Calcutta High Court
Sri Swadesh Ghosh vs Cesc Limited & Others on 16 February, 2010
Author: I.P. Mukerji
Bench: I.P. Mukerji
1
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Original Side
PRESENT:
The Hon'ble JUSTICE I.P. MUKERJI
W.P. No. 1508 of 2008
SRI SWADESH GHOSH
Versus
CESC LIMITED & OTHERS
For the petitioner : Mr. Neguive Ahmed, Adv.
Mr. Surya Maity, Adv.
Mr. Santosh Kumar Ray, Adv.
For the respondents : Mr.Subir Sanyal, Adv.
Mr. Somnath Bose, Adv.
Heard on: 01.02.2010, 08.02.2010, 10.02.2010
Judgment on: 16.02.2010
I.P. MUKERJI, J.
The writ petitioner is in partnership business with one Shambu Ghosh. In partnership, they run a factory at premises No. 9/H/1, Abanish Chowdhury Lane, Kolkata - 700 046. The business carried on by this partnership firm is manufacturing of rubber goods. The factory has two electricity meters, one of them, 2350145K of the writ petitioner. His partner also has another meter with which this case has no real connection.
2On or about 28th August, 2003 (the date appearing in the order of provisional assessment) the electricity connection of the writ petitioner was disconnected by representatives of the respondent/licensee. Their ground was theft of electricity. A provisional assessment was made on 28th August, 2003 itself where the provisional assessed sum was Rs.2,27,0340/-. This was followed by a final assessment on 2nd October 2003.
The writ petitioner filed an appeal from that assessment order before the appellate authority. Thereafter, he filed a writ application in this court in W.P. No. 1580 of 2005 alleging that the appellate authority was slow to dispose of that appeal. That writ application was disposed of on 3rd August 2005 by Jayanta Kumar Biswas, J. by the following order:
"For these reasons I dispose of the writ petition directing the appellate authority to give final decision in the petitioner's appeal. Before giving the decision the authority shall give the petitioner reasonable opportunity of being heard and also of presenting his case. If the petitioner applies for testing of the meter or any other apparatus, then within three weeks from the date of receipt of the testing report the appellate authority shall give the decision in the appeal. Otherwise the appellate authority shall give the final decision in the appeal within three weeks from the date of receipt of a copy of this order by him. The decision shall be a reasoned one and it shall be communicated to the petitioner without any delay. The appeal shall be decided by the appellate authority 3 appointed in terms of section 127 of the Electricity Act, 2003 and according to provisions of the rules existing at the date of deciding the appeal. Since the petitioner has expressed his desire to start business activities and for this he needs restoration of supply, I am of the view that he should be given liberty to approach CESC with the request for restoration on payment of 50 per cent of the finally assessed amount or on payment of any other lesser amount that CESC may decide. If the petitioner approaches CESC with such request, then CESC shall consider the question of restoration of supply independently and such decision shall be given without prejudice to the rights and contentions of the parties in the pending appeal. In the facts and circumstances of the case there shall be no order for costs in the writ petition."
Two findings in that judgment and order are relevant:
a. The appeal would have to be decided by the appellate authority appointed under Section 127 of the Electricity Act, 2003 and according to the rules existing at the date of deciding the appeal.
b. If the petitioner wanted reconnection he could approach the respondent/licensee who would restore on payment of 50% of the final assessed amount or any other lesser sum. No such deposit was made and as such no reconnection has been made.
The respondent/licensee wrote a letter dated 07.09.2005 recording that such deposit had not been made. It also said that the pre 4 deposit for hearing of the appeal in terms of Section 127(2), that is, one-third of the assessed amount has also not been deposited. In this writ, the writ petitioner alleges that this appeal be heard out before the appellate authority without any deposit. It says that the appeal was filed under the old conditions of supply which did not require making of any deposit. There is also a prayer for unconditional restoration of electricity. I don't think that I can add to or subtract from the judgment and order of Jayanta Kumar Biswas, J. dated 03.08.2005, regarding deposit before reconnection. But I note that the respondent/licensee has mentioned in its letter dated 07.09.2005, annexure P-18 page 82 that on payment of 50% of the charges reconnection would be made.
As regards the appeal is concerned the appeal was filed on 8th November 2003 after coming into force of the Indian Electricity Act, 2003 on 10.06.2003. The date of assessment was 29th October 2003 after coming into force of the said Electricity Act. In fact, it is stated in the assessment that the assessment order was being made under Section 126 of the Electricity Act, 2003. 5 At this stage the provisions of Section 127 of the Act regarding appeal can be noticed:
"127. Appeal to appellate authority. - (1) Any person aggrieved by the final order made under section 126 may, within thirty days of the said order, prefer an appeal in such form, verified in such manner and be accompanied by such fee as may be specified by the State Commission, to an appellate authority as may be prescribed. (2) No appeal against an order of assessment under sub-section (1) shall be entertained unless an amount equal to 3[half of the assessed amount] is deposited in cash or by way of bank draft with the licensee and documentary evidence of such deposit has been enclosed along with the appeal 3 Subs. by Act 26 of 2007, sec.12, for "one-third of the assessed amount"(w.e.f. 15-6-2007) Sub-section (2) is very important. It says that no appeal against an assessment under section 126 can be filed unless one-third of the assessed amount was deposited.
I say one-third because one-third was the amount at the date of filing of the appeal. The Electricity Act, 2003 has subsequently been amended by Act 26 of 2007 replacing one-third with half. Any absence of stipulation in the conditions of supply regarding predeposit pending appeal would have no application, in my opinion, because such conditions of supply are inconsistent with this Act. As provided in section 185 of the Act, an inconsistent provision of any rule or condition under the old Act has to give way to the provisions of the new Act. Therefore, any condition 6 for preferring an appeal under the old Act will not apply and Section 127 is squarely applicable. In those circumstances, the contention of the writ petitioner that the appeal be heard without any deposit cannot be sustained.
Therefore, the appeal may be heard upon deposit of the one-third of the assessed amount. But before parting with the matter some consideration has to be made of the submission on behalf of the writ petitioner that he is in financial hardship and will not be able to pay one-third of the assessed amount for hearing of the appeal and half the amount for obtaining reconnection. Since this financial hardship is a circumstance subsequent to the order of Biswas, J., I take into account this circumstance for the purpose of granting instalments of the sum directed to be paid by Biswas, J. In that view of the matter, since 50% is greater than 30%, I direct the writ petitioner to deposit 50% of the assessed sum in the manner following: he will deposit Rs.25,000/-, immediately, with the respondent/licensee. The balance may be paid over a period of one year by twelve equal monthly installments, commencing from the month following the month of deposit and payable by the seventh of each month. For example, if the initial deposit of 25,000/- is made in February the first installment will fall due by 7th April 2010. Upon making the 7 initial deposit the appellate authority will hear the appeal and dispose it of within a period of 12 weeks thereafter. In default of any one installment, the respondent/licensee would be at liberty to cutoff electric supply. Upon making the initial deposit the electricity line would be restored within 48 hours of making of the deposit. The appellate authority would be at liberty to vary the sum payable in each installment depending on the order passed by it but the frequency of installments and their period, that is, one year from date cannot be reduced. I also clarify that the costs and charges for reconnection would have to be paid separately. The writ petitioner will nevertheless have the option of depositing 30% of the assessed sum and get the appeal heard, without reconnection.
With these directions, the writ application is disposed of. There will be no order as to costs.
Urgent certified photocopy of this judgment and order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(I.P. MUKERJI, J.)