Adhunik Corporation Ltd. And ... vs West Bengal State Electricity ...
2023 Latest Caselaw 2894 Cal

                      In the High Court at Calcutta

                    Constitutional Writ Jurisdiction

                               Appellate Side



The Hon'ble Justice Sabyasachi Bhattacharyya



                          W.P.A. No.16229 of 2004

                Adhunik Corporation Ltd. And another
                                  Vs.
               West Bengal State Electricity Distribution
                     Company Limited and others


     For the petitioner                 :   Mr. Partha Sarathi Sengupta,
                                            Mr. Biswaroop Bhattacharya,
                                            Mr. Nilay Sengupta,
                                            Mr. Sujit Banerjee


     For the WBSEDCL                :       Mr. Sumit Kumar Panja,
                                            Mr. Sujit Sankar Koley



     Hearing concluded on           :       20.04.2023

     Judgment on                    :       25.04.2023




     Sabyasachi Bhattacharyya, J:-



1.   The writ petitioner no.1-Company is a consumer of electricity from the

     respondent no.1, the West Bengal State Electricity Distribution

Company Limited (WBSEDCL). Previously it was a consumer under

the Durgapur Projects Limited (DPL), which was subsequently taken

over by the WBSEDCL, a Government of West Bengal undertaking.

2. The petitioners have challenged the imposition of preliminary penal

charge of Rs.20,000,00/- vide Notice dated August five, 2002 issued

by the DPL and seek a refund of the said amount with interest.

3. A subsequent consequential bill issued on February 6, 2004,

demanding an amount of Rs.2,87,07,420/- as assessment for theft or

pilferage of energy by the petitioners and a further notice dated

September 6, 2004 of disconnection in default of payment of such

sum have also been assailed in the present writ petition.

4. The learned Senior Advocate for the petitioners argues that the

allegation of pilferage is an afterthought. There was no complaint or

FIR at any point of time lodged by the DPL. The alleged pilferage was

not detected previously. Moreover, it is argued that the allegation of

digging/using a cable trench to have access to the meter room is

levelled for the first time in the affidavit-in-opposition filed by the

WBSEDCL in the present writ petition. The allegation of pilferage is

not credible since the meter room housing the meter of the DPL (now

WBSEDCL) has all along been under lock and key of the licensee and

was opened and closed exclusively by the personnel of the licensee at

the time of holding inspections and taking meter readings.

5. In the previous billing cycle prior to the alleged act of pilferage, regular

meter reading was taken by the DPL personnel, but no allegation of

tampering was made.

6. It is submitted that since the meter room has all along been under the

exclusive control of the licensee, there could not be any hand of the

petitioner at all in the pilferage, if any.

7. The WBSEB Regulations/Guidelines, sought to be implemented by the

licensee, was never applicable to the contract between the petitioner

and the DPL. Although the agreement between the two referred to

DPL Regulations, there was no Regulation or general conditions of

contract of the DPL at any point of time.

8. It is argued that the amount claimed by the licensee from the

petitioner was patently perverse and without any basis. In this

context, the learned Senior Advocate for the petitioners cites a

Supreme Court judgment reported at (2019) 4 SCC 500 [Sarvepalli

Ramaiah (Dead) as per legal representatives and others Vs. District

Collector, Chittoor District and others], where it was held that any

decision based on perversity, patent illegality, irrationality and

procedural irregularity ought to be set aside.

9. It is next argued that the defence sought to be advanced by the

licensee/respondent has been taken for the first time after five years

of the alleged incident, in the affidavit-in-opposition of the licensee.

The digging up of a cable trench at the location is not established from

the records at all. In fact, the petitioners argue, the relevant

paragraphs in the opposition of the Respondents are affirmed to be

true to knowledge of the deponent derived from the records, without

any records being produced in support thereof. In this context, the

learned Senior Advocate cites Bharat Singh & Ors. V. State of Haryana,

reported at (1988) 4 SCC 434, for the proposition that no defence can

be taken for the first time in affidavit, particularly without any

supporting document, which renders the defence of the respondent a

nullity.

10. It is submitted further that the payment by the petitioners of the

amount of Rs.20,000,00/- as per the preliminary claim of the DPL was

made under duress and coercion, under the threat of disconnection.

It is argued that there was unequal bargaining power prevailing

between the parties. The petitioner no.1-industry employs several

workers, who would become jobless overnight if such payment was

not made and the electricity supply was disconnected, thereby

stopping the business of the Company. It is argued that mere

payment of the preliminary sum demanded, under protest, could not

tantamount to an admission in the true sense of the term and, as

such, cannot be relied on by the WBSEDCL for indicting the

petitioners of the offence of theft.

11. Learned counsel appearing for the WBSEDCL submits that vide letter

dated July 2, 2002, the petitioners accepted the inspection report of

the DPL, which alleged pilferage, and agreed to pay any compensation

and penalty levied by the DPL immediately.

12. As such, the petitioners cannot subsequently resile from such

position, particularly after having made the payment in terms of the

preliminary claim of the DPL.

