Srikanta Bhunia vs The West Bengal State Electricity ...
2022 Latest Caselaw 4079 Cal

    04
08.07.2022

TN

WPA No. 11193 of 2022

Srikanta Bhunia Vs.

The West Bengal State Electricity Distribution Company Limited (WBSEDCL) and others

Mr. Sukumar Ghosh, Ms. Moumita Ghosh .... for the petitioner

Mr. Debjit Mukherjee .... for the WBSEDCL

Learned counsel for the petitioner contends that

the petitioner was not given any hearing on the

provisional assessment order of the Distribution

Licensee under Section 126 of the Electricity Act,

2003 (hereinafter referred to as "the 2003 Act").

Without doing so, the final assessment order

was made, which is contrary to law, it is submitted.

Learned counsel contends that a composite

notice was given to the petitioner clubbing Section

126 of the 2003 Act with Section 135 of the said Act,

which compoundment, it is contended, is not tenable

in the eye of law.

As such, learned counsel seeks that the orders

of provisional and final assessment be set aside.

Learned counsel places reliance on a coordinate

Bench judgment in Arnab Ganguly & Anr. vs. CESC

Ltd. & Ors., reported at 2010 (1) CHN (CAL) 645, for

the proposition that for passing either a provisional or

final order of assessment within the contemplation of

Section 126 of the 2003 Act, a notice of prior hearing

has to be given to the consumer.

Learned counsel appearing for the Distribution

Licensee hands over a copy of a purported notice of

hearing which allegedly contains the signature of the

petitioner as well. In the said notice, apparently the

date of hearing on the provisional assessment, for the

purpose of drawing final assessment, was given. Such

date of hearing was fixed on May 30, 2022 at 13:40

hours.

It is submitted that the allegations levelled in

paragraph nos.11 and 13 of the writ petition, to the

effect that no notice was given to the petitioner even

prior to the final order of assessment, is patently

incorrect.

Learned counsel also controverts the proposition

that a notice has to be given even prior to passing a

provisional order of assessment.

A perusal of Section 126 of the 2003 Act clearly

elucidates that no prior notice has to be given before

the Licensee arrives at a provisional assessment,

although an opportunity of hearing has to be given

prior to finalizing such assessment by way of a final

order of assessment.

Insofar as the cited judgment is concerned, the

question which fell for consideration before the

learned Single Judge is enumerated in paragraph no.7

of the citation. Such question was whether, on the

allegation that the writ petitioners were the actual

users of the meter, which was involved in the alleged

theft even after sale of the premises in their favour,

the meters of the writ petitioners obtained in

September, 2008 and 26th December, 2008 could be

disconnected?

Upon considering the effect of Section 126 of the

2003 Act and Regulation 5 of the West Bengal

Electricity Regulatory Commission (WBERC)

Notification No.24 dated October 18, 2005, the

learned Single Judge arrived at the finding that, in the

said case, the provisional assessment and the final

assessment were made without any notice to the

petitioners. Proper proceeding, it was observed, ought

to have been drawn up against them, and they be

given an opportunity to contest the same before any

unauthorized use may be assessed as against them.

Upon considering the relevant provisions of the

concerned Regulations of the WBERC, the learned

Single Judge further went on to hold that the rules do

not preclude an assessment order to be passed

against the petitioners or any of them, but that

particular assessment order cannot be enforced

against them as it was passed without notice to them

or hearing them.

It is obvious from the tenor of the said judgment

that the final order of assessment had also been

passed in the said case, which was challenged in a

composite manner with the provisional order.

Needless to say, within the contemplation of Section

126 of the 2003 Act, the provisional order of

assessment merges with the final order of assessment

once the latter is passed. Of course, Section 126

clearly contemplates a notice being given to the

consumer concerned for hearing on the provisional

assessment, prior to passing a final order of

assessment. However, no prior hearing has to be given

before issuing a provisional order of assessment.

Contrary to the allegations made in the present

writ petition, the document handed over by learned

counsel for the WBSEDCL indicates that a notice of

hearing was actually given to the petitioner.

Although learned counsel for the petitioner

contends that even before a provisional order of

assessment, a notice of hearing need be given to the

petitioner, such proposition cannot be supported

either on the strength of the cited judgment or the

relevant provision, that is, Section 126 itself.

Hence, in the present case, the final order

passed by the WBSEDCL was well within the

authority of the WBSEDCL to pass.

That apart, it is well-settled that Sections 126

and 135 of the 2003 Act operate in separate spheres -

one giving rise to a civil liability and the other criminal

- and, as such, there arose no question of

"compounding" the said two provisions in the notice-

in-question. As per the notice of provisional

assessment, it was merely mentioned by the

Distribution Licensee for the information of the

petitioner that proceedings under Section 126 as well

as Section 135 of the 2003 Act had been levied against

the petitioner. There is no question of compounding of

offences as sought to be argued by the petitioner in

the instant case.

It is further provided in Section 127 of the 2003

Act that an order of final assessment is appealable

before the competent appellate authority upon deposit

of fifty per cent of the claimed amount.

In the present case, the petitioner having not

done so, there is no scope of entertaining the writ

petition at the behest of the petitioner which, inter

alia, challenges such final order of assessment as well.

Hence, WPA No.11193 of 2022 is dismissed

without any order as to costs.

However, it is made clear that in the event the

petitioner prefers an appeal within the contemplation

of Section 127 of the 2003 Act, the appellate authority

shall consider the same independently, subject to

statutory limitation and in accordance with law, and

decide the same on its own merits without being

influenced in any manner on merits by any of the

observations made herein.

There will be no order as to costs.

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.)