A.K. Mishra, J.
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.
4. Learned counsel for the consumer submits that Section 126(1) E. Act, 2003 does not make any distinction between inspection and assessment and learned Single Judge having allowed the inspection to be done by the Franchisee, has read the law contrary to the object of the statute. He also relied upon the paragraph 23 of the aforesaid Seetaram Rice Mill case, (2012) 2 SCC 108 (supra) to contend that as per Hon'ble Apex Court, an Assessing Officer is to conduct inspection of a place or premise and the equipments, gadgets, machines, devices found connected or used in such place.
4-(a). Learned counsel for the Franchisee submits that the provisions of section 126 and 127 are wholesome in themselves, and for the purpose of effective workability of its provisions, purposive interpretation is to be given and the Franchisee being an agent U/s.182 of the Indian Contract Act, is competent to act on behalf of his principal licensee and thereby the notification dtd.11.1.2013 is no way contrary to law.
He further submitted that the officers as mentioned in the explanation U/s.126 of the E. Act, 2003 to define Assessing Officer includes the Franchisee of Licensee. He relied upon the aforesaid Seetaram Rice Mill case (supra) and other decisions, Rakesh Wadhawan and Ors. Vrs. Jagdamba Industrial Corporation and Ors., (2002) 5 SCC 440 , Yeshbai and Ors. Vrs. Ganpat Irappa jangam and Ors., (1975) AIR Bombay 20 State of Kerala and Ors. Vrs. P.V. Neelakandan Nair and Ors., (2005) AIR SC 3066 and State of Karnataka Vrs. J. Jayalalitha and Others., (2017) 6 SCC 263
Learned counsel for the Franchisee also relied upon a decision Narayan Chandra Kundu Vrs. State of West Bengal and Others, (2007) AIR Calcutta 298 to contend that Legislature has intended that the Assessing Officer must be a person who is actually a member of the inspection team.
4-(b). Learned Addl. Government Advocate Miss Sabitri Rath supporting the contention of learned counsel for the Franchisee submitted that the officers of the Franchisee can act as an assessing officer for having engaged by the licensee.
4-(c). Learned counsel appearing for CESU submits that even though judgment has given prospective effect, the licensee would be put into hardship if the Franchisee engaged by him is not allowed to make assessment.
5. We carefully perused the impugned judgment of learned Single Judge and patiently heard submissions advanced. Cited Judgments are read to find out ratio decidendi and applicability to the facts of the case at hand.
At the outset Seetaram Rice Mill case (supra) is relied upon by all the counsel to contend that the purposive interpretation is the solution to the problem at hand.
6. In order to fix the eye point, the following provisions of the Electricity Act, 2003, of which meaning is to be ascertained by purposive interpretation is extracted below.
Section 126 Explanation For the purposes of this section (a) "assessing officer" means an officer of a State Government or Board or licensee, as the case may be, designated as such by the State Government.
6-(a). The moot point for our consideration is:- whether an officer of a licensee means an officer of the Franchisee under Explanation (a) of Section 126 of the E. Act 2003?
6-(b). Learned Single Judge in the impugned judgment has extensively quoted the relevant provisions of the E. Act, 2003. He has also given purposive interpretation to the provisions of the Act to arrive at the decision he has delivered. To us, the method adopted is actualization of purposive interpretation to the provisions of E. Act, 2003.
6-(c). Learned counsel before us could not show as to where and how such purposive interpretation by learned Single Judge has been applied erroneously. Only because of the fact that the analysis made by learned Single Judge giving purposive interpretation to the relevant provisions has not delivered the desired result, the said analysis cannot be said faulty or contrary to law. We do not find, on careful reading of the impugned judgment, any absurdity, incongruity and unreasonability in making such analysis and for that we subscribe our approval to the conclusion recorded by learned Single Judge.
