JUDGMENT :

(Sabyasachi Bhattacharyya, J.) :

1. The writ petitioner no.1-Company is a consumer of electricity from the respondent no.1, the West Bengal State Electricity Distribution Company Limited (WBSEDCL). Previously it was a consumer under the Durgapur Projects Limited (DPL), which was subsequently taken over by the WBSEDCL, a Government of West Bengal undertaking.

2. The petitioners have challenged the imposition of preliminary penal charge of Rs.20,000,00/-vide Notice dated August five, 2002 issued by the DPL and seek a refund of the said amount with interest.

3. A subsequent consequential bill issued on February 6, 2004, demanding an amount of Rs.2,87,07,420/-as assessment for theft or pilferage of energy by the petitioners and a further notice dated September 6, 2004 of disconnection in default of payment of such sum have also been assailed in the present writ petition.

4. The learned Senior Advocate for the petitioners argues that the allegation of pilferage is an afterthought. There was no complaint or FIR at any point of time lodged by the DPL. The alleged pilferage was not detected previously. Moreover, it is argued that the allegation of digging/using a cable trench to have access to the meter room is levelled for the first time in the affidavit-in-opposition filed by the WBSEDCL in the present writ petition. The allegation of pilferage is not credible since the meter room housing the meter of the DPL (now WBSEDCL) has all along been under lock and key of the licensee and was opened and closed exclusively by the personnel of the licensee at the time of holding inspections and taking meter readings.

5. In the previous billing cycle prior to the alleged act of pilferage, regular meter reading was taken by the DPL personnel, but no allegation of tampering was made.

6. It is submitted that since the meter room has all along been under the exclusive control of the licensee, there could not be any hand of the petitioner at all in the pilferage, if any.

7. The WBSEB Regulations/Guidelines, sought to be implemented by the licensee, was never applicable to the contract between the petitioner and the DPL. Although the agreement between the two referred to DPL Regulations, there was no Regulation or general conditions of contract of the DPL at any point of time.

8. It is argued that the amount claimed by the licensee from the petitioner was patently perverse and without any basis. In this context, the learned Senior Advocate for the petitioners cites a Supreme Court judgment reported at (2019) 4 SCC 500 [Sarvepalli Ramaiah (Dead) as per legal representatives and others Vs. District Collector, Chittoor District and others], where it was held that any decision based on perversity, patent illegality, irrationality and procedural irregularity ought to be set aside.

9. It is next argued that the defence sought to be advanced by the licensee/respondent has been taken for the first time after five years of the alleged incident, in the affidavit-in-opposition of the licensee. The digging up of a cable trench at the location is not established from the records at all. In fact, the petitioners argue, the relevant paragraphs in the opposition of the Respondents are affirmed to be true to knowledge of the deponent derived from the records, without any records being produced in support thereof. In this context, the learned Senior Advocate cites Bharat Singh & Ors. V. State of Haryana, reported at (1988) 4 SCC 434, for the proposition that no defence can be taken for the first time in affidavit, particularly without any supporting document, which renders the defence of the respondent a nullity.

10. It is submitted further that the payment by the petitioners of the amount of Rs.20,000,00/-as per the preliminary claim of the DPL was made under duress and coercion, under the threat of disconnection. It is argued that there was unequal bargaining power prevailing between the parties. The petitioner no.1-industry employs several workers, who wou