1. Since pleadings are complete, as requested and agreed by learned counsel for the parties, this Court proceed to decide the matter finally under the Rules of the Court at this stage.
2. The writ petition is directed against the order dated 14.3.2011 passed by Commissioner, Allahabad Division Allahabad rejecting petitioner's appeal on the ground that he has not paid 1/3rd of the amount of assessment as contemplated under Section 127(2) of Electricity Act, 2003 (hereinafter referred to as "Act 2003") and hence appeal was not maintainable without complying with the aforesaid condition precedent.
3. The petitioner got an electric connection of 30 HP for the purpose of its commercial and small scale undertaking namely manufacturing and multi colour printing etc. A checking was made at petitioner's premises on 3.1.2002. The petitioner was found using excess load i.e. load more than the sanctioned load. An assessment was made by Executive Engineer, Electricity Urban Distribution Division, Mayohall, Allahabad (hereinafter referred to as "EEMH") vide assessment order dated 3.4.2002 for a total sum of Rs.1,75,500/-.
4. The petitioner made representation thereagainst and while awaiting decision on the part of EEMH, another checking was made on 29.10.2002 and there again the checking team reported excess load at petitioner's premises. The petitioner made complaint against this checking. In the meantime an assessment order/bill dated 13.12.2002 was issued by EEMH for a sum of Rs.795278.52 with regard to second checking.
5. Against the assessment bill dated 13.12.2002, petitioner filed an appeal before appellate committee vide memo of appeal dated 11.8.2003. It appears that aforesaid appeal was subsequently transferred to Commissioner, Allahabad in 2008 where it was registered as Appeal No.3 of 2008-09. This exercise was undertaken, purported to be, under Section 127 of Act 2003. From the appellate order dated 7.10.2010, impugned in this writ petition, it is evident that aforesaid appeal was transmitted to Commissioner on 2.12.2008 by respondents-electricity supplier. The Commissioner passed an order on 7.10.2010 holding that 1/3rd amount of assessment having not been deposited by petitioner, as provided in Section 127(2), hence appeal was not maintainable. The petitioner then filed a review application which was also rejected by order dated 14.3.2011.
6. It has been stated by petitioner that his appeal was already decided by appellate committee in its meeting dated 16.10.2004 but copy of appellate order was not served upon him. The respondents, in an illegal manner, treated the appeal pending and thereafter transmitted the record to Commissioner which itself was illegal. A copy of minutes of appellate Committee's meeting dated 16.10.2004 has been placed on record as Annexure 17 to the writ petition.
7. On behalf of respondents, a counter affidavit has been filed by respondent No.2. The other facts are not disputed but in reply to the petitioner's averment made in para 11 to the writ petition that his appeal was already decided by appellate committee in its meeting dated 16.10.2004 but copy of the order was not made available to him. Respondents have taken a stand in para 6 of the counter affidavit that since petitioner did not deposit 1/3rd of assessment amount along with appeal, his appeal was not decided by Committee and after notification issued under Act 2003 constituting appellate committee consisting of Commissioner of Division, record in original was transmitted to Commissioner who has rightly rejected appeal for failure on the part of petitioner to deposit 1/3rd of assessment amount.
8. Heard Sri B.C.Rai, learned counsel for the petitioner and Sri Rajeev Sharma, learned counsel appearing for respondents No.1 and 2 and perused the record.
9. Learned counsel for the petitioner submitted that assessment proceedings having been initiated in 2002, Act 2003 would not apply and right of appeal to the petitioner has to be considered in the light of provisions as were applicable when assessment proceedings were initiated. He contended that position is akin to the cases where during pendency of a suit provisions pertaining to appeal undergo some change, may be with regard to right of appeal, or Forum, or limitation, or manner of filing appeal. Since right of appeal is a substantive right vest in a person in accordance with the provisions as available on the date of institution of the suit, the same parity would apply in the present case also. Hence petitioner's appeal having validly filed according to the then existing law before appellate authority could not have been rejected on the ground that it has not conformed the requirement of a provision, came into existence subsequently. He further contended that even otherwise Section 127 has no application since it is in reference to orders passed under Section 126 and any other order is not within the ambit of Section 127 (1) & (2).
10. Learned counsel for the respondents, on the contrary, endeavoured to support the impugned order passed by Commissioner stating that appeal being a procedural right, it would be governed by statute as it was applicable on the date when appeal is filed or when it comes up for consideration before the appellate authority hence no interference is called for.
