R.K.MERATHIA,J. - (1.) HEARD the parties at length finally.
(2.) THIS writ petition has been filed for quashing the letter No. 533/HESA dated 15.2.2008 (Annexure 11) based on the decision of the Respondents -Board dated 14.2.2008 (Annexure -A), informing the petitioner that the assessment order passed by the then Electrical Superintending Engineer vide his order No. 78 dated 27.10.2005, has been withdrawn by the Apex Board on the ground that in view of the notification dated 26.8.2004, designating the Executive Engineer as the assessing officer, he had no jurisdiction to pass that order; and the matter will be heard afresh by the General Manager -cum -Chief Engineer, Hazaribagh. Petitioner has further prayed for direction to raise bill on the basis of the said order No. 78 dated 27.10.2005 passed by the Electrical Superintending Engineer. Mr. M.S. Mittal, learned Counsel, appearing for the petitioner, submitted as follows. A team of officers used to come every month for taking meter reading. The last meter reading was taken on 31.5.2005. After three days only i.e. on 3.6.2005 a team of officers held a purported inspection. It was not said in the inspection report that there was any pilferage of electricity by the petitioner. As there was harassment and illegal demand, a Sanha ( No. 101/05) dt. 04.06.2005 was lodged in the Police Station by one of the employee of petitioner against officers of the Board. Then on 4th June, 2005, an F.I.R. was lodged at about 6 p.m. in the evening alleging pilferage and loss to the Board to the tune of Rs. 1.93 Crore. The petitioner filed a writ petition for quashing the said inspection report being W.P.(C) No. 3041 of 2005. During the pendency of the said writ petition a show cause notice was served on the petitioner from the office of the Superintending Engineer and accordingly, the writ petition was dismissed as premature on 22.6.2005, as no bill was raised on the basis of the said inspection report. Pursuant to the said notice, petitioner filed its show cause on 23.6.2005. The Executive Engineer was also noticed and he along with other officers, took part in hearing on behalf of the Board, before the Superintending Engineer who is higher in rank than the Executive Engineer. No objection was raised by any officer of the Board that the Superintending Engineer was not the assessing officer. The matter was heard on various dates. After hearing the petitioner and the Executive Engineer and considering the documents produced by the parties, the Superintending Engineer assessed the amount of alleged pilferage by his order dated 27.10.2005. Now this order has been withdrawn and petitioner has been asked to appear before the General Manager -cum -Chief Engineer for a fresh hearing, which is arbitrary, illegal and mala fide. The Superintending Engineer acted as an adjudicator and the Board was a party before him and therefore, the Board cannot withdraw the order of the Superintending Engineer of it's own. If the Board was aggrieved by the said assessment made by the Superintending Engineer, it could file appeal before the Chief Electrical Inspector within 30 days of the said order but the Board has taken the impugned action after more than 2 years. On the basis of a subsequent notification, dated 13.7.2006, the Board can not reopen the matter. Neither the amount mentioned in the F.I.R, can be said to be the amount assessed by the assessing officer, nor the F.I.R. can be said to be an order of provisional/final assessment required to be passed and served in terms of Section 126 of the Electricity Act 2003 (the Act for short) but the Board has become obsessed about the very big amount mentioned in the F.I.R. The assessment may be same, may be more, and may be less. Only because the amount assessed by the Superintending Engineer, is much less than the amount mentioned in the F.I.R., the Board is bent upon reopening the assessment, on the purported ground of lack of jurisdiction, though in other cases, the Board has accepted the assessment done by the Superintending Engineer. Moreover, in the cases, where the consumers have challenged the orders passed by the Superintending Engineer, the consistent stand of the Board is that such orders were appealable order as per Section 127 of the Act. Though there was no pilferage, but in order to avoid further litigation and harassment, instead of preferring appeal, petitioner requested for issuance of bill on the basis of said assessment so that the same can be paid and the chapter may be closed.
(3.) ON the other hand, Mr. V.P. Singh, learned senior counsel, appearing for the Board, submitted as follows. By a notification dated 26.8.2004 the Executive Engineer was designated as the assessing officer in terms of Section 126 of the Act, and therefore the assessment order passed on 27.10.2005, by the Superintending Engineer was without jurisdiction; and null and void. Subsequently another notification was issued on 13.7.2006, under which, for different categories of consumers, different authorities were designated as 'assessing officers', under Section 126 of the Act, but the General Manager -cum -Chief Engineer and Chief Engineer (Commerce and Revenue) were designated as assessing officer for all the categories of consumers. Therefore, the order of Superintending Engineer has rightly been withdrawn and the petitioner has been asked to appear for fresh hearing before the General Manager. Moreover if the impugned letters are quashed, the void and illegal order of the Superintending Engineer will revive, which should not be allowed by this Court. He relied on the following judgments on this aspect : [1966]2SCR172 Gadde Venkateswara Rao v. Government of Andhra Pradesh and Ors. Jagan Singh v. State Transport Appellate Tribunal, Rajasthan and Anr. and 1988 PLJR 923 Promod Kumar and Ors. v. State of Bihar and Ors.;