FORM No.J(2) IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION ORIGINAL SIDE Present: THE HON’BLE JUSTICE ANIRUDDHA BOSE W.P. No.164 of 2013 Satyanarain Fatehpuria Vs. CESC Ltd. & Ars. Advocate for the petitioner: Mr. Pratyush Patwari Advocate for the Respondent: Mr. Subir Kumar Sanyal Mr. Ratul Biswas Judgment on:
8. h April, 2015. ANIRUDDHA BOSE, J.:- 1. A final order of assessment made by the Assessing Officer-IV of the CESC Ltd. on 14th November, 2012 under Section 126 of the Electricity Act, 2003 is assailed by the petitioner in this proceeding. In this order, the writ petitioner, who is a domestic consumer of CESC Ltd. has been found to have made unauthorized use of electricity and the petitioner’s dues on that count has been assessed to be Rs.2,34,150.75 and Rs.22,945.46 for electricity charges and electricity duty respectively. Such dues has been computed on the basis of unauthorized use 365 days preceding the date of disconnection. Supply to the petitioner was disconnected on 25th February, 2009, on the same allegation, being unauthorized use of electricity. In another letter, issued by the CESC Ltd. on 15th November 2012 CESC Limited, the petitioner has been required to pay a sum of Rs. 7,780/- as meter replacement cost and reconnection charge. Charge against the petitioner is tampering of seal on meter body, through which process the petitioner is alleged to have consumed electricity without proper recordal of such consumption of the meter. It has been recorded in the final order of assessment that the petitioner had already paid Rs. 2,82,393/- against claim of unauthorized use of electricity covering the period in question earlier. By implication, the said payment has been directed to be adjusted against the quantum assessed as dues, and surplus of Rs. 56,070/- has been directed to be refunded to the petitioner in the said order. In this writ petition, the petitioner seeks refund of the sum already realized from him on the basis of allegation forming subject of this proceeding. There is prayer for restoration of supply also in the writ petition, but I have been apprised in course of hearing by the learned counsel for the petitioner that connection of the petitioner has already been restored.
2. The dispute of the petitioner with CESC Ltd. on accusation of unauthorized use of electricity goes back to the year 1998. There was disconnection of supply to the petitioner on 27th April, 1998, but supply was subsequently restored after examination of the meter of the petitioner, which was found to be over-registering consumption by 80 per cent. That meter was changed on 16th May, 1998 and a new meter bearing No.233669 was installed. Thereafter, there was inspection of this meter on 9th December, 1998 in the petitioner’s premises by the officers of CESC Ltd. which led to institution of a suit in the Court of Learned 3rd Civil Judge (Junior Division) at Howrah. This suit was registered as T.S. No.140 of 1998. Decree of permanent injunction restraining CESC Limited from disconnecting the supply of the petitioner was claimed in the suit, along with certain other reliefs. In connection with the suit, an application for interim injunction was taken out and the petitioner was granted on 10th December 1998 an order of injunction in the following terms:“that the defendant, their men and agents are hereby directed to maintain an order of status quo in respect of disconnection of the electric meter of the plaintiff on the alleged ground of pilferage till 8.1.99. However, the plaintiff is directed to continue with the payment of current electric bills as per the provision. Issue notice to the defendant calling upon them to show cause within 10 days from the receipt of notice thereof, as to why the plaintiff’s injunction shall not be granted.”
. This interim order had subsequently been extended from time to time. The said suit, however, had been dismissed for default on 29th January, 2014. In course of hearing, it was submitted on behalf of the petitioner that he was taking steps for restoration of the suit, but till the date of delivery of this judgment, no order of restoration of the suit has been produced before me.
3. So far as this proceeding is concerned, the dispute originates from a subsequent visit by the officers of CESC Ltd., at the residence of the petitioner on 26th July, 2007 for inspection of his meter, again on allegation of unauthorized use of electricity. Barring lodging of a police complaint, no step, however, appears to have had been taken in pursuance of such inspection. Contention of CESC Ltd. is that they could not effect disconnection on that day because of “aggressive resistance”. on the part of the petitioner and his men.