11. The first question would be whether petitioner's appeal was already decided by appellate committee or not?
12. This is a question involving some investigation into facts. The petitioner has filed photocopy of minutes of meeting of appellate committee which does not show signatures made by members constituting appellate committee thereon. In the counter affidavit respondents have taken a stand specifically that appellate committee did not decide the appeal. This has been controverted in para 13 of rejoinder affidavit by stating that there is nothing on record to show that appeal of petitioner was not decided for want of pre-deposit. With respect of minutes of meeting dated 16.10.2004, Court finds that while replying para 21 of writ petition respondents in para 11 of the counter affidavit have said that it is matter of record and suitable reply shall be given at the time of arguments. Therefore it admits that minutes of meeting were prepared and a perusal of said minutes do not show that committee declined to decide appeal for want of pre deposit of 1/3rd amount of assessment. In fact at the relevant time there was no such requirement except Section 127 and the Committee obviously had no reason to look upon Section 127 being itself a body under earlier statute and it was considering appeal under previous law. This stand taken by respondents in regard to predeposit is not only incorrect factually but also runs contrary to record. This has not been disputed by learned counsel for the respondents during argument.
13. Further since photocopy of minutes filed along with writ petition as Annexure 17 does not show that it was duly signed by members of appellate committee also, this Court find difficulty in treating the said minutes constituting a decision of appellate committee. In absence of anything further, this court find it appropriate to hold that, in law, the appeal of petitioner was not decided by appellate committee though it considered the matter and draft minutes was prepared but did not/could not be signed by the Committee. Mere preparation of minutes by itself would not constitute a decision unless it is duly signed by members of committee and therefore aforesaid minutes would not constitute a decision of appellate committee. The appeal, therefore, can safely be treated as remain pending till impugned orders have been passed by Commissioner, Allahabad Division, Allahabad.
14. Now, next question would be, whether Commissioner had any jurisdiction to decide this appeal and was right in rejecting the same for non compliance of condition of pre-deposit of 1/3rd of assessment amount under Section 127(2) ?
15. As is evident from order dated 7.10.2010, record of pending appeal was transmitted to Commissioner by respondents vide letter dated 2.12.2008. Why the appeal remained pending for such a long time with appellate authority, no explanation has been given by respondents. At this stage, without going into the effect and consequence, if any, on account of long pendency of appeal before appellate committee and its inaction, this Court intend to straight way proceed to consider the question whether Commissioner had jurisdiction to decide this appeal which obviously would mean whether Section 127 is applicable in the case in hand.
16. In effect the question, as posed above, can further be divided in the following ancillary but integral issues:
(i) What provisions pertaining to appeal would apply in this case?
(ii) Whether Forum and pre-deposit conditions for maintaining appeal and limitation etc. constitute substantive right or procedural right and in what manner they would be governed i.e. by erstwhile statutory provisions or subsequent statute?
(iii) Whether for maintaining appeal, in the present case, Section 127 has any application at all? If not, which provision shall govern appeal in question.
17. The above first two issues i.e. (i) & (ii) can be considered together. These aspects are no longer res integra having been considered and decided in several authorities of Apex Court and this Court. It is now well settled that appeal is a creature of statute and unless provided no one has any inherent right of appeal. The oft quoted decision on this issue is Colonial Sugar Refining Company Ltd. v. Irving (1905) A.C. 369. It was held that right of appeal being a continuation of the vest under the provision as applicable on the date of initiation of proceedings in suit. This decision was followed by Bombay High Court (Jenkin CJ) in Nana bin Aba v. Skeku bin Andu, (1908) ILR 32 Bombay 337. The Privy Council in Delhi Cloth and General Mills Co.Ltd. Vs. Income Tax Commissioner, Delhi, ILR 9 Lahore 284 observed that it is only a statute dealing with procedure which may have retrospective effect and not the statute conferring substantive rights and the right of appeal is a substantive one. This issue came up for consideration before Apex Court in Indira Sohanlal Vs. Custodian of Evacuee Property, Delhi and others, AIR 1956 SC 77 and though the Court made an observation that right of appeal in respect of a pending action may conceivably be treated as a substantive right vesting in litigant on the commencement of action but did not decide that issue and left this question open. This is how it came to be considered then in Garikapati Veeraya Vs. N. Subbiah Choudhry, AIR 1957 SC 540. Their Lordships approved a Full Bench judgment of this Court wherein a reference was answered by observing that right to appeal would be governed by law prevailing at the date of institution of suit and not by law that prevail at the date of its decision or at a date of filing of appeal. The Apex Court also referred and approved another Full Bench decision of Lahore High Court in Kirpa Singh Vs. Ajaypal Singh and others, 1928 ILR 10 Lahore 165 and ultimately held in para 23 as under:
" From the decisions cited above the following principles clearly emerge :
(i) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding.
