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2010 DIGILAW 148 (CAL)

Arnab Ganguly v. Cesc Ltd.

2010-02-17

I.P.MUKERJI

body2010
JUDGMENT I.P. Mukerji, J. 1. ON 24th February, 2004 the father of the writ petitioners purchased premises No. 8, Paramhansa Dev Sarani, Post Office Italgacha, Kolkata -700 079. The writ petitioners came to reside in this premises. 2. THE erstwhile owner of the premises Smt. Sumati Das had an electricity meter installed there. After the date of sale, the meter remained installed there and admittedly electricity was consumed. This writ application is based on an apprehension. The apprehension is that the assessment order which has been passed on 11th December, 2008 for unauthorised use of electricity in that meter may be enforced by cutting off supply of electricity which is obtained by the writ petitioners through two meters installed in the premises in September, 2008 and December 26,2008 respectively by the respondent licensee. 3. THIS apprehension of the petitioner has been confirmed by the averments made in paragraphs 9, 11 and 12 of the affidavit-in-opposition which are set out here in below: 9. With reference to the allegations made in paragraphs 3(h), 3(i) of the said petition deny each and every allegation save what are matters of records. It is denied that in the meanwhile without any prior notice same men claiming to represent the respondent No.1 came and disconnected the meter standing in the name of proforma respondent as alleged or at all. From the averment made in paragraph 3(h) of the said petition and the Annexure - "P-8"of the writ petition it is crystal clear that the supply of electricity standing in the name of the proforma respondent but consumed by the petitioners was disconnected with notice dated 14.11.2008 and the said notice was duly received by the petitioners. It is denied categorically that the ' present respondent No. 3 was not of those who were present during the said inspection as alleged or at all. It is also denied specifically that the assessing officer was not part of the inspection team as alleged or at all. In this connection I say that from the final order of assessment it will be evident that the assessing officer was also in the inspection team on 14.11.2008. It is also denied specifically that the assessing officer was not part of the inspection team as alleged or at all. In this connection I say that from the final order of assessment it will be evident that the assessing officer was also in the inspection team on 14.11.2008. In this connection I further say that it is an admitted fact/position that the petitioners are the actual users of electricity supplied through the meter standing in the name of proforma respondent who has sold the premises in question to the petitioners' father in 2004 and since then the petitioners are residing with their father after such purchase in the said premises and enjoying electricity of the proforma defendant's meter without changing the name in their favour and as such accepted the notice dated 14.11.2008 issued by CESC Limited, being the actual user of electricity of the meter standing in the name of proforma respondent. That the petitioners are very much liable for pilferage of electricity. Therefore the allegations as are mentioned in Annexure - "P-8" actually against the petitioners' not against anybody else as alleged. It is categorically denied that no copy of the provisional assessment bill or order was served on either the proforma respondent as the petitioners nor attempted to be so served as alleged. 10................................... 11. With reference to the allegations made in paragraph 3 (m) of the said petition I say that the final order of assessment was passed on 11.12.2008 and the same was duly received by the petitioners herein but the petitioners did not prefer any appeal before the appellate authority but has come to this Hon'ble Court straightway. With reference to the allegations made in paragraphs 3(n), 3n(i) of the said petition I deny each and every allegations save what are matters of record. It is denied that petitioners immediately contacted the proforma respondent as alleged or at all. In this connection I say that the question of contacting the proforma respondent does not arise at all as the petitioners are admitted by the real user of the said supply of electricity of the said proforma respondent and the petitioners in the writ petition have already stated that the proforma respondent after selling premises to the petitioners' father she will not take any responsibility about the supply of electricity at the petitioners' premises. Furthermore I would also say that the petitioners all along received bills for consumption of electricity standing in the name of proforma respondent and paid the same.' Now I come to the facts of this case in greater detail. 4. AS stated earlier, by a deed of sale dated 24th September, 2004, the writ petitioners' father purchased and acquired possession of the above premises on or about 24th September, 2004. At the time of sale, meter No. 2858967 was installed in the premises with consumer No. 46334065123 of which the vendor of the property Smt. Sumati Das was the consumer. Even after sale, this meter was not disconnected. On 14th November, 2008 the officials of the respondent licensee disconnected this meter. The ground was theft of electricity. Two facts were allegedly observed during such inspection when the meter was disconnected. It was recorded in the intimation dated 14th November, 2008 of the respondent licensee addressed to the erstwhile vendor Sumati Das, where the recipient's name has been shown as one of the writ petitioners. Those two grounds are: 1. Incoming neutral found disconnected 2. consumer uses external earth The petitioner No. 1 obtained a new connection on September 2008, the petitioner No. 2 oh 26th December, 2008. The assessment order was made on 11th December, 2008 where the final amount assessed Rs. 1,68,686/-. Now, this assessment order was passed without any notice or hearing to the writ petitioners. 