Calcutta High Court (Appellete Side)
Santosh Agarwal vs The Cesc Limited And Others on 9 December, 2021
In the High Court at Calcutta
Constitutional Writ Jurisdiction
Appellate Side
The Hon'ble Justice Sabyasachi Bhattacharyya
W.P.A. No. 18448 of 2021
Santosh Agarwal
Vs.
The CESC Limited and others
For the petitioner : Mr. Bidyut Kr. Halder,
Mr. Indranil Halder
For the CESC : Mr. Madhusudan Saha Roy
For the respondent-State : Mr. Debjit Mukherjee,
Ms. Susmita Chatterjee
Hearing concluded on : 26.11.2021
Judgment on : 09.12.2021
Sabyasachi Bhattacharyya, J:-
1. The petitioner has preferred the instant writ petition challenging a
provisional assessment made by the CESC Limited on the ground of
unauthorised usage of the electric connection by the petitioner.
2. However, during pendency of the writ petition, the provisional
assessment order merged into a final assessment order, which was
passed subsequently. Since the provisions of Section 127 of the
Electricity Act, 2003 (hereinafter referred to as "the 2003 Act") clearly
stipulate that a remedy lies in an appeal against such order of
provisional assessment, the learned advocate for the petitioner
restricts his prayer to a re-connection being given upon payment by
the petitioner of 50 per cent of the assessed final dues, during
pendency of such appeal.
3. Learned counsel appearing for the CESC Limited opposes such
contention and submits that, within the purview of the law, more
specifically, Section 127 (2) of the 2003 Act, it is stipulated that no
appeal against an order of assessment under sub-Section (1) of the
said Section 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. It is argued that the writ petitioner,
in the garb of a limited prayer, is seeking more than the final relief
which could be granted in the writ petition itself.
4. Learned counsel for the petitioner places reliance on certain
unreported co-ordinate Bench judgments as listed below:
(i) W.P. No. 11240(W) of 2003 (In Re: Abdul Rashid), dated July 14,
2003;
(ii) W.P. No. 3317(W) of 2013 (Joynal Abedin Vs. WBSEDCL & Anr.),
dated February 6, 2013;
(iii) W.P.A. No. 4974 of 2021 (Indranil Bhattacharya Vs. CESC
Limited & Ors.), dated February 24, 2021;
(iv) W.P. No. 16933(W) of 2018 (Asit Ghosh Vs. The WBSEDCL &
Anr.), dated October 10, 2018;
(v) W.P.A. No. 10296 of 2020 (Khitish Chandra Biswas Vs. CESC
Limited & Ors.), dated February 15, 2021;
(vi) W.P.A. No. 514 of 2021 (Imtiyaj Ahammad Vs. CESC Limited &
Anr.), dated February 23, 2021.
5. Learned counsel for the CESC Limited, on the other hand, relies on
the following judgments of co-ordinate benches of this Court:
(i) (2012) 3 Cal LJ 587 [Graviour Printing Industries Vs. CESC
Limited &Ors.];
(ii) 2011 (2) CHN (Cal) 571 [Tarun Pal Vs. West Bengal State
Electricity];
(iii) (2019) 5 CHN (SC) 72 [West Bengal State Electricity Distribution
Co. Ltd. & Ors. Vs. M/s. Orion Metal Pvt. Ltd. & Anr.]
6. Upon considering the arguments of the parties and the materials on
record, I come to the following conclusions:
7. The moot question which arises in the present case is, whether a
consumer is entitled to reconnection of electric supply in the event of
the supply being disconnected under Section135 of the Electricity
Act, 2003, upon payment of only a portion of the assessed dues.
8. As far as Section 135 is concerned, the third proviso of Sub-Section
(1-A) thereof provides that such reconnection will be on deposit or
payment of the assessed amount or electricity charges in connection
with the provisions of the Act, that too, without prejudice to the
obligations to lodge the complaint as referred to in the second proviso
to the said clause.
9. Section 126(4) of the 2003 Act provides that any person served with
an order of provisional assessment may accept such assessment and
deposit the assessed amount with the licensee within seven days of
service of such provisional assessment order upon him.
10. As such, both the two provisions which come into prominence in
respect of restoration of electric supply, as discussed above, stipulate
the deposit of the entire amount.
11. That apart, Section 127(2) of the Act provides that no appeal against
an order of assessment under Sub-Section (1) of Section 127 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. Sub-Section (1) of Section 127 provides that any person
aggrieved by a final order made under Section 126 of the Act may,
within thirty days of the said order, prefer an appeal to an appellate
authority as may be prescribed.
