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2017 Supreme(Cal) 828
IN THE HIGH COURT OF CALCUTTA
JYOTIRMAY BHATTACHARYA, SAHIDULLAH MUNSHI, JJ.
M/s. Orion Metal Pvt. Ltd. & Anr. – Appellant
Versus
West Bengal State Electricity Distribution Company Ltd. & Ors. – Respondents
FMA No. 520 of 2017 with CAN No. 9693 of 2017
Decided on : 18-12-2017
Advocate Appeared:
For the Appellants : Mr. Subir Sanyal, Mr. Subirtha Das, Adv.
For the WBSEDCL : Mr. Sumit Kr. Panja, Mr. Sumit Roy, Adv.
The assessing officer must be part of the inspection team and follow the provisions of Section 126 of the Electricity Act, 2003 for making a provisional assessment.
Headnote:
Electricity Act - Provisional Assessment - Section 126, Section 135(1)(a), Section 153, Section 154
Fact of the Case:
The writ petitioner, a high voltage consumer, was accused of theft of energy by inserting foreign material inside the TTB of WBSEDCL. A criminal case was initiated, and a provisional assessment of un-metered consumption was made by the assessing officer under Section 126(1) of the Electricity Act, 2003. The writ petitioners challenged the jurisdiction of the assessing officer to make the provisional assessment, contending that it was not in line with the Act.
Finding of the Court:
The court found that the assessing officer was not part of the inspection team and did not follow the provisions of Section 126 of the Electricity Act, 2003. The provisional assessment was quashed, but the consumer was directed to have a member of the inspection team appointed as assessing officer for a fresh assessment.
Issues: Jurisdiction of the assessing officer to make provisional assessment under Section 126(1) of the Electricity Act, 2003.
Ratio Decidendi: The court held that the assessing officer must be part of the inspection team and follow the provisions of Section 126 of the Electricity Act, 2003 for making a provisional assessment.
Final Decision: The impugned order was set aside, and the appeal was allowed. The court clarified that the criminal proceeding would be tried independently by the Special Court.
Jyotirmay Bhattacharya, J.
1. The writ petitioner is a centralized bulk high voltage consumer of Hooghly region of WBSEDCL in respect of its factory at Bhadreswar in the district of Hooghly having a contract demand of 1450 KVA on 20th October, 2016. An inspection was held by a team comprising of superintending engineer, divisional engineer, divisional engineer (manager), assistant engineer, Chandanangore division of assistant engineer Burdwan zone testing at the factory premises of the writ petitioner. It was reported by the inspecting team that input current is abnormally high from output current at TTB end in respect of R and P phase PT secondary wires. It was further mentioned that from load survey data on installed meter (seen in laptop), B phase current occasionally found abnormally lower than B phase current. It is also mentioned in the said report that after break open of TTB, foreign material found inside the same. The said inspection team opined that there was theft of energy and the means of theft was insertion of foreign material inside the TTB of WBSEDCL. Three phase meter and the metering equipments were all seized by the inspection team. A seizure list was prepared. On the next following day, provisional assessment of un-metered consumption was made by one Mr. B. Saha SE and assessing officer WBSEDCL. As per the provisional assessment made by the said assessing officer, a sum of Rs.134,117,482.30 was payable by the said consumer. Such provisional assessment was made by the assessing officer under the provision of sub-Section 1 of Section 126 of the Electricity Act, 2003. Simultaneously a criminal complaint was lodged with the local police station by the superintending engineer (Commercial) Hooghly region WBSDECL complaining theft of energy (property of WBSEDCL) by inserting a foreign material to pilfer energy and to interfere with the accurate registration of consumption in energy meter with dishonest intention. Such complaint was lodged by the said superintending engineer (commercial) as he was of the view that Biswarup Paul, proprietor of M/s. Orion Metal Pvt. Ltd. , Bighati, Delhi Road P.S Bhadreswar, Dist. Hooghly, dishonestly inserted foreign material inside the TTB by damaging it for not registering the actual consumption of energy in the installed energy meter. The said superintending engineer (commercial) thus, held that the said Mr. Paul committed offence under Section 135(1) (b) (C) of the Electricity Act, 2003.
2. On the basis of such complaint made by the superintending engineer (commercial) a criminal case has already been initiated and the police has submitted the charge-sheet in the said criminal case.
3. Being aggrieved by and dissatisfied with the provisional assessment made by the assessing officer, the instant writ petition was filed by the writ petitioners/appellants questioning the jurisdiction of the assessing officer to make this provisional assessment in the instant case. It is contended by the petitioners/appellants that the assessing officer, who prepared the provisional assessment, being not a part of the inspection team, had no authority to make this provisional assessment under Section 126(1) of the Electricity Act, 2003. It is contended by the petitioners/appellants that it is only when after holding an inspection at the factory site and the metering system and the electrical gadgets installed therein and after consulting the records maintained by any person, the assessing officer comes to the conclusion that the consumer indulged any unauthorised use of electricity, he shall provisionally assess to the best of his judgment, the electricity charges payable by such person or any other person benefited by such use. It is contended by the petitioners/appellants that the provisional assessment can be made by the assessing officer when he comes to the conclusion that the consumer is indulging any unauthorised use of electricity. According to the petitioners/appellants, the provisio
