Dr. Sambuddha Chakrabarti, J. - If there is certainty in law there must also be a certainty in the transactions that men and women enter into with each other or with establishments of various sorts. This certainty, jurists have claimed for a very long time, forms the foundation of any legal relationship.
2. The issue raised in the present writ petition, if looked from a broad spectrum, touches on a far more fundamental aspect of law than what the parties decided to canvass before me: can we or can we not trust a word of assurance given by a party or must one necessarily have to suffer if he has acted being induced by the promise held out to him by the other party?
3. Mr. Sanyal, the learned Advocate for the petitioner is aggrieved by an order of the Appellate Authority which has been annexed to the writ petition as Annexure � P/6 as he had, inter alia, concluded that the unauthorized use of electricity had taken place due to lack of documentary evidence and that the assessment was rightly done.
4. This order, like all orders of their sorts, has a background which is not required to be gone into in details for the present purpose. Suffice, however, it to say that on April 21, 2015 an inspection had taken place in the premises of the respondent no. 2 when the seal on the meter body was found tampered with. A provisional assessment order was issued and served upon the respondent no. 2 on the same date. The charge for unauthorized use of electricity was assessed as Rs.6,34,375/- inclusive of duty. The consumer was made aware of the option open to him. He could file a written objection together with all documents. In that case he would be given a hearing on May 4, 2015. He could also accept the provisional assessment.
5. The obvious alternative was that he could make the payment as assessed. From the records it appears that the break-up of the amount assessed was already indicated and the inspection report very specifically mentioned the findings of the Assessing Officer.
6. The consumer, i.e. the respondent no. 2 herein, preferred to accept the provisional assessment and deposited the amount with the licensee on the very next date. He had also executed the prescribed format for the same which has been annexed as Annexure � P/3. The consumer had specifically given out that he has accepted the order of provisional assessment made in terms of Section 126 of the Electricity Act, 2003 and confirmed his full and final acceptance of the order of provisional assessment and called upon the licensee to provide him with bills for making payment. Based on that the concerned Assessing Officer passed the final order of assessment. That he did not enter into any further aspect of the matter appeared from the order itself inasmuch as he had specifically recorded that the order of provisional assessment was accepted and he passed the final order of assessment.
7. The second round of the litigation started thereafter. The consumer decided to file an appeal under Section 127 of the Act. The memorandum of appeal mentioned various issues of non-compliance of procedure and made grievances on various issues touching on the factum of search, seizure, inspection etc. The licensee-company filed written submission and ultimately by the order impugned the Appellate Authority found fault with the licensee-company and found the entire action to be against the spirit of the law and the principles laid down by the High Court in a Judgment. However, the order was inconclusive as it ended with the observation merely and was not accompanied by any consequential order.
8. Mr. Sanyal submitted that a very major part of their submission was totally ignored by the Appellate Authority, viz. a consumer having accepted the provisional assessment and having made the payment cannot subsequently challenge the same as the Assessing Officer had acted on such assurance given by him.
9. Mr. Sen appearing for the respondent no. 2, more than defending the order impugned, assailed the acts of the petitioner. He tried to canvass the faulty procedure allegedly adopted by the Assessing Officer, non-compliance of various provisions and procedure and even the procedure of making search and seizure at the time of inspection. As a matter of fact Mr. Sen''s arguments has two limbs. One, since he had ailing parents in his house he had to agree to pay the entire amount to get restoration of electricity, and secondly, the disconnection must have been done under Section 135 (1A) of the Act and, therefore, all the provisions thereof including the requirement of complying with the procedures laid down therein, are required to be complied with. And if not, the entire inspection was rendered void ab initio. The further stand of the consumer is that if the inspection is bad enough it matters little whether he has made the payment pursuant to the provisional assessment.
10. It matters little at this stage under which provision of law the Assessing Officer had disconnected the supply of electricity to the petitioner. After all the appeal under Section 127 of the Act was not against the competence of the appropriate authority to disconnect under Section 126 of the Act, it was against the final order of assessment. Even assuming that the authority had disconnected the electric line under Section 135 (1A) of the Act the factum of inspection does not become nullified and the petitioner has also not disputed it. He has more issues to agitate, viz. whether seizure list was given to him, whether the seizure list was countersigned by the occupant of the house, whether the search and seizure was according to the Rules, etc.
11. The consumer had two options open : either not to accept the provisional assessment and to file a written objection or to accept the same and to make the payment. Even if one accepts the submission of Mr. Sen that in order to get back the electric connection he had hurriedly decided to make the payment, there is no explanation why he had signed the prescribed form without indicating that such acceptance was without prejudice to his rights and contentions and the Assessing Officer had trusted on it and, as mentioned before, based on that he passed the final order of assessment. Things might have been very different if he had not so unequivocally and unconditionally accepted the provisional order. That it was a prescribed form and the consumer had no option to do anything hardly provides any defence to his action. If the consumer is aggrieved by the alleged non-compliance of any procedure laid down in Section 135 of the Act it will be open for him to take all those points in the criminal case that is pending against him pursuant to the information lodged with the police authorities under Section 135 of the said Act. We cannot confuse between the scope of Sections 126 and 135. While Section 135 is concerned with theft of electricity Section 126 deals with assessment. And the petitioner was aggrieved not with the theft part but with the assessment. And the petitioner expressed his consent to the provisional assessment which formed part of the assessment procedure. The difference is not very difficult to appreciate.
