M/S. Ganapati Roller Flour Mills Vs Assam Power Distribution Company Ltd. and Anr.

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GAHC010023612019

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2025:GAU-AS:360

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/828/2019

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M/S. GANAPATI ROLLER FLOUR MILLS

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A PROPRIETORIAL CONCERN HAVING ITS PLACE OF BUSINESS AND OFFICE AT KAYAL BUILDING, COLE ROAD, DIBRUGARH TOWN, DIST. DIBRUGARH, ASSAM, OWNING A FLOUR MILL AT MOHANBARI HINDU GAON, AT P.O. LAHOAL, DIST. DIBRUGARH, ASSAM, DULY REP. BY ITS PROPRIETOR NAMELY SRI MANOJ KAYAL, SON OF LATE SANWARMAL KEYAL, A RESIDENT OF COLE ROAD, DIBRUGARH TOWN, DIST. DIBRUGARH, ASSAM.

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VERSUS

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ASSAM POWER DISTRIBUTION COMPANY LTD. AND ANR. A GOVT. OF ASSAM, UNDERTAKING DULY INCORPORATED UNDER THE COMPANIES ACT 1956 HAVING ITS OFFICE AT BIJULEE BHAWAN, PALTAN BAZAR, GUWAHATI- 781001, DULY REP. BY ITS CHAIRMAN-CUMMANAGING DIRECTOR.

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2:THE AREA MANAGER/ASSESSING OFFICER

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INDUSTRIAL REVENUE COLLECTION AREA APDCL

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DIBRUGARH

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Advocate for the Petitioner : MR. S K KEJRIWAL, B SARMA,MR. G. DUTTATRAY,MR P K BORA,MR S J SAIKIA,MR. N N DUTTA,MR P BARUAH,DR. ASHOK SARAF,MS. S KEJRIWAL

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Advocate for the Respondent : SC, APDCL, MR. P N GOSWAMI

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Date of Hearing :05.12.2024

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Date of Judgment :08.01.2025

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:::BEFORE:::

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HON’BLE MR. JUSTICE KARDAK ETE

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JUDGMENT AND ORDER (CAV)

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Heard Dr. A. Saraf, learned Senior Counsel assisted by Mr. P. K. Bora, learned counsel for the petitioner. Also heard Mr. B. Choudhury, learned Standing Counsel,APDCL, representing all the respondents.

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2. By filing this writ petition, the petitioner haschallenged the Inspection Report, Seizure and the letter dated 12.04.2017, proceedings arising out of Dibrugarh Special P.S. APDCL Case No.108/2017 and the final assessment order and bill dated 30.01.2019, issued by the Area Manager, DIRCA, APDCL, Dibrugarh, whereby the petitioner is held to be indulged in malpractice and consequent thereto, a final bill assessment amounting to Rs.65,28,996.00 (Rupees Sixty five lakhs twenty eight thousand nine hundred and ninety six) only is served to the petitioner for payment by affirming the provisional bill issued to the petitioner.

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3. The facts of the case, in brief, are that the petitioner is a proprietorship concern having its place of business at Dibrugarh, Assam, engaged in manufacture and sale of Hathi Brand Atta, Maida and Suji and for the purpose,

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owns a Flour Mill and its transactions/activities are undertaken in the trade name of M/s Ganapati Roller Flour Mills. The petitioner is provided with electricity connection with a load of 285 KW and for the purpose of billing, Meter No.ASE18844 was installed. The charges for installation of the Meter and CT & PT set were borne by the petitioner and the same were supplied by the respondent authority. The metering installation was inspected from time to time and during such installation, everything was found to be in order. The Meter Reader visits the petitioner’s premises every month and used to record the meter reading. During such visit, nothing adverse whatsoever was found with the seal or the meter.

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4. On 12.04.2017, the Inspection team of the respondent authority visited the petitioner’s premises and inspection was conducted and accordingly, inspection report was prepared, which reads as under:

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“A routine inspection is done on the consumer premises and on inspection, it is found the paper seal on both sides of the meter bearing Sl. No.2803693(L) and 2803692 (R) found cut and re-fixed with glue. So the meter is opened in presence of consumer and found local soldering spot on the CT’s secondary terminals on the PCB and also the steel plate covering the CT’s secondary on the PCB is found missing. So the team considered it as a fit case of tampering of the energy meter. The Area Manager, DIRCA and AGM, DED is requested to do necessary action as per APDCL norms. The CT&PT set cannot be checked as sub-divisional officials cannot provide the ladder because they are busy in restoring power supply work caused by storm damaged.”

