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2005 DIGILAW 357 (CAL)

C. E. S. C. LTD v. APPELLATE AUTHORITY

2005-06-06

GIRISH CHANDRA GUPTA

body2005
Girish Chandra Gupta ( 1 ) THE subject-matter of challenge in this writ petition is an order passed by the Appellate Authority on 25th April, 2002. ( 2 ) THE facts of this case briefly stated are that a bill for a sum of rs. 14 lakhs was issued by the writ petitioner-CESC Ltd. , to the Respondent no. 3. The correctness and legality of the bill was disputed by the respondent No. 3. The same was challenged before this Court in its writ jurisdiction which was registered as W. P. No. 13638 (W)/1999. In the said writ petition an order was passed on 17th August, 1999 directing the respondent No. 3, in the present writ and the writ petitioner in the aforesaid writ, to deposit a sum of Rs. 5 lakhs and to deposit a further sum of rs. 1,50,000/- within a fortnight thereafter, without prejudice to the rights and contentions of the parties and the dispute was referred to the Chief electrical Inspector, West Bengal. The CESC Ltd. , was restrained from disconnecting the supply of electricity in the event the aforesaid deposits were made. The order directing payment of a sum of Rs. 1,50,000/-, besides rs. 5 lakhs, was, however, stayed by the Appeal Court by an order dated 3rd September, 1999. ( 3 ) THE matter was thereafter taken up by the Chief Electrical Inspector, west Bengal. The Chief Electrical Inspector after taking evidence directed cancellation of the disputed bill. ( 4 ) THE CESC Ltd. , preferred an appeal before the Appellate Authority and a prayer was made on behalf of the CESC Ltd. , for remand of the matter. The Appellate Authority conceded to the prayer of CESC Ltd. , and remanded the matter. The Chief Electrical Inspector, West Bengal, reheard the matter and came to the same conclusion. One of the reasons assigned by him was as follows :-"the consumption during the disputed period was akin to the consumption during the corresponding succeeding and preceding undisputed period. Hence, allegation of unmetered consumption by the CESC Ltd. against the consumer is not tenable. As such the order no. CEI/693 dated 2. 3. 2000 may be upheld. " ( 5 ) THE Appellate Authority after hearing the submissions made by the parties dismissed the appeal. ( 6 ) CHALLENGING the order of dismissal, the present writ petition was filed. ( 7 ) MR. As such the order no. CEI/693 dated 2. 3. 2000 may be upheld. " ( 5 ) THE Appellate Authority after hearing the submissions made by the parties dismissed the appeal. ( 6 ) CHALLENGING the order of dismissal, the present writ petition was filed. ( 7 ) MR. Bose, the learned Advocate, appearing in support of the writ petition, submitted that most important point has remained unnoticed both by the Chief Electrical Inspector and the Appellate Authority which, according to him, is the question "whether the seals were tampered"? ( 8 ) MR. Bose further submitted that no answer to this question has been given either by the Chief Electrical Inspector or by the Appellate authority and, therefore, there has been no real adjudication and the order passed by the Appellate Authority as also the Chief Electrical Inspector should be quashed. He at the same time submitted that the Chief Electrical inspector is not competent to examine the genuineness of the seal and in support of his case he relied on the following sentence appearing in an order passed in some other matter by the Joint Chief Electrical Inspector which is appearing at page 34 and the relevant portion is at page 35 of the writ petition which reads as follows :-"in the light of the submissions and the counter-submissions on the above matter by both the sides, we may say that determination of alleged charges of tampering of body seals and probable consequence therefore is beyond the scope of this Department. " ( 9 ) HE submitted that this sentence is a clear pointer to show that the authority, in question, does not have requisite expertise or the machinery to test the genuineness of the seals and, therefore, the order passed by the appellate Authority cannot be allowed to stand. ( 10 ) THE submission of Mr. Bose is rather tricky. On the one hand, the counsel suggests that the most important question, quoted above verbatim, has not been considered, and on the other he is saying that the authority, in question, is not competent to considerthe question. If the authority is not competent to consider this question, then where is the question of failure on the part of the authority to consider that question. If the authority is not competent to consider this question, then