred against the common judgment dtd.30.08.2018 in W.P.(C) No.13047 of 2017 whereby and wherein the learned Single Judge has allowed the writ petition by quashing the Government notification dtd.11.01.2013 and extended the consequential relief to the petitioner.
(2.) Summarized succinctly, the facts giving rise to these writ appeals are stated thus:- Petitioners M/s. Global Feeds entered into an agreement on 24.06.2015 with opposite party nos.1 to 3 who are Commissioner-cum-Secretary to Government of Odisha, Chief General Manager, CESU, Bhubaneswar and Executive Engineer (Electrical) CESU for a contract demand of 460 KVA / 414 KW to supply energy to the premises situated at Paniora for industrial purpose coming under large industry category. On 30.03.2017 the power supply was disconnected for non-payment of dues and it was restored on 31.3.2017. On 1.4.2017 the power supply was again disconnected. The petitioner filed complaint case before the Consumer Grievance Redrassal Forum, Khurda and in course of that hearing, the Provisional Assessment Notice, purported to be U/s.126 of the Electricity Act, 2003 (for brevity the 'E Act, 2003'), was issued. The direction of Consumer Forum for restoration of electricity was not complied with. The petitioner filed objection to the provisional assessment notice before the Assessing Officer. The same was rejected. The petitioner put forth grievance before OMBUDSMAN vide CR Case No.51 of 2017. On the direction of the OMBUDSMAN, the power supply was restored. The final assessment order dtd.17.04.2017 was served upon the petitioner on 24.4.2017. The petitioner filed writ petition, W.P.(C) No.8081 of 2017. This Court quashed the final assessment order and directed to consider the objection afresh. The Assessing Officer again confirmed the final assessment order. That final assessment order was challenged in W.P.(C) No.13047 of 2017 wherein besides the three opposite parties, the Assessing Officer and Divisional Manager, FEDCO were made opposite party nos.4 and 5. In that writ petition, the petitioner challenged the jurisdiction of the authority in exercising assessment power conferred U/s.126 of the E. Act, 2003 and specifically urged that the officers of the Franchisee could not be designated as Assessing Officers by notification of the Energy Department Dtd.11.01.2013, as such the inspection and assessment made by such Franchisee Officer was illegal and without jurisdiction and the said notification dtd.11.1.2013 vide Annexure-1 was required to be quashed. 2-(a). Learned Single Judge made anatomical survey of relevant provisions of the E. Act, 2003 and its Legilative object. Relying upon the decisions Executive Engineer & Anr. Vrs. M/s.Sri Seetaram Rice Mill, 2012 2 SCC 108 and Whirlpool Corporation Vrs. Registrar of Trade Marks, 1998 8 SCC 1 learned Single Judge has concluded as follows:- (i) The writ petition U/s.226 of the Constitution of India was maintainable as petitioner had raised question about the jurisdiction of the Franchisee acting as an Assessing Officer; (ii) Giving purposive interpretation to the explanation (a) of Section 126 of the E. Act, 2003, it was held that the State Government could not designate the Officers of the Franchisee to act as Assessing Officer because quasi judicial power was required to be exercised while doing assessment. Accordingly the notification dtd.11.01.2013, so far as it relates to conferring power to Franchisee to act as an Assessing Officer was held to be inconsistent with Explanation (a) to the provision of Section 126 of the E. Act, 2003 and being without jurisdiction, the same was quashed. (iii) Section 126 (1) of the E. Act, 2003 provides two parts; one for inspection and another for Assessment and the inspection made by the Franchisee was not illegal and directed the competent authority as per the notification dtd.21.5.2004 to take a fresh decision on the inspection report. (iv) The Franchisees were held to be necessary parties to defend their act of inspection and liberty was given to them to defend themselves before the competent authority U/s.126 of E. Act, 2003. (v) That in between the year 2013 to the date of judgment on 30.8.2018, several inspections might have been done and order might have been passed u/s.126 of the E. Act, 2003 and for that the judgment "will not affect the adjudication already made by the authority in exercise of powers conferred under Section 126 or 127 of the Act, 2003, keeping the legal position into consideration that the judgment will have its prospective over-ruling."
(3.) The Licensee and Franchisee as appellants, filed WA 509 of 2018 challenging the impugned judgment as an outcome of wrong, erroneous and improper interpretation of the words 'Distribution Licensee' and 'Franchisee Licensee'. 3-(a). The original petitioner filed WA No.28 of 2019 to challenge that part of the impugned judgment which allowed the Licensee Franchisee to conduct inspection U/s.126(1) of the E. Act, 2003. 3-(b). In both the writ appeals, one Franchisee M/s.Enzen Global Solutions Private Ltd. is impleaded as intervener respondent. 3-(c). In this judgment hereinafter to be followed, the original petitioner is to be referred to as consumer while CESU authorities are to be referred as Licensee, Commissioner-cum-Secretary to Government of Odisha as State and the interveners including FEDCO authorities as Franchisee.;