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2005 DIGILAW 429 (CAL)

ASWINI KUMAR GIRI v. STATE OF WEST BENGAL

2005-07-08

JAYANTA KUMAR BISWAS

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Jayanta Kumar Biswas ( 1 ) THE writ petitioner, a consumer within the meaning of provisions of the Electricity Act, 2003, is aggrieved by the order of S. E. and Circle manager, Tamluk (D) Circle, dated June 17, 2005 disposing of his appeal preferred under section 127 of the Electricity Act, 2003. ( 2 ) CONTENTIONS raised by the petitioner are two fold : (i) the authority who made the order in the appeal was not competent to act as the Appellate Authority, (ii) his case regarding nature of the manufacturing activity of his factory was not considered by the authority for the purpose of determining which tariff rate would be applicable. ( 3 ) REGARDING the first contention, advocate for the petitioner argues that Section 176 (2) (u) of the Act empowered the Central Government to make rules for indicating who would be the Appellate Authority for the purpose of Section 127 (1) of the Act, and in exercise of such power the central Government made the appeal of the Appellate Authority Rules, 2004, rule 3, saying :"for the purposes of appeal under Section 127, the State government may designate by notification published in the Official gazette, a person who is a Gazetted Officer of the said Government or has been a District Judge or Officer of equivalent rank, as appellate Authority. " ( 4 ) ADVOCATE points out that while the rules made by the Central government were published in the Official Gazette on April 16, 2004, the state Government issued a notification dated March 12, 1004 (it was published in the Official Gazette on March 16, 2004), saying :"in exercise of the power conferred by sub-section (1) of Section 127 of the Electricity Act, 2003 [36 of 2 (x)] read with rule 3 of the west Bengal Electricity (manner of service of order of provisional assessment and Appellate Authority) Rules, 2003, the Governor is pleased hereby to notify that each of the following officers of the west Bengal State Electricity Board shall function as Appellate authority : (1) For a low and medium voltage consumer - Circle manager, (2) For a decentralized bulk consumer - Chief Engineer (Distribution ). (3) For a centralized bulk consumer - Chief Engineer (Commercial ). (3) For a centralized bulk consumer - Chief Engineer (Commercial ). " ( 5 ) ARGUMENT of the Advocate for the petitioner is that once the power to make rules for indicating the Appellate Authority was given to the Central Government, State Government was not authorised to issue any notification empowering any authority or person, other than the ones mentioned in the rules made by the Central Government, to act as the appellate Authority under Section 127 (1) of the Act. ( 6 ) ADVOCATE for the respondents argues that the Appellate authority is that authority as may be prescribed. For this he refers me to section 127 (1) of the Act. He says that Section 2 (52) of the Act defines the word prescribed to mean prescribed by rules made by the appropriate government under the Act. By referring me to Section 2 (5) (b) he says that since the respondent board is a state transmission utility within the meaning of Section 2 (67) read with Section 122 (under which the State government has already issued the requisite notification), for making rules to prescribe the Appellate Authority under Section 127 (1), the State government is the appropriate Government, and not the Central government. ( 7 ) HIS further argument is that while the Appellate Authority mentioned in the April 16, 2004 notification issued by the Central government. would be empowered to act as the Appellate Authority under section 127 (1) with respect to the company and things mentioned in section 2 (5) (a) of the Act, the authorities mentioned in the State government's notification dated March 12, 2004 would be empowered to act as the Appellate Authority with respect to a State transmission utility like the respondent board. ( 8 ) IN my view, arguments made by Advocate for the respondent board should be accepted. I agree with him that in view of provisions contained in Sections 2 (5), 2 (52), 2 (67), 39, 127 (1), 172, 176 and 180 of the Act, there can be no doubt that the State Government is the appropriate government for prescribing by rules the Appellate Authority under Section 127 (1) of the Act with respect to the respondent board. Hence I do not find any merit in the first contention raised by the petitioner in this case. Hence I do not find any merit in the first contention raised by the petitioner in this case. ( 9 ) I, however, find that the second contention of the petitioner has substantial force. It is apparent on the face of the impugned order that the Appellate Authority did not apply his mind to the second point raised in the appeal by the petitioner. From the order it will appear that the Appellate Authority enumerated three points stated to be raised by the petitioner before him. There is no dispute that tariff rate varies with the nature of the manufacturing activity of the factory. Same rate would not apply for production of ice-candy and ice-bars. Facing with the situation advocate for the respondents finds little to support the order of the appellate Authority. ( 10 ) IN my view, since the point raised is connected with disputed questions of fact, the Appellate Authority should give his finding. I think the impugned order should be set aside on this ground. ( 11 ) FOR these reasons I allow the writ petition and set aside the impugned order dated June 17, 2005 made by the Appellate Authority. Consequently bill raised and other steps taken by the respondents shall be deemed to be quashed. ( 12 ) I direct the Appellate Authority to give a fresh decision in the appeal after considering all the points raised in it, reasonable opportunity of being heard shall be given to the petitioner and the licensee. The decision shall be given within five working days from the date of receipt of a copy of this order by the Appellate Authority. It shall be communicated to the parties without any delay. ( 13 ) THERE shall be no order for costs in the writ petition. Xerox copy of this order duly countersigned by the Assistant registrar (Court) shall be given to the parties, on usual undertakings. Urgent certified xerox copy of this order shall be given to the parties, if applied for.