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2006 DIGILAW 680 (CAL)

MEHDI HASSAN v. STATE OF WEST BENGAL

2006-11-07

DEBASISH KAR GUPTA

body2006
Before Mr. Justice Debasish Kar Gupta, JJ. ( 1 ) THE petitioner files this application under Article 226 of the constitution challenging the action on the part of the respondent authorities in disconnecting the electric supply line of the petitioner at 4/5, Tiljala shibtala Lane, Kolkata-700 039, in respect of Meter Nos. 1700323/3266613 on August 23, 2003. ( 2 ) THE fact of the case in a nutshell is this on August 23, 2003 the respondent Nos. 5 and 6 along with the police officers of Karaya Police station came to the workshop of the petitioner at 4/5, Tiljala Sibtala Lane, kolkata-700 039 and disconnected the electricity connection in respect of meter Nos. 1700323/3266613 and subsequently the petitioner received an order of provisional assessment dated August 23, 2003 of the Assessing officer in respect of the above supply. It appears from the above communication that the aforesaid electricity supply line was disconnected by the respondent authority in accordance with the provisions of Clause 23 (a) of conditions of supply sanctioned/approved by the appropriate government under Indian Electricity Act, 1910 on the allegation of direct connection found from Cutouts by passing the Meter. By that communication the respondent authority made provisional assessment of unauthorised use of electricity to the tune of Rs. 5,75,423/- enclosing a calculation sheet thereof. The petitioner was given opportunity to file written objection if any, within 21 days from the date of the order of provisional assessment. The petitioner was also directed to meet the concerned officer for fixing a date of hearing. Hence this writ application. ( 3 ) APPEARING on behalf of the petitioner Mr. Javed Kumar sanwarwala, learned Advocate submits that the aforesaid order of provisional assessment dated August 23, 2003 cannot be sustained in law because it was not open for the respondent authority to take action in accordance with the provisions of the Indian Electricity Act, 1910 after the promulgation of the Electricity Act, 2003. Mr. Sanwarwala further submits that there is a transitional provision under Section 172 of the Electricity act, 2003 for continuation of the repealed law for a period not exceeding one year from the appointed date of the Electricity Act, 2003 but the same relates to Part-IV containing Sections 12 to 24 of the Electricity Act, 2003. Mr. Sanwarwala further submits that there is a transitional provision under Section 172 of the Electricity act, 2003 for continuation of the repealed law for a period not exceeding one year from the appointed date of the Electricity Act, 2003 but the same relates to Part-IV containing Sections 12 to 24 of the Electricity Act, 2003. Part-IV of the Electricity Act, 2003 only deals with the relationship of the appropriate commission and the licensee and the same has no manner of application in the matter of a dispute in between the licensee i. e. the CESC ltd. , and the consumer. ( 4 ) MR. Sanwarwala further submits that assuming that the provisions of the Indian Electricity Act, 1910 were applicable in this case, the respondent authority failed to comply with the statutory obligations as provided under Clause 29 (c) of the conditions of supply because there was no provision to assess any amount for alleged unauthorised use of electricity without issuing a notice to the consumer giving reasons for disconnection and advising the consumer to make his written representation, if any, within the period specified in the notice. ( 5 ) MR. Ashok Kumar Banerjee, learned Senior Advocate appearing on behalf of the respondent Nos. 2 to 6 submits that the appointed date for coming into force of the Electricity Act, 2003 was June 10, 2003. In accordance with the provisions of sub-section (b) of Section 172 all licences, authorisations, approvals, clearances and permissions granted under the provisions of the repealed law continued to operate as if the repealed laws were in force with respect to such licences, authorisations, approvals, clearances and permissions as the case may be for a period not exceeding one year from the appointed date of the Electricity Act, 2003. In this case the date of disconnection of the electric supply in question was August 23, 2003 i. e. well within one year from the appointed date of the Electricity Act, 2003. As such the respondent authorities took steps against the petitioner in accordance with the provisions of Clause 29 (a) of the conditions of supply framed under the Indian Electricity Act, 1910. Mr. Banerjee further draws my attention towards the statements made in Paragraph-IV of the affidavit-in-opposition affirmed on behalf of the respondent Nos. As such the respondent authorities took steps against the petitioner in accordance with the provisions of Clause 29 (a) of the conditions of supply framed under the Indian Electricity Act, 1910. Mr. Banerjee further draws my attention towards the statements made in Paragraph-IV of the affidavit-in-opposition affirmed on behalf of the respondent Nos. 2 to 6 to show that immediately after disconnection of the electricity line in question FIR was lodged with the Karaya Police Station on August 23, 2003 by the respondent authority. Mr. Banerjee further draws my attention towards the final order of assessment of unauthorised use of electricity dated September 24, 2003 (at page 19 of the affidavit-in-opposition) passed by the Assessing Officer-l of CESC Ltd. , as also the bill dated September 24, 2003 (at page 22 of the affidavit-in-opposition) amounting to Rs. 7,63,248. 