Calcutta High Court
Cesc Ltd vs Md Ali And Ors on 15 July, 2025
Author: Tapabrata Chakraborty
Bench: Tapabrata Chakraborty
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OD-2
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
APOT/120/2025
WITH
WPO/122/2025
IA NO: GA/1/2025, GA/2/2025.
CESC LTD
VS
MD ALI AND ORS
BEFORE:
THE HON'BLE JUSTICE TAPABRATA CHAKRABORTY
AND
THE HON'BLE JUSTICE REETOBROTO KUMAR MITRA
Date: 15th July, 2025.
APPEARANCE:
Mr. Subir Sanyal, Sr. Adv.
Mr. Debanjan Mukherjee, Adv.
Mr. Somnath Bose, Adv.
...for the appellant.
Mr. Prasenjit Mukherjee, Adv.
Md. Shakir, Adv.
Mr. Jahangir Hossain, Adv.
Ms. Babita Pramanik, Adv.
...for the respondents.
1. The present appeal has been preferred by Calcutta Electric Supply
Corporation Limited (hereinafter referred to as CESC) challenging an
order dated 23rd April, 2025 passed by learned Single Judge in the writ
petition being WPO/122/2025. By the said order the learned Single
Judge directed the writ petitioner/respondent no.1 herein to pay
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Rs.1,50,000/- within a period of 7 days along with reconnection charges
without prejudice to the rights and contentions of the parties. It was
also directed that upon such payment CESC will reconnect the
electricity connection of the writ petitioner and he shall go on paying the
current bills. It was further observed that the said interim order shall
remain in effect for a period of two months from date and that the
matter will be taken up for hearing after three weeks when CESC shall
produce the relevant records.
2. Record reveals that the writ petition was preferred challenging inter alia
the final order of assessment dated 5th June, 2023. The said order was
preceded by an order of provisional assessment dated 24 th May, 2023
passed on the basis of an inspection report. The provisional assessment
was quantified to be Rs. 5,15,590/-. In the writ petition it was averred
inter alia that though by the order of provisional assessment it was
directed that the hearing would be granted to the writ petitioner on 7 th
June, 2023, the order of final assessment was surprisingly issued two
days prior thereto on 5th June, 2023. It was also averred that after
issuance of the final order of assessment, the writ petitioner repeatedly
approached the authorities as the provisional assessment order was
erroneously passed considering the load to be 6 KW which is equal to
27 Amp though in the inspection report it was stated that ‘while taking
photographs it drops to 5 Amp’.
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3. Mr. Sanyal, learned Senior Advocate appearing for the appellant
strenuously argues that the learned Single Judge did not consider the
maintainability of the writ petition prior to issuance of the interim order
though such issue of maintainability was specifically urged by the
appellant. The writ petition was preferred about one and half years after
the final order of assessment without furnishing any explanation as to
why the writ petitioner waited for such a long period before approaching
the writ Court, moreso when in the midst thereof, the statutory period
for preferring an appeal had long expired. The writ petitioner
deliberately slept over the issue and in the said conspectus, the learned
Single Judge ought not to have exercised discretion in his favour.
4. He further argues that the writ petitioner himself admitted that his
authorized representative attended the hearing before the Assessing
Officer on 7th June, 2023 and admitted the unauthorized use of
electricity at the premises. Inadvertently, the date of the final order of
assessment was printed as ‘5.6.2023’ in place of ‘7.6.2023’. However,
no contemporaneous representation was submitted by the writ
petitioner pointing out such fact though he received the said order on
15th June, 2023. Ignoring the said sequence of facts, the learned Single
Judge erroneously passed the impugned order.
5. Drawing our attention to the third proviso of Section 135(1A) of the
Electricity Act, 2003 (hereinafter referred to as the 2003 Act) and
Regulation 6.3 of notification no. 55 dated 7 th August 2013, Mr. Sanyal
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submits that it is a statutory mandate that reconnection can only be
effected only after the assessed amount is paid. The direction towards
reconnection only upon payment of Rs. 1,50,000/- is thus
unsustainable in law. Such arguments, as advanced, were glossed over
by the learned Single Judge and no finding was returned on the same.
