1. At the time of hearing of the application for stay of the order impugned, we have heard out the appeal itself by treating it as on day''s list as the appeal can be disposed of on pure questions of law.
2. This appeal is at the instance of Calcutta Electric Supply Corporation Ltd (CESC) and is directed against an order dated 3rd November, 2010 passed by a learned Single Judge of this Court during annual vacation by which His Lordship directed restoration of supply of electricity in favour of the writ-Petitioners within 48 hours of depositing a sum of Rs. 3,00,000/- without prejudice to the rights and contentions of the parties.
3. His Lordship further directed that the application should be listed on 9th November, 2010 before regular Bench when further interim orders might be prayed for.
4. Being dissatisfied, the CESC has come up with the present mandamus appeal.
5. It appears from record that on the allegation of pilferage of electricity the electric connection of the writ Petitioners was disconnected and subsequently, a proceeding was initiated for assessment of the unauthorized user of electricity. Initially, a preliminary order was passed directing the writ-Petitioners to pay a sum of Rs. 11,00,000/- and odd. Subsequently, after giving notice to show cause and after hearing the writ Petitioners, the appropriate authority passed an order of final assessment thereby directing the writ-Petitioners to pay a sum of Rs. 11,49,024/-.
6. It appears that the writ Petitioners did not prefer any appeal before the appellate authority within the period of limitation prescribed by law and after the expiry of the period of limitation, decided to move writ-application and consequently, a notice was given to the CESC authority indicating that the writ-application would be moved before the vacation Bench on 28th October, 2010.
7. On 28th October, 2010 the matter did not appear in the list nor did the writ-Petitioners move the said application.
8. However, on the next date of sitting of Vacation Bench, namely, 1st November, 2010, the matter appeared in the list as item No. 107, but on that day also the matter was not moved.
9. On the next date, namely, 3rd November, 2010, the matter again appeared as item No. 107 and it appears that the matter was mentioned before the Vacation Bench for taking out of turn without giving notice to the learned Advocate for the CESC that the said matter would be moved on 3rd November, 2010 and not on the date earlier indicated in the notice and that too on mentioning.
10. Consequently, when the matter was called, nobody appeared for CESC and the learned Single Judge by the order impugned in this appeal passed direction for restoration of electricity by way of interim measure on deposit of Rs. 3,00,000/-.
11. It appears from the order impugned that His Lordship in the order impugned himself recorded that the amount of Rs. 3,00,000/- produced before His Lordship by way of pay order was not sufficient for reconnection and further amount should be put in. After recording such opinion, His Lordship, however, passed the order impugned.
12. After hearing the learned Counsel for the parties and after going through the aforesaid materials on record, we are of the view that apart from the aforesaid illegalities committed by the writ-Petitioners in obtaining the interim order by giving wrong information about the moving of application, His Lordship should not have entertained the writ application at all in view of the fact that efficacious alternative remedy prescribed under law had become barred and there is no provision of even condonation of delay for preferring any appeal against such order of final assessment.
13. As pointed out by the Supreme Court in the case of
14. On the above ground alone the order impugned is liable to be set aside. In view of our aforesaid observation, nothing remains in the writ-application and we consequently dismiss the writ-application itself as not maintainable.
15. The order impugned is consequently set aside. The amount of Rs. 3,00,000/- deposited by the writ Petitioners pursuant to the order impugned, however, should be appropriated by the CESC authority and the same should be adjusted for the purpose of realisation of the balance amount.
16. The appeal is, thus, disposed of with the aforesaid observation.
17. In view of disposal of the appeal itself, the connected application being CAN 9502 of 2010 has become infructuous and the same is disposed of accordingly.
18. Xerox certified copies of this order, if applied for, be given to the parties within a week from the date of making of such application upon compliance of all requisite formalities.
Sambuddha Chakarbarty, J.
I agree.