5. THE question which falls for consideration is whether, on the allegation that the writ petitioners were the actual users of the meter, which was involved in the alleged theft even after sale of the premises in their favour, the meters of the writ petitioners obtained in September, 2008 and 26th December, 2008 can be disconnected? 6. AT this stage, section 126 of the Electricity Act, 2003 may be considered. 126. Assessment. - (1) If on an inspection of any place or premises or after inspection of the equipments/gadgets, machines, devices found connected or used, or after inspection of records maintained by any person, the assessing officer comes to the conclusion that such person is indulging in unauthorised use of electricity, he shall provisionally assess to the best of his judgment the electricity charges payable by such person or by any other person benefited by such use. (2) The order of provisional assessment shall be served upon the person in occupation or possession or in charge of the place or premises in such manner as may be prescribed. (3) The person, on whom an order has been served under sub-section (2), shall be entitled to file objections, if any, against the provisional assessment before the assessing officer, who shall, after affording a reasonable opportunity of hearing to, such person, pass a final order of assessment within thirty days from the date of service of such order of provisional assessment, of the electricity charges payable by such person. (4) Any person served with the order of provisional assessment may, accept such assessment and deposit the assessed amount with the licensee within seven days of service of such provisional assessment order upon him. (5) If the assessing officer reaches to the conclusion that unauthorised use of electricity has taken place, the assessment shall be made for the entire period during which such unauthorised use of electricity has taken place and if, however, the period during which such unauthorised use of electricity has taken place cannot be ascertained, such period shall be limited to a period of twelve months immediately preceding the date of inspection. (6) The assessment under this section shall be made at a rate equal to twice the tariff applicable for the relevant category of services specified in subsection (5). Explanation.- For the purposes of this section,- (a) "assessing officer" means an officer of a State Government or Board or licensee, as the case may be, designated as such by the State Government; (b) "unauthorised use of electricity" means the usage of electricity - (i) by any artificial means; or (ii) by a means not authorised by the concerned person or authority or licensee; or (iii) through a tampered meter; or (iv) for the purpose other than for which the usage of electricity was authorised; or (v) for the premises or areas other than those for which the supply of electricity was authorised." It is plain from the reading of section 126 that assessment can be made of unauthorised use of electricity by 'any person'. Also, section 135 says "whoever, dishonestly..................so as to abstract or consume or use of electricity shall be punishable with..................." 7. THE expression whosoever also refers to any person. Also, section 135 says "whoever, dishonestly..................so as to abstract or consume or use of electricity shall be punishable with..................." 7. THE expression whosoever also refers to any person. THErefore, in my opinion "any person" and "whosoever" are not restricted to the registered consumer. Sub-section (1 A) authorises the licensee to disconnect the supply of electricity. This disconnection, in my opinion, does not refer to any particular meter but disconnection which may be made to obviate the mischief of theft. 8. FURTHER, Regulation 5 of the West Bengal Electricity Regulatory Commission, Notification No. 24 (WBERC) dated 18th October, 2005 says that if a nexus is established between the applicant for a connection and the erstwhile owner whose dues are outstanding, no electricity connection would be considered. Therefore, on a consideration of the above law, writ petitioners herein could have been compelled to pay assessed sum upon establishment of their involvement in the theft of electricity. 9. IN this case the provisional assessment and the final assessment were made without any notice to the writ petitioners. Proper proceeding ought to have been drawn up against them, and they be given an opportunity to contest the same before any unauthorised use may be assessed as against them. The West Bengal Electricity Regulatory Commission (Electricity Supply Code) Regulations, 2007 more particularly Regulations 4.2.1,4.9 and whole of 5 dated 12.09.2007 provide for this kind of notice and hearing before an assessment order is passed. Therefore, the rules do not preclude an assessment order to be passed against the writ petitioners or any of them. But this particular assessment order cannot be enforced against them as it was passed without notice to them or hearing them. 10. IN the result, I declare that this assessment order cannot be enforced in any form against the writ petitioners or any of them by claiming the assessed sum or in disconnecting their individual supplies. However, this will not preclude the respondent licensee to take such step against the writ petitioners in such forum as they may be advised. Writ application allowed. 11. URGENT certified photocopy of this judgment and order, if applied for, be supplied to the parties subject to compliance with all requisite formalities. Appeal allowed.