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2010 Supreme(Cal) 112
High Court of Calcutta
I.P. Mukerji, J.
Jadabpur Tea Company Ltd. – Appellant
Versus
West Bengal State Electricity Distribution Co. Ltd. – Respondent
W.P. No. 237 of 2009
Decided On: Feb 08, 2010
Advocate Appeared:
Abhrajit Mitra, Kumar Gupta, Subir Sanyal, Ratul Biswas.
The Assessing Officer must be a person who was actually a member of the inspection team at the time of detecting the pilferage or unauthorized use of the electricity.
Headnote:
ELECTRICITY ACT, 2003 - UNAUTHORIZED USE - ASSESSMENT - JURISDICTION OF ASSESSING OFFICER - ELECTRICITY ACT, 2003, S. 126(6) - WEST BENGAL ELECTRICITY REGULATORY COMMISSION, NOTIFICATION NO. 36/ W.B.E.R.C. DATED 20.09.2007, CL. 4.9 - The Assessing Officer must be a person who was actually a member of the inspection team at the time of detecting the pilferage or unauthorized use of the electricity.
Fact of the Case:
The writ petitioner, Jadabpur Tea Company Limited, challenged the order of the appellate authority dated 13th January 2009, which affirmed the alleged final order of assessment dated 10th November 2008. The assessment required the writ petitioner to pay Rs. 9,38,045/- for alleged unauthorized use of electricity.
Finding of the Court:
1. The provisional assessment was not in breach of West Bengal Electricity Regulatory Commission, notification No. 36/ W.B.E.R.C. dated 20.09.2007, as the reasons for disconnection were provided in the provisional assessment with a calculation chart. 2. The assessment order dated 10.11.2008 was bad for not providing any reasons, description of the case of the parties, evidence of any application of mind, discussion, inference, or reasons. 3. The appellate authority's decision was bad for deciding the matter with a closed mind, not considering any evidence apart from the recordings of the inspection team, and not establishing a case by the licensee. 4. The Assessing Officer had no jurisdiction to make the assessment order as he was not part of the inspection team.
Issues: 1. Whether the provisional assessment was in breach of West Bengal Electricity Regulatory Commission, notification No. 36/ W.B.E.R.C. dated 20.09.2007. 2. Whether the assessment order dated 10.11.2008 was valid. 3. Whether the appellate authority's decision was valid. 4. Whether the Assessing Officer had jurisdiction to make the assessment order.
Ratio Decidendi: 1. The provisional assessment was not in breach of the regulations as the reasons for disconnection were provided in the provisional assessment with a calculation chart. 2. The assessment order dated 10.11.2008 was bad for not providing any reasons, description of the case of the parties, evidence of any application of mind, discussion, inference, or reasons. 3. The appellate authority's decision was bad for deciding the matter with a closed mind, not considering any evidence apart from the recordings of the inspection team, and not establishing a case by the licensee. 4. The Assessing Officer had no jurisdiction to make the assessment order as he was not part of the inspection team.
Final Decision: 1. The writ petition was partly allowed. 2. The assessment order dated 10.11.2008 was held to be a nullity. 3. The appellate authority's order was set aside. 4. The respondent licensee was directed to reconsider the assessment by a properly constituted Assessing Officer within 12 weeks from the date of communication of the order.
I. P. Mukeiji, J.
1. THIS is a writ by the consumer, Jadabpur Tea Company Limited challenging the order of the appellate authority dated 13th January, 2009. By this order the alleged final order of assessment dated 10th November, 2008 was affirmed. THIS alleged assessment require the writ petitioner to pay Rs.9,38,045/-, confirming the prior identical provisional assessment. THIS amount has already been deposited by the writ petitioner further to the provisional assessment. By the order of the appellate authority, the respondent/licensee would just have to appropriate that deposit. The writ petitioner does not stop here. It challenges the entire proceedings culminating in the appellate authority's order, right from the stage of provisional assessment on the ground that they are illegal and void.
2. THE writ petitioner is a limited public company having its registered office in Kolkata. It owns a tea estate, called Ramsai Tea Estate, within the Maynaguri Police Station in West Bengal.
In the afternoon of 19.09.2008, at about 4 O'clock, some officials of the respondent No. 1 arrived in the tea garden. The Manager was there. They told the Manager that they would start inspection of the meter and other electrical apparatus installed in the estate immediately. Only their inspection of the meter and the transformer is relevant. These officials forthwith disconnected electric supply. They seized the meter. They found the original service transformer damaged. They found installed another transformer from which electricity was being taken. According to them, the meter was both burnt and damaged.
3. THE respondent No. 1 alleged unauthorised use of electricity by the writ petitioner, including theft. In the same evening they lodged a First Information Report with the Maynaguri Police Station.
4. ON the very next day, that is, 20th September, 2008, a provisional assessment was made. It was a demand on the basis of an attached calculation sheet. The sum claimed was Rs.9,38,045/-. ON that day itself the writ petitioner paid the provisionally assessed sum.
The writ petitioner filed their objection to the provisional assessment, dated 17th October, 2008. They took two points. They said the meter was broken in a 'natural calamity' They also said that from 4th September the existing transformer 'went out of order'. 'For smooth running' they installed a new transformer. They pleaded not 'having any bad intention'.
5. AT the hearing of the writ application it was argued by the learned Counsel for the writ petitioner that the provisional assessment was in breach of West Bengal Electricity Regulatory Commission, notification No. 36/ W.B.E.R.C. dated 20.09.2007. 4.9 of the above regulations says that when electricity is disconnected for theft (4.2.1.), within a period of 48 hours, the licensee is to serve the reasons to the assessee. He argues that this includes an obligation to give reasons in the provisional assessment.
6. TO deal with this argument it is apposite to set out passages from Wade on Administrative Law, Tenth Edition from the chapter Waiver and consent at page 202:
"The primary rule is subject to various qualifications. One of these concerns conditions which are merely procedural, but which may nevertheless be mandatory and so affect jurisdiction. Thus where a county Court, which for this purpose is analogous to a statutory tribunal, could entertain proceedings against persons residing outside its area only on condition that leave was obtained, it was held that such a person who appeared on the first day as defendant without raising objection could not challenge the Court's jurisdiction on a later day. Although the Court held that the question 'would come under the head of procedure rather than under the head of jurisdiction', the condition was probably jurisdictional. In an earlier case of a similar kind Erle, J had said: 'But jurisdiction is sometimes contingent; in such a case, if the defendant does not, by objecting at the
