I.P. Mukerji, J.@mdashThis is a writ by the consumer, Jadabpur Tea Company Limited challenging the order of the appellate authority dated 13th January 2009. By this order the alleged final order of assessment dated 10th November 2008 was affirmed. This alleged assessment require the writ petitioner to pay Rs. 9,38,045/-, confirming the prior identical provisional assessment. This amount has already been deposited by the writ petitioner further to the provisional assessment. By the order of the appellate authority, the respondent/licensee would just have to appropriate that deposit. The Writ Petitioner does not stop here. It challenges the entire proceedings culminating in the appellate authority�s order, right from the stage of provisional assessment on the ground that they are illegal and void.
2. The writ petitioner is a limited public company having its registered office in Kolkata. It owns a tea estate, called Ramsai Tea Estate, within the Maynaguri Police Station in West Bengal.
3. In the afternoon of 19.09.2008, at about 4 O�clock, some officials of the respondent No. 1 arrived in the tea garden. The Manager was there. They told the Manager that they would start inspection of the meter and other electrical apparatus installed in the estate immediately. Only their inspection of the meter and the transformer is relevant. These officials forthwith disconnected electric supply. They seized the meter. They found the original service transformer damaged. They found installed another transformer from which electricity was being taken. According to them, the meter was both burnt and damaged.
4. The respondent No. 1 alleged unauthorised use of electricity by the writ petitioner, including theft. In the same evening they lodged a First Information Report with the Maynaguri Police Station.
5. On the very next day, that is, 20th September 2008, a provisional assessment was made. It was a demand on the basis of an attached calculation sheet. The sum claimed was Rs. 9,38,045/-. On that day itself the writ petitioner paid the provisionally assessed sum.
6. The Writ Petitioner filed their objection to the provisional assessment, dated 17th October 2008. They took two points. They said the meter was broken in a �natural calamity�. They also said that from 4th September the existing transformer �went out of order�. �For smooth running� they installed a new transformer. They pleaded not �having any bad intention�.
7. At the hearing of the writ application it was argued by the learned Counsel for the writ petitioner that the provisional assessment was in breach of West Bengal Electricity Regulatory Commission, notification No. 36/W.B.E.R.C. dated 20.09.2007. 4.9 of the above regulations says that when electricity is disconnected for theft (4.2.1.), within a period of 48 hours, the licensee is to serve the reasons to the assessee. He argues that this includes an obligation to give reasons in the provisional assessment.
9. To deal with this argument it is apposite to set out passages from Wade on Administrative Law, Tenth Edition from the chapter Waiver and consent at page 202:
The primary rule is subject to various qualifications. One of these concerns conditions which are merely procedural, but which may nevertheless be mandatory and so affect jurisdiction. Thus where a county court, which for this purpose is analogous to a statutory tribunal, could entertain proceedings against persons residing outside its area only on condition that leave was obtained, it was held that such a person who appeared on the first day as defendant without raising objection could not challenge the court�s jurisdiction on a later day. Although the court held that the question �would come under the head of procedure rather than under the head of jurisdiction�, the condition was probably jurisdictional. In an earlier case of a similar kind Erle, J. had said: �But jurisdiction is sometimes contingent; in such a case, if the defendant does not, by objecting at the proper time, exercise his right of destroying the jurisdiction, he cannot do so afterwards.� This probably reveals the correct principle, that there are some conditions which are jurisdictional only if pleaded at the right time. This confirms, in particular, to the decisions on the rules of natural justice....
Where problems of jurisdiction do not arise, a person entitled to the benefit of some statutory rule or condition may be able to waive the benefit of it....
10. The Supreme Court has enunciated the same principles in The
11. Mr. Sanyal has cited a Supreme Court judgment in
12. The objection to the provisional assessment was filed after nearly a month, that is, 17th October 2008 and in that objection no such ground was taken.
13. As rightly pointed out by Mr. Sanyal, learned Counsel for the respondents that this kind of objection can be waived. When the consumer makes a requisition for reasons after disconnection and they are not furnished, his rights in the assessment proceedings are affected. But if provisional assessment is made on the basis of a calculation chart as in this case and further reasons are not called for by the consumer, it simply means that the consumer does not require the reasons to file his objection to the provisional assessment. The reasons which the regulations contemplate, are for the purpose of establishing prima facie that there is a case for disconnection. A provisional assessment with a Calculation Chart satisfies such requirement, in my opinion, on the basis of the above authorities of the Supreme Court. According to Electricity Act, 2003, disconnection for alleged theft should be immediate followed by provisional assessment. During these stages there is no scope of any Detailed Show Cause and hearings. But the consumer can ask for more details to file his objection, which should be provided by the licensee. This is the harmonious construction I can make of the Act read with the above regulation. If there is nothing in the records to show that there was any grievance about non-providing reasons as it is in this case it is to be presumed by the Court that there was prima facie case for disconnection and that the assessee did not require the reasons to file its reply to such provisional assessment.
14. So this objection is accordingly rejected.
15. Then comes the assessment. It is dated 10.11.2008. It simply says this:
In connection to the above subject, this is to apprise you that the provisional pilferage bill raised vide this office earlier memo No. S.E. & C.M.(JDC)/Bulk/Prov.Bill/III-5/406/2090 dated 20/09/2008 i.r.o. your aforesaid bulk service connection has been carefully examined on the basis of your written representation produced during the reasoned hearing held on 27/10/2008 in this office over the above-cited matter and after examination, we have come to a decision that the said provisional bill may be treated as final one.
16. This is a palpably bad order. There is no description of the case of the parties, no evidence of any application of mind, no discussion, no inference and no reasons. It simply confirms the provisional assessment.
