Prashant Kumar, J. - (1.) THIS writ application has been filed for quashing the order dated 28.07.2008 (Annexure -10) passed by respondent No. 3, the Electrical Superintending Engineer, Electric Supply Circle, Jamshedpur, whereby and where under a final assessment made and the petitioner was directed to pay Rs. 11,12,600/ - under section 126 (5) of the Electricity Act, 2003.
(2.) SANS unnecessary particular, the facts of the case is that petitioner took HT Industrial connection from the Jharkhand State Electricity Board (herein after referred as the Board) for manufacturing of concrete sleepers for Indian Railway. It is stated that on 07.02.2006, a surprise inspection conducted in the premises of the petitioner and two seals of L.V. -cum -C.T. Box were found broken. Thereafter, an FIR lodged and the Board provisionally assessed that the petitioner liable to pay Rs. 34.00 lakhs pilferage of electrical energy. Thereafter, petitioner moved this court by filing writ petition vide W.P. (C) No. 926/2006, challenging the provisional assessment order. While disposing that writ petition, a Single Bench of this Court directed the petitioner to deposit Rs. 30.00 lacs and move before the Upbhokta Sikayat Niwaran Forum, Ranchi (herein after referred as Forum). It appears that the Forum dismissed the application due to lack of jurisdiction. Thereafter, petitioner filed another writ petition being W.P. (C) No. 2885/2007, which was disposed of vide order dated 07.02.2008 with a direction to the petitioner to file representation before the Superintending Engineer. This Court further directed the Superintending Engineer to assess the actual loss caused to the Board, after giving opportunity of hearing to the petitioner. It is further ordered that if on final assessment, it comes to the light that petitioner had deposited excess amount, then the Superintending Engineer shall pass order for adjustment/refund of such excess amount. It appears that thereafter, petitioner filed representation which was disposed of by the impugned order as contained in Annexure -10. It is submitted by Sri M.S. Mittal, learned counsel for the petitioner that during pendency of this writ petition, the Court of learned Judicial Magistrate vide order dated 25.08.2012 had accepted the final form dated 18.12.2006, submitted by the police in theft case. Thus, as a result of such acceptance of final form, petitioner has been acquitted in the theft case. In that view of the matter, no panel bill can be realized from the petitioner. Accordingly, it is submitted that the impugned order is liable to be quashed.
(3.) ON the other hand, Sri Rahul Kumar, learned counsel appearing for the JUVNL submits that mere acceptance of final report by the Magistrate can not amount to a finding by the criminal court that theft of electricity was not committed. The learned counsel relied upon the judgment of Hon'ble Supreme Court in J.M.D Alloys Limited v. Bihar State Electricity Board and others, reported : (2003)5 SCC 226. Sri Kumar further submits that more over present writ application is barred by constructive res judicata because against the impugned order final assessment Order (Annexure -10), petitioner had filed another writ petition being W.P. (C) No. 1819/2010 and in that writ application petitioner had only prayed for a direction upon the respondents to refund the excess amount along with interest to the petitioner, which the petitioner had deposited in compliance of the order dated 07.02.2008 passed in W.P. (C) No. 2885 of 2007. It is submitted that in that writ application, petitioner has not prayed for quashing the impugned order. In the present writ application, the petitioner challenged the validity of the impugned order, which the petitioner cannot do so on the ground of constructive res judicata. Sri Kumar relied upon the judgment of Hon'ble Supreme Court in Devilal Modi v. Sales Tax Officer, Ratlam and others, reported in : AIR 1965 SC -1150.;