Bhaskar Bhattacharya, ACJ.

This mandamus-appeal is at the instance of the unsuccessful writ petitioners and is directed against an order dated 14th September, 2009 passed by a learned Single Judge of this Court thereby dismissing the writ-application filed by the appellants by affirming the final order of assessment passed under Section 126(6) of the Electricity Act, 2003.

Being dissatisfied, the writ-petitioners have come up with the present appeal.

There is no dispute that the West Bengal State Electricity Distribution Company Limited (hereinafter referred to as the Electric Company) disconnected the supply of the writ-petitioners from the meter meant for domestic supply on the allegation that the writ-petitioners were illegally using the electricity through the said domestic connection for commercial purpose of running a nursing home situated in the same building, although, there is a separate meter for commercial purpose for running the said nursing home.

Subsequently, a proceeding under Section 126 of the Electricity Act, 2003 was initiated and the competent authority has made final assessment of Rs.1,94,452/-.

Being dissatisfied, the writ-petitioners preferred an appeal before the Appellate Authority, which, however, did not interfere with the order of assessment. The only grievance of the writ-petitioners in the writ-application out of which the present appeal arises is that in assessing the final order of assessment, the concerned authorities erred in law in calculating the amount on the basis of twice the tariff payable for commercial category notwithstanding the fact that the electric meter which was allegedly tampered was given for domestic supply. In other words, according to the learned advocate for the appellants, the assessment in terms of Section 126(6) should be made at a rate equal to twice the tariff applicable for the relevant category of service, meaning thereby, the domestic category, in the instant case.

Mr. Panja, the learned advocate appearing on behalf of the Electric Company, has, however, opposed the aforesaid contention and has contended that from the inspection report it has been well established that the domestic consumption was improperly used for commercial purpose and, thus, the assessment was rightly made at the rate equal to twice the tariff applicable for relevant category of service for which the electricity was actually consumed. In order to appreciate the question involved herein, it will be appropriate to refer to the provision contained in Section 126 of the Electricity Act, 2003 which is quoted below:

126. Assessment. (1) If on an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found connected or used, or after inspection of records maintained by any person, the assessing officer comes to the conclusion that such person is indulging in unauthorised use of electricity, he shall provisionally assess to the best of his judgment the electricity charges payable by such person or by any other person benefited by such use.

(2) The order of provisional assessment shall be served upon the person in occupation or possession or in charge of the place or premises in such manner as may be prescribed.

(3) The person, on whom an order has been served under sub-section (2), shall be entitled to file objections, if any, against the provisional assessment before the assessing officer, who shall, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment within thirty days from the date of service of such order of provisional assessment, of the electricity charges payable by such person.

(4) Any person served with the order of provisional assessment may, accept such assessment and deposit the assessed amount with the licensee within seven days of service of such provisional assessment order upon him.

(5) If the assessing officer reaches to the conclusion that unauthorised use of electricity has taken place, the assessment shall be made for the entire period during which such unauthorised use of electricity has taken place and if, however, the period during which such unauthorised use of electricity has taken place cannot be ascertained, such period shall be limited to a period of twelve months immediately preceding the date of inspection.

(6) The assessment under this section shall be made at a rate equal to twice the tariff applicable for the relevant category of services specified in sub-section (5).

At this stage it may not be out of place to mention here that sub-section (5) prior to 15th June, 2007 stood as under:

(5) If the assessing officer reaches to the conclusion that unauthorized use of electricity has taken place, it shall be presumed that such unauthorised use of electricity was continuing for a period of three months immediately preceding the date of inspection in case of domestic and agricultural services and for a period of six months immediately preceding the date of inspection for all other categories of services, unless the onus is rebutted by the person, occupier or possessor of such premises or place.

Similarly in sub-section (6), the word twice has been incorporated by the selfsame amendment in place of one and half times. Thus, by the abovementioned amendment, now the presumption of the period of unauthorised use of electricity for different categories has been abolished and in respect of all the categories, once the unauthorised use of electricity has been proved, the consumer should be liable to pay for the period of actual unauthorised consumption found on inspection and if it is not possible to come to any conclusion about any definite period, for a fixed period of one year irrespective of the categories to which the consumer belongs. The word categories used in the old sub-section (5) has been totally deleted but in the amended sub-section (6), phrase twice the tariff applicable for the relevant category of services specified in sub-section (5) has been retained. After hearing the learned counsel for the parties and after going through the materials on record, we find substance in the contention of the learned advocate for the appellants that the appropriate authority erred in law in calculating the amount at the rate equal to twice the tariff applicable to commercial rate notwithstanding the fact that the meter used for commercial purpose situated in the said building has not been tampered with and it is the meter relating to domestic consumption that has been tampered. We are unable to accept the contention of Mr. Panja that the assessment should be made at the rate equal to twice the tariff applicable to the category of service for which the electricity was allegedly used and not the relevant category of service provided by the Electric Company. At this stage, it may be mentioned here that the highest rate applicable for commercial purpose is Rs.5.70/- per unit whereas the maximum amount of rate per unit for domestic purpose is Rs.3.67/-. It appears from the report of the inspection that the writ-petitioners tried to illegally utilise electricity for commercial purpose at a cheaper rate of Rs.3.67/- instead of Rs.5.70/-. By the aforesaid provision of the after amendment, the respondent authority is entitled to assess at the rate double the rate applicable to domestic category meaning thereby at the rate of 3.67/- x 2 = Rs.7.34/- which is more than the rate applicable for commercial purpose and, at the same time, for a period of one year because the respondent itself could not arrive at any definite period of unauthorised consumption. It is now settled law that if a Statute permits an authority to act in a particular way, that act must be done in that way or should not be done at all. In this case, the law has not permitted the respondent authority to assess at the rate equal to twice the tariff applicable for the category for which the electricity was illegally used for one year notwithstanding the fact that according to its own report it is unable to arrive at any conclusion as to the period of such unauthorised use. The phrase applicable for the relevant category of the services specified in sub-section (5) appearing in sub-section (6), after the amendment has become meaningless because the word categories appearing in the subsection (5) as it stood prior to amendment has been totally deleted and a fixed period of one year had been incorporated in all categories of the consumer as the period of unauthorised use if the respondent cannot come to any conclusion as to the period of unauthorised consumption. In such circumstances, in our opinion, the phrase applicable for the relevant category of the services specified in sub-section (5) appearing in sub-section (6) should be reasonably construed as the rate applicable for the relevant category of the services to which the consumer belongs. If the intention of the legislature was to realize at the rate applicable to the category for which the electricity was actually improperly used as contended by Mr. Panja, the language would not have been framed in the way as it stands now.

We, therefore, set aside the order impugned and direct the respondent authority to reassess it at the rate equal to twice the tariff applicable for domestic purpose. Let such assessment be made within a month and the appellants are directed to pay the amount within a fortnight after service of such order of assessment. The amount already paid pursuant to the order of assessment should be adjusted. There should not be any disconnection of electricity till the expiry of fortnight after the service of the fresh order of assessment.

The mandamus-appeal is, thus, allowed to the extent indicated above. In the facts and circumstances, there will be, however, no order as to costs.

Prasenjit Mandal, J.

I agree.