Arup Kumar Ghosh vs West Bengal State Electricity
2022 Latest Caselaw 2522 Cal

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05.05.2022

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IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE

W.P.A. No. 5991 of 2022

Arup Kumar Ghosh

-vs.-

West Bengal State Electricity Distribution Company Limited & Ors.

Mr. Debasish Ghosh, Mr. Nilanjan Adhikari, Mr. Subhajit Roy ...for the petitioner

Mr. Srijan Nayak, Ms. Rituparna Maitra ...for the WBSEDCL

Mr. Susanta Pal, Mr. Ananda Dulal Sarkar ...for the State

The present challenge has been preferred

against a final order of assessment made on the

allegation of pilferage of electricity against the petitioner.

Learned counsel appearing for the petitioner

contends that it is public knowledge that due to the

Covid-19 pandemic, at least for a period of eight

months, all factories were closed, including the stone

crusher operated by the petitioner, in respect of which

the electricity was allegedly consumed.

That apart, learned counsel submits that a

meeting was held in the year 2010 between the District

Magistrate concerned and all other stakeholders, where

it was decided by the District Magistrate that no stone

crusher shall operate more than eight hours a day.

Even in the teeth of the above factors, it is

argued, a final assessment was raised on the premise

that the stone crusher machine was used by the

petitioner for twenty hours per day, which was

impossible during the pandemic period. That apart, it is

contended that there is a variance between the

provisional assessment bill (annexed at page 42 of the

writ petition) and the final assessment bill (annexed at

page 64 of the writ petition), insofar as the working

hours are concerned; the former discloses that the

machine was used for 24 hours, while the latter says

that it was used for 20 hours, per day. In view of such

patent discrepancies, it is contended, this Court ought

to interfere and set aside the final order of assessment.

As regards the availability of an alternative

remedy in the form of an appeal under Section 127 of

the Electricity Act, 2003, learned counsel for the

petitioner submits that such alternative remedy, being

onerous, is not an absolute bar to this Court for

exercising its writ jurisdiction under Article 226 of the

Constitution of India, particularly since no reasons have

been provided in the assessment for such discrepancies.

Learned counsel appearing for the Distribution

Licensee contends that, since Section 127 of the 2003

Act clearly stipulates and provides for an appeal against

the final order of assessment, which also contemplates

deposit of fifty per cent of the assessed amount as a pre-

condition for preferring such appeal, the present writ

petition ought not to be entertained.

It is further contended that there was a serious

allegation of pilferage against the petitioner, on which

ground the provisional and, thereafter, the final

assessment order was passed. Hence, premium ought

not to be given to the petitioner by granting relief in the

present writ petition.

Learned counsel appearing for the petitioner, in

support of his contention, places reliance on a judgment

of the Supreme Court, reported at AIR 1954 Supreme

Court 403 (Himmatlal Harilal Mehta vs. State of M.P. &

Ors.).

Learned counsel reiterates the proposition as

contended to be laid down in the said Supreme Court

judgment and relied on by a Division Bench judgment of

this Court, reported at AIR 2013 Calcutta 194 (Narbada

Devi Harlalka & Ors. Vs. Kolkata Municipal Corporation

& Ors.). The proposition is that in view of the alternative

remedy being onerous, there is no bar to the High Court

entertaining an application under Article 226 of the

Constitution despite the availability of an alternative

remedy by way of an appeal.

Upon hearing learned counsel for the parties, it

appears from the records that the present challenge is

squarely directed against the final order of assessment

on the charge of pilferage.

Section 127(1) of the Electricity Act, 2003

clearly provides that any person aggrieved by the final

order made under Section 126 may, within thirty days

of the said order, prefer an appeal in such form, verified

in such manner and be accompanied by such fee as

may be specified by the State Commission, to an

appellate authority as may be prescribed.

Sub-section (2) of Section 127 further stipulates

that no appeal against an order of assessment under

sub-section (1) shall be entertained unless an amount

equal to half of the assessed amount is deposited in

cash or by way of bank draft with the licensee and

documentary evidence of such deposit has been

enclosed along with the appeal.

Sub-section (6) of Section 127 further provides

that when a person defaults in making payment of

assessed amount, he, in addition to the assessed

amount, shall be liable to pay, on the expiry of thirty

days from the date of order of assessment, an amount of

interest at the rate of sixteen per cent per annum

compounded every six months.

In so far as the judgment of the Supreme Court,

cited by the petitioner, is concerned, the same dealt with

a challenge to the vires of certain provisions of the

Central Provinces and Berar Sales Tax Act, 1947. The

Supreme Court, upon the discussions made in the said

judgment, ultimately came to the conclusion that the

High Court therein, having held that Explanation II to

Section 2(g) of the said Act was ultra vires, was in error

in dismissing the writ petition on the ground that it was

not entitled to grant relief under the provisions of Article

226 of the Constitution of India.