13. It is submitted that by operation of Section 185 of the Electricity Act,

2003 (for short, "the 2003 Act"), the provisions of the 2003 Act are

applicable in the present case. Although at the relevant juncture in

2002, the previous Act, that is, the Electricity Act, 1910 was

prevalent.

14. Hence, in terms of the Regulations framed by the West Bengal

Electricity Regulatory Commission (WBERC) under the 2003 Act as

well as the provisions of the said Act, the licensee was well within its

authority and have complied with all due procedure of law, to claim

such assessed amount on the ground of pilferage.

15. Learned counsel for the WBSEDCL places reliance on Clause 5.0 of

Regulation 55 of the 2003 Act as well as Section 185 of the same in

support of his arguments.

16. It is further argued that the General Conditions of Supply of the

WBSEB (West Bengal State Electricity Board) at that point of time also

governed the power supply agreement between the parties.

17. Upon hearing learned counsel, the plinth of the defence appears to be

the "admission" of the petitioners with regard to pilferage.

18. A perusal of the letter issued by the petitioner no.1 dated July 2,

2002, addressed to the Commercial Engineer, DPL indicates that the

petitioner no.2, a Director of the petitioner no.1-Company, accepted

and acknowledged the record notes drawn on July 2, 2002 by and

between the DPL and the petitioner no.1 in connection with tampering

of the energy meter at the premises and also afforded apology for the

same. Further, the petitioners undertook to pay "any compensation

and penalty" immediately regarding damage of meter, loss of energy

due to tampering of meter as would be claimed by the DPL. The last

sentence of the said communication, however, indicated that on the

basis of the undertaking, the DPL was requested to restore the power

supply immediately.

19. Such communication, per se, cannot tantamount to an admission of

the act of pilferage or theft on the part of the petitioner within the

contemplation of Section 135 of the 2003 Act. It is also evident from

the last sentence thereof that the same was given in the context of the

pending threat of not restoring the electricity supply, which had been

disconnected two days before for shifting of power connections to a

different zone for reasons entirely unconnected with the allegation of

meter-tampering, which would render the petitioner no.1 out of

business. Hence, it cannot be said that the said undertaking to pay

and the subsequent payment pursuant thereto was an unqualified

'admission' of the act of pilferage on the part of the petitioners.

20. The DPL, taking advantage of such concession on the part of the

petitioners, given under the obvious pressure of losing the electricity

connection, raised a primary penal charge of Rs.20,000/- vide

communication dated August 5, 2002. It is reflected from the said

communication, being Annexure P-6 at page 97 of the writ petition,

that the same was taken as a primary action against ''malpractices on

the seals related to the metering circuit and energy meter installed at

DPL cutout" at the factory premises and taking into account the

record notes on checking of energy meter and metering circuit at the

premises on July 2, 2002 as well as based on the undertaking given

on even date by the petitioners. However, no basis of calculation for

arriving at the quantum of Rs.20,000,00/- is disclosed at all in the

communication, or any other ancillary documents. The

communication says merely that "it has been decided by the

management to impose on you a penalty of Rs.20,000,00/-'' without

disclosing any ratio backing up such calculation. Even on the bill

annexed at page 98 of the writ petition, the primary penalty charge

against tampering of metering circuit including energy meter has been

unilaterally and arbitrarily determined at Rs.20,000,00/-, without any

disclosure whatsoever of the process or basis of calculation.

21. Upon raising of such bill on August 5, 2002, the payment was made

by the petitioner "under protest" pending the outcome of the internal

enquiry, in view of the cordial relationship enjoyed by the petitioners

with the DPL. Such communication was made on August 30, 2002

and the cheque of Rs.20,000,00/- was received by the DPL on August

31, 2002, along with the letter of protest.

22. It was clearly mentioned in the letter that the Board had directed to

institute a thorough enquiry into the circumstances leading to the

abnormalities observed in the inspection record notes inasmuch as

there was no connection of electric power during the relevant point of

time facilitating transfer of power connections from 'C' zone to 'C1'

zone inasmuch as the lock and seal of the main entrance were found

intact at the time of inspection.

23. If we look into the surrounding circumstances, throughout the

previous day and the day of the alleged incident, the electricity supply

to the petitioners' factory premises remained disconnected, since the

DPL was shifting the power connections from the 'C' zone to 'C1' zone.

24. As such, there was no occasion for the petitioner to commit pilferage

at the juncture of inspection on July 2, 2002, simply because the

electricity supply to the premises was already disconnected for two

days at that point of time.

25. Moreover, nothing has been produced by the WBSEDCL to indicate

that the DPL personnel had detected any tampering with the lock and

seal of the meter room while getting access thereto.

26. All along, admittedly, the meter room was under the lock and seal of

the DPL. As such, there could not have been any scope of the

petitioners having any access to the energy meter or the metering

circuit. Moreover, it was the DPL personnel who were working in the

meter room on the day of the alleged discovery of pilferage and on the

previous day. Hence, the onus of proof lay on the license to show the

involvement of the petitioners in any manner whatsoever.