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5. A Seizure List dated 12.04.2017 was also prepared. It is contended that before leaving the petitioner’s premises, the APDCL authority disconnected the power supply of both the units in sheer violation of Clause 4.5.4 of the Electricity Supply Code and related matters Regulation, 2004 (hereinafter referred to as the Electricity Supply Code) which envisages prior notice of not less than 24 hours before disconnection.It is further contended that the fact that the authority resorted to disconnection of power supply, it can be concluded that the authority projected a case of theft of electricity and not unauthorized use of electricity against the petitioner, in as much as, under the scheme of section 126 of the Electricity Act, 2003, for any unauthorized use of electricity, there is no provision of disconnection of electricity.

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6. Thereafter, on the same day i.e., on 12.04.2017, the Assessing Officer issued a letter alleging that the petitioner as well as its sister concern were directly or indirectly involved in the act of malpractice as defined under Clauses 5.A.3.2 of the Electricity Supply Code read with section 50 of the Electricity Act, 2003 with a direction to the petitioner to collect the provisional assessment bill from the office on 13.04.2017. The petitioner was further informed that his service line would remain disconnected and would not be reconnected until deposit of assessed amount in full along with reconnection charge. Therefore, it is contended that the case projected against the petitioner was that of the theft of electricity. It is further contended that neither in the inspection report nor in the letter dated 12.04.2017, there is any conclusion/finding regarding petitioner’s involvement/indulgence in any unauthorized use of electricity. It is also contended that there is no assessment of any specified quantum of electricity unauthorized use by the petitioner and its sister concern and has

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failed to show any specified quantum of electricity in KW dishonestly stolen, abstracted and/or wasted by the petitioner. Therefore, the respondent authority has failed to make out any case of unauthorized use of electricity within the meaning of Section 126 or any case of theft of electricity within the meaning of Section 135 of the Electricity Act, 2003.

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7. On 13.04.2017, the petitioner was served with a provisional assessment bill for an amount of Rs.75,90,730/- directing the petitioner to pay the amount within 28.04.2017, out of which, an amount of Rs.65,28,996/- was demanded towards assessed energy charges in respect of the petitioner and Rs.10,61,734/in respect of the sister concern. The Assessing Officer also included amount of Rs.31,242/- and Rs.6076/- towards electricity duty, it is contended,as if the bill was raised on account of any regular electricity bill ignoring that the demand is on account of penal charges which cannot be enlarged to some other dues not contemplated in the statute as a part of the assessment.

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8. It is contended that from the assessment bill, the case is projected that of the theft of electricity. It is beyond the power and jurisdiction of the Assessing officer to undertake any assessment proceeding in the light of provision contained under Section 154(5) of the Electricity Act, 2003 and the provision contained under Clause 5.A.4 of the Electricity Supply Code.

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9. It is the contention of the petitioner that since the respondent authority has projected the case of theft of electricity against the petitioner, an FIR was lodged before the Officer-in-Charge, Special Police Station, APDCL, Dibrugarh

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and accordingly, Special P.S. Dibrugarh APDCL Case No.108/17 under Sections 135/138 of the Electricity Act, 2003 was registered and the notices were issued on 18.04.2017 and 21.04.2017 under Section 41(A) of the Cr.P.C., against which the petitioner has complied by filing the written statement dated 25.04.2017. It is apparent that the respondent authority has projected against the petitioner to that of theft of electricity in terms of provisions contained under Section 154(5) of the Electricity Act,2003 and Clause 5.A.4 of the Electricity Supply Code. Therefore, the jurisdiction to decide such issue/final Civil Liability vests with the Special Court constituted under Section 153 of the Electricity Act, 2003 and as such the proceedings by the Assessing Officer is illegal. The petitioner has also filed a brief objection dated 24.04.2017, stating that the seals of Cabinet Box and Meter Cabinet Enclosure/Terminal Cover having been found intact, there was no scope of tamper or cause damage to energy meter and there is no question of indulging in any kind of power theft or unauthorized use of electricity. The assessment for alleged unauthorized use of electricity has not been made as per provisions under Section 126(1)(5) of the Electricity Act, 2003.

