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2010 Supreme(Cal) 268
IN THE HIGH COURT AT CALCUTTA
I.P. Mukerji, J.
Mangal Steel Enterprises Ltd. & Anr.
Vs.
Calcutta Electric Supply Corporation Ltd. & Ors.
W.P. No. 15 of 2007
Decided On : March 12, 2010
Samit Talukdar, Swarnendu Ghosh, Rudranarayan Chowdhury for the petitioner;
S. Sanyal, G. Khaitan for the respondents.
An appellant cannot be placed in a worse position by preferment of the appeal, in the absence of any cross-appeal or cross-objection.
Headnote:
ELECTRICITY - DISCONNECTION - ASSESSMENT OF CHARGES - LEGALITY - CEST - CONDITIONS OF SUPPLY - Connected load factor cannot be increased to the detriment of the consumer by the appellate authority. - Utilisation factor should be taken as 0.65 for Industrial Load instead of 0.7 as considered initially by CESC for the purpose of assessment.
Fact of the Case:
The writ petitioner company, an exporter of fabricated steel fastening items and non-alloy steel bars and rods, challenged the appellate authority's order revising the assessment of electricity charges due to alleged theft. The main grounds of challenge were the increase in connected load factor and the utilization factor used for calculating energy utilization.
Finding of the Court:
The court found that the appellate authority erred in increasing the connected load factor based on an inspection conducted in November 2006, which was not relevant to the material period of May 2002. The court also held that the utilization factor of 0.6 to 0.7 was determined based on the petitioner's own representations and was not challenged before the appellate authority or in the writ petition.
Issues: 1. Whether the appellate authority could increase the connected load factor to the detriment of the consumer? 2. Whether the utilization factor of 0.6 to 0.7 was correctly determined?
Ratio Decidendi: 1. The court relied on the Supreme Court decisions in Shankar Popat Gaidhani vs. Hiraman Umaji More (Dead) by Lrs. & Ors. and Banarsi & Ors. vs. Ram Phal to hold that an appellant cannot be placed in a worse position by preferment of the appeal. 2. The court found that the appellate authority did not provide sufficient reasons for increasing the connected load factor based on an inspection conducted in November 2006, which was not relevant to the material period of May 2002.
Final Decision: The court set aside the appellate authority's order and upheld the original assessment order dated 16.5.2002.
I.P. Mukerji, J.: The writ petitioner company is an exporter. It manufactures fabricated steel fastening items like drop rod, gate rod, earth rod and so on. It also exports non-alloy steel bars and rods. It has a factory or workshop at 248, G.T. Road (North), Salkia, Howrah- 711 106. On or about 9th May, 2002 its electricity supply line was disconnected by the respondent licensee. The ground was alleged theft of electricity by it. A writ application was instituted by it in this Court complaining of illegal disconnection. An appeal was preferred from an order in those proceedings. By its order dated 4th July, 2006 the Division Bench of this Court ordered adjudication of the matter by the appellate authority. The appellate authority re-adjudicated the case by its order dated 11th November, 2006. The writ petitioner has filed this writ application against that adjudication order. By the order of the appellate authority the assessment has been revised to Rs. 15,75,444/- from Rs. 15,12,744.30 by the Assessing Officer.
RIVAL CONTENTIONS
2. There are the principally two grounds of challenge to this Appellate Authority's order urged by Mr. Samit Talukdar, Senior Advocate assisted by Mr. Swarnendu Ghosh, Advocate. First, is that the connected load factor could not have been increased to the detriment of the consumer by the appellate authority. An appellant cannot be placed in a worse position by preferment of the appeal. Reliance has been placed on two decisions Shankar Popat Gaidhani vs. Hiraman Umaji More (Dead) by Lrs. & Ors., reported in 2003(4) SCC 100 and Banarsi & Ors. vs. Ram Phal, reported in Judgement Today 2003(5) SC 224.
3. The other ground of challenge is regarding the utilisation factor used for the purpose of calculation of the energy utilisation. According to the writ petitioner as per the conditions of supply 29(v) this utilisation factor should have been taken as 0.5. Therefore, if, the utilisation factor is taken of 0.5 instead of 0.6 to 0.7, the assessed amount would be lower. According to the writ petitioner by such assessment the assessed amount which was Rs.15,12,744.30 has been increased to Rs.15,75,444/-. Further it has been contended that this increase in the connected load has been made on the basis of an inspection carried out on 14th November, 2006. The material period was May, 2002. The Assessing Officer has made assessment on the basis of inspection carried out on 9th May, 2002. This assessment of connected load by the Assessing Officer which was 120 KW should not have been varied by the appellate authority.
4. The grounds made out in the writ petition are perversity in the order passed by the appellate authority. Such ground of perversity is backed up by averments in paragraphs 16 and 17 of the writ petition. It is said that the order of the appellate authority contains apparent errors On the face of the order.
5. Mr. Subir Sanyal, learned Counsel for the respondent assessee has drawn my attention to the following finding of the Assessing Officer:
"Based on the verbal submission made by the representative of consumer, I am if the view that UTILISATION FACTOR should be considered as 0.65 for Industrial Load instead of 0.7 as considered initially by CESC for the purpose of this assessment."
6. Determination of this utilisation factor was not assailed in the memorandum of appeal before the appellate authority or by any specific averment in the writ petition. Furthermore, he has taken me through condition 29(e) of the conditions of supply and argues that if the consumer could not satisfy the officer of the licensee about the load, hours of daily use, diversity factor or load factor as applicable and if there were no other reasonable means to ascertain the load factor, then 5 was to be taken. Since the above load factor or utility factor was taken on the basis of representation made on behalf of the writ petitioner/consumer there was no infirmity in making that calculation.
7. Further he has cited the decisi