(ii) The right of appeal is not a mere matter of procedure but is a substantive right.
(iii) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the carrier of the suit.
(iv) The right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal.
(v) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise."
18. In Manujendra Dutt Vs. Purnedu Prosad Roy Chowdhury & Ors., AIR 1967 SC 1419 again this issue came to be considered. A suit was filed by the Court of Wards on 11.07.1947 in the First Court of Subordinate Judge at Alipore for ejectment and mesne profits. While the suit was pending the Calcutta Thika Tenancy Act, 1949 was enacted and brought into force. There was consensus between the parties that Manujendra Dutt was a Thika Tenant as defined by the said Act and therefore the suit would be governed by new Act. It was so transferred to Thika Controller under Section 29 of the Act. The Fourth Court of Munsiff at Alipore was the Thika Controller under the Thika Tenancy Act, 1949 and the suit therefore was transferred to it. While it was pending, an Amendment Act VI of 1953 came into force on 21.04.1953 whereby Sections 28 and 29 of Thika Tenancy Act, 1949 were deleted. Manujendra Dutt filed an application before Thika Controller that after deletion of Section 29 he has lost jurisdiction over the suit. This application was rejected and the suit continued to be proceeded by the Controller. Ultimately a judgment was delivered by Thika Controller allowing eviction of Manujendra Dutt subject to payment of compensation by other side, as agreed to between the parties or determined by him on an application made by either of the parties. An appeal was preferred against the aforesaid judgment before Subordinate Judge at Alipore who dismissed it holding that suit is governed by Section 5 of the Act, that after expiry of the said term, there was no holding over and, that, in spite of deletion of Section 29, the Controller continued to have jurisdiction over matters transferred to him and pending at the date when the Amending Act of 1953 came into force. The matter was taken to the High Court which also affirmed the issue that despite deletion of Section 29, Controller continued with the power to decide the suit. This issue then was taken to the Apex Court. The Apex Court said that deletion of Section 29 by Amendment Act, 1953 would not affect the pending proceedings and would not deprive the Controller of his jurisdiction to try the said proceedings pending before him on the date when the Amendment Act came into force. Though the Amendment Act did not contain any saving clause but, under Section 8 of the Bengal General Clauses Act, 1899 the transfer of suit having been lawfully made under section 29 of the Act, its deletion would not have the effect of altering the law applicable to the claim in litigation. The deletion would not affect previous operation of section 5 of Calcutta Thika Tenancy Act or the transfer of the suit to the Controller or anything duly done under section 29. The Apex Court thus upheld the view taken by High Court on this aspect.
19. Again a similar issue came to be considered in Maria Cristina De Souza Sodder & Ors. Vs. Amria Zurana Pereira Pinto & Ors. 1979 (1) SCC 92. In 1960, a suit was filed under Portuguese Civil Procedure Code. It was decreed in 1968 whereagainst an appeal was filed before the Court of Judicial Commissioner. An objection was raised that appeal ought to have been filed in the Court which decided that suit in accordance with Portuguese Civil Procedure Code and it was not filed in proper Forum i.e. before the Court of Judicial Commissioner and that the appeal was barred by limitation prescribed in Portuguese Civil Procedure Code. The above objections were raised referring to the event which took place during pendency of the suit. These events were that the territories of Goa, Daman and Diu were liberated and became a part of Government of India 1961; the Limitation Act, 1963 was made applicable to whole of India including the Union Territory of Goa, Daman and Diu; the (Indian) Code of Civil Procedure, 1908 with protanto repeal of the Portugues Code was extended to the territories of Goa, Daman and Diu (extention of the CPC 1908 and Arbitration Act, 1940) Act, 1965 (Act XXX of 1965) Act 1965 to the territories of Goa, Daman and Diu in 1966; and; on the same day in 1966, Goa, Daman and Diu Civil Courts Act, 1965 came into force. Under this last mentioned Goa enactment namely G.D.D.Civil Courts Act, 1965 the appeal in this matter would lay to Judicial Commissioner's Court. Relying on the aforesaid events, it was contended on behalf of Maria Cristina and others, the appellant before the Apex Court, that appeal was filed in proper Forum and since under the Limitation Act, 1963, limitation was 90 days, therefore it was within time. The Apex Court held that right of appeal is a substantive right. It gets vested in a litigant no sooner the lis is commenced. Such right or remedy will not be affected by any repeal of enactment conferring such right unless the repealing enactment either expressly or by necessary implication takes away such right or remedy.
