W.B. SEB vs Syed Mukbul Hossain

The Chairman, West Bengal State Electricity Board & Ors. .... Appellants

Versus

Syed Mukbul Hossain & Ors. ....Respondents

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of a Division Bench of the

Calcutta High Court disposing of the writ petition, the appeal and the

1 application filed with certain modifications. On the allegations that there

was insertion of a variant element in the meter to bye pass recording of

actual consumption, First Information Report was lodged by the personnel

of the appellant-Board. Provisional assessment was made. Thereafter there

was disconnection of electricity supply. A writ application was filed by the

respondent No.1 making grievance that the disconnection of the supply was

wrongly done and the provisional assessment as made claiming

Rs.2,50,046/- on the alleged ground of theft of electricity and/or tempering

of the meter was not sustainable.

Learned Single judge of the Calcutta High Court disposed of the

matter in Writ Petition No.2029 (W) of 2006 whereby and whereunder the

appellants were directed to restore electrical supply on deposit of

Rs.20,000/- by the writ petitioners. Appellants questioned correctness of the

order on the ground that the disconnection of supply line was effected on

24.1.2006 in terms of the Regulation 5.2.1 of the West Bengal Electricity

Regulatory Commission (Electricity Supply Code) Regulation 2004

(hereinafter referred to as the `Supply Code'). The Division Bench referred

to Regulation 5.2 and observed that the appellants have got right to

disconnect supply line of electricity on fulfillment of the conditions

2 stipulated. But the same is required to be done following a particular

procedure. It was held that due procedure was not followed. The Division

Bench held that under Section 126 of the concerned Electricity Act, 2003

the writ petitioner had a right of filing an objection thereof which has been

filed by the writ petitioner under Section 126(3). The appellants are

required to pass a final order after giving a reasonable opportunity of being

heard. The writ petitioner also has a right to prefer an appeal under Section

127 of the Act against the final assessment order. The Division Bench,

therefore, permitted the parties to pursue the remedy. It was, however, held

that the disconnection of power supply was contrary to and was in breach of

regulation 5.2 and the writ petitioner was, therefore, entitled to be

compensated. Accordingly the cost of Rs.25,000/- was imposed.

3. Learned counsel for the appellant Board submitted that approach of

the High Court is clearly erroneous. Admittedly, objection has been filed. It

was noticed that no order on merits could have been passed. By order dated

11.08.2008 final assessment was directed to be done.

4. Learned counsel for the appellant has further submitted that the

respondents has suppressed the fact that much before the order was passed

3 by this Court, the final assessment has been made by order dated 27.9.2007

and the statutory appeal which was required to be done within 30 days was

not filed within the said period and, therefore, the appeal, if any, filed

subsequently is of no consequence.

5. Learned counsel for the respondents, on the other hand, submitted

that the High Court has taken note of the factual scenario and the legal

principles applicable. The final assessment in any event is the subject to

challenge. Since the final assessment has been challenged, we feel interest

of justice would be best served if the same is disposed of in accordance with

law. It is open to appellant-Board and its functionaries to highlight before

the concerned authority as to the maintainability of the appeal on the ground

of alleged delay. It is needless to say that the said aspect shall be

considered by the appellate authority. Let the appeal be disposed of in

accordance with law without being influenced by any of the observations

made by the High Court in the impugned order and by learned Single Judge.

The direction for costs is set aside. The interim order dated 20.4.2007 shall

continue till disposal of the appeal. We make it clear that we have not

expressed any opinion on merits because of the interim protection.

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6. The appeal is disposed of accordingly. No costs.

........................................J. (Dr. ARIJIT PASAYAT)

.........................................J. (Dr. MUKUNDAKAM SHARMA) New Delhi, December 8, 2008

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