Holding

The appeal is maintainable for consideration on its merits, and the direction for costs against the Board is set aside.

Summary

The West Bengal State Electricity Board alleged that a consumer had tampered with an electricity meter to evade payment, leading to a provisional assessment and disconnection of supply under Regulation 5.2.1 of the West Bengal Electricity Supply Code. The consumer filed a writ petition challenging the disconnection and provisional assessment; the Calcutta High Court held the disconnection breached the Supply Code and imposed Rs.25,000 costs on the Board. The Board later made a final assessment and filed a statutory appeal under Section 127 of the Electricity Act, 2003, but the appeal was filed beyond the 30‑day limitation period. The Supreme Court examined whether the appeal was maintainable despite the delay and held that the final assessment remains challengeable and the appeal should be disposed of on its merits, leaving it to the Board to raise the delay issue before the appellate authority. Consequently, the Court set aside the High Court’s cost order and disposed of the appeal without costs.

Issues considered

The statutory appeal under Section 127 of the Electricity Act, 2003 was filed after the prescribed limitation period; is it maintainable?
Whether the High Court was correct in directing the Board to pay costs for the alleged breach of Regulation 5.2.
Whether the disconnection of electricity supply complied with Regulation 5.2.1 of the West Bengal Electricity Supply Code.

Legislation cited

Electricity Act, 2003s. 126, s. 127

Subjects

Theft of electricityMeter tamperingProvisional assessmentDisconnection of supplyStatutory appealLimitation periodElectricity Act 2003Supply CodeInterest of justice

Judgment

[2008] 17 S.C.R. 211

THE CHAIRMAN, A
-t- WEST BENGAL STATE ELECTRICITY BOARD & ORS.
II.
SYED MUKBUL HOSSAIN & ORS.
(Civil Appeal No. 7166 of 2008)
B
DECEMBER 8, 2008
[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM
-~ SHARMA, JJ.]

Electricity Act, 2003 - ss. 126 and 127 - Theft of electricity c
- Tampering of meter- Disconnection of supply by Electricity
Board after provisional assessment - High Court held the
disconnection of supply was in breach of regn.5.2 of Supply
Code and imposed costs on Electricity Board - Meanwhile
final assessment made by Electricity board - Statutory D
appeal challenging the same filed after limitation period -
Maintainability of - Held: Interest of justice would be best
served if challenge to the final assessment is disposed of in
accordance with law - It is however open to Electricity Board
and its functionaries to highlight before the appellate authority
E
as to maintainability of the appeal on ground of alleged delay
- West Bengal Electricity Regulatory Commission (Electricity
Supply Code) Regulation 2004 - Regn.5.2.1.
>
On ~he allegations that there was insertion of a variant
element in the electricity meter to bye pass recording of F
.t. actual consumption, FIR was lodged by the Appellant-
Board against accused-respondent no.1. Provisional
assessment was made and thereafter there was
disconnection of electricity supply in terms of the
Regulation 5.2.1 of the West Bengal Electricity Regulatory G
Commiss_ion (Electricity: Supply Code) Regulation 2004.

'-f Respondent No.1 filed writ petition. The High Court
while permifting the parties to pursue the available
remedies of filing objection u/s.126(3) of the concerned
211 H
'

l
212 SUPREME COURT REPORTS [2008] 17 S.C.R.

A Elec_tricity Act, 2003 (which was already filed by
respondent no.1) and the right to prefer appeal u/s.127
of the said Act, held the disconnection of power supply
was in breach of regn.5.2 of the said Supply Code and
accordingly imposed costs of Rs.25,000/- on the
8 appellant-Board.
Meanwhile final assessment was made by the
appellant-board. Statutory appeal challenging the same
was filed after limitation period. Maintainability of the j-
s~tutory appeal was challenged in the present appeal.
c
Disposing of. the appeal, the Court
HELD: Since the final assessment is in any event the
subject of challenge, interest of justice would be best
served if the challenge is disposed of in accordance with
D law. It is however open to appellant-Board and its
functionar.ies to highlight before the concerned appellate
authority as to the maintainability of the appeal on the
ground of alleged delay. The direction for costs is set
aside. [Para 5) (214-D-E-G]
E
CIVIL AP PELLATE JURISDICTION : Civil Appeal. No.
7166 of 2008. '

From the Judgment and Order dated 2.2.2007 of the High
Court of Calcutta at Calcutta in F.M.A. No. 823 of 2006 in
F C.A.N. No. 4482 of 2006.
Dipak Bhattacharaya and Saurabh Mishra for the -+' ·.
Appellants.
Anand, D. Bharat Kumar, Azim H. Laskar and Abhijit
G Sengupta for the Respondents.
The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J. 1. Leave granted.
2. Challenge in this appeal is to the judgment of a Division
H
CHAIRMAN, WEST BENGAL STATE ELE. BOARD & ORS. v. 213
SYED MUKBUL HOSSAIN & ORS. [DR. ARIJIT PASAYAT, J.]

Bench of the Calcutta High Court disposing of the writ petition, A
-+ the appeal and the 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 B
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 c
meter was not sustainable.
Learned Single judge of the Calcutta High Court disposed
of the matter in Writ Petition No.2029 0N) of 2006 whereby and
whereunder the appellants were directed to restore electrical
supply on deposit of Rs.20,000/- by the writ petitioners. D
Appellants questioned correctness of the order on the ground
that the disconnection of supply line was effected on 24.1.2006
•"fl
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 E
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 stipulated. But the same
is required to be done following a particular procedure. It was
hel~ that due procedure was not followed. The Division Bench F
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 G
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
H

''
214 SUPREME COURT REPORTS [2008] 17 S.C.R. e
A 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
B
could have been passed. By order dated 11.08.2008 final
assessmen_! was directed to be. done.

4. Learned counsel for the appellant has further submitted
that the respondents has suppressed the fact that much before t
c the order was passed 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.
D 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
E 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 grourtd of alleged delay.
It is needless to say that the said aspect shall be considered
F 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
G disposal of the appeal. We make it clear that we have not
expressed any opinion on merits because of the interim
protection.
y
6. The appeal is disposed of accordingly. No costs.

H B.B.B. Appeal disposed of.