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2010 Supreme(Cal) 143
CALCUTTA HIGH COURT
I.P. Mukerji, J.
Sri Swadesh Ghosh - Petitioner
Versus
CESC Limited & Ors. – Respondents
W.P. No. 1508 of 2008
Decided on : February 16, 2010
Mr. Neguive Ahmed, Surya Maity and Santosh Kumar Ray ...for the Petitioner
Mr. Subir Sanyal and Somnath Bose ...for the Respondents
The requirement of deposit under Section 127(2) of the Electricity Act, 2003 is mandatory and applies to appeals filed under the old conditions of supply.
Headnote:
ELECTRICITY ACT, 2003 - SECTION 127 - APPEAL - DEPOSIT - REQUIREMENT - HALF OF THE ASSESSED AMOUNT TO BE DEPOSITED - FINANCIAL HARDSHIP - INSTALLMENTS ALLOWED.
Fact of the Case:
The petitioner's electricity connection was disconnected due to alleged theft of electricity. A provisional assessment was made, followed by a final assessment. The petitioner filed an appeal before the appellate authority and a writ petition in the High Court. The High Court directed the petitioner to deposit 50% of the finally assessed amount for reconnection and one-third of the assessed amount for hearing of the appeal.
Finding of the Court:
The court held that the appeal could be heard upon deposit of one-third of the assessed amount. However, considering the petitioner's financial hardship, the court allowed the petitioner to deposit 50% of the assessed sum in installments.
Issues: Whether the petitioner is required to deposit one-third of the assessed amount for hearing of the appeal.
Ratio Decidendi: Section 127(2) of the Electricity Act, 2003 requires that no appeal against an assessment under Section 126 can be entertained unless one-third of the assessed amount is deposited. However, the court held that any condition for preferring an appeal under the old Act will not apply and Section 127 is squarely applicable.
Final Decision: The court directed the petitioner to deposit 50% of the assessed sum in the manner following: he will deposit Rs.25,000/-, immediately, with the respondent/licensee. The balance may be paid over a period of one year by twelve equal monthly installments, commencing from the month following the month of deposit and payable by the seventh of each month.
The writ petitioner is in partnership business with one Shambu Ghosh. In partnership, they run a factory at premises No. 9/H/1, Abanish Chowdhury Lane, Kolkata-700 046. The business carried on by this partnership firm is manufacturing of rubber goods. The factory has two electricity meters, one of them, 2350145K of the writ petitioner. His partner also has another meter with which this case has no real connection.
2. On or about 28th August, 2003 (the date appearing in the order of provisional assessment) the electricity connection of the writ petitioner was disconnected by representatives of the respondent/licensee. Their ground was theft of electricity.
3. A provisional assessment was made on 28th August, 2003 itself where the provisional assessed sum was Rs.2,27,0340/-. This was followed by a final assessment on 2nd October, 2003.
4. The writ petitioner filed an appeal from that assessment order before the appellate authority. Thereafter, he filed a writ application in this Court in W. P. No. 1580 of 2005 alleging that the appellate authority was slow to dispose of that appeal.
5. That writ application was disposed of on 3rd August, 2005 by Jayanta Kumar Biswas, J. by the following order:-
"For these reasons I dispose of the writ petition directing the appellate authority to give final decision in the petitioner's appeal. Before giving the decision the authority shall give the petitioner reasonable opportunity of being heard and also of presenting his case. If the petitioner applies for testing of the meter or any other apparatus, then within three weeks from the date of receipt of the testing report the appellate authority shall give the decision in the appeal. Otherwise the appellate authority shall give the final decision in the appeal within three weeks from the date of receipt of a copy of this order by him. The decision shall be a reasoned one and it shall be communicated to the petitioner without any delay. The appeal shall be decided by the appellate authority appointed in terms of Section 127 of the Electricity Act, 2003 and according to provisions of the rules existing at the date of deciding the appeal.
Since the petitioner has expressed his desire to start business activities and for this he needs restoration of supply, I am of the view that he should be given liberty to approach CESC with the request for restoration on• payment of 50 per cent of the finally assessed amount or on payment of any other lesser amount that CESC may decide. If the petitioner approaches CESC with such request, then CESC shall consider the question of restoration of supply independently and such, decision shall be given without prejudice to the rights and contentions of the parties in the pending appeal.
In the facts and circumstances of the case there shall be no order for costs in the writ petition."
6. Two findings in that judgment and order are relevant:-
(a) The appeal would have to be decided by the appellate authority appointed under Section 127 of the Electricity Act, 2003 and according to the rules existing at the date of deciding the appeal.
(b) If the petitioner wanted reconnection he could approach the respondent/licensee who would restore on payment of 50% of the final assessed amount or any other lesser sum.
7. No such deposit was made and as such no reconnection has been made.
8. The respondent/licensee wrote a letter dated 07.09.2005 recording that such deposit had not been made. It also said that the pre deposit for hearing of the appeal in terms of Section 127(2), that is, one-third of the assessed amount has also not been deposited.
9. In this writ, the writ petitioner alleges that this appeal be heard out before the appellate authority without any deposit. It says that the appeal was filed under the old conditions of supply which did not require making of any deposit. There is also a prayer for unconditional restoration of electricity.
10. I don't think that I can add to or subtract from the judgment and order of Jayan
