- (1.) This appeal is directed against a judgment and order dated 19th June, 2008 passed by brother Dipankar Dutta J holding that the assessment under Section 126 of the Indian Electricity Act, 2003 suffered from procedural ultra vires and was accordingly quashed. The C. E. S. C. Ltd., was directed to restore supply of electricity within 48 hours without demanding any charges.
(2.) Mr. Mitra, Learned Advocate General appearing on behalf of the appellant submitted that the only issue which he is likely to press is a question of law as to "whether presence of the Assessing Officer at the time of inspection under Section 126 of the Indian Electricity Act, 2003 is mandatory?" In the case of Hasi Mazumdar & Anr. vs.- The West Bengal State Electricity Board & Ors., 2006 AIR(Cal) 59, he submitted, that one of us held that the presence of the Assessing Officer at the time of inspection was mandatory without disclosing any reasons. He also submitted that a Division Bench of this Court also took the same view in the case of Narayan Chandra Kundu vs.- State of West Bengal & Ors., 2007 AIR(Cal) 298. According to him, the Division Bench also did not assign any reasons for the aforesaid view expressed therein. He contended that in the case of Reliance Energy Ltd., & Ors. vs.- Chief Engineer (Electrical) P.W.D. Dept. & Anr., 2006 6 MhLJ 479 a Division Bench of the Bombay High Court took the view that the Assessing Officer need not be personally present at the time of inspection and that he can rely on the record of the inspection carried out by an officer authorized under Section 135 (2) of the Indian Electricity Act for the purpose of making an assessment. Mr. Mitra contended that the view expressed by the Bombay High Court is based on reason and should, therefore, be accepted. He also drew our attention to a judgment by a learned Single Judge of this Court in the case of CESC Ltd. vs.- Deputy Chief Engineer, Customer Relation Management Cell & Appellate Authority,2011 1 CalLJ 622, wherein the learned Single Judge has discussed the reasons why presence of the Assessing Officer at the time of inspection is not necessary. Mr. Mitra therefore, contended that the views expressed by the Bombay High Court and the learned Single Judge in the aforesaid judgments should be upheld by this Court. Mr. Mitra submitted a written notes of argument and wanted us to incorporate the same in our judgment so that the submissions made by him continue to remain on the record. We find no reason why we should hesitate in reproducing the written notes submitted by him both in the form of a C.D. and in a hardcopy. The contents of his written notes appearing from the C.D. are as follows: "Q. Whether the assessing officer u/s 126 of Electricity Act, 2003 must personally inspect the premises, equipments/ devices and records of the consumer for making provisional assessment u/s126? SUBMISSION:-
(3.) The answer should be in the negative as held by the High Court at Bombay and the Hon'ble Justice Jyotirmoy Bhattacharyya. REASONS:- 1. 3 alternative courses are laid down u/s 126 of the Electricity Act, 2003 to be followed for provisional Assessment. Any one of them may be adopted by the Assessing Officer for making provisional best judgement amassment. 2. "Or" in section 126(1) is disjunctive. This has not been considered by our High Court in two earlier judgments, but has been duly considered by Hon'ble Justice Jyotirmoy Bhattacharya. 3. Section 126 should be interpreted having in mind the possibility of the Assessing Officer being different from the officer designated u/s135. This aspect was not required to be borne in mind by Division Bench as the Assessing Officer and the Officer under section 135 was the same judgement of the Division Bench is not apposite in this case where those two Officers were different persons. Officer u/s126 did not have powers u/s 135. 4. Absurd consequences would follow if the word "Or" is read as conjunctive: (a) All these courses will no longer be alternative and each of them have to be followed by the Assessing Officer. (b) The assessing officer, not having been conferred power u/s 135, would become unable to make provisional assessment u/s 126. (c) The Assessing Officer passing provisional assessment order on the basis of inspection personally carried out by him of the premise the devices would become liable for examination by the consumer. He will be Judge as also the witness an absurd situation. (d) The Assessing Officer has quasi-judicial functions to be discharged upon hearing the consumer. If he is made busy with travelling from place to place for making inspection, it will not be possible for him to give hearing to consumers and hear their objections. 