Such infirmity warrants interference of this Court. Reliance has been
placed upon the judgments delivered in the cases of Sudipta Koley Vs.
Smt. M Bhowmick and Anr in WP No. 8 of 2019 and Executive Engineer,
Southern Electricity Supply Company of Orissa Limited (Southco) And
Another Vs. Sri Seetaram Rice Mill, reported in (2012) 2 SCC 108.
6. Mr. Mukherjee, learned Advocate appearing for the writ petitioner/
respondent no.1, however denies and disputes the contention of Mr.
Sanyal and submits that the statement that due to a typographical
error, the date of the final order of assessment was incorporated as
‘5.6.2023’ in place and stead of ‘7.6.2023’, at best, could have been the
version of the Assessing Officer but the said officer is not an appellant
in the present appeal.
7. Drawing our attention to the contents of the provisional and final orders
of assessment, Mr. Mukherjee submits that there is no discussion as to
why the assessment was made on the basis of 6 KW when admittedly
the inspection report revealed that the load stood reduced to 5 Amp. In
view of such error in the decision making process, the interim order was
passed and there is no infirmity in the same.
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8. He submits that after service of the final order of assessment, the writ
petitioner repeatedly approached the authorities and requested for
reconnection but in response thereto, he was handed over a format of
undertaking in an affidavit form to accept the liability towards
unauthorized use of electricity. In view thereof, the writ petitioner was
constrained to approach the writ Court as it became impossible for him
to survive without electricity. Right to have electricity comes within the
ambit of a fundamental right and by denying reconnection, such right of
the writ petitioner had been infringed.
9. In reply, Mr. Sanyal submits that the Assessing Officer, as defined in
Section 126 of the 2003 Act, is an officer of CESC and as such the
direction towards reconnection can be challenged by CESC. The writ
petitioner has miserably failed to disclose any genuine reasons as to
why he could not avail the remedy of statutory appeal.
10. We have heard the learned Advocates appearing for the respective
parties and considered the materials on record.
11. It is no longer res integra that the existence of an alternative remedy is
not an absolute bar against maintainability of a writ petition under
Article 226 of the Constitution of India. The existence and pursuit of an
alternative remedy before invoking writ jurisdiction as held by the
Hon’ble Supreme Court on numerous occasions, is more of a rule of
convenience than a rule of law. The decision making process was found
to be erroneous in as much as the provisional assessment amount was
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quantified taking the load to be 6 KW though from the photographs it
revealed that the load was of 5 Amp. Such inconsistency was also not
considered by the Assessing Officer while issuing the final order of
assessment. In such facts and circumstances, we are unable to accept
the argument of Mr. Sanyal that as an alternative remedy was available
to the writ petitioner, the writ Court ought not to have entertained the
writ petition, moreso when the Assessing Officer, who conducted the
inspection, is not aggrieved by the order passed by the learned Single
Judge and is not the appellant in the present appeal.
12. In the provisional assessment order there was a direction upon the writ
petitioner to attend a hearing on 7th June, 2023. However, the date of
the final order of assessment was stated to be’5.6.2023′ in place and
stead of ‘7.6.2023’. No corrigendum was issued by the Assessing
Officer stating that there had been a typographical error in the said
order. In the said conspectus and as the writ petitioner had been out of
electricity for a substantive period of time, the learned Single Judge
exercised discretion in his favour directing reconnection but that too on
a condition that he has to deposit an amount of Rs. 1,50,000/- along
with the reconnection charges.
13. The provisions of the third proviso of Section 135(1A) does not
necessarily bar a writ petition and in the facts and circumstances of the
case, the learned Single Judge rightly exercised discretion moreso when
no two cases are alike on facts and therefore, Courts have to be allowed
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a little free play in the joints if the conferment of discretionary power is
to be meaningful.
14. For the reasons discussed above, the appeal and the connected
applications are dismissed.
15. There shall, however, be no order as to costs.
16. Urgent certified photocopy of this order, if applied for, be supplied as
expeditiously as possible.
(REETOBROTO KUMAR MITRA, J.) (TAPABRATA CHAKRABORTY, J.)
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