Sl-04 vs Ct.32 Smt. Rupa Barman & Ors
2022 Latest Caselaw 5686 Cal

                              FMA 1026 of 2021

             Commercial Executive of Calcutta Electric Supply
22.08.22                Corporation Ltd. & Ors.
 Sl-04                             v.
 Ct.32                 Smt. Rupa Barman & Ors.
 (S.R.)
           Mr. Dr. Madhusudan Saha Ray
           Mr. Om Narayan Rai                      ... for the appellants.

           Mr. Abhisek Banerjee
           Ms. Sanchita Banerjee           ... for the respondents.

The present appeal has been preferred by the

functionaries of the Calcutta Electric Supply Corporation

Limited (in short, CESC) challenging, inter alia, the

following observations made by the learned Single Judge

in the order dated 21st June, 2019:-

'However, the law makes a provision by way of sub- section 5 & 6 to Section 154 whereby the Special Court where the criminal case is pending against the petitioner has the jurisdiction to adjudicate whether the civil liability, i.e. the assessed amount paid by the petitioner was correctly assessed or not.

AND It is made clear that such payment and acceptance is subject to the final result in the proceeding pending before the Criminal Court.'

Records reveal that the subject matter of challenge

in the writ petition was an order dated 7th February, 2018

passed by the appellate authority under Section 127 of

the Electricity Act, 2003 (in short, the Act of 2003), in an

appeal preferred by the writ petitioner/respondent no.1

herein against the final order of assessment under Section

126 of the Act of 2003.

Mr. Rai, learned advocate appearing for the

appellants submits that though by the order dated 21st

June, 2019 the learned Single Judge has not interfered

with the order passed by the appellate authority, the

observations, as quoted above, would have the effect of

granting the writ petitioner a forum to challenge the final

determination made by the appellate authority under

Section 127.

He argues that jurisdiction under Section 126 of the

Act is for determination of assessment for unauthorised

use of electricity whereas the jurisdiction under Section

154(5) and (6) is for determination of civil liability in terms

of money for theft of energy. There is no scope for the

Special Court to check the assessment done by the

Assessing Officer. In view of the observations, in all cases

of acquittal, the Special Court would be clothed with a

blanket power to check the correctness of such

assessment. In support of the arguments, Mr. Rai has

placed reliance upon the judgments delivered in the cases

of Executive Engineer, Southern Electricity Supply

Company of Orissa Limited (Southco) & Another v. Sri

Seetaram Rice Mill, reported in (2012) 2 SCC 108; Talat

Sahmid v. W.B.S.E. Distribution Co. Ltd. reported in 2015

SCC OnLine Cal 2527 and an unreported judgment

delivered in M.A.T. 263 of 2015 (Basudeb Paine v.

W.B.S.E.D.C.L. & Ors.).

Mr. Banerjee, learned advocate appearing for the

respondents denies and disputes the contention of Mr.

Rai.

The provisions of Section 126 and the provisions of

Section 154(5) and (6) operate in different fields and there

is no dispute as regards the proposition of law as laid

down in the judgments, as cited by Mr. Rai.

The contents of the order impugned in the present

appeal need to be read as a whole and not in isolation. A

particular clause cannot be taken up and highlighted. The

learned Single Judge upon affirming the order passed by

the competent authority under Section 127 has observed

that there is a separate forum for determination of civil

liability for theft of energy under Section 154(5) and (6) of

the Act of 2003.

The arguments of Mr. Rai that in view of the

observations, the consumer would be getting a forum to

challenge the order of the appellate authority passed

under Section 127 of the Act, 2003 and that in case of an

acquittal, the Special Court would be clothed with a

blanket power to check the correctness of the assessment

determined under Section 126 of the Act, 2003, are

misconceived and are not acceptable to this Court.

In view thereof, no interference is called for in the

present appeal.

The appeal, being FMA 1026 of 2021, is,

accordingly, dismissed.

There shall, however, be no order as to costs.

Urgent certified photocopy of this order, if applied

for, be supplied as expeditiously as possible.

(Raja Basu Chowdhury, J.) (Tapabrata Chakraborty, J.)