Chairman, W.B.S. Electricity
Board & Ors. Vs. Syed Mukbul Hossain & Ors.  INSC 2114 (8
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. OF 2008 (Arising out of
SLP (C) No. 6618 of 2007) The Chairman, West Bengal State Electricity Board
& Ors. ....
Syed Mukbul Hossain & Ors. ....Respondents
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment of a Division Bench of the Calcutta High
Court disposing of the writ petition, the appeal and the application filed with
certain modifications. On the allegations that there was insertion of a variant
element in the meter to bye pass recording of actual consumption, First
Information Report was lodged by the personnel of the appellant-Board.
Provisional assessment was made. Thereafter there was disconnection of
electricity supply. A writ application was filed by the respondent No.1 making
grievance that the disconnection of the supply was wrongly done and the
provisional assessment as made claiming Rs.2,50,046/- on the alleged ground of
theft of electricity and/or tempering of the meter was not sustainable.
Learned Single judge
of the Calcutta High Court disposed of the matter in Writ Petition No.2029 (W)
of 2006 whereby and whereunder the appellants were directed to restore
electrical supply on deposit of Rs.20,000/- by the writ petitioners. Appellants
questioned correctness of the order on the ground that the disconnection of
supply line was effected on 24.1.2006 in terms of the Regulation 5.2.1 of the
West Bengal Electricity Regulatory Commission (Electricity Supply Code) Regulation
2004 (hereinafter referred to as the `Supply Code'). The Division Bench
referred to Regulation 5.2 and observed that the appellants have got right to
disconnect supply line of electricity on fulfillment of the conditions
stipulated. But the same is required to be done following a particular
procedure. It was held that due procedure was not followed. The Division Bench
held that under Section 126 of the concerned Electricity Act, 2003 the writ
petitioner had a right of filing an objection thereof which has been filed by
the writ petitioner under Section 126(3). The appellants are required to pass a
final order after giving a reasonable opportunity of being heard. The writ
petitioner also has a right to prefer an appeal under Section 127 of the Act
against the final assessment order. The Division Bench, therefore, permitted
the parties to pursue the remedy. It was, however, held that the disconnection
of power supply was contrary to and was in breach of regulation 5.2 and the
writ petitioner was, therefore, entitled to be compensated. Accordingly the
cost of Rs.25,000/- was imposed.
counsel for the appellant Board submitted that approach of the High Court is
clearly erroneous. Admittedly, objection has been filed. It was noticed that no
order on merits could have been passed. By order dated 11.08.2008 final
assessment was directed to be done.
counsel for the appellant has further submitted that the respondents has
suppressed the fact that much before the order was passed by this Court, the final
assessment has been made by order dated 27.9.2007 and the statutory appeal
which was required to be done within 30 days was not filed within the said
period and, therefore, the appeal, if any, filed subsequently is of no
counsel for the respondents, on the other hand, submitted that the High Court
has taken note of the factual scenario and the legal principles applicable. The
final assessment in any event is the subject to challenge. Since the final
assessment has been challenged, we feel interest of justice would be best
served if the same is disposed of in accordance with law. It is open to
appellant-Board and its functionaries to highlight before the concerned
authority as to the maintainability of the appeal on the ground of alleged
delay. It is needless to say that the said aspect shall be considered by the
appellate authority. Let the appeal be disposed of in accordance with law
without being influenced by any of the observations made by the High Court in
the impugned order and by learned Single Judge.
The direction for
costs is set aside. The interim order dated 20.4.2007 shall continue till
disposal of the appeal. We make it clear that we have not expressed any opinion
on merits because of the interim protection.
appeal is disposed of accordingly. No costs.
(Dr. ARIJIT PASAYAT)