Pearl Corporation vs Cesc And Ors
2022 Latest Caselaw 850 Cal/2

OD 4


                                            WPO/94/2021

                             IN THE HIGH COURT AT CALCUTTA
                               Constitutional Writ Jurisdiction
                                      ORIGINAL SIDE


                                     PEARL CORPORATION
                                           Versus
                                       CESC AND ORS.



  BEFORE:
  The Hon'ble JUSTICE SABYASACHI BHATTACHARYYA

Date: 14th March, 2022.

Appearance:

Mr. Tapas Dutta, Adv.

Mr. Mritunjoy Halder, Adv.

...for the petitioner

Mr. Sumon Ghosh, Adv.

Mr. Debjani Mukherjee, Adv.

...for CESC

The Court: Learned counsel for the petitioner raises the short question as to

whether the operation of Section 126 of the Electricity Act, 2003 is attracted in a case of

purported theft. It is contended, by placing reliance on 'Executive Engineer, Southern

Electricity Supply Company of Orissa Limited (Southco) and Another versus Sri

Seetaram Rice Mill' reported at (2012) 2 SCC 108 that, in paragraphs 26 and 30

thereof in particular, it was held by a three-Judge Bench of the Supreme Court that

Section 126 would be applicable to a case where there is an unauthorized use of

electricity but not theft of electricity.

Learned counsel, in his usual fairness, submits that the two-Judge Bench

decision rendered in 'West Bengal State Electricity Distribution Company Limited

and Others versus Orion Metal Private Limited and Another' reported at (2020) 18

SCC 588, although dealing with the three-Judge Bench judgment, virtually overruled

the same. It is argued that the three-Judge Bench decision was binding on the two

Judge Bench and the latter, in the absence of any reference to a larger Bench, ought not

to be looked into.

Learned counsel appearing for the CESC Ltd. specifically contends that the

petitioner's agent and then the petitioner's advocate appeared before the concerned

authority in the matter and did not raise any objection to the provisional assessment bill

having been raised.

It is further contended that the bill annexed at page 36 of the affidavit-in-

opposition was issued in respect of an order of provisional assessment under Section

126 of the 2003 Act.

That apart, it is argued that the scopes of Sections 126 and 135 of the 2003 Act

intersect each other at points.

In reply, learned counsel for the petitioner submits that the appearances before

the authority on behalf of the petitioner, by the petitioner's agent and advocate, were all

in connection with a proceeding under Section 135 of the 2003 Act and had no

connection with any proceeding under Section 126. It is further submitted that the

petitioner was neither served any notice nor was heard on the allegation of provisional

assessment under Section 126 of the 2003 Act.

Learned counsel appearing for the CESC Ltd. seeks an adjournment for arguing

on the legal point raised by the petitioner.

Accordingly, the matter is heard in part and shall next be enlisted as a 'Part-

Heard Matter' on March 21, 2022.

(SABYASACHI BHATTACHARYYA, J.) B.Pal