20. A more apt judgment to the issue up for consideration in this case is Ramesh Singh & Another Vs. Cinta Devi & Ors., 1996 (3) SCC 142. An accident took place on 27.5.1988 giving rise to a claim for compensation under Motor Vehicles Act, 1939 (hereinafter referred to as "Old Act"). The claim application was filed on 23.12.1988. Motor Vehicles Act, 1988 (hereinafter referred to as "New Act") came into force on 1.07.1989. The claim application was decided by Tribunal on 29.6.1992 i.e. when the New Act was enforced. The judgment gave rise to a right to file an appeal. It was preferred under the Old Act on 25.9.1992. The Division Bench of High Court dismissed it on the ground that appellant had not deposited the amount, as contemplated by proviso to Section 173 of New Act though under the Old Act there was no such requirement. The issue considered by the Apex Court was "does a right of appeal accrued to a claimant under the Old Act on the institution of a claim application in Motor Accident claims Tribunal, notwithstanding its repeal by New Act during pendency of the claim application. By referring to Section 217(4) of New Act read with Section 6 of the General Clauses Act, the Court said that New Act does not expressly or by necessary implication make the relevant provisions retrospective in character. The Apex Court held that right to appeal will crystalise in the appellant on the institution of the application in the Tribunal and that vested right of appeal would not be dislodged by the new enactment. Para 5 of the judgment reads as under:
"5. In our view the point at issue stands squarely covered by three decisions of this Court reported in Hoosein Kasam Dada (India) v. State or M.P. 1953 SCR 987 : AIR 1953 SC 221 (SCR at p. 991), State of Bombay v. Supreme General Films Exchange Ltd., AIR 1960 SC 980 and Vitthalbhai Narangbhai Patel v. CST, AIR 1967 SC 344. In all these decisions the view taken is that unless the New Act expressly or by necessary implication makes the provision applicable retrospectively, the right to appeal will crystalise in the appellant on the institution of the application in the Tribunal of first instance and that vested right of appeal would not be dislodged by the enactment of the New Act. In other words, the appellant, would be entitled to file the appeal without being required to make the deposit under the proviso to Section 173 of the New Act. The law, therefore, seems to be fairly well settled by the said three decisions of this Court.
21. A slight different but to some what similar dispute was considered in Commissioner of Income Tax, Bangalore Vs. R. Sharadamma (Smt.), 1996 (8) SCC 388. Therein the assessment relating to the assessment year 1968-69 and 1969-70 were finalized by the assessment orders dated 28.2.1970. Income Tax Officer thereafter initiated proceedings for imposition of penalty under Section 271(1)(c) of Income Tax Act and referred the matter to Inspecting Assistant Commissioner (hereinafter referred to as "IAC") under Section 274 (2). Pending reference before IAC, Section 274(2) was amended w.e.f. 01.4.1971 altering the circumstances in which such a reference could have been made under the amended provision and the kind of reference made earlier could not have been made. The IAC treated the pending matter as if unaffected by the amendment, continued to proceed and passed order imposing penalty for both the assessment orders. Appeal was filed by the assessee before Tribunal that IAC lost jurisdiction after amendment of Section 274(2) which found favour with the Tribunal and assessee appeal was allowed. The matter was taken in reference to High Court which also answered in favour of the assessee. The matter thereafter was brought to the Apex Court which says that once IAC seized of a matter on a reference made validly in accordance with law as it was on the date of reference, he would not lose the jurisdiction to deal with the matter on account of deletion of sub section 2 of Section 274. The Court followed its decision in Commissioner of Income Tax Vs. Dhadi Sahu, 1994 Supp (1) SCC 257 wherein also similar issue was raised and decided by stating the general principle as under:
"It may be stated at the outset the general principle is that a law which brings about a change in the forum does not affect pending actions unless an intention to the contrary is clearly shown. One of the modes by which such an intention is shown is by making a provision for change-over of proceedings from the court or the Tribunal where they are pending to the court or the tribunal which, under the new law, gets jurisdiction to try them."
"It is also true that no litigant has any vested right in the matter of procedural law but, where the question is of change of forum, it ceases to be a question of procedure only. The forum of appeal or proceedings is a vested right as opposed to pure procedure to be followed before a particular forum. The right becomes vested when the proceedings are initiated in the Tribunal or the court of first instance and, unless the Legislature has, by express words or by necessary implication, clearly so indicated, that, vested right will continue in spite of the change of jurisdiction of the different tribunals or forums."