4. On 25th February, 2009 there was further inspection by the officers of CESC Ltd. at the residence of the petitioner for checking the meter. Said officers of CESC Ltd. disconnected supply of the petitioner and removed the meter after such inspection on that date. On the same date, a First Information Report (F.I.R.) was registered at Golabari Police Station, Howrah which was recorded as P.S. Case No.62/2009, under Section 135 of the Electricity Act, 2003 on allegation of tampering with seals affixed on the meter body so as to gain unauthorized access to the internal mechanism/circuitry of the meter in order to maloperate the meter to reduce the actual registration. An order of provisional assessment was made by the Assessing Officer-VII of CESC Ltd. It has been recorded in the provisional order of assessment that the said Assessing Officer was present during inspection and he was convinced that there was unauthorized abstraction/consumption/use of electricity in terms of the provisions of Sections 135/136 and/or 139 of the Electricity Act, 2003. He provisionally assessed dues of petitioner to the tune of Rs.5,64,786/-. Hearing on assessment was posted on 13th March, 2009 at 10.30 a.m. at his office, and the petitioner was given opportunity to file objection to the provisional order of assessment.
5. Earlier, in connection with the said suit, the petitioner had taken out an application under Order 39 Rule 7 of the Code of Civil Procedure, praying for inspection of the electric meter by a Commissioner to be appointed by the Court. This application was taken up for hearing on 15th January, 2009. My attention has been drawn by the learned counsel for the petitioner to the stand of CESC Ltd. on that date as regards the position of the meter, as recorded in the order passed on that date, rejecting the application. It was recorded in the order:“It is not a case of CESC that the plaintiff is consuming electricity by tampering the seal of the existing meter. So, when the defendant has not disputed the existence of proper seal on the existing meter, there is no question of inspection of the same for ascertaining the assertion of the plaintiff. I find that the contention of the Ld. Lawyer for the CESC has merit. I do not find any reason to allow such inspection of the existing meter as such report will not help this Court in adjudication of the existing dispute between the parties.”
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6. The petitioner filed his objection against the order of provisional assessment denying allegations of unauthorized use or abstraction of electricity. The matter was heard thereafter by the Assessing OfficerVII and in the final order of assessment, the dues specified in the provisional order was confirmed. The period for which assessment had been made was from 26th July, 2006, one year preceding the date of alleged detection of pilferage on 26th July, 2007. The petitioner appealed against this order before the Appellate Authority constituted under the 2003 Act. The Appellate Authority disposed of the appeal on 10th June, 2009, making following observation and direction:“Observation: (1) On 26/07/07, it was alleged by M/s. C.E.S.C. that the meter’s seal was found to be tampered and the appellant was indulging in the theft of power to others. CESC have lodged a complaint to Golabari P.S. that the supply could not be disconnected “due to vehement protest and objection at the time of inspection.”
. (2) On the body of the intimation letter to the consumer (as per WBERC), it is written as “body seals affixed to the meter No.23336669 found tampered with”.. It is a clear preconceived remark and just to keep the track of the prior incident of 25.07.07. This is not the true essence of Section 126 or Electricity Act, 2003 which is only applicable if the specific date of tampering could be detected by a doubtiess data i.e. event file, load survey etc. which are absent here. (3) Regarding the tampering of “seal”. nothing is mentioned i.e. were torn/some holographic display/break of continuity, otherwise proof of tampering the seal could not be proved. (4) No photograph is endosed which can help to detect the tampering of seal made by clear marking. (5) I.R. of the meter on 25.07.07 has not been mentioned. (6) All the witnesses are the employee of M/s. C.E.S.C. except the photographer Shri Swapan Kumar Saha but nothing has been mentioned in the complaint which would substantiate his presence at the place of occurrence. (7) The complain is related to Meter and Seal which must be sent to an independent agency under signature of both. (8) The bill must be prepared for 12 (twelve) months not for 365 days. The loss of revenue mentioned in the complain is about 22000 unit/annum. The bill should be recasted. Order Considering arguments and counter arguments of both sides undersigned hold the opinion that the final assessment should be reviewed, considering the date of inspection dated 25.02.09, following the guidelines given in WBERC/36. Since no steps could be taken after the inspection dated 20.7.07 for whatever may be the reason, such reference cannot be drawn at present since it is hardly possible to substantiate the alleged “pilferage”., on 26/7/07. The meter No.2336669 which was seized from the residential premises of Sri Satyanarayan Fatehpuria should be tested by an independent govt. agency, live, (i) Electrical Engineering Deptt., Jadavpur University, (ii) M.N. Dastur Engineering School and of Science Material Science, University, Bengal Shibpur, (iii) Distribution Testing, WBSEDCL, Abhikshan building & (iv) National Test House, Alipore upon payment of testing fee by the consumer. The final assessment made by the assessing Officer is set aside. After obtaining testing report of the independent agency, the Assessing Officer will arrange another hearing and will re-assess. The appeal is thus disposed of.”
