JUDGMENT : (Sabyasachi Bhattacharyya, J.) : 1. The writ petitioner no.1-Company is a consumer of electricity from the respondent no.1, the West Bengal State Electricity Distribution Company Limited (WBSEDCL). Previously it was a consumer under the Durgapur Projects Limited (DPL), which was subsequently taken over by the WBSEDCL, a Government of West Bengal undertaking. 2. The petitioners have challenged the imposition of preliminary penal charge of Rs.20,000,00/-vide Notice dated August five, 2002 issued by the DPL and seek a refund of the said amount with interest. 3. A subsequent consequential bill issued on February 6, 2004, demanding an amount of Rs.2,87,07,420/-as assessment for theft or pilferage of energy by the petitioners and a further notice dated September 6, 2004 of disconnection in default of payment of such sum have also been assailed in the present writ petition. 4. The learned Senior Advocate for the petitioners argues that the allegation of pilferage is an afterthought. There was no complaint or FIR at any point of time lodged by the DPL. The alleged pilferage was not detected previously. Moreover, it is argued that the allegation of digging/using a cable trench to have access to the meter room is levelled for the first time in the affidavit-in-opposition filed by the WBSEDCL in the present writ petition. The allegation of pilferage is not credible since the meter room housing the meter of the DPL (now WBSEDCL) has all along been under lock and key of the licensee and was opened and closed exclusively by the personnel of the licensee at the time of holding inspections and taking meter readings. 5. In the previous billing cycle prior to the alleged act of pilferage, regular meter reading was taken by the DPL personnel, but no allegation of tampering was made. 6. It is submitted that since the meter room has all along been under the exclusive control of the licensee, there could not be any hand of the petitioner at all in the pilferage, if any. 7. The WBSEB Regulations/Guidelines, sought to be implemented by the licensee, was never applicable to the contract between the petitioner and the DPL. Although the agreement between the two referred to DPL Regulations, there was no Regulation or general conditions of contract of the DPL at any point of time. 8. 7. The WBSEB Regulations/Guidelines, sought to be implemented by the licensee, was never applicable to the contract between the petitioner and the DPL. Although the agreement between the two referred to DPL Regulations, there was no Regulation or general conditions of contract of the DPL at any point of time. 8. It is argued that the amount claimed by the licensee from the petitioner was patently perverse and without any basis. In this context, the learned Senior Advocate for the petitioners cites a Supreme Court judgment reported at (2019) 4 SCC 500 [Sarvepalli Ramaiah (Dead) as per legal representatives and others Vs. District Collector, Chittoor District and others], where it was held that any decision based on perversity, patent illegality, irrationality and procedural irregularity ought to be set aside. 9. It is next argued that the defence sought to be advanced by the licensee/respondent has been taken for the first time after five years of the alleged incident, in the affidavit-in-opposition of the licensee. The digging up of a cable trench at the location is not established from the records at all. In fact, the petitioners argue, the relevant paragraphs in the opposition of the Respondents are affirmed to be true to knowledge of the deponent derived from the records, without any records being produced in support thereof. In this context, the learned Senior Advocate cites Bharat Singh & Ors. V. State of Haryana, reported at (1988) 4 SCC 434, for the proposition that no defence can be taken for the first time in affidavit, particularly without any supporting document, which renders the defence of the respondent a nullity. 10. It is submitted further that the payment by the petitioners of the amount of Rs.20,000,00/-as per the preliminary claim of the DPL was made under duress and coercion, under the threat of disconnection. It is argued that there was unequal bargaining power prevailing between the parties. The petitioner no.1-industry employs several workers, who would become jobless overnight if such payment was not made and the electricity supply was disconnected, thereby stopping the business of the Company. It is argued that mere payment of the preliminary sum demanded, under protest, could not tantamount to an admission in the true sense of the term and, as such, cannot be relied on by the WBSEDCL for indicting the petitioners of the offence of theft. 11. It is argued that mere payment of the preliminary sum demanded, under protest, could not tantamount to an admission in the true sense of the term and, as such, cannot be relied on by the WBSEDCL for indicting the petitioners of the offence of theft. 11. Learned counsel appearing for the WBSEDCL submits that vide letter dated July 2, 2002, the petitioners accepted the inspection report of the DPL, which alleged pilferage, and agreed to pay any compensation and penalty levied by the DPL immediately. 12. As such, the petitioners cannot subsequently resile from such position, particularly after having made the payment in terms of the preliminary claim of the DPL. 13. It is submitted that by operation of Section 185 of the Electricity Act, 2003 (for short, “the 2003 Act”), the provisions of the 2003 Act are applicable in the present case. Although at the relevant juncture in 2002, the previous Act, that is, the Electricity Act, 1910 was prevalent. 14. Hence, in terms of the Regulations framed by the West Bengal Electricity Regulatory Commission (WBERC) under the 2003 Act as well as the provisions of the said Act, the licensee was well within its authority and have complied with all due procedure of law, to claim such assessed amount on the ground of pilferage. 15. Learned counsel for the WBSEDCL places reliance on Clause 5.0 of Regulation 55 of the 2003 Act as well as Section 185 of the same in support of his arguments. 