Calcutta High Court (Appellete Side)
Ratan Kumar Das vs The State Of West Bengal And Others on 12 June, 2023
D/L. 5.
June 12, 2023.
MNS.
WPA No. 68 of 2023
Ratan Kumar Das
Vs.
The State of West Bengal and others
Mr. Goutam Chakraborty,
Mr. J. N. Manna,
Mr. Kartik Kumar Ray
... for the petitioner.
Mr. Susanta Pal,
Ms. Ananya Neogi
...for the State.
Dr. Madhusudan Saha Roy
...for the WBSEDCL.
The petitioner has challenged a final order
of assessment. It is argued that a copy of the
final order of assessment passed under Section
126 of the Electricity Act, 2003 (in short "the 2003
Act") was obtained by the petitioner only after
filing of the writ petition, whereas the initial
challenge had been preferred against a
provisional order of assessment.
Learned counsel appearing for the
petitioner places reliance on the corresponding
provisions under Sections 126 and 135 of the
2003 Act and argues that the definition of
unauthorised use of electricity in Explanation (b)
2
of Sub-Section (6) of Section 126 of 2003 Act, in
so far as the same pertains to usage of electricity
through a tampered meter, is different from the
definition of theft under Section 135, which
involves a dishonest intention on the part of the
perpetrator in committing such tampering.
In the present case, it is argued, a
proceeding under Section 135 of the 2003 Act
has been taken out and the petitioner is
agreeable to have the offence compounded
therein before the Special Court.
It is, however, argued that the provision of
Section 126 of the 2003 Act is not maintainable in
the same breath, if a licensee alleges that the
tampering was done with a dishonest intention.
Learned counsel places reliance on the
judgement rendered by the Supreme Court in
Executive Engineer, Southern Electricity Supply
Company of Orissa Limited (SOUTHCO) and
another Vs. Sri Seetaram Rice Mill reported at
(2012) 2 Supreme Court Cases 108.
Placing particular reliance on paragraph 29
thereof, learned counsel seeks to stress upon the
observations made by the Supreme Court therein
to the effect that unauthorised use of electricity
under Section 126 of the 2003 Act deals with
3
cases of unauthorised use, even in the absence
of intention, which would be different from cases
where there is dishonest abstraction of electricity
by any of the methods enlisted under Section 135
of the 2003 Act.
It was further observed by the Supreme
Court that where a consumer, by any of the
means and methods as specified under Section
135(a) to 135(e), has abstracted energy with
dishonest intention and without authorisation, the
case would fall under Section 135 of the 2003
Act.
It is further contended that a learned
Single Judge of the Madras High Court, in the
judgement of Flem Industries Ltd. Vs. Tamil Nadu
Generation and Distribution Corporation Ltd.
reported at 2013 SCC OnLine Madras 3520,
distinguished between applicability of Sections
126 and 135 of the 2003 and considered the
scope of interference in the writ jurisdiction in
case of civil assessment made under the
provisions of Section 135, read with Sections 154
and 153 of the 2003 Act.
It is argued that Clause 5.1 of Regulation
55 of West Bengal Electricity Regulatory
Commission dated August 7, 2013 clearly
4
stipulates the provisional assessment under
Section 126(1) to be made as per the method
given therein. By highlighting the said
methodology, it is sought to be argued that there
is a patent distinction between tampering within
the contemplation of Sections 135 and 126 of the
2003 Act.
Learned counsel further contends that, in
the supplementary affidavit filed by the petitioner,
the petitioner has pointed out the discrepancies in
calculation committed by the respondent
authorities while making the provisional and final
orders of assessment. It is contended that the
petitioner was not given a proper hearing on the
provisional assessment for the purpose of
permitting the petitioner to point out the
calculation errors.