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10. The respondent authority fixed the hearing on 02.05.2017 after receipt of the objection dated 24.04.2017 and accordingly, the petitioner appeared and the statements were recorded. The T & C Division stated that on testing of the meter of sister concern of the petitioner, accuracy was found to be within the permissible limit and no foreign circuit was found. Regarding the meter in question, it was stated that every month CMRI date and meter readings are down loaded in presence of consumer. The petitioner contends that said statement is enough to conclude that there was no tampering in the petitioner’s

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meter, inasmuch as, had the meter been tampered with, the same would have been reflected during CMRI down loading through Base Computer Software as the meter functioning in petitioner’s premises is a digital meter capable of recording tamper event with date in its memory.

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11. The petitioner contends that the respondent No.2 passed a final assessment order dated 06.05.2017 without rendering any finding on the various points raised by the petitioner in its objection dated 24.04.2017. A false case of tampering was leveled against the petitioner as the final assessment order states that the meter billed against the petitioner, records whole power consumed by the petitioner and its sister concern. The Assessing Officer waived the assessed demand of Rs.10,61,734/- concerning the sister concern. However, the petitioner was served with the final assessment bill dated 06.05.2017 demanding an amount of Rs.65,28,996/-, out of which, an amount of Rs.31,242/-was demanded towards electricity duty as if any regular bill was raised. Being aggrieved, the petitioner filed the writ petition being WP(C)2992 of 2017.

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12. The above writ petition along with two other writ petitions were disposed of on 10.09.2018 by this Court with a conclusion that the final assessment order passed by the Assessing Officer could not be sustained in law for the reason that there was no finding, prima facie or otherwise, that there was unauthorized use of electricity by the petitioner as required under Explanation (b) to Section 126 of the 2003 Act. Recording of or arriving at a finding that there was unauthorized use of electricity by the concerned person is a condition precedent

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for invoking jurisdiction under Section 126 of the 2003 Act. In the absence of such a finding, the final assessment order dated 06.05.2017 is vitiated and the same was set aside. However, while setting aside the final assessment order, this Court remanded the case to the Assessing Authority for reconsideration in the light of the various observations made therein. Thereafter, the respondent authority has taken up the hearing on objection on 27.11.2018 and passed the final assessment order on 30.01.2019. Accordingly, final bill dated 30.01.2019for an amount of Rs.65,28,996/-(Rupees sixty five lakhs twenty eight thousand nine hundred ninety six) only was served upon the petitioner, out of which, Rs.16,32,249/-(Rupees sixteen lakhs thirty two thousand two hundred forty nine) only was already paid by the petitioner pursuant to the interim order date 22.05.2017 (being 25% of the assessed amount) was deducted and the balance amount of Rs.48,96,747/-(Rupees forty eight lakhs ninety six thousand seven hundred forty seven) only was demanded.

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13. Dr. A. Saraf, learned Sr. Counsel for the petitioner, submits that in the light of various observations made by this Court in the order dated 10.09.2018, it was incumbent for the Assessing Officer to record his findings on issues while undertaking final assessment proceedings upon remand by this Court- firstly, asto whether any electricity was unauthorizedly used or consumed by the petitioner and if so, the quantum of loss sustained by the APDCL and the resultant benefit reaped by the consumer by reason of such unauthorised use, in as much as, it is the actual use of electricity in unauthorised manner which is made penal under Section 126 of the Electricity Act, 2003. Secondly, as to whether the case projected was that of unauthorised use of electricity or that of theft of electricity in the light of lodging of FIR and thirdly, as to whether the

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Assessing Officer could continue with the Assessment Proceeding inspite of lodging of FIR,meaning thereby, to record a finding as to whether two proceedings could be continued against the petitioner for one wrong for the recovery of Civil Liability (Penalty) under Section 126 as well as under Section 154(5) of the Electricity Act, 2003.

