Back
2019 Supreme(Cal) 351
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
BISWAJIT BASU, J.
CESC Limited & Another - Petitioner
Versus
The Appellate Authority & The Superintendent Engineer & Circle Manager, 24-Parganas (South) Distriution Circle, Wbsedcl & Others - Respondents
W.P. No. 930 (W) of 2009
Decided On : 22-07-2019
For the Petitioners:Dr. Madhusudan Saha Ray, Advocate
The main legal point established is that the period of unauthorized use of electricity must be determined based on evidence and cannot be limited based on a presumption.
Headnote:
Electricity Act - Unauthorised Use of Electricity - Section 127(3), Section 126(2), Section 126(3), Section 126(5)
Fact of the Case:
The respondent was found to be using electricity through a commercial meter for industrial purposes after the industrial meter was disconnected due to pilferage. The assessing officer determined the period of unauthorized use and assessed the electricity charges. The respondent challenged the assessment, and the appellate authority limited the period of unauthorized use to April 2007, based on a presumption.
Finding of the Court:
The court found that the appellate authority's decision to limit the period of unauthorized use to April 2007 was based on a perverse presumption and lacked evidence, thus setting aside the appellate authority's order and restoring the assessing officer's assessment.
Issues: The main issue was the determination of the period of unauthorized use of electricity and the validity of the appellate authority's decision in limiting the period to April 2007.
Ratio Decidendi: The court held that the appellate authority's decision was based on a perverse presumption and lacked evidence, thus setting it aside and restoring the assessing officer's assessment.
Final Decision: The court set aside the appellate authority's order and restored the assessing officer's assessment, allowing the writ petition with no order as to costs.
JUDGMENT :
1. The order of the appellate authority under Section 127(3) of the Electricity Act, 2003 (hereinafter referred to as 'the said Act' in short) passed in Appeal Petition No. AP-3/08040116005 of 2008 is under challenge in the present writ petition at the instance of the licensee CESC limited.
2. The respondent no. 3 was a consumer under the petitioner/licensee having Consumer No. 08040116 at the premises no. 2/1 Moore Avenue, Kol. 700040. The said consumer was utilising electricity through 'M' rate commercial Meter No. 236872 and was also utilising electricity through 'K' rate industrial meter for manufacturing purpose of her industrial unit under the name and style of M/S. MICA BOX CO. The said industrial meter was disconnected on July 25, 2001 due to pilferage of electricity indulged by the respondent no. 3. She failed to pay sum of Rs. 1,11,75.85/- an amount assessed on account of unmetered consumption of electricity.
3. The loss control cell of the licensee during an inspection of service installation and metering system on February 29, 2008 at the aforesaid premises detected that the respondent no. 3 was utilising electricity through the said commercial meter to cater certain loads of the industrial meter. The supply to the industrial meter since was earlier disconnected for unauthorised use of electricity catering to the industrial requirement from the said commercial meter for manufacturing purpose was considered to be an unauthorised use of electricity and the said commercial (M) meter was disconnected by the said loss control cell on February 29, 2008 for indulging such malpractice.
4. A provisional bill amounting to Rs. 1,19,298/- (One lakh Nineteen Thousand Two hundred Ninety Eight) was served upon the respondent no. 3 in terms of Section 126(2) of the said Act. Subsequent thereto the assessing officer of the licensee proceeded to finalise with the said provisional assessment, after affording opportunity of hearing to the respondent no. 3 in accordance with Section 126(3) of the said Act.
5. The respondent no. 3 filed written representation dated March 03, 2008 and March 08, 2008 which were considered by the assessing officer in extenso. The authorised assessing officer of the licensee inspected the office of the consumer and during his visit he found the factory of the respondent no. 3 was in operation with a 220 volt single phase, 750VA generator set. The details of load of establishment have been recorded by the said assessing officer in his final order of assessment which reads as under:
1. The load inside the factory:
a. 1no- Lathe machine with 2 KW motor. b. 1no- Drill machine with 0.5 KW motor. c. 1no- Grinding machine with 0.5 KW motor. d. 1no- Baby Milling Machine with 0.5 KW motor. e. 1no- Heat Chamber with total load of 2 KW.
F. 5NOS. Tube lights and 1 no. Ceiling Fan & 1no. Wall mounted fan.
2. The office load were as under:
a. 1 no- 0.75 TR window AC machine. b. 1nos- nos. Tube Lights.
c. 1no-no. Ceiling fan.
d. 1no- Computer.
6. The assessing officer after considering the materials on record passed the final order of assessment dated March 17, 2008 holding that there was unauthorised use of electricity by the consumer for the period between the date of disconnection of the 'K' rate industrial meter bearing No. 2147835 i.e. July 25, 2001 and the date of disconnection of the 'M' rate commercial meter bearing No. 2367872 on February 29, 2008 and assessed the electricity charges for the said period at Rs. 1,19,198.00/-.
The observations of the assessing officer in the said final order of assessment in fixing the period of unauthorised use of electricity being relevant are reproduced below:
"The total connected load of the works and office is around 7 kw. The record of the consumption pattern of the consumers indicates a maximum consumption of 612 units, which represent a load of around 3KW. This clearly indicates that the consumer was drawing partial load from the "M" rate meter to cater the industrial load thro