16. It is further argued that the General Conditions of Supply of the WBSEB (West Bengal State Electricity Board) at that point of time also governed the power supply agreement between the parties. 17. Upon hearing learned counsel, the plinth of the defence appears to be the “admission” of the petitioners with regard to pilferage. 18. A perusal of the letter issued by the petitioner no.1 dated July 2, 2002, addressed to the Commercial Engineer, DPL indicates that the petitioner no.2, a Director of the petitioner no.1-Company, accepted and acknowledged the record notes drawn on July 2, 2002 by and between the DPL and the petitioner no.1 in connection with tampering of the energy meter at the premises and also afforded apology for the same. Further, the petitioners undertook to pay “any compensation and penalty” immediately regarding damage of meter, loss of energy due to tampering of meter as would be claimed by the DPL. The last sentence of the said communication, however, indicated that on the basis of the undertaking, the DPL was requested to restore the power supply immediately. 19. Such communication, per se, cannot tantamount to an admission of the act of pilferage or theft on the part of the petitioner within the contemplation of Section 135 of the 2003 Act. It is also evident from the last sentence thereof that the same was given in the context of the pending threat of not restoring the electricity supply, which had been disconnected two days before for shifting of power connections to a different zone for reasons entirely unconnected with the allegation of meter-tampering, which would render the petitioner no.1 out of business. Hence, it cannot be said that the said undertaking to pay and the subsequent payment pursuant thereto was an unqualified ‘admission’ of the act of pilferage on the part of the petitioners. 20. The DPL, taking advantage of such concession on the part of the petitioners, given under the obvious pressure of losing the electricity connection, raised a primary penal charge of Rs.20,000/-vide communication dated August 5, 2002. It is reflected from the said communication, being Annexure P-6 at page 97 of the writ petition, that the same was taken as a primary action against ‘‘malpractices on the seals related to the metering circuit and energy meter installed at DPL cutout” at the factory premises and taking into account the record notes on checking of energy meter and metering circuit at the premises on July 2, 2002 as well as based on the undertaking given on even date by the petitioners. However, no basis of calculation for arriving at the quantum of Rs.20,000,00/-is disclosed at all in the communication, or any other ancillary documents. The communication says merely that “it has been decided by the management to impose on you a penalty of Rs.20,000,00/-’’ without disclosing any ratio backing up such calculation. Even on the bill annexed at page 98 of the writ petition, the primary penalty charge against tampering of metering circuit including energy meter has been unilaterally and arbitrarily determined at Rs.20,000,00/-, without any disclosure whatsoever of the process or basis of calculation. 21. Even on the bill annexed at page 98 of the writ petition, the primary penalty charge against tampering of metering circuit including energy meter has been unilaterally and arbitrarily determined at Rs.20,000,00/-, without any disclosure whatsoever of the process or basis of calculation. 21. Upon raising of such bill on August 5, 2002, the payment was made by the petitioner “under protest” pending the outcome of the internal enquiry, in view of the cordial relationship enjoyed by the petitioners with the DPL. Such communication was made on August 30, 2002 and the cheque of Rs.20,000,00/-was received by the DPL on August 31, 2002, along with the letter of protest. 22. It was clearly mentioned in the letter that the Board had directed to institute a thorough enquiry into the circumstances leading to the abnormalities observed in the inspection record notes inasmuch as there was no connection of electric power during the relevant point of time facilitating transfer of power connections from ‘C’ zone to ‘C1’ zone inasmuch as the lock and seal of the main entrance were found intact at the time of inspection. 23. If we look into the surrounding circumstances, throughout the previous day and the day of the alleged incident, the electricity supply to the petitioners’ factory premises remained disconnected, since the DPL was shifting the power connections from the ‘C’ zone to ‘C1’ zone. 24. As such, there was no occasion for the petitioner to commit pilferage at the juncture of inspection on July 2, 2002, simply because the electricity supply to the premises was already disconnected for two days at that point of time. 25. Moreover, nothing has been produced by the WBSEDCL to indicate that the DPL personnel had detected any tampering with the lock and seal of the meter room while getting access thereto. 26. All along, admittedly, the meter room was under the lock and seal of the DPL. As such, there could not have been any scope of the petitioners having any access to the energy meter or the metering circuit. Moreover, it was the DPL personnel who were working in the meter room on the day of the alleged discovery of pilferage and on the previous day. Hence, the onus of proof lay on the license to show the involvement of the petitioners in any manner whatsoever. 27. Moreover, it was the DPL personnel who were working in the meter room on the day of the alleged discovery of pilferage and on the previous day. Hence, the onus of proof lay on the license to show the involvement of the petitioners in any manner whatsoever. 