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14. He submits that the petitioner reiterated as to what was stated in the Writ Petition (C) No. 2992 of 2017 as well as in the objection and prayed for recording his findings on the aforesaid issues. At the time of hearing, the petitioner specifically stated that as the seals affixed over meter Cabinet Box Inside which the meter was housed having been found intact, there cannot be any question of the petitioner committing any theft of electricity or unauthorised use of electricity, in as much as, without breaking the said seals, one cannot have access over the meter. It was further stated that had any tampering or malpractice been committed with the meter, the same ought to have been divulged by the CMRI down loaded by the APDCL, the CMRI having failed to divulge any such event, there was no scope to undertake any assessment proceeding within the meaning of Section 126 of the Electricity Act or to initiate any Criminal Proceeding within the meaning of Section 135 of the Electricity Act. He submits that during hearing, without responding to the points urged by the petitioner, the APDCL Personnel stated that as the paper seals of meter cover were found cut and re-fixed with glue and as local soldering spots on the CT Secondary terminals on the PCB were noticed and Steel Plate covering the CT Secondary Terminals were found missing, the same are sufficient to prove that the consumer was found indulging in interference with metering system. However, the APDCI, personal miserably failed to establish as to how such

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malpractice can be adopted or possible without breaking the Cabinet Box Seals on both outer and inner cover and without breaking the seals of Terminal Cover. As the materials collected during the Inspection dated 12.04.17 were not sufficient to prove the case of unauthorised use or electricity or theft of electricity against the petitioner, the Assessing Officer asked the petitioner to submit the wheat purchasing report for the year 2016-17. The same were duly furnished by the petitioner after conclusion of the hearing, however, same has not been considered in its proper perspective.

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15. Dr. Saraf, learned Senior Counsel submits that the Assessing Officer passed the impugned final assessment order regarding the issues pertaining to quantum of energy loss sustained by the APDCL due to the alleged malpractice by the petitioner, by holding that after analysis of consumption pattern of consumer, it was not possible to determine the quantum of energy loss sustained by the APDCL which clearly shows that there was absolutely no material to establish unauthorised use of electricity. However, upon consideration of the statement of wheat purchase, it was stated that the said statement was not authentic one to be considered as the same was without the signature of any government official as if the said statement was voluntarily given by the consumer for consideration of his case. But upon consideration of the consumption of various other consumers, it was stated that consumption during the month of November, 6 (six) of such consumers were very much low, may be due to demonetization but the consumption of the petitioner in the said month was more than normal and in view thereof, the Assessing officer kept the Assessment bill intact ignoring the fact that if the consumption even during the demonetization month was on higher side, it could be concluded that the meter

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was recording higher than the normal consumption. In any view of the matter, he submits, the analogy on which the Assessing officer upheld the provisional assessment Bill is not the basis for booking a case of either unauthorised use or theft of electricity, in as much as, the consumption in petitioner's mill is dependent on the government quota of wheat allotted to it for milling. He submits that from the order so passed by the assessing officer, it is evident that the case was neither decided in the light of various observations of this Hon'ble Court nor any finding whatsoever was recorded on the issues raised. The Assessing Officer even failed to record any conclusive finding of unauthorized use of electricity. Therefore, the order dated 30.01.2019 vitiates and is liable to be set aside.

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16. Dr. Saraf, learned Sr. Counsel,further submits that the Assessing Officer having failed to address the issues in the light of observations of this Court and also havingfailed to record any finding of use of electricity in any unauthorised manner, acted illegally and with material irregularity and consequently, neither the final assessment order nor the final assessment bill can be sustained in law and the same are liable to be set aside and consequently, it is a fit case for this Court to direct the respondent No.2 to refund the amount of Rs.16,32,249/(Rupees sixteen lakhs thirty two thousand two hundred forty nine) only paid by the petitioner together with interest thereon in terms of the Section 62(6) and 154(6) of the Electricity Act, 2003 forthwith.

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17. He submits that the Assessing Officer has failed to reach any definite conclusion regarding any particular/specified quantum of electricity

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unauthorizedly used by the petitioner as there was absolutely no evidence/material available with the Assessing Officer to establish that the petitioner was indulging in any unauthorized use of electricity resulting in any benefit to the petitioner, inasmuch as, in the Final Assessment Order, the Assessing Office clearly stated that after analysis of consumption pattern, the quantum of energy loss by APDCL could not be determined which shows that the APDCL did not find any unauthorized use of electricity resulting in any loss to APDCL or benefit to the consumer which is the requisite condition precedent for invoking powers under Section 126 of the Electricity Act. In any case the Assessing authority has failed to establish either the case of unauthorised use of electricity or theft of electricity as the Assessing Officer failed to record any finding as to whether two proceedings for recovery of Civil Liability, one contemplated under Section 126 and the other under Section 154(6) of the Electricity Act can be undertaken simultaneously.

