Calcutta High Court (Appellete Side)
Shiw Narayan Sharma vs Cesc Ltd. & Ors on 10 January, 2011
Author: Jayanta Kumar Biswas
Bench: Jayanta Kumar Biswas
1 In The High Court At Calcutta Constitutional Writ Jurisdiction Appellate Side Present:
The Hon'ble Mr. Justice Jayanta Kumar Biswas W.P. No.184 (W) of 2011 Shiw Narayan Sharma v.
CESC Ltd. & Ors.
Mr Sukumar Bhattacharyya and Ms Piyali Show, advocates, for the petitioner. Mr Om Narayan Rai, advocate, for the licensee.
Heard on: January 10, 2011.
Judgement on: January 10, 2011.
The Court: - The petitioner in this art.226 petition dated January 3, 2011 is questioning an order of final assessment dated November 18, 2010 (at p.23) of the assessing officer of CESC. The order was made under s.126 of the Electricity Act, 2003.
The second paragraph of the order of final assessment is quoted below:
"In the instant matter Sri Archan Kusum Majumdar, an authorised Assessing Officer, passed the Order of Provisional Assessment dated 23.10.2010. In the said Order of Provisional Assessment, the consumer was advised inter alia that he would be given a hearing by the Assessing Officer on 15.11.2010 at 10.00 a.m. in his office in terms of the provisions of Sub-Section 3 of Section 126 of the said Act. Unfortunately, owing to certain unforeseen exigencies, Sri Archan Kusum Majumdar, the Assessing Officer aforesaid, is no more as an Assessing Officer. It is in these compelling circumstances that I have been directed to give a hearing to the consumer on the scheduled date and time and pass the Final Order of Assessment thereafter, within 30 days from the date of service of the Order of Provisional Assessment, as required by law."
Referring to the provisions of s.126 and relying on the Division Bench decision in Narayan Chandra Kundu v. State of West Bengal & Ors., 2008 (1) CHN 459, Mr Bhattacharyya has argued that since the order of final assessment was made by an assessing officer who was not in the team that detected the alleged unauthorised use of electricity, he could not make the order of final assessment.
According to him, the order of final assessment could be made, if at all, only by the assessing officer who made the order of provisional assessment dated October 23, 2010 (at p.20) as a person participating in the inspection that revealed the alleged unauthorised use of electricity in the premises in question.
Mr Rai, counsel for CESC, has argued that the obligation to make the order under s.126 by an assessing officer who was a part of the inspecting team is limited only to the extent of making the order of provisional 2 assessment. According to him, after the order of provisional assessment, any assessing officer other than the assessing officer who participated in the inspection can make the order of final assessment.
The question is whether the assessing officer who, admittedly, did not inspect the premises at the date the unauthorised use of electricity was detected was competent to make the order of final assessment under s.126 of the Electricity Act, 2003.
Sub-section (1) of s.126 of the Electricity Act, 2003 being relevant is quoted below:
"(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 the 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."
In the Division Bench decision the question for decision was mentioned in para.10, which is quoted below:
"10. Therefore, the first question that arises for determination in this appeal is whether in the facts of the present case it should be presumed that the proceedings for assessments have been vitiated for the reason that the prosecutor under section 135 of the Act was the Assessing Officer under section 126 of the same."
It is, therefore, evident that the question that has arisen in this case did not arise before the Division Bench that, however, said in para.13 as follows:
"After going through the provisions contained in sections 126 and 135 of the Act we find that the legislature has intended that the Assessing Officer must be a person who was actually a member of the inspection team at the time of detecting the pilferage or unauthorised use of the electricity so that he can pass the order of assessment not on the basis of papers placed before him but after actually visiting the site at the time of detection of the illegality."
Mr Bhattacharyya has strongly relied on the view of the Division Bench stated in para.13. That, however, is not the ratio of the decision in which the question was whether the officer initiating the proceedings under s.135 as the complainant was competent to act as an assessing officer under s.126 as well. I am, therefore, of the view that the decision does not answer the question raised in this case.
I am unable to accept the argument that the assessing officer who made the order of final assessment was incompetent to make it on the grounds that he was not in the team that inspected the premises and detected the unauthorised use of electricity leading to initiation of the proceedings under s.126 and making of the order of provisional assessment.
An interpretation to the provisions of s.126(1) that only an officer participating in the inspection leading to detection of the unauthorised use of electricity is competent to make the orders of provisional and final assessment will make the provisions unworkable and lead to an absurd situation.
3In case of unauthorised use of electricity an order of provisional assessment is to be made by an assessing officer of the licensee against a person, if he comes to the conclusion that such person is indulging in unauthorised use of electricity; and it is not necessary that for coming to the conclusion he must participate in the inspection that revealed the unauthorised use.
He may reach the conclusion through one of the three means mentioned in s.126(1), and for the second and third he is not required to participate in the inspection, for he can come to the conclusion after inspecting the pieces of equipment, gadgets, etc. found connected or used, or records maintained by the person, seized by an authorised officer of the licensee under s.135(2) and produced before him.
The provisions of sub-s.(2) of s.135 are quoted below:
"(2) Any officer of the licensee or supplier as the case may be, authorised in this behalf by the State Government may-
(a) enter, inspect, break open and search any place or premises in which he has reason to believe that electricity has been or is being, used unauthorisedly;
(b) search, seize and remove all such devices, instruments, wires and any other facilitator or article which has been or is being, used for unauthorised use of electricity;
(c) examine or seize any books of account or documents which in his opinion shall be useful for or relevant to, any proceedings in respect of the offence under sub-section (1) and allow the person from whose custody such books of account or documents are seized to make copies thereof or take extracts therefrom in his presence."
Thus there is no reason to say that an assessing officer not participating in the inspection leading to detection of the unauthorised use of electricity is not competent to make orders under s.126.
Besides, in view of the provisions of sub-s.(3) of s.126 the order of final assessment is to be made within 30 days from the service of the order of provisional assessment. It may, therefore, be an impossibility in many cases for an assessing officer participating in the inspection leading to detection of the unauthorised use of electricity and making the order of provisional assessment to make the order of final assessment.
It cannot be guaranteed that he will be definitely available at the date the matter will come up for making the order of final assessment. Service of the order of provisional assessment may take an unusually long time. For many reasons, including death, the officer may not be available, and his non-availability cannot lead to abatement of the proceedings. Statutory proceedings are not coterminous with the term of office of the authority initiating them. The legislature could never make the law with such an intention.
I am, therefore, of the view that the assessing officer making the order of final assessment was quite competent to make it. It is also to be noted that before the assessing officer who made the order of final assessment, the participating consumer did not raise the question that the assessing officer was not competent to make the order of final assessment, and it is evident from the order itslef.
This petition is also liable to be dismissed summarily on the grounds that it has been brought after expiration of the period for lodging an appeal from the order of final assessment. The petitioner was entitled to appeal under 4 s.127 of the Electricity Act, 2003 within 30 days of the order dated November 18, 2010 that was made after hearing him on November 15, 2010.
He brought this petition only on January 3, 2011. At the date he brought this petition he had already lost his statutory right to appeal from the order. Having waived his statutory right to appeal from the order, he was not entitled to question it before the Writ Court. Needless to say that in the appeal he could take the point that the assessing officer making the order was not competent to make it.
For these reasons, the petition is dismissed. No costs. Certified xerox.
(Jayanta Kumar Biswas, J.)