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2006 DIGILAW 718 (CAL)

CESC Ltd. v. Pawan Kumar Kedia

2006-11-21

ASHIM KUMAR BANERJEE, TAPAN MUKHERJEE

body2006
Judgement ASHIM KUMAR BANERJEE, J. :- The respondent was a consumer of electricity under the appellants. On the allegation of pilferage his electricity connection was disconnected without any notice. He was served with a demand by the appellants after a provisional assessment of the loss occurred to the appellants due to such pilferage. The respondent No. 1 approached this Court by filing the above writ petition. By an interim order the electricity was restored upon payment of 50% of the amount so demanded. The writ petition was finally disposed of by the learned single Judge by judgment and order dated July 10, 2003 by which the writ petition was allowed. The Chief Electrical Inspector, West Bengal was directed to adjudicate the dispute between the parties upon giving appropriate hearing to them. 2. Being aggrieved by and dissatisfied with the judgment and order of the learned single Judge the appellants preferred the present appeal. 3. Mr. Lalit Kumar Poddar, learned counsel appearing for the appellants, contended before us that under the conditions of supply the appellants were empowered to adjudicate the disputes through their own officer and Chief Electrical Inspector was not appropriate authority to whom the dispute was referred by the learned single Judge. In support of his contention Mr. Poddar relied upon two Apex court decisions in the case of Madhya Pradesh Electricity Board v. Basanti Bai reported in All India Reporter 1988 SC 71 and M/s. Hyderabad Vanaspati Limited v. APSEB reported in AIR 1998 SC 1715 . Mr. Poddar also relied upon a decision by the Division Bench presided over by me in APO No. 351 of 2002 (CESC Limited v. Mangal Steel Enterprises) dated July 4, 2006. Mr. Poddar also contended that the said judgment order was taken up to the Apex Court level where Special Leave Petition was dismissed by an order dated October 13, 2006 as the Apex Court did not see any reason to interfere. He also relied on an identical decision of this Bench in APO No. 123 of 2003 (CESC Limited v. Lohia Mandalia) dated September 5, 2006. 4. Mr. Samit Talukdar, learned counsel appearing for the respondent contended that the decision cited by Mr. Poddar were holding the field and were based upon the well settled principles of law. He also relied on an identical decision of this Bench in APO No. 123 of 2003 (CESC Limited v. Lohia Mandalia) dated September 5, 2006. 4. Mr. Samit Talukdar, learned counsel appearing for the respondent contended that the decision cited by Mr. Poddar were holding the field and were based upon the well settled principles of law. He however, contended that those could not be applied in the instant case because of the peculiar facts and circumstances involved herein. Mr. Talukdar contended that in this case disconnection was effected in 1996 with the conditions of supply that did not stipulate the power of the CESC Limited to have the line disconnected on the ground of pilferage. Such condition came in force with effect from May 15, 2000 when the State of West Bengal approved such conditions of supply under the Indian Electricity Act, 1910 (hereinafter referred to as "the said Act of 1910"). Mr. Talukdar tried to distinguish the Apex Court decision in the case of Hyderabad Vanaspati ( AIR 1998 SC 1715 ) (supra). According to him, in the said case the condition of supply did stipulate such power which was not available to CESC Limited in 1996 when the electricity was disconnected. In support of his contention Mr. Talukdar also relied on a Division Bench judgment of this Court in the case of State of West Bengal v. Rupa Ice Factory, reported in 1997 (2) CHCN 254 where the Division Bench interpreted the phrase "improper use of energy" to include the case of pilferage. The Division Bench upheld the order of the Learned single Judge where the Electrical Inspector was asked to adjudicate upon the issue in question. 5. Mr. Talukdar also relied on a Single Bench decision of the Court in the case of Pankaj Kumar Mukherjee v. CESC Limited, reported in 1998 (2) CLT 399. 6. Paragraph 44 of the said decision was relied upon by Mr. 5. Mr. Talukdar also relied on a Single Bench decision of the Court in the case of Pankaj Kumar Mukherjee v. CESC Limited, reported in 1998 (2) CLT 399. 6. Paragraph 44 of the said decision was relied upon by Mr. Talukdar which is quoted below :- "After carefully considering the aforesaid decision of the Supreme Court, I am of the view that the aforesaid decision of the Supreme Court is not an authority for the proposition that in case of dispute relating to pilferage and amount of alleged unmetered consumption under Indian Electricity Act, 1910, the electrical inspector has no jurisdiction to decide the same and, therefore, it cannot be referred to the electrical inspector for adjudication of such disputes, even though no provision of the same rules, regulations, conditions of supply or agreement empowers the licensee to claim such amount. It appears to this Court that the aforesaid decision of the Supreme Court will not be applicable in the instant case as the aforesaid question was never an issue before the Supreme Court." 7. Mr. Talukdar lastly contended that the learned Judge rightly directed the Chief Electrical Inspector to go into the controversy and no interference was called for in the instant appeal. 8. The decision of the Apex Court in the case of Hyderabad Vanaspati ( AIR 1998 SC 1715 ) (supra) and Madhya Pradesh Electricity Board (supra) are still holding the field. Relying on the said two decisions we delivered our judgment and order in the case of Lohia Mandalia (supra). Identical view was taken by the other Division Bench presided over by me in the case of Mangal Steel Enterprises (supra) which stood affirmed by the Apex Court. 