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High Court Of Calcutta
Girish Chandra Gupta
HASI MAZUMDAR - Appellant
Versus
WEST BENGAL STATE ELECTRICITY BOARD - Respondent
W. P. 19226 Of 2004
Decided On : 08/25/2005
ELECTRICITY ACT - UNAUTHORISED CONSUMPTION - ASSESSMENT - [SECTION 126] - The provisional assessment made by the West Bengal State Electricity Board was in gross violation of Section 126 of the Indian Electricity Act, 2003. The assessment should have been made strictly in accordance with the provisions of Section 126 of the said Act.
Fact of the Case:
The petitioners, consumers of electricity, challenged two provisional assessments made by the West Bengal State Electricity Board alleging unauthorized consumption of electricity. The assessments were made under Clause 22 (J) of the terms and conditions of supply of electricity, instead of Section 126 of the Electricity Act, 2003, which came into effect on 10th June 2003. The petitioners claimed that the assessments were illegal and made under pressure to extort money.
Finding of the Court:
The Court held that the provisional assessments made by the respondent were illegal as they were not made in accordance with Section 126 of the Electricity Act, 2003. The Court also held that the guidelines issued by the Board for provisional assessment were without authority and irrelevant for the purpose of making the assessment. The Court further held that the money paid by the petitioners pursuant to the illegal assessments was recoverable as it was paid under compulsion.
Issues: 1. Whether the provisional assessments made by the respondent were legal? 2. Whether the money paid by the petitioners pursuant to those bills was recoverable by them?
Ratio Decidendi: 1. Section 126 of the Electricity Act, 2003 provides the mode of making provisional assessment for unauthorized use of electricity. The assessment has to be made by the assessing officer on the basis of his own judgment after inspection of the premises. 2. The guidelines issued by the Board for provisional assessment were without authority and irrelevant for the purpose of making the assessment. The assessment in this case was made on the basis of these guidelines and not on the basis of the judgment of the assessing officer. 3. The money paid by the petitioners pursuant to the illegal assessments was recoverable as it was paid under compulsion.
Final Decision: The Court set aside the provisional assessments made by the respondent and directed that the money already paid by the petitioners be set apart in a separate account to their credit. The Court also directed that electricity supply be restored forthwith and should not be disconnected for the alleged detection of unauthorized use on 30th July 2004 until and unless a fresh provisional assessment is made in accordance with law.
( 1 ) TWO several provisional assessments both dated 7th August, 2004, purporting to have been made under Clause 22 (J) of the terms and conditions of supply of electricity are under challenge in this writ petition. Briefly stated the facts and circumstances the case are as follows.
( 2 ) THE writ petitioner No. 1 is the wife of Bidhu Bhusan Mazumdar. The writ petitioner No. 2 is younger brother of the said Shri Bidhu Bhusan mazumdar. Both the writ petitioners are the recorded consumers of electricity. The service connection provided to the writ petitioner No. 1 is A/3402/1 under consumer No. E 300042. The service connection provided to the writ petitioner No. 2 is A/4214/1 under consumer No. E300063. Their case is that they are law-abiding citizens. They have regularly been paying the bills raised upon them for electricity consumed. They have two several small businesses (i) wheat grinding machine (ii) Ice-cream factory. They never indulged in any unfair practice in the matter of consumption of electricity. They have disclosed receipted bills upto July 2004. The last date of reading of the meters is 30th July, 2004 in the case of both the writ petitioners. On 31st july 2004 which was a Saturday, at about 10 P. M. in the night supply of electricity was disconnected. On 2nd August, 2004 the respondent No. 4, the Station Manager, at about 21 -40 hours filed two several First Information reports alleging that unauthorised consumption of electricity by hooking was detected. There is an allegation in both the First Information Reports that after de-hooking, the supply of electricity was also disconnected. The copies of seizure list go to show that cut out and hooking wire were seized by the respondent No. 4 in the presence of three witnesses. All of them are the employees of the State Electricity Board (hereinafter referred to for brevity as 'board' ). Three several letters all dated 5th August, 2004, have been disclosed by the Board purporting to have been written one each by the writ petitioners and the husband of the writ petitioner No. 1. The writ petitioner no. 2 in his letter appears to have contended that although the service connection No. A/4241/1 is recorded in his name, he is no way connected either with the supply of electricity or with the business which he has already relinquished in favour of his elder brother Bidhu Bhusan Mazumdar. Shri bidhu Bhusan Mazumdar and the writ petitioner No. 1, the husband and wife, appear to have written to the respondent No. 4 that during their absence at the instigation of others their son indulged in unathorised consumption of electricity although they did never before indulge in any such illegal activity nor did the illegal act of their son have their approval. They appear to have requested by their aforesaid letters that after making assessment for minimum period, electricity should be restored upon payment of 1/4th of the assessed amount and the balance amount may be allowed to be paid in installments. The respondent No. 4 on 7th August, 2004 made the impugned provisional assessment at a sum of Rs. 1,08,296/- for the writ petitioner No. 1 and at a sum of Rs. 1,57,709-02 paisa for the writ petitioner No. 2. Both the writ petitioners paid 25% of the aforesaid provisionally assessed amount between 17th and 18th August, 2004 and electricity thereafter was restored but was disconnected once again for non-payment of subsequent instalments. The writ petitioner No. 1 on 19th August, 2004 and the writ petitioner No. 2 on 25th August, 2004 wrote two several identical letters to the respondent No. 4 alleging that the said respondent resorted to arm twisting method for the purpose of extorting money. The relevant part of the letter reads as follows :-"with due respect I beg to state that by an overreaction on your part my Electric connection was disconnectioned on 31. 7. 2004 as I failed to comply your demand for paying Biswakarma Puja subscription. You by accompanying wi
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