R. Subhash Reddy, J. - (1.) Leave granted.
(2.) This civil appeal is filed by the appellant- West Bengal State Electricity Distribution Company Limited and others, aggrieved by the judgment and order dated 18.12.2017 passed by the High Court of Calcutta in F.M.A. No.520 of 2017 and the corrected order dated 07.02.2018. By the impugned order, the intra Court appeal preferred by the respondent company was allowed by the Division Bench of High Court.
(3.) Necessary facts, in brief, are as under: (a) The 1st respondent herein is the consumer of electricity from the appellant- West Bengal State Electricity Distribution Company Limited & Ors. There is a supply agreement entered into between the parties on 22.12.2004. The officials of the appellant company served a notice dated 28.10.2016 upon the 1st respondent, in exercise of power under Class IV of the West Bengal Electricity Regulatory Commission Electricity Supply Code, 2007 for conducting an inspection in the metering system of the respondent. The respondent-company is a centralized bulk high voltage consumer of electricity in the Hooghly region, with a contracted load of 1450 KVA. After service of notice on the 1st respondent on 28.10.2016, inspection was made by the Superintending Engineer, Divisional Engineer, Divisional Engineer (Manager), Assistant Engineer of Chandanangore Division, in the premises of the respondent herein. (b) During the inspection, it was noticed by the inspecting team that input current is abnormally high from output current at TTB end in respect of the R & B Phase of PT secondary wires. The inspecting team on breaking open the TTB has also found some foreign material inside. In view of such discrepancies found during the inspection, the inspection team was of the view that there was a theft of energy by tampering the meter by the respondent-company. The three-phase meter and the metering equipment was seized by the inspecting team by preparing a seizure list. In view of such discrepancies noticed during inspection, in exercise of power under Section 126(1) of the Electricity Act, 2003 (for short 'the Act'), provisional assessment for loss of energy by un-metered consumption was made by one Mr. B. Saha, Superintending Engineer/Assessing Officer of the appellant-company. The provisional assessment was made assessing the value of energy which was consumed on account of un-metered consumption at Rs.13,41,17,482-30 paise (Rupees thirteen crores forty one lakhs seventeen thousand four hundred and eighty two only). (c) After inspection, a criminal complaint was also lodged before the local police by the Superintending Engineer (Commercial), Hooghly region, of the appellant company, complaining theft of energy by the respondent. In the complaint made by the appellant, it was alleged that by inserting a foreign material into the meter, the respondent-company has indulged in theft of energy.(d) On the basis of criminal complaint made by the Superintending Engineer (Commercial), a criminal case has been registered against the respondent-company and the police have submitted a charge-sheet in the criminal case.(e) Aggrieved by the provisional assessment and the consequential demand, the respondents have filed writ petition in W.P. No.30449(W) of 2016 before the High Court, questioning the jurisdiction of the Assessing Officer in issuing the provisional assessment and the consequential demand for a sum of Rs.13,41,17,482-30 paise. In the writ petition, one of the grounds was that the Assessing Officer, who prepared the provisional assessment, not being a party to the inspection team, had no authority to make the provisional assessment under Section 126(1) of the Act. In the writ petition, it was alleged that provisional assessment made was not in accordance with Section 126(1) of the Act, as such, such assessment cannot be given effect to.(f) Learned single Judge of the High Court, on the ground that the appellant-Distribution Company has not produced any material to show that the Assessing Officer was part of the inspection team, has held that assessment and consequential demand made in the provisional assessment proceedings was not in accordance with Section 126(1) of the Act and quashed the same. While allowing the writ petition, the learned single Judge has directed the State Government to appoint any member of the inspection team as an Assessing Officer to make fresh assessment.(g) Aggrieved by the order of the learned single Judge dated 15.12.2016, the respondent-writ petitioners have filed intra Court appeal before the High Court. Following the directions, as contained in the order passed by the learned single Judge, it appears, a Member of the inspection team was appointed as an Assessing Officer by the State Government and the said officer has provisionally assessed the value of un-metered consumption of electricity and also made final assessment after giving opportunity for filing objections.(h) The fresh assessment order, which is made in compliance of directions issued by the learned single Judge, is also questioned in the pending appeal by filing an interlocutory application by the respondents. In view of the said interlocutory application, the Division Bench of the High Court has allowed such application permitting the respondents to challenge the fresh assessment made pursuant to directions issued by the learned single Judge, and passed the impugned order allowing the appeal preferred by the respondents.(i) In the intra Court appeal, before the Division Bench, the respondents have raised a ground that two parallel proceedings i.e. the criminal complaint before the Competent Court and also assessment proceedings under Section 126(1) of the Act cannot go simultaneously. Precisely, it was the case of the respondents that once a complaint is filed, alleging theft of energy under Section 135(1)(a) of the Act, no assessment is permissible under Section 126(1) of the Act.(j) Before the High Court, it appears that respondents have also pleaded that the civil liability, if any, of the respondents can be determined only under sub-section (5) of Section 154 of the Act. While considering the scope of Sections 154, 135(1)(a) and 126 of the Act, the High Court has held that when a criminal complaint is lodged alleging theft of energy by the consumer and when supply of electricity is disconnected on account of such offence alleged, only in cases where restoration of supply is sought by the consumer, agreeing to deposit the assessed amount of un-metered consumption, provisional assessment can be made under Section 126 of the Act. The High Court has drawn a distinction to exercise power under Section 126(1) of the Act, in cases where consumer seeks restoration of supply after disconnection and in cases where restoration of supply is not sought for. The High Court has held that only in cases where restoration is sought after disconnection, authorities can resort to make assessment under Section 126(1) of the Act, otherwise, the civil liability can be determined by Special Court only by following the procedure under sub-section (5) of Section 154 of the Act.;