Form No.J(2) v. CESC Limited & Ors.

5. Praying for an order to quash the provisional assessment and the FIR lodged against the petitioner under the relevant provisions of the Electricity Act, 2003, the petitioner moved another writ petition being WP no. 6214 (W) of 2005 which was dismissed by a Coordinate Bench of this Court by order dated 6th June 2005. In the order dated 6th June, 2005 it was observed that the petitioner was required to wait for final assessment and the order of final assessment was an appealable order and hence, the same could be impugned in appeal before the concerned appellate authority.

6. Subsequent thereto, the petitioner preferred another writ petition being WP no. 26519 (W) of 2006 which was disposed of by a Hon‟ble Coordinate Bench of this Court by order dated 21st December 2006, directing the concerned respondent to make final assessment upon giving opportunity of hearing to the petitioner and considering the objection submitted by the petitioner within the period specified therein. 4

7. In terms of the order dated 21st December 2006 passed in WP no. 26519 (W) of 2006, the petitioner submitted his objection before the assessing officer. Ultimately, the final order of assessment was passed by the assessing officer on 23rd February, 2007.

8. The petitioner preferred the statutory appeal before the appellate authority and the appellate authority, by order dated 14th March 2007, disposed of the said appeal. Challenging the said order of the appellate authority the instant writ petitioner has been instituted.

9. The parties have exchanged their affidavits, as directed. Mr. Mukherjee, learned advocate appearing for the CESC contends that affidavit-in- opposition was filed and taken on record but record does not contain such affidavit. In view thereof, a copy of the affidavit-in-opposition along with all the annexures thereto, as produced by Mr. Mukherjee is retained with the record. The copy of this affidavit shall be treated as the copy of the original affidavit-in-opposition for all purposes.

10. Mr. Sarkar, learned advocate representing the petitioner submits that Section 163 of the Electricity Act, 2003 (hereinafter referred to as the “said Act”) and Regulation 4 of the West Bengal Electricity Regulatory Commission (Electric Supply Code) Regulation, 2004 (hereinafter referred to the Regulation, 2004) have prescribed the mode and manner in which the premises of a consumer shall be inspected and who shall be the part of the inspection team. Mr. Sarkar strenuously contends that the inspection was done at odd hours at 2.00 A.M. without giving any notice to the consumer. According to him, the assessment made on the basis of such illegal inspection cannot be claimed to be valid. 5

11. On facts, Mr. Sarkar argues that the assessing officer was not part of the inspection team and accordingly, the assessment made by such officer cannot be treated to be a valid assessment. He submits that no findings have been returned by the appellate authority on the issues raised by the petitioner. He asserts that the appellate authority has passed a non- speaking order which cannot be sustained.

12. To invigorate his submission, Mr. Sarkar places reliance upon the following judgments :-  West Bengal State Electricity Distribution Company Ltd. – vs- Jadavpur Tea Company 1  Narayan Chandra Kundu –vs-State of West Bengal & Ors.2  Kranti Associates Private Limited & anr. –vs- Masood Ahmed Khan & Ors.3  Oryx Fisheries Private Limited –vs- Union of India4  Hasi Mazumdar & Anr. –vs- The West Bengal State Electricity Board & Ors.5

13. In response, Mr. Mukherjee, by drawing my attention to the order dated 6th June 2005 passed in WP no. 6214 (W) of 2005 submits that in this writ petition, the petitioner raised the issue that at wee hours the inspection team of CESE inspected the meters and other equipment without giving any notice to the petitioner and the issue was dealt with by the Hon‟ble Coordinate Bench and came to conclusion that the CESC raised the allegations against the petitioner that he had indulged in theft of energy and hence, the petitioner committed an offence punishable