22. In Shiv Shakti Coop. Housing Society, Nagpur Vs. Swaraj Developers & Ors. (2003) 6 SCC 659 in the context of the amended Section 115 C.P.C., a similar issue up before the Apex Court. It said that an appeal is essentially continuation of the original proceedings and the provisions applied at the time of institution of suit are to be operative even in respect of the appeals. That is because there is a vested right in the litigant to avail the remedy of an appeal. The right of appeal is only by statute. The right of appeal where it exist is a matter of substance and not of procedure. In para 17, it says:
"Right of appeal is statutory. Right of appeal inherits in no one. When conferred by statute it becomes a vested right. In this regard there is essential distinction between right of appeal and right of suit. Where there is inherent right in every person to file a suit and for its maintainability it requires no authority of law, appeal requires so."
23. The above authorities have also noticed the effect of Section 6 of General Clauses Act with regard to the effect of repeal. This has been taken note by Act 2003 also vide Section 185(5) and therefore, in absence of anything to show otherwise contained in Act 2003, in regard to the existing assessment proceedings as also the appellate proceedings, I have no manner of doubt that new Act has no application. The above exposition of law thus is well established and these binding judicial precedent leaves no manner of doubt to hold that the appeal herein would be governed by the provisions as were available on the date of institution of the suit, which in the present case, would be construed as the assessment proceedings. The date of initiation of assessment proceedings shall govern the provision pertaining to appeal. The provision that was available on the date of initiation of assessment proceedings would apply to the appeal also. The right of appeal is a substantive right and vest on the date when initial proceedings in suit, for the present purpose assessment proceeding, was instituted. However, the provision pertaining to forum is procedural and no one has a vested right therein. However if an appeal has been validly instituted before an appropriate forum in accordance with the statute, as it was applicable and available on the date of initiation of suit i.e. assessment proceeding in the present case, such appeal subsequently cannot be made to be governed by any change in the statute and would continue and would have to be decided by the same appellate forum without being influenced by any change in law. In this context, it can also be said that condition precedent for filing a valid appeal would be such as were applicable and contained in the provision pertaining to appeal when the right vested in the incumbent and therefore, the pre-deposit condition, if was not available in the former statute, the subsequent change cannot create an onerous condition upon the appellant so as to affect his right of appeal to his detriment unless the amended statute or new statute expressly or necessary implication provides otherwise. The issue No. (i) & (ii), as above, are answered accordingly.
24. Now the issue no.(iii) would have to be answered after having a bird eye view of the different provisions as available from time to time as also Section 127 of Act 2003.
25. When the first checking and assessment was made at petitioner's premises, provisions relating to assessment and appeal, as were made under Electricity Supply Act, 1948 (hereinafter referred to as "Act 1948") and continued by virtue of U.P. Electricity Reforms Act, 1999 (hereinafter referred to as "Act 1999") were applicable. Those provisions were substituted by Uttar Pradesh Electricity Supply Code, 2002 (hereinafter referred to as "Code 2002") came into force on 7.6.2002.
26. It would be appropriate to have an idea of above provision in a little bit detail. At least since 1984, terms and conditions of supply of electricity in the State of Uttar Pradesh were governed by Electricity Supply (Consumers) Regulations, 1984 (hereinafter referred to as "Regulations 1984"), framed by erstwhile Uttar Pradesh State Electricity Board (hereinafter referred to as "UPSEB") in exercise of powers under Section 79(c) of Act 1948. Regulation 23 governed assessment and appeal. As amended up to 1999 and continued as such even thereafter it reads as under:
"23. Assessment and Appeal.--(i) The Executive Engineer shall finalise all the assessment cases after giving an opportunity to the consumer to state his point of view.
(ii) If the consumer is dis-satisfied with the assessment so made, he may within 15 days of the receipt of assessment bill, appeal to the committee as constituted below, which shall hear and decide the cases according to the valuation mentioned against each:
(1) Committee at circle level:
A. Superintending Engineer Chairman up to Rs. 2.00 lakhs B. Deputy Chief Accounts Officer or Accounts Officer nominated by him Member C. Executive Engineer (Test) Member (2) Committee at Zonal level:
A. Chief Engineer (Zone) Chairman Above Rs.2.00 lakhs B. Deputy Chief Accounts Officer or where no Dy.C.A.O.
(iii) The appellate authority shall dispose off the appeal after considering the submission of the Appellant in the memorandum of appeal, the material placed before him by the Appellant and the enquiry records. It shall not be obligatory for the Appellate Authority to give a personal hearing, but if a request is made in that behalf he may grant such hearing to the Appellant The Appellant may be represented at such hearing by a legal practitioner or any person duly authorised in that behalf.
