Pearl Corporation vs Cesc And Ors
2021 Latest Caselaw 279 Cal/2

OD-2
                                WPO 94 of 2021
                       IN THE HIGH COURT AT CALCUTTA
                         Constitutional Writ Jurisdiction
                                ORIGINAL SIDE




                              PEARL CORPORATION
                                      VS
                                CESC AND ORS.

  BEFORE:
  The Hon'ble JUSTICE RAVI KRISHAN KAPUR
  Date : 10th March, 2021.

                                                                               Appearance:
                                                                     Mr. Tapas Dutta, Adv.
                                                                            ...for petitioner.
                                                                 Mr. Mritunjay Halder, Adv.
                                                                     ...for respondent no. 5.

Mr. Suman Ghosh, Adv.

Mr. Debanjan Mukherjee, Adv.

...for CESC.

Mrs. Sucharita Paul, Adv.

...for State respondent no. 3 & 4.

The Court : The grievance of the petitioner is directed against a bill dated 15th

August, 2020 raised by the respondent CESC demanding an aggregate amount of

Rs. 2.70 lakhs approximately. It is submitted on behalf of the petitioner that

there has been theft of electricity from the electricity connection of the petitioner

but the respondent authorities have no right the invoke Section 126 of the

Electricity Act, 2003. It is further submitted on behalf of the petitioner that the

respondent no. 5 being a labour contractor appointed by the petitioner is the

person responsible for the theft of electricity from the electricity meter of the

petitioner. The petitioner further relies on a judgment reported in (2012) 2 SCC

108 passed by the Hon'ble Supreme Court to contend that a proceeding under

Section 126 of the 2003 Act cannot be initiated in case of theft of electricity.

The respondent CESC Corporation is represented.

It is submitted on behalf of the respondent Corporation that the case of the

petitioner is based on suppression and misrepresentation of facts. It is further

submitted on behalf of the respondent CESC that on 9.12.2020 Mr. Sanjoy

Kumar Paul claiming himself to be an employee of the petitioner had approached

the CESC Corporation and unconditionally and unequivocally accepted the

provisional assessment bill raised by the respondent Corporation. Subsequently,

an Advocate one Sujit Singh had filed an application with the respondent CESC

with the same prayer accepting the provisional assessment. Moreover, the said

Sujit Singh sought for liberal installments to make such payment to the

respondent CESC. In this connection, the respondent CESC relies on

correspondence issued by the said Sanjay Kr. Paul and Sujit Singh, Advocate. It

is further submitted on behalf of the respondent CESC that the outstanding dues

payable by the respondent CESC are approximately Rs. 269,504/-. Out of the

said an amount of Rs.1,50,000/- has been paid by the petitioner. It is also

submitted on behalf of the respondent Corporation that a criminal case has been

initiated against the petitioner and upon payment of a portion of the aforesaid

amount, bail has been granted to the representative petitioner company.

The State is represented and relies on a communication issued by the Officer-in-

Charge, Parnashree Police Station to bring on record the criminal proceedings

which have been initiated against the petitioner.

I have considered the submissions made on behalf of the parties. I am of the view

that having considered the facts and circumstances of the case there is no scope

of passing any interim order at this stage. It appears, prima facie, that the writ

petition is an afterthought. The conduct of the petitioner in approaching the

respondent Corporation both through its representative and an Advocate makes

it apparent that the petitioner had accepted the bills raised by the respondent

CESC and had also made part payment thereof. There is also a serious question

of maintainability of this petition in view of the statutory alternative remedy

available to the petitioner. The respondent no. 5 is also represented and submits

that he is a labour contractor who had been engaged by the petitioner and that

he had committed theft of electricity for only one day. Prima facie it appears that

the respondent no. 5 has been set up by the petitioner and is colluding with the

petitioner to deprive of the CESC of their legitimate dues.

However, since there are several material facts which have to be brought on

record, I am of the view that the parties should be granted an opportunity to file

their affidavit. Affidavit in opposition be filed by the respondent within two weeks

from date. Affidavit in Reply, if any, be filed three days thereafter. Let this matter

appear as a "Specially Fixed Matter" on 24th March, 2021.

(RAVI KRISHAN KAPUR, J.)

SK.