Jayanta Kumar Biswas, J.@mdashThe 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, u/s 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 u/s 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 u/s 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.
4. The Single Bench decision of this Court in Lohia Mandilia & Ors. vs. CESC & Ors., 2003 (2) CHN 215, was given dealing with the conditions of supply under the Indian Electricity Act, 1910. Mr. Sengupta has rightly submitted that nothing in the decision is applicable to the present case initiated under the Electricity Act, 2003, section 126, that itself empowers the State Government to designate an officer of a licensee as an assessing officer. It is to be noted that constitutional validity of the provisions of section 126 has not been raised in this case.
5. All this lead to the question whether this is a fit case where the High Court should interfere with the order of provisional assessment under Article 226.
6. Basic argument assailing the order is that the assessing officer, though was under an obligation to come to a conclusion that there was unauthorized use of electricity, made the order without coming to such a conclusion. It is evident from the order that the assessing officer proceeded on the basis that the inspection revealed theft of electricity, inter alia, by tampering with the meter box. Using electricity through a tampered meter amounts to unauthorized use of electricity, as will be evident from the provisions of sections 126 and 135 of the Act. Hence I am of the view that this is not correct to say that without recording his opinion the assessing officer passed the order.
7. It is another matter whether the petitioner is actually guilty of theft of electricity (unauthorized use of electricity, for that matter). The licensee has made the allegation and on the basis of the allegation the assessing officer initiated the section 126 proceedings and made the order of provisional assessment in the discharge of his statutory duties. It is for the licensee to give evidence in proof of the allegation it made, and the petitioner will be free to give evidence in proof of its case, if any. The question whether there was at all a theft in my opinion, is not to be adjudicated by the High Court under Article 226.
8. Simply because until October 2, 2010 when certain defects in the supply system detected by the licensee were removed by it by replacing certain devices the licensee did not make an allegation of theft of electricity by the petitioner, in my view, one cannot proceed to conclude that an allegation of theft of electricity could not be made on January 12, 2011. Theft is essentially a pure question of fact and an allegation to that effect is to be established by giving evidence in support thereof. Failure to detect the alleged theft before January 12, 2011 cannot automatically lead to the conclusion that there could not be any theft of electricity by the petitioner before that date.
9. It is not correct either to say that in view of the provisions of sub-section (5) of section 126 the assessing officer could not make the provisional assessment taking into account any period beyond twelve months from the date of detection of the alleged theft. The limit of twelve months applies only to a case when the assessing officer is unable to ascertain the actual period.
10. Here it is not the case (as will be evident from the order of provisional assessment) that the assessing officer was facing difficulty in ascertaining the period during which the alleged theft of electricity took place. According to him, the theft took place from April 2008. He was, therefore, authorized to calculate the provisional liability for the entire period. Hence it cannot be said that the order is evidently illegal. The supply can be reconnected on payment of the assessed amount, and this is so because of the provisions of section 135 of the Act and Reg. 6 of the West Bengal Electricity Regulatory Commission (Electricity Supply Code) Regulations, 2007. Question of reconnection cannot arise unless the whole of the assessed amount is paid. Hence power under Article 226 cannot be exercised to pass an order directing unconditional reconnection or reconnection on payment of a part of the assessed amount. An order giving such a direction will be contrary to law.
For these reasons, the petition is dismissed. No costs. Certified xerox.
