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2023 DIGILAW 1284 (CAL)

Noor Ali v. CESC Limited

2023-08-02

HIRANMAY BHATTACHARYYA, T.S.SIVAGNANAM

body2023
JUDGMENT : (T.S. Sivagnanam, J.) 1. This intra court appeal is directed against the order dated 03.04.2023 in WPA No. 7850 of 2016 filed by the first respondent CESC Limited. The writ petition was allowed and the order passed by the appellate authority dated 08.02.2016 was set aside. 2. We have heard Mr. Tarique Quasimuddin assisted by Mr. Abbas Ibrahim Khan, learned advocates for the appellants and Mr. Subir Sanyal assisted by Mr. Om Narayan Rai and Mr. Debanjan Mukherje, learned advocates for the CESC Limited. 3. The first respondent CESC Limited proceeded against the appellant for unauthorized extension of electricity in respect of the premises bearing no. 116/H/5, M.G. Road. The appellant contended that they are mere tenants in a small portion of the building and it has many other tenants who are occupying the building premises at no. 116/H/1, M.G Road, Kolkata- 700001. The order of provisional assessment was passed on 13.10.2015 stating that the first respondent has come to the conclusion that the unauthorized use of electricity was discovered as direct connection was found from the service cut-out of premises no. 116/M.G. Road and the unauthorizedly abstracted supply was being used at premises no. 116/H/1, M.G. Road and the appellant are the beneficiaries. The details of dehooking drives and the inspection report which was drawn was appended to the provisional assessment order and the appellants were granted liberty to make their submissions. 4. The appellants were also offered an opportunity of being heard in person. The appellant was represented by their advocates and appeared before the assessing authority on 29.10.2015 stating that they have no idea regarding unauthorized obstruction of electricity by means of direct connection and prayed of some relief on the penal amount. Further they stated that some other persons were also involved in unauthorized abstraction of the electricity but no specific name was mentioned. The appellants also filed their written objection dated 28.10.2015 stating that they are residents of premises no. 116/H/1 M.G. Road as tenants and having meters in their names and they are not liable for payment of the excess amount. The appellant denied the photographs captured during the inspection on13.10.2015 stating that they are not the right images of the premises. The appellants also filed their written objection dated 28.10.2015 stating that they are residents of premises no. 116/H/1 M.G. Road as tenants and having meters in their names and they are not liable for payment of the excess amount. The appellant denied the photographs captured during the inspection on13.10.2015 stating that they are not the right images of the premises. After hearing the appellants who were represented by advocates, the assessing officer pointed out that the photographs were taken by photographer during the inspection on 13.10.2015 and the photographs clearly indicate the premises where the appellant are residing and were enjoying the electricity by unauthorized direct connection from the cut-out of the adjacent premises no. 116 M.G. Road. Further it was pointed out that a white colour wire is clearly visible creeping on the side wall of the premises no. 116/H/1, M.G. Road and entering into one room of the third floor of the said premises. Thus, the assessing officer concluded that it is crystal clear that the appellants who are residents/occupiers of the premises are involved in such unauthorized abstraction of electricity and accordingly proceeded to assess the electricity charges. 5. Challenging the said order, the appellant filed an appeal before the appellate authority. The appellant authority by order dated 08.12.2016 came to the conclusion that it is really very difficult to ascertain as to whether the appellants had committed such unauthorized use of electricity as alleged and in view of the disputed question of facts with regard to the possession of the premises in question, held that the first respondent CESC Limited failed to make out any prima facie case against the appellant and therefore held that the appellant have not committed any violation in terms of Section 156 of the Electricity Act, 2003. The said order passed by the appellate authority was put to challenge by way of a writ petition by CESC Limited. The writ petition has been allowed. Aggrieved by the same, the appellants are before us by way of this appeal. The order passed by the appellate authority was challenged mainly on the ground that it is utterly perverse and the appellate authority brushed aside the admitted factual position. 6. The writ petition has been allowed. Aggrieved by the same, the appellants are before us by way of this appeal. The order passed by the appellate authority was challenged mainly on the ground that it is utterly perverse and the appellate authority brushed aside the admitted factual position. 6. The learned single bench after going through the facts which were recorded by the assessing officer while passing the final assessment order had pointed out that records indicated that the theft was performed for the benefit of the said premises namely 116/H/5 and that the appellate authority arbitrarily proceeded on the premise that nothing was proved regarding the premises no. 116/H/5 whereas the learned writ court took into consideration the admission of the appellant that they are in possession of small portion of the building at premises no. 116/H/1 and they are mere tenants. 