Calcutta High Court (Appellete Side)
Sunil Kumar Ray vs The State Of West Bengal And Others on 17 February, 2023
D/L. 39.
February 17, 2023.
MNS.
WPA No. 3524 of 2023
Sunil Kumar Ray
Vs.
The State of West Bengal and others
Mr. Chinmoy Pal,
Ms. Archana Dutta
... for the petitioner.
Mr. Swapan Kumar Pal
...for the State.
Ms. Suvasree Ghose
...for the WBSEDCL.
Learned counsel for the petitioner has
raised an interesting question as to whether this
Court, under Article 226 of the Constitution of
India, has the discretion to direct restoration of
electricity connection to a consumer, against
whom charges of pilferage have been brought, in
the teeth of the language of Section 135(1A),
third proviso of the Electricity Act, 2003 (2003
Act).
The said proviso indicates that upon a
disconnection having been effected on the
ground of pilferage or theft of electricity, the
licensee or supplier, as the case may be, upon
deposit or payment of the assessed amount or
electricity charges in accordance with the
provisions of the 2003 Act, shall, without
prejudice to the obligation to lodge the complaint
as referred to in the second proviso to the clause,
restore the supply line of electricity within forty-
eight hours of such deposit or payment.
Learned counsel has placed reliance on an
unreported judgement of a co-ordinate Bench
dated December 16, 2020 passed in WPA 479 of
2020 (Joydev Ghorai Vs. The West Bengal State
Electricity Distribution Company Limited & Ors.).
In the said judgment, upon consideration
of the provisions of Section 135(1A) of the 2003
Act and "various clauses" of Regulation 55, the
learned Single Judge came to the conclusion that
such discretion is available with the court to direct
reconnection of electricity supply upon payment
of a fraction of the amount assessed.
There are several contrary judgments on
the issue. Keeping in view the language of the
third proviso to Section 135 of the 2003 Act, there
is a presumption that only upon deposit or
payment of the entire assessed amount or
electricity charges "in accordance with the
provisions of this Act", the licensee or supplier
shall, without prejudice to the obligation to lodge
complaint, restore the supply line. In my humble
opinion, it is somewhat doubtful as to whether the
provisions of the 2003 Act, in particular, Sections
126 and 127 of the 2003 Act read with Section
135(1A) of the 2003 Act permit the court to
exercise such discretion in the teeth of the
contrary provision in the Statute.
However, in the present case, there are
mitigating circumstances, inasmuch as the
petitioner is a septuagenarian of about 77 years
and his wife has been suffering from the dreaded
disease of Cancer for some time now. Since the
petitioner and his wife, who is a cancer patient,
are suffering disconnection of electricity and the
summer season is approaching, it will be an
extreme torture on the petitioner and his wife to
pass their days without electricity at their
premises.
In view of such mitigating circumstances,
there is a scope of rethinking and reinterpreting
the third proviso to Section 135(1A) of the 2003
Act under certain exceptional circumstances.
Be that as it may, since, in the present
case, the petitioner has already preferred an
appeal under Section 127 of the 2003 Act against
the final order of assessment passed by the
Distribution Licensee and the said appeal is
pending for some time now, in the interest of
justice, it would be expedient if such appeal is
directed to be disposed of as expeditiously as
possible and to grant liberty to the petitioner to
approach the appellate forum for an interim order
of reconnection, sine the appellate forum is in
seisin on the merits of the appeal.
In such view of the matter, it would not be
proper to unnecessarily refer the question as to
whether this Court has discretion, as discussed
above, to a larger Bench for resolution on
reference, which would delay the litigation further,
since the petitioner and his wife are in a
precarious condition and are elderly people.
In the above context, WPA No. 3524 of
2023 is disposed of by directing the appellate
forum to decide the appeal pending at the behest
of the petitioner under Section 127 of the 2003
Act as expeditiously as possible, positively within
three weeks from the date of communication of
this order to the said forum.
The petitioner will be at liberty to approach
the appellate forum with an interlocutory
application for restoration of electricity connection
to the petitioner upon payment of a nominal
amount on an ad hoc basis. If so approached,
the appellate forum will decide the said
application on an urgent basis, preferably within a
week from filing of the same, and decide the
matter in accordance with law, keeping in view
the unfortunate plight of the petitioner and his
wife.
It is, however, made clear that this Court
has not gone into the merits of the allegations
and counter allegations levelled in the appeal
preferred by the petitioner, which will be decided
by the appellate forum independently and in
accordance with law.
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.)