(iv) The appellate authority may:
(a) confirm, reduce, enhance or annual the assessment, or
(b) set aside the assessment and order fresh disposal of the case with or without further enquiry, or
(c) conduct a further enquiry itself or call for a report from the lower authorities and dispose off the appeal in the light of such further enquiry or report, or
(d) pass such other orders as it deems fit:
Provided that no orders adverse to the consumer shall be passed without giving notice and opportunity for a written representation to the consumer:
Provided further that if the consumer fails to turn-up inspite of giving reasonable opportunity of being heard the appellate authority may proceed ex parte and decide the case on merits.
(v) The appellate authority shall give reasons for his conclusions except in cases where the appeal is allowed in toto. The order in appeal shall be final and binding on the consumer.
(vi) The period of assessment for malpractice and pilferage of electricity or dishonest abstraction of energy or other irregular use of energy shall be in accordance with the procedure laid down in Annexure-1:
Provided that the inspection of the meter made by the Meter reader or other representative of the Board for the purposes of meter reading shall not be deemed as inspection of the installation.
(vii) For the inspection of malpractice, pilferage or theft of energy, toe supplier's representative shall have the right to access to the premises of the consumer at any time, it is needed. The supplier's representative, before entry into the premises shall disclose his identity and thereafter enter into the premisses and the consumer shall not detain him in performing the duty. Any obstruction caused in inspection of the premises will make liable the connection to be summarily disconnected forthwith besides such other actions as are permissible under these regulations.
27. The Act 1999 was promulgated after assent of the President and publication in U.P. Gazette (Extra ordinary) on 7th July, 1999. It came into force on 14th January, 2000 vide Section 1(3) read with the notification dated 14th January, 2000. It prevailed over Electricity Act, 1910 (hereinafter referred to as "Act 1910") and Act 1948 to the extent provisions were inconsistent to Act 1999 and the manner and to the extent provided in Section 54. However, existing provisions in so far as not otherwise to the provision in Act 1999, continued by virtue of Section 54 and 55 of Act 1999.
28. Learned counsel for the respondents did not dispute and this Court has also no doubt in its mind that after enforcement of Act 1999, conditions of supply contained in Regulations 1984 dealing with relationship of electricity supplier and retail consumers continued as such till Code 2002 was enforced i.e. 01.7.2002. When the assessment was made on 3.4.2002 obviously Regulation 23 of Regulations 1984 was in operation and therefore, the same was to be complied with. An appeal, if any, filed against the assessment order dated 3.4.2002 would obviously be governed by Regulation 23 of Regulations 1984.
29. On 7th June, 2002 U.P. Electricity Regulatory Commission (hereinafter referred to as "UPERC") constituted under Section 3 of Act 1999 enforced a new set of provisions i.e. Code 2002 dealing with various aspect of electricity including terms and conditions of supply of electricity etc. between licensee i.e. electricity supplier and the consumer. The order passed by UPERC shows that Regulations 1984 covered conditions of supply of electricity to retail consumers but after enactment of Act 1999, UPERC was assigned functions under Section 10 to regulate distribution, supply, utilization of electricity, issuance of licence for regulation of working of licensee and to set the standards of service for consumers as well as electricity industry in the State. In furtherance thereof, Code 2002 was prepared and enforced which came into force on 1st July, 2002. It was made operative in the area served by U.P. Power Corporation Ltd., Kanpur Electricity Supply Company and Noida Power Company Ltd.. The provisions relating to billing/assessment of a consumer of electricity on account of theft, excess load, unauthorized use of electricity etc. contained in para 6.17 to 6.22 and 7.18 to 7.20. The appellate forum was constituted in para 7.20 of Code 2002. The procedure for assessment as also appellate committee under Code 2002 is pari materia to Regulation 23 of Regulations 1984 with minor variations having no consequence in respect to constitution, limitation etc. Neither in Regulation 23 of Regulations 1984 nor in Code 2002 there was any provision for pre deposit of any amount to maintain an appeal before appellate authority thereunder. The second assessment was made on 13.12.2002. In view of the above discussion, it is thus evident that aforesaid assessment dated 13.12.2002 would be governed by provisions of Code 2002 and therefore an appeal also could have been filed complying the provisions thereof.