17. The writ petitioner challenged this assessment. It preferred an appeal before the appellate tribunal. I have seen the grounds. Although, it appears that the grounds were drafted by a layman, one important point has been taken i.e. the writ petitioner was not guilty of theft which covers his entire case and which gives the authorities the obligation of providing reasons for confirming this provisional assessment.
18. Then comes the decision of the appellate authority dated 13th January 2009. It is as bad as the order of the Assessing Officer.
19. The appellate authority proceeded by observing that no reasons were available in the final order of assessment. It makes the following observations:
....It cannot be denied that this Final Order of Assessment is "non-speaking", is not a "reasoned order" and does not mention even any major objection/argument which may have been raised by the Appellant and the reasons for rejecting this.
20. Then it holds that if on that ground the assessment order is set aside that would let off the consumer and therefore the appellate tribunal should decide the matter. It further holds that it had no power to remit the matter to the Assessing Officer. The necessary findings are set out hereunder:
But, the statutory provisions provide for an appeal u/s 127 of the Act and the Appellant has filed the instant appeal inter alia challenging the �infirmity� of the aforesaid Final Order of Assessment. This casts a more onerous duty upon the Appellate Authority to ascertain the truth and ensure that justice is done. If the Appellate Authority simply sets aside the Final Order of Assessment on the grounds of the aforesaid �infirmity� and if any offence(s) had really been committed by the Appellant, then this may result in condonation of offence(s) committed by a consumer to the detriment of the interests of other consumers of the Respondent and indirectly encouraging others to commit such offences. On the other hand, the Act and the Regulations do not empower an Appellate Authority u/s 127 of the Act to remit the Final Order of Assessment back to the Learned Assessing Officer, with a direction that a Reasoned Order be passed in the matter.
21. Then it proceeds to decide the matter. The manner of deciding the matter is reflected under the heading �Conclusion�. There the appellate authority bases it�s finding on what apparently the officials of the licensee recorded as having found on inspection. These are the material findings:
The Appellant, thereafter, obtained a 100kVA transformer from Impelco Electric Co.. As stated hereinbefore, the authorized officials of the Respondent found that the said transformer obtained from Impelco Electric Co., without any name plate, had been connected illegally and unauthorisedly to the Respondent�s 11kV distribution system for obtaining electricity. But, it was also found that the said transformer, without any name plate, had been connected to the Respondent�s 11kV distribution system "in connivance with" Sri Anath Chandra Das, Asst. Engineer (O & M) of the Respondent.
22. I need not give reasons for setting aside this order as errors are writ large on its face. There is no doubt in my mind that this appellate authority was deciding with a closed mind. Hence, it made no application of its mind. It has not considered any evidence apart from taking the recordings of the inspection team as correct. It has considered no other materials. No case is established by the licensee if one goes by the order of the appellate authority.
23. For passing my final order on this order of the Appellate Authority the objection of the writ petitioner regarding the jurisdiction of the Assessing Officer is very fundamental. In the case of
24. It has been conceded by Mr. Sanyal that the Assessing Officer in this case was not part of the inspection team.
25. I feel myself bound by this Division Bench judgment as the exact issue was before it and decided by it as above. However, I take notice of the first Explanation to Section 126(6) of the Electricity Act. It is reproduced below:
6....
Explanation. - For the purposes of this section,-
(a) "assessing officer" means an officer of a State Government or Board or licensee, as the case may be, designated as such by the Stat Government;
(b) "unauthorised use of electricity" means the usage of electricity-
(i) by any artificial means; or
(ii) by a means not authorised by the concerned person or authority or licensee; or
(iii) through a tampered meter; or
(iv) for the purpose other than for which the usage of electricity was authorised; or
(v) for the premises or areas other than those for which the supply of electricity was authorised.
26. Now, it well may be the case that none of the members of the inspection team was designated as Assessing Officers. Therefore, if a fresh assessment is to be made and it is found that no member of the inspection team was an Assessing Officer, then no assessment can be made at all.
27. I would not like this kind of a situation to arise because that would amount to the case not being adjudicated at all.
28. For the reason that the Assessing Officer was not part of the inspection team I hold that he had no jurisdiction to make the assessment order and as such the assessment order is a nullity. The assessment has to be made afresh. If none of the members of the inspection team is a designated Assessing Officer the respondent licensee will forthwith take steps with the State Government to designate an Assessing Officer from the Inspection Team at least for this case.
29. Therefore, for the reasons given above, I hold that the purported order of the Appellate Authority is bad for palpable errors on it and also for the reason that the assessment officers had no jurisdiction. So there could be no confirmation by the Appellate Authority of that assessment order which I have held as earlier a nullity.
30. Before parting with this matter I do observe that I have not dealt with the point that the assessment order was passed beyond the time stipulated because as I have held that the assessment order is a nullity there is no need to go into the said question.
31. I have held earlier that the assessment is a nullity. So there is no question of setting aside a null assessment order. But assessment has to be made afresh by a properly constituted Assessing Officer as I have indicated above.
32. I allow the writ partly by directing reconsideration of assessment by the Assessing Officer in accordance with law within a period of 12 weeks from the date of communication of this order. The deposited sum of Rs. 9,38,045/- will abide by the results of the assessment.
33. Liberty to apply to the respondent licensee.
34. Mr. Subir Sanyal learned Counsel for the respondent assessee prays for stay of the operation of this order. I have considered his prayer. To enable the respondent licensee to challenge this judgment and order in appeal, let there be an order of stay of operation of this order within three weeks from date but during operation of they stay, the appellate authority�s order is not to be given effect to.
