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2012 DIGILAW 361 (CAL)

Graviour Printing Industries v. CESC Limited

2012-04-25

Debasish Kar Gupta

body2012
The judgment of the Court was as follows:- This writ application is directed against the provisional order of assessment dated November 21, 2011 and the final order of assessment dated December 7, 2011 passed by the competent authorities of the respondent No.1. 2. The fact of the case in a nutshell is as under:- The petitioner is a partnership firm having its office and factory at 27, P.C. Ghosh Road, Kolkata-700 048. His electricity connection in respect of consumer No. 460402 and meter Nos. 2885688/3312342 (hereinafter referred to as the said electricity connection) was disconnected on November 21, 2011. An order of pr1wisional assessment was served upon the petitioner showing the cause of disconnection to the effect that the electricity had been supplied to a disconnected consumer from the said electricity connection. The First Information Report was also lodged with the concerned Police Station on that date. By virtue of the aforesaid order of provisional assessment the petitioner were given an opportunity to submit representation as also to avail of the opportunity of hearing. The petitioner did not submit any representation availing of such opportunity. Nor the petitioner availed of the opportunity of hearing. On December 7, 2011 the competent authority of the respondent No.1 passed the final order of assessment. In the final order of assessment the competent authority of the respondent No.1 came to the conclusion that the petitioner had been indulging in unauthorized use of electricity by extending supply of energy to a disconnected consumer and the supply of two meter Nos. 3475019 and 3455541 were liable to be disconnected under Section 135(1e) of the Electricity Act, 2003 amended up-to-date read with Regulation 4.2 of the West Bengal Electricity Regulatory Commissioner (Electricity Supply Code) Regulations, 2007. 3. It is submitted by Mr. Bidyut Mr. Halder, learned Advocate appearing on behalf of the petitioner that in accordance with the provisions of Section 127 of the Electricity Act, 2003 (hereinafter referred to as the said Act, 2003), the petitioner may prefer a statutory appeal against the final order of assessment. But the petitioner being an industry is in need of restoration of his electricity connection. According to Mr. Halder, there is no provision in the said Act, 2003 for restoration of the electricity supply to a disconnected line during the pendency of this appeal under the aforesaid provisions. But the petitioner being an industry is in need of restoration of his electricity connection. According to Mr. Halder, there is no provision in the said Act, 2003 for restoration of the electricity supply to a disconnected line during the pendency of this appeal under the aforesaid provisions. It is also submitted by him that supply of electric energy is essential service. Mr. Halder submits that on a number of occasions different Division Benches of this High Court passed orders for reconnection of a disconnected line upon payment of 50% of the order of final assessment. He relies upon the decisions of Md. Taslimuddin v. CESC Limited & Ors. dated May 5, 2010 (In re: MAT 607 of 2010), Sharad Kumar Mukim v. CESC Limited & Ors., dated May 10, 2010 (In re: MAT 615 of 2010) and Md. Kasim v. CESC Limited & Ors., dated September 9, 2011 (In re: ASTA 426 of 2011) in support of his above submissions. 4. At the very outset, a preliminary objection is raised by Mr. Nilava Mitra, learned Advocate appearing on behalf of the respondents. According to him, the said Act, 2003 prescribes a complete code for dealing with a case of theft of electricity. According to him, Section 126 of the said Act, 2003 prescribes for passing an order of provisional assessment as also final order of assessment. It is also submitted by him that Section 127 of the said Act, 2003 provides for preferring a statutory appeal against any order passed under Section 126 of the said Act subject to the compliance of the conditions as prescribed under sub-section (ii) of Section 127 of the said Act, 2003. According to him, there is hardly any scope to entertain an application under Article 226 of the Constitution of India to entertain the challenge with regard to the order of provisional assessment or the order of final assessment passed under Section 126 of the said Act, 2003. According to him, Regulation 6.3 of the West Bengal Electricity Regulatory Commission (Electricity Supply Code) Regulations, 2007 (hereinafter referred to as the said Regulations, 2007), prescribes for reconnection of a disconnected electricity line within 48 hours from the time of payment of assessed amount. According to him, there is no scope for giving direction upon the respondent authority to reconnect the electricity connection to a consumer ignoring the aforesaid provisions. 