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7. The petitioner thereafter had written twice on 25th June and 23rd July, 2009 (Annexure “P10”. to the writ petition) requiring CESC Ltd. to carry out the part of the order of the Appellate Authority pertaining to sending the meter to an independent agency on joint signature. From Annexure “P11”. of the writ petition, however, it appears that on 18th June, 2009, N.R. Bandopadhyay, Professor and Director, School of Materials Science & Engineering, Bengal Engineering and Science University (BESU) had written to the Assessing Officer on the question of testing the meter in the following terms:- “Sir, Re: Testing of meter No.2336669 in the name of Styanaryan Fathepuria. For reference to the order of the Ld. Appellant authority dt. 28.04.09 in the matter related to the above meter, we enclose a copy of our report dt. 18.06.09 containing our findings after testing of the said meter, referred to us from Golabari P.S. in connection with their case No.62/09 dt. 25.02.09.”
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8. Enclosed to the said letter was a report made on the same concerning the meter. This report records:“Specimen: Electric meter (2336669), received under sealed cover. By an order dated 02.04.09 the Ld. Judge, Special Court (Under E.C.I), Sub-Addl. Dist. & Sessions 4th Court, Howrah has identified Director, School of Materials Science & Engineering, Bengal Engineering and Science University, Shibpur. Howrah as the authority to inspect and to pass opinion/comment upon examination/test the above specimen in terms of the relevant communication from Golabari Police Station. After necessary formalities with Bengal Engineering and Science University, Shibpur Golabari Police Station deposited testing fee for the purpose of investigation on 09.06.09. On careful inspection/examination of Electric meter (2336669), it is observed: • The Ferrule body seals affixed on the meter body for protecting registration/internal mechanism of the meter found tampered with in electric meter No.2336669. • By tampering with the said body seals, unauthorised access to internal mechanism of the meter could be gained, creating in the process infinite opportunity of tampering with the registration/internal mechanism of the meter at will, and such tampering may be of permanent nature of otherwise. • Terminal cover plate seal found missing in the said meter.”
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9. CESC Ltd., in the meantime had challenged the legality of the order of the Appellate Authority by filing a writ petition, registered as W.P. No.15081 (W) of 2009. That writ petition was dismissed by an Hon’ble Single Judge of this Court on 20th October, 2009. The decision of the Appellate Authority thus was sustained. The writ petitioner had also filed another application before this Court under Article 226 of the Constitution of India primarily seeking implementation of the order of the Appellate Authority passed on 10th June, 2009. This writ petition, registered as W.P. No.1162 of 2009 was disposed of by an Hon’ble Single Judge of this Court on 17th September, 2012, holding:“Having considered the submissions of the parties, the reliefs sought by the writ petitioner are reconnection of electric supply so also to quash the report filed by BESU. The report filed by BESU has been passed pursuant to the normal procedure followed in cases of theft i.e. dispatch of meter in a sealed box by the police authority to an independent agency for testing. The said apparatus, which has been seized and sent for testing, has not only been tested by BESU, but a report has also been submitted on 18th June, 2009. In the meantime, the Appellate Authority before whom an appeal had been filed by the petitioner was disposed of on 10th June, 2009. The Appellate Authority not only set aside the final order of assessment, but also directed BESU to test the seized article, namely, the meter. It is on the basis of the testing report submitted that the Assessing Officer was to arrange another hearing the reassess. In view of the prayer for setting aside the report dated 18th June, 2009, no step could be taken by the Assessing Officer to rehear and reassess the matter. As the veracity or correctness so also the legality of the testing report dated 18th June, 2009 cannot be considered in this writ petition, liberty is given to the petitioner to pursue his remedies in the appropriate forum. In view of the aforesaid, no order is passed with regard to the testing report, steps, however, be taken by the Assessing Officer to arrange another hearing and also reassess within shortest possible time, preferably a fortnight from the date of receipt of this order. It is made clear that in the event no step for reassessment is taken within the time specified above, the licensing company, the respondent No.4, will take steps for grant of reconnection to the petitioner by treating the 50% deposit at the time of filing the appeal as 50% payment for reconnection purposes. Except for the aforesaid, no order for reconnection is passed at present as the writ petition was filed in 2009 and has come up for hearing after three years and a week’s time will not in any way act to the prejudice of the petitioner.”
