C.K. Abdul Rehim, J.Challenge in this writ petition is against Ext. P8 proceedings issued by the 3rd respondent in exercise of power vested u/s 126 of the Electricity Act, 2003. The impugned order is challenged without resorting to statutory remedy of appeal provided u/s 127 of the Act, on the premise that the petitioner is challenging validity of Section 127(2) of the Act to the extent it imposes a pre-condition for deposit of 50% of the amount of penalty assessed. Penalty was imposed against the petitioner based on an inspection conducted at the premises by the Anti-Power Theft Squad (APTS), Vazhathoppu unit, on 30/10/2013. Ext. P6 is the Mahazer prepared at the time of inspection. The penalty was imposed on the premise that, during inspection it was detected that the petitioner was using unauthorised additional load to the extent of 52 KW. When a provisional order of assessment was served, the petitioner submitted detailed objections. After affording opportunity of personal hearing, the 3rd respondent had finalised the assessment through Ext. P8. On the factual aspects the petitioner had disputed the alleged unauthorised extension. It was also contended that the additional connected load was functioning only through a 35 KVA Generator installed. It was further contended that the A/C and other equipments were fitted only recently. Discarding all such contentions the assessment was finalised through the impugned proceedings.

2. Section 127(2) is challenged as unconstitutional and violative of Articles 14 and 21 of the Constitution of India. It is contended that, the provision insisting pre-deposit of 50% of the penalty will deprive remedy of appeal against an order of assessment made illegally, which is totally unsustainable. Further it will deprive remedy to persons who have no means to pay the assessed amount. The condition works out onerous and oppressive and is challenged unreasonable and arbitrary.

3. Statutory prescription of pre-deposit for filing of appeals under various fiscal Statutes were held as valid through different legal precedents rendered by this Court as well as the Honble Apex Court. Merely because a precondition for deposit of part of the assessed amount is prescribed for maintaining an appeal, it will not become arbitrary or unreasonable. The Court cannot struck down validity of such provision merely because it will become onerous. There is no ground to declare that, insistence of any such conditions will violates rights protected under Article 14 or 21 of the Constitution. There is no valid or sustainable grounds made out warranting interference of this Court to struck down the provisions contained in Section 127(2) of the Statute. Hence the challenge in this regard fails.

4. Learned counsel for the petitioner contended that the impugned proceedings is perse illegal and hence availability of the statutory remedy cannot be considered as a bar for interference, invoking powers vested under Article 226 of the Constitution of India. One of the main grounds raised in support of the above contention is that the 3rd respondent who is the authorised officer, has not conducted any inspection at the premises. It is pointed out that the 3rd respondent was not a member of the team which conducted inspection at the site. Therefore the 3rd respondent cannot arrive at a conclusion based on inspection conducted by any other authority that the petitioner was indulging in unauthorised use of electricity. The petitioner points out that Section 126(1) contemplates imposition of penalty only when the Assessing Officer comes to a conclusion that the person concerned was indulging any unauthorised use of electricity. Such conclusion cannot be arrived unless the Assessing Officer himself had conducted an inspection and detected such irregularity, is the contention. According to learned counsel for petitioner, no penalty can be imposed on the basis of inspection conducted by any authority other than the Assessing Officer.

5. Much reliance is placed on the decision of the Honble Supreme Court in The Executive Engineer and Another Vs. Sri Seetaram Rice Mill, . While dealing with the ambit and scope of Section 126, the Honble Apex Court had enumerated the steps to be taken, in paragraph 36 of the said decision. The first step enumerated therein says that,

An Assessing Officer is to conduct inspection of a place or premises and the equipments, gadgets, machines, devices found connected or used in such place.

In another part of the judgment in paragraph 26 the Honble Supreme Court observes that the assessment/proceedings would commence with the inspection of the premises by an Assessing Officer and recording of a finding that such consumer was seen indulging in an unauthorised use of electricity. Then the Assessing Officer shall provisionally assess, to the best of his judgment, the electricity charges payable by such consumer, as well as pass a provisional assessment order in terms of Section 126(2) of the 2003 Act.

6. Leaned counsel for the petitioner had placed for my perusal decisions of other High Courts, in support of the above proposition. Calcutta High Court, in its decision in C.E.S.C. Ltd. Vs. Abdos Trading Co. Pvt. Ltd., held that the 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 unauthorised 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 site at the time of detection of the illegality. Hence it is held that, presence of the Assessing Officer at the time of inspection u/s 126 is mandatory. Bench of the Calcutta High Court had arrived at the conclusion as above, only on the basis that the Honble Supreme Court in Sri Sitaram Rice Mills case (cited supra) had enumerated the first step to be taken under 126 as inspection to be conducted by the Assessing Officer. However, it is conceded in the said decision that such a view was expressed by the Apex Court while dealing with some other matters and the question as to whether presence of the Assessing Officer is mandatory at the time of inspection, was not in issue before the Honble Supreme Court. But the Calcutta High Court observed that a plain reading of Section 126 would suggest that presence of the Assessing Officer at the time of inspection u/s 126 is mandatory. However, that Court further observed;

considering that we are not called upon to decide the issue we prefer not to express any further opinion in the matter.