7. Added to that, we want to assign our reasoning independently to the point raised depicted below:-
The officers of a State Government or Board or Licensee are not defined under the E. Act, 2003. There is no dispute with regards to officers of a State Government or officers of a Board. Only finger is raised as to the real connotation to the meaning of officers of Licensee.
The word 'Licensee' U/s.2(39) of E. Act, 2003 means a person who has been granted licence U/s.14. The provisions of Section 14, enumerates only grant of licence, i.e. transmission licence and distribution licence. Under seven proviso of Section 14, it is stated that "in a case where a distribution licensee proposes to undertake distribution of electricity for a specified area within his area of supply through another person, that person shall not be required to obtain any separate licence from the concerned State Commission and such distribution licensee shall be responsible for distribution of electricity in his area of supply."
It is noteworthy that the section 14 inter alia provides a category of deemed licensee who does not require to obtain a licence, amongst whom appropriate Government comes. On careful reading of that section with proviso-7, it is clear that the person through whom licensee is to undertake distribution of electricity is not required to obtain any separate licence though he is not under compartment of 'deemed licensee'.
Under Section 2(70) of the E. Act, 2003, "supply" in relation to electricity, means the sale of electricity to a licensee or consumer. So licensee is required to purchase electricity for the purpose of supply like consumer.
Under Section 2(17) "distribution licensee" means a licensee authorized to operate and maintain a distribution system for supplying electricity to the consumers in his area of supply. So distribution of electricity involves "to operate and maintain a distribution system."
7(a). The authority to grant licence is the Appropriate Commission who is defined U/s.2(4) of the E. Act, 2003. "Franchisee" means a person authorized by a distribution licensee to distribute electricity on its behalf in a particular area within his area of supply U/s.2(27) of the E. Act, 2003.
Part IV of the E. Act, 2003 from Sections 12 to 24, deals with licensing which include procedure for grant of licence, conditions of licence, licensee not to do certain things, amendment of licence, revocation of licence, sale of utilities of licensees, directions to licensees and suspension of distribution licence and sale of utility. All these stipulations are to regulate the distribution licensee. There is no such stipulation provided to control or regulate the relationship between licensee and franchisee.
7-(b). Thus, the authorization by the licensee is an arrangement, may be by a contract which is not controlled or regulated by the provisions of the E. Act, 2003. The terms and conditions of such authority are privy to the licensee and franchisee.
The 'franchise' is a right, privilege, or grant given for a certain specific purpose. It cannot be given in derogation of statutory provisions.
8. Learned counsel for franchisee has advanced his argument that franchisee is an agency controlled U/s.182 and 188 of the Indian Contract Act, 1872.
8-(a). Authority is the corner stone of the agency relationship. Agent is vested with legal power to communicate his principal's legal relations with third person. The agency is based upon contractual relationship. It differs from the relationship between master and servant or employee and employer relationship. Agency is not under direct control or supervision of the principal whereas employee is under direct control and supervision of his employer. Importantly, an agent may work under the number of principals at the same time while an employee shall serve only under one master. The above distinction is warranted to find the underlying principle behind the explanation under Section 126(a) of the E. Act, 2003 to ascertain as to whether the officers of licensee include the officers of franchisee. The 'State Government' is found its meaning U/s.2(5)(b) of the E. Act, 2003. "Board" is defined U/s.2(7) of the E. Act, 2003 to mean a State Electricity Board constituted before the commencement of this Act under sub-section (1) of Section 5 of the Electricity (Supply) Act, 1948.