1997(1) SCC 146 absurdity to be avoided. 5. Court would not supply word in a statute. Court would not add the words "by the Assessing Officer" at the end of the three alternative courses mentioned in section 126. Had the legislative intent been that the Assessing Officer must him self inspect the premises, equipments and records, the Legislature would have said so in section 126 of the Act. Similarly, if the Legislature intended that records of any person would mean records of consumer only, section 126 would have said so expressly. In this connection, reference is made to the judgements of the Hon'ble Supreme Court reported in AIR 2005 SC 294 paras 8 to 23 and AIR 1969 SC 493 at page 495. 6. Reasonings of Bombay High Court:- (I) Persons who carried out inspection and submitted report, on the basis whereof the provisional assessment order is made, should be made available to the consumer for testing genuineness of evidence and/or report (II) It is open to the state Government to authorize any persons other than the assessing officer to carry out inspection in terms of Section 135(2) This has so happened in the instant case. (III) Evidentiary value of report by an officer authorized Under Section 135(2) will have to be proved by the generating company by allowing such authorized officer to be examined by the assessee. (IV) It is possible to read in to Section 126 that inspection carried out by an officer authorized officer by the state Government under section 135(2) can be the basis of provisional assessment under section 126(1) of this Act. 7. Reasonings of Hon'ble Justice Jyotirmoy Bhattacharya,2011 1 CalLJ 622. (a) records maintained by any person used in Section 126(1) means/includes officer Under Section 135(2). (b) "Or" is disjunctive. (c) 3 alternative modes of provisional assessment. (d) There should be conjoint reading of section 126 and 135. We humbly adopt the reasonings of the Hon'ble Justice Jyotirmoy Bhattacharya as part of our argument. 8. Judgement of Division Bench reported in A.I.R. 2007 Cal-298:- The question raised was whether it should be presumed that proceedings for assessment have been vitiated for the reason that prosecutor under section 135 was the assessing officer under section 126- (para 10). This question does not arise in the instant case. Para 13- "............ we find that the Legislature intended that the assessing officer must be a person who was a member of inspection team at the time of detection of pilferage or unauthorized use of Electricity so that he can pass the order of assessment not on the basis of papers placed before him but after actually visiting the site at the time of detection of illegality". The above conclusion is not supported by any reason. Division Bench was dealing with the question of violation of natural justice- no body will be the judge of his own cause. Division Bench answered the question by giving to reasons-(I) objections of the consumer will be considered and dealt with in the order of final assessment and (II) appeal will lie against the order of assessment made by the Assessing Officer. 9. A.I.R. 2006 Cal-59- Single Bench. It was not contended by the consumer that assessing officer must be present at the time of inspection and if not so present, the order or assessment would be bad. (see para-8 recording arguments of consumer's counsel). Accordingly the counsel for WBSEB did not make any submission on this aspect (see para-8 to 17 recording submission of the counsel of WBSEB). The Hon'ble Judge, however, recorded a conclusion that "the assessment can be made only by the person who has seen the extent of unauthorized use. Based on his personal observation he has been authorized to assess the quantity of unauthorized consumption and to assess the amount payable..................." (para 18). It is humbly submitted that no reason for this conclusion has been given. The assessment has vitiated because it was the judgment of the person who had issued the guideline- para19. 10. To construe the Section 126 otherwise would make section 126 vulnerable to constitutional invalidity. It would mean:- (I) The assessing officer must make assessment on his personal inspection and knowledge. (II) By his final order, he will support his personal views. (III) The consumer would have no opportunity to examine and test the personal knowledge and the view based thereon by the Assessing Officer. (IV) The Assessing Officer is entitled to act on the basis of personal knowledge without giving reasonable opportunity to challenge the same.;