where is the question of failure on the part of the authority to consider that question. If that was the real question, which, according to the petitioner, Chief Electrical Inspector was incompetent to consider, then the writ petitioner should not have agreed to have the matter resolved by the Chief Electrical Inspector. He should have taken exception to the order dated 17th January, 1999 which he obviously did not. ( 11 ) BY the order dated 17th August, 1999 the dispute was referred to the Chief Electrical Inspector, West Bengal. The petitioner pursuant to that order got the matter heard by the Chief Electrical Inspector; took a chance of a favourable decision and now that he has failed to secure a favourable decision it has turned round and questioned competence of the authority itself. This is anything but bona fide. ( 12 ) SECONDLY, it does not appear from the sentence quoted above that the Chief Electrical Inspector is not competent to Judge the genuineness of the seals. What the sentence can at best mean is that genuineness of the seal is not within the scope of his enquiry. This might have been true in that case. The sentence quoted above cannot be stretched to mean that the authority lacks competence to Judge the genuineness of the seals. Moreover, it is not the case of the petitioner that evidence as to ungenuineness of the seals was laid but has not been considered by the chief Electrical Inspector. ( 13 ) MR. Bose suggested that a particular department of the Jadavpur university and the B. E. College are alone competent to examine the genuineness of the seals and the matter should be referred to them. If there is any substance in the claim, the concerned department of the jadavpur University or the B. E. College could have been called as a witness. But to suggest that they should be made Judges is rather a heresy because that would amount to referring a dispute to a party's advisor which in fact and reality would amount to making the party a Judge in his own cause. ( 14 ) THIRDLY, there is inherent incongruity in the submission of Mr. Bose. But to suggest that they should be made Judges is rather a heresy because that would amount to referring a dispute to a party's advisor which in fact and reality would amount to making the party a Judge in his own cause. ( 14 ) THIRDLY, there is inherent incongruity in the submission of Mr. Bose. According to him the real question was "whether the seals were tampered?" the word 'tamper', according to Webster's Dictionary means as follows "to meddle; interfere". Therefore, the real question according to him is whether the seals have been interfered with or whether there has been any attempt to damage or falsify the seals. It is not the case of the petitioner that the seals have been replaced. Therefore, the genuineness of the seal has not even been brought into question by the petitioner. His case at the highest is that there has been interference or damage done to the seals. If that is the case then genuineness of the seal is not even in dispute. How is therefore the genuineness of the seal a point for consideration? ( 15 ) MR. Bose lastly submitted that the tampering of the seal is itself evidence of theft of electricity. Electricity is an intangible object. It can be put to use for running electrical appliances and for no other purpose. When the finding is that the pre bill and post bill consumption is the same, the allegation of theft of energy loses credibility altogether. The consumer cannot reasonably be expected to have used energy except for running its machinery. The fact that the pre and post dispute consumption remained the same belies the allegation of theft. The alleged tampering of seals except for the purpose of theft of electricity is not believable either. When case of theft of electricity has not been proved it is difficult to believe that the consumer tampered the seals as alleged by the petitioner. ( 16 ) THIS writ petition for the aforesaid reasons is dismissed. The petitioner must pay costs assessed at 600 G. Ms. ( 17 ) IN view of the dismissal of the writ petition the writ petition, being w. P. No. 8391 (W) of 2002, becomes infructuous and the same is also dismissed. Mr. Bose prayed for stay of operation of this order. His prayer is considered and refused. The petitioner must pay costs assessed at 600 G. Ms. ( 17 ) IN view of the dismissal of the writ petition the writ petition, being w. P. No. 8391 (W) of 2002, becomes infructuous and the same is also dismissed. Mr. Bose prayed for stay of operation of this order. His prayer is considered and refused. Urgent xerox certified copy of this order, if applied for, be delivered.