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2009 DIGILAW 781 (CAL)

CESC Ltd. v. Appellate Side Authority

2009-10-20

SANJIB BANERJEE

body2009
Judgment 1. The licensee has challenged an order dated June 10, 2009 passed by the appellate authority in proceedings under section 127 of the Electricity Act, 2003. 2. Some of the undisputed facts may be first recorded. The licensee made an attempt to disconnect the supply to the respondent consumer on July 26, 2007 following an inspection. It is the licensee's contention that such inspection revealed that there was unauthorized use of electricity by the second respondent, but the licensee could not immediately disconnect the supply due to "aggressive resistance" from the consumer. The licensee contemporaneously reported the matter to the local police authorities and a First Information Report was lodged. It was the licensee's assertion before the appellate authority that the police failed to discharge their duties to provide support to the licensee to disconnect the supply. The licensee thereafter attempted a further inspection on February 25, 2009 presumably with police support, whereupon discovering pilferage of electricity the line was disconnected from outside the consumer's premises. A provisional order of assessment was made. 3. Following the consumer's objection to the provisional assessment, a hearing was afforded to the consumer. The final order of assessment followed. Such final assessment was carried by the consumer in appeal which culminated in the order impugned in the present proceedings. 4. There are two grounds which have been raised by the licensee. The first ground is that the appellate authority failed to appreciate the purport of section 126(5) of the Act in refusing to acknowledge the licensee's right to charge the consumer from a year prior to the initial inspection of July 26, 2007. The second grievance is that the appellate authority required the assessment to be made on the basis of 12 months rather than 365 days preceding the date of inspection. 5. As to the first ground urged by the licensee, there appears to be a legal basis to the petitioner's argument. Section 126(5), indeed gives the licensee an option to claim payment on account of un authorised use of electricity from a previous date if such date is ascertained or, if such previous date is not ascertainable, to charge for a period of 12 months preceding the date of detection of unauthorized use of electricity. Section 126(5), indeed gives the licensee an option to claim payment on account of un authorised use of electricity from a previous date if such date is ascertained or, if such previous date is not ascertainable, to charge for a period of 12 months preceding the date of detection of unauthorized use of electricity. It is the licensee's argument that since the previous inspection of July 26, 2007 revealed that the consumer had tampered with the meter seal and unauthorised use of electricity had been established, in accordance with the first limb of section 126(5) of the Act such previous date of July 26, 2007 should be reckoned to be the date ascertained for the purpose of calculating the loss occasioned to the licensee on account of the unacceptable conduct of the consumer. 6. The appellate authority altogether disregarded the previous inspection of July 26, 2007. Though the appellate authority did not notice such fact in its order, it appears from the final order of assessment that the licensee had charged the consumer for a period of one year prior to the date of initial inspection on July 26, 2007. This was clearly impermissible since sub-section (5) of section 126 gives the licensee either of two possible periods. A licensee cannot claim from the ascertained date and thereafter take advantage of the second limb of sub-section (5) of section 126 to seek payment for a period of 12 months prior to the ascertained date. It appears that the two limbs of sub-section (5) of section 126 are mutually exclusive. However the appellate authority should have considered that if an earlier ascertained date was available and there was no dispute regarding the same, it was open to the licensee to charge on account of unauthorized use of electricity with reference to such previous ascertained date. 7. The difficulty in this matter arose in the long hiatus between the original inspection and the subsequent. There was no explanation either in the final order of assessment or in the written objection filed by the licensee before the appellate authority as to why the licensee had to wait till February 25, 2009 for the second inspection to be carried out despite the licensee's assertion that the consumer had physically resisted the licensee from disconnecting the supply following the earlier detection of unauthorized use of electricity on July 26, 2007. 8. 8. Though the appellate authority disregarded the factum of the previous inspection, there is no legal basis to the same. If the licensee could have ascertained the previous date, then the licensee could have taken advantage of the previous ascertained date instead of falling back on the second limb of sub-section (5) of section 126 of the Act. The problem in this case is that the licensee did not explain why it did not take any steps for a period of 19 months, almost to the day, between the previous inspection and the next. There is nothing in the written objection filed before the appellate authority indicating that any reminder was issued to the police authorities or any request was made, or that such reminders went unheeded. 9. Though the sweeping reason given by the appellate authority may not be in agreement with the intent and purport of section 126(5) of the Act, in absence of there being any plausible explanation proffered by the licensee, the conclusion drawn by the appellate authority on the first ground cannot be faulted. In a given case if the delay is explained by the licensee, even a period of 19 months could have been allowed to be made the basis for calculating the amount payable under section 126 of the Act; however, in the absence of licensee's attempt to furnish any explanation, the appellate authority committed no error in disregarding the earlier inspection. 10. For any judicial or quasi-judicial authority to take cognizance of a matter and hold it against a party, the factum has first to be established. Here, notwithstanding the alleged discovery of unauthorized use of electricity at the time of the original inspection on July 26, 2007, there was no contemporaneous demand on the consumer; or even a provisional order of assessment. The consumer was not given a chance to deal with a charge of unauthorized use of electricity since the charge was never levelled. There are two consequences, ordinarily, upon detection of unauthorized use of electricity. There is an immediate disconnection; and, there is a demand for payment by licence on the consumer. Even if disconnection could not be effected, there was no impediment to a demand being made on the consumer wherein it could have been recorded that the consumer had foiled the attempt to disconnect the line. There is an immediate disconnection; and, there is a demand for payment by licence on the consumer. Even if disconnection could not be effected, there was no impediment to a demand being made on the consumer wherein it could have been recorded that the consumer had foiled the attempt to disconnect the line. The licensee invites that unauthorized use be presumed from the date of the earlier inspection, though the consumer was not afforded a chance to counter the charge. 11. The appellate forum may have expended a few more sentences in explaining why the licensee's assertion as to the previous inspection was liable to be completely disregarded. But merely because of the parsimony in expression the conclusion cannot be belittled. It was a plausible view taken on the facts and in judicial review, it is eminently sustainable. 12. There is no merit in the second ground urged by the licensee, that the appellate authority erred in directing the licensee to calculate for a period of 12 months preceding the date of the effective detection of pilferage rather than 365 days. The licensee cannot explain the prejudice that may have been occasioned to the licensee by such direction. It is also significant that both sub-section (5) of section 126 of the Act and the prevailing Supply Code refer to 12 months rather than 365 days. 13. In the circumstances and considering the extent of scrutiny that is available in this jurisdiction, the grounds urged by the licensee are not worthy of dislodging the appellate authority's order. 14. W.P. 15081 (W) of 2009 is dismissed. There will be no order as to costs. 15. It is made clear that the steps taken pursuant to the order of the appellate authority have not been gone into. 16. Urgent certified Photostat copies of this order be given to the parties upon compliance with all requisite formalities. Writ application dismissed.