N.22Sl 151/CL 20.07.26 ML-77 Ct-07 (S.R.) WPA 6845 of 2013 CESC Ltd. & Anr. v. The Appellate Authority & Anr. Mr. Subir Sanyal, Sr. Adv. Mr. Sumouli Sarkar … for the petitioners. Mr. Sujit Sankar Koley … for the WBSEDCL. 1. Affidavit of service filed in Court today is taken on record. 2. Mr. Sanyal submits that the postal article sent to the Respondent No. 2, at the correct address has returned with the endorsement “Addressee left without instructions”. 3. It is noticed that by an order dated October 7, 2013 direction for exchange of affidavits had been passed, in the presence of the Respondent No.2. However, no affidavit-in-opposition has been filed by any of the respondents. The office report dated December 5, 2013 clearly reveals that there is no affidavit-in-opposition on record. 4. The Respondent No. 2 remained unrepresented even on the last occasion when the matter was called on, as would be evident from the order dated April 10, 2026 passed by the coordinate Bench. 5. This writ petition assails an order dated December 26, 2012 passed by the appellate authority under Section 127 of the Electricity Act, 2003 whereby the final order of assessment passed by the assessing officer under Section 126 thereof has been set aside by observing that the allegations of theft and/or unauthorized use of electricity “were not sustainable in the eye of law due to lack of documentary demand”. 6. The material on record reveal that on June 6, 2012 an inspection was conducted by the authorized engineer and the assessing officer of the petitioner at the premises of the respondent no.2. Upon such inspection it was found that seals on the meter body as well as on the terminal plates of the meter had been tampered with. Accordingly, an order of provisional assessment was made on June 6, 2012 and the respondent no.2 was afforded an opportunity to file his objection thereto. 7. The respondent no. 2 was represented before the assessing officer on June 26, 2012 and his case was placed before the assessing officer. Thereafter, the assessing officer passed the final order of assessment on June 2, 2012 thereby retaining the demand raised by the provisional order of assessment and holding that there had been unauthorized use of electricity at the instance of the respondent no.2. The respondent no.2 was found liable in the sum of Rs.98,286/- (inclusive of government duty). 2 8. Assailing the said order, the respondent no.2 approached the appellate authority under Section 127 of the 2003 Act. The appellate authority has by the order dated December 26, 2012 scrapped the final order of assessment on the ground that the “allegations of theft and/or unauthorized use of electricity” are “not sustainable in the eye of law due to lack of documentary evidence”. 9. Feeling aggrieved thereby the petitioner has approached this Court by filing the present writ petition. 10. Mr. Sanyal, learned Senior advocate appearing for the petitioner invites the attention of this Court to the provisions of Section 126 of the 2003 Act and submits that an order of assessment is based on the assessing officer’s findings on inspection of either any place or premises or equipments, gadgets, machines, devices found connected or used or of the records maintained by the person concerned. 11. It is submitted that in all cases, collection of documentary evidence may not be possible. It is further submitted that this was a case where seals on the meter as well as on the terminal plate had been found to be tampered with. It is submitted that tampering with the seals of the meter and the terminal plate is itself an evidence of unauthorized use of electricity unless, the same is rebutted. 3 12. Heard Mr. Sanyal and considered the material on record. 13. It is noticed that the appellate authority has recorded that “the expression of best judgement of the Assessing Officer implies formation of opinion based on consideration of documentary evidence and equipments”. The conjunctive expression ‘and’ used by the appellate authority suggests that documentary evidence is a must in all cases. 14. However, Section 126 of the 2003 Act does not say so. The assessing officer’s best judgment may be based only on the inspection of equipments or gadgets or devices or may be based on inspection of records (which may failicitate collection of documentary evidence) or the same may be based on a combination of both. 15. Whether the opinion or finding returned on the basis of mere inspection of equipment will ultimately be sustained or not is a different matter altogether but such finding would not be vitiated simply for lack of documentary evidence, if the same otherwise remains unimpeached. That would, however, be a question of fact required to be answered, depending on the factual matrix of the case. 16. A perusal of the order impugned passed by the appellate authority does not reveal that there was any evidence in rebuttal that could dispel the conclusion reached by the assessing officer that 4 seals on the meter body and on the terminal plate had been tampered with. 17. In such view of the matter, the appellate authority, in the considered view of the Court could not have interfered with the final order of assessment on the ground of take of documentary evidence. 18. The appellate authority has in the facts of present case demanded a higher degree of proof than was required 19. Since the appellate authority has applied the wrong standards for testing the final order of assessment passed by the assessing officer, therefore, the order impugned is fit to be interfered with. Accordingly, the order dated December 26, 2012 is set aside. The matter is remanded to the appellate authority for fresh consideration upon proper appreciation of all the material on record and upon hearing all parties, in accordance with the provisions of the 2003 Act. 20. With the aforesaid observations, WPA 6845 of 2013 stands disposed of. 21. There shall be no order as to costs. 22. Urgent certified photocopy of this order, if applied for, be supplied as expeditiously as possible. (Om Narayan Rai, J.) 5