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18. Dr. Saraf, learned Sr. Counsel, finally submits that ordinarily, against the final assessment order, statutory appeal is provided under Section 127 of the Electricity Act. But as the petitioner is assailing the very jurisdiction of the Assessing Officer to undertake any provisional or final assessment proceedings in the present case, neither the Assessing Officer nor the Appellate Authority can decide on such jurisdictional issue, they being the creatures of the Statue itself. Further, even assuming but not admitting that the petitioner is required to avail the statutory remedy, at the relevant point of time, there being no appellate authority functioning after the retirement of the appellate authority on or about 09.11.2018, the petitioner has no other option than to approach this Court for the protection of its valuable right else its power supply would be

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disconnected for not being able to meet the huge unsustainable demand in the form of final assessment bill dated 30.01.2019. Therefore, he submits that this Court may set aside the entire proceedings and the consequential the final assessment order and bill dated 30.01.2019.

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19. Per contra, Mr. B. Choudhury, learned Standing Counsel, APDCL, for the respondents, while raising the preliminary issue regarding maintainability of writ petition, submits that as the petitioner has challenged the final assessment order under Section 126 of the Electricity Act, 2003, an appeal lies under Section 127 of the Electricity Act, which requires deposit of 50% of the assessed amount for entertaining the appeal. The issues raised by the petitioner are disputed question of facts and involved technical question and therefore, the writ petition is not maintainable as the alternative statutory appeal provision is available under the law.

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20. Having submitted that the writ petition is not maintainable, Mr. Choudhury, learned Standing Counsel, on merits, submits that at the time of installation of the new meter, the inner side of the new meter cannot be shown to the consumer as the meter manufactured company sealed the meter and the warranted the same. He submits that if any new meter is found without company manufactured seal, the meter cannot be installed from APDCL side. Moreover, before installing a new meter, the meter is tested in MTI laboratory, APDCL, as per normal procedure for correctness of recording of energy consumption etc. He submits that the respondent authority had inspected metering installation from time to time, but the meter was not taken out from

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its cabinet box during any visit before the inspection dated 12.04.2017. The meter reader only takes the reading whatever shown at the meter, he cannot find out or confirm in any irregularity in the meter or tampering with paper seals of the meter without taking out the meter from the cabinet box. Therefore, meter reader did not record any adverse in the meter reading book. The inspection team inspected the metering installation of the consumer in the presence of the petitioner’s representative and was found that the paper seals on both sides of the meter No.ASE18844 was cut and re-fixed with glue. The local soldering spots on the CTs terminals on the PCB was found and steel plates covering the CT’s secondary terminals missing. Therefore, due to the interference with metering system by the consumer, electricity was disconnected as per clause 5.A.3.2(g) of the Electricity Supply Code.

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21. He submits that it was clear and confirmed that as per Inspection Report dated 12.04.2017 that the consumer is involved in unauthorised use of electricity by tampering of meter as there was cutting of paper seals fitted on both sides of the meter cover. Although, the cabinet box seal found intact, external circuit was implanted in the meter. When the meter reader takes the meter reading and downloading CMRI is done, the meter reader simply open the inner and outer cover of the meter cabinet box and do not take out the meter. Therefore, cutting of the paper seal cannot be confirmed by the meter reader.

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22. He submits that theassessment bill has been prepared on the basis of the inspection report dated 12.04.2017 and as per the norms of the Assam Electricity Regulatory Commission Rulefor the unauthorized use of electricity by

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tampering the energy meter. Mr. Choudhury, learned Standing Counsel submits that Assessment under Section 126 and 135 are similar as per Assam’s Electricity Regulatory Commission Rule. The necessary ingredients for theft under Section 135 of the Electricity Act,2003 is the dishonest intention and for prosecuting, the FIR has been lodged as per Section 135 of the Electricity Act, 2003 for theft of energy. Therefore, the Assessment under Section 126 and 135 are similar as perAssam’s Electricity Regulatory Commission Rule and there is no bar in continuance of two proceedings under Section 126 and 135 of the Electricity Act, 2003.