12. Hence, the maximum remedy provided to the consumers under the
purview of the 2003 Act, on deposit of half of the assessed amount, is
the right to prefer an appeal against a final order of assessment
13. As indicated above, a specific time period of thirty days has been
stipulated for preferring such an appeal under Section 127. Section
126(4) also limits the right of the consumers to deposit the entire
assessed amount with the licensee within seven days of service of
such provisional assessment order upon him, in which case the
provisional assessment has to be accepted and not challenged by the
defaulting consumer.
14. In the present case, the petitioner seeks to bypass such provisions
and to ask for t a relief greater than that provided in the statute itself.
An order of reconnection can, at best, be given either upon disposal of
an appeal, in the event the appellate decision goes in favour of the
consumer, or upon deposit of the total assessed amount. The
minimum prerequisite of preferring an appeal is deposit of half of the
assessed amount. Thus, the writ petitioner's prayer for reconnection
upon payment of half of the assessed amount, which is the pre-
condition of merely filing the appeal, is virtually the final relief which
can be granted in an appeal by the appellate forum. By no stretch of
imagination, such relief can be granted in a writ petition, that too,
before the consumer actually prefers an appeal.
15. An appeal, where questions of both fact and law can be raised,
provides a more efficacious alternative remedy for the petitioner than
the writ court, but is fettered by certain restrictions, one being the
deposit of half of the assessed amount and the other the limitation of
thirty days from the final order of assessment.
16. Even under Section 126(4), a consumer can only have her/his
connection restored upon deposit of the entire amount which has
been provisionally assessed. In such a case, the consumer is deemed
to accept such assessment and cannot go on to challenge the same.
17. Hence, in any event, the clear scheme of the 2003 Act signifies that
there is no scope of the consumer getting a restoration of electric
supply upon payment of merely a fraction of the assessed amount.
18. As far as the decisions of co-ordinate Benches cited by the petitioner
are concerned, only in Asit Ghosh (supra), the learned Single Judge
directed to deposit of 60 per cent of the final assessment bill with
restoration charges. In all the others, 50 per cent of the assessed
amount was directed to be deposited as a pre-condition of
reconnection being given.
19. However, in none of the judgments cited by the petitioner, the
respective Benches laid down any clear proposition or consider the
effect of Sections 126, 127 and 135, which creates specific bar to
such reconnection without paying the entire assessed amount. As
such, the said judgments cannot be deemed to be binding precedents
in that regard, as the question never fell for consideration before the
learned Single Judges.
20. On the other hand, the co-ordinate Bench judgments in Tarun Pal
(supra) and Graviour Printing Industries(supra), cited by the CESC
Limited, squarely decide the issue against the contention of the
petitioner and are binding precedents. The effect of the aforesaid
three Sections were considered at length in the judgments cited by
the CESC Limited. However, West Bengal State Electricity Distribution
Co. Ltd. & Ors. Vs. M/s. Orion Metal Pvt. Ltd. & Anr.(supra), is not a
binding precedent on the question which has fallen for consideration
in the instant case. In the said judgment, the Supreme Court was
considering, primarily, the question as to whether the tampering of a
meter falls within the purview of 'unauthorised use' as envisaged in
Section 126 of the 2003 Act. In such context, the Supreme Court
clearly elaborated the respective scopes of operation of Sections 126,
127 and 135 of the 2003 Act, but did not adjudicate upon the issue
at hand. Hence, the said citation is not relevant for deciding the
present matter.
21. In the light of the above discussions, the question raised in the
present writ petition is decided in the negative and against the
petitioner, holding that a consumer is not entitled to get restoration of
connection upon payment of 50 per cent, or any other fraction of the
total assessed amount.
22. Hence, the writ petitioner's prayer for restoration of electric supply on
payment of fifty per cent of the assessed amount is refused.
23. Since the final assessment has been completed in the present case,
an appeal liesunder Section 127 of the 2003 Act before the
appropriate appellate authority.
24. Accordingly, W.P.A. No.18448 of 2021 is dismissed on contest, with
liberty to the petitioner to approach the appropriate appellate
authority in accordance with law with a challenge against the final
order of assessment.
25. If such an approach is made, the appellate authority shall decide the
matter independently on its own merits, without being unnecessarily
influenced in any matter by any of the observations made above.
26. There will be no order as to costs.
27. Urgent certified copies of this order shall be supplied to the parties
applying for the same, upon due compliance of all requisite
formalities.
( Sabyasachi Bhattacharyya, J. )