00/- raised thereof. Mr. Banerjee further submits that the aforesaid final order of assessment of unauthorised use of electricity is an appealable order in accordance with the provisions of clause 30 of the above conditions of supply. But, the petitioner did not prefer an appeal against such final assessment. Mr. Banerjee relies upon a decision in the matter of Assistant Engineer, Nabdwip Group Electric supply and Anr. v. Pradip Chandra Roy, reported in AIR 1997 Cal 116 to show that the power of the respondent authority to disconnect the electricity line of a consumer as provided in Clause 29 (a) of the aforesaid condition of supply has been upheld by a Division Bench of this Court. ( 6 ) I have heard the learned Counsels appearing for the respective parties and have considered the materials-on-record. In order to examine the question of applicability of the provisions of Indian Electricity Act, 1910 and the conditions of supply framed thereunder, after the promulgation of the Electricity Act, 2003, the provisions of Section 172 of the Electricity act, 2003 are quoted below: - "172. In order to examine the question of applicability of the provisions of Indian Electricity Act, 1910 and the conditions of supply framed thereunder, after the promulgation of the Electricity Act, 2003, the provisions of Section 172 of the Electricity act, 2003 are quoted below: - "172. transitional provisions-Notwithstanding anything to the contrary contained in this Act- (a) A State Electricity Board constituted under the repealed laws shall be deemed to be the State Transmission Utility and a licensee under the provisions of this Act for a period of one year from the appointed date or such earlier date as the State Government may notify, and shall perform the duties and functions of the State transmission Utility and a licensee in accordance with the provisions of this Act and rules and regulations made thereunder: -Provided that the State Government may, by notification, authorise the State Electricity Board to continue to functions as the state Transmission Utility or a licensee for such further period beyond the said period of one year as may be mutually decided by the Central government and the State Government; (b) AII licences, authorisations, approvals, clearances and permissions granted under the provisions of the repealed laws may, for a period not exceeding one year from the appointed date or such earlier period; as may be notified by the Appropriate Government, continue to operate as if the repealed laws were in force with respect to such licences, authorisations, approvals, clearances and permissions, as the case may be, and thereafter such licences, authorisations, approvals, clearances and permissions shall be deemed to be licences, authorisations, approvals, clearances and permission under this Act and all provisions of this Act shall apply accordingly to such licences, authorisations, approvals, clearances and permissions; (c) The undertaking of the State Electricity Boards established under Section 5 of the Electricity (Supply) Act, 1948 (54 of 1948)may after the expiry of the period specified in Clause (a) be transferred in accordance with the provisions of Part-XII of this Act; (d) The State Government may, by notification, declare that any or all the provisions contained in this Act, shall not apply in that state for such period, not exceeding six months from the appointed date, as may be stipulated in the notification. " ( 7 ) IT appears from the provisions of sub-section (b) of the Section 172 of the Electricity Act, 2003 that all licences, authorisations, approvals, clearances and permissions granted under the provisions of repealed law are to operate, as if, the repealed laws were in force with respect to such licences, authorisations, approvals, clearances and permissions, as the case may be, for a period not exceeding one year from the appointed date of the Electricity Act, 2003. In view of the above, in my opinion, the licensee in tins case, i. e. CESC Ltd. , was required to discharge its functions in accordance with the provisions of Electricity Act, 1910 including taking steps for disconnection in the matter of pilferage of electricity in accordance with the provisions of Clause 29 (a) of the conditions of supply framed under the Indian Electricity Act, 1910 for a period not exceeding one year from the appointed date of the Electricity Act, 2003, i. e. from June 10, 2003 considering the date of the impugned action of disconnection of electricity line in question on August 23, 2003 and taking subsequent actions in the matter. It is necessary to mention here that there is a non-obstante clause in the transitional provisions of Section 172 of the Electricity Act, 2003. With regard to the provisional assessment of unauthorised use of the electricity in question, I find that the notice dated August 23, 2003 was issued by the respondent authority to give an opportunity to the petitioner to file written objection as also to give an opportunity of hearing to the petitioner in compliance with the provisions of Clause 29 (c) of the conditions of supply framed under the Indian Electricity Act, 1910. In addition to that a further opportunity was given to the petitioner by the respondent authority making a provisional assessment to deposit that amount for restoration of electricity connection in question. In my opinion, there was sufficient compliance of the provisions of Clause 29 (c) of the condition of supply on the part of the respondent authority. Further, with regard to the final order of assessment of unauthorised use of electricity dated September 24, 2003 and raising of a bill dated September 24, 2003 in the matter, I find that there is a provision under Clause 30 of the aforesaid condition of supply to prefer an appeal against such final order of assessment. Further, with regard to the final order of assessment of unauthorised use of electricity dated September 24, 2003 and raising of a bill dated September 24, 2003 in the matter, I find that there is a provision under Clause 30 of the aforesaid condition of supply to prefer an appeal against such final order of assessment. In view of the above I am not inclined to pass any order in favour of the petitioner. The writ application stands dismissed.