Mir Baruddin Ali vs The West Bengal State Electricity ...
2023 Latest Caselaw 3163 Cal

AD-05
Ct No.09
03.05.2023

TN

WPA No. 10097 of 2023

Mir Baruddin Ali Vs.

The West Bengal State Electricity Distribution Company Limited and others

Mr. Sk. Sahjahan Ali .... for the petitioner

Mr. Debjit Mukherjee .... for the WBSEDCL

The short question which has arisen for

consideration in the present case is, whether a final

order of assessment passed by the Assessing Officer

under Section 126 of the Electricity Act, 2003

(hereinafter referred to as "the 2003 Act") can be

challenged in an appeal under Section 127 of the

same Act beyond the period of limitation and, if not,

whether the appellate court has the discretion to

condone the delay in filing such appeal in appropriate

cases.

Learned counsel for the West Bengal State

Electricity Distribution Company Limited (WBSEDCL)

cites several judgments in support of the proposition

that such appeal cannot be entertained beyond the

period of limitation as stipulated in Section 127 of the

2003 Act. Learned counsel first places reliance on a

Division Bench judgment of this court reported at

(2011) 1 CHN 182 (Cal. Electric Supply Corpn. Ltd. &

Anr. vs. Kalavanti Doshi Trust & Ors.), where it was

observed that a Writ Court should not, by invoking

jurisdiction under Article 226 of the Constitution of

India, revive a time-barred remedy.

The next judgment cited on behalf of the

WBSEDCL is also a Division Bench judgment of this

court, where it was held that this Court cannot

meddle with the statutory period of limitation provided

under the statute by extending the period of limitation

which would amount to rewriting the words of the

statute.

The third judgment cited on behalf of the

WBSEDCL is that of a learned Single Judge of this

court reported at (2013) 4 Cal LT 486 (M/s. Polymac

Thermoformers Pvt. Ltd. & Anr. vs. The State of West

Bengal & Ors.). In the said judgment as well, the High

Court was of the opinion that the writ court cannot

condone the delay in case there is a statutory bar of

limitation.

Learned counsel for the WBSEDCL further cites

a judgment of another coordinate Bench of this court

reported at 2020 SCC OnLine Cal 3083 (Murad Ali

Mondal vs. West Bengal State Electricity Distribution

Company Ltd. and Others) to the effect that the

provision for deposit and/or payment under Section

127(2) of the 2003 Act for the purpose of the appeal

being entertained is a mandatory provision and

cannot be relaxed and/or waived.

A Division Bench judgment is also cited by

learned counsel for the WBSEDCL, in his usual

fairness, where, however, the Division Bench was of

the opinion that when the remedy of appeal has

become time-barred, the writ court can grant leave to

the consumer to avail the appellate remedy and direct

the appellate authority to hear the appeal on merits.

In another judgment of a different coordinate

Bench, it was observed by the court that the petitioner

therein was permitted to prefer an appeal within two

weeks from the date of disposal of the writ petition,

despite the appeal being time-barred by then.

As regards the Division Bench judgments as

well as the judgments of the coordinate Benches

which say that the writ court cannot condone a delay

if the relief itself is time-barred, there is no quarrel

with such proposition and the same is too well-settled

to be questioned at this stage.

With regard to the judgment of the Division

Bench in Sudipta Koley vs. Smt. M. Bhowmick and

anr., where the Division Bench was of the opinion that

the writ court could grant leave to the consumer to

avail appellate remedy even after the time-bar came

into force, with utmost respect, the same did not take

into consideration the previous Division Bench

judgment of this court, which held to the contrary.

Insofar as the judgment of the coordinate Bench

which observed that the petitioner in the said writ

petition was permitted to prefer an appeal, the

question whether the appellate authority is required to

or can go into the question of condonation of delay in

preferring appeal was never argued or considered.

In fact, in the judgment of Murad Ali Mondal

(supra), where the learned Single Judge was pleased

to hold that the appeal under Section 127 can only be

heard upon payment or deposit in terms of the

provision of Section 127(2), the Court did not take into

consideration the question which has come up for

consideration in the present instance.

The issue here is whether the appellate

authority has the power to condone the delay after

expiry of the limitation within the contemplation of

Section 127(1). The said question has not been

specifically answered in any of the judgments cited by

the WBSEDCL.

Even a cursory perusal of Section 127(1) shows

that the same stipulates that any person aggrieved by

the final order made under Section 126 may, within

thirty days of the said order, prefer an appeal under

the said provision.

It is to be noted that such restriction of thirty

days is not couched in a negative language so as to

clearly mandate the operation of the same. In view of

the provision being one which is extremely restrictive

and would tantamount to being draconian since in

such case, even legitimate consumers who are entitled

to prefer appeal at a belated stage due to some

unforeseeable or unavoidable circumstances will also

be precluded from preferring the appeal; more

importantly, even the appellate authority would be

powerless to condone such delay at all. Such

proposition would border on absurdity and could not

have been the legislative intent of Section 127 of the

2003 Act.

Inasmuch as Sub-Section (2) of Section 127 of

the 2003 Act is concerned, however, the same, as

opposed to Sub-Section (1), is couched actually in a

negative language and reads as follows:

"127(2): 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."

Hence, the coordinate Bench, in Murad Ali

Mondal (supra), rightly observed that the provision for

deposit of fifty per cent is mandatory and cannot be

waived.

Thus, there is no question or necessity for

distinguishing the judgment of the learned Single

Judge in Murad Ali Mondal (supra).

However, in the light of the above discussions,

the stipulation or time-bar of thirty days within the

contemplation of Section 127(1) of the 2003 Act is

found to be directory and not mandatory. As such, it

is open and within the discretion of the appellate

authority, upon appropriate cause being shown by the

appellant, to consider the condonation of the delay, if

reasonable, in preferring the appeal.

In the light of such discussions, in the present

case, the petitioner is also entitled to have a second

lease of life by approaching the appellate authority,

since the writ petition had been filed only about four

months after the final order of assessment.

Accordingly, WPA No. 10097 of 2023 is disposed

of by granting liberty to the petitioner to prefer an

appeal against the final order of assessment, which

has been passed by the WBSEDCL in the meantime,

within a fortnight from date.

If such appeal is filed within a fortnight,

accompanied by an appropriate application or

grounds in the appeal itself, indicating sufficient

reasons for the delay in preferring the writ petition

beyond the period of thirty days from the final order of

assessment, it will be open to the appellate authority

to condone the delay in preferring the appeal and

entertain the appeal, and thereafter to decide the

same in accordance with law upon hearing all

concerned.

However, it is made clear that such liberty is

being given to the petitioner with the rider and being

subject to the condition that the petitioner, while filing

the appeal, shall also deposit the mandatory amount

of fifty per cent of the claim as envisaged under

Section 127(2) of the 2003 Act, to enable the appellate

court to entertain such appeal, in the event the delay

is condoned.

Parties as well as all concerned shall act on the

server copy of this order without insisting upon prior

production of a certified copy thereof.

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.)