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10. In pursuance of direction of this Court contained in the order passed on 17th September, 2012 in W.P. 1162 of 2009, fresh hearing was posted by the Assessing Officer-IV. The writ petitioner had raised objection on jurisdictional ground on such officer hearing the appeal as the said officer was not physically present at the time of inspection of the meter. The petitioner also denied the allegations of tampering of the meter. Referring to the test report from BESU, it was urged that the said report was obtained in an unlawful manner by CESC Limited. The matter was subsequently heard and the Assessing Officer–IV concluded that unauthorized use of electricity had taken place through the meter No.2336669. For coming to this conclusion, the Assessing Officer-IV mainly relied on records CESC Ltd. and the said test report. Upon finding that there was unauthorized use of electricity, the said Officer computed the dues of the petitioner in the following terms:- “I am now proceeding with the assessment of value of unauthorised use electricity by the consumer under section 126 of the Electricity Act, 2003 based on all available records and findings.
1. LOAD The connected load of the consumer was 5.00 KW at the time of inspection. Since the connected load 5.00 KW was higher than the sanctioned load 2.66 KW the connected load 5.00 KW is considered for the purpose of assessment.
2. PERIOD In the final Order of Assessment dated 17.03.2009 the period of assessment was considered from 26.07.2006 (i.e. one year preceding the date of detection of unauthorised use of electricity on 26.07.2007) till the date of disconnection on 25.02.2009 i.e. for 946 days. In view of the solemn direction of the Hon’ble Court dated 17.09.2012 and considering the Order of Ld. Appellate Authority the period is now considered as 365 days i.e one year preceding the date of disconnection.
3. LOAD FACTOR Since the supply was provided for domestic use, the Load Factor is considered as 0.50 in terms of relevant Regulation. The assessed units for unauthorised use of electricity comes to:
5. 00 KW x 365 days x 24 hours x L.F050 =21,900 Units. Electricity charge at the admissible rate for the aforesaid assessed units is Rs.2,33,444.86 and the Electricity Duty is Rs.22,876.28. The Fixed charges at the admissible rate for the period is Rs.69.18. Thus, the electricity charges for the aforesaid units consumed through the meter including Electricity Duty paid/to be paid during the period in question is Rs.30,772.87. After deducting the said sum, the total electricity charges and Electricity Duty payable for the unauthorised use of electricity comes to Rs.2,26,323.00 (rounded off). This calculation has been done in terms of the provisions of the Electricity Act 2003 as amended upto date and the Regulations framed there under by the Hon’ble West Bengal Electricity Regulatory Commission. The consumer had already paid Rs2,82,393.00 against the earlier claim for the unauthorised use of electricity in the instant matter. Accordingly, I dispose of the matter by directing the Loss Control Cell, CESC Limited to refund Rs.56,070.00 (i.e. Rs.2,82,393.00 – Rs.2,26,323.00) to the petitioner/consumer at the earliest in terms of this Order.