30. In 2003 Parliament intervened and to consolidate the laws relating to generation, transmission, distribution, trading and use of electricity etc. a comprehensive enactment namely Act 2003 was promulgated. It was published in Gazette of India on 10th June, 2003 and vide notification dated 10th June, 2003 under Section 1(3) of Act 2003 to the extent of entire enactment except Section 121, which deals with the power of Chairperson of Appellate Tribunal, a provision which has nothing to do with the present matter. Vide Section 185 of Act 2003, earlier enactments namely Act 1910, Act 1948 and Electricity Regulatory Commissions Act, 1998 were repealed except to the extent save as otherwise in Act 2003. Sub section 2 of Section 185 also protects existing provisions in so far as not inconsistent with the provisions of Act 2003. For better understanding Section 185 may be reproduced as under:
"Section 185. (Repeal and saving): --- (1) Save as otherwise provided in this Act, the Indian Electricity Act, 1910, the Electricity (Supply) Act, 1948 and the Electricity Regulatory Commissions Act, 1998 are hereby repealed.
(2) Notwithstanding such repeal, -
(a) anything done or any action taken or purported to have been done or taken including any rule, notification, inspection, order or notice made or issued or any appointment, confirmation or declaration made or any licence, permission, authorisation or exemption granted or any document or instrument executed or any direction given under the repealed laws shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this Act.
(b) the provisions contained in sections 12 to 18 of the Indian Electricity Act, 1910 and rules made thereunder shall have effect until the rules under section 67 to 69 of this Act are made;.
(c) the Indian Electricity Rules, 1956 made under section 37 of the Indian Electricity Act, 1910 as it stood before such repeal shall continue to be in force till the regulations under section 53 of this Act are made.
(d) all rules made under sub-section (1) of section 69 of the Electricity (Supply) Act, 1948 shall continue to have effect until such rules are rescinded or modified, as the case may be;
(e) all directives issued, before the commencement of this Act, by a State Government under the enactments specified in the Schedule shall continue to apply for the period for which such directions were issued by the State Government.
(3) The provisions of the enactments specified in the Schedule, not inconsistent with the provisions of this Act, shall apply to the States in which such enactments are applicable.
(4) The Central Government may, as and when considered necessary, by notification, amend the Schedule.
(5) Save as otherwise provided in sub-section (2), the mention of particular matters in that section, shall not be held to prejudice or affect the general application of section 6 of the General Clauses Act, 1897, with regard to the effect of repeals."
31. The schedule appended to Act 2003 referred to in Section 185(3) included Act 1999 also.
32. Now straightway I come to Section 127 to consider whether appeal in question could have been decided by Commissioner. It reads as under:
"Section 127. (Appeal to Appellate Authority): --- (1) Any person aggrieved by the final order made under section 126 may, within thirty days of the said order, prefer an appeal in such form, verified in such manner and be accompanied by such fee as may be specified by the State Commission, to an appellate authority as may be prescribed.
(2) No appeal against an order of assessment under sub-section (1) shall be entertained unless an amount equal to 3[half of the assessed amount] is deposited in cash or by way of bank draft with the licensee and documentary evidence of such deposit has been enclosed along with the appeal.
(3) The appellate authority referred to in sub-section (1) shall dispose of the appeal after hearing the parties and pass appropriate order and send copy of the order to the assessing officer and the appellant.
(4) The order of the appellate authority referred to in sub-section (1) passed under sub-section (3) shall be final.
(5) No appeal shall lie to the appellate authority referred to in sub-section (1) against the final order made with the consent of the parties.
(6) When a person defaults in making payment of assessed amount, he, in addition to the assessed amount shall be liable to pay, on the expiry of thirty days from the date of order of assessment, an amount of interest at the rate of sixteen per cent, per annum compounded every six months."
33. The very opening sentence of Section 127(1) says that appeal entertainable under Section 127 must be against a final order made under Section 126 of Act 2003. Thus, appeal under Section 127 is confined to the order passed under Section 126 and not others. The requirement to apply sub-section 2 also would be confined to only those appeals which are entertainable under sub section 1 of Section 127. The legislature knew that several existing provisions are being altered, repealed etc. and there could have been a lot of cases where assessment in different provisions must have been made by electricity suppliers throughout the country yet it has confined right of appeal under Section 127(1) of Act 2003 to only those orders which are passed under Section 126 and none else. Evidently there could not have been an order under Section 126 earlier to the date of enforcement of Act, 2003. The statute thus did not contemplate appeal under Section 127 against an order under previous law. The Court cannot read anything into a statutory provision, which is otherwise plain and unambiguous. A statute is an edict of the Legislature. The Language employed in a statute is the determinative factor of legislative intent. The object of interpreting a statute is to ascertain the intention of Legislature making it. Words and phrases are symbols that stipulate mental references to referents. The intention of Legislature is primarily to be gathered from the language used. Attention should be paid to what has been said as also to what has not been said. As a consequence, a construction which requires for its support, addition or substitution of words or which results in rejection of words as meaningless has to be avoided. There is no presumption of casus omissus in statute. We cannot add or mend or construe a provision treating it to be deficient in some manner though by plain and simple reading it is not so. Rules of interpretation do not permit a Court to read certain words into a statute unless the provision as it stands is meaningless or of doubtful meaning. Statutes should be construed not as theorems of Euclid but words must be construed with some imagination of the purposes which lie behind them. The two principles of construction which are well settled are that a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute. At the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute.