The aforesaid definition indicates that the officers are under the direct control of the authorities which are recognized by the Electricity Act, i.e. the "State Government" U/s.2(5)(a), "Board" U/s.2(5)(7) and "licensee" U/s.2(39), read with section 14 of the Act. The officers under direct control of these three authorities, are to be designated as Assessing Officer. This direct control of the officers under employee employer relationship cannot be extended to the officer, who may be under contractual relationship with, the franchisee. Furthermore, the control of franchisee is not regulated by the Electricity Act but by the terms and conditions of a contract with Licensee. So, what legislature has clearly prescribed under the principle of direct-control for the officers, cannot be extended to others who are related by some others relationship such as agency. The employee and employer relationship to qualify the officers of licensee cannot be allowed to accommodate principal and agent relationship created by contract between the licensee and franchisee. The qualification for an assessing officer is the degree of control permitted to be exercised over the officers by three authorities from whom the officers derive its powers. Basing upon this principle, if the purposive interpretation is given effect to the explanation, the obvious conclusion is that the officers of the franchisee cannot act as an assessing officer.
Further, exercise of the power of the assessing officer by the officers of franchisee will be in derogation of the legislative purpose of which assessment U/s.126 for unauthorized use of electricity is brought in juxtaposition to the offence of theft of electricity U/s.135 of the E. Act, 2003. We cannot travel beyond the obvious meaning given by the legislature to the officers U/s. 126-Explanation (a) of Electricity Act.
After bestowing our most anxious consideration to the question raised we record our conclusion that the officers of the franchisee cannot be designated as assessing officers U/s.126 explanation (a) of the E. Act, 2003.
9. In Seetaram Rice Mill case (supra), before the Hon'ble Apex Court the provisional assessment order was challenged and question determined was :-
"what is the action contemplated where the consumer consumes electricity in excess of the maximum of the contract load."
The ratio of that decision has been reiterated in paragraph 58 of the judgment which includes that the provisional assessment is not appealable and the High Court can entertain writ petition against the order raising a jurisdictional challenge to the notice / provisional assessment. In that judgment, while analyzing section 126 of the E. Act, 2003, in para 23 it is stated that Section 126 contemplates the steps to be taken which include that an assessing officer is to conduct inspection of a place or premises and the equipment, gadgets, machines, devices found connected or used in such place.
9-(a). In the case at hand, learned Single Judge has not stated that assessing officer cannot inspect U/s.126 of the E. Act. Learned Single Judge in answering point no.(iii) has stated that "thus it is evident that under the provision of Section 126(1) here are two parts; (i) first part is inspection and (ii) second part is its assessment. The aforesaid provision nowhere provides that the inspection and the assessment is to be done by the same person, meaning thereby it can be done by the same person or even by different person." So assessing officer can make inspection U/s.126(1) of the E. Act, 2003.
9-(b). In the Narayan Chandra Kundu case (supra) of Hon'ble Calcutta High Cour
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t, the virus of notification was not challenged and question was as to whether the prosecutor U/s.135 of the E. Act can be the assessing officer U/s.126 of the Act. While analyzing the same it is observed that "Legislature has intended that the assessing officer must be a person who was actually a member of the inspection team at the time of detecting the pilferage or the unauthorized use of electricity so that he can pass the order of assessment not on the basis of papers placed before him but after actually visiting the sight at the time of detection of the illegality." In view of Hon'ble Apex Court's observation that Assessing Officer can make inspection and the Hon'ble Calcutta High Court's view that the Assessing Officer should be a member of the inspection team, the view taken by learned Single Judge in the impugned judgment to the effect that inspection and assessment can be done by the same person or even by a different persons does not run contrary. 10. Our independent reasoning ascribed to the analysis of learned Single Judge leads to the same conclusion that the officer of the franchisee cannot be designated as an assessing officer and the notification dtd.11.1.2013 made contrary to that vide Annexure-1 suffers from illegality and liable to be quashed. Learned Single Judge in the impugned judgment having done so, has not committed any error either on Law or fact. By giving prospective over-ruling effect to the judgment, what is mitigated is the hardship in pursing the proceeding in respect of inspection already done. The effect having been addressed needs no intervention in the appeal. The consequential direction to the competent authority in the facts of the case is just and proper. Since Learned Single Judge has taken the correct decision, no interference is warranted in these appeals. In the result, both the writ appeals stand dismissed. There shall be no order as to costs. S.K. Mishra, J. I agree.