GIRISH CHANDRA GUPTA J. - (1.) THIS appeal is directed against an order dated 4th May, 2012 passed by the Learned Trial Court refusing to pass any interim order as regards restoration of supply of electricity. Aggrieved by the order of refusal the petitioners have come up in appeal.
(2.) THE case of the writ petitioners briefly stated is as follows: The writ petitioner No.1 is a sick company and is engaged, inter alia, in manufacturing of forklift vehicle material, material handling equipment and such other business. They have 300 workers. Part of the factory premises is let out for shooting of TV serials etc. The consumption of electricity in the preceding 12 months from the date of incident was for an aggregate sum of Rs.2,00,000.00 approximately. On 18th April, 2012 a surprise inspection was conducted at the factory of the petitioner No.1. During such inspection the petitioner No.1 was allegedly found to have been engaged in unauthorized use of electricity. Supply was disconnected at about 16.20 hours on 18th April, 2012. On 19th April, 2012 the West Bengal State Electricity Distribution Company Limited (hereinafter referred to as W.B.S.E.D.C.L) communicated to the writ petitioner No.1 a provisional assessment for a sum of Rs.2,28,29,694.00. The allegations contained in the letter dated 19th April, 2012 containing the aforesaid provisional assessment are as follows: "Dear Sir, With reference to above, please recall that one inspection was conducted at your industrial premises located at Konchowki, Bhasa, Diamond Harbour Road, P.O.: Bishnupur, Dist.: 24 Pgs (South) by me along with other officials of WBSEDCL on 18.04.2012 jointly with Mr. Asis Kumar Nandi, Manager (Electrical) and Mr. Shyama Prasad Roy, Engineer (Electrical Division) � both of your company. During such joint inspection, it was observed that the electricity of WBSEDCL provided exclusively for industrial purpose was used by your company for commercial purpose by allowing to run nos. of film and TV serial studios within your premises, understandably on rental basis. It was, in fact, elaborately demonstrated to us by Mr. Asis Kumar Nandi, Manager (Electrical) of your company how and by what means you have extended WBSEDCL 's power for using the same for the said commercial purpose. It is however a different issue that after being aware of the consequences of such act on your part, which is a dishonest commission of unauthorized use of WBSEDCL 's power as per provision of Section 135 of the Electricity Act, 2002, Mr. Nandi completely denied the fact for obvious reason with the untrue claim that the said studios were being run through DG set. As per provision of Section 135 of the Electricity (Amendment) Act, 2007 read with Electricity Act, 2003, your power supply was disconnected on 18.04.2012 at around 16:20 Hrs. and one FIR was lodged against such dishonest act at Bishnupur Police Station on 18.04.2012 with submission of seized article having case no.301 dated 18.04.2012. Provisional Assessment under Sub-section (1) of Section 126 of the Electricity (Amendment) Act, 2007 read with Electricity Act, 2003 has been made by me being the assessing officer and is enclosed with the assessment memo no.SEC/BULK- 399/1/04/2012/SUPP/2011)/229 dated 18.04.2012 with this order of provisional assessment. The amount of provisional assessment has come to Rs.2,28,29,694.00 (Rupees two crore twenty eight lakh twenty nine thousand six hundred and ninety four only) calculated in line with the provision of Sub-section (1) of Section 126 of the Electricity Act, 2003. If you are not satisfied with the instant order for provisional assessment, you are at liberty as per clause 5.3 of regulation 36/WBERC of the Hon 'ble WBERC to submit your written objection against the provisional assessment with me being the assessing officer within fifteen days from the date of receipt of this order of provisional assessment, on receipt of which, I being the assessing officer shall hear you and pass a final order as per provision of Clause 5.4 of regulation 36/WBERC of the Hon 'ble WBERC. This is for your information and necessary action please. " The writ petitioners on 19th April, 2012 had also written to the aforesaid W. B. S. E. D. C. L. alleging, inter alia, as follows: "Dear Sir, Sub: Disconnection of our Line for Meter No.WBBB1561 And Consumer NO.D11399 at Knochowki Bhasa, South 24 pgs. This is to bring to your kind notice that we are a Forklift Manufacturing Company and we are having Industrial Electric connection with connected load of 260KVA. We have deposited all Security Deposit and other charges as per your requirement. Surprisingly, yesterday a Team from your Office had visited our Factory premises without any intimation to us and after inspection carried away one light fitting used for Film Shooting. During the discussion they had enquired about the Film Shooting which was taking place in our premises and were explained to their satisfaction. Nevertheless, we find that our line has been disconnected without any Notice, which is illegal, unjustified and arbitrarily. Our Unit which has got more than 300 employees are suffering irreparable loss for your above disconnection. Ours is a Unit under BIFR and as per advise of Operating Agency, we are using the surplus area covered and opened for generation of additional revenue, and occasionally allow Film Producers/T.V. Serial Producers to avail facilities and infrastructure and we do not find anything illegal or in violation of Electric Rules or Act. Still, if any compliance is required, we are always ready for the same. You are requested to restore our line immediately to enable us to restart our production, else, we will have to declare a Lock-out in the Factory for which you will be responsible. We repeat, to make any compliance including payment of any additional charges/differential charges as per Law/Rules to your organization. We hope you will cooperate in the matter by restoring the electricity immediately, else, we will be compelled to take legal action as will be advised for the end of justice. "
(3.) CHALLENGING the aforesaid act of disconnection of supply of electricity and the provisional assessment including lodging of the FIR, the writ petition bearing No.8719 (W) of 2012 was filed, praying inter alia, for a declaration that the provisions of Sections 126 and 135 of the Electricity Act, 2003 (hereinafter referred to as the Act) are unconstitutional; revocation of the provisional assessment dated 19th April, 2012; revocation of the FIR and all connected activities including seizure; restoration of supply of electricity and further and other incidental reliefs.;