Umesh Chandra Mondal vs West Bengal State Electricity Distribution Company Limited And Others

In view of the good grounds shown, the delay of about 104 days in preferring the appeal is condoned and the appeal is taken on record.

CAN 6051 of 2018 is allowed.

The appellant is aggrieved by an order allowing a writ petition filed by the West Bengal State Electricity Distribution Company Limited. The Distribution Company had challenged the propriety of an order dated August 31, 2016 passed by the appellate tribunal on an appeal from a provisional assessment bill dated January 11, 2007.

Following an inspection conducted at the appellant's premises in Nadia, the then West Bengal State Electricity Board, the predecessor-in-interest of the Distribution Company, raised a provisional bill dated January 11, 2007 for a sum of Rs.3,28,875/-.

Though it does not appear from Section 127 of the Electricity Act, 2003 that an appeal may be carried from an order of provisional assessment, the appeal was entertained. Such appeal was disposed of by an order of August 31, 2016, primarily based on the findings rendered in the related criminal proceedings instituted against the appellant herein. It is evident from the order passed in the criminal proceedings that the meter found to have been tampered with was not sent for expert inspection. There are other anomalies which are pointed out in the order passed by the criminal court and which weighed with the criminal court in finding that the commission of the offence that the appellant was charged with was not established.

Buoyed by the acquittal in the criminal proceedings, the appellant placed the relevant order before the appellate tribunal and the appellate tribunal set aside the impugned provisional assessment without even seeking to ascertain whether a final order had been passed. Apart from the fact that it is only against a final order that an appeal to the appellate tribunal lies, it is evident from the scheme of Sections 126 and 127 of the Act of 2003 that upon a provisional assessment being made, a representation may be made by the customer and, after affording the customer an opportunity of hearing, the final assessment is made as to whether the customer had resorted to tampering or pilferage of electricity or otherwise obtained the same illegally and an assessment of the quantum due is also made. There is no doubt that a final order has to be a reasoned order upon taking into account the representation made by a customer.

Equally, it cannot be lost sight of that the tests employed in criminal proceedings and in civil proceedings are not comparable. In criminal proceedings, the commission of the offence has to be established by cogent proof and beyond reasonable doubt. In civil proceedings, the quantum demanded by the final order of assessment has to be decided on the anvil of preponderance of probabilities. It is possible that a person may not be found guilty of tampering a meter in the related criminal proceedings, but the final order of assessment is not interfered with in assessing the liability of the customer.

On a plain reading of the order passed by the criminal court here it is evident that the prosecution had not taken appropriate steps and, as such, the charge failed. On a different yardstick, as in the matter of the final assessment order or the consideration thereof on the basis of preponderance of probabilities, the result could have been completely different as far as the appellant is concerned. In such sense, the order impugned herein may not call for any interference.

In the light of the factual scenario also, the order impugned need not be interfered with. The parties cannot indicate whether a final order of assessment has been made or a copy thereof supplied to the appellant herein. If any final order has already been passed and a copy of such final order has already been served, if no appeal has been preferred against the same by the appellant herein, the appellant will be liable to pay in terms thereof. If no final assessment order has been made or no copy of such final assessment order has been forwarded to the appellant herein, the order should be made within the next four weeks and duly communicated to the appellant within four weeks thereafter for the appellant to take appropriate steps in respect thereof. It is made clear that nothing in the order dated August 31, 2016 passed by the appellate tribunal or the order impugned herein should be taken into consideration while assessing the final order of assessment, whether in any appeal therefrom or otherwise.

Since the matter has lingered for a long time and the appellant claims to have remained without electricity at the appellant's industrial plot, the appellant is permitted to deposit a further sum of Rs.1,09,000/- to be entitled to the resumption of electricity supply at the relevant premises. It is recorded that against the provisional bill in excess of Rs.3,28,000/-, about Rs.91,000/- has already been deposited by the appellant earlier. The entire deposit of the amount of about Rs.2 lakh will abide by the result of the final assessment order or any appeal therefrom.

FMA 71of 2020 together with CAN 6058 of 2018 stand disposed of.

There will be no order as to costs.

Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.