While coming to the said finding, the Supreme

Court discussed the order of the High Court and it was

observed, inter alia, that it was held by the Supreme

Court in a previous judgment, reported at AIR 1953 SC

252, that the principle that a court will not issue a

prerogative writ when an adequate alternative remedy

was available could not apply where a party has came to

the Court with an allegation that his fundamental right

had been infringed and sought relief under Article 226

of the Constitution. Moreover, the remedy provided by

the Act was of an onerous and burdensome character

as, before the assessee can avail of it, he has to deposit

the whole amount of the tax. Such a provision can

hardly be described as an adequate alternative remedy,

it was held.

As opposed to the cited judgment, in the

present case, the vires of Section 126 and/or Section

127 of the 2003 Act have not been challenged.

As such, the entire factual scenario changes

insofar as the provisions under which an appeal has to

be preferred upon deposit of fifty per cent of the

assessed amount, remains in the statute book and is

intra vires.

In the reported judgment, the High Court, even

after holding that the discussed provision was ultra

vires, refused to entertain an application under Article

226 of the Constitution. In the present case, the writ

petitioner deliberately, to by-pass the mandatory

provision of depositing fifty percent of the assessed

amount as a pre-condition for filing an appeal under

Section 127 of the 2003 Act, has chosen the writ

jurisdiction of this Court.

A bare perusal of sub-section (2) of Section 127

of the 2003 Act clearly indicates that the said provision

is couched in a negative language.

Since it has been specifically stated that "No

appeal against an order of assessment under sub-

section (1) shall be entertained........" the said provision

is mandatory and cannot be deemed to be a directory

one. Moreover, as opposed to the cited Supreme Court

judgment, the said provision stipulates only fifty percent

of the amount to be deposited, whereas the whole

amount of the tax was to be deposited under the

impugned provisions of the 1947 Act.

As far as the Division Bench judgment cited by

the petitioner is concerned, in the said judgment, the

Division Bench, upon discussing the proposition laid

down in Himmatlal Harilal Mehta (supra), specifically

observed that " For the reasons discussed hereinabove,

we are of the opinion that the writ court is entitled to

decide the writ petition filed by the appellants herein on

merits in order to adjudicate the issues raised by the

appellants with regard to the validity and/or legality of

the determination of the annual valuation by the

Hearing Officer." The Division Bench held that it was

observed thereinbefore that adequate equally efficacious

alternative remedy was not available to the appellants

therein specially when filing of appeals before the

learned Tribunal under Section 189(5) of the Calcutta

Municipal Corporation Act, 1980 could not be held to be

equally efficacious alternative remedy "in the facts of the

present case" due to the precondition imposed by sub-

section (6) of Section 189 of the 1980 Act.

In paragraph 30 of the said judgment, the

Division Bench held that the appellants cannot be

remediless when they had challenged the determination

made by the Hearing Officer with regard to the annual

valuation in respect of the premises-in-question on the

ground that the said Hearing Officer did not furnish any

reason for determining the annual valuation ignoring

the objections raised by the appellants therein.

In the present case, however, there was no

scope of the appellate authority or the first forum to

consider the objection of the writ petitioner at all, since

the petitioner had not filed any written objection before

any of the forums.

Moreover, with utmost respect to the said

observations made in the facts of the case before the

Division Bench in respect of a different Act, a parallel

analogy cannot be drawn with the Electricity Act, 2003,

which specifically stipulates under Section 127(2) that

no appeal against an order shall be entertained unless

an amount equal to half of the assessed amount is

deposited in cash or by way of bank draft.

Hence the said judgments do not come to the

support of the proposition contended by learned counsel

for the petitioner.

However, since the petitioner has been

pursuing the writ petition, it ought to be deemed that

the date of passing this order, that is, today, is the date

of commencement of the limitation for preferring an

appeal under Section 127 of the 2003 Act. Yet, it

should be reiterated that the petitioner's contention that

the petitioner will be unable to deposit half of the

assessed amount, as contemplated under Section 127 of

the 2003 Act, cannot be a valid ground for refusal to

deposit such amount as a precondition for preferring an

appeal, since, in such a situation, all defaulters will

flood the courts with applications for restoration without

complying with the specific mandatory provisions of the

statute.

In such view of the matter, W.P.A. No. 5991 of

2022 is disposed of with liberty to the petitioner to

approach the appellate authority, as envisaged under

Section 127 of the Electricity Act, 2003, challenging the

final order of assessment, which has been impugned in

the present writ petition, upon compliance of all

formalities, including the stipulation in sub-section (2)

of Section 127 of the 2003 Act.

If so approached within the limitation period,

calculating the limitation from today, the appellate

authority will decide the said appeal in accordance with

law upon giving adequate opportunity of hearing to all

concerned.

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 of all necessary formalities.

(Sabyasachi Bhattacharyya, J.)