9. The Division Bench decision in the case of Rupa Ice Factory (supra) has been considered by us. In the said case the issue raised herein was not seriously argued before Their Lordships. In the said case the issue of arbitration was highlighted and canvassed before the Division Bench. It was also contended before the Division Bench as to whether the pilferage could come within the scope of "improper use of energy". In that context the Division Bench made a judicial review of the entire aspect and upheld the claim of the State Electricity Board to the extent stipulated therein. In paragraph 10 of the said decision the Division Bench framed the issues. In that context the Division Bench made a judicial review of the entire aspect and upheld the claim of the State Electricity Board to the extent stipulated therein. In paragraph 10 of the said decision the Division Bench framed the issues. Issue No. 2 is quoted below :- "Whether WBSEB had the authority to determine the quantum of unmetered consumption in cases of pilferage and raise bills on the basis thereof?" 10. Such issue was dealt with in paragraphs 23 to 40. We, however, find on perusal of the said paragraphs that the question which is now being raised in this appeal was not considered in detail by the other Division Bench possibly because of the reason the authority of the Chief Electrical Inspector was not seriously called in question in the said appeal. Paragraphs 35, 36, 37, 39 and 40 were relied upon my Mr. Talukdar. We have not only perused the said paragraphs but also carefully considered all the paragraphs under issue No. 2. On perusal of the said paragraphs we find that such question was not raised as such before Their Lordships. Hence, the ultimate direction of the Division Bench upon the Chief Electrical Inspector cannot be applied in the instant case. 11. The decision of the learned single Judge in the case of Pankaj Kumar Mukherjee (supra), however, is relevant as we find from paragraph 44 quoted (supra). We are, however, unable to convince ourselves to agree with such finding of His Lordships in view of the Apex Court decisions referred to above. 12. Mr. Talukdar also relied upon another single Judge decision of this Court in the matter of Hanuman Steel Rolling Mill v. CESC Limited, reported in 1996 (1) CHN 469 : ( AIR 1996 Cal 449 ). Paragraph 105 of this judgment was relied upon by Mr. Talukdar which is quoted below (at p. 464 para 104 of AIR) :- "The question which now arises is as to in case of such disconnection and in case any pilferage is alleged whether the respondent can unilaterally assess the alleged damages suffered by it. In my opinion it cannot do so in absence of any regulation. The quantum of damages suffered depends on facts of each case. In my opinion it cannot do so in absence of any regulation. The quantum of damages suffered depends on facts of each case. A licensee in absence of any statute cannot make a unilateral demand purported to be on the basis of a formula which is not within its authority to adopt. It is, therefore, necessary that even in such a case principles of natural justice are required to be complied with. However, as indicated hereinbefore the words "improper use of electrical energy" find place not only in sub-paragraph 3 of paragraph VI of the schedule appended to the Indian Electricity Act but also in Section 44 thereof. According to Mr. Pal, the words "improper use of electrical energy" cannot amount to a matter which comes within the purview of sub-sections 39 and 44 of the Indian Electricity Act. The said submission cannot be accepted in view of the fact that clause (d) of Section 44 makes improper use of energy of a licensee a punishable offence. Thus, where the damages suffered by a licensee is required to be quantified by such improper uses of energy, evidently the Chief Electricity Inspector is entitled to consider as to whether there has been an improper use of electrical energy or not in terms of sub-paragraph 3 of paragraph VI of the schedule appended to the Act and in all such circumstances, where charge is made that the consumer has improperly used the electrical energy, the Chief Electrical Inspector will have the jurisdiction to adjudicate upon the said issue. As a necessary corollary he will also have the jurisdiction to decide the quantum of losses suffered by the licensee as otherwise a finding on such improper use of electrical energy may become academic. Paragraph VI(3) of the schedule providing for an adjudicatory forum should be construed liberally." 13. For the reasons stated above we are unable to accept the view of the learned single Judge in the case of Hanuman Steel Rolling Mill ( AIR 1996 Cal 449 ) (supra) as to the authority of the Chief Electricity Inspector as in our view such observation was contrary to the Apex Court decisions referred to (supra). 14. Hence, we are of the view, that the subject issue is squarely covered by the Apex Court decisions referred to above and the order of the learned single Judge cannot be sustained. The appeal, therefore, succeeds. 14. Hence, we are of the view, that the subject issue is squarely covered by the Apex Court decisions referred to above and the order of the learned single Judge cannot be sustained. The appeal, therefore, succeeds. The order of the learned single Judge is set aside. The respondent is, however, given liberty to raise objections to the provisional assessment made by the appellants within a period of two weeks from date. The appropriate authority under the appellants would dispose of such objection giving reasonable opportunity of hearing to the representative of the respondent and by-passing a reasoned order. The reasoned order must be communicated to the writ petitioner/respondent within four weeks thereafter. The appeal is disposed of accordingly without any order as to costs. 15. Urgent xerox certified copy would be given to the parties, if applied for. 16. TAPAN MUKHERJEE, J. :- I agree. Appeal allowed.