Learned counsel appearing for the West
Bengal State Electricity Distribution Company
Limited (WBSEDCL) controverts such
submissions of the petitioner and argues that it is
a well-settled position of law that Sections 126
and 135 operate parallely in so far as
proceedings for provisional assessment and final
assessment as well as theft of electricity are
concerned. However, the act of tampering is a
common ingredient of both the provisions and, as
such, it may very well be that parallel proceedings
under the two provisions mentioned above are
maintained by the Distribution Licensee on the
score of the same offence.
A perusal of the respective provisions of
Sections 126 and 135 of the 2003 Act clearly
indicates that usage of electricity through a
tampered meter is a common factor between
both. The same may be termed merely as
unauthorised use of electricity in the event there
is no dishonest intention alleged. However, the
same act, upon attributing the colour of dishonest
intention, acquires the nature of an offence of
theft under Section 135 of the 2003 Act.
In the present case, the provisional and
final orders of assessment in respect of the
petitioner were made by the Assessing Officer on
the premise of the allegation of tampering, which
has been virtually admitted by the petitioner
before the authorities.
On the other hand, the proceeding under
Section 135 of the 2003 Act has been undertaken
for the same act of tampering, where it is the
incumbent duty of the authorities to establish
beyond reasonable doubt, as befitting a criminal
trial, that there is a dishonest intention on the part
of the petitioner in committing such act of
tampering.
The yardsticks and standards of proof in
criminal and civil assessments respectively under
Sections 135 and 126 of the 2003 Act, it is well-
settled, are on different footings and are
maintainable parallely.
In Sri Seetaram Rice Mill (supra), which
has been cited by learned counsel for the
petitioner, the Supreme Court, while
distinguishing the features of the two provisions,
cited certain examples in paragraph 29 thereof.
What was highlighted in the context of the
cited judgment was that the two proceedings
differed on the count of the allegation of
dishonesty on the part of the perpetrator while
tampering the meter-in-question.
However, on an ultimate analysis, the said
observation did not culminate in a conclusion that
proceedings under the provisions of Sections 126
and 135 of the 2003 Act are not maintainable on
a parallel footing.
That apart, the learned Single Judge of the
Madras High Court, while passing the cited
judgment, took into consideration a perceived
lacuna in the Tamil Nadu Regulations framed by
the State Electricity Regulatory Authority of the
said State, with regard to there being no forum of
challenge against the civil assessment of liability
under Sections 153 and 154 of the 2003 Act.
However, the civil assessment made under
Section 154 of the 2003 Act is attracted only
when there is an allegation of theft under Section
135 of the 2003 Act. In fact, the opening
sentence of Section 154 specifies that only in
cases where there are allegations of offences
under Sections 135 to 140 of the 2003 Act, the
said section, that is, Section 154 comes into
operation.
The said provision, thus, operates in the
exclusive case of an offence under Sections 135
to 140 which is in contradistinction with the civil
liability assessed under Section 126 of the 2003
Act.
That apart, since the petitioner has not yet
preferred a challenge under Section 127 of the
2003 Act before the Appellate Authority
designated under the said Act for taking up
challenges against final order of assessment, the
present challenge in the garb of this writ petition,
on whatever ground, ought not to be entertained
to bypass the statutory provision of prior deposit
of 50% of the assessed dues before the appellate
authority.
In any event, it will be open to the
petitioner to approach the Special Court for
having the offences compounded before the said
Court and get the reliefs as stipulated in Section
154 and its sub-sections.
Nothing in this order shall prevent the
petitioner from taking recourse to such remedy
and/or from preferting an independent appeal, if
the petitioner so chooses, under Section 127 of
the 2003 Act against the final order of
assessment.
It was open for the writ petitioner to
challenge the alleged discrepancy of calculation
before the Assessing Officer at the relevant
juncture. However, such point can only be
agitated now before the appellate authority, if
such a challenge is preferred in terms of the
liberty given above.
Be that as it may, in view of the above
discussions, there is no scope of interference in
the present writ petition.
In the light of the above observations,
WPA No. 68 of 2023 is disposed of.
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.)