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23. Mr. Choudhury, learned Standing Counsel submits that in terms of the order of this Court vide dated 10.09.2018, passed in WP(C) 2992 of 2017 and other two writ petitions, the Assessing Officer by giving an opportunity of hearing to the petitioner after allowing the filing of an objection, a hearing was fixed on 27.11.2018, wherein, the petitioner had participated in the said proceeding. After hearing the petitioner, the respondent authority has passed the Final Assessment order and Final Assessment bill dated 30.01.2019. The energy consumption is measured in KWH and not in KW. The consumer made interference with the metering system by cutting the paper seals and by inserting the foreign circuit inside the meter for recording less energy consumption by the meter in the form of KWH which is clear case of malpractice. KW is a summation of total quantity of load connected in the installation. Therefore, since the petitioner has been found to be indulged in unauthorised use of electricity, the Final assessment order and bill dated 30.01.2017 has been rightly passed and demanded against the petitioner. He finally submits that although on merits also the petitioner could not make out

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any case for interference, there being alternative remedy by way of appeal under Section 127 of the Electricity Act 2003, the writ petition is not maintainable and therefore, the same may be dismissed.

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24. Mr. Choudhury, learned Standing Counsel has placed reliance on the judgement of this Court in the case of Shiv Alloys Steel Vs. Assam Power Distribution Company Ltd. & Ors ., reported in (2021) 4 GLR 558.

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25. I have considered the submissions of the learned counsel for the parties and also perused the materials available on record.

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26. In order to appreciate the issues, it would be apposite to refer and consider the relevant provisions of the Electricity Act, 2003. Section 126 of the Electricity Act, 2003 provides as under:

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“ 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.

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(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.

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(3)The person, on whom an order has been served under sub- section (2), shall be entitled to file objections, if any, against the

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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.

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(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.

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(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.

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

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Explanation.–For the purposes of this section,–

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(a)“assessing officer” means an officer of a State Government or Board or licensee, as the case may be, designated as such by the State Government;

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(b)“unauthorised use of electricity” means the usage of electricity–

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(i)by any artificial means; or

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(ii)by a means not authorised by the concerned person or authority or licensee; or

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(iii)through a tampered meter; or

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(iv)for the purpose other than for which the usage of electricity was authorised; or

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(v) for the premises or areas other than those for which the supply of electricity was authorised.

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27. Bare reading of theSection 126 shows that same deals with assessment. As per Sub-Section-(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 unauthorized 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. While Sub-Section (2) deals with service of such provisional assessment, Sub-Section (3) deals with final order of assessment. As per SubSection (3), the person against whom provisional assessment is made shall be entitled to file objection against the provisional assessment before the Assessing Officer, who may after affording a reasonable opportunity of hearing to such person, pass a final order of assessment of the electricity charges payable by such person.Sub-Sections (4), (5) and (6) deals with payment as per provisional assessment, manner of making such payment and rate of tariff to be applied while making such assessment. As per explanation (b), "unauthorized use of electricity" means the usage of electricity by any artificial means or by means not authorized by the concerned person or authority or licensee, or through a

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tampered meter or for the purpose other than for which the usage of electricity was authorized.

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28. The theft of electricity is provided under Section 135 of the Electricity Act, 2003, dealing with offences and penalties. As per Section 135 (1), whoever, dishonestly taps, makes or causes to be made any connection with overhead, underground or under water lines or cables of service wires, or service facilities of a licensee or supplier, as the case may be, or tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen of wasted, or damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed so as to interfere with the proper or accurate metering of electricity, or uses electricity through tampered meter, or uses electricity for the purpose other than for which the usage of electricity was authorized, so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may extend to 3 (three) years or with fine or with both.

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29. It is noticed that section 126 deals with assessment whereas section 135 deals with criminal prosecution and penalty. Jurisdiction under Section 126 can be invoked if the Assessing Officer comes to the conclusion that the person concerned is indulging in "unauthorized use of electricity, whereas, criminal prosecution can be launched against a person under Section 135 if he commits theft of electricity.

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30. Section 127 of the Electricity Act, 2003 provides an appeal to the appellate authority that any person aggrieved by the final order made under section 126

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may, within thirty days of the said order, prefer an appeal in such form, verified in such manner and be accompanied by such fee as may be specified by the State Commission, to an appellate authority as may be prescribed. Thus, appeal lies under section 127 against the final assessment order passed under section 126 of the Electricity Act, 2003.