27. Insofar as the allegation of cable trench is concerned, the said

allegation is made for the first time, as rightly contended by the

petitioners, in the affidavit-in-opposition, about five years after the

alleged incident and during pendency of the writ petition. At the

relevant juncture, however, such a serious incident was never

reported before any law enforcement authority at all. Not a single

complaint, FIR or criminal proceeding was initiated at the behest of

the licensee against the petitioners. It is not credible to a prudent

man as to how the DPL failed to report the matter to the police

authority or initiate a criminal proceeding, if a cable trench was dug

or used for the purpose of getting access into the meter room.

28. On the contrary, the presumption arises that the DPL personnel were

responsible with regard to the breakage of the seal, if any, since the

incident occurred during a period when the employees of the DPL were

engaged in shifting of the power connections from one zone to another

and at all material points of time prior thereto the meter room was

under the lock and seal of the licensee. Hence, during the entire

relevant period, the DPL had been in possession and control of the

meter room. Even on the last inspection in the immediately preceding

billing cycle, meter reading was taken by the DPL personnel without

any inkling of doubt as regards the tampering of the meter.

29. Hence, the entire process of levying penalty on the petitioners is

suspect.

30. It is clearly seen from the records and as per the admission of the

WBSEDCL/respondent that there was no General Conditions of

Supply of the DPL at the relevant juncture. There is nothing on record

to show that the WBSEB Conditions of Supply were applicable.

Therefore, even as per the argument of the WBSEDCL, the relevant

provisions were that on Regulation 55 of the WBERC, framed under

the 2003 Statute. It is interesting to note that the arguments of the

Respondents are contradictory in this regard. Whereas in the affidavit-

in-opposition the respondents have laid stress on the general format of

the General Conditions of Supply of the WBSEB being applicable to

the DPL, in arguments the respondents do a volte face and contend

that the 2003 Act and the Regulations framed under it were

applicable.

31. A perusal of Clause 5.0 of Regulation 55 of the WBERC shows that it

deals with assessment of electricity charges payable under Section

126 of the 2003 Act, appeal under Section 127 of the Act and recovery

of charges in connection therewith. A detailed mode of calculation has

been given therein, under the contemplation of Section 126(5) of the

2003 Act. However, not even a single line has been dedicated by the

licensee in its contemporaneous communications to indicate that such

method was applied in the present case.

32. Insofar as the ratio of Bharat Singh (supra) is concerned, the same is

squarely applicable in the present case, since no allegation of cable

trench being dug or used for pilferage was made at the relevant

juncture, nor was any FIR lodged against the petitioner. In the

absence of any criminal proceeding whatsoever, even the most gullible

person would find it difficult to swallow the explanation that no

criminal proceeding was drawn up merely due to "cordial relationship"

between the parties at the relevant juncture.

33. Rather, it is clearly deducible from the tenor of the petitioners' letter

dated July 2, 2002 and the insistence of the petitioners it their letter

on the electricity connection being restored immediately, that the

payment of Rs.20,000,00/- was paid under duress.

34. It is not a case where the electricity connection was disconnected by

the DPL on the allegation of theft within the contemplation of Section

135 of the 2003 Act. Rather, the DPL played a "dog-in-the-manger"

card to extract undertaking and payment from the petitioners, taking

advantage of the predicament of the petitioners, since the electricity

supply had been temporarily disconnected for shifting of the power

connections from one zone to another, which had no nexus with theft.

Such temporary disconnection was sought to be made absolute by the

DPL on the allegation of pilferage, made all on a sudden during the

ongoing work undertaken by the DPL personnel, which is palpably

extortive and unjust, in contravention of law and all norms of natural

justice. In fact, the petitioners are justified in arguing that the

assessments made by the licensee, both preliminary and final, are

perverse and based on precious nothing in the form of supporting

calculations.

35. Hence, the amounts charged from the petitioner, both by way of

preliminary and final assessment by the DPL, now inherited by the

WBSEDCL, is perverse and not sustainable in law.

36. Hence, WPA No.16229 of 2004 is allowed, thereby directing the

WBSEDCL to refund the amount of Rs.20,000,00/-, paid by the

petitioner as preliminary penalty, to the petitioners by October 31,

2023, along with interest on the said sum of Rs.20,000,00/- at the

rate of 6% per annum till the date of such payment

37. In the event such payment ofRs.20,000,00/-along with interest is not

made within October 31, 2023, the WBSEDCL shall pay further

interest for the period thereafter at the rate of 6% per annum on the

entire quantum payable as on October 31, 2023, including the

principal dues plus the interest accrued till October 31, 2023, till the

date of final disbursal of the amount.

38. There will be no order as to costs.

39. Urgent certified server copies, if applied for, be issued to the parties

upon compliance of due formalities.

( Sabyasachi Bhattacharyya, J. )

Later:

When the above judgment is delivered, it is pointed out by

learned counsel for the petitioners that pursuant to an interim order

of this Court, the petitioners had deposited an additional amount of

Rs.25,00,000/- (Rupees Twenty Five Lakhs) to the WBSEDCL .

Such amount, without any interest, shall be returned by the

WBSEDCL to the petitioners by May 15, 2023.

( Sabyasachi Bhattacharyya, J. )