7. A scanning of Section 126(1) would be beneficial, which is reproduced hereunder;

If on an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found connected or used, or after inspection of records maintained by any person, the Assessing Officer comes to the conclusion that such person is indulging in unauthorised use of electricity, he shall provisionally assess to the best of his judgment the electricity charges payable by such person or by any other person benefited by such use.

It provides that, for making a provisional assessment to the best of his judgment with respect to the electricity charges payable, the Assessing Officer should come to a conclusion that the person against whom such provisional assessment is proposed was indulging in unauthorised use of electricity. The Statute provides that such a conclusion can be arrived on the basis of inspection of any place or premise or after inspection of the equipments, gadgets, machines, devices found connected or used, or after inspection of the records maintained by such persons. Nowhere it is mentioned in Section 126(1) that such inspection should be conducted by the Assessing Officer himself. Question is as to whether such conclusion can be arrived on the basis of any report of inspection conducted by any other authority. Various other provisions in the Act enables authorities other than Assessing Officers to enter upon any premises for conducting inspection for verifying position of the equipments, gadgets, machines, devices etc. Various other authorities are empowered under the Statute to detect theft or misuse of energy and to take action of disconnection of supply. As observed by learned Judges of the High Court of Calcutta, the Honble Apex Court had never dealt with an issue as to whether presence of the Assessing Officer is necessary at the time of inspection. The Honble Supreme Court had never interpreted Section 126(1) as one creating it mandatory that the Assessing Officer should only arrive at conclusion regarding indulgence in unauthorised use of electricity, by conducting inspection by himself. In other words, the Honble Supreme Court had never dealt with an issue as to whether presence of the Authorised Officer is mandatory for conducting inspection, for the purpose of imposing penalty. On the other hand, the Honble Apex Court only enumerated the steps to be taken u/s 126, while discussing about the ambiguities in the procedure to be followed under the said provision. It observed that the Assessing Officer has to conduct inspection as a first step, towards assessment of penalty. But no where in the decision it is held that penalty cannot be imposed on the basis of inspection conducted by any other authority. In a passing observation the Honble Supreme Court said that, the assessment proceedings would commence with the inspection of the premise by the Assessing Officer. There also, the Court has not dealt with the issue as to whether any other authority can conduct the inspection. Hence there is no dictum laid by the Honble Supreme Court that presence of the Assessing Officer is mandatory at the time of inspection. Nor even the observations contained in Sri Seetaram Rice Mills case can be considered as an obiter and as binding on this Court. It is to be noticed that, even when the Calcutta High Court found that a plain reading of the provision would suggest presence of the Assessing Officer at the time of inspection is mandatory, the said Court had specifically observed that the Honble Supreme Court has not dealt with the issue in Sri Seetaram Rice Mills case.

8. Insistence that presence of the Assessing Officer is mandatory at the time of inspection, will create procedural hurdle in the matter of detection of theft or unauthorised usage and assessment of penalty. If such a narrow construction is adopted with respect to Section 126(1), any culprit who commits theft or unauthorised use or misuse of energy can escape from the liability of penalty, because he can remove or dismantle any device or apparatus from the premises through which theft or misuse of energy is committed, before the Assessing Officer could conduct an inspection on the basis of any information. In most of the occasions, the assessment proceedings are initiated only on the basis of inspection report submitted by a team of officers including authorities who are higher in rank than the Assessing Officer. Hence there is no illegality or irregularity in the Assessing Officer arriving at a conclusion regarding indulgence of unauthorised use of electricity, based on such reports. Of course, person against whom such assessment is made is always at liberty to challenge veracity of the findings in the report or even correctness of the conclusion arrived by the Assessing Officer. An effective statutory remedy of appeal is provided for adjudicating such challenges. Hence this Court is of the considered opinion that, provisions contained in Section 126(1) cannot be construed in any manner narrowing down its scope against initiating assessment proceedings based on conclusion arrived depending on materials collected on an inspection conducted by any competent authority other than the Assessing Officer.

9. Based on the discussions contained herein above, this Court arrives at a conclusion that all the contentions against the impugned order deserves no merit. This Court has not arrived at any findings on the challenges raised on factual aspects, in view of availability of the effective remedy of statutory appeal, u/s 127 of the Act. It is brought to notice of this Court that, the petitioner had already approached the Appellate Authority under Ext. P10 appeal and Ext. P11 petition seeking exemption from payment of pre-deposit of 50%. In view of the above observations and findings, this Court is of the opinion that the Appellate Authority has no power vested on it to grant waiver of the precondition for deposit of 50%. Having considered the fact that, the petitioner was pursuing challenges against the assessment in this writ petition, it is only just and proper to permit the petitioner to pursue the appeal after satisfying the pre-condition of deposit. Under the above mentioned circumstances, while dismissing the writ petition, the petitioner is given liberty to pursue Ext. P10 appeal before the 2nd respondent by making deposit of 50% of the amount of penalty assessed, within a period of two weeks from the date of receipt of a copy of this judgment. If the deposit is made within the time stipulated as above, the 2nd respondent shall consider Ext. P10 appeal as one filed within the time stipulated and shall proceed to dispose of the same on merits.