REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.                      OF 2008

(Arising out of SLP (C) No. 6618 of 2007)

The Chairman, West Bengal State Electricity  Board & Ors.    ....

Appellants

Versus

Syed Mukbul Hossain & Ors. ....Respondents  

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of a Division Bench of the

Calcutta  High  Court  disposing  of  the  writ  petition,  the  appeal  and  the

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application filed with certain modifications.  On the allegations that there

was insertion of a variant  element  in the  meter  to bye pass recording of

actual consumption, First Information Report was lodged by the personnel

of the appellant-Board.  Provisional assessment was made. Thereafter there

was disconnection of electricity supply. A writ application was filed by the

respondent No.1 making grievance that the disconnection of the supply was

wrongly  done  and  the  provisional  assessment  as  made  claiming

Rs.2,50,046/- on the alleged ground of theft of electricity and/or tempering

of the meter was not sustainable.

Learned  Single  judge  of  the  Calcutta  High  Court  disposed  of  the

matter in Writ Petition No.2029 (W) of 2006 whereby and whereunder the

appellants  were  directed  to  restore  electrical  supply  on  deposit  of

Rs.20,000/- by the writ petitioners. Appellants questioned correctness of the

order on the ground that the disconnection of supply line was effected on

24.1.2006 in terms of the Regulation 5.2.1 of the West Bengal Electricity

Regulatory  Commission  (Electricity  Supply  Code)  Regulation  2004

(hereinafter referred to as the ‘Supply Code’). The Division Bench referred

to  Regulation  5.2  and  observed  that  the  appellants  have  got  right  to

disconnect  supply  line  of  electricity  on  fulfillment  of  the  conditions

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stipulated.  But  the  same  is  required  to  be  done  following  a  particular

procedure.  It was held that due procedure was not followed.  The Division

Bench held that under Section 126 of the concerned Electricity Act, 2003

the writ petitioner had a right of filing an objection thereof which has been

filed  by  the  writ  petitioner  under  Section  126(3).   The  appellants  are

required to pass a final order after giving a reasonable opportunity of being

heard.  The writ petitioner also has a right to prefer an appeal under Section

127  of  the  Act  against  the  final  assessment  order.  The  Division  Bench,

therefore, permitted the parties to pursue the remedy.  It was, however, held

that the disconnection of power supply was contrary to and was in breach of

regulation  5.2  and  the  writ  petitioner  was,  therefore,  entitled  to  be

compensated. Accordingly  the cost of Rs.25,000/- was imposed.   

3. Learned counsel for the appellant Board submitted that approach of

the High Court is clearly erroneous. Admittedly, objection has been filed.  It

was noticed that no order on merits could have been passed.  By order dated

11.08.2008 final assessment was directed to be done.

4. Learned  counsel  for  the  appellant  has  further  submitted  that  the

respondents has suppressed the fact that much before the order was passed

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by this Court, the final assessment has been made by order dated 27.9.2007

and the statutory appeal which was required to be done within 30 days was

not  filed  within  the  said  period  and,  therefore,  the  appeal,  if  any,  filed

subsequently is of no consequence.

5. Learned counsel  for  the respondents,  on  the  other  hand,  submitted

that  the High Court  has  taken note  of  the  factual  scenario and the legal

principles  applicable.  The final  assessment in  any event  is  the  subject  to

challenge.  Since the final assessment has been challenged, we feel interest

of justice would be best served if the same is disposed of in accordance with

law.  It is open to appellant-Board and its functionaries to highlight before

the concerned authority as to the maintainability of the appeal on the ground

of  alleged  delay.   It  is  needless  to  say  that  the  said  aspect  shall  be

considered  by  the  appellate  authority.  Let  the  appeal  be  disposed  of  in

accordance with law without being influenced by any of the observations

made by the High Court in the impugned order and by learned Single Judge.

The direction for costs is set aside.  The interim order dated 20.4.2007 shall

continue  till  disposal  of  the  appeal.  We make it  clear  that  we have  not

expressed any opinion on merits because of the interim protection.

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6. The appeal is disposed of accordingly.  No costs.

    ……………..…………………..J.  (Dr. ARIJIT PASAYAT)

…………………………………..J. (Dr. MUKUNDAKAM SHARMA)

New Delhi, December 8, 2008

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