Jagabandhu Mondal vs The State Of West Bengal & Ors
2022 Latest Caselaw 429 Cal

09-02-2022 ct no. 9 Sl.14 sp

WPA No. 1284 of 2021 Jagabandhu Mondal

-Versus-

The State of West Bengal & Ors.

(Via Video Conference)

Mr. Uday Sankar Chattopadhyay, Mr. Santanu Maji, Mr. Snigdha Saha, Mr. Pronay Basak, Mr. Debdipto Banerjee, Mr. Anindya Sundar Das, Mr. Soumen Bandyopadhyay ...for the petitioner

Mr. Jahar Dutta, Mr. Bipin Ghosh ...for the State

Mr. S.S.. Koley ...for the WBSEDCL

Learned counsel for the petitioner submits

that the petitioner is a poor cultivator and is

unable to clear further dues in respect of delayed

payment surcharge as levied by the Distribution

Licensee.

It is submitted by learned counsel for the

petitioner that, upon the petitioner's electric

connection being disconnected, a provisional

assessment bill was raised on June 25, 2016 to the

tune of Rs. 2,78,285/-. Subsequently, upon the

petitioner filing a written objection thereto, the

final assessment was made by the Assessing

Officer on July 22, 2016, thereby fixing an amount

of Rs. 1,69,486/- as dues of the petitioner. In the

meantime, a criminal proceeding had been initiated

against the petitioner on the ground of theft. Upon

approaching this Court by way of a writ petition

bearing WP 6925 (W) of 2019, a Co-ordinate bench

of this Court had, by its order dated April 4, 2019,

directed payment of 50% of the assessed amount

within seven days, subject to which the electric

connection of the petitioner was to be restored. The

balance was directed to be cleared off by three

equal monthly instalments, which was complied

with, the last instalment being paid on September

2, 2019.

Thereafter, the matter reached the Lok

Adalat and ultimately the criminal complaint

against the petitioner was compounded at Rs.

6,000/-.

Accordingly, the criminal proceeding was

also compounded in full and final settlement of the

claim before the Lok Adalat and the petitioner was

acquitted.

It is argued that since the amount payable

by the petitioner became first due on June 25,

2016 and July 22, 2016 respectively, when the full

and final assessments were made, the Distribution

Licensee is debarred by Section 56(2) of the

Electricity Act, 2003 from claiming delayed

payment surcharge, since the moratorium of two

years have elapsed.

It is further submitted that, in view of the

entire amount being settled fully and finally before

the Lok Adalat, no further charges could be

claimed from the petitioner in that regard.

Learned counsel for the petitioner places

reliance on a Division Bench judgment of this

Court rendered in CESC Limited vs. Shiva Glass

Company Limited & Ors., reported at 2011 SCC

Online Cal 3860 = (2012) 5 CHN 213. It is argued

on the basis of the said report that Section 56(2) of

the 2003 Act comes in the way of claiming any

delayed payment surcharge after the expiry of two

years.

In controverting such submissions, learned

counsel for the Distribution Licensee places

reliance on another Division Bench judgment of

this Court rendered in FMA 1963 of 2018

(WBSEDCL & Ors. vs. Abdul Hamid & Anr.) dated

March 4, 2020. It was elaborated in the said

judgment that despite the dictum of Shiva Glass

Company Limited (supra), it would not detract from

the fact that once the relationship between the

licensee and the consumer is severed and no bills

are required to be raised on the erstwhile

consumer, there is no possible manner in which

any sum due from the erstwhile consumer to the

licensee may be "shown continuously as

recoverable". It is further submitted, by placing

reliance on Kanoria Chemicals and Industries Ltd.

and others vs. U.P. State Electricity Board and

others, reported at (1997) 5 SCC 772, that the

Supreme Court clearly dealt with the issue and it

was observed that the licensee is entitled to

delayed payment surcharge even during the period

when appeals were pending, if there was no

specific stay order in respect of the operation of the

assessment.

By placing reliance on the language of

Section 56(2) of the 2003 Act, it is submitted that

the first due date in respect of delayed payment

surcharge can arise only upon the payment being

made by the consumer.

In the present case, it is evident that

although the petitioner had deposited some

amount much prior to the compounding of

criminal case, such payment was only ad hoc and

tentative in nature and not in terms of the claim of

the Distribution Licensee.

As such, the said payment cannot be taken

into consideration for the purpose of operation of

Section 56(2) of the 2003 Act.

Moreover, the first due in respect of the

delayed payment surcharge, as held by the

Supreme Court in the reported judgment cited by

the Distribution Licensee, arose only upon the

payment being made by the petitioner. The first of

such payments, that is 50% of the amount then

due, pursuant to the High Court's order, was made

on April 11, 2019.

Ultimately, the criminal complaint was

compounded before the Lok Adalat on September

14, 2019 and on October 3, 2019, the compounded

amount was paid. Although the criminal Court

acquitted the petitioner upon such charge being

compounded, such consequential acquittal cannot

have any direct bearing on the liability of the

petitioner to pay delayed payment surcharge, since

the entire exercise of compounding related to the

allegation of theft, neither more nor less. It was

not, and could not also be, recorded in the order of

either the criminal court or the Lok Adalat that the

licensee's right to claim delayed payment surcharge

was also waived in full and final settlement.

Hence, even if April 11, 2019 is taken to be

the first date of payment (when 50% of the

assessed amount was paid by the petitioner in

terms of the High Court's order), the demand for

late payment surcharge was made on January 10,

2021 which fell within the limitation of two years

from the date of such payment.

The expression "delayed payment surcharge"

consists of three components, one of which is

"payment" (the other two being "delayed" and

"surcharge", of course). As such, payment is a pre-

requisite for the commencement of the limitation

period vis-à-vis delayed payment surcharge.

Such proposition is also strengthened by the

unreported Division Bench judgment cited by the

Distribution Licensee.

As such, in the present case, this Court

cannot find any illegality or irregularity in the

delayed payment surcharge being levied by way of

the demand dated January 10, 2021, when the

limitation stipulated in Section 56(2) of the 2003

Act had not yet expired.

In such view of the matter, no relief can be

granted to the petitioner, despite having sympathy

for the plight of the petitioner, who is a cultivator

by profession and is of meager means, there is no

option for the Court to interfere in the present

matter, since such interference would be in gross

violation of the existing law.

As such, WPA No. 1284 of 2021 is dismissed

without, however, any order as to costs.

It will be open to the petitioner to approach

the Distribution Licensee further for grant of

instalments, keeping in view the distressed

financial condition of the petitioner. If so

approached, the Distribution Licensee will consider

the same in its own discretion and grant such

instalments, if so deemed fit, without being

prejudiced by any of the observations made herein.

Urgent photostat certified copies of this

order, if applied for, be made available to the

parties upon compliance with the requisite

formalities.

(Sabyasachi Bhattacharyya, J.)