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31. In the case of Executive Engineer, Southern Electricity Supply Company of Orissa Limited (South CO) -Vs- Sri Seetarum Rice Mill, reported in (2012) 2 SCC 108, the Hon’ble Supreme Court has held that there are marked differences in the contents of Section 126 and Section 135 of the 2003 Act. They are distinct and different provisions which operate in different fields and have no common premise in law. While Section 135 deals with theft of electricity, which is a punishable offence, Section 126 would be applicable to cases where there is no theft of electricity but the electricity is being consumed in violation of the terms and conditions of supply leading to malpractices, which may fall within the sweep of the expression "unauthorized use of electricity. While Section 135 squarely falls within the dimensions of criminal jurisprudence where mens rea is one of the relevant factors for determining a case of theft, Section 126 does not speak of any criminal intendment and is primarily a civil action. It does not have features or elements which are traceable to the criminal concept of mens rea. It has been held that there is a clear distinction between the cases that would fall under Section 126 of the 2003 Act on the one hand and Section 135 of the 2003 Act on the other. There is no commonality between them in law. They operate in different and distinct fields. The assessing officer has been vested with the powers to pass provisional and final order of assessment in cases of unauthorized use of electricity and cases of consumption of electricity beyond contracted load will squarely fall under such power. The

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legislative intention is to cover the cases of malpractices and unauthorized use of electricity and then theft which is governed by the provisions of Section 135 of the 2003 Act.

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32. In the case of Shiv Alloys Steel (Supra), this court has held that the appellate forum under section 127 of the Electricity Act, 2003 is equipped to decide both the factual issues and also the technical issue. Accordingly, considering the statutory alternative remedy in the form of appeal, the writ petition was held to be not maintainable.

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33. The above judgment of this Court was taken to appeal and the same was dismissed by Division Bench in Writ Appeal No.289/2021, wherein the Division Bench has held which is reproduced herein under:

¶105

“9. After considering the rival submissions of the parties, we are of the opinion that presently the remedy available to the writ petitioner/appellant is an appeal under section 127 of the Electricity Act, where he will have a liberty to place all his points, including whether due process under section 126 had been adopted or not and whether the quantum of assessment is in order. As a statutory remedy of appeal is provided to the writ petitioner/appellant, we are in agreement with the opinion of the learned Single Judge that the writ petitioner/appellant should approach the appellate authority first for redressal of his grievance.”

¶106

34. In the present case, essentially, the petitioner challenges the final order passed under section 126 of the Electricity Act, 2003 with other consequential reliefs. The final assessment order passed under section 126is one against the "unauthorized use of electricity". Sub-section (1) of section 126, authorises the

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Page No.# 22/23

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assessing officer initially to raise the provisional assessment to the best of his judgment, the electricity charges payable by the consumer after the inspection. Sub-section (3) of section 126 allows the affected consumer to be heard and thereafter, the assessing officer is required to pass a final order of assessment.Admittedly, the petitioner was heard in the present case.

¶109

35. The petitioner, as noted herein above, has disputed the provisional assessment and the final assessment order on the ground that there were no materials to indict the petitioner for "unauthorized use of electricity" with the dishonest intention. Although, no clear finding is discernable from the impugned final assessment order and bill dated 30.01.2019 by the Assessing authority in respect of unauthorized use of electricity, it reflects the act of malpractice on the part of the petitioner. Be that as it may, the issues raised in this writ petition are factual in nature coupled with technicality of the metering system and allegation of tamper in the premises of the petitioner and section 127 of the Electricity Act, 2003 providesstatutory remedy of appeal against the final assessment order made under section 126 of the Electricity Act, 2003. Thus, in my considered view, the petitioner is required to file an appeal under section 127 of the Electricity Act, 2003 against the impugned final order dated 30.01.2019 passed by the assessing officer asthe appellate forum under section 127 is equipped to decide both the factual issues and also the technical issue.

¶110

36. In view of the above, this Court is of the considered view the present writ petition is not maintainable in view of the availability of statutory alternative appellate forum under section 127 of the Electricity Act, 2003. Accordingly, same is dismissed. However, the petitioner may file an appeal against the impugned final assessment order and bill dated 30.01.2019 beforethe appellate forum under section 127 of the Electricity Act, 2003.

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37. Writ petition stands dismissed as not maintainable, however, with a liberty to avail the appropriate remedy as provided under the law. No order as to costs.

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JUDGE

¶114

Comparing Assistant

M/S. Ganapati Roller Flour Mills v. Assam Power Distribution Company Ltd. and Anr.

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M/S. Ganapati Roller Flour Mills v. Assam Power Distribution Company Ltd. and Anr.

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