IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A No. 220 OF 2008
M/s. Sri Durga Cement Company Limited Appellant
Versus
Jharkhand State Electricity Board & Ors. Respondents
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CORAM HON'BLE THE CHIEF JUSTICE
HON'BLE MR.JUSTICE D.K. SINHA
For the Appellant/Petitioner M/s.Joy Saha, A.K.Pasari, N.K.Pasari
For the Respondent/Opp.Party M/s.V.P.Singh, Sr.Advocate, R.Shankar,
P.K.Singh, D.Kumar, A.Prakash
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5. 1.8.2008
This appeal has been preferred by the appellant, M/s. Sri Durga
Cement Company Limited, against the order dated 16.6.2008 passed by the
learned Single Judge in W.P (C) No.2776/2008, by which the learned Single
Judge had been pleased to dispose of the writ petition with a direction to the
respondent- Jharkhand State Electricity Board to make provisional assessment of
the loss suffered by the respondent-Board on account of the alleged theft of
electricity at the instance of the appellant. The provisional assessment was also
ordered to be made under section 126 of the Electricity Act, 2003, for the alleged
unauthorized use of electricity and the assessment was to be done within a period
of 7 days from the date of receipt of a copy of that order. The petitioner, appellant
herein, was granted opportunity to file objection and thereafter reasonable
opportunity of hearing was to be granted to the petitioner-appellant and a final
order subsequently thereto was to be passed.
The learned Single Judge further directed that after the final
assessment regarding the electricity dues payable the petitioner-appellant, the
Board would restore the appellant’s electric connection on payment of the amount
determined by the Board after hearing the appellant.
It is now informed by the counsel for the appellant as also for the
Board that the final assessment of the dues on account of the alleged
unauthorized use of electricity, which was earlier assessed at Rs.2.4 crores, has
now been assessed at Rs.63,17,704/- by the respondent-Board.
In spite of the aforesaid relief granted by the respondent-Board, the
appellant- M/s. Sri Durga Cement Company Limited has preferred this appeal
essentially on the ground that the appellant-company be not directed to pay the
entire dues determined by the assessing authority as it is interested in preferring
an appeal against the order passed by the Board, where it has to deposit 50% of
the dues determined in order to get the appeal heard on merit. It was further
contended that even if 50% is deposited by the appellant in order to get the appeal
heard by the appellate authority, its electric connection would not be restored on
account of non-payment of the balance amount, which has been determined in
pursuance to the order passed by the learned Single Judge.
Having deliberated over the argument and counter-argument
advanced by the counsel for the parties, we are of the view that the appellant has
already been granted the opportunity of hearing against the demand of Rs.2.4
crores, which has now been assessed at Rs.63,17,704/-. Thus, prima facie the
amount payable by the appellant-company is not more than Rs.63,17,704/- and
this amount has been determined after hearing the appellant. We, therefore, find
no justification to permit the appellant to make payment of electricity dues only to
the extent of 50%. At this stage, we are not concerned with the appeal, which is
sought to be filed by the appellant before the competent authority under the
Electricity Act,2003, but are concerned with the correctness of the order passed by
the learned Single Judge, directing the respondent- Board to restore the
appellant’s electric connection on payment of the amount determined by the
assessing authority.
Under the circumstances referred to hereinabove and as already
stated, the amount determined by the Board, prima facie, has to be treated as
correct as the same has been determined by the respondent-Board after providing
an opportunity of hearing to the appellant-company. We, therefore, see no reason
to interfere with the order passed by the learned Single Judge. Hence, we direct
the appellant-company to make payment of Rs.63,17,704/- with the respondent-
Board.
Counsel for the appellant has stated that it may be difficult for the
appellant to pay the same in one go and therefore, the appellant be allowed to
deposit only 50% of the amount determined by the Board. Thus, according to the
averment of the counsel for the appellant, the payment of balance amount be
deferred.
This request was strongly refuted by the counsel for the respondent-
Board by submitting that the amount determined by the assessing authority ought
to have been paid by the appellant forthwith as the same has been determined by
the assessing authority after proper adjudication of the dispute and merely
because the appellant might prefer an appeal in future, the same cannot be a
ground for deferring the payment of the balance amount, as there is likelihood of
dragging the matter in future and then getting the payment deferred.
Even if this submission were to be accepted as incorrect, we are not
inclined to examine the same as it would be speculative, but in the interest of
justice to all concerned and in order to facilitate the appellant’s industry to operate
and start its production, we deem it just and appropriate to direct the appellant-
company to deposit 50% of the amount determined by the assessing authority by
4th August,2008 and if 50% of the amount which comes to Rs.31,58,852/-, is
deposited by the appellant-company by 4th August,2008, the respondent-Board
shall restore the electric connection of the appellant within 24 hours, i.e. by 5th
August,2008 itself.
In so far as payment of the balance amount is concerned, the same
is ordered to be paid in two equal monthly instalments within a period of four
months.
After deposit of 50% of the amount determined by the assessing
authority with the respondent-Board, it is implied that if the appellant prefers an
appeal before the statutory authority under section 127 of the Electricity Act, 2003,
the appeal by the statutory authority shall be heard on merit without directing the
appellant to deposit 50% of the amount afresh.
The appeal, in view of the aforesaid order, be treated as disposed of.
(Gyan Sudha Misra.C.J.)
(D.K.Sinha.,J.)
dey