5. According to him, there is no scope for giving direction upon the respondent authority to reconnect the electricity connection to a consumer ignoring the aforesaid provisions. 5. The point of maintainability of the writ petition on the basis of the fact and circumstances of this case as discussed hereinabove is taken up for consideration. After a closed scrutiny of the grounds for .adjudication of the preliminary objection the ground for filing this writ application are quoted below: "I. For that the case authority cannot disconnect the supply of your petitioner without any notice and as such bad in law. II. For that your petitioner is now without electric connection and your petitioner could not function due to electricity which has been disconnected illegally by the CESC authority and as such bad in law. III. For that your petitioner never fails to pay its electric charges and there is no dues of electric charges of your petitioner and in spite of that the CESC authority disconnected the supply which is illegal, motivated and whimsical on the part of the CESC Limited. IV. For that under Section 56 of the Electricity Act, 2003 it is the duty of the CESC Limited to give 15 days clear notice and as per 5.3.1 of the W.B. Electricity Regulatory Commission (Electricity Supply Code) Regulations, 2004 to give 24 hours notice to the consumer in order to disconnect the supply which is a must but in the instant case the CESC authority disconnected the supply of your petitioner without any notice and as such illegal action on the part of the CESC authority is not sustainable in the eye of law. V. For that under Section 43 of the Electricity Act, 2003 your petitioner has a statutory right to get supply of energy and in the instant case the CESC authority disconnected the supply of your petitioner illegally and as such bad in law. VI. For that the provision of the Section 43 of the said Act, shaddled with obligation to supply energy but the authority concerned has failed and neglected to perform such statutory duty in the instant case by disconnecting the supply on the grounds of supplying electricity to the different consumer and as such action on the part of the CESC Limited is a bad in law. VII. VII. For that the supply of energy which is essential service to the citizen cannot be disconnected illegally by the authority concerned and as such bad in law. VIII. For that the meter and seals can be tested by any independent authority at the cost of your petitioner. IX. For that Order of Provisional Assessment dated 21.11.2011 and the Final Order of Assessment dated 7.12.2011 are otherwise bad in law and liable to be set aside." 6. After considering the aforesaid grounds, I find that there is an allegation against the respondent authority of disconnecting the said electricity line illegally and whimsically. There is no allegation either of violating of any fundamental rights or any statutory right of the petitioner so far as the grounds is concerned. The said Act, 2003 prescribes a complete procedure for dealing with a case of alleged theft of electricity by a consumer. For considering the aforesaid procedure, the provisions of Section 126 of the said Act, 2003 is quoted below: "126. Assessment-(1) If on an inspection of any place or premises or after inspection of the equipment, gadgets, machines, devices found connected or used, or after inspection of record maintained by any person, the assessing officer comes to the conclusion that such person is indulging in unauthorized use of electricity, he shall provisionally assessed to the best of his judgement 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 subsection 2, shall be entitled to file objections, if any, against the provisional order of assessment before the assessing officer, who shall, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment within 30 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 provisional order of assessment may, accept such assessment and requisite and deposit the assessed amount with the licensee within seven days of service of such provisional assessment• order upon him. 5. 4. Any person served with the provisional order of assessment may, accept such assessment and requisite 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 unauthorized use of electricity has taken place the assessment shall be made for the entire period during which such unauthorized use of electricity has taken place and if, however, the period during which such unauthorized use of electricity has taken place cannot be ascertained, such period shall be limited to a period 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 sub section 5." 7. In the event, a consumer is aggrieved by an order passed by the respondent authority under Section 126 of the Electricity Act, 2003, he is at liberty to prefer an appeal under Section 127 of the Act. For examining the scope of ambit of dealing with the grievance of a consumer at the appeal stage, •consideration of Section 127 of the said Act, 2003 is quoted below: "127. Appeal to appellate authority-(1) Any person aggrieved by the final order made under Section 126 may, within thirty days of the said order, prefer an appeal in such form, verified in such manner and be accompanied by such fee as may be specified by the State Commission, to an appellate authority as may be prescribed. (2) No appeal against an order of assessment under sub-section (1) shall be entertained unless an amount equal to (half of the assessed amount) is deposited in cash or by way of bank draft with the licensee and documentary evidence of such deposit has been enclosed along with the appeal. (3) The appellate authority referred to in sub-section (1) shall dispose of the appeal after hearing the parties and pass appropriate order and send copy of the order to the assessing officer and the appellant. (4) The order of the appellate authority referred to in sub-section (1) passed under sub section (3) shall be final. (5) No appeal shall lie to the appellate authority referred to in sub-section (1) against the final order made with the consent of the parties. (4) The order of the appellate authority referred to in sub-section (1) passed under sub section (3) shall be final. (5) No appeal shall lie to the appellate authority referred to in sub-section (1) against the final order made with the consent of the parties. (6) When a person defaults in making payment of assessed amount, he, in addition to the assessed amount, shall be liable to pay, on the expiry of thirty days from the date of order of assessment, an amount of interest at the rate of sixteen percent, per annum compounded every six months. " 8. As discussed hereinabove, I do not find any scope to entertain this writ application in absence of any allegation of violation of fundamental rights or violation of any statutory provisions in this case. 9. After taken into consideration the above provision, I find that when a consumer is aggrieved by or dissatisfied with the final order of assessment, he is at liberty to prefer an appeal under Section 127 of the said Act, 2003 as discussed hereinabove in the instant case. 10. The redressal of the grievance of the petitioner requires adjudication taken into consideration the disputed question of facts. Therefore, the alleged detection of theft can only reached its finality after the disposal of the appeal, if any, preferred by the petitioner before the statutory appellate authority. 11. So far as the prayer for reconnection of the said electric line is concerned, I find that the Regulation 4.2.1 of the said Regulation, 2007 prescribes for disconnection of the supply of a consumer upon detection of theft or unauthorized use of electricity. The above provision is quoted below: "4.2.1. Without prejudice to the provisions of the Act, the licensee may disconnect or cause to be disconnected the supply to a person and/or premises immediately upon detection of theft or unauthorized use of electricity." 12. Regulation 6.3 of the said Regulation, 2007 prescribes for reconnection of the disconnected line within 48 hours from the time of payment of the assessed amount and the above provisions is quoted below:- "6.3 The supply of electricity to a consumer, supply to whom has been disconnected due to theft of electricity in terms of regulation 4.2.1., shall be reconnected by the licensee at the earliest and positively within forty eight hours from the time of payment of the assessed amount." 13. After considering the provisions of Regulation 6.3 of the said Regulations, 2007, 1 find that even during the pendency of an appeal preferred under Section 127 the petitioner is under obligation to deposit the entire assessed amount for reconnection of his disconnected supply. In the event, such an amount is deposited the respondents will be under obligation to restore such electricity connection within 48 hours thereof. 14. The aforesaid provision is not under challenge in this writ application. Therefore, there is no scope to pass an order for restoration of supply of electricity to the petitioner upon part payment of the finally assessed amount. 15. So far as the decisions of Md. Taslimuddin v. CESC Limited & Ors., dated May 5, 2010 (In re: MAT 607 of 2010), Sharad Kumar Mukim v. CESC Limited & Ors. dated May 10, 2010 (In re: MAT 615 of 2010) and Md. Kasim v. CESC Limited & Ors., dated September 9, 2011 (In re: ASTA 426 of 2011) are concerned, upon closed scrutiny of those three orders, I find that none of those cases the provision of Regulation 6.3 of the said Regulations, 2007 was taken into consideration and those orders have no manner of application in this case. 16. In view of the above, this writ application is dismissed in limine. 17. This order will not prevent the petitioner from taking recourse to law in accordance with the provisions of the said Act, 2003 as discussed hereinabove, if it is permissible under law. 18. There will be, however, no order as to costs. Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.