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2011 DIGILAW 1509 (CAL)

Gour Mohan Bera v. STATE OF WEST BENGAL

2011-12-13

J.K.BISWAS

body2011
JUDGMENT: 1. THE Judgment of the Court was as follows: The Court : This WP under Article 226 dated December 7, 2011 has been filed seeking the following principal relief. "(b) A writ of or in the nature of Mandamus be issued directing the respondents to show cause as to why order of provisional bill dated 12.11.2004 (Annexure 'P/6') as well as order of final assessment dated 29.07.2010 (Annexure 'P/8') shall may be set aside and/or quashed in view of judgment and order dated 30.08.2011 passed by learned Electricity Judge in Electric Case No.58 of 2009;" 2. ALLEGING theft of energy West Bengal State Electricity Board disconnected supply of electricity to the premises in question on November 9, 2004. The civil liability of the person responsible was provisionally determined under section 126 of the Electricity Act. 2003. By a letter dated November 12, 2004 (at p.54) notice of provisional assessment was given to the petitioner. 3. FEELING aggrieved, the petitioner moved a before this Court under Article 226. By an order dated November 18, 2004 (at p.57) the WP was disposed of saying that on payment of 25% of the provisionally assessed amount the supply would be reconnected, and that the assessing officer would pass the order of final assessment. The order of final assessment was passed on July 29, 2010 4. THE petitioner did not appeal against the final order. On November 28, 2011 the licensee disconnected the supply (see para.15) alleging non-payment of the balance of the assessed amount. The criminal case that was simultaneously initiated for commission of offence under section 135 of the Electricity Act, 2003 ended in an acquittal. The Criminal Court passed the order on August 30, 2011 5. NOW questioning the orders of provisional and final assessment and the disconnection, and seeking an order directing unconditional reconnection of the supply, this WP has been filed. 6. MR Tewari appearing for the petitioner has submitted that the order of the assessing officer passed beyond the statutory period mentioned in sub-section (3) of section 126 is illegal, and that, in any case, the acquittal has entitled the petitioner to an unconditional reconnection of the supply, for the Criminal Court has ultimately given the petitioner a clean sheet. 7. MR Tewari appearing for the petitioner has submitted that the order of the assessing officer passed beyond the statutory period mentioned in sub-section (3) of section 126 is illegal, and that, in any case, the acquittal has entitled the petitioner to an unconditional reconnection of the supply, for the Criminal Court has ultimately given the petitioner a clean sheet. 7. IN my opinion, by passing the order of final assessment after expiration of the period mentioned in sub-section (3) of section 126 the assessing officer of the licensee did not commit any illegality, for the mere expiration of the period was not to and actually did not make the assessing officer tuntus officio. 8. THE officer's failure to pass the final order within the statutory period may have made him otherwise liable, but that cannot affect in any manner the validity of the order. It is not that expiration of the period was to result in abatement of the section 126 proceedings that remained pending requiring the officer to pass the final order. 9. ACQUITTAL ordered by the Criminal Court has nothing to do with the petitioner's civil liability determined by the assessing officer of the licensee under section 126 of the Act. The criminal liability if established might have landed the petitioner in jail. The civil liability was to determine his financial liability for unauthorised consumption of energy. 10. THE two liabilities are distinctly separate from each other. Hence acquittal ordered by the Criminal Court could not and actually did not invalidate the orders of the assessing officer passed under section 126 of the Act. The final order in the absence of an appeal thereagainst, had attained finality long before this WP was filed. 11. I am unable to accept the request for an order permitting the petitioner to pay the balance finally, assessed amount in installments. It is not that seeking installments he applied calling upon the licensee to exercise its discretion under reg. and of the West Bengal Electricity Regulatory Commission (Electricity Supply Code) Regulations, 2007. 12. THE regulation says that a licensee may in its discretion permit a consumer to pay outstanding energy charge in installments with delayed payment surcharge. 13. THE petitioner never applying to the licensee cannot make a request for installments straight to this Court. and of the West Bengal Electricity Regulatory Commission (Electricity Supply Code) Regulations, 2007. 12. THE regulation says that a licensee may in its discretion permit a consumer to pay outstanding energy charge in installments with delayed payment surcharge. 13. THE petitioner never applying to the licensee cannot make a request for installments straight to this Court. It is not for this Court to exercise the discretion that the licensee was to exercise, if requested for. Hence order permitting the petitioner to pay the balance finally assessed amount in installments cannot be passed in exercise of power under Article 226. For these reasons, I dismiss the WP saying that nothing herein shall prevent the petitioner from applying to the licensee seeking installments to pay the balance finally assessed amount with delayed payment surcharge and the licensee from considering the request, if made. No costs. Petition is dismissed.