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2016 Supreme(Cal) 648
IN THE HIGH COURT AT CALCUTTA
I.P. MUKERJI, J.
M/s Orion Metal Pvt. Ltd. & Anr. - Petitioners
Versus
West Bengal State Electricity Distribution Company Limited & Ors. - Respondents
A.S.T. No. 314 of 2016
Decided On : 15-12-2016
For the Petitioners:Mr. Subir Sanyal, Mr. Sutirtha Das, Advocates.
For the Respondents:Mr. Sumit Panja, Mr. Sumit Roy, Advocates.
The assessing officer must be a member of the inspection team in order to make a provisional assessment based on an inspection under Section 126(1) of the Electricity Act, 2003.
Headnote:
ELECTRICITY ACT, 2003 - UNAUTHORIZED USE OF ELECTRICITY - ASSESSMENT - JURISDICTION OF ASSESSING OFFICER - PROVISIONAL ASSESSMENT - VALIDITY - MEMBER OF INSPECTION TEAM - APPOINTMENT AS ASSESSING OFFICER.
Fact of the Case:
The writ petitioner, a company, challenged a provisional assessment of electricity charges made by the respondent licensee under Section 126 of the Electricity Act, 2003, alleging unauthorized use of electricity. The assessment was based on an inspection report by a team of officials of the respondent licensee, which found "load imbalance" and "tampering/malpractice/unauthorised use of electricity." The writ petitioner contended that the assessing officer who made the provisional assessment was not part of the inspection team and, therefore, lacked jurisdiction to make the assessment.
Finding of the Court:
The court held that the assessing officer had no jurisdiction to make the provisional assessment because he was not part of the inspection team. The court interpreted Section 126(1) of the Electricity Act, 2003, to mean that the assessing officer must be a member of the inspection team in order to make a provisional assessment based on an inspection. The court also held that the provisional assessment was invalid because it was not clear whether it was made on the basis of the inspection or on the basis of other records or both.
Issues: 1. Whether the assessing officer had jurisdiction to make the provisional assessment? 2. Whether the provisional assessment was valid?
Ratio Decidendi: 1. Section 126(1) of the Electricity Act, 2003, must be interpreted to mean that the assessing officer must be a member of the inspection team in order to make a provisional assessment based on an inspection. 2. A provisional assessment made by an assessing officer who was not part of the inspection team is invalid.
Final Decision: The court set aside the provisional assessment made by the assessing officer and directed the State Government to appoint a member of the inspection team as an assessing officer to make a fresh provisional assessment and a final assessment in the case.
I.P. MUKERJI, J.
1. The writ petitioner company (the writ petitioner) is an establishment at Bighati, Delhi Road, Bhadreswar, District-Hooghly.
2. On 28th October, 2016 at 1.15 in the afternoon, officials of the West Bengal State Electricity Distribution Company Limited (the respondent licensee) inspected and tested the metering system. There appeared to them “load imbalance”. The same day, late in the evening at 8.40 hrs., they served on the writ petitioner another notice alleging “tampering/ malpractice/unauthorised use of electricity against them, under Section 135 (1), 138 and 139 of the Indian Electricity Act, 2003. This notice was issued under regulation 5.2 of the West Bengal Electricity Regulatory Commission (Electricity Supply Code) Regulation, 2004. The electricity supply was disconnected at or about the time of service of the second notice. The inspection team report was shown to me. It was also dated 28th October, 2016. The following part of the report is very important and is extracted hereinbelow :
“13. Abnormality: input current is abnormally high from output current. At TTB end in respect of R & B phase PT secondary wires. From load survey data of installed meter (seen in laptop), B phase current occasionally found abnormally lower than R phase current. After break open of TTB foreign material found inside the same.
14. Theft of energy detected or not: Yes
15. Means of Theft: By inserting foreign material inside the TTB of WBSEDCL.”
3. All members of the inspection team signed this report. A seizure list was prepared. Various items like a three phases meter, test terminal block (TTB), plastic seals etc. were seized. It very important to note that there was no mention of the “foreign material” in the seizure list.
4. On 29th October, 2016 the respondent licensee sent a provisional assessment of electricity charges, as an annexure, to their letter, to the writ petitioner. It was clear from this sheet that the assessment was made under Section 126 of the Electricity Act, 2003 on the basis of “abstraction or consumption of electrical energy by an artificial means or through a tampered meter or any other method covered by Section 135 (1) (a) (b) (c) (d) of the said Act.” The assessed amount was Rs. 134,117,482.30.
5. Admittedly, this provisional assessment was made by an assessing officer who was not part of the inspection team which inspected the metering system on 28th October, 2016 in the said establishment of the writ petitioner.
6. The final assessment has not been made. The writ petitioner has filed this application under Article 226 of the Constitution of India challenging this provisional assessment.
7. Mr. Sanyal for the writ petitioner submitted that there was no need on the part of his client to approach the statutory authority under the Electricity Act, 2003. He said that the assessing officer had no jurisdiction to make the provisional assessment as he was not part of the inspection team which made the inspection of the metering equipment of the petitioner on 28th October, 2016. Any provisional assessment made by this assessing officer was a nullity. He also said that this lack of jurisdiction went to the root of the matter. His client was not obliged to avail of the alternative remedy.
8. The second point raised by Mr. Sanyal was based on a decision of the Supreme Court in Executive Engineer, Southern Electricity Supply Company of Orissa Limited (Southco) and Another v. Sri Seetaram Rice Mill reported in (2012) 2 SCC 108. He submitted that the allegation of unauthorised use of electricity under Section 126 of the said Act could not be maintained along with theft under Section 135 of the said Act. Both were completely different. The respondent licence had tried to make out a case for unauthorised use and theft against the writ petitioner. This was not possible according to learned Counsel, on his interpretation of the said Supreme Court decision. It should have been either. If theft was alleged and prove