11. The main grounds, on which the petitioner assails this order and the acts of CESC Ltd. preceding passing of the order are these. CESC Ltd., had effected disconnection on 25th February, 2009 in violation of the order of temporary injunction passed in T.S. No.140 of 1998 and that the Assessing Authority–IV had no jurisdiction to make such assessment as he was not present at the time inspection took place. It is also urged on behalf of the petitioner that the test report ought not to have been relied upon by CESC Ltd., as such testing was not done in the manner directed Appellate Authority. No signature was obtained from the petitioner while sending the meter for testing. The petitioner also questions legality of imposing meter replacement cost. The petitioner’s case on the aspect of being required to pay the meter replacement cost is that such imposition is contrary to the provisions of the West Bengal Electricity Regulatory Commission (Recovery of Expenditure for Providing New Connection) Regulation, 2005. The other point on which the petitioner has questioned computation of dues is the period for which dues of the petitioner has been computed. Referring to provisions of Section 126(5) of the 2003 Act, it was contended by the petitioner that even on finding of unauthorized use of electricity had taken place, if such period cannot be ascertained, then only the twelve month period preceding the date of inspection is to be treated to be the period in respect of which such computation is to be made. I was taken through the submission made on behalf of CESC Ltd. before the Civil Court in the said suit on 15th January 2009 that there was no allegation of tampering against the petitioner. Contention of the petitioner is that in his case, the “preceding twelve months”. Rule ought not to have been applied as on 15th January 2009 itself, there was no complaint of tampering of meter against him. The period of unauthorized use, if at all, should have been computed from 15th January 2009 according to the petitioner. On behalf of CESC Ltd., dismissal of the writ petitioner has been sought for on the ground of existence and availability of alternative remedy under the provisions of the Electricity Act, 2003, in the form of appeal under Section 127 of the 2003 Act.
12. The first question I shall deal with in this judgment is maintainability of the writ petition itself, as this issue goes to the very root of the proceeding. Admitted legal position is that there is statutory provision for appeal against the order which is impugned in this proceeding. But availability of alternative forum is not an absolute bar on maintaining an application under Article 226 of the Constitution of India. In this proceeding, the jurisdiction of the Officer hearing the matter is under challenge. That by itself is a ground for intervention by the Writ Court in a proceeding of this nature. This ground is also not an illusory ground, solely urged to invoke jurisdiction of the Writ Court. The petitioner has made out a case requiring scrutiny on the jurisdictional issue, having regard to the provisions of Section 126(1) of the Act. Moreover, parties have filed affidavits in this matter and the Court has exercised its discretionary jurisdiction at the initial stage by entertaining the writ petition and substantial progress has been made on hearing the issues involved in this proceeding. I accordingly reject the objection of the respondents on the ground of maintainability of this proceeding.
13. The next question which requires to be addressed to is as to whether inspection of the meter and its subsequent seizure and disconnection of supply was in breach of the interim order passed on 10th December 1998 in T.S. No.240 of 1998, or not. The cause of action of the said suit was in relation to allegation of pilferage, which allegations the petitioner claimed to be false. A copy of the plaint has been made Annexure “P2”. of the writ petition and in the plaint the dates of accrual of cause of action has been shown to be 27th April, 1998 followed by 8th and 9th May, 19th June and 9th December 1998. These were the days on which, according to the petitioner, men of CESC Ltd. had visited his premises and attempted to disconnect supply of electricity. It was in relation to these allegations the suit was instituted, and when the suit was instituted, the 2003 Act had not become operational. The 2003 Act specifically bars adjudication by a Civil Court on any issue which an Assessing Officer, Appellate Authority or an Adjudicating Officer under the Act is empowered to determine. Section 145 of the 2003 Act specifies:“145. Civil court not to have jurisdiction.- No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which an assessing officer referred to in section 126 or an appellate authority referred to in section 127 or the adjudicating officer appointed under this Act is empowered by or under this act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.”
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14. In my opinion this plea of the petitioner is not sustainable. Allegation of tampering of meter on a date later to the accrual of cause of action of the suit cannot be covered by the said suit, as on the date of subsequent inspection, giving rise to the cause of action of this writ petition, the 2003 Act had become operational. The interim order, thus, by itself cannot protect the petitioner from subsequent disconnection after the 2003 Act became operational. Fresh cause of action had arisen on account of inspection made at the petitioner’s premises on 25th February 2009 followed by disconnection of his supply on that date. At that point of time, Civil Court’s jurisdiction stood excluded by operation of law, and the petitioner could not take shelter behind a subsisting order of injunction passed in a suit, the accrual of cause of action of which preceded enactment of the 2003 legislation. It is also the case of the respondents that the said suit has been dismissed on 29th January 2014 and the interim order, in any event stands lapsed now.