7. The learned writ court referred to the seizure list which conclusively shows that the four meters of PVC insulated black copper wire with hooking arrangement for use of direct connection from the services cut out was found along with about 19 meters of aluminum wire (pre-insulated black in colour) used for distribution of electricity and the court also noted that in the seizure list signature of two independent witnesses were also obtained. Furthermore, it was pointed out that the officer had conducted an inspection of the place and conducted a thorough enquiry during which he found that the devices were found connected and direct involvement of the appellant in the unauthorized use of electricity was established. The assessing officer was a party to the inspection team who had initially passed the order of provisional assessment. Thus, it is seen that the appellate authority had brushed aside the clinching evidence of unauthorized use of electricity which was available with the assessing officer and forming part of records of the appellate authority. There is no finding recorded by the appellate authority to disbelieve the evidence which was available on record nor to eschew the same. 8. At this juncture, it would be relevant to take note of the judgment of the Hon’ble Supreme Court in Executive Engineer Southern Electricity Supply Company of Orissa Limited (Southco) and Another Versus Sri Seetaram Rice Mill, (2012) 2 SCC 108 , wherein the distinction between Section 126 and Section 135 of the 2003 Act was explained in the following terms: 24. Upon their plain reading, the marked differences in the contents of Sections 126 and 135 of the 2003 Act are obvious. They are distinct and different provisions which operate in different fields and have no common premise in law. We have already noticed that Sections 126 and 127 of the 2003 Act read together constitute a complete code in themselves covering all relevant considerations for passing of an order of assessment in cases which do not fall under Section 135 of the 2003 Act. 25. Section 135 of the 2003 Act falls under Part XIV relating to "offence and penalties" and title of the section is "theft of electricity". The sect opens with the words "whoever, dishonestly" does any or all of the o specified under clauses (a) to (e) of sub-section (1) of Section 135 of t 2003 Act so as to abstract or consume or use electricity shall be punishable for imprisonment for a term which may extend to three years or with fine with both. Besides imposition of punishment as specified under the provisions or the proviso thereto, sub-section (1-A) of Section 135 of t 2003 Act provides that without prejudice to the provisions of the 2003 An the licensee or supplier, as the case may be, through officer of ne authorised in this behalf by the appropriate commission, may immediately disconnect the supply of electricity and even take other measures enumerate under sub-sections (2) to (4) of the said section. The fine which may be imposed under Section 135 of the 2003 Act is directly proportional to the number of convictions and is also dependent on the extent of load abstracted. 26. In contradistinction to these provisions, Section 126 of the 2003 Act would be applicable to the cases where there is no theft of electricity but the electricity is being consumed in violation of the terms and conditions d supply leading to malpractices which may squarely fall within the expression "unauthorised use of electricity". This assessment/proceedings would commence with the inspection of the premises by an assessing officer and recording of a finding that such consumer is indulging in an "unauthorised use of electricity". Then the assessing officer shall provisionally assess, to the best of his judgment, the electricity charges payable by such consumer, well as pass a provisional assessment order in terms of Section 126(2) of the 2003 Act. 28. Then the assessing officer shall provisionally assess, to the best of his judgment, the electricity charges payable by such consumer, well as pass a provisional assessment order in terms of Section 126(2) of the 2003 Act. 28. Section 135 of the 2003 Act deals with an offence of theft of electricity and the penalty that can be imposed for such theft. This squarely falls within the dimensions of criminal jurisprudence and mens rea is one of the relevant factors for finding a case of theft. On the contrary, Section 126 of the 2003 Act does not speak of any criminal intendment and is primarily and action and remedy available under the civil law. It does not have features or elements which are traceable to the criminal concept of mens rea. 9. Thus, we find that the learned writ court had rightly gone into the factual matrix and clearly brought out the perversity in the order passed by the appellate authority and thereafter interfered with the said order. We find no justifiable grounds made out by the appellant to interfere with the well-reasoned order passed by the learned writ court. Though before the learned writ court the contention that the appellants were acquitted in the criminal case and the effect of such acquittal was argued, before us no such ground was canvassed. 10. For all the above reasons, the appellants have not made out any case to interfere with the order passed by the writ petition. Accordingly, the appeal fails and the same is dismissed. I Agree. (Hiranmay Bhattacharyya, J.)