Jayanta Kumar Biswas, J.
1. While challenging the order of final assessment made by the assessing officer under Section 126 of the Electricity Act, 2003, the writ petitioner has thrown a challenge to the office order No. 6093 dated December 30, 2003 issued by West Bengal State Electricity Board.
2. The first question that has arisen is whether the Board was empowered by provisions of the Electricity Act, 2003 to prescribe any procedure for assessment of charges payable by any one on account of unauthorized use of electricity. Advocates for the petitioner, the State Regulatory Commission, and the Board are at one that no provision of the Act empowered the Board to prescribe any procedure to be followed by the assessing officer in the assessment proceedings initiated under Section 126 of the Electricity Act, 2003.
3. While advocate for the petitioner has argued that provisions made in para 6 of the West Bengal Electricity Regulatory Commission (Electricity Supply Code) Regulations, 2004 would be applicable to the proceedings initialed under Section 126, advocate for State Regulatory Commission submits, and in my view quite rightly, that provisions of para 6 would have no manner of application to the assessment proceedings initiated under Section 126.
4. In my opinion, provisions of para 6 only give right to a person to pay the charges calculated on the basis of the procedure mentioned therein for getting the supply restored during pendency of the penal action, and also during pendency of the assessment proceedings initiated under Section 126. But, there is no reason to say that procedure for making calculation mentioned in para 6.02 of the 2004 regulations would be applicable also for assessing liability in the proceedings initiated under Section 126.
5. There is also no reason to accept the petitioner's contention that in the absence of any method or procedure prescribed by the competent authority, for assessment of the charges in proceedings under Section 126, provisions made in the General Conditions of Supply under Section 49 of the Electricity (Supply) Act, 1948 would apply.
6. In my view, on the basis of provisions of Section 185 of the Electricity Act, 2003, it cannot be said that conditions of supply made by Board under the Electricity (Supply) Act, 1948, since repealed, have been saved. I agree with advocates for the State Regulatory Commission and the Board that with the repeal of that 1948 Act there is no scope to say that conditions of supply framed under provisions thereof would still remain in force. Under the 2003 Act the Board, or for that matter a licensee, is not authorized to make any conditions of supply.
7. There is, however, substantial force in what advocates for the petitioner and the State Regulatory Commission say. According to them the procedure prescribed by the office order cannot be binding on the assessing officer acting under Section 126 of the Electricity Act, 2003. Facing with the situation advocate for the Board has clearly said that though in the recital of the office order the Board said that the assessing officer would follow the office order at the time of assessing the dues, the Board actually never wanted to make the office order binding on the assessing officer or to curve thereby any power of the assessing officer to make assessment according to his best judgment.
8. Advocates for the parties agree that according to provisions of Section 126, in the absence of any duly prescribed method or procedure of assessment, for adjudicating the questions of fact the assessing officer is to proceed on the basis of his best judgment. There is no disagreement among the advocates on the point that at the time of initiating the assessment proceedings by making the order of provisional assessment, the assessing officer may look into the materials produced before him by the Board, and for that matter by a licensee within the meaning of provisions of the Electricity Act, 2003.
9. Advocate for the Board has clearly said that his client always wanted to rely on the office order as a piece of supporting material. He says that when the Act did not say how the assessing officer should assess and determine the chargeable units, and when the Central Government and the Regulatory Commission also did not prescribe any procedure, his client felt helpless, and hence instead of deciding to remain a silent spectator, it engaged experts; and that the office order was issued on the basis of the opinions given by the experts after carrying out necessary research works.
10. He says that the office order in fact reflected the general case of the Board to be relied on by it in all the assessment proceedings. According to him there was some confusion regarding the binding nature of the office order. He says that some of the assessment officers might have felt bound by the office order which was not issued by the Board in exercise of any statutory power. He argues that as one of the parties in the prospective assessment proceedings the Board was entitled to issue the office order for making its ordinary case known to everyone.
11. He also says that in the assessment proceedings while his client was entitled, and would still be entitled, to rely on the office order as one of the materials in support of the allegations of unauthorized use of electricity, the other partly or parties in the proceedings would be equally free to prove before the assessing officer that the ordinary case of the Board indicated in the office order should not be accepted by the assessing officer.
12. In the face of the submissions made by advocate for the Board, advocate for the State Regulatory Commission has said that, if the office order was never meant to be binding on the assessing officer, and if it was to be considered only as a piece of supporting material produced by the Board to persuade the assessing officer into making an order on the basis of his best judgment, then perhaps there is no reason to make any grievance. Advocate for the petitioner has said that in this case the assessing officer simply felt bound by the office order and hence the impugned order of final assessment has resulted in gross injustice.
13. In view of the abovenoted submissions of advocates for the parties, I find that in course of hearing of the matter the entire scene has been changed. If really the Board wanted to refer to the office order only for indicating what its ordinary case is in the proceedings initiated under Section 126, then there is no reason to say that the Board was not unauthorized to issue the office order. I think, the recital of the office order should not be given too much importance now because of the clarification given to the situation by advocate for the Board.
14. In view of the abovenoted situation. I find that there is really no need to decide whether the Board was empowered to issue the office order. By it, as clearly submitted in this Court, the Board never wanted to bind the assessing officer or to curve his power to make the provisional assessment on the basis of his best judgment and final assessment on the evidence and materials produced by the parties before him. Needless to say that once the assessing officer feels free to give decision on the basis of materials before him, there is no reason to say that the Board would not be entitled to refer to and rely on the office order as its ordinary case in the assessment proceedings.
15. One aspect, however, remains to be decided in this case. Whether the order of final assessment should be set aside, and the assessing officer should be directed to give a fresh decision. Once it was pointed out to advocate for the Board that the petitioner is suffering from the impression that gross injustice has been caused to him in that the assessing officer proceeded on the basis that he was bound by the office order, advocate for the Board has left the entire matter to the discretion of the Court. In my view, purpose of justice would be served, if I set aside the order of final assessment and direct the assessing officer to make a fresh order in the light of this judgment.
16. For these reasons I dispose of the writ petition setting aside the order of final assessment and directing the assessing officer to make a fresh order of final assessment after giving the petitioner a fresh opportunity of being heard. The parties shall be given opportunity of filing their statement of case and of adducing evidence. Needless to say that the assessing officer will be at liberty to refer to the office order only for the purpose of ascertaining what is the ordinary case of the Board. .He will not feel bound by the office order, and he will be free to give his independent decision as a quasi-judicial authority, after considering the evidence and materials placed before him by the contesting parties. The reasoned order of final assessment to be made in compliance with this order shall be served on the petitioner without any delay whatsoever, and he shall be given reasonable opportunity to pay the liability, if any, determined.
17. In the facts and circumstances of the case, there shall be no order for costs in the writ petition.
18. Copy of this order duly authenticated by A.R.(C) or A.CO. shall be given to advocates for the parties, on usual undertakings.
19. Urgent certified xerox copy of this order shall be supplied to the parties, if applied for.