15. The petitioner has questioned the authority of both the Assessing Officers to hear out the dispute on the ground that they were not present at the time of inspection. It has been argued on behalf of the petitioner that since neither of the two Assessing Officers were present at the premises of the petitioner when inspection took place, they were not empowered to make assessment in respect of alleged dues of the petitioner. In this regard, sub Section (1) of Section 126 of the Electricity Act, 2003 was relied upon by the petitioner. This provision stipulates:“126. Assessment.-(1) If on an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found connected or used, or after inspection of records maintained by any person, the assessing officer comes to conclusion that such person is indulging in unauthorised use of electricity, he shall provisionally assess to the best of his judgment the electricity charges payable by such person or by any other person benefited by such use”..
16. In the case of the petitioner, the initial assessment was made by the Assessing Officer VII. But his order of final assessment has been invalidated by the Appellate Authority. the decision of the Appellate The petitioner has accepted Authority and has implementation of that decision by filing a writ petition. sought Since the assessment order made by the Assessing Officer-VII has already been invalidated, it would be futile to resurrect his order in this proceeding to test if the said officer had jurisdiction to pass the order or not. On this point, certain authorities were cited by the learned counsel for CESC Ltd., who contended that this issue has become res judicata in view of the order of the Appellate Authority. I have accepted in substance this argument, and I do not consider it necessary to refer to those authorities in this judgement. Question, however, arises as to whether the Assessing Officer-IV had the jurisdiction to pass the order, which is under challenge in this proceeding. CESC Ltd. has not claimed that he was present at the time of inspection. In course of hearing, it was submitted by the learned counsel for CESC Ltd. that the Assessing Officer VII had left the organization. But no such case has been made out in the affidavit-in-opposition.
17. On the question as to whether it is imperative that an Assessing Officer should remain present at the time of inspection, a Division Bench Judgment of this Court in the case of C.E.S.C. Ltd Vs. Abdos Trading Co. Pvt Ltd. [(2013)2 CHN242 has been relied upon by the petitioner. In this judgment, it has been held:“Speaking for ourselves we can only say that a plain reading suggests that the presence of the Assessing Officer at the time of inspection under section 126 of the Indian Electricity Act, 2003 is mandatory. Considering that we are not called upon to decide the issue we prefer not to express any further opinion in the matter”.
18. A contrary view was taken by the Hon’ble Bombay High Court in the case of Reliance Energy Ltd. Vs. Chief Engineer (Electrical) P.W.D. Dept., [(2006)6 Mh. LJ479 but this judgment was considered by the Division Bench in the case of Abdos Trading Company Private Limited (supra) and on considering this judgment the Division Bench of this Court decided the appeal. On behalf of CESC Ltd. it was also submitted that operation of the judgment of the Division Bench of this Court has been stayed by the Hon’ble Supreme Court in Civil Appeal No.8223 of 2012 in an order passed on 14th December 2012. A copy of the said interim order of the Hon’ble Supreme Court has been referred to by the learned counsel for CESC Ltd. It is recorded in this order:“Mr. Mukul Rohatgi, Sr. Adv. Submits that the appellant company is ready and willing to refund to the respondent company 50% of the amount realized from the writ petitioner/respondent. He further states that the operation of the Judgment could on that condition be stayed to avoid any complication arising out of the view taken by the High Court that the assessing officer must accompany the raiding party in every raid. In the circumstances, therefore, we stay the operation of the impugned order passed by the High Court of Calcutta subject to the condition that the appellant company refunds 50% of the amount realized from the writ petitioner/respondent within seven days. Mr. Rohtagi, at this stage, submits that there may be some difficulty if the respondent refused to accept the cheque, in which case, he seeks permission to deposit the amount in the Registry. He is free to do so. IA No.2 is accordingly disposed of.”
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19. The legal position, in relation to a Division Bench judgment the operation of which is stayed by the Hon’ble Supreme Court appears to be that so far a Single Judge is concerned, the Division Bench judgment continues to be a biding precedent till that judgment is set aside by the Appellate Court. In the case of Lalita Almal Vs. Kolkata Municipal Corporation [2006 (4) CHN196, it has been observed by an Hon’ble Single Judge of this Court:“6. That apart, it is also the settled principle of law that until and unless the final adjudication of law made by the learned Trial Judge is reversed and/or set aside by the Appeal Court, the general declaration of law which was declared by the learned Trial Judge will be applicable to the public at large.”