34. In the present case knowing it well that in the previous laws, there were provisions for assessment etc. yet a new provision with certain different scheme has been enacted in Section 126 and a quasi judicial forum with respect to assessment and appeal etc. has been provided under Section 127 also. The Legislature has intentionally confined it only to those acts of licensee which are taken in/under the Act 2003 and not in/under the previous law. The vested right therefore in the provisions of previous statute on this aspect has not been touched upon in any manner, either expressly or by necessary implication. On the contrary, a bare reading of Section 127 show that legislature did not intend to influence in any manner the existing assessments or the assessments in process under the previous law and the appellate and other forum provided in the previous law. The existing proceedings in regard to assessments and appeals have allowed to continue as such being untouched by Act 2003.
35. The logical corollary would not be that matters pending on the date of enforcement of Act 2003 would stand closed or that assessment under the existing provisions before Act 2003 would cease for all purposes frustrating or abating pending proceedings. Section 185(2) & (5) makes it very clear that existing provisions, orders etc. would continue to the extent provisions are not inconsistent to Act 2003. With respect to pending proceedings, Act 2003 does not make a declaration that the same would cease to operate. This is protected by sub section 2 and 5 of Section 185. The existing provisions with regard to assessment and right of appeal under the then existing statute against those orders thus would continue to be governed by earlier provisions.
36. In my view, therefore in respect to assessment orders made before enforcement of Act 2003, provisions pertaining to appeal, as were existing prior thereto, would continue and appeals could/would be filed and decided accordingly without making any reference to provisions of Act 2003. The mere enforcement of Act 2003 has not resulted in abolition of appellate authorities constituted under Regulations 1984 and continued on enforcement of Code 2002. This is fortified from the fact that even in 2004 Appellate Committee existed, functioned and considered consumers appeal in the present case.
37. The question whether Forum and other conditions are procedural or substantive, all would depend on relevant provisions. Act 2003 has not abolished existing appellate forums. The new appellate forum has been constituted to consider appeals only in respect to orders passed under the new Act and not under the earlier one. Meaning thereby, earlier and pending matters would continue to be governed by earlier provisions without being adversely affected in any manner by Act 2003. Moreover, appeal in the present case was not filed for the first time by the petitioner before the Commissioner but it was filed on 16.08.2003 before the Appellate Committee in accordance with provision as applicable at the relevant time. The Appellate Committee did not find any defect or deficiency in petitioner's appeal. At no point of time Appellate Committee ever required petitioner to make any deposit. It was in fact never conceived that appeal filed by petitioner was defective on account of non payment of any part of assessed amount. Only when it was transferred to Commissioner, respondents took recourse to Section 127(2) and Commissioner insisted upon petitioner to deposit 1/3rd amount and comply Section 127(2) without applying his mind that it was not an appeal filed before him but it was an appeal filed before Appellate Forum under the then existing statutory provision. The then existing provision hereat would mean the provisions as applicable when process of assessment was initiated against petitioner under existing provisions namely Regulations 1984 so far as the first assessment proceedings finalized on 3.4.2002 is concerned; and, Code 2002, so far as the subsequent final assessment dated 13.12.2002 is concerned.
38. As already said, this Court has no authority to expand a provision which is clear, unambiguous and explicit. From a reading of Section 127 I find no difficulty in holding that appeal, which is not against an order under Section 126, cannot be filed under Section 127 and in such matter Section 127 would have no application at all.
39. In the ultimate discussion, the Court comes to the conclusion that appeal was rightly held by Commissioner as not maintainable but the reasons assigned by him and the ultimate order that appeal deserve to be dismissed are incorrect, illegal hence cannot sustain. The writ petition is partly allowed. The impugned order passed by Commissioner to the extent of dismissing the appeal is hereby set aside. Respondent No.4 is directed to transmit back the record of appeal to the Appellate Forum as contemplated under Regulations 1984/Code 2005, as the case may be, within a month from today, who shall consider and decide the said appeal expeditiously and without any further delay and in any case within three months after receipt of record from respondent no.4.
40. Cost made easy.
Order Date :- 14.3.2012 KA