DISHERGARH CEMENT WORKS PRIVATE LIMITED Vs. DPSC LIMITED

JUDGEMENT

(1.) The petitioner in this Article 226 petition dated January 29, 2011 is questioning an order of provisional assessment dated January 24, 2011 (at p. 77) made by the assessing officer of DPSC Limited, a licensee under the Electricity Act, 2003, under section 126 of the Act. Relying on Lohia Mandilia & Ors. vs. CESC & Ors., 2003 (2) CHN 215, Mr. Mukherjee appearing for the petitioner has argued as follows. From the documents at pp. 58 and 60 it will appear that the licensee detecting a fault "at the current transformer of the metering switchgear" on August 31, 2010 removed the defect by replacing "the faulty CT and Energy meter" on October 2, 2010 until when no allegation of theft of electricity by the petitioner was made. From the inspection report (at p. 67) It will appear that no allegation of theft of electricity was made, though it was stated that certain wires were found disconnected. From the seizure list (at p. 70). It will once again appear that no allegation of theft of electricity was made. Under the circumstances, on the basis of an allegation of unauthorized use of electricity the assessing officer, who did not come to any conclusion that the petitioner had unauthorizedly used electricity at any point of time, could not issue the order of provisional assessment. In any case, in view of the provisions of sub-section (5) of section 126 the assessing officer could not calculate the provisional liability from any period beyond twelve months from the date of detection of the alleged theft.

(2.) Mr. Sengupta appearing for the respondents has submitted as follows. Simply because until October 2, 2010 when certain defect in the supply system was removed by replacing certain devices no allegation of theft was made, it cannot be concluded that on January 12, 2011 the licensee could not make an allegation of theft of electricity by the petitioner. On inspection the theft was detected and according to provisions of section 135 read with the relevant regulations the supply was disconnected. In the inspection report, FIR and seizure list it was specifically stated that the inspecting team found the meter box seal tampered. This and the other features indicated in the documents are sufficient to maintain the allegation of theft. It is incorrect to say that the assessing officer has not come to a tentative conclusion that there was unauthorized use of electricity. In any case, in view of the provisions of sub-section (2) of section 126 entitling the petitioner to file objection to the order of provisional assessment and the provisions of section 127 entitling it to lodge an appeal from the final order, if it is goes against it, there is no reason for the Writ Court to interfere with the order of provisional assessment.

(3.) In my opinion, an order of provisional assessment made under section 126(1) of the Electricity Act, 2003 can be successfully questioned before the High Court under Article 226 only if it is shown that the order is without jurisdiction or patently illegal. Power under Article 226 is not to be exercised for judicially reviewing an order of provisional assessment and thus derailing the proceedings initiated under a special statute providing speedy and efficacious remedy to a person aggrieved by the order of provisional assessment. The person is entitled to submit his objection to the order and the assessing officer is under a statutory obligation to make the order of final assessment within thirty days from the date of service of the order of provisional assessment. The person, if aggrieved by the final order, has a statutory right to appeal under section 127. This being the scheme of the statute, I am of the view that it is only in an exceptional case that the High Court should interfere in exercise of power under Article 226 with an order of provisional assessment.