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20. So far this proceeding is concerned, the Assessing Officer-IV admittedly was not present when the inspection took place. But, as I have already observed that in course of hearing, it was submitted that the Assessing Officer was no longer available and he had left the organization. If that was the case, then following principles akin to Doctrine of Necessity, another Assessing Officer would have to hear out the matter. In such a situation the Assessing Officer would have to independently make an order of assessment. In this case, final order of assessment has been made on the basis of records maintained by CESC Ltd. and the test report. The Assessing Officer referred to inspection made on 26th July, 2007 and 25th February 2009, and noted the irregularity to be:“Meter No.2336669 (Domestic – G_ seals posted on the body cover of the meter were found tampered with.”
. I have referred earlier in this judgment to the observation and order of the Appellate Authority. The Appellate Authority found certain deficiencies on the part of CESC Ltd. over their finding of unauthorized use of electricity, and for this reason directed the meter to be sent for testing by an independent agency. In such circumstances, while dealing with the case of CESC Ltd., assuming the Assessing Officer-IV had the jurisdiction to adjudicate on the dispute, he ought to have taken proper evidence if he was considering CESC’s case, for their case on the same set of records was found deficient on several counts by the Appellate Authority. Otherwise, the Appellate Authority’s finding, by implication, would be rendered nugatory. There is no indication that barring the test report, any additional material was produced before the Assessing Officer-IV which would have justified confirmation of the charge of unauthorized use. Moreover, the Assessing Officer-IV has not made any observation as to why he was applying straightaway the computation period of 365 days to calculate the dues of the petitioner. CESC Ltd’s own submission before the Civil Court on 15th January 2009 that there was no allegation of tampering of meter against the petitioner was a relevant factor for computing the period of unauthorized use, if any. That aspect ought to have been considered by the Assessing Officer-IV.
21. Next, I shall deal with the question of validity of the test report, which also formed the basis of the order of the said Assessing Officer. The petitioner’s case on this point is that the direction of the Appellate Authority has been flouted on this issue as the meter was not sent for testing under signature of both the petitioner and CESC Ltd. The petitioner had applied for such testing by writing to CESC Ltd. on 25th June and 23rd July 2009. From Annexure “P11”. I find the School of Material Science and Engineering of BESU had got the meter tested on being referred to them by Golabari Police Station in relation to case No.62 of 2009. In the test report itself there is reference to an order of Learned Judge, Special Court dated 2nd April 2009. The petitioner has annexed to the writ petition the order-sheets of the Special Court as “P12”. and from these order-sheets no order of 2nd April 2009 could be found. The respondents also could not produce any order of that date or any order containing such direction by the learned Special Court.
22. On behalf of the respondents, it was argued, in the light of the judgment passed on 17th September 2012 in W.P. No.1162 of 2009 that the test report had already received sanctity from this Court. In that writ petition the petitioner applied for quashing the test report. In the judgment delivered on 17th September 2012, by which the writ petition was disposed of, it was observed that the report filed by BESU had been passed pursuant to the normal procedure followed in cases of theft, i.e. dispatch of meter in a sealed box by the police authority to an independent agency for testing. But it was also observed in that judgment that the petitioner could question the correctness of the report before appropriate forum 23. Thus, in that writ petition, the finality of the test report cannot be said to have been confirmed. The petitioner was given liberty to pursue his remedies before the appropriate forum. I find from the written submissions of the petitioner filed with the Assessing Officer IV, a copy of which has been made Annexure “P18”. to the writ petition, the petitioner had raised this issue before the said officer. But the Assessing Officer IV did not address this issue, and instead of dealing with that question, he had accepted the report of BESU, treating the same to be the mandate of the Court. I, accordingly reject the contention of the respondents that finality of the test report had been accepted by this Court in W.P. 1162 of 2009 for the reasons indicated above. The manner in which the Assessing Officer, before which forum the issue was raised, examined with the issue shall be dealt by me in the subsequent paragraphs.
