In R.V.W.O. No.7 of 2022-CAL HC- Liability under Sections 126 and 135 of Electricity Act, 2003 is not restricted to consumer only but any person who is liable for theft of electricity: Calcutta HC Justice Sabyasachi Bhattacharyya [28-06-2022]

Read Order: Pearl Corporation v. Calcutta Electric Supply Company Ltd. and others 

Tulip Kanth

Ahmedabad, June 29, 2022: The Calcutta High Court has recently dismissed a Review Application pertaining  to the Electricity Act, 2003, after observing that the application did not satisfy the tests of review as laid down in Order XLVII of the Code of Civil Procedure.

While considering the plea of CESC Limited  that the consumer had entrusted electrical work on the petitioner and the theft committed by the petitioner was beyond the authority given by the consumer to the petitioner, the Bench of Justice Sabyasachi Bhattacharyya said, “The entire tenor of Sections 126 and 135 clearly reveal that the liability under the said provisions is not restricted to the consumer only but any person who is liable for the theft.”

The application in question was filed by the writ petitioner for review of an order whereby the writ petition was dismissed without costs. Insofar as the ground taken in the review application was concerned, to the effect that proceedings under Section 126 or Section 135 of the 2003 Act can be initiated only against the consumer who tampered the meter or allowed tampering of the meter, the Bench held that such contention was also being made for the first time in the review application. In any event, the said submission had no reasonable basis, since Section 126(4) provides that “any person” served with the order of provisional assessment may accept such assessment and deposit the assessed amount with the licensee, opined the Bench.

The review applicant next contended that it had been erroneously recorded in the order that the service cut-out of the CESC Limited was located at the petitioner’s premises, whereas the petitioner had no existence in respect of the subject premises and was not a consumer but a stranger.On this ground, the Bench affirmed that although such observation did appear in the order under review, but the same did not have a direct bearing on the outcome of the writ petition since, under the purview of Section 126, any person in occupation, possession or in charge of the location may be served with an order of provisional assessment.

With respect to the excuse for non-filing of a statutory appeal, the Bench opined that the allegation of the petitioner that the final order of assessment was never served and the petitioner for the first time came to know about the final order after receiving the Affidavit-in-Opposition on March 23, 2021did not hold water in view of the observations made in the order under review itself.  It was clearly recorded in the said order that it was evident that the petitioner’s agent confirmed full and final acceptance of the order of provisional assessment under Section 126 of the 2003 Ac and hence, the final order of assessment was rendered only an empty formality.

The Bench also added that  the option of filing a challenge under Section 127 could be exercised by the petitioner even after purportedly learning of the final order from the affidavit-in-opposition.Thus, as  no discovery of new matter, error apparent on the face of the record (for discovering which a detailed hearing and/or re- appreciation of evidence is not necessary) and/or anything akin to the above reasons had been made out by the review applicant, the Bench dismissed the application for review.