Calcutta High Court
Susanta Paul vs Cesc Ltd. & Anr on 15 September, 2015
Author: I.P.Mukerji
Bench: I. P. Mukerji
WP No.249 of 2004
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
SUSANTA PAUL
Versus
CESC LTD. & ANR.
BEFORE:
The Hon'ble JUSTICE I. P. MUKERJI
Date : 15th September, 2015.
Appearance:
Ms. Manju Agarwal, Advocate
Mr. B.Manot, Advocate
for the petitioner.
Mr. Subir Sanyal, Advocate for
the respondent.
The Court: On or about 30th January, 2004 an inspection team of the respondent licensee found the seal on the terminal plates to be tampered, the incoming and outgoing loops for the red/yellow/blue phases shorted externally and the seal on the meter body tampered with. The electricity supply to the subject meter was cut off. The petitioner was charged with unauthorised use of electricity under explanation (b) to section 126 of the Electricity Act, 2003.
Ms. Agarwal, learned Advocate appearing for the petitioner, denies all these charges levelled against her client.
On 30th January 2004 a provisional assessment was made. The assessed amount was Rs.3,36,908/-. The instant writ was filed. On 19th February, 2004, Mr. Justice Subhro Kamal Mukherjee directed reconnection of electricity supply upon the petitioner depositing a sum of Rs.1,25,000/- together with reconnection charges etc. with the 2 respondent-licensee. There was a provision in the order for keeping the existing sub-meter in a sealed cover in the presence of the parties subject to further orders of this Court.
For 11 years this writ is in the file of the Court. No affidavit-in- opposition has been filed by the respondent licensee. No final assessment has been done and I think rightly so because once there is an order of this Court for keeping the meter in a sealed cover, reading and assessment of the same for final assessment may not have been possible.
Mrs.Agarwal for the petitioner argues that the said order dated 19th November, 2004 did not restrain the assessing officer from making the final assessment. It was not made within 30 days of provisional assessment. Hence, 30 days' time to make the final assessment in terms of Section 126(3) of the Electricity Act, 2003 was over. The final assessment cannot be made now.
I do not agree. One of the tools with which the assessment is made is the meter. Unauthorized use for a particular period is determined inter alia in terms of meter reading. If the meter was directed to be kept sealed, the seal could not have been broken and the meter taken out for the purpose of final assessment. Therefore, the order dated 19th February, 2004 was an effective order of injunction restraining the final assessment to be done.
Furthermore, there are no consequences provided in the Electricity Act, 2003 for not passing the final order of assessment within 30 days from the date of the service of the provisional assessment. One of the principles for judging whether the provision is directory or mandatory is to examine, whether there is a default clause or sanction contained in it for not doing an act within the particular time frame. If such a stipulation is provided, the provision is usually taken to be mandatory. If it is not provided, it is usually taken to be directory. Since there is no such 3 stipulation in Section 126(3), the 30 days' time prescribed is directory. I do not think that upon expiry of 30 days, no assessment could be done at all.
In those circumstances, I am of the opinion it is high time that the final assessment is concluded, as there is no case whatsoever made out in the writ petition for interference by this Court at the pre-assessment stage.
I dispose of this writ application by directing the assessing officer to make the final assessment after taking out the meter from the sealed box and to complete the same within a reasonable time.
This writ application is disposed of.
All points are kept open before the assessing officer. Certified photocopy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(I.P.MUKERJI, J.) G/sd.