24. Dealing with the test report, the Assessing Officer observed:“As directed by the Hon’ble High Court I have considered the Test Report dated 18.06.2009 forwarded by Mr. N.R. Bandyopadhyay, Professor & Director, School of Materials Science & Engineering, Bengal Engineering and Science University (BESU), Shibpur, Howrah, under cover of Letter Ref.: MND/HC/426C/2009 dated 18.06.2009 and noted the following points:On careful inspection/examination of Electric meter (2336669), it was observed:
1. The Ferrule body seals affixed on the meter body for protecting registration/internal mechanism of the meter was found tampered with in electric meter No.2336669.
2. By tampering with the said body seals, unauthorized access to internal mechanism of the meter could be gained, creating in the process infinite opportunity of tampering with the registration/internal mechanism of the meter at will and such tampering may be of permanent nature or otherwise.
3. Terminal cover plate seal was found missing in the said meter.”
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25. Stand of CESC Ltd. as also of the testing body is inconsistent over the manner in which the report was made by the latter. Before the Hon’ble Single Judge in W.P. 1162 of 2009, it was submitted that it was the police authority who had sent the meter for inspection to School of Material Science and Engineering, BESU, Shibpur in regular course. In the covering letter of the report, to which I have referred to earlier, it has been stated that the said meter was referred to them by Golabari police station. In the report itself, the text of which has been reproduced in the earlier part of this judgment, it has been recorded that by an order dated 2nd April, 2009 the learned Judge, Special Court had identified the said institute as the authority to inspect and pass opinion/comment upon examination/test of the said meter. There is no reference to any such order passed on 2nd April, 2009 in the records produced before me. Even if I proceed on the basis that the covering letter disclosed the authority from whom the meter was received, but actual direction was issued by the Special Court, as referred to in the body of the report, then also the circumstances under which the report was made becomes cloudy. CESC ltd. has not been able to explain under what circumstances the meter was sent to BESU. The meter was tested on 18th June 2009, after the order was passed by the Appellate Authority on 10th June 2009. The said meter obviously was not sent as per order of the Special Court, as no order of the Special Court is there to that effect. In the given circumstances, in my opinion, the test report was required to be examined and formally proved following the rules of evidence, and reliance on the said report by the Assessing Officer-IV straightaway was erroneous. For these reasons, I quash the order of the Assessing Officer-IV dated 14th November 2012, a copy of which is made Annexure “P19”. to the writ petition.
26. Ordinarily I would have remanded the matter to the Assessing Officer because the order impugned is being set aside primarily on procedural flaws. But in this case in my view the Special Court ought to decide the civil liability of the consumer, if any, in terms of Section 154(5) of the 2003 Act as I have been apprised in course of hearing that a criminal case under Section 135 of the Act has already been started against the petitioner. For effective adjudication of the dispute involved in this proceeding evidence would have to be led and I do not think the Assessing Officer would be the proper forum for determining the subject dispute. On the question of payment of meter replacement cost by the petitioner, that aspect can be examined only after the dispute is finally resolved by the Special Court. In the event the Special Court opines that unauthorized use of electricity by tampering of meter is proved against the petitioner, then the petitioner would be liable to pay these charges. Otherwise, CESC Ltd. would have to bear costs under these heads.
27. The sum already deposited by the petitioner to CESC Ltd. on account of subject dispute shall be retained by CESC Ltd. for a month from the date of communication of this order. In the event CESC Ltd. applies before the Special Court within the said time, the said sum shall be deposited in an interest bearing account of a nationalized bank. Before the Special Court, the petitioner shall be entitled to raise the issue of jurisdiction of the Assessing Officer-IV to hear out the matter and pass the order which has been impugned in this writ petition. The question of validity or correctness of the test report shall also be decided by the Special Court, if the issue is raised before the Court by any of the parties, in addition to any other issue which may be raised before the Special Court on the subject dispute. If CESC Ltd. fails before the Special Court then the said sum shall be refunded with interest to the petitioner. Otherwise, the said sum shall be utilized as per direction of the Special Court. If no application is made by CESC Ltd. within the aforesaid timeframe then the sum retained by them shall be refunded to the petitioner with interest at the rate of 8.5% per annum to be computed from the date of deposit.
28. The writ petition stands allowed in the above terms, but without any order as to costs.
29. Urgent certified copy of this order be given to the parties expeditiously, if applied for. (Aniruddha Bose, J.)