27. Insofar as the allegation of cable trench is concerned, the said allegation is made for the first time, as rightly contended by the petitioners, in the affidavit-in-opposition, about five years after the alleged incident and during pendency of the writ petition. At the relevant juncture, however, such a serious incident was never reported before any law enforcement authority at all. Not a single complaint, FIR or criminal proceeding was initiated at the behest of the licensee against the petitioners. It is not credible to a prudent man as to how the DPL failed to report the matter to the police authority or initiate a criminal proceeding, if a cable trench was dug or used for the purpose of getting access into the meter room. 28. On the contrary, the presumption arises that the DPL personnel were responsible with regard to the breakage of the seal, if any, since the incident occurred during a period when the employees of the DPL were engaged in shifting of the power connections from one zone to another and at all material points of time prior thereto the meter room was under the lock and seal of the licensee. Hence, during the entire relevant period, the DPL had been in possession and control of the meter room. Even on the last inspection in the immediately preceding billing cycle, meter reading was taken by the DPL personnel without any inkling of doubt as regards the tampering of the meter. 29. Hence, the entire process of levying penalty on the petitioners is suspect. 30. It is clearly seen from the records and as per the admission of the WBSEDCL/respondent that there was no General Conditions of Supply of the DPL at the relevant juncture. There is nothing on record to show that the WBSEB Conditions of Supply were applicable. Therefore, even as per the argument of the WBSEDCL, the relevant provisions were that on Regulation 55 of the WBERC, framed under the 2003 Statute. It is interesting to note that the arguments of the Respondents are contradictory in this regard. There is nothing on record to show that the WBSEB Conditions of Supply were applicable. Therefore, even as per the argument of the WBSEDCL, the relevant provisions were that on Regulation 55 of the WBERC, framed under the 2003 Statute. It is interesting to note that the arguments of the Respondents are contradictory in this regard. Whereas in the affidavit-in-opposition the respondents have laid stress on the general format of the General Conditions of Supply of the WBSEB being applicable to the DPL, in arguments the respondents do a volte face and contend that the 2003 Act and the Regulations framed under it were applicable. 31. A perusal of Clause 5.0 of Regulation 55 of the WBERC shows that it deals with assessment of electricity charges payable under Section 126 of the 2003 Act, appeal under Section 127 of the Act and recovery of charges in connection therewith. A detailed mode of calculation has been given therein, under the contemplation of Section 126(5) of the 2003 Act. However, not even a single line has been dedicated by the licensee in its contemporaneous communications to indicate that such method was applied in the present case. 32. Insofar as the ratio of Bharat Singh (supra) is concerned, the same is squarely applicable in the present case, since no allegation of cable trench being dug or used for pilferage was made at the relevant juncture, nor was any FIR lodged against the petitioner. In the absence of any criminal proceeding whatsoever, even the most gullible person would find it difficult to swallow the explanation that no criminal proceeding was drawn up merely due to “cordial relationship” between the parties at the relevant juncture. 33. Rather, it is clearly deducible from the tenor of the petitioners’ letter dated July 2, 2002 and the insistence of the petitioners it their letter on the electricity connection being restored immediately, that the payment of Rs.20,000,00/-was paid under duress. 34. It is not a case where the electricity connection was disconnected by the DPL on the allegation of theft within the contemplation of Section 135 of the 2003 Act. Rather, the DPL played a “dog-in-the-manger” card to extract undertaking and payment from the petitioners, taking advantage of the predicament of the petitioners, since the electricity supply had been temporarily disconnected for shifting of the power connections from one zone to another, which had no nexus with theft. Rather, the DPL played a “dog-in-the-manger” card to extract undertaking and payment from the petitioners, taking advantage of the predicament of the petitioners, since the electricity supply had been temporarily disconnected for shifting of the power connections from one zone to another, which had no nexus with theft. Such temporary disconnection was sought to be made absolute by the DPL on the allegation of pilferage, made all on a sudden during the ongoing work undertaken by the DPL personnel, which is palpably extortive and unjust, in contravention of law and all norms of natural justice. In fact, the petitioners are justified in arguing that the assessments made by the licensee, both preliminary and final, are perverse and based on precious nothing in the form of supporting calculations. 35. Hence, the amounts charged from the petitioner, both by way of preliminary and final assessment by the DPL, now inherited by the WBSEDCL, is perverse and not sustainable in law. 36. Hence, WPA No.16229 of 2004 is allowed, thereby directing the WBSEDCL to refund the amount of Rs.20,000,00/-, paid by the petitioner as preliminary penalty, to the petitioners by October 31, 2023, along with interest on the said sum of Rs.20,000,00/-at the rate of 6% per annum till the date of such payment 37. In the event such payment of Rs.20,000,00/-along with interest is not made within October 31, 2023, the WBSEDCL shall pay further interest for the period thereafter at the rate of 6% per annum on the entire quantum payable as on October 31, 2023, including the principal dues plus the interest accrued till October 31, 2023, till the date of final disbursal of the amount. 38. There will be no order as to costs. 39. Urgent certified server copies, if applied for, be issued to the parties upon compliance of due formalities. Later: When the above judgment is delivered, it is pointed out by learned counsel for the petitioners that pursuant to an interim order of this Court, the petitioners had deposited an additional amount of Rs.25,00,000/-(Rupees Twenty Five Lakhs) to the WBSEDCL. Such amount, without any interest, shall be returned by the WBSEDCL to the petitioners by May 15, 2023.