12. As pointed out by the Supreme Court in the case of Executive Engineer, Southern Electricity Supply Company of Orissa Limited (South Co.) and Anr. v. Shri Seetaram Rice Mill, reported in (2012) 2 SCC 108 that there is a difference between the scope of operation of the two provisions of law. While proceeding under Section 135 of the Act the state of mind is a relevant consideration, Supreme Court held. The intention is not the foundation for invoking powers of the concerned authority for passing an order of assessment under Section 126 of the Act. Mr. Sen submitted that while supplying the inspection report or the provisional assessment it has never mentioned that he had intentionally done it. As pointed out by the Supreme Court this may be a factor relevant for the disposal of the proceeding under Section 135. But for the purpose of assessment, the question of mens rea is not required to be communicated to an individual consumer.
13. The consumer had laid great stress on a judgement relied on by the Appellate Authority in the case of Narayan Chandra Kundu v. State of West Bengal & Ors. reported in 2008 (1) CHN 459 wherein it has been held that an Assessing Officer must be a person who is to be actually a member of the inspection team at the time of detecting pilferage or unauthorized use of electricity. This has been interpreted by the Appellate Authority that the High Court had indicated that for the purpose of conducting an inspection there must be a team of which an Assessing officer should be a party. In further justification of such an interpretative conclusion Mr. Sen referred to paragraph 13 of the said judgment and submitted that Section 135 of the Act authorizes only the officers of the inspecting team detecting the illegal use of electricity to lodge complaint provided such officer is authorised by the State Government to lodge such complaint. This judgment does not lay down that inspection must necessarily be a teamwork and unless people collectively make an inspection the unauthorized use of electricity by a consumer cannot be detected by the competent authority. That is neither the law nor was such in the minds of the Court. As a matter of fact Section 126 merely says that if on an inspection of any unauthorized use of electricity was found the Assessing Officer shall provisionally assess to the best of his judgment the electricity charges. As such, the conclusion of the Appellate Authority that the inspection had not taken place according to the principles of law as laid down by High Court is not borne by the judgment of the High Court.
14. The view of the Appellate Authority calls for special observation. The Appellate Authority had concluded that tampering the seal of the meter comes under the purview of Section 135 of the Act and as such the allegations of unauthorized use of electricity under Section 126 is not sustainable. A naive reader is likely to be misled that tampering of meter qualifies for an authorised use of electricity.
15. The major problem with the order impugned appears to be the failure on the part of the Appellate Authority to address himself on a very important issue raised by the licensee-company : the consumer has accepted the assessment, has made the payment, has got the electric connection and accepted everything without prejudice. Is it still open to him to turn around and take a view contrary to the one taken before the Assessing Officer? Can he still say that what he did he does not trust in that? Can he still question the validity of the act of the Assessing Officer after inducing him to pass the final order based on his application?
16. The obvious answer to all the questions must be in the negative. If he is not allowed to do what he did, that would be the end of, as mentioned at the very outset, all certainties in any jural relationship.
17. Initially Mr. Sanyal was a little apologetic that the licensee had taken the point of promissory estoppel before the Appellate Authority. I find the point was rightly taken but wrongly left out. It was indeed a case of promissory estoppel. Much belief what the consumer submitted to the contrary, there was no exercise of any compulsion by the licensee upon him to accept the provisional assessment. Mr. Sen''s justification that he was a layman and was not conversant with the legal provisions has been subsequently belied by his reliance on different provisions of Section 135 of the Act. But the more important issue was that the petitioner by his overt conduct had induced the appropriate authority to act on it. Now after accepting the same he cannot turn around and spring a surprise on the licensee-company to say that the entire thing is bad. Law does not permit such bi-poler conduct of a person who got a thing done by another by holding out a certain promise in the form of an assurance. By his conduct he has induced the authority to believe that his application may put the dispute to an end. Had it not been so they might not have passed the final order in the manner in which they did. The consumer having allowed the licensee-company to alter its position by the promise held out to them and by invoking Section 126(4) of the Act had led them to act in a certain manner which he could neither subsequently challenge nor retract from. The Appellate Authority should have held that the petitioner was estopped from raising those issues in the appeal and not by doing so he has gone into certain issues which are to be decided at the time of disposal of the criminal case. Similarly, Mr. Sen''s further defence that he hardly had any time to raise objection is also a defence taken for the sake of it. If he could make an application, even if in a prescribed form, it might have taken hardly a few more moments to raise a written objection.
18. I find no merit in the order impugned. On the contrary, I find that the Appellate Authority ought not to have entered into the issues which have been so elaborately discussed by him. For the same very reasons for which I find no merit in the order impugned I find sufficient merit in the present writ petition.
19. The writ petition is allowed.
20. The impugned judgement and order, dated July 11, 2015, is set aside and quashed.
21. I make it clear, however, that no observation made in this order shall have any bearing on the criminal trial that is to follow subsequently.
22. There shall be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the learned Advocates for the parties on the usual undertakings.
