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2016 DIGILAW 343 (CAL)

Amiya Kumar Chakraborty v. State of West Bengal

2016-04-11

MALAY MARUT BANERJEE

body2016
JUDGMENT : M.M. Banerjee, J. The writ petitioner in this case has prayed for direction for not giving any further effect to the purported provisional pilferage bill (annexure P-4) to the writ application and for a further direction upon the respondent to reconnect/restore the electricity connection to him. 2. The Ld. Advocate appearing for the writ petitioner contended that the purported provisional pilferage bill i.e., annexure P-4 to the application is, on the face of it, arbitrary and illegal. It was argued that no opportunity of hearing was given to the writ petitioner before passing any order as contemplated under Section 126 of the Electricity Act of 2003. It was further argued that save and except that annexure P-4 no provisional order of assessment was ever served upon the writ petitioner and so he was prevented from raising any objection against the purported provisional bill. 3. The Ld. Advocate submitted that the said provisional pilferage bill should be set aside. The Ld. Advocate in support of his contention that when the provisional bill is found to be illegal and not made in accordance with the provision contained in Section 126 of the Electricity Act, the same is liable to set aside and on that score relied on a decision reported in (2005)2 WBLR (Cal) 870 where a Learned Single Judge of this Hon'ble Court was pleased to set aside the provisionally assessed bills in that case. However, it appears from the concluding paragraph (25) of the judgment that the Learned Single Judge was pleased to observe:- "It would, however, be to the respondent no.4 to make his best judgment under sub-Section (1) of Section 126, if he so desires for reasons to be assigned by him". 4. The Ld. Advocate also relied on a decision reported in (2005)2 WBLR (Cal) 718. After going through this decision it appears that in that case search and seizure was conducted when the writ petitioner or anybody on his behalf was not present there. In the case before me the fact situation is otherwise. 5. The Ld. Advocate appearing for the W.B.S.E.B. submitted that in terms of order dated 24.04.2006 the writ petitioner was directed to deposit a sum of Rs. 40,000/- for restoration of electric connection and so there can be no occasion to pass direction again for restoration of electricity to the writ petitioner. 5. The Ld. Advocate appearing for the W.B.S.E.B. submitted that in terms of order dated 24.04.2006 the writ petitioner was directed to deposit a sum of Rs. 40,000/- for restoration of electric connection and so there can be no occasion to pass direction again for restoration of electricity to the writ petitioner. It was argued that in so far as the challenge to the provisional pilferage bill is concerned the writ petitioner cannot be allowed to claim that annexure P-4 to the writ application was/is not a provisionally assessed bill at all since annexure P-6 to the writ application shows that the writ petitioner through his advocate sent a demand of Justice notice on 28.02.2006 wherefrom it is clear that the W.B.S.E.B. Authority issued a provisional pilferage bill of Rs. 1,71,352/- only. The Ld. Advocate argued that even if the contention of the writ petitioner is taken for granted for the sake of argument that the provisional assessment bill was not prepared in accordance with the statutory provision of Section 126 of the Electricity Act then also the proper course of this Court will be to give direction to the respondent authority for making another such provisional bill afresh if finally assessed bill has not yet been prepared. The Ld. Advocate argued that it is not for the Writ Court to make calculation of the consumption of average unit of the writ petitioner. The Ld. Advocate relied on a decision in the case of The Executive Engineer v. M/s. Sri Seetaram Ricemill. In this case the Apex Court after discussing in detail the legal position pertaining to the field held:- "(7) The High Court did not commit any error of jurisdiction in entertaining the writ petition against the order raising a jurisdictional challenge to the notice/provisional assessment order dated 25th July, 2009. However, the High Court transgressed its jurisdictional limitations while travelling into the exclusive domain of the Assessing Officer relating to passing of an order of assessment and determining factual controversy of the case. (8) The High Court having dealt with the jurisdictional issue, the appropriate course of action would have been to remand the matter to the Assessing Authority by directing the consumer to file his objections, if any, as contemplated under Section 126(3) and require the Authority to pass a final order of assessment as contemplated under Section 126(5) of the 2003 Act in accordance with law". 6. It is not the case of the writ petitioner that the Assessing Authority had no jurisdiction to prepare the provisional assessment bill. His contention is otherwise. His contention is that the personnel of the W.B.S.E.B. when had been to the premises/workshop of the writ petitioner demanded illegal gratification/bribe from his worker and not getting the same were infuriated and prepared the said provisional assessment bill. Needless to say, this Writ Court should refrain from examining the correctness of such contention. The only matter of concern is whether the writ petitioner was given any opportunity of hearing before making the provisional assessment bill. 7. Section 126 of the Electricity Act, 2003 does not postulate that before preparing the provisional assessment the consumer shall have to be heard. The stage of hearing the consumer comes after the order of provisional assessment is served upon the person in occupation or possession or in charge of the place or premises in such manner as may be prescribed. The provisional assessment is a notice simpliciter as it is clear from sub-Section (3) of Section 126 of the Electricity Act enabling the person upon whom the notice is served to file objection, if any, against such provisional assessment and the Assessing Officer after affording a reasonable opportunity of hearing to such person is required to pass a final order of assessment of the electricity charges payable by such person. 8. Annexure P-6 to the writ petition goes to show that the notice of provisional assessment was served upon the writ petitioner. The respondent/electricity authority, however, has not been able to show before the Court that this provisional assessment was served upon the writ petitioner with a view to making final assessment and indicating therein that the writ petitioner could file objections, if any. In such circumstances, the matter requires to be remanded to the Assessing Officer. 9. The Ld. Advocate appearing for the State has also supported the contention of Ld. Advocate appearing for the W.B.S.E.B. 10. In such circumstances, the matter requires to be remanded to the Assessing Officer. 9. The Ld. Advocate appearing for the State has also supported the contention of Ld. Advocate appearing for the W.B.S.E.B. 10. In view of what has been discussed above the respondent/electricity authority (W.B.S.E.B), now known as W.B.S.E.D.C.L, more particularly the Assessing Officer concerned is directed to once again serve upon the writ petitioner the order of provisional assessment giving him opportunity to file objections, if any, and also to afford him reasonable opportunity of hearing before passing a final order of assessment regarding the electricity charges payable by the writ petitioner